Volume 175 — North Carolina Reports

<p>Appeal by plaintiffs from Shaw, J., at September Term, 1917, of Haywood.</p> <p>Tbis action in the nature of a creditor’s bill was brought by the creditors of M. M. Wells against said M. M. Wells, Maggie R. Treadway and husband, and 0. T. Wells, to recover judgment against said M. M. Wells for the respective amounts due each creditor and to set aside as fraudulent a deed executed by C. T. Wells to Maggie R. Treadway and to have her declared a trustep of the land in said deed for M. M. Wells. The defendants admitted the several amounts alleged to be due each creditor in the complaint and the only issue to be passed upon was, “did Maggie R. Treadway hold the land described in the deed' to her from C. T. Wells in trust for the creditors of M. M. Wells?” The latter having died since the commencement of this action, intestate, his heirs and administrator have been made parties.</p> <p>The facts relied upon by plaintiffs to show the trust alleged were substantially as follows: M. M. Wells was the owner of a storehouse and lot in the town of Canton, described in the complaint, and being heavily indebted on 22 August, 1903, he executed a deed for said storehouse and lot and a bill of sale for his stock of goods as merchant to R. Winfield, without consideration. His creditors thereupon put hita, in bankruptcy. On 30 September, 1903, the said Winfield, at the request of M. M. Wells conveyed the storehouse and lot to Maggie R. Treadway, a sister of M. M. Wells, without any consideration from her to Winfield. M. M. Wells continued to control the said house and lot and collected rents therefrom from the time Winfield executed the lot to her, 30 September, 1903, down to 1 September, 1914. The defendants admitted in the answer that this land was held in trust by her as security for $132, which she had loaned M. M. Wells and was in effect a mortgage.</p> <p>On 1 September, 1914, M. M. Wells and Maggie R. Treadway and husband executed a deed with warranty to O. T. Wells for said storehouse and lot and on the same day O. T. Wells executed a deed to Maggie R. Treadway for another storehouse and lot at the request of M. M. Wells in exchange for the house and lot that had been conveyed to C. T. Wells by M. M. Wells and Maggie R. Treadway and husband, together with M. M. Wells’ one-half undivided interest in a stock of goods. This last piece of land conveyed to Maggie R. Treadway by O. T. Wells is the property sought to be reached by this action.</p> <p>.. The jury found that Maggie R. Treadway did not hold the said land in trust for M. M. Wells, and judgment was rendered against the plaintiff and that Maggie R. Treadway was the owner in fee simple of the tract of land in controversy. Appeal by plaintiff.</p>

, at chambers, 12 November, 1917, of Hyde. This is an appeal from an injunction restraining tbe collection of an assessment for maintenance beyond 15 cents per acre as to lands outside of tbe lake bottom in Mattamuskeet Drainage District in Hyde.

Appeal by defendants from Lane, J., at October Term, 1917, of BuNcombe. Tbis is an action to recover land and to remove a cloud from title. The plaintiff alleges that she is the owner of 465 acres of land particularly described, and that the defendants are in possession of about 169 acres thereof, asserting a claim thereto.

Appeal by defendants from Ferguson, J., at July Term, 1917, of 'Gkaham. This is an action to remove a cloud from title. Tbe plaintiffs allege that they are the owners of a tract of land particularly described in the complaint and that the defendants claim an interest therein adverse to them. The defendants deny the title of the plaintiffs and allege that the grant under which the plaintiffs claim is void in that there is no entry ■on which the grant could issue.

Appeal by plaintiff from Webb, J., at November Term, 1917, of MeckleNbubg. This is a controversy without action, under section 803 of tbe Revisal to restrain tbe issue of $250,000 in bonds by tbe city of Charlotte for purchasing sites and building tbe necessary buildings for tbe public schools of tbe city. Tbe ordinance of tbe city of Charlotte calling tbe election on tbe bonds in question was passed on 23 February, 1917. Tbe election was called and held on 26 April, 1917.

Civil actiow tried before Garter, J., at July Term, 1917, of Mitchell. In tbe answer defendants pleaded tbe pendency of another action pending in tbe Superior Court of Yancey County in bar of tbe prosecution of tbis. Tbe court sustained tbe motion to dismiss', tbe action upon tbe fact of tbe pleadings, and plaintiffs appealed.

Civil actioN tried before Ferguson, J., at June Term, 1917, of YaNOEY. This proceeding was instituted before the clerk of the Superior Court of Yancey County for the settlement of the estate of B. S. Hensley, and involves the auditing of the account of his executors, J. B. Hensley and Moulton Hensley. The final account of the executors was approved by the clerk, and the heirs at law and distributees, who are the plaintiffs, appealed to the Superior Court.

MotioN in tbe cause for judgment against plaintiffs and tbe United States Fidelity and Guaranty Company for damages upon two undertakings in injunction proceedings, in tbe aggregate sum of $5,000, entered into in tbis cause by plaintiffs witb tbe- said Guaranty Company as-surety, before Harding, J., at Fall Term, 1917, of Jackson.

<p>Master and Servant — Employer and Employee — Pleadings — Negligence— Railroads — Demurrer Ore Tenus — Car Couplings.</p> <p>Where tbe complaint in an action to recover damages for a personal injury alleges tbat tbe defendant employer, an industrial enterprise, owned and operated cars on a railroad siding, also so used by tbe railroad company, and while coupling cars, in the course of bis employment, furnished witb a defective coupler, tbe plaintiff was compelled t.o kick tbe coupling witb bis foot, which was caught by a splinter and crushed, when bis position rendered it impossible for him to signal the engineer of tbe railroad company to stop, etc.: Held, contributory negligence does not appear as a matter of law, and a demurrer ore temes on tbe ground tbat tbe complaint does not set out a cause of action is bad.</p> <p>Clark, C. J., concurring.</p>

ActioN, tried before Webb, J., at May Term, 1917, of Jaceson, upon these issues. 1. Was the plaintiff Ira Hargis injured by the negligence of the defendant, as alleged in the complaint? Answer: “Yes.” 2. Did tbe plaintiff, by his own negligence, contribute to his injury?' Answer: “No.” 3. What damage, if any, is the plaintiff entitled to recover ? Answer r “$1,250.” From the judgment rendered, defendant appealed.

Civil actioN tried before Garter, J., at July Term, 1917, of Catawba, upon these issues: I. Were tbe plaintiff’s goods destroyed by tbe negligence of tbe defendant? Answer: “Yes.” 2. If so, wbat damage are plaintiffs entitled to recover? Answer: “$150.” From tbe judgment rendered defendant appealed.

Civil ACTION, tried on appeal from a justice’s court before Ferguson, J., and a jury, at Spring Term, 1917, of Watauga. Tbe action was to recover an amount of interest claimed to be due on an account for goods sold and delivered, tbe principal money having been closed by defendant’s notes, which were subsequently paid.

Civil ACTION, tried before Cline, J., and a jury, at July Term, 1917, of RANDOLPH. Tbe action was instituted by plaintiff, two of tbe children, heirs at law and distributees of M. 0. Dicks, deceased, to enforce tbe payment of $5,600, being balance due on a note and mortgage executed by G. F. Hankins to Mrs. M. 0.

<p>1. Deeds and Conveyances — Conditional Sales — Statutes—Registration.</p> <p>By Revisal, see. 983, conditional sales reserving title in the bargainor are required to be in writing and registered in tbe same manner, and have tbe same legal effect as provided for chattel mortgages (Revisal, sec. 982),. and by tbe latter section “No deed in trust nor mortgage for real and personal estate shall be valid at law to pass any property as against creditors or purchasers for a valuable consideration from tbe donor, bar-gainor,” etc., “but from tbe registration of tbe same”; therefore such conditional sales are regarded as chattel mortgages and void as to creditors and purchasers, except from registration.</p> <p>2. Corporations — Receivers—Title—Creditors—Statutes.</p> <p>Upon tbe insolvency of a corporation and tbe appointment of a receiver under tbe provisions of Revisal, sec. 1224, tbe corporate property vests in tbe receiver from bis appointment, and tbe receiver represents tbe creditors as well as tbe owner, excluding tbe general creditor from taking any separate or effective step on bis own account in furtherance of bis claim; and tbe proceedings for tbe receivership is in tbe nature of judicial process by which tbe rights of tbe general creditors are “fastened upon tbe property.”</p> <p>3. Same — Conditional Sales.</p> <p>Where tbe bargainor under a conditional sale to a corporation has not recorded tbe instrument, as required by Revisal, secs. 982, 983, and a receiver has been appointed under tbe provisions of Revisal, sec. 1224, bis right to a preferential lien has been lost by bis failure to register tbe instrument, tbe receiver representing tbe rights of tbe other creditors, and be is only entitled as' any other general distributee of tbe funds.</p>

Oxvtl ACTION, beard on ease agreed before Stacy, J., bolding courts ■of tbe Sixth Judicial District in November, 1917, from Lenoik.

Civil actioN, beard on motion to remove tbe cause for diversity of citizenship to the Federal court, before Webb, J., at May Term, 1917, of JACKSON. The facts relevant to the question presented, and the judgment of his Honor thereon denying the motion, are as follows: 1.

<p>Civil actioN to recover land, tried before Ferguson, J., and a jury at June Term, 1917, of Graham.</p> <p>• Plaintiff claimed the land under and by virtue of Grant No. 7315, of date August, 1885, covering the land, and introduced said grant in evidence. Defendant, admitting possession, claimed the land .under Grant No. 3522, of date May 27, 1872, and introduced same in evidence. It was admitted by defendant tbat plaintiff, by proper mesne conveyances, could connect itself witb its grant introduced by it, and by plaintiff tbat defendants bad a proper paper title connecting tbem witb tbeir Grant No. 3522.</p> <p>Tbe controversy, tben, was strictly on tbe true location of defendant’s grant and wbetber same covered tbe land in dispute. Tbe calls of said grant are as follows: “Beginning at a locust near tbe gap of-tbe trail, between Johnston’s- and McManus’, and runs N. 45 E. 127 poles to a stake, then N. 80 E. 226 poles to a stake; thence S. 10 W. 223 poles to a stake; thence S. 80 W. 226 poles to a stake; thence N. 320 poles to tbe beginning.”</p> <p>Defendant insisted tbat tbe beginning comer of tbeir grant, tbe locust, was at a point marked “J” on tbe map, and so placed, tbe course and calls of tbe grant covered tbe land.</p> <p>, Plaintiff contended tbat tbe locust, or beginning corner of defendant’s grant, was not at “J,” but at a point marked “O,” a mile away or near tbat.</p> <p>On issue submitted tbe jury rendered tbe following verdict:</p> <p>“Have defendants located tbeir grant (3522), and if so, at what point is tbe beginning comer ?” Answer: “N.”</p> <p>Judgment for plaintiff and defendants excepted and appealed.</p>

ActioN on ejectment, tried before Shaw, J., and a jury at April-May Term, 1917, of Buncombe.

Civil actiok to obtain construction of a will, beard before Lane, J., ■at April Term, 1917, of Buitcombe. On tbe bearing it was made to appear tbat George A. Murray bad ■died resident in said county, leaving a last will and testament composed of an original and two codicils thereto, disposing of a large estate consisting of real and personal property, chiefly tbe latter, and appointing plaintiff bank executor.

Civil actioN, tried at September Term, 1917, of Gbaham. Tbe action was brought to recover, a parcel of land the ownership of which depended on the true location of the dividing line between the parties who were adjoining proprietors. The jury returned a verdict for the defendant, and plaintiff appealed from the judgment entered thereon.

Civil action, tried before Long, J., and a jury, at August Term, 1917, of UNION. Plaintiff sued for the recovery of his interest in a tract of land containing 484 acres, alleged to have been conveyed by deed dated 4 January, 1857, of Calvin Laney to plaintiff’s mother, Parmelia J. Belk, and her children, namely, Napoleon B. Belk, Altha H. Belk, and Phredo R. Belk, as tenants in common. This deed was probated and registered on 25 September, 1880.

<p>Civil actioh, tried at May Term, 1917, of New Hawovek, before-Bond, J.</p> <p>Plaintiff brought this action to compel a transfer on its books by the-defendant United Development Company of 25 shares of its stock purporting to have been issued by it to the defendant H. P. Dew and which the plaintiff received from him, as a purchaser for value and without notice of any defect in his title to the same, as collateral security to a note given by Dew for money borrowed from it. Other relief wasprayed against H. P. Dew’s codefendants. The following issues were submitted to the .jury:</p> <p>1. Is the defendant H. P. Dew indebted to the American National Bank in the sum of $1,750, with interest from 11 October, 1912, upon the note sued on this case ?</p> <p>2. "Was the stock referred to of the United Development Company ever issued and delivered to H. P. Dew or to any one for him ?</p> <p>3. Was the plaintiff the owner as pledgee of Certificate No. 8, for 25-shares of stock in the United Development Company?</p> <p>4. Did the plaintiff bank, in due course of business and without notice-of any fraud, if any existed, receive said certificate of stock as collateral security to note given in renewal of unpaid balance on prior note, which prior note was originally given to said bank for money borrowed and in consideration of extension of time for payment of said balance?</p> <p>5. Did the United Development Company wrongfully refuse to transfer said stock on the books of said corporation ?</p> <p>6. Was the real estate set forth in the complaint conveyed by the United Development Company to the Chatham Estates, Incorporated, without valuable consideration? No answer.</p> <p>7. Was the real estate set out and described in the complaint fraudulently and wrongfully conveyed to the Chatham Estates, Incorporated? No answer.</p> <p>8. At the time that Chatham Estates, Incorporated, took the conveyance of the property from the United Development Company, did it have notice of the rights of H. P. Dew or of this plaintiff? No answer.</p> <p>9. Did defendants, or any of them, acting in concert with each other, wrongfully convey the land of the United Development Company to Chatham Estates,'Incorporated, and thereby'cause injury to plaintiff? No answer.</p> <p>10. What was the value of the 25 shares of stock sued on at time property of said corporation was conveyed away? No answer.</p> <p>11. Is the plaintiff estopped by the judgment which is pleaded in the further defense set up by defendants in their answer to this suit?</p> <p>12. What damages, if any, is plaintiff entitled to recover of tbe defendants United Development Company, Chatham Estates, Incorporated, Chatham Park Land Company, Paul Chatham, and W. A. Ebert ?</p> <p>The jury answered the first issue “Yes,” second issue “No,” third issue “No,” fourth issue “Yes,” fifth issue “No,” eleventh issue “Yes,” except as to the United Development Company, as to whom nonsuit was taken, and the twelfth issue “Nothing”; and under the direction of the court did not answer the sixth, seventh, eighth, ninth, and tenth issues.</p> <p>. The court instructed the jury as to the first, fourth, and eleventh issues, that if they believed the evidence those issues should be answered “Yes,” otherwise “No;” and as to the second, third, and fifth issues, that if they*believed the evidence they should be answered “No,” otherwise “Yes”; and as to the twelfth issue, that if they believed the evidence they should answer it “Nothing,” otherwise such an amount as they should find to be due.</p> <p>The court was of opinion, upon the verdict, that the plaintiff was not entitled to recover at all, and judgment was entered accordingly, and for costs against the plaintiff, whereupon it appealed to this Court.</p>

<p>1. Removal of Causes — Extension of Time to Plead — Exceptions—Motions— Waiver.</p> <p>Where a nonresident defendant does not move to remove the cause to the Federal Court for diversity of citizenship within.the statutory time to plead, and the court allows each party time therefor, to which neither has excepted or moved to dismiss for failure to file the complaint, his not having done so will be taken as his consent to the extension of the time allowed, and a waiver of his right to remove the cause.</p> <p>2. Removal of Causes — Pleadings—Allegation—Tort.</p> <p>An allegation of the complaint that plaintiff was injured in the course of his employment .while obeying a negligent order of a vice-principal of his employer, which with other of their negligent acts caused the injury, the allegation is a joint tort and the plaintiff had the right to regard the wrong either as joint or several.</p> <p>3. Removal of Causes — Fraudulent Joinder — Allegations.</p> <p>Where a nonresident is sued jointly with a resident defendant for a joint tort, a petition to remove the cause to the Federal Court for a fraudulent joinder must do more than allege the fraud by general averment by setting out the essential facts so that the court can see there has been such joinder.</p> <p>4. Removal of Causes — Petition—Bond—Sufficiency—Jurisdiction—Courts.</p> <p>Sufficiency of the petition and bond of a nonresident to remove the cause to the Federal Court is decided as a matter of law by the State courts, and if there are questions of fact arising on the motion, they are for decision in the Federal Court.</p> <p>5. Pleadings — Evidence—Variance—Statutes.</p> <p>An objection to a variance between the allegations of the pleadings and . the proof, when prejudicial and misleading, etc., should be taken in apt time, under the provisions of Revisal, secs. 515, 516.</p> <p>6. Pleadings — Verdict — Amendments — Court’s Discretion — Appeal and Error.</p> <p>It is within the discretion of the trial judge to allow, after verdict, amendments to the complaint in accordance with the evidence, when no-change in the cause of action has been made, and, in the absence of abuse of this discretion, no appeal therefrom will lie. Revisal, secs. 505, 507.</p> <p>7. Pleadings — Amendments—Presumptions—Appeal and Error.</p> <p>The trial judge will be presumed to have found the facts necessary to-support his order allowing an amendment to pleading, when no facts are-stated in the record. '</p> <p>8. Appeal and Error — Issues—Instructions—Assumptions of Risks.</p> <p>In an action to recover damages for a personal injury, where the judge-has correctly charged the jury on the evidence as to negligence and contributory negligence, including that as to the plaintiff’s assumption of' risks, the failure to submit an issue or give a request for instruction as; to assumption of risks, is not reversible error.</p>

<p>Appeal by plaintiff from Shaw, J., at September Term, 1917, of Haywood.</p>

Appeal by defendants from order of Stacy, J., at chambers, 21 November, 1917; from LeNoie.

Crvn, actiost, tried before Bond, J., at January Term, 1918, of OhowaN, upon case agreed.

<p>1. Constitutional Law — Counties—Townships—Bond Issues — Endorsement— “Faith and Credit.”</p> <p>Where townships* upon petition to the county commissioners are permitted by statute to call an election for the .purpose of voting upon the question of the issuance of township bonds for the roads of the township, the proceeds to be turned over to the sole management and control of the township commissioners, with further provision that the county endorse the bonds upon being satisfied of the validity of the issuance under the statutory authority conferred, the endorsement by the county of the township bonds is a loan of the credit of the county, without benefit to the other townships, however remote the liability and contrary to the Constitution, Art. I, sec. 17; Art. VII, sec. 7. Commissioners v. State Treasurer, 174 N. C., 141, cited and applied.</p> <p>:2. Same — Statute—Intent—Part Constitutional.</p> <p>Where a provision of a statute authorizing the issuance of bonds is valid and complete in itself and evidences, the intent of the Legislature that township bonds for road purposes may be voted upon and issued as bonds of the township, and there is an unconstitutional provision of the same act authorizing the endorsement of the bonds by the county tending to increase the market value of the bonds: Held, the unconstitutional feature of the statute does not affect the validity of the constitutional part, and the bonds may be sold without the endorsement of the county.</p> <p>•3. Counties — Townships—Principal and Agent — Constitutional Law.</p> <p>Held, under the facts of this case, that a county may act as the agent of a township in the issuance of the bonds of the township for road purposes.</p> <p>-4. Constitutional Law — “Faith and Credit” — Statutes — Counties — Townships — Bond Issues — Principal and Agent.</p> <p>Where the townships of a county are authorized by statute to separately act upon and issue township bonds for road purposes, with an unconstitutional provision that the county endorse the bonds of such townships as should issue them, the fact that several or all of the townships have voted for the issuance of the bonds under the valid provisions of the act does not affect the unconstitutional provision thereof as to the endorsement of the bonds by the county. .</p> <p>Clark, C. J., concurring in part and dissenting in part.</p>

Civil action, tried before Kerr, J., and a jury, at November Term, 1917, of PasquotaNK. Tbe action, instituted 30 October, 1915, is to recover for tbe alleged wrongful diversion of water by defendant company on tbe lands of plaintiffs R. C. Barclift and bis wife, Lavinia, causing substantial damages to tbe same. On denial of liability, tbe jury rendered tbe following verdict: 1. Is tbe plaintiff tbe owner of tbe land described in tbe pleadings? Answer: “Yes.” 2.

Civil actioN, beard on demurrer to complaint by Daniels, J., at November Term, 1917, of Edgecombe.

<p>Wills — Estates—Bodily Heirs — Rule in Shelley’s Case.</p> <p>The donor in a conveyance of land reserved a life estate in himself, then to D. “during his natural life and then to the lawfully begotten heirs of said D.’s body, and to F. (wife of D.) during her widowhood”; Held,, the use of the words heirs of D.’s body were not descriptio personarkm so as to indicate his children, and D. takes the fee simple, under the Rule in Shelley’s ease, after the falling in of the preceding particular estates.</p>

Appeal by plaintiff from Bond, J., at chambers in Edenton, 17 November, 1917; from Hyde. This is a petition for partition'beard before tbe Clerk of tbe Superior Court of Hyde, wbo dismissed tbe petition. Upon appeal, tbis judgment was affirmed by Bond, J., at chambers in Edenton, 17 November, 1917, and tbe petitioners appealed.

Appeal by Lucas and town of Belhaven from Kerr, J., at December Term, 1917, of Beaueoet. Prior to May, 1917, W. B. Tooly was mayor and 0. T. Windley, W. D. Morrison, A. Miller, F. M. Bisbop, and J. W. Smith were aldermen of tbe town of Belhaven.

Appeal by defendant from Daniels, J., at December Term, 1917, of MARTIN. This is a controversy without action to recover tbe purchase price of a tract of land, tbe defendant refusing to accept a deed and pay thé purchase price according to tbe terms of a contract entered into between him and tbe plaintiff on the ground tbat tbe plaintiff has not an indefeasible title in fee.

Civil actioN, tried before Daniels, J., at October Term, 1917, of WilsoN, upon these issues: 1. Was the plaintiff, M. C. Cobb, damaged by the trespasses of the defendants, as alleged? Answer: “Yes.” 2. What amount of damages by way of compensation is the plaintiff entitled to recover ? Answer: “$15.” 3. Were such trespasses committed wantonly and willfully and in reckless disregard of the plaintiff’s rights? Answer: “No.” 4.

<p>1. Insurance — Fraternal Orders — Pleadings—Evidence.</p> <p>The complaint in an action on a membership life insurance policy by the wife alleging the loss of the policy, her inability to find it, and that her husband had been dropped on the defendant’s roll at the time of his death, without charge or cause, and and against his protest, is insufficient without proper allegation and proof of the lost policy, that recovery was not barred by the contract or lapse of time, and that he had illegally been dropped, and had regularly tendered his fees.</p> <p>2. Appeal and Error — Briefs—Time of Filing — Rules of Court.</p> <p>Upon motion of appellant aptly made at the call of the district to which the case belongs, the appellee’s brief will be dismissed if not filed on the preceding Saturday by noon, and disposed of without argument by appel-lee, unless for good cause shown, the time should be extended. Rule 36.</p> <p>3. Insurance — Fraternal Orders — Pleadings—Demurrer Ore Tenus.</p> <p>Where the wife of a deceased insured brings action individually and not as administratrix, to recover upon the life insurance policy of her husband, she must allege that she was the beneficiary named therein, or the action will be dismissed ore tenus.</p>

Civil ACTION, in tbe nature of quo warranto, to determine tbe question of title to tbe office of City Attorney of Elizabeth City, N. C., tried by consent on tbe pleadings and facts admitted before Kerr, J., at September Term, 1917, of Pasquotank. There was judgment for defendant, and relator and plaintiff, having duly excepted, appealed.

<p>,1. Wills — Devise—Ademption.</p> <p>A direction by tbe testator that bis real and personal property, not otherwise disposed of, be sold and tbe proceeds divided among certain living grandchildren, refers to such as may be living at tbe time of bis death; and when be has sold, in bis lifetime, a part of bis realty, such sale is an ademption, and tbe proceeds will pass under another clause of tbe will particularly relating to tbe testator’s property of this character.</p> <p>2. Same — Consistent Clauses.</p> <p>Where tbe testator directs tbe sale of bis land and the proceeds to be distributed among five children, and in bis own lifetime has sold a part of tbe land, tbe fact that in a subsequent item be. directs that bis moneys on band, etc., shall be divided among tbe children of only four of these children, does not indicate that tbe children of one bad been inadvertently omitted by him from tbe latter item.</p> <p>3. Parties — Guardian Ad Litem — Representation—Supreme Court — Appointment — Statutes.</p> <p>Where a construction of a will by tbe court is sought, and it appears that certain of tbe minors in interest had been served with process but inadvertently a guardian ad Utem bad not been appointed; but it appears that their rights bad been thoroughly considered and determined in tbe Superior Court and presented on appeal, and there are no issuable facts involved, tbe case will not necessarily be remanded for tbe appointment of a guardian ad Utem for tbe Supreme Court may appoint one under authority of Pell’s Revisal, sec. 1545.</p> <p>4. Wills — Interpretation—Attempt to Defeat.</p> <p>A party to an action to obtain a construction of a will to ascertain tbe testator’s intent, and who consented thereto for that purpose will not be defeated of bis rights thereunder by a clause providing that an attempt to defeat tbe will or any item thereof shall bar a recovery of any interest in tbe estate.</p>

Appeal by defendant from Kerr, J., at the Special October Term, 1917, OÍ TYRRELL. This is an action to recover damages for personal injury caused, as the plaintiff alleges, by the negligence of the defendants. The defendants deny negligence, and allege that the plaintiff was injured by his own contributory negligence.

Civil, ACTION, tried before Whedbee, Jat October Term, 1917, of HERTFORD.

Civil action, tried before Allen, J.} and a jury, at November Term, 1917, of Wayne. The plaintiff was in the employment of tbe defendant company on 10 August, 1917, as pattern maker, and had been there for some months previous to this date. He was directed to add one-fourth of an inch to the thickness of a sawdust grate bar. To do this it required a piece of timber one-fourth of an inch thick to be tacked on the old grate bar.

Appeal by plaintiffs from case agreed, heard at January Term, 1918, of Pitt. . On 24 September, 1877, Thomas Williams and wife executed and delivered to their,son, James W. Williams, a certain deed, marked Exhibit “A” in the case agreed, for the lands described therein.

Special PROCEEDINGS for award of “alimony without divorce,” under section 1567, Revisal, heard at chambers 9 October, 1917, by Whedbee, J.j Fall Term, 1917, of Nance. It appears that, a few days prior to this time, the defendant, in term, had been tried and acquitted on an indictment of criminal abandonment of the plaintiff.

Civil actioN, tried before Whedbee, J., at October Term, 1917, of HERTFORD, upon these issues: 1. In wbat amount is the defendant indebted to tbe plaintiff on account of tbe execution of tbe two notes declared on in tbe complaint? Answer: “$500.12, witb 6 per cent interest from 1 January, 1916, and tbe further sum of $486.30, witb 6 per cent interest from 15 January, 1916.” (Answered by consent.) 2.

ActioN, tried before Whedbee, J., at January Term, 1918, of Wayne, for damages for the negligent killing of plaintiff’s mule. From a judgment of nonsuit, plaintiff appealed.

Civil ACTION, pending in tbe Superior Court of WayNE, beard out of term, 29 December, 1917, by consent, by Allen, J., upon exceptions to report of referee filed by plaintiff. His Honor overruled tbe exceptions and adopted tbe findings of tbe referee, botb of law and fact,, and confirmed bis report. Plaintiff excepted and appealed.

Appeal by plaintiffs from Whedbee, J., at Fall Term, 1917, of Hert-ford. This is an action to set aside a sale made pursuant to tbe power contained in a mortgage and to bave tbe deed executed to tbe purchaser removed as a cloud on tbe title of tbe plaintiffs. Serecta Jenkins on 10 January, 1898, was indebted to defendant J. B. Griffin in tbe sum of $127.32.

Appeal by plaintiff from Whedbee, J., at tbe August Term, 1917, of BERTIE. Tbis is an action brought by Ernest Askew, guardian of Rosa Askew and Sallie Askew, against J. II. Matthews, administrator of Eliza Ilog-gard, to recover two notes of $1,250 and $500, respectively, and one-balf interest in a note for $2,000. The notes sued for were the property of Eliza Hoggard during her lifetime.

Appeal by defendants from Stacy, J., at January Term, 1918, of ' DupliN. Tbis was an action by tbe plaintiffs, drainage engineers, wbo performed services and incurred necessary expenses for tbe defendant corporation both before and after its organization. These services were necessary to tbe establishment of said district before tbe prayer of tbe landowners could be granted by tbe court creating tbe district.

Appeal by defendants from Stacy, J., at August Term, 1917, of DupliN. Timothy Newkirk, in bis will probated in Duplin in October, 1859, among other devises provided: “I give and bequeath to my friend, John D. Powers, my plantation known as the ‘Wells’ place, to be used for the occupancy, support, and maintenance of certain negroes which I have conveyed to said Powers by and of gift for and during the term of the natural life of said negroes.

Civil actioN, tried before Allen, J., and a jury, at September Term, 1917, of Lee.

Appeal by plaintiffs from Calvert, J., at tbe October Term, 1917, of CRAVEN. Tbis is an action against tbe defendants, James Stewart and bis father, J. W. Stewart, to recover damages for wrongful death. Tbe material facts are stated in tbe report of tbe former appeal, 172 N. 0., 203.

Civil actioN tried before Stacy, J., and a jury at November Term, 1917, OÍ IiENOIR. Plaintiff, about fifteen years old, was employed by tbe defendant to handle blocks and slabs at its mill, and especially at tbe end of a slab and block slide to assist in placing tbe blocks and slabs on tbe railroad ■cars. Tbe slide was between 50 and 70 feet long, and at tbe bigbest point was 30 feet from tbe ground, and tbe base was 40 feet, tbe slide being triangular irt shape.

Civil actioN, tried before Stacy, J., and a jury at January Term, 1918, of DupliN. The plaintiffs brought this action for the purpose of recovering damages for the burning of timber, and other property on their land, which they allege was caused by the defendant’s negligence in permitting live sparks or cinders to escape from its engine.

Appeal by defendant from .Stacy, J., at the August Term, 1917 of DupliN. This is an action to try the title to 40 acres of land, and to recover rents and profits, the plaintiffs claiming to be the owners of five-sevenths of the land as the heirs of Abram Blanton, Sr., and admitting that the defendant is the owner of two-sevenths by purchase from two of said heirs.

Appeal by plaintiff from Stacy, J., at November Term, 1917, of LENOIR. This action was instituted by tbe plaintiff against the defendant upon a note alleged to have been executed by the defendant to J. T. Deal and assigned by J. T. Deal to the plaintiff. The plaintiff is a North Carolina corporation. The, defendant is a resident of the State of Virginia. The summons was not personally served upon the defendant.

CONTROVERSY submitted without action before Long, J., in Iredell, 28 January, 1918.

<p>1. Evidence — Family History — Birth of Child — Declarations — Physicians— Kepute — Tenant by the Curtesy.</p> <p>Where the controversy depends upon whether the father is tenant by the curtesy in his wife’s land by the birth of a child alive of the marriage, and those who were present are all dead, including the family physicians, it is competent for the father to testify to the fact, and of declarations made to him by the physicians at the time, at least in corroboration of his testimony ; also a brother-in-law not interested in the action is competent as to family repute, and testimony by a third person, at least in corroboration, of such general reputation in the community.</p> <p>2. Evidence — Birth of Child — Presumptions — Instructions — Appeal and Error.</p> <p>Where the controversy depends' upon whether the father was tenant by the curtesy in his wife’s lands by the birth of a child of the marriage alive, the proof that the child was born raises the presumption that it was born alive, and a peremptory instruction to the contrary by the court is reversible error.</p> <p>3. Evidence — Family History — Birth of Child — Declarations — Repute— Statutes — Registration of Births.</p> <p>Declarations of family physicians and general family repute as to whether a child was born of a marriage alive, mating the father a tenant by the curtesy in his wife’s lands, are received from necessity as the best evidence, but they are more restricted, as such, since the enactment of our statute requiring registration of births and deaths.-</p>

<p>Appeal by caveators from Calvert, J., at September, 1917, Special. Term of Pitt.</p>

Civil actioN, tried before Stacy, J., at November Term, 1917, of LeNOIR, upon these issues: 1. Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? Answer: “Yes.” 2. If so, did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer ? Answer: “Yes.” 3. What damages, if any, is the plaintiff entitled to recover of defendant? Answer: “$100.” From the judgment rendered defendant appealed.

Civil action-, tried before Stacy, J., at August Term, 1917, of DupliN,. upo.u these issues: 1. What amount, i£ any, Have tbé defendants paid on notes sued upon ? Answer: “$619.45.” 2. Did said R. B. Southerland knowingly and willfully misappro-piate and misapply $563.57 worth, or any amount of said Cooper Guano Company’s goods to his own use, or to the use of Wallace Southerland Company, by taking same to pay rent due M. McD. Williams? If so, what amount?

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

<p>1. Mortgages — Title—Trusts.</p> <p>A mortgage of lands conveys to the mortgagee the legal title, in trust for the security of his debt.</p> <p>2. Same — Default—Possession.</p> <p>A mortgagee of lands, or his assignee, after default by the mortgagor, is; entitled to the possession, but accountable to the latter for the rents and profits thereof.</p> <p>3. Ejectment — Mortgages—Title—Burden of Proof.</p> <p>Where the plaintiff claims title to land by deed and mesne conveyances-from the original owner, and the defendants, in possession, claim under a prior mortgage made by him and mesne conveyances, the burden is on the plaintiffs, in this action of ejectment^ to show they had in some way acquired the title and the right of possession, as the mortgagees had taken possession after default in payment of the mortgage debt. As to whether - the bar of the statute, Revisal, see. 390, applies, the action not being one-to redeem, Queere?</p> <p>4. Same — Limitation of Actions — Adverse Possession — Burden of Proof— Trials-J-Instructions.</p> <p>Where those claiming the right to possession of lands under a deed and mesne conveyances from the original owner rely upon adverse possession under color of title, as against those claiming possession under his prior mortgage and mesne conveyances, after default, a charge that the plaintiff would be entitled to recover should the jury find he had been in adverse possession of the land for seven years from the date of the deed, is not to his prejudice under the evidence in this case. The possession of the-mortgagor is not adverse to the mortgagee. Parker v. Banks, 79 N. C., 480, reviewed.</p> <p>¡5. Appeal and Error — Evidence—Harmless Error.</p> <p>The exclusion of immaterial evidence upon the trial, which could not' have changed the result, is not reversible error on appeal.</p> <p>6. Ejectment — Mortgages—Title—Constructive Possession.</p> <p>Where the locus in quo is not in the actual possession of any one, it is-in the constructive possession of one having the legal title to the lands, and this is sufficient in ejectment for a recovery against one who has no-superior title.</p>

Civil ACTION, tried before Bond, J., and a jury, at Spring Term, 1918r of BeuNswick. Tbis is an action for the recovery of land, and was before us at a former term, being reported in 172 N. 0., 277, where the facts will be found, together with an explanation of the controversy. The plaintiffs alleged in their complaint that they were owners of the Burns tract (described by metes and bounds) and entitled to the possession thereof. This was denied in the answer.

Habeas ooepus proceedings involving the right to present custody of an 11-year-old female child, heard before Bond, J., at October Term, 1917, of Bladew. The petitioner being the father of the child and the respondent being the maternal grandfather. The court heard the testimony and made findings of fact thereon, in part, as follows: 1. That petitioner is the father of the child, and the child is now about 11 years of age. 2.

Civil actioN to sell land for partition and reinvestment, part of same being affected by contingent interests, instituted to November Term, 1916, of PasquotaNk; Justice, J. The rights of the parties and respective interests in the property are -chiefly dependent on a certain deed bearing date March, 1883, in which A. L. Pendleton, the owner of the property, and Charles Guirkin, as trustee holding under a trust deed from said Pendlton, to secure two •small claims due from him…

<p>1. Contracts — Options—Consideration—Withdrawal of Offer — Acceptance.</p> <p>An offer to sell upon commission certain lands to a proposed purchaser, so much in exchange and the balance in cash or on certain conditions of payment, is not a valid contract to convey the lands, but a mere option, or unilateral contract without consideration, which the owner could withdraw before acceptance.</p> <p>2. Contracts — Options—Acceptance—Evidence—Questions for Jury — Trials.</p> <p>Where the seller of lands upon commission under an option or unilateral contract containing certain conditions, and without consideration,' telegraphs the proposed purchaser, who was absent, asking him when he could come and close the deal, and a date is set in reply, the telegraphic communication is not an acceptance of the proposal to sell, or to make it enforcible as a completed contract.</p> <p>3. Instructions — Trials—Requests—Contracts—Options—Acceptance—Evidence — Omissions.</p> <p>Where the evidence is conflicting as to whether the terms of an option without consideration to sell lands given to an agent for that purpose upon commission were withdrawn before acceptance, the question is one for the jury under proper instructions from the court; and where the court instructs the jury that it would be binding if the agent had procured a purchaser who was at all times ready, able and willing to purchase the property upon the stated terms, it is reversible error for him to omit or refuse to charge that the defendant would not be bound by his option if he had withdrawn it before its acceptance.</p> <p>4. Instructions — Trials—Evidence.</p> <p>A correct request for instruction which is not supported by the evidence is properly refused.</p> <p>5. Evidence — Principal Agent — Good Faith — Fraud.</p> <p>Evidence that an agent to sell land on commission was trying to get the best terms he could for a proposed purchaser is not alone, under the evidence 'in this case, sufficient of his bad faith or fraudulent purpose to obtain a greater price with the intention of appropriating the excess.</p>

<p>Statute of Frauds — Debt of Another — Promise—Consideration.</p> <p>Where money and crop supplies are advanced to a father and son upon the promise of the father alone to pay for them, and accordingly the credit is extended at the time or thereafter, the transaction does not fall within the meaning of the statute of frauds requiring a writing, etc., for one to become bound for the debt, etc., of another; and when there is evidence of such transaction, a motion as of nonsuit should be denied.</p>

Appeal by plaintiff from Lyon, J., at tbe August Term, 1917, of Eeanklin. Tbis is an action for tbe recovery of land. Plaintiffs claim under tbe deed of their grandfather, William Roe, dated 26 August, 1881, and recorded 27 May, 1882, -made to plaintiff’s father, Winfield Scott Roe.

<p>Stock Law — Taxes—Assessments—Real Property — Statutes—Injunction.</p> <p>Revisal, sec. 1675, authorizes, upon certain conditions, “a tax upon the property holders within the district,” when withdrawing “from a stock-law district”; and section 1685 authorizes an “assessment” upon all real property, etc., for the purpose “of building stock-law fences” within counties “which may adopt the stock laws”; but an assessment by a county upon the real estate to build a fence for the purpose of keeping the stock in antistock-law territory from trespassing is unauthorized by law; and a restraining order should be continued and, under the facts of this case, made perpetual at the final hearing.</p>

<p>1. Drainage Districts — Judgments—Modifications—Changes—Courts.</p> <p>The judgment rendered upon the organization of a drainage district does not conclude the filing of supplementary petitions, for such proceedings are subject to modification from time to time by the landowners in the district or by the supervisory orders of the court, with the restriction that no radical change will be made or any change that would throw additional costs upon the landowners therein without benefit to them.</p> <p>2. Same — Supplementary Petition — Procedure.</p> <p>Where it is made to appear that the stopping of a main canal within a drainage district short of the distance originally planned is a detriment, and causes damage to the health of those living therein, and is also insufficient, it is proper, upon the petition of some of the landowners in the district to extend the canal at their own cost, for the court to appoint “viewers” with direction to report their action, subject to the approval of the court.</p>

CONTROVERSY without agtion beard by Stacy, J., 5 January, 1918; from New TTanover. Tbis is an action to determine tbe right of tbe defendant L. P. Matthews to a personal property exemption in certain' property which formerly belonged to the partnership known as the Frost Ice Crpam Company, which partnership was composed of the defendant L. P. Matthews and the plaintiff George L. Farmer.

Appeal by defendant from Connor, J., at February Term, 1918, of RobesoN. Tbis is an action on a note executed by tbe defendant to John W. . Ward for $2,500, dated 19 April, 1915, and payable 15 October, 1915. The defendant admitted that the plaintiff was the equitable owner of the note, but denied that it was transferred to the plaintiff before maturity. The defendant alleged in his answer as a defense: 1.

<p>Automobiles — Negligence — Principal and Agent — Evidence — Nonsuit — Trials.</p> <p>Where the plaintiff sues the owner of an automobile for injuries received while his son was driving it, evidence that the son was driving his mother at the time, and that after the injury the defendant ordered his son to take the plaintiff home, is sufficient to take the case to the jury upon a motion to nonsuit, upon tlie question oí whether the son was acting in the service of the defendant when the injury was inflicted.</p> <p>Allen, J., dissenting; Walker, J., concurring in the dissenting opinion.</p>

<p>Appeal by defendants from Connor, J., at September Term, 1917, of AiAMANOE.</p>

Civil actioN pending in Superior Court of Robeson County. The' plaintiff having filed his verified complaint, moved in the cause for an-order to examine defendant before the clerk prior to trial under Revisal,. secs. 865, 866. The clerk made the order and the defendant moved to vacate the same. The motion was denied and defendant appealed to the-Superior Court. His Honor Judge Bond affirmed the order of the clerk,. October Term, 1917, and defendant appealed.

Civil actiow, tried before Bond, J., at October Term, 1917, of BnAnEN, upon these issues: 1. Was tbe execution of tbe deed referred to in tbe complaint procured by assurances of said C. Gr. Ray tbat -be would provide and take care of bis father and mother so long as they lived, as alleged in tbe complaint? Answer: “Tes.” 2. Did tbe defendant, C. Gr.

<p>1. Landlord and Tenant — Leases—Fraud—Title.</p> <p>Where the plaintiff has been in possession of the lands in dispute for twenty-three years and continues therein, and has executed a lease thereof to the defendant, it may be shown in evidence that the defendant induced the lease by fraud and misrepresentation, and upon establishing this as a fact, the relation of landlord and tenant is unavailable as a defense.</p> <p>2. Same — Evidence—Questions for Jury — Trials.</p> <p>Evidence that the defendant has induced the plaintiff, an ignorant colored man, to accept a lease of his own land upon defendant’s representation that it was necessary to get a paper title to the lands after it had been sold for taxes, is sufficient upon the question of defendant’s fraud and misrepresentation to take the issue to the jury.</p> <p>3. Instructions — Contentions—Tax Deeds — Deeds and Conveyances — Appeal and Error.</p> <p>Where the plaintiff has permitted the lands in controversy to be sold for taxes, and the defendant claims under the tax deed, it is not error for the court to forbid the defendant’s counsel to argue to the jury that neither the plaintiff nor his ancestor had paid anything for the land.</p> <p>4. Instructions — Contentions — Appeal and Error — Objections and Exceptions.</p> <p>A statement by the court of the contention of a party properly arising in the controversy is not error -and will not be considered on appeal when not excepted to at the time.</p> <p>5. Instructions — Colored Persons — Fair Trials — Appeal and Error.</p> <p>A charge to the jury, where one of the parties is a white and the other a colored man, that they should give the litigants a fair and impartial trial regardless of color is not erroneous.</p> <p>6. Tax Deeds — Deeds and Conveyances — Liens — Instructions — Appeal and Error.</p> <p>Where the controversy over lands depends upon the validity of defendant’s tax deed, it is not error for the court to charge the jury that if plaintiff recovered in the action he would have to repay the defendant the moneys he has expended; and where the verdict is in plaintiff’s favor, a judgment is proper making the amount a lien upon the lands.</p>

Civil action tried before Whedbee, J., and a jury at October Term, 1917, of HERTFORD. Tbe purpose of the action was to Redare a certain paper-writing, hereinafter set forth, a mortgage on the lands of defendant described therein, to secure a debt of $75, with interest due from defendant to plaintiff and for the further purpose of foreclosing the same under the decrees of the court.

Civil actiow, tried before Stacy, J., and a jury, at November Term, 1917, of LeNOie. On 1 March, 1883, James W. Oox, being the owner in fee of a tract of 70 acres of land, lying partly in the present corporate limits of Kins-ton and on the banks of the Neuse River, made, executed, and delivered to J. Gr.

<p>Appeal by plaintiffs from Oonnor, J., at the February Term, 1918, of CUMBERLAND.</p> <p>This is an action on a fire insurance policy issued by the defendant company on 24 April, 1917, and insuring certain lumber in the sum of $1,500 from twelve months from that date.</p> <p>The policy contained the following stipulation: “It is a condition of this contract that a continuous clear space of 200 feet shall be maintained by the assured between the property hereby insured and any woodworking establishment or any drykiln (except tramways upon which lumber is not piled), and such space shall not be used for the piling of lumber or timber products, but this Shall not be construed to prohibit loading or unloading within, or the transportation of lumber and timber products across, such clear space; otherwise this policy shall be void.”</p> <p>The material facts bearing on the liability of the defendant are as follows:</p> <p>4. That the lumber of the plaintiffs for which the present claim is presented was destroyed by fire on 10 August, 1917, said lumber being located on the premises known as the D. R. Graham land, Rennert Township, Robeson County, North Carolina.</p> <p>5. That at the time of said fire the lumber so destroyed was piled within less than 200 feet of an open-shed sawmill.</p> <p>6. That from the issuance of said policy until within about three or four days of the fire above mentioned, said sawmill was in continuous operation, said operation consisting in the sawing of logs into lumber and cutting the lumber into sizes of varying length and width. That such operations were carried on by means of machinery, and in this connection the said sawmill was equipped with a steam engine, boiler, furnace, smokestack, shafts, belts and pulleys, and other equipment in general use in such plants.</p> <p>I. Tbat tbe lumber above described was at tbe time of its destruction piled in tbe same place where lumber bad been piled at tbe time said policy of insurance was issued, and between tbe issuance of tbe policy and tbe time of tbe fire there was no communication between tbe parties in reference to tbe location of said lumber.</p> <p>8. Tbat the policy of insurance referred to was applied for by tbe plaintiffs in Philadelphia, Pa., was sent to .Charlotte, N. 0., and there made out upon tbe form approved by tbe State of North Carolina, and was then delivered to tbe plaintiffs in Philadelphia; tbat prior to the issuance of said policy there was no inspection by tbe defendant, either of tbe lumber or tbe premises upon which it was piled, and no agent, officer, or employee of tbe defendant bad knowledge or notice of tbe location of said lumber in reference to said sawmill, either at tbe time said policy was issued or at any time between tbe issuance and tbe date of tbe said fire; and there was abundant space on said premises, more than 200 feet from said sawmill, upon which said lumber could have been piled.</p> <p>9. Tbat tbe rate of insurance, or premium, at which tbe said policy was issued and tbe acceptance of said risk were controlled or influenced by tbe condition in said policy, "that a continuous clear space of 200 feet should be maintained by tbe assured-between tbe property hereby insured and any wood-working establishment,” etc.</p> <p>10. Tbat tbe plaintiffs had purchased tbe lumber insured from one E. J. Graham, and immediately after said fire insurance policy was issued plaintiffs informed tbe said E. J. Graham tbat they bad taken out insurance upon the lumber covered by said j>olicy of insurance and directed him to pile said lumber not less than 200 feet from said sawmill, and the plaintiffs supposed tbat said direction bad been complied with -and at no time did tbe plaintiffs or any agent of tbe plaintiffs know tbat any .portion of said lumber was within less than 200 feet of said sawmill.</p> <p>II. Tbat at tbe time when tbe fire originated and for some days prior thereto said E. J. Graham’s timber supply for tbat plant bad been exhausted, and be was about to remove tbe sawmill to another location, though said sawmill was started up a few days after tbe fire for tbe purpose of sawing a few logs on tbe yard, in which lumber tbe plaintiffs bad no interest, and tbe lumber of plaintiffs which they bad purchased from said E. J. Graham was being loaded and hauled as rapidly as possible, though tbe amount of said lumber specified in tbe proof made by plaintiffs to defendant was consumed by said fire, tbe lumber so consumed not having been thus located or hauled, and there was other lumber owned by plaintiffs at said plant which was not consumed.</p> <p>12. That the value of the lumber consumed by fire and covered by the policy attached hereto was upwards of $1,500, and if the defendant is liable on said policy it is liable for the sum of $1,500 and interest on same from 10 October, 1917.</p> <p>13. That the fire which destroyed the said lumber did not originate from said sawmill, but burned towards the mill building, and was extinguished within about 62 or more feet of the mill, and neither the mill building nor any part of the machinery connected therewith caught on fire.</p> <p>14. That said fire did not originate from any act of negligence on the' part of the plaintiffs or their agents or servants.</p> <p>15. That the plaintiffs have duly submitted to the defendant a proof of loss on the above claim and the defendant has refused to pay same.</p> <p>His Honor rendered judgment in favor of the defendant and the plaintiff excepted and appealed.</p>

Appeal by defendant from Kerr, J., at the Fall Term, 1917, of CamdeN. This is an action instituted by the plaintiffs, the children of D. T. Pritchard and grandnephew and nieces of D. L. Pritchard, to establish a parol trust and to recover possession'of land. The defendant relies on the plea of the statute of limitations and laches. D. L. Pritchard was formerly the owner of the land described in the complaint, and on 2 January, 1886, he.executed a deed therefor to J. Gr.

Appeal by defendant from Devin, J., at tbe February Term, 1918, of Dueham. Tbis is a petition, filed in a proceeding to sell land for partition, 'to determine tbe rights- of tbe parties to a part of tbe fund derived from tbe sale. J. 0. Hogan was formerly tbe owner of tbe land, and be died in September, 1895, leaving a will by wbicb be devised tbe land to bis wife, Francis J. Hogan, for life, and tben to bis children. Francis J. Hogan died on 12 November, 1916.

Appeal by plaintiff from Connor, J., at tbe September Term, 1917, of ALAMANCE. This is an action to recover damages for killing one bird dog and injuring another, belonging to the plaintiff. The defendant admits in his answer that he shot at the dogs, and upon the evidence the fact that he killed one and injured the other is not in controversy.

<p>1. Attorney and Client — Fees—Prior Assignment — Notice—Action—Prima Facie Case.</p> <p>Where an attorney has collected by suit monies for his client upon the latter’s building contract, and has retained a part thereof as compensation for his services, in an action by a prior assignee of the contract, the plaintiff makes out a prima facie case against the attorney by showing the assignment of the contract to himself, the amount of the indebtedness and that the attorney acted with notice of his claim.</p> <p>2. Same — Burden of Proof — Quantum Meruit.</p> <p>Where an attorney has collected in part upon his client’s contract and has retained a part thereof as his fee, the burden is on him to show, in an action by the assignee of the contract, upon his making a prima facie case, in the absence of a special contract between them, that he is entitled to his compensation upon a quantum meruit, and that he has properly distributed the funds in his hands.</p> <p>3. Same — Pleadings—Amendments—Courts.</p> <p>• Where the plaintiff sues his debtor’s attorney for the entire sum collected by the attorney upon a contract assigned to him for security of a loan, the position taken by the trial judge that he could not recover without an amendment setting up a quantum meruit is incompatible with the principal cause of action, and a nonsuit upon his failure to so amend, when he has made out a prima facie case, is reversible error.</p> <p>Claek, C. J., concurring.</p> <p>Walker, J., did not sit on the hearing of this case.</p>

MotioN to set aside sale of land, beard by consent by Bond, J., at November Term, 1917, of CumbeklaND. Tbe court found tbe facts and rendered judgment setting aside tbe sale. Defendant appealed.

Civil actioet, tried before Gormor, J., at September Term, 1917, of DURHAM, upon these issues: 1. Did the defendants offer to sell the plaintiff their stock in the Durham Life Insurance Company, as alleged in the complaint? Answer: “Yes.” 2. Did the defendants withdraw said offer before its acceptance, as alleged in the answer?

Appeal by plaintiff from Harding, J., at June Term, 1917, of Rook-INGHAM. Tbe plaintiff, a colored man, brings this action against tbe defendant Sberrod, tbe owner of an automobile, and tbe automobile company of wbicb be is president to recover damages for tbe loss of bis borse and injury to bimself and bis buggy, alleged to bave been caused in the operation of an automobile owned by tbe defendant Sberrod and operated by bis servant.

. Appeal by defendant from Adams, J., at May Term, 1918, of For-syte:. This was a civil action tried originally in the County Court of Forsyth County before his Honor, H. R. Starbuck, Judge, at May Term, 1917.

Appeal by defendant from Stacy, J., at August Term, 1917, of DupliN. ' Civil action for “damages to real and personal property situate upon lands in the town of… Held: as stated, was a gin-house and machinery therein, a shed under which were the weighing scales and crates for seed cotton and a lot of loose cotton belonging to Boney and some of it to other persons, tbe evidence tending to show that the machinery had been bought and paid for by husband plaintiff, D. E. Boney.

<p>1. Pleadings — Amendments—Cause of Action.</p> <p>Where negligence is alleged in an action for damages against a railroad company and its contractor for injury to plaintiff while engaged in building a bridge, that the place provided for the employee to work was insecure by reason of a scantling used in the construction of the bridge, where plaintiff was at work, having been nearly sawed in two, and therefore weak, it is within the discretion of the trial judge to permit an amendment, in conformity with defendants’ evidence, that the weakness of the plank was caused by a knot-hole therein, such amendment not constituting a new cause of action.</p> <p>2. Same — Limitation of Actions.</p> <p>Where such an amendment to the complaint is properly allowed by the trial judge, in his discretion, it relates back to the commencement of the action, and prevents the bar of the statute of limitations if the action was originally brought in time.</p> <p>3. Principal and Agent — Negligence—Liability to Third Persons — Relative Liability — Judgment Against Agent.</p> <p>Both the principal and agent are jointly and severally liable to an employee of the latter for injuries caused by the latter’s negligence, the liability of the former being secondary; and where the agent has been sued alone, the principal is not required to defend the action upon notice, or otherwise, and is not bound by the judgment obtained; especially is this true when the agent has expressly indemnified his principal against such loss. The relative rights of and remedies against joint tort feasors, discussed and applied by Walker, J.</p> <p>4. Same — Nonsuit as to Principal — Appeal and Error — Reversal—Trials— Railroads — Contractors.</p> <p>Where a .railroad company and its contractor are sued for damages alleged to have been negligently caused by the latter to its employee in constructing a bridge for the former, and during the trial the plaintiff takes a nonsuit and appeals upon the intimation of the court that he could not recover against the railroad company, but prosecutes his action to judgment against the contractor; and upon reversal on appeal to the Supreme Court the trial is proceeded with against the railroad company in the Superior Court; Held, the amount of the judgment formerly rendered against the contractor is not conclusive upon the railroad company as to the damages, and an instruction by the court that it is constitutes reversible error.</p>

Civil actioN, heard by Adams, J., at September Term, 1917, of Fob-syti-i. This is a motion to set aside a judgment rendered at August Term, 1913, in the above entitled cause. The following are tbe facts as'found and recited by Judge Adams in tbe judgment rendered by him: “This cause was instituted in Surry County, and Judge Lyon rendered a judgment herein in tbe county of Forsytb at tbe December Term, 1911, purporting to be by consent of tbe parties.

Civil action, tried before Connor, J., at November Term, 1917, of Gbanville. Tbe plaintiffs sued for tbe recovery of a parcel of -land in' tbe city of Oxford 30 feet wide by 161 1-3 feet long, as shown on tbe map used at tbe trial in tbe court below, and in this Court at tbe bearing of tbe case.

Civil aotion, tried before Calvert, J., and a jury at November Term, 1917, of CRAVEN. This action was to recover damages for alleged negligence on the part of defendants, causing the death of plaintiff’s intestate.

Civil actioN, tried before I-Iarding, J., and a jury at November Term, 1917, of GrUILFORD. The jury returned the following verdict: 1. Did the plaintiff purchase land from A. J. Whittemore upon an agreement to hold same for the defendant upon the same terms and conditions as it was held by A. J. Whittemore? Answer: “Yes.” 2.

<p>Civil actioN, tried before Harding, J., and a jury at November Term, 1917, of Guilfoed. «,</p> <p>Tbe action was brought to recover damages for a breach of the following contract:</p> <p>“This contract made and entered into this the 15th day of March, 1916, by and between J. R. Caffey, of Greensboro, N. C., and the Oak Furniture Company, of North Wilkesboro, N. C.:</p> <p>“Witnesseth, That J. R. Caffey agrees to travel and sell the line of furniture manufactured by the Oak Furniture Company in North Carolina and South Carolina from now until 1 June, 1916. The Oak Furniture Company agrees to pay his traveling expenses not to exceed $100 per month and also 4 per cent on all orders received, accepted and shipped by us during this period of time. The said J. R. Caffey agrees further to travel and work the territory above mentioned closely from 1 June, 1916, to 1 January, 1917, on a commission basis of 10 per cent on all orders received, accepted and shipped by us. The said J. R. Caffey agrees to furnish us a list of his expenses from this date to 1 June, 1916, and also a list of customers called on.- This report to be furnished weekly, and after 1st June, when he travels on his own expenses on a commission basis, he is not to furnish a list of expenses, but is to furnish a list of customers called on, together with the ones sold.</p> <p>“This contract signed by J. R. Caffey and J. H. Johnson for the Oak Furniture Company, each retaining a copy.” (Signature of parties here.)</p> <p>Plaintiff canvassed the two States under this contract and received commissions on all orders 'which he, the plaintiff, personally secured, and defendant also paid him for the orders which were taken by his sub-agents, but refused to allow the plaintiff commissions on orders.which were sent in to the defendant by customers doing business within plaintiff’s territory by mail; that is to say, refused to allow plaintiff any commissions on what is known as “mail orders.” The defendant also refused to allow plaintiff commissions on goods which were sold within his territory by other agents whom defendant put into the territory without his consent.</p> <p>The case states that the judge intimated at the close of the testimony he would charge the jury that under the contract plaintiff would be entitled to recover 10 per cent on all orders in the territory named which were received, accepted and shipped by the defendant during the life of the contract. Defendant excepted. The charge was not sent up with the record. We only have the evidence, verdict of the jury, and judgment of the court. The jury returned the following verdict:</p> <p>1. What is the amount in-dollars and cents of the orders sent in by R. B. Strickland to the defendant and accepted by the defendant from 1 June, 1916, to 1 January, 1917, and actually shipped out by the defendant? Answer: “$6,257.53” (by consent).</p> <p>2. What is the amount of all other orders received and accepted by defendant from customers from North Carolina and South Carolina from 1 June, 1916, to 1 January, 1917, and actually shipped out by the defendant? Answer: “$8,660.96” (by consent).</p> <p>Judgment was entered in favor of the plaintiff for $1,116.39, and defendant appealed.</p>

<p>1. Ejectment — Landlord and Tenant — Justice of the Peace — Jurisdiction— Proof.</p> <p>While a justice of the peace has no jurisdiction in ejectment, though the technical relation of landlord and tenant exists, if it appears that the defendant, tenant, in possession, has acquired or holds an interest in the property itself, either under an executory contract of sale or otherwise under circumstances giving him a right to call for an accounting and an adjustment of the equities between the parties upon which the title may depend, the bare averment of the pleadings that such ’conditions exist is not sufficient to deprive the justice’s court of its jurisdiction, but such must be made to appear from the evidence or admissions of the parties.</p> <p>2. Landlord and Tenant — Lease—Option—Acceptance—Contract.</p> <p>A contract for the lease of lands giving the lessee the privilege to buy within a certain specified time upon a partial payment on the purchase price of so muck casli and the balance according to stated terms is a lease with an option to purchase, which option must be exercised within the time stated and in accordance with its terms, and creates no interest in the property itself unless and until such is accepted accordingly or sufficiently waived by the optionee.</p> <p>3. Justices of the Peace — Jurisdiction—Ejectment—Landlord and Tenant— Equity — Option—Acceptance.</p> <p>Where it appears in an action of ejectment that the plaintiff had leased lands to the defendant, and under a writing containing an option to purchase on certain terms within a stated time, and the option, if exercised at all, had been done so thereafter, about a week in this case, the defendant has no such interest or equity in the lands as wiE deprive the justice’s court of its jurisdiction.</p> <p>On ARK, O. J., concurring.</p>

. Civil actioh, beard on appeal from tbe City Court of Raleigb and on demurrer of plaintiff to defendant’s counterclaim and further defense before Lyon, J., at October Term, 1917, of Wake. The action was instituted in the City Court and was to recover the amount of a promissory note for $458.04, bearing date 1 May, 1916, and due on or before 1 October, 1916.

, at November Term, 1917, of Davidson. By consent the facts were found by the judge. Frank C. Clemmons and George Foster were tenants in common of the lands described, and in June, 1909, executed to M. A. Adderton a mortgage thereon to secure the sum of $300, their wives joining in the conveyance.

Civil aotioN to recover a tract of land, tried before Harding, J., at April Term, 1917, of Surry. From verdict and judgment for plaintiff'tbe defendant appeals.

Civil ACTION, tried before W. A. Devin, J., and a jury at January Term, 1918, of Dttbham. The' action, instituted apparently in 1917, was to recover the sum of $283.95, for money loaned by plaintiffs to defendant’s intestate.

Civil ACTION, heard on demurrer to complaint, before Stacy, J., at January Term, 1918, of Wake.

<p>Appeal by plaintiffs from Long, J., at September Term, 1917, of Moobe.</p>

Appeal by William Wade Chisman, Mary Carr Williamson, and H. H. Williamson, caveators, from an issue of devisavit vel non, tried before Harding, J., at Fall Term, 1917, of Stokes, upon the following issue: Is the paper-writing propounded for probate and every part thereof the last will and testament of Mrs. Augusta Chisman? Answer: “Yes.”' From the judgment rendered caveators appealed.

Appeal by plaintiff from Adams, J., at March Term, 1918, of Gum-EORD. This is an action brought by the plaintiff, a citizen and taxpayer of the city of Greensboro, for the purpose of having an election declared void. The election was held upon a referendum submitting to the voters an ordinance passed by the board of commissioners of said city for the creation of a school board and increasing the maximum rate of taxation for school purposes from 30 cents to 50 cents.

MotioN by defendants to set aside judgment, beard by Slvaw, J., at January Term, 1918, of Fokstth. Tbe court found the facts and rendered judgment as follows: “1. That the defendants were personally served with process by the sheriff of Surry County and that they were represented in the litigation by Watson, Buxton & Watson as counsel, who filed answer in their behalf to the complaint of the plaintiff. “2.

<p>Civil actioN, beard by Long, J., at July Term, 1917, of EichMONd.</p> <p>Tbe plaintiff sued for tbe recovery of a balance alleged to be due on a contract between bim and tbe defendants for tbe building of a cburcb at Eockingbam of which tbe defendants were trustees.</p> <p>Tbe case was referred, by consent of parties, and tbe referee made bis report, to which exceptions were filed by defendants, and among them this one appears: “For tbat tbe referee finds tbat tbe defendants are due tbe plaintiff tbe sum of $908, whereas, under all tbe evidence be should bave found tbat tbe plaintiff bad breached tbe contract and was not entitled to recover any sum from tbe defendants.” There are others; of a like kind, which challenge the correctness of the referee’s finding-that the defendants are indebted to the plaintiff, and allege, on the contrary, that the defendants owe the plaintiff nothing and that his action should be dismissed.</p> <p>The matter came on to be heard before Judge Long at July Terra, 1917, when, as found by the judge, the following agreement was entered into by the parties on account of the lack of time and the consequent inability of the judge to hear the case:</p> <p>“This action came on for hearing before the undersigned judge at July Term, 1917, of Biehmond County, and was heard upon pleadings and the report of the referee and exceptions thereto, and the argument of counsel representing the plaintiff and the defendants, and after the argument counsel on both sides agreed that the court might take the record and pass upon the whole case, and render judgment at any time thereafter when it was able to do so.” (Italics ours.)</p> <p>Judge Long, instead of passing on each exception, found the facts himself from the evidence and stated his conclusion of law. After going into the matter in some detail, showing the several residents in which the plaintiff, as contractor, had failed to do his work properly, or to perform his contract according to plans and specifications, the judge makes the following findings of fact: “The damage done to the building by reason of plaintiff’s failure and the material, labor, and expense incurred by the defendants in order to remedy the defects arising from plaintiff’s failure, as heretofore found — in brief, all the damage suffered by the defendant for and on account of the breach of the contract by the plaintiff, and of his renunciation of his contract — is in excess of the amount sought to be recovered by the plaintiff of the defendants. The court does not make its findings more definite as to this amount because, in the view that it takes of the case at this time, it is confining itself to the question as to whether or not the plaintiff is entitled to recover of the defendants, the court finding that the plaintiff from time to time committed breaches of his contract and finally renounced it and put the defendants under compulsion to take the building in hand or otherwise suffer an entire loss of the building.”</p> <p>Judgment was rendered for the defendants, and plaintiff appealed.</p>

Appeal by defendant from Devin, J., at tbe December Term, 1917, of New HaNovek. This is an action to recover damages for personal injury caused, as alleged, by tbe negligence of tbe defendant. Tbe action is brought by Andrew Krachanake, Jr., a minor ten years of age, by his father, Andrew Krachanake, Sr., as bis next friend. Tbe father is a native of Austria-Hungary.

Civil actioN, tried before Harding, J., at August Term, 1917, of Guilford, upon these issues: 1. Did Z. A. Burns, on 30 September, 1914, have sufficient mental capacity to execute the deed of that date which is in controversy in this action? Answer: “No.” 2. Did Z. A. Burns on 28 October, 1914, have sufficient mental capacity to execute the” deed of that date, which is in controversy in this action ? Answer: “No.” From the judgment rendered defendants appealed.'

Civil actioN, tried before Iia/rding, J., and a jury at November Term, 1917, of DavidsoN.

Tbis is a petition for a certiorari, in lieu of an appeal, to review a judgment of Lyon, J., on a writ of hateas corpus, refusing to discharge tbe defendant from custody. Tbe facts set forth in tbe petition are as follows: 1.

Appeal by defendant from Sardina, J., at February Civil Term, 1918, of UNION. This is an action on a note. At the conclusion of the evidence his Honor instructed the jury to answer the issue of indebtedness in favor of the plaintiff on the admissions of the parties, and the defendant excepted and from the judgment rendered upon the verdict appealed.

Civil actioN, tried before Webb, J., and a jury at October Term, 1917, of MeckleNbuRG. Tbis is an appeal by tbe defendants from a judgment rendered against them in the plaintiff’s favor at the October Term, 1917, of the Superior Court of Mecklenburg County.

ActioN, tried before Webb, J., and a jury, at October Term, 1917, Action for damages. Plaintiff alleges that he was injured by defendant’s negligence under the following circumstances. It was the duty of the plaintiff, as an employee of the defendant, to paint automobile bodies for Ford cars.

Appeal by defendant from Long, J., at October Term, 1917, of Uuioh. Tbis is an action of damages for wrongful death under the Federal Employers Liability Act. The plaintiff’s intestate was killed at 4 a. m., 9 February, 1917, in a wreck between Monroe and Wingate about a mile east of Monroe. Said intestate was conductor on the westbound freight train and was proceeding towards Monroe.

Appeal by defendants from Webb, J., at October Term, 1917, of MeckleNbukg. ' This is an action against the feme defendant to recover damages for personal injuries caused by an automobile running down tbe plaintiff, wbo was going borne in a buggy drawn by a mule, in tbe nigbt-time. From a verdict and judgment in favor of tbe plaintiff tbe defendants appealed.

, at February Term, 1918, of MecxleNbueg. Tbis proceeding is brought to sell a certain lot of land in tbe city of Charlotte and to determine tbe proper disposition of tbe proceeds. Tbe property has been sold and tbe proceeds are in custodia legis. Tbe court, Long, J., entered a decree disposing of tbe same, from wbicb H. C. Jones, guardian ad litem to tbe unborn children of William R. Johnston, appealed.

<p>1. Street Railways — Negligence—Proximate Cause — Fire Engines — Municipal Corporations — Cities and Towns — Streets—Railroads.</p> <p>Where street cars, under a valid ordinance of a city, are required to stop for fire trucks, etc., going to a fire, and there is evidence that the motorman on one of them, on such occasion, could have heard the approach of a second fire truck after the passage of one of them, and also understood the signals given by the first of the approach of the second one and ran his car at a speed of 8 or 10 miles an hour into a street intersection where the second truck was to cross, running at 25 or 85 miles an hour, which could not have been stopped on seeing the street car in time to avoid the injury; in an action by an employee of the city on the second truck, driven by another employee in charge, to recover for a uer-sonal injury thus received; Held, defendants’ request for instruction eliminating the element of proximate cause was properly refused.</p> <p>2. Same — Evidence.</p> <p>When it is material to the inquiry in a personal injury negligence suit, whether defendant’s motorman on its street car should have heard the approach of a fire truck at a street crossing a block or two away, evidence is properly admitted tending to show the distance similar trucks could be heard by other motormen on similar cars under like conditions.</p> <p>3. Instructions — Evidence—Negligence—Prayers for Instruction.</p> <p>A modification of defendant’s request for instruction in a personal injury negligence case, so as to incorporate other negligence acts of defendant, the evidence tended to show and omitted from the request, is proper.</p> <p>4. Instructions — Negligence—Concurring Negligence — Prayers for Instruction.</p> <p>Where the evidence tends to show concurring negligence of the defendant in a personal injury negligence case, defendant’s request for instruction which omits this phase of the controversy is properly refused.</p> <p>5. Instructions — Evidence—Questions of Fact — Prayers for Instruction.</p> <p>A request for instruction is properly refused in a personal injury negligence case when erroneously based upon a conclusion of law instead of an issue of fact, or upon a principle of law unsupported by the evidence.</p> <p>6. Street Railways — Municipal Corporations — Cities and Towns — Ordinances —Negligence—Question of Law.</p> <p>Where a personal injury is alleged to have been proximately caused by the negligence of the defendant street ear company’s motorman, and there is evidence, among other things, tending to show he was running the car, under the circumstances, at a speed greater than that allowed by a valid city ordinance, his thus running the car is negligence as a matter of law, if established, entitling the plaintiff to recover if it was the proximate cause of his injury.</p> <p>7. Municipal Corporations — Fire Regulations — Ordinances.</p> <p>An ordinance regulating the speed of street cars therein outside of the fire limits, requiring them to stop for the passage of fire engines going to a fire, etc., giving the firemen thereon the right of way upon the streets, etc., is'a valid one.</p>

Appeal by defendant from Harding, J., at tbe November Term, 1917, of Guilpobd. Tbis is an action to recover damages for personal injury. Tbe plaintiff was a section band in tbe employment of tbe defendant, and was engaged in working upon tbe section near Higb Point under Foreman T. W. Pierce.

ActioN, heard upon motion in the cause, before Justice; J., at December Term, 1917, of Bubke.

<p>Appeal by plaintiff from order of Webb, J., made 9 October, 1916 j, from Meoklenbueg.</p> <p>This is a motion to set aside a judgment on tbe ground of excusable neglect. Tbe judge found tbe facts, and among others that tbe defendant has a meritorious defense. Tbe motion was allowed, and tbe plaintiff excepted and appealed.</p>

Appeal by defendant from Harding, J., at tbe July-August Term, 1917, of DavidsoN. Tbis is an action to recover damages for personal injury. Tbe plaintiff, together with five others, composed a switching crew on tbe railroad yards of tbe defendant’s lessee at Spencer, N. C., and on tbe first day of November, 1915, was switching ears and making up trains on tbe yard.

Civil actioN, beard on demurrer before Long, J., at Spring Term, 1918, of MeckleNbueg. The action was to collect the purchase price of a tract of land bought by defendant at trustee’s sale and payment of purchase money being refused by reason of the fact that plaintiff could not make a valid title and on further facts set forth in the answer. Plaintiff having demurred, there was judgment sustaining demurrer, and defendant excepted and .appealed.

Action, beard on motion by feme defendant for an allowance of alimony and of $150 expense money, before Harding, J., at Spring Term, 1918, of UNION. Tbe principal action is for divorce a vinculo brought by the husband against the wife on account of her alleged adultery. Defendant answers and, under oath, denied the alleged adultery and also filed a cross-bill for divorce from bed and board on the alleged ground that plaintiff had maliciously turned her out of doors.

<p>1. Bills and Notes — Negotiable Instruments — Endorser—Notice—Dishonor.</p> <p>The liability of an endorser on a promissory note is conditional, entitling Mm to notice of dishonor; and payment may not be enforced against him unless .such notice has properly been given.</p> <p>2. Same — Anticipated Dishonor.</p> <p>Notice given to an endorser on promissory note prior to maturity, in anticipation of dishonor by the maker, is not sufficient to hold him to liability thereon; such notice to be valid must be properly given after the note is dishonored.</p>

ActioN pending in TeaNstlvania upon motion to enjoin the enforcement of a writ of possession before Carter, J., at April Term, 1918. The court held that the issuance of the writ was erroneous as there was no valid judgment to support it and set the writ aside and granted defendant leave to file defense bond and answer. Plaintiff excepted and appealed.

<p>1. Limitations of Actions — Deeds and Conveyances — Tax Deeds — Possession —Evidence—Husband and Wife.</p> <p>The right of action to recover lands under a tax deed is barred by the three-year statute of limitations; and where the evidence tends' only to show that the wife was the purchaser and remained in possession with her husband, the owner, the latter of whom continued to exercise acts of owner, such possession does not, for its duration, suspend the operation of the statute or repel its bar to the wife’s action brought after a delay of more than three years from her acquisition of the tax deed.</p> <p>2. Appeal and Error- — Evidence—Unanswered Questions.</p> <p>Where in answer to a question calling for the knowledge of the witness as to relevant facts at issue, the witness states he can only give the declarations of others, without further answering, the competency of such declarations are not before the Court on appeal.</p> <p>Clark, C. J., concurring.</p>

Appeal by defendants from Oline, J., at the November Term, 1917, of Davie. This proceeding was commenced for the purpose of selling the lands of John A. Davis, deceased, to make assets, but Foy & Shemwell were permitted to be made parties to enable them to claim the share of Mrs. Ida Walser, one of the heirs, under a mortgage, subject to the debts of John A. Davis, and the whole controversy relates to the mortgage and the debt secured thereby.

<p>1. Evidence — Letters.</p> <p>Por a letter to be competent evidence in an action, there must be testimony as to the genuineness of the signature thereto, and the authority of the writer for sending it, so that it may be shown that it was not the act of' a stranger; and where the evidence.is only that a letter had been received, but was destroyed with the name of the president of the defendant corporation appearing as the writer, but of this the witness was not quite sure, and there being no proof of the genuineness of the signature, it is insufficient to admit testimony of its contents bearing adversely to the contentions of the defendant.</p> <p>2. Appeal and Error — Letters—Evidence—Reversible Error.</p> <p>Where an employee sued his employer to recover damages arising from malpractice of a physician alleged to have been employed by the company to attend him, which employment the defendant denied by its pleading and evidence, the erroneous admission of a letter claimed to have been written by the defendant’s president, which tends to contradict the defendant’s evidence, is not harmless but reversible error.</p>

, at tbe August Term, 1917, of Davie. Civil action to recover of defendant, tbe register of deeds of Davie County, tbe penalty of $200 allowed by tbe statute, sections 2088 and 2090 of tbe Revisal, for having issued a marriage license for plaintiff’s daughter, Nona Thelma Julian, then about 16 years of age,- to one Eloyd Kincaid, without tbe consent of her parents and without reasonable inquiry as to her age, she being at tbe time under tbe age of 18.

Appeal by defendants from Long, J., at September Term, 1917, of RICHMOND. Tbe plaintiffs, as tbe jury find, are tbe beirs at law of Tony Cole, wbo died intestate in December, 1906, seized and possessed of a tract of 185 acres near Hamlet, N. C., wbicb be bad mortgaged in sundry mortgages to tbe defendant Boyd. While tbis relation of mortgagor and mortgagee existed, Boyd obtained a fee-simple deed from Cole for 100 acres of tbe land covered by tbe mortgages.

ActxoN, tried before Lyon, J., at October Term, 1911, of Wake, upon these issues: ’ Did the defendant negligently fail to pay to the plaintiff the sum of $11.45 within reasonable time, as alleged in the complaint ? An-' swer: “Yes.” What amount of damages, if any, is the plaintiff entitled to recover? “$750.” From the judgment rendered defendant appealed.

Appeal by plaintiff from Lane, J., at December Term, 1917, of Bunoombe. This action is for recovery of $90 and interest on a written guarantee by defendant for payment of a judgment recovered by plaintiff against McDowell & Reynolds. Mark W. Brown, attorney for creditors obtained judgment on 4 December, 1916, before a magistrate against McDowell & Reynolds in favor of the plaintiff for $90, and at the same time two others in favor of Fleishman, Morris & Co. for $348.68.

<p>Appeal by defendant from Garter, J., at January Term, 1918, of McDowell.</p>

ActioN, tried before Garter, J., at October Term, 1917, of Wilkes. Tbe action was to recover damages for breach of an alleged contract conferring on plaintiff the right to construct the pipe line for a sewer from the new Federal building in Wilkesboro, N. 0. On denial of the contract and any and all liability thereunder, the jury rendered the following verdict: 1.

ActioN, tried before Lane, J., and a jury, at Spring Term, 1917, of Henderson. The action was to recover damages to plaintiff’s bouse and lot abutting on Fourth Avenue in Hendersonville, N. 0., claimed to have been caused by wrongfully diverting water upon the same by defendants, engaged in grading and paving the streets of the town.

<p>Actiojst, beard on demurrer to complaint before Long, J., at Spring Term, 1918, of MecKLENbubg.</p> <p>On matter relevant to tbe question presented, tbe complaint alleged tbat defendant bad entered into a written contract to purchase of plaintiff a tract of land of 132 acres at tbe price of $4,000, or to buy one-balf at $2,000, if plaintiff could only make a valid title to tbat balf; tbat tbe title offered by plaintiff depends upon tbe clause in tbe will of D. W. Flow, executed in 1893, and facts relevant to tbe question as follows:</p> <p>“Second. To Margaret G. Kirkman, one tract of land known as tbe Harkey Place, supposed to be about 132 acres, adjoining tbe lands of Mrs. Helena Morrison, J. A. Houston, and joining my borne tract; to be bers ber lifetime, and tben to go to Guy Kirkman and Marvin Kirk-man, and if tbey should die without any bodily heirs, tben said land to go back to tbe Flow heirs. I also give to my daughter, Margaret G. Kirkman, three hundred dollars.”</p> <p>(d.) Tbat Marvin Kirkman died intestate in tbe year 1903, be tben being a young man only eighteen years of age, unmarried, and left no-issue or lineal descendants.</p> <p>(e.) Tbat Margaret G. Kirkman died on tbe second day of February, 1918, intestate.</p> <p>(/.) Tbat Guy Kirkman, this plaintiff, is now thirty-one years of age, and has a wife and two children, 8 and 10 years of age, respectively.</p> <p>Defendant demurred on the ground that, on the facts as stated, plaintiff could not make a valid title.</p> <p>Judgment sustaining demurrer and plaintiff excepted and appealed.</p>

ActioN, beard on motion to remove tbe cause into tbe Federal courts by reason of alleged fraudulent joinder of resident defendants, before Shaw, J.j at October Term, 1917, of Jackson. There was judgment in denial of tbe motion and defendant company excepted and appealed.

ActxoN, tried before Lane, J., at April Term, 1918, of Macon. After tbe jury was impaneled and the complaint and answer read, the defendant moved for judgment upon the pleadings. The court rendered judgment dismissing the action. Plaintiff excepted and appealed.

, at chambers, 20 July, 1917, from JACKSON. Held: as required by law, authorizing the board to incur the indebtedness and to levy the tax. The court, Shaw, J., presiding, in Superior Court of Jackson County, continued the injunction to the final hearing. Defendant appealed.

ActioN, tried before Shaw, J., at November Term, 1917, of Oheeo-Kee, upon these issues: 1. Is the plaintiff M. L. Mull the beneficial owner of the land described in the complaint, as alleged in the complaint? Answer: “Yes.” 2. Was said land burned ánd injured by reason of the negligence of the defendant, as alleged in the complaint? Answer: “Yes.” 3.

Appeal by defendant from Lane, J., at January Term, 1918, of Hat-wood. :This is an action by plaintiff Osborne for tbe destruction by fire of seven bead 'of bigb-grade Guernsey cáttlé, while in transit on defendant’s road, and tbe plaintiff Flowe sues fox damages because of injuries sustained in tbe same fire, be being in tbe car witb tbe cattle as a caretaker.

<p>1. Clerks of Court — Appeal and Error — Judgments—Executions—Appellant’s Duty.</p> <p>WMle it is the clerk’s duty to act primarily and send up an appeal from his judgment refusing plaintiff’s motion for leave to issue execution under a dormant judgment, Revisal, sec. 620, it is the duty of the appellant to take the necessary and proper legal measures to put the case before the judge if the clerk fails to act.</p> <p>2. Same — Laches—Inexcusable Neglect.</p> <p>Where a plaintiff’s motion for leave to issue execution on a dormant judgment has been denied .by the clerk, Revisal, see. 620, and he appeals therefrom in open court and defendant waives notice, and he remains inactive for two months thereafter, and then finding that his appeal has not been sent up to the judge owing to the failure of the clerk to do so, he has it sent up, the fact that the settlement by the judge thereof has not been returned to the clerk within the statutory time puts him upon notice that there has been an unreasonable delay, and the appeal should be dismissed on the ground of his inexcusable laches. Revisal, secs. 610, 611, 612, 613.</p> <p>3. Homestead — Judgments—Execution—Clerks of Court — Dormant Judgments — Motions—Statutes.</p> <p>The homestead is only a right of exemption given the debtor in his land which is set apart to him and freed from execution during its continuance (Revisal, sec. 685), and where it has been laid off to him under execution of judgment, the judgment creditor may not have leave to issue execution against the homestead upon a dormant judgment against the homestead insured in a valid deed of trust by motion under the provisions of the Revisal, sec. 620.</p> <p>4. Deeds and Conveyances — Registration—Judgments—Execution—Homestead — Clerks of Court.</p> <p>A deed to lands in trust for the benefit of creditors, reserving the homestead rights of the grantor, and duly recorded, is not affected by the lien of judgment of one of the creditor’s subsequently obtained; and where the homestead has been allotted under execution of the judgment, and not set aside under reservation of the deed, the judgment creditor is not entitled to have another execution issued to revive his judgment, by his motion under Revisal, sec. 620, either as against the land embraced in the deed or included in the homestead set aside to the judgment debtor. Revisal, sec. 685.</p> <p>Hoke, J., concurs in result.</p>

Appeal by plaintiff from Garter, J., at tbe October Term, 1917, of Wilkes. Tbis is an action' on a note executed by tbe defendant, tbe W. M. Absber Company, a corporation, and'indorsed by tbe defendants, E. E. Forrester and J. II. Johnson. Tbe Absber Company makes no defense. Tbe defendants Forrester and Johnson rely on tbe defenses of failure to give them notice of dishonor and tbe statute of limitations. A jury trial was waived and bis Honor found tbe following facts: “1.

Appeal by plaintiffs from Ferguson, J., at the October Term, 1917, of RuTHEREOED. This is an action by Gladys Bond and bnsband, N. A. Bond, and' N. E. Hicks and husband, H. Z. Hicks, against Carolina, Clinehfield, and Ohio Railway, to recover damages of the defendant for the burning over of plaintiff’s land, and the destruction of timber alleged to have been caused by the negligence of the defendant.

, at October Term, 1917, of Ruthebeokd, upon exceptions to referee’s report. Tbe court reformed tbe report in some respects, made findings of fact, and rendered judgment. Both parties excepted and appealed.

ActioN, tried before Garter, J.„ and a jury, at October Term, 1917, of Catawba. Tbe action was brought to recover tbe sum of $420, with interest, it being tbe total of plaintiff’s monthly dues as a member of the defendant order from 30 May, 1902, until 1 December, 1916, which were paid by him to it during said time.

Appeal by defendant from Kerr, J., at the March Term, 1917, of DuehaM. This is an action by Mary B. Mason against the Commissioners of Durham to recover damages for the value of a strip of land 60 feet wide and 7 feet deep across the front of her lot on the Main Street road between Durham and East Durham, taken by the Commissioners of Durham County in the spring of 1916 for the purpose of widening said road in front of plaintiff’s property.

Appeal by defendants from Ferguson, J., at tbe February Term, 1918, of BUNCOMBE. Tbis is an action brought by tbe plaintiff administratrix against tbe defendant for tbe recovery of damages on account of tbe alleged negligent killing of plaintiff’s intestate, Julian Carr Davis, a sixteen-year-óld boy, in tbe yards of tbe defendant at Asheville on 18 November, 1916.

ActioN, tried before Lane, J., and a jury, at Spring Term, 1918, of Ohekokee. Tbe defendant lumber company bad two tracks of bemlocb timber to cut and peel. One was known as tbe Oboga boundary, and consisted of some 200 acres of rough mountainous land, almost inaccessible, witb scattered timber, and difficult to work over. Tbe other was known as tbe Laurel Creek Boundary, a .comparatively level tract, witb fine timber and easy of access.

Appeal by interpleader from Shaw, J., at the Fall Term, 1918, of MacoN. The creditors of Sawyer-Eelder Company instituted various actions to collect their debts, and levied attachments on a certain motor truck. After the action had been instituted Ashcraft-Wilkinson Company filed interpleas in which it alleged that it was the owner of the truck and the several actions were then consolidated.

Appeal by defendant from Lane, J., at the January Term, 1918, of Haywood. This is an action to recover damages for the breach of a written and a verbal contract for the conversion of 250 cords of wood, and for the negligent destruction by fire of 200 cords of wood. The plaintiff had a contract with the Champion Fiber Company by which he was to sell it from 1,500 to 3,000 cords of pulp wood.

ActioN, tried before Adams, J., and a jury, at March Term, 1917, of Cheeokee. The case was before us at a former term, and for any facts not herein stated, reference may be had to the report of the case, 171 N. C., 248.

<p>ActioN, tried before Justice, J., at October Term, 1917, of Bueke.</p>

<p>1. Deeds and Conveyances — Interpretation—Intent—Reference for Description.</p> <p>As to the construction of a deed referring to a former deed for description, giving effect to its intent, transposing its parts if necessary, etc., see S. o., 172 N. C., 316.</p> <p>2. Appeal and Error — Objections and Exceptions — Instructions.</p> <p>Exception taken to a part of tbe charge to tbe jury wbicb contains botb correct and incorrect instructions will not be considered on appeal.</p> <p>3. Appeal and Error — Evidence—Harmless Error.</p> <p>Tbe admission of evidence wbicb is harmless will not be held for reversible error.</p> <p>4. Evidence — Deceased Persons — Interest.</p> <p>Testimony of a party interested of transactions or communications with a deceased person is properly excluded under Revisal, sec. 1631.</p> <p>5. Appeal and Error — Substantial Error — Burden of Proof.</p> <p>Tbe burden is upon appellant to show substantial error on appeal.</p>

Action, tried before Justice, J., at June Term, 1917, of Pasquotank:, upon these issues: 1. Did the plaintiff and defendant enter into contract, as alleged in the complaint? Answer: “Yes.” 2. Did the defendant wrongfully refuse to comply with his part of the contract? Answer: “No.” 3. Was the plaintiff ready, able and willing to comply with his part of the contract? Answer: “No.” 4. Did plaintiff abandon his contract ? Answer: “Yes.” 5.

ActioN, tried before Lyon, J., at October Term, 1917, of Wake, upon the following issues: 1. Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? Answer: “Yes.” 2. What damages, if any, did plaintiff suffer in consequence of said alleged injuries? Answer: “$1,254.” From the judgment rendered, defendant appealed.

<p>Railroads — Fires—Negligence—Trials—Evidence—Questions for Jury.</p> <p>In an action to recover damages against a railroad conrpany for negligently setting out fire to the injury of plaintiff’s lands, evidence is sufficient which tends to show that broomsedge and old crossties had been left-upon the right of way from which the fire started, which was seen there about 25 or 80 minutes after the train passed or after the witness had gone about half a mile from the place, etc., and that no other,fires were seen there.</p>

<p>Appeal by defendant from judgment rendered at March Term, 1918, of SwaiN, Lane, J., presiding.</p>

<p>Appeal from judgment on exceptions to report of referee by Lane, at Fall Term, 1917 of McDowell.</p> <p>The action was to recover damages for alleged breach of contract by which the principal defendants undertook to build a two-mile section of the public road of plaintiff county leading from Bakersville, N. C., to a point near the C. 0. & O. Railroad, for the contract price of $8,800. The referee, in his report, awarded recovery for plaintiff of $1,925 damages, with interest. On the hearing before the Superior Court, the exceptions of defendant were overruled and the findings of fact and conclusions of law set forth in the report were in all things confirmed. 'Judgment for plaintiff accordingly, and defendant excepted and appealed.</p>

ActioN, tried before Devin, J., and a jury, at August Term, 1917, of Beunswioe:. Plaintiff sued for damages from burning timber on bis land, wbicb be alleged was caused by defendant’s negligence. Tbe fire was set out from one of tbe defendant’s engines, wbicb it is alleged, was defectively constructed, so tbat it emitted sparks from its smoke-stack, it not having a proper spark-arrester. Tbe jury returned tbe following verdict: 1.

Appeal by plaintiffs from Devin, J., at thé November Term, 1917, of New HaNovee. This is an action to recover rent.

<p>Appeal and Error — Frivolous Appeals — Motions.</p> <p>Appeals from tlie Superior Court as a matter of right must be taken bona fide for the purpose of reviewing alleged error, and when no serious assignment of error is made and it appears that the appeal is frivolous and for the purpose of delay, it will be dismissed on appellee’s motion.</p>

INDICTMENT tried before Shaw, J., at February Term, 1918, of SueRY. Tbe defendant was charged with tbe manufacture of liquor contrary to tbe statute. As there was a motion to nonsuit, it will be necessary to state some of tbe evidence. TJ.

ActioN tried before Harding, J., and a jury, at September Term, 1917, of GrOTLFORD. ’ It appeared that on 6 December, 1897, plaintiff, then 55 years of age, took out a policy of $2,000 in the Bankers’ Guarantee Fund Life Association of Atlanta, Ga., a mutual assessment life insurance company having no capital stock nor resources other than funds derived from assessments on its members pursuant to the terms and stipulations of the policies and the rules and regulations…

Appeal by defendant from Long, J., at tbe October Term, 1917, of StANLY. This is an action to recover commissions for the sale of land or damages in lieu thereof. The facts are fully reported on the former appeal in this action, 171 N. 0., 392. The jury returned the following verdict: 1. Did the defendant Parker execute and deliver to the plaintiff the contract marked “Exhibit A,” as alleged in the complaint? Answer: “Yes.” (Answered by consent.) 2.

Appeal by defendant from Cline, J., at tbe July Term, 1917, of RANDOLPH. Tbis is an action brought by O. H. Lucas, receiver of tbe Keystone Farm Machine Company, to recover tbe value of certain plows or cultivators consigned to tbe defendant in 1907 or 1908, which were guaranteed to do good satisfactory work. Tbe action was commenced 5 July, 1913.

ActioN to recover damages for mental anguish caused, as alleged by the plaintiff, by the negligence of the defendant in the transmission of an interstate telegraph message. There was a judgment for the defendant, and the plaintiff excepted and appealed.

Appeal by both parties from Webl, J., at the October Term, 1917, of MECKLENBURG. This is an action to restrain the defendants from parking automobiles in or otherwise obstructing a certain alley, and a cross-action to prevent the plaintiff from maintaining a gate across or partly across the alley. The plaintiff and defendants own adjoining lots in the city of Charlotte, and there is a public garage on the lot of the defendants abutting on the alley.

Action, tried before Webb, J., at January Term, 1918, of Gaston, upon these issues: 1. Did the plaintiff, Pickett Jones, sign the release and receipt offered in evidence? Answer: “Yes.” 2. Was the plaintiff, Pickett Jones,’ 21 years old when he signed the said release? Answer: “No.” 3. Did the defendant by undue advantage procure the plaintiff to sign the release offered in evidence? Answer': “No.”’ 4.

Appeal by defendant from Devin, J., at the September Term, 1917, of New HaNovbb. The prisoner appeals from a sentence of death pronounced upon a verdict of guilty of murder in the first degree.

INdictmeNt for the murder of Lewis Shew, tried before Carter, J., and a jury, at August Term, 1917, of WilKEs. Defendant was convicted of manslaughter, sentenced to three years imprisonment and appealed. On Sunday afternoon, 22 October, 1916, the defendant had gone to the home of Isaac Clark for a visit, and later went to the home of Mrs. Lucy Clark near-by.

Appeal by prisoner from Connor, J., at October Special Term, 1917, of Wake. The prisoner was convicted on an indictment for rape and npon the sentence of death being imposed, appealed.

AttachmeNt for contempt, beard before Long, J., at July Criminal Term, 1917, of Richmond. • On notices issued, tbe court beard tbe evidence submitted on affidavits; made full and pertinent findings of fact, which- are spread upon tbe record, and thereupon adjudged defendant guilty of contempt and imposed a fine and imprisonment. Defendant excepted and appealed.

INDICTMENT for unlawful retailing spirituous liquors, tried before Justice, J., at August Term, 1917, of Caldwell. There were counts in the bill for having in possession certain spirituous and vinous liquors in quantities greater than three gallons for the purposes of sale, contrary to law, and for receiving liquors, etc., in quantities greater than one quart, etc. There was verdict of guilty, and defendant, having duly excepted, appealed.

<p>1. Bigamy — Criminal Law — Defense—Divorce—Judgments—Constitutional Law — Residence—Fraud.</p> <p>Where a marriage has been contracted in this State and a party thereto who has married in .another State, but resides and cohabits here, and thereafter is indicted under ch. 26, Laws of 1913, amending Revisal, sec. 3361, and offers in defense a divorce granted in the other jurisdiction, it is not in contravention of the “full faith and credit” clause of the Federal Constitution, and may be shown in the courts of our State that the residence required by the laws of such other State was not acquired in good faith, but in fraud, and that the decree therein was therefore void.</p> <p>2. Bigamy — Criminal Law — Defense—Divorce—Evidence—Trials—Questions for Jury.</p> <p>Proof of a divorce granted in another State, upon a trial for bigamy, in our own courts is only evidence which should be submitted to the jury under proper instructions.</p> <p>3. Bigamy — Criminal Law — Defense—Divorce—Residence—Instructions— Burden of Proof.</p> <p>Where a decree of divorce in another State is solely relied on as a defense on a trial for bigamy which is attacked by the State for insufficient residence in such other State, with supporting evidence, the defendant must satisfy the jury of the bona fide of his residence for the required time, but not beyond a reasonable doubt.</p> <p>4. Marriage — Divorce—Residence.</p> <p>Where the laws of another State require that a party seeking a divorce must show a residence of twelve months preceding the commencement of the suit, he may not obtain a bona fide domicile there by remaining a few days or weeks while spending practically all of his time in this State.</p> <p>5. Appeal and Error.</p> <p>Exception taken to three and a half pages of the record of the judge’s charges is a “broadside attack” and will not be considered on appeal.</p> <p>Aieen, J., concurring.</p>

Appeal by defendant from Lane, J., at the July Term, 1917, of Buncombe. The defendant is charged'with manslaughter on account of a collision on Phifer Street in Asheville between an auto-delivery wagon operated by defendant and a bicycle ridden by deceased. The defendant is a negro boy employed by M. Y. Moore & Co., of Asheville, and was in the performance of his duties with his employer at the time of the accident.

INDICTMENT for committing the “crime against nature” under section 3390, Revisal, tried before Whedbee, J., at October Term, 1917, of Yance. The defendant was convicted and sentenced to five years in the State’s Prison. From the verdict and judgment defendant appeals.

INdiotmeNt, tried before Shaw, J., at August Term, 1917, of Macon. Tbe defendant Kirkland was convicted of a secret assault with a deadly weapon upon R. L. Barnett, with intent to kill. The defendant Wilson was convicted of conspiring with Kirkland to commit said assault. James Taylor was charged in same bill and was convicted of an attempt to commit the crime of accessory after the fact.

INDICTMENT, tried before Adams, J., and a jury, at March Term, 1917 of Graham. The defendants were convicted, and from the judgment appealed to this Court.

INDICTMENT for unlawfully and willfully obstructing a cartway, tried before Lane, J., at November Term, 1917, of Buncombe, the bill of indictment charging that the said cartway had been “duly dedicated as such for public use and enjoyment.” The defendant was convicted and from the judgment of the court appeals.

Appeal by prisoner from Whedbee, J., at August Term, 1917, of N ORTHAMPTON. The prisoner was convicted of murder in the fire degree. There is no exception to the evidence nor to the charge, except that the court permitted the jury to consider the question of murder in the first degree.

<p>1. Husband and Wife — Criminal Law — Evidence—Witness—Third Party.</p> <p>A witness may testify to a conversation between husband and wife, on the trial of the former for a criminal offense, tending to incriminate him occurring at the time of the arrest and in the presence and hearing of the witness.</p> <p>2. Same — Spirituous Liquors — Sale.</p> <p>Where there is sufficient evidence of the possession of more than a gallon of spirituous liquor in the defendant’s possession, it is competent for a witness to testify that in his presence- at the time of the arrest the prisoner’s wife said to the prisoner that she had repeatedly told him about selling whiskey, to which he told her to shut her mouth, “he would attend to his own business,” the reply being in the nature of a rebuke and not a denial and evidence of an unlawful purpose of sale.</p> <p>3. Evidence — Character—Voluntary Qualifications.</p> <p>A character witness may voluntarily qualify his evidence as to the character of a party, as in this case, “Yes, it is bad for selling liquor,” the offense for which he was being tried.</p>

Appeal by defendant from Allen, J., at November Term, 1917, of Wayite. Tbis in an indictment under section 3814 of tbe Revisal, tbe charge being that tbe defendant sold cotton and meal containing less than 7% per cent of ammonia.

Appeau from Calvert, J., at November Term, 1917, of Pitt. The defendant was tried in the County Court of Pitt on a warrant charging him with keeping a- disorderly house, commonly called a bawdy house, by leasing the house where illicit sexual intercourse was habitually carried on to one Ethel Lee, a female prostitute, with knowledge of the immoral purpose for which the house was to be used. Upon conviction the defendant appealed to the Superior Court.

INDICTMENT for burglary, tried before Calvert, J., at September . Term, 1917, of Chaven. Tbe defendant was convicted of burglary in tbe first degree and from tbe sentence of death appealed.

Appeal by defendants from 0divert, J., at January Term, 1918, of Pitt. This is an indictment for larceny against three defendants, Davenport, Ford, and Carson. A verdict of guilty was returned against all of the defendants. The defendant Davenport does not appeal.

ActioN, tried before Oalvert, J., and a jury, at January Term, 1918, of Waee.

, at December Term, 1917, of RaNdolph, by the defendant who was convicted of a secret assault with intent to kill W. Fernando Wood, a near relative, and sentenced to 12 months imprisonment. There is no allegation of error in the trial, but the appeal rests entirely upon assignments of error for a refusal of - a plea in abatement. The regular December term of Randolph should have opened on Monday, 3 December, 1917.

MotioN to retax costs in the above-entitled, case, heard by Cline, J., as of November Special Term, 1917, of OababRus. The defendant was acquitted of the crime for which he was indicted.

Appeal by defendant from Oline, J., at September Term, 1917, of RowaN. Tbe prisoner was convicted at September Term, 1917, of Rowan, of murder in tbe first degree of one Abel Harris. Tbe first exception is to tbe order of tbe court withdrawing a juror and making a mistrial, and Exception 8 is to tbe refusal to grant a motion in arrest of judgment on tbe ground of tbe defendant’s former jeopardy.

INdictmeNt for abandoning bis wife without providing adequate support (Eevisal, see. 3355), tried before Lane, J., at July Term, 1911, of Buncombe. The defendant was convicted and appealed.