Volume 176 — North Carolina Reports

<p>Estates — Rule in Shelley’s Case — “Nearest Heirs” — Fee Simple.</p> <p>An estate to M., “in fee simple, all the days of his life, then it shall descend to his nearest heirs.,” vests in M. a fee simple title, under the rule in Shelley’s Case; the words, “nearest heirs,” meaning simply the word “heirs.” The history and meaning of the rule in Shelley’s Case, and its value at the present day, discussed by Clark, C. J.</p>

Appeal by plaintiffs from Connor, J., at August Term, 1918, of WASHINGTON. ■ Tbis was a proceeding for partition, begun before the clerk, and heard on appeal by Connor, J., at August Term, 1918, of Washington.

Appeal by plaintiff from Bond, J., allowing a motion by defendant, made at Elizabeth City, 12 February, 1918, to set aside a verdict and judgment for the plaintiff, rendered at November Term, 1917, of Tyr-rell, upon the ground of excusable neglect.

<p>Appeal by plaintiffs ivora.-Daniels, J., at April Term, 1918, of Edge-combe.</p>

<p>ActioN to restrain the cutting of timber and to recover damages, heard by Gonnor, J., at May Term, 1918, of Beaueort.</p> <p>The Court denied a restraining order, and plaintiffs appealed.</p>

<p>ActioN tried before WhecTbee, J., at June Term, 1918, of Pasquo-TANK.</p> <p>From judgment of nonsuit plaintiff appealed.</p>

Special pboceeding, tried before Whedbee, J., at June Special Term, 1917, of PasquotaNK, upon this issue: 1. Was the judgment of J. 0. Small against George A. Twiddy, administrator of Stephen Mullen, rendered through fraud upon the part of the plaintiff, George A. Twiddy, administrator, or through collusion between the plaintiff and J. 0. Small?

ActioN tried before Bond, Jat February Term, 1918, of Beaufobt, upon these issues: 1. Is the defendant W. S. Riddick indebted to plaintiff, and if so, in what amount? Answer: $252, with interest from November 1, 1910. 2. Is said defendant barred by statute of limitations, as alleged in tlie answer? Answer: No. Judgment was rendered, by consent, against the defendants Daniel M. and Melson Windley.

ActioN under tbe Federal Employers’ Liability Act,- tried before Devin, J., and a jury, at December Term, 1917, of New Hanover.

<p>1. Municipal Corporations — Cities and Towns — Streets—Offer to Dedicate— Revocation — Acceptance—Deeds and Conveyances.</p> <p>Where the owner of lands within the corporate limits of a town has caused the same to be surveyed into streets and lots, and has duly registered the plat thereof, it is an offer of dedication, which is irrevocable after the acceptance by the town, or his conveying the'lots accordingly before revocation.</p> <p>2. Same — Maps.</p> <p>A conveyance of land which, the owner has platted into streets and lots, with map duly registered, made subject “to any vested or prescribed rights of the” town - and others to a street designated therein, is not a revocation of the offer to dedicate.</p> <p>3. Deeds and Conveyances — Boundaries—Description—Interpretation—Reference to Maps — Municipal Corporations — Cities and Towns — Streets— Offer of Dedications.</p> <p>Where the owner of lands, within the corporate limits of a town has caused the same to b'e platted into streets and lots, and the map thereof duly registered, and, in conveying a part thereof, includes one of the streets within the boundaries given, and states that the description is ■according to the recorded plat, giving book and page in the register of deeds’ office, the effect of the reference to the plat is to incorporate it in the deed as a part of the description of the land conveyed; and, construing the instrument as a whole, it conveys all the land, including the street, subject to the easement therein for the public use, and does not affect the previous offer of dedication.</p>

Appeal by defendant from Connor, Jat April Term, 1918, of Beau-poet. This is an action to recover damages for malicious prosecution, the charge against the plaintiff in the criminal prosecution being that he stole certain money, the property of the defendant in this action, or of the corporation of which the defendant was president.

<p>Appeal by plaintiff from Bond, J., at February Term, 1918, of Beau-eokt.</p> <p>This is an action to Have the rights of the plaintiff declared in a certain passway leading from' Maple Street, in Pantego, across a lot on which the plaintiff now lives, and on which the Freewill Baptist Church was formerly situate, and to prevent the defendant from obstructing the same.</p> <p>In 1882 Ephraim S. Radcliffe, who was then the owner of a tract of land, a part of which was within the boundaries of the town of Paniego, conveyed a part thereof to the Freewill Baptist Church and laid out a passway from Maple Street to the church.</p> <p>The deed provided for a reverter to the grantor, Radcliffe, or his heirs, upon certain conditions named in the deed, and under these conditions the land and the church reverted to the grantor, and he died seized thereof.</p> <p>After his death the land was divided between his heirs at law, of whom the plaintiff was one, and lot No. 2 was allotted to the plaintiff. The church stood on this lot, and the plaintiff converted it into a residence, and is now living in it.</p> <p>The plaintiff claimed an adverse user of the passway for more than twenty years.</p> <p>At the conclusion of the evidence his Honor entered judgment of nonsuit, and the plaintiff excepted and appealed.</p>

Appeal by defendants from Bond, J., 16 February, 1918; from Pas-QUOTANK. This is an appeal from an order for the examination of the plaintiff. On 11 November, 1916, the plaintiff had a summons issued against the Norfolk Southern Eailroad Company and the Pullman Company.

ActioN tried before Bond, J., and a jury, at February Term, 1918, of Pasquotank. Tbis case was here before, and was reported in 168 N. C., 268. Tbe action was brought to recover damages for injuries caused by diverting surface water and ponding, it on plaintiff’s land.

Actiok tried before Kerr, Jand a jury, at April Term, 1918, of Nash. , ■ The action was brought to set aside a deed alleged to have been executed by Mrs. Nancy Bailey to her son, C. W. Bailey, who is the defendant, on 12 August, 1914. Mrs. Bailey was about 70 years old when she died, 30 August, 1914. She was feeble for some time before her death, and had two falls — one which broke her arm, and the other her leg or hip, the latter seeming to have caused or hastened her death.

CONTROVERSY without action, submitted upon the following statement of facts under section 803 of the Revisal of 1905, and decided by Kerr, .J., at the June Term, 1918, of Martin. . On or about 15 April, 1918, A. Williams bargained and sold to W. H. Biggs a certain tract of land mentioned and described in item 2 of the last will and testament of Eli H. Roberson, for the sum of $5,000, and has executed and tendered to W. II.

<p>Clerks of Court — Fees—Supreme Court — Docketing Transcript.</p> <p>Tbe appellant’s undertaking does not cover tbe fee of tbe clerk of tbe Supreme Court in docketing tbe case, and tbe clerk is in tbe exercise of bis right in refusing to docket tbe transcript where be has demanded tbe prescribed fee in advance and its payment has been refused. Revlsal, secs. 2801, 1250.</p>

Action- tried before Connor, J., and a jury, at April Term, 1918, of Beaufort. The plaintiff sued to recover the amount of a life policy issued to Ttomas Whitaker by the defendant, and payable, at first, to bis sister, tbe plaintiff, as beneficiary, and afterwards changed so as to be payable to his wife, Colorado Whitaker, under a clause reserving the right to change the beneficiary.

ActioN beard on return to preliminary restraining order and by consent, before Whedbee, Jdecision being filed at July Term, 1918, of Gates .

ActioN tried before Kerr, J., and a jury, at February Term, 1918, of Bertie. Tbe action was brought to recover damages for tbe negligent burning of timber and other property on plaintiff’s land. There was evidence tending to show that the fire was set. out on the land by the defendant and came from the latter’s engine.

ActioN tried before Whedbee, J., and a jury, at April Term, 1918, of WayNE. Judgment of nonsuit upon the evidence, and plaintiff appealed. This action was brought to recover damages for a breach of contract to sell and deliver cotton yarns to the plaintiff. The nature of the case will appear from the testimony of the plaintiff and other brief excerpts from the record. Plaintiff testified: “I live in Goldsboro, N. 0., and have had dealings with the Vass Ootton Mills Company.

AotioN tried before Bond, Jand a-jury, at January Term, 1918, of Pasquotank. The relevant facts are stated in the case on appeal, as follows: The plaintiffs, W. H. Jennette and L. B. Jennette, are brothers and partners, trading as Jennette Brothers Company, and are residents of Pasquotank County, North Carolina.

Issue of devisavit vel non, tried before Bond, J., at July Term, 1918, of Hyde. These are the issues: 1. Were the paper-writings propounded as the last will and testament of George Y. Credle and codicil thereto, written, signed, witnessed, and executed in accordance with the formalities required by law for execution of a valid last will and testament and codicil to same? Answer: Yes. . 2.

<p>1. Judgments — Excusable Neglect — Attorney and Client — Neglect of Attorney.</p> <p>A client will be relieved against a judgment by default taken against Mm tbrougli the negligence of Ms attorney.</p> <p>2. Same — Neglect of Client.</p> <p>A physician, the president of a corporation and having in charge an action against it, spoke to an attorney about representing the corporation and understood that he had undertaken to do so, contrary to the understanding of the attorney. At a term of the court when the attorney was sick in a hospital, under the physician’s care, a judgment by default was taken against the corporation: Held, it was the duty of the physician, as president of the corporation, to question the attorney, and his neglect in not looking after the case and employing other counsel was not excusable.</p>

ActioN to enforce a materialman’s lien, under section 2021, et seq., of Revisal, Tried before Whedbee, J., and a jury, at Special Term, 1918, of Pasquotank. On a former trial of the case a judgment of nonsuit was entered, the judge below holding that mine of the notices relied upon by plaintiff to effect a lien, as claimed by him, was sufficient for the purpose.

<p>Appeal by plaintiff from Daniels, J., at April Term, 1918, of Edge-combe.</p> <p>This is an action against the defendant Pierce, the town of Tarboro,and the National Surety Company as the surety for the faithful performance of the contract by the defendant Pierce to do certain sewerage work and pipe-laying in the streets of said town. Soon after the execution of said contract and the bond of the surety, the plaintiff and said Pierce entered into a contract by which the plaintiff was to excavate the sewer trenches, using a trench machine for that purpose, with a competent operator on it, furnishing the fuel, oil, and repairs, and operating the machine to do the work. The plaintiff was to receive for said work a stated sum per foot, according to the depth of the trenches cut.</p> <p>The plaintiff began work under his contract and cut a great number of trenches of varying depths. That the balance due him for the work done on the contract is $1,350.85 is not disputed. The defendant Pierce failed to pay this balance, alleging that he is financially unable, and the town of Tarboro and the National Surety Company base their refusal upon the ground that they are not liable therefor and that the bond executed by the surety company does not cover the plaintiff’s claim. The defendant Pierce failed to answer, and judgment by default final was entered against him. The town and the surety company demurred. The court, it seems, overruled the demurrer as to the plaintiff’s right to maintain the action direct on the bond, but sustained the demurrer that the plaintiff’s claim was not covered by the bond, and the plaintiff appealed.</p>

Appeal by defendant from Daniels, J., at April Term, 1918, of Edge-combe.

<p>Appeal by plaintiff from Connor, J., at May Term, 1918, of Dabe.</p> <p>Tbis is an action to recover damages for personal injury, tbe plaintiff alleging tbat be was in tbe employment of tbe defendants and tbat tbey failed to furnish bim a reasonably safe place to work and to provide safety appliances in general use, and that be was injured by reason thereof.</p> <p>At tbe conclusion of the evidence his Honor entered judgment of non-suit, and the plaintiff excepted and appealed.</p>

<p>Actiok tried before Whedbee, J., at March Term, 1918, of Chatham. From judgment of nonsuit plaintiffs appealed.</p>

AotioN to recover damages for negligent delay and injury in transporting a shipment of 201 hogs, tried before Bond, J., and a jury, at Special Term, 1918, of IIydb. The evidence of plaintiff tended to show that on 18 December, 1917, he shipped with defendant Fairfield and Elizabeth City Transportation Company, at Fairfield, N. 0., 201 hogs under a through bill of lading, via Elizabeth City to Onley, Ya., the Norfolk and Southern Railway being the next connecting carrier.

PetitioN for betterments, heard and determined before Bond, J., at July Term, 1918, of Camden. From a judgment dismissing the petition defendant appealed.

<p>Appeal by defendant from Allen, J., at February Term, 1918, of CRAVEN.</p> <p>This is an action for personal injuries sustained by the negligence of the defendant.</p>

ActioN to remove a cloud from title, tried before Allen, J., at May Term, 1918, of Pitt. ' . There was judgment for plaintiffs, and defendants having duly excepted appealed.

<p>1. Supreme Court — Jurisdiction—Opinion Certified.</p> <p>After the Supreme Court of this State has certified its opinion and remanded the case to the Superior Court, it is without further jurisdiction except when it is properly before it upon petition to rehear (Rule 52, 174 N. C., 841), and may make no further orders therein.</p> <p>2. Appeal and Error — Writ of Error — When Granted — Supreme Court.</p> <p>A writ of error to the Supreme Court of the United States should be applied for to the presiding officer of the State court, under the Federal statute, within three months after the rendition of the judgment or decree complained of, and not to the court.</p> <p>3. Supersedeas — Ancillary Remedy — By Whom Granted — Supreme Court.</p> <p>A supersedeas is ancillary to a writ of error, and the former may be granted by the same judge who has granted the latter, or both may be granted by a justice of the Supreme Court of the United States.</p> <p>4. Certiorari — Supreme Court of United States — By Whom Granted — Super-sedeas.</p> <p>A certiorari, provided as a substitute for the writ of error, is issuable within the discretion of the United States Supreme Court, and not by a justice thereof, and when the application therefor has been granted a supersedeas may issue as ancillary thereto. Sec. 2, ch. 448, U. S. Laws 1916.</p> <p>5. Supersedeas — State Supreme Court — United States Statutes — Petition to State Supreme Court.</p> <p>Where an appeal has been remanded and certified to the Superior Court, which presents a Federal question, and which the appellant desires to have reviewed by the Supreme Court of the United States, his procedure should conform to the requirements of the Federal statutes (Laws 1916, ch. 448), and his petition to the State Supreme Court for a super-sedeas to stay the execution of the judgment it has certified down will be denied.</p> <p>PbtitioN for supersedeas.</p>

<p>ActioN to recover a tract of land, tried before Allen, J., at February Term, 1918, of Craven.</p> <p>At the conclusion of the evidence the court sustained a motion to non-suit, and plaintiff appealed.</p>

MotioN to set aside a judgment rendered by tbe Clerk of the Superior Court of Halifax County, beard by Kerr, J., at January Term, 1918, of said county. The court set aside the judgment upon the ground of excusable neglect. Plaintiff appealed.

ActioN tried before Allen, J., and a jury, at May Term, 1918, of Pitt. Tbe plaintiff sued for rent due under a lease, made 13 November, 1913, by bim to tbe defendant, for four stores and a hall in a building to be erected in tbe town of Greenville, at $12 per week, for a term of five years.

Action to recover a bird dog, tried on appeal from a justice’s court before Kerr, J., and a jury, at February Special Term, 1918, of Pas-•quotank.

ActioN tried before Whedbee, J., and a jury, at August Term, 1918, of Pitt. The action was to recover $1,700, claimed by defendant for services rendered and money advanced to tbe firm of 1. G. Morrow & Co., conducting a tobacco warehouse business at Farmville, N. C., in 1914; plaintiff contending that said firm at the time was composed of L. G. Morrow and G. E. Moore.

<p>Appeal by defendant from Allen, J., at February Term, 1918, of CRAVEN.</p> <p>These two actions, consolidated and tried together, by consent, were brought against the Pennsylvania Railroad and the Pullman Company by Nita Williams and Jennie Sultan to recover damages because of failure to provide each of the plaintiffs a berth on a Pullman car from Washington, D. C., to Goldsboro, N. 0.</p> <p>The evidence for the plaintiffs tended to prove that they were in Baltimore on business on 16 February, 1917, and on that day bought of the agent of the railroad a railroad ticket to New Bern, N. C., to be used on the night of 17 February, and at the same time bought a Pullman berth from Washington to Goldsboro, on car R-30; that they went to the station at Baltimore about 6 :30 o’clock on the evening of the 17th, but did ’ not reach Washington until after the car on which they had bought a berth had left for Richmond; that they continued their journey to Richmond on a Pullman, having a section to themselves, which was not, however, made up for sleeping, and that at Richmond they were given their berths on car R-30; that they suffered humiliation, inconvenience, caught cold, etc.</p> <p>The evidence for defendants tended to prove that berths were reserved for the plaintiffs on car R-30; that the plaintiffs did not get the berths at Washington because they were not there before the leaving time of car R-30, which was 9 :30 o’clock, and that five or six trains left Baltimore for Washington after 6 :30 o’clock, when the plaintiffs said they reached the station in Baltimore in time to have taken the plaintiffs to Washington before car R-30 left.</p> <p>■ The evidence then closed, and there was a motion for judgment of non-suit, which was allowed as to the Pullman Company and denied as to the railroad, and the defendant railroad excepted.</p> <p>The plaintiff then asked the court to reopen the case and permit the examination of the plaintiffs about the gateman at the railroad station in Baltimore refusing to let them through the gate at Baltimore.</p> <p>The court reopened the case, to which ruling the Pennsylvania Railroad Company objected and excepted, and Miss Jennie Sultan then testified :</p> <p>“We went down to the station to get our train, and went to the gate about 6 :30 to get our train. The man at the -gate looked at our tickets and told me the train was late. We went to the gate two or three times, until there came a train, and he told us that was our train; that is the train we took. We remained there, watching the gateman. He told us what gate we were to’go through. We waited there an hour and a half.</p> <p>“I knew there were a number of trains going to Washington. I went to the man two or three times with that knowledge. I knew this ticket was good to Washington. We could have gone to Washington on any one of those trains if we could have gotten through the gate.”</p> <p>The defendant excepted to all of this evidence.</p> <p>The jury returned the following verdict:</p> <p>1. Did the plaintiff purchase from the defendant railroad company a ticket which entitled her to transportation over its lines and its connecting lines from Baltimore to New Bern, as alleged in the complaint? Answer: Yes.</p> <p>2. Did the plaintiff, at the same time, purchase from said railroad company a ticket which entitled her to a berth upon a car of the Pullman Company from Washington City to Goldsboro, as alleged in the complaint? Answer: Yes.</p> <p>3. Did the defendant railroad company negligently fail to furnish the plaintiff the berth on the Pullman car from Washington City to Richmond, Ya., and damage and injure the plaintiff, as alleged in the complaint? Answer: Yes.</p> <p>4. What damage, if any, is plaintiff entitled to recover? Answer: $150.</p> <p>Judgment was entered in favor of the plaintiffs, and the defendant, railroad appealed.</p>

Appeal by protestant from Calvert, Jat June Term, 1918, of Cae-teeet. This is a protest to an entry, tbe protestant claiming tbat the land entered is not vacant and unappropriated land, because— 1. It is covered by a grant issued by the State to John Fulford. 2. If the land entered is not covered by the grant, the title to it is in the protestant by the law of accretion. 3. If the land is not covered by the grant, the title to it is in the protestant by adverse possession.

Appeal by botb parties from Garter, J., at the July Term, 1918, of HERTFORD. This is an action against E. TI. Horton and Eula A. Horton to recover interest on a note before the principal became due,' commenced before a justice of the peace and heard in the Superior Court on the appeal of the defendants.

Appeal by defendant from Ntucy, J., at chambers, in.Clinton, 1 May, 1918. Controversy submitted without action under Revisal, 803. The plaintiff contracted to deliver to the defendant a good and sufficient deed in fee simple, with the usual covenants, to the tract of land therein described. The defendant refused to accept said deed upon the ground. that the plaintiff could not convey a fee-simple deed to said tract.

<p>1. Vendor and Purchaser — Contracts, Written — Parol Evidence — Warranty, —Defense—Counter-claim.</p> <p>■ Where a written contract of sale of a cotton ginning outfit contains the stipulation that the purchaser should provide sufficient motive power for its operation, if the same were not furnished by the seller, and the purchaser has undertaken to provide the same, with further stipulation that the writing is exact and entire, and no agreement or understanding, verbal or otherwise, will be recognized unless therein contained: Held, parol agreements as to the daily capacity of the gin operated by a certain engine the purchaser had used under the salesman’s representation as to its sufficiency for the purpose, is contradictory of and excluded by the terms of the writing; and in the absence of sufficient allegation or evidence to cancel the writing or of fraud and deceit, the parol agreement is not available to the purchaser either by way of defense or counterclaim for damages sustained.</p> <p>2. Contracts — Fraud—Evidence—Parol Evidence.</p> <p>The rule permitting parol evidence to contradict the terms of a written instrument attacked for fraud in its procurement has no application when there is no allegation or sufficient evidence of such fraud, and the effect of parol evidence is only to vary the terms of the agreement as expressed in the writing. Bulloch v. Machine Oo., 161 N. C., IS; Machine Go. v. Feeaer, 152 N. C., 516, cited and applied.</p>

<p>Appeal and Error — Divided Court — Judgments—Bank and Banking — Deposits — Claimant—Notice—Issues—Answers—Opinions.</p> <p>Tbe matters for decision on this appeal are wbetber tbe defendant bank is responsible to tbe true owner for paying tbe depositor, under tbe facts of tbis case, after notice given to it by owner that tbe money was her own, and not tbat of tbe depositor; and wbetber tbe findings to tbe issues submitted were irreconcilable and a new trial should be ordered. The Court being equally divided; Brown, X, not sitting; Clark, C. X, writing an opinion; Hoke, X, concurring; Walker and Allen, JJ., each writing a dissenting opinion. Tbe judgment of tbe lower court is affirmed without being a precedent.</p>

ActxoN tried before Allen, J., at June Term, 1918, of Lenoir, upon these issues: 1. Is B. J.' Eouse estopped to claim an estate in the land described in the complaint? Answer: Yes. 2. Is B. J. Eouse barred by the lapse of time to assert a right to any interest in the said land, as described in the complaint? Answer: Yes. 3. Is B. J. Eouse barred by the statute of limitations to maintain this action? Answer: Yes. Similar issues were submitted as to the other plaintiffs.

<p>ActioN tried before Calvert, Jand a jury, at March Term, 1918, of DupliN.</p> <p>Tbe action was brought to recover damages for cutting and burning timber belonging to plaintiff’s testator, and the case was before this Court at Fall Term, 1916. It is reported in 172 N. C., at p. 297, where the principal facts are stated, as they then appeared. We awarded a new trial at that term, and the case was again tried below, when the jury returned the following verdict upon issues then submitted by the court:</p> <p>1. Did the defendant Cape Feár Lumber Company wrongfully cut and remove timber and trees of plaintiff’s testator, E. J. Williams, as alleged ? Answer: Yes.</p> <p>2. If so, what damages are plaintiffs entitled to recover by reason thereof? Answer: $2,000, with interest from 1 August, 1911.</p> <p>3. Did defendant Cape Fear Lumber Company wrongfully set fire to and burn and injure the E. J. Williams, Brown, place- and the timber trees, lightwood, straw, and woodsmold thereon, as alleged? Answer: Yes.</p> <p>4. If so, what damages are plaintiffs entitled to recover by reason thereof? Answer: $1,500, with interest thereon from 4 July, 1911.</p> <p>5. Did the defendant Cape Fear Lumber Company wrongfully set fire to and burn and injure the part of the E. J. Williams home place, near the gin, and the timber, trees, lightwood, straw, and woodsmold thereon, as alleged? Answer: Yes.</p> <p>6. If so, what damages are plaintiffs entitled to recover by reason thereof? Answer: $200, with interest from 1 July, 1911.</p> <p>The judgment was rendered upon this verdict, and defendants appealed.</p> <p>The other facts necessary to be stated will be found in the opinion.</p>

Appeal by both, parties from Allen, J., at chambers, in Kinston, 12 September, 1918, from a judgment upon an agreed state of facts in a controversy submitted without action.

<p>Appeal and Error— Supreme Court— Opinion Certified— Courts— Jurisdiction — Petition to Rehear.</p> <p>After a decision of the Supreme Court has been certified down, the Court is without jurisdiction to entertain a motion to recall the mandate and judgment rendered and reconsider it; the only method for such being upon petition to rehear, filed according to the rules.</p>

<p>1. Judgments — Contracts—Breach—Measure of Damages — Lumber.</p> <p>In an action, with claim and delivery, for breach of contract and for possession of property, alleging that defendant was to receive $6 per thousand feet for lumber cut and “racked up” on the yard, with an additional $2 per thousand for hauling and loading it for shipment, the defendant alleging that the $6 were allowed as partial payments by installments, the verdict of the jury, upon the evidence, and under proper instructions, finding for the plaintiff, both as to the right of possession and the terms of the contract, entitles the defendant to receive only the $6 per thousand feet for cutting and “racking up” the lumber on the yard, and a judgment allowing him ?8 per thousand feet therefor includes payment for services for hauling and loading the lumber for shipment, which he has not rendered, and to which he is not entitled.</p> <p>2. Appeal and Error- — Records—Judgments—Admissions.</p> <p>An admission stated in the judgment, appearing in the record of the case on appeal, is controlling.</p> <p>3. Courts — Discretion—Motions—Appeal and Error — Objections and Exceptions.</p> <p>Objection that a verdict is against the greater weight of the evidence should be made upon motion, addressed to the sound discretion of the trial judge, to set it aside.</p> <p>4. Verdict — Findings.</p> <p>The findings of the jury to the issues should be examined in connection with the pleadings, evidence, and the judge’s charge, and in this case they are Held not to be conflicting, but sufficient to settle the rights of the parties.</p> <p>5.Costs — Possessory Action — Counterclaim—Damages—Appeal and Error.</p> <p>In an action, witli claim and delivery, for the possession of personal property, a counterclaim for damages raises an independent issue, as if a separate action had been brought; and where each party has recovered, such recoveries are distinct, and it is error in plaintiff’s favor for the trial judge to divide all costs between the parties, except those of the claim and delivery proceedings, this not being a case where two amounts of money are recovered and the clear balance ascertained by deducting one from the other, but where personal property is recovered in the one case and money in the other.</p>

ActioN tried before Calvert, J., at February Term,. 1918, of Lenoir, upon motion for judgment upon the pleadings.. The court rendered judgment for plaintiff. Defendant appealed.

ActioN tried before Calvert, J., and a jury, at February Term, 1918, of Sampson. » The action is to recover on notes — one chattel mortgage to secure same, given to N. J. Aboud for- the purchase price of stock of goods sold to defendants, Spell and wife, on 28 March, 1917. At the close of the testimony, on motion, there was judgment of non-suit, and plaintiffs excepted and appealed.

Appeax by both.parties from Calvert, J., at June Term, 1918, of LENOIR.

Appeal by both j>arties from Devin, J., at August Term, 1918, of ONSLOW. This is a processioning proceeding, to establish a line between tbe plaintiffs and defendants. Tbe plaintiffs allege tbe ownership of a certain tract of land, described by metes and bounds, and embraced in tbe Enoch King grant, and that defendants claim land upon tbe western side of tbe King grant, lying over and lapping on tbe lands of tbe plaintiffs.

<p>Appeal by defendant from Calvert, J., at February Term, 1918, of LeNOIB.</p> <p>This is an action to cancel a tax deed upon -the ground that the defendant obtained it by fraud and misrepresentations.</p> <p>The evidence tended to prove that the plaintiff owned a lot of land in the city of Kinston, on which is situated a dwelling-house, in which the plaintiff has been residing for about twelve years. The value of the-property is about $1,000. In January, February, March, April, and May of the year 1915 the plaintiff was sick with pneumonia and was confined to his home practically all of the months mentioned. At the regular sale by the city of Kinston of real estate for the nonpayment of taxes for the year 1914, on 4 May, 1915, the locus in quo was sold by the city tax collector, and was purchased by one J. G. Banton, to whom a certificate was issued, and then transferred to the defendant herein. The-property was sold for $12.10, which was sufficient to cover the. taxes due the city.</p> <p>As soon as the plaintiff sufficiently regained strength from his sickness he went to the defendant to repay the taxes and redeem the certificate-issued to said Banton and then held by the defendant, and paid the defendant $4 upon said taxes. This was prior to the first Monday in May, 1916. Thereafter the plaintiff was again confined to his home by reason of continued illness, and on tbe first Monday in May, 1916, which was the first day when a tax deed was obtainable under the sale for taxes for the year ID 14, the defendant obtained the tax deed mentioned. The notice served upon the plaintiff in order to obtain the tax deed was served prior to the day in April on which the plaintiff went to the defendant and paid $4 on his taxes, and the defendant then assured the1 plaintiff that the matter was all right and that he would see that no' harm came to him by reason of the existing condition.</p> <p>Thereafter the defendant obtained the deed mentioned,- dated 4 May,. 1916, and, as the plaintiff would continue to make payments to him upon, the taxes, as shown by the plaintiff’s evidence, the defendant would issue receipts for each payment, and marked thereon “Eents” in lieu of taxes, though the first receipt had been issued for taxes. For some months the plaintiff continued to make payments, which were each time received by the defendant with assurances to the plaintiff that the matter was all right for him and he need have no fears, as he would carefully protect him. When the first payment of $4 was made and a receipt for taxes issued, the plaintiff’s evidence tends to show that there was an agreement then made between the plaintiff and the defendant that the plaintiff would make payments in this way and that they would be accepted in the redemption of the tax certificate, all of which was prior to the execution of the deed, and that, notwithstanding the deed was later obtained without further knowledge to the plaintiff, and he continued to make payments, as he thought, upon his taxes, he was defrauded by the defendant obtaining the tax deed in the manner mentioned, and continuing to take payments and marking his receipts in payment for rent.</p> <p>The plaintiff is an ignorant negro, unable to read and write, and unused to business transactions. The defendant, also a negro, has some education. The plaintiff relied upon the defendant to protect him.</p> <p>The plaintiff continued to make payments, until finally he sought assistance from his employer in an effort to ascertain how much he had paid, being himself unable to make the necessary additions. It was then learned that he had paid $26.50 upon an indebtedness which the defendant himself contended to be only $17.05. He at-once discontinued payments, and the defendant instituted a summary proceeding in ejectment before a magistrate to obtain possession of the property, and based the suit upon his tax deed and the receipts issued for rent. A judgment was rendered by the magistrate in favor of the plaintiff in that' action (the defendant here), and an appeal taken to the Superior Court, .where the action is still pending. The plaintiff in this action then instituted this action to cancel the deed as a cloud upon his title. The defendant offered evidence contradicting the evidence of the plaintiff. The issue of fraud was submitted to and answered by tbe jury in favor of tbe plaintiff.</p> <p>'At tbe conclusion of tbe evidence tbe defendant moved for judgment of nonsuit, which was denied, and tbe defendant excepted.</p> <p>Tbe defendant offered in evidence tbe proceedings before tbe justice of tbe peace in summary ejectment, to show tbat tbe plaintiff could not attack bis title. Tbis was excluded, and tbe defendant excepted.</p> <p>There was a verdict and judgment for tbe plaintiff, and tbe defendant appealed.</p>

Action to recover land, tried before Stacy, J., and a jury, at February Term, 1918, of Fbanklin. There was denial of plaintiffs title on the part of Booker Jones, and averment by way of further defense that plaintiffs held the land affected with a trust in favor of Booker Jones, growing out of an agreement with one J. W. King, who bid on the land at foreclosure sale, and which plaintiffs had recognized and were bound by.

Appeal by plaintiff Elwood H. Lee from Ferguson, J., at the April Term, 1918, of Wae:e. This is an appeal from an order made in two actions and in a special proceeding pending in the Superior Court of Wake County.

Appeal by propounders from Calvert, J., at April Term, 1918, of Hoke. In this proceeding a consent judgment was entered at August Term, 1917-, of Hoke, providing, among other things, that -the caveator, M. A. Chisholm, was indebted to the propounders, Mrs. Sallie Covington, Mrs. Maude Steele, and Zebbie Harris, in the sum of $6,000, to be paid within ninety days after the signing of the judgment.

<p>Appeal, by defendant from Kerr, J., at March Term, 1918, of Halifax.</p>

<p>1. Drainage Districts — Statutes—Assessments—Notice—Publication—Deeds and Conveyances — Warranty.</p> <p>A motion in the cause, in proceedings for establishing a drainage district, by one who has conveyed lands therein, will be denied, when made on the ground that such person had not been personally served and has conveyed the land to another with warranty against liens or encumbrances, when it appears that the purchaser, in possession, had been personally served, and the grantor lived only a few miles from the district wherein the work was in progress, and the statutory notices had been published to bring in the landowners, with ample time given for objection, exception, or appeal, under the requirements of the statute, which had not been observed or followed.</p> <p>2. Drainage District — Owner’s Consent.</p> <p>It is not necessary that every owner of land within a drainage district should have assented to its formation when the statutory number thereof have done so.</p> <p>3. Drainage Districts — Assessments—Benefits—Findings by Clerk.</p> <p>An owner of lands in a drainage district is liable for a proper assessment in accordance with tbe benefits accruing to bis lands, and it is immaterial that, on appeal from tbe clerk, the judge bas stricken out from-bis findings that tbe improvements exceeded tbe benefits conferred.</p> <p>4. Drainage Districts — Proceedings in rem — Notice—Nunc pro tunc — Assessments. °</p> <p>Tbe proceedings for forming a drainage district are in rem; and where' a valid statute bas been complied with therein, and it appears that an owner bas not been served with process, it is admissible to notify him, in possession, tmnc pro tuno, and have tbe lands therein assessed.</p> <p>5. Drainage Districts — Accruing Assessments — Date of Liens.</p> <p>Assessments upon lands in a drainage district formed under a statute become liens in rem from tbe time they are due and payable.</p> <p>6. Drainage Districts — Assessments — Liens — Encumbrances — Deeds and Conveyances — Warranty.</p> <p>'Assessments upon lands in a drainage district are liens in rem, resting-upon tbe lands, into whosesoever bands it may be at tbe time they accrue-,, and do not come within tbe terms of a warranty against encumbrances-by deed.</p> <p>7. Drainage Districts — Police Regulations — Health—Condemnation.</p> <p>Tbe drainage of swamps and of surface water from agricultural lands-in a drainage district are declared by chapter 442, Laws 1909, to be for the-public benefit and conducive to tbe public health, etc., thus falling within the police regulations; and proceedings thereunder are in the exercise of tbe right of eminent domain.</p> <p>8. Drainage Districts — Notice—Assessments—Laches.</p> <p>Where due notice, by publication bas been made, in tbe formation of a drainage district, and tbe report of tbe viewers bas been confirmed by tbe clerk, without objection, exception, or appeal, the presumption is that an owner of land therein bas not been found upon issuance of personal-process ; and tbe substituted service, nothing else appearing, is valid.</p>

<p>Appeal by plaintiffs from Stacy, J., at March. Term, 1918, of "Wake.</p>

ActioN tried before Stacy, J., at January Term, 1918, of Waxe, on exceptions to tbe report of a referee. Tbe following is tbe statement of tbe case on appeal, as agreed upon and signed by tbe attorneys of tbe respective parties, omitting some formal and immaterial parts; This was a civil action in the Superior Court of Wake County.

ActioN tried before Stacy, J., and a jury, at February Term, 1918, OÍ FRANKLIN. Plaintiff brought this action to recover possession of the land described in the complaint. It appears that the land was owned at one time by Mrs. J. A. Turner, wbo, with her husband, sold and conveyed it to M. E. Houck, who with his wife are defendants.

Appeal by defendant from Stacy, J., at January Term, 1918, of Wake. This action is to recover damages for -alleged encroachment upon the property of plaintiffs in the construction of a track between Johnston Street and a point near Boylan Avenue bridge in Raleigh. Upon the complaint, the plaintiffs moved for a restraining order against the construction of the track on their property.

ActioN tried before Calvert, /.> at March Term, 1918, of Duplin, upon these issues: 1. In what amount, if any, is the defendant Eufus Branch indebted to thp plaintiff, Anderson Jones? Answer: $529.50, with interest from 23 December, 1901, and subject to a credit of $38.50 as of 16 January, 1902. 2. In what amount, if any, is defendant Eufus Branch and wife indebted to A. F. Williams, assignee of E. J. Martin & Sons, on account of the notes and mortgages sued on?

<p>Appeai by plaintiff from Bond, J., at March Term, 1918, of Dubham.</p>

<p>This is an appeal by plaintiffs from Connor, sustaining a demurrer ore tenus to the complaint, April Term, 1918, of Beaufobt.</p>

Appeal by plaintiff from Bond, J., at May Term, 1918, of AlamaNCE. This was an. action for damages sustained from an injury causing tbe loss of an eye.

ActioN tried before Ferguson, J., and a jury, at April Term, 1918, of Wake.

<p>Appeal by both, parties from In/on, J., at tlie April Term, 1918, of New IIanoveb.</p> <p>This is a petition for dower filed in a special proceeding to sell land for assets.</p> <p>B. O. Stone’ died in the county of New Hanover leaving a will in wbieb be devised and bequeathed all of his property to his wife, Mary Eoy Stone, and his children, and the Atlantic Trust Company qualified as his administrator with the will annexed. Thereafter the administrator filed his petition to sell the lands of the testator for assets and the widow of the said B. 0. Stone and his children were parties to said proceeding.</p> <p>Orders of sale Avere made in said proceeding and a part of the lands sold and the sales confirmed, and the proceeds of the sales being now in the hands of the administrator and other parts of the lands remain unsold. Nothing was said in said proceeding of the right of the widow to dower.</p> <p>When the testator first died it was believed that his estate was solvent and that there would, be a large amount after the payment of. debts, belonging to the widow and her children, and for this reason and because she was advised by a reputable attorney that her failure to dissent from the will within six months would prevent her claiming dower she made no claim thereto until January, 1917, more than a year after the petition to sell lands for assets was filed, and she then filed her petition in tbe cause demanding tbe allotment of dower. Tbe estate of tbe said B. O. Stone is insolvent.</p> <p>His Honor held, and so adjudged, that tbe widow was not entitled to dower or other interest in tbe lands tbat bad been sold or in tbe proceeds thereof, and tbat she was entitled to dower in tbe lands remaining’ unsold, and both tbe widow and tbe trust company excepted and appealed — tbe widow upon tbe ground tbat she was entitled to dower in tbe proceeds of tbe sale and tbe trust company upon the ground tbat she was not entitled to dower in tbe lands remaining unsold, claiming that she was estopped by the'orders and decrees in tbe. special proceeding to claim dower either in tbe proceeds of tbe, sale of in tbe lands remaining unsold.</p>

<p>Appeal by Hux, intervenor, from Allen, J., at tbe May Term, 1918, of Pitt.</p> <p>This action was brought by O. L. Joyner v. Tbe Reflector Company, a corporation, on 24 November, 1916, asking that a receiver be appointed to take charge of tbe Reflector Company, which was done, L. G. Cooper being appointed receiver. The property of the Reflector Company was sold by said receiver on 19 February, 1917, by virtue of an order of court. H. M. Hux, who had obtained judgment against the Reflector Company for $4,000 for tort committed 12 September, 1912, filed a claim with said receiver for and on account of said judgment, asking that his claim be paid ahead of other claims, or that he be given a preference on account of section 1131 of the Revisal. The receiver ruled against the said Hux and he appealed to the Superior Court and by proper order was allowed to intervene and become a party so as to protect his rights. The receiver held that notes secured in the deed of trust to S. J. Everett dated 25 September, 1912, the total amount of the notes being $5,000, but which had been paid down by the Reflector Company to $3,300, had a preference' over other claims. After the said H. M. Hux appealed, the Greenville Banking and Trust Company, the National Bank of Greenville, and the Farmers Bank, D. J. 'Whiehard, S. J. Everett, R. J. Cobb, E. M. Wooten, C. O’H. Laughinghouse, C. W. Wilson, B. B. Sugg, W. E. Proctor, J. J.-Elks, R. C. Flanagan, and H. A. White, who, with the plaintiff Joyner, are the creditors in said deed of trust and the indorsers of said notes, all petitioned to be made parties plaintiff, alleging that at the time of the execution of the deed of trust to S. J. Everett, there was an understanding between the Reflector Company and the endorsers on the notes secured in the deed of trust to S. J. Everett that the notes to the Mergenthaler Linotype Company and the notes to the Miehle Printing Press and Manufacturing Company should be taken up out of the fund obtained from the deed of trust to S. J. Everett and held by S. J. Everett as trustee for said sureties. This was denied by the said II. M. Hux.</p> <p>At the January Term, 1918, of the Superior Court, the judge presiding made an order of compulsory reference in the cause to 0. 0. Pierce to find the facts in the matter and report to the court, all parties excepting to said order and reserving their rights to a jury trial. The matter was heard by C. 0. Pierce and report made. The intervenor, H. M. Hux, excepted to the report, and the same came on to be tried at the May Term, 1918, of the Superior Court.</p> <p>The notes to the Mergenthaler Company and to the Miehle Company were apparently given for the purchase money of certain machines and were secured by mortgages on the machines, the mortgage to the Mer-genthaler Company being executed by D. J. Whiehard, who did business in the name of the Reflector Company before its incorporation, and the mortgage to the Miehle Company being executed by the Reflector Company, incorporated.</p> <p>There was evidence that at the time of the execution of the.deed of trust of 25 September, 1912, that the notes and mortgages to Mergen-thaler and Miehle companies were paid and canceled by the Reflector Company, and also evidence that they were delivered to Everett, trustee, to be held as security for the creditors in the deed of trust, or if payment was made it was by the creditors.</p> <p>The following verdict was returned by the jury:</p> <p>1. WEat was the value of the Mergenthaler Linotype machine on 19 February, 1917, the day of the sale? Answer: “$950.”</p> <p>2. WTiat was the value of the Miehle printing press on 19 February, 1917, the day of the sale? Answer: “$1,650.”</p> <p>3. Were notes of the Reflector Company to the Mergenthaler Linotype Company paid by the Reflector Company and discharged, as alleged by the intervenor? Answer: “No.”</p> <p>4. Were notes of the Reflector Company to the Mergenthaler Linotype Company and mortgage assigned to S. J. Everett as trustee? Answer: “Yes.”</p> <p>5. Were tbe notes of the Reflector Company to the Miehle Printing Press and Manufacturing Company paid, satisfied and discharged, as alleged by the intervenor? Answer: “No.”</p> <p>His Honor instructed the jury to answer the third and fifth issues “No” and the fourth issue “Yes” if they believed the evidence, and the intervenor Hux excepted.</p> <p>An order was entered upon the report of the referee and the verdict declaring that Hux was not entitled to a preference over the mortgage creditors and retaining the cause for further order of distribution of the fund, and Hux excepted and appealed.</p>

<p>1. Principal and Agent — Declarations—Evidence—Carriers of Passengers— Brakeman.</p> <p>In an action for damages for sickness caused by the car of defendant railroad company not being properly beated in cold weather, declarations of a brakeman to the plaintiff, before entering the car as a passenger, as to the breaking of the heating pipe and the cold condition of the car, are incompetent as declarations of an agent which bind his principal.</p> <p>2. Evidence — Opinion—Expert—Witnesses—Issues of Fact — Questions for Jury — Appeal and Error.</p> <p>An expert opinion should be based upon the assumption of the finding of the jury, and a medical expert opinion based only on a statement of the occurrences as made to him by his patient is an invasion of the province of the jury to find the facts.</p>

AotioN tried before -Stacy, J., at January Tjerm, 1918, of WaKE, upon these issues: 1. Was tbe subscription of A. 33. Andrews, deceased, to plaintiff Improvement Company made with tbe understanding that it should not be valid unless the amount of $15,000 in subscriptions should be obtained? Answer: “Yes.” 2. Was the amount of $15,000 in subscriptions to plaintiff obtained? Answer: “No.” 3.

ActioN tried before Devin, J., and a jury, at March Term, 1918, of CUMBERLAND. Plaintiff sued for the recovery of several tracts of land described in Ms complaint, and specially relied on a deed of W. B. Pope and wife to him, dated 12 December, 1881.

ActioN tried before Bond, J., and a jury, at March Term, 1918, of Dueham. This action is brought by the plaintiff against the city of Durham, Strauss-Rosenberg Company, and the Carolina Light and Power Company to recover damages for injuries sustained by falling into a coal hole about four by six feet in the sidewalk on Main, the principal business street of the city of Durham. On 80 July, the plaintiff was going from her home about 8 o’clock in the morning to 0.

ActioN tried before Stacy, J., and a jury, at May Term, 1918, of Wake.

Habeas cobpus to determine the right of present custody and control of Mary Yirginia Means, an infant 5 years and 8 months old, heard before Harding, J., by consent, at county courthouse in tbe city of Charlotte on 1Y September, 1918.

Action tried before Bond, J., at May Term, Í918, of Ohangb. The court, at conclusion of the evidence, rendered the following judgment : “This cause coming on to be heard, all parties being before the court, upon consideration of the pleadings and the relief demanded, it appears the defendant company now and at all times had admitted the rights of the plaintiff to be exactly as provided in the policy issued, and plaintiff claims the right to certain additional relief not…

<p>ActioN tried at chambers, before Lyon, J., at April Term, 1918, of New Hanovek, upon complaint and demurrer interposed by defendant Trust Company. No answer or demurrer was filed by the Germania Manufacturing Company. The judge overruled the demurrer and, no application being made for time to answer,, appointed a receiver and entered a decree of foreclosure. Defendant appealed.</p>

Akpeal by defendant from Shaw, J., at February Term, 1918, of' ROCKINGHAM. Tbis is a petition for partition, certified to tbe court at term and'. tried upon issues before a jury. From tbe verdict and judgment tbe defendant appealed.

Appeal by defendant from 'Blum, J., at January Term, 1918, of Eobsvth. This is an action to set aside a deed upon tbe ground of fraud and mistake. The jury having found the issues in favor of the plaintiffs, the defendant excepted and appealed from the judgment thereon.

ActioN beard on appeal from Eorsytb County Court and on demurrer' to defendant’s counterclaim before Lane, J., at September Term, 1918, of Eoestth. The action was to recover tbe sum of $414.10 for goods sold and delivered.

Appeal by defendant from Shaw, J., at the January Term, 1918, of Eorsyti-i. This is an action to recover damages for personal injury caused, as the plaintiff alleges, by the negligence of the defendant. On 14 June, 1916, the plaintiff was a helper in the employment of the defendant in the construction of a building on North Liberty Street, in the city of Winston-Salem, N. 0. The defendant had in charge of the construction as foreman a Mr. Duke.

This is a proceeding before the Clerk of the Superior Court of Wake County begun by R. W. Winston, J. Crawford Biggs, and Moses N. Amis to have an allowance of attorneys’ fees made to them for services rendered to Thomas S. Stone, a minor, in-a civil action entitled In re Stone, 173 N. C., 280. From the order of the clerk allowing the sum of $650, Mrs. Carey W. Stone appealed to the Superior Court.

<p>INJUNCTION pboceedino, beard by Lane, J., at September Term, 1918, of Foesyth.</p> <p>From tbe order made tbe plaintiff appealed.</p>

MotioN to set aside and vacate an order for examination of defendants, under provision of section 866 of Revisal, made by tbe clerk of the Superior Court of Forsyth County, heard upon appeal by Shaw, J., at February Term, 1918, of said county. The judge affirmed the order of the clerk. Defendants appealed.

Special PROCEEDINGS, tried before Bond, J., on 10 July, 1918, upon a motion to amend tbe judgment of tbe court therein. Tbe object of tbe original proceeding was to establish a drainage district composed of tbe lands covered by tbe waters of Mattamuskeet Lake and those lands within two miles of its shores, under tbe Laws of 1909, chapters 442 and 509.

ActioN, tried before Stacy, J., and a jury, at June Term, 1918, of Wake. This action was brought by the plaintiffs to enjoin the issuance of $130,000 of bonds, authorized by an election held on 27 February, 1917, pursuant to the provisions of chapter 68 of the Public-Local Laws of 1917, creating tbe Western Wake Highway District. The act provides that the bonds shall be issued if a majority of those voting at the election approve it.

<p>1. Pensions — Confederate Soldiers — Burial Expenses — Charge Upon County —Statutes.</p> <p>Revisal, sec. 5005a, requires the $20 on account of the burial of a Confederate pensioner to be paid by the board of commissioners of the county-on the pension roll of which his name appears, irrespective of residence.. The delay in the decision of this case unfavorably commented on.</p> <p>2. Statutes — Interpretation—Attorney-General—Long Acquiescence.</p> <p>The opinion of the Attorney-General, interpreting a statute, sanctioned by long acquiescence and without legislative change, is entitled to respectful consideration by the courts.</p>

Appeal by plaintiff from Lane, J., at September Term, 1918, of Fobsyth. This was an action for injuries to property caused by tbe negligence •of tbe defendant, tried before Starbuclc, J., at June Term, 1918, of tbe County Court of Eorsytb. Tbe jury found all tbe issues in favor of the plaintiff and assessed bis damages at $700.

<p>Slander — Bastardy—Indictable Offense — Pleadings—Demurrer.</p> <p>Allegations that the defendant spoke false, slanderous, and defamatory-words of the plaintiff, that a certain woman said that he was the father- ■ of her child, are those charging bastardy, and, though involving moral turpitude, is not an indictable offense carrying with it infamous punish-. ment; and upon the failure of the complaint to allege special damages, it is demurrable.</p>

<p>Appeai by defendants from judgment of Adams, J., at April Term, 1918, of GrUILFORD.</p>

ActioN tried before Shaw, J., at July Term, 1918, of Davidson. Tbe intestate was killed by being thrown from tbe ladder-way of tbe Ricb-Cog Mine, a gold mine in Montgomery County, belonging to and operated by defendant. Tbe issues of negligence, assumption of risk, and damage were submitted to tbe jury, wbo found tbem against defendant and assessed damage at $4,000, wbicb, by consent, was reduced to $2,500. From tbe judgment rendered defendant appealed.

Appeal by plaintiff from Daniels, J., at May Term, 1918, of WayNE. This is a controversy without action. The facts are as follows: Moses Crow died in 1883, leaving a last will and testament, devising to his daughter, Aby Smith, in fee simple, two tracts of land, embracing the 70% acres which is the subject-matter of this controversy. This will was written in 1880.

Appeal by intervenor from Adams, J., at May Term, 1918, of GurL-EORD. This is an action brought by Moon-Taylor Company, a corporation, with its principal office in Greensboro, against Gray-Smith Milling Company, a corporation, with its principal office in Wooster, State of Ohio. The milling company shipped a car-load of wheat to W. A. Watson & Co., of Greensboro, with sight draft attached to bill of lading, order notify A. G. Smith.

Appeal by plaintiff from Lane, J., at the September Term, 1918, of Forsyth. This is an action to recover damages for personal injury caused, as ■the plaintiff alleges, by the negligence of the defendant. On the night of 7 October, 1917, the plaintiff, while walking' on the .sidewalk on the right-hand side of Liberty Street, going north, stumbled •over a fire hydrant, injuring her left arm.

<p>Appeal by defendant from Harding, J., at May Term, 1918, of UNION.</p> <p>Tbis action was begun before a justice of tbe peace. Tbe plaintiff ■ recovered $21.15 for tbe negligent delay to transport and deliver a shipment of potatoes, by reason of wbicb tbe potatoes were frozen and rendered worthless. Tbe Seaboard road, wbicb received tbe potatoes at Wadesboro on 5 February, delivered them tbe next day at Monroe, but it was in evidence that they were already frozen when tbe latter road received them, and hence a nonsuit was entered as to that road.</p> <p>On appeal, tbe verdict and judgment were for tbe same amount. Appeal by defendant.</p>

ActioN, tried before Adams, J., and a jury, at April Term, 1918, of Guilford. Tbe action is to recover by reason of freight charges on shipments of cotton made by defendants over plaintiff road in September, 1910, and, thereafter, to various points in and beyond borders of tbe State, tbe balance due on such charges alleged in tbe complaint amounting to $1,192.76. On denial of liability, tbe case was beard on tbe three following issues: 1.

ActioN, tried before Adams, J., and a jury, at March Term, 1918, of Guilfoed. Plaintiff seeks to recover damages for the death of her husband, Albert L. Ridge, which she alleges was caused by the negligence of the two defendants. There was another defendant, the N. 0. Public Service Company, but a nonsuit was entered as to it.

ActioN, beard by Shaiv, J., upon exceptions to the report of a referee, at March Term, 1918, of Eobsyth.

ActioN, beard by Adams, J., upon a case agreed, at September Term, 1918, of RICHMOND. On 17 June, 1868, Mrs. Harriet H. Strong executed and delivered ber deed to John H. Williamson, busband of Pbebe Williamson, conveying tbe undivided one-balf of all tbe property, real, personal and mixed, wbicb belonged to tbe grantor as beir at law, devisee and dis-tributee of Henry W. Harrington, except tbe annuity settled upon tbe grantor by tbe will of Henry W. Harrington.

AotioN, tried before Harding, J., at May Term, 1918, of RiciimoND.

<p>ActioN, tried before Shaw, J., at February- Term, 1918, of Rocking-ham.</p> <p>At conclusion of tbe evidence of plaintiff a motion to nonsuit was sustained. Plaintiff appealed.</p>

PaktitioN PROCEEDING begun before tbe Clerk of tbe Superior Court of Richmond. Tbe defendant, Mrs. Mae Hinson, pleaded sole seisin. Whereupon tbe cause was transferred to term and tried July, 1918, before Adams, J., upon these issues: 1. Was tbe deed from A. W. Porter to Mae Hinson Porter executed, delivered, and recorded prior to 28 April, 1914? Answer: “Yes. 2.

ActioN, tried before Harding, J., at May Term, 1918, of Richmond. The cause was beard upon an agreed state of facts. From tbe judgment rendered plaintiffs appealed.

ActioN, tried before Adams, J., at August Term, 1918, of Union, upon these issues: 1. Did the relation of master and servant exist between defendant and the deceased at the time of the injury and death, as alleged in the - complaint? Answer: “Yes.” 2. Was the death of the plaintiff’s intestate caused by the negligence of the defendant, as alleged in the complaint? Answer: “Yes.” 3.

ActioN to recover a parcel of land, tried before Ilarding, J., and a jury, at February Term, 1918, of Moose. Tbe plaintiff, admitted to have been the owner of the lot, sued to recover same.

Appeal by plaintiff from Adams, Jat July Term, 1918, of UNION. This was an action to enjoin the erection of a cotton gin in Monroe upon the ground that it was in violation of a contract between the plaintiff and the defendant J. T. Shute. In May, 1916, J. R. Shute, the plaintiff entered into a contract with J. T. Shute, his brother, who, with his son, J. E. Shute, are the defendants.

Appeal by plaintiff from Show, J., at July Term, 1918, of DavtosoN. This was an action for the death of plaintiff’s intestate by an electric shock at the Chero-Cola plant at Lexington, N. C., on 25 June, 1917. Verdict and judgment for defendant. Appeal by plaintiff.

<p>Appeal by defendant from Harding, J., at May Term, 1918, of UNION.</p>

Appeal by defendant from Long, J., at April Term, 1918, of Gastok.

<p>1. Parent and Child — Seduction of Child — Rape of Child — Loss of Services— Measure of Damages — Mental Anguish.</p> <p>The recovery of damages allowed the father against one who has debauched his daughter grows out of the relationship of master and servant for loss of services; but in the relationship of father, he may recover for mental suffering and anguish caused by his humiliation and sense of dishonor and for expenses incurred, and also punitive damages.</p> <p>2. Parent and Child — Rape of Child — Seduction of Child — Age—Parties— Constitutional Law — Feigned Issues — Statutes.</p> <p>Damages may be recovered by the father- against one who has debauched his daughter under twenty-one years of age, but if over that age she must sue in her own right under the provisions of our Constitution abolishing feigned issues and our statute requiring that actions be brought by the real party in interest. Revisal, sec. 400.</p> <p>3. Parent and Child — Rape of Child — Seduction of Child — Age—Burden of Proof — Trials.</p> <p>The right of action of the father against one who has debauched his daughter depending upon whether or not she had reached the age of twenty-one, and also this fact being peculiarly within his own knowledge, the burden is on him to show that at the time in question she was under age.</p> <p>4. Appeal and Error — Harmless Error — Rape of Child — Seduction of Child— Age.</p> <p>AVhere it appears, in an action brought by the father to recover damages against one for debauching his daughter,' that the case has been tried below upon the contentions only as to whether the daughter was twenty years of age at the time or only eighteen years, a charge of the court to the jury erroneously placing upon the defendant the burden of showing the woman’s age is harmless and will not entitle the defendant to a new trial.</p> <p>5. Parent and Child — Seduction of Child — Rape—Force—Loss of Services— Actions.</p> <p>It is not necessary to the father’s action against one who has debauched his daughter under the age of twenty-one that the intercourse should have been induced by the defendant’s solicitation, force being in aggravation of the damages allowed; and upon the birth of a child in consequence, the loss of her services will be presumed.</p> <p>6. Evidence — Character—Particular Acts.</p> <p>Evidence as to particular acts of misconduct is properly excluded on the question of the general character of a party to the action; in this case, whether the plaintiff in an action for damages for debauching his daughter had the reputation of selling whiskey in violation of law.</p> <p>7. Appeal and Error — Excluded Answers — Prejudice.</p> <p>It must be shown on appeal that excluded answers to questions were prejudicial in order to constitute reversible error.</p> <p>8. Courts — Supreme Court — Newly Discovered Evidence — Motions Denied— Opinions.</p> <p>Motions made for a new. trial in the Supreme Court, upon insufficient newly discovered evidence will be denied without giving an opinion.</p>

<p>1. Partition — Heirs at Law — Denial of Title — Evidence of Title — Dower— Judgment Roll.</p> <p>Where proceedings to partition lands of the deceased father are brought by his children and heirs at law, and one of them denies the title to have been in the father, but claims it adversely in himself, and the cause has been transferred and is being tried in the Superior Court, the judgment roll in the proceedings for dower theretofore terminated is competent as a quasi admission or evidence in contradiction of the adverse claim, when it therein appears that the widow alleged title in the deceased, which was not denied by the present adverse claimant, though a party to the proceedings.</p> <p>2. Same — Adverse Possession.</p> <p>Where in proceedings to partition lands among the children and heirs at law of the deceased father one of them denies the source of title and claims it adversely in himself, the judgment roll in the petition for dower alleging title in the deceased, and the widow’s possession thereunder, is competent as evidence to show the character of the widow’s possession, which may be tacked to the possession of her husband when sufficient with the other evidence of adverse possession to perfect the title in the heirs.</p> <p>3. Evidence — Deeds and Conveyances — Lost Deeds — Notice.</p> <p>Parol evidence of the contents of a lost deed in the chain of a controverted title is properly admitted when the proper notice to the adversary party has been given to produce it and the evidence shows that it was last in his possession.</p> <p>4. Evidence — Adverse Possession — State’s Grants.</p> <p>Only the State’s vacant and unappropriated lands are subject to entry, and where a party to an action involving title to lands claims that he held adversely at a certain date, evidence of- a more recent entry of the lands in dispute is competent to contradict him.</p> <p>5. Statutes — Presumptions—Title—Prospective Effect.</p> <p>The statutory presumption of chapter 195, Laws 1917, that the disputed title to lands is out of the State unless the State is a party or the trial is of a protested entry, was effective, by the express terms of the statute, from 1 May, 1917, and has no application to this action theretofore commenced.</p> <p>6. Limitation of Actions — Adverse Possession — State Title — Evidence — Nonsuit — Questions for Jury — Trials.</p> <p>There being evidence of the adverse possession of a party to this action, involving the title to land, for more than thirty years, it is held sufficient to take the title out of the State and ripen his own title, and a motion for judgment as of nonsuit thereon was properly refused.</p>

Appeal by defendant from Harding, J., at the May Term, 1918, of UNION. Tbis is an action by Joe Hudson, administrator of James Hudson, ■deceased, to recover damages for tbe benefit of the minor children of his intestate, under the Federal Employers’ Liability Act, on account of the negligent killing of said intestate by the defendant railway company.

ActioN, tried before Harding, J., and a jury, at April Term, 1918', of Scotland. Tbe action was to recover a Franklin automobile for tbe purpose of enforcing a mechanic’s lien thereon for repairs, under section 2017, Revisal.

<p>AotioN, tried before Webb, J., and a jury, at October Term, 1918, of Mecklenburg.</p> <p>The action was to recover damages of defendant for alleged wrongful failure to ship six carloads of lumber from defendant’s mills at Lum-berton, N. C., pursuant to a contract between the parties. On denial of liability and issues submitted, there was verdict for defendant. Judgment; plaintiff excepted and appealed.</p>

<p>1. Deeds and Conveyances — Lands—Covenant—Actions—Ouster.</p> <p>To sustain an action for breach of covenant of warranty in a deed to lands it is necessary to allege and show an ouster or eviction by title paramount to that acquired under the deed.</p> <p>2. Husband and Wife — Mortgages—Foreclosure—Tenant by the Curtesy— Husband a Purchaser — Title.</p> <p>Where a husband and his wife have given a deed in- trust to secure an endorser on their joint note to a bank, and upon default in payment, after the death of the wife, the trustee forecloses, and it appears that there were children of the marriage born alive capable of inheriting, the husband has a life estate in the land as tenant by the curtesy, and he may become the purchaser at the sale to the extent necessary to protect his own interest, and upon the payment of the purchase price acquire a good title when there is no suggestion of fraud or unfair dealing in the transaction.</p> <p>3. Bills and Notes — Husband and Wife — Joint Makers — Accommodation— Endorser — Liability.</p> <p>Where a husband and wife are joint makers of a note, their liability, as between themselves, is one-half of the full amount, nothing else appearing, though as between them and the payee or an accommodation endorser it is in the total amount of the obligation.</p>

<p>Evidence — Federal Records — Certified Copies — Statutes—Distiller’s Bonds— Principal and Surety.</p> <p>Under the Federal statutes, a distiller and tbe surety on bis bond are made liable for all taxes and penalties imposed, when tbe taxes bave not been duly paid by stamps, at tbe time and in tbe manner provided by law, as determined by tbe Commissioner of Internal Revenue and tbe assessment lists certified to the proper collectors, etc. In an action by the surety against the distiller to recover a penalty tbe former had paid on demand without notifying tbe latter, it is Held, that a- certified copy of the assessment lists on record in a public office or department of the government was tbe best evidence of their contents, under tbe provisions of our statutes, and that parol evidence thereof is improperly admitted,, constituting reversible error, to tbe defendant’s prejudice.</p>

ActioN, tried before Webb, J., and a jury, at January Term, 1918, of Gaston. Tbe action was brought to recover damages for failure to deliver-fertilizers for tbe fall season 1915, under a contract for tbe purchase-of the same. Tbe jury found (1) that the contract was made; (2) that there was a breach of it, and (3) assessed the damages at one cent. Judgment upon the verdict for the plaintiff and both parties appealed..

ActioN, tried before Long, J., at June Term, 1918, of Meciclenbueg. These issues were submitted: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: “Yes.” 2. Did the plaintiff, by any negligence on his own part, contribute to his injury, as alleged in the answer? Answer: “Yes.” 3. Notwithstanding any negligence of the plaintiff, could the defendant, by the exercise of ordinary care, have prevented the injury to the plaintiff?

ActioN, tried before Ilarding, at June Term, 1918, of Scotland, upon tbis issue: 1. Is defendant indebted to plaintiff, and if so, in wbat amount? Answer: “$2,000, with interest from 10 January, 1912.” From the judgment rendered defendant appealed.

Th-is is an appeal by defendants from tbe order of Stacy, J., continuing to tbe bearing a restraining order against tbe defendants allowing tbeir live-stock to run at large in Pender County, wbicb was beard by consent of all parties at Wilmington, 8 July, 1918.

<p>1. Husband and Wife — Deeds and Conveyances — Separate Estate — Purchase of Lands — Resulting Trusts — Tenant by the Curtesy — Descent and Distribution — Devise—Constitutional Law.</p> <p>When land is purchased by the wife with money belonging to her separate estate, with conveyance to the husband and wife by entirety, it is not a gift by the wife to her husband of her personal property, and, though thus conveyed at her request, creates a resulting trust in the lands in her favor; and after her death, in the absence of devise (Constitution, Art. X, see. 6), the husband, as tenant by the curtesy, acquires a life interest therein, and upon his death the land descends to the heirs at law of the wife, a child of the marriage, in the present instance.</p> <p>2. Husband and Wife — Deeds and Conveyances — Separate Estate — Justices of the Peace — Certificates—Statutes—Probate.</p> <p>Where land, purchased with the wife’s separate estate, has been conveyed to the husband and wife, the conveyance, if otherwise sufficient to apply the law of jus aecrescencli, would be inoperative to do so upon the failure of the justice of the peace to mate the certificate required by Revisal, see. 2107.</p> <p>Allen, J., concurs in result.</p>

Appeal by plaintiff from Bond, J., at June Term, 1918, of Durham:. ' This is an action for damages from being run into and knocked down by defendant’s automobile while attempting to cross Main Street near the business center of Durham.

Action- beard upon demurrer to complaint by Webb, J., at May Term,, 1918, of Iredell. Tbe court sustained tbe demurrer and dismissed tbe action. Plaintiff appealed.

<p>1. Appeal and Error — Objections and Exceptions — Evidence—Ground of Exception — Statement by Court.</p> <p>Upon the trial of an action to recover lands, there was evidence that the father of the plaintiffs, A., and the defendant, S., took the lands by devise from their father, with provisions that they should care for their mother until lier death; that A. moved West after the death of his father, and that S. remained with his mother until her death. S. offered to show by his witness the declarations of A. before he moved away, which were excluded by the judge, under his statement that they were incompetent if for the purpose of proving a conveyance of the land: Held, the evidence for that purpose was incompetent, and it devolved upon the defendant to state any other ground upon which he had offered it, if any he had, for his exception to have consideration thereon.</p> <p>2. Appeal and Error — Objections and Exceptions — Unanswered Questions — ■ Record.</p> <p>Exception to the exclusion of questions asked a witness upon the trial must show, in some proper way, the relevancy and bearing the expected answers would have on the controversy, so that the Supreme Court may determine whether the appellant has been prejudiced, or the exception will not be considered.</p> <p>3. Limitation of Actions — Title — Adverse Possession — Tax Lists — Admissions — Evidence.</p> <p>The original tax list offered on defendant’s cross-examination, over his signature, which fact he admitted, showing that the land in controversy had been listed by him in the name of plaintiff’s ancestor, under whom they claim, within a shorter period than twenty years, is evidence against the defendant’s claim of title by adverse possession for the twenty-year period.</p>

ActioN, tried before Cline, J., at February Term, 1918, of Caldwell. A jury trial being waived, tbe court found tbe facts and rendered judgment for $80 for plaintiff. Appeal by defendant.

PetitioN for dower, beard on exceptions and appeal from tbe clerk by Webb, J., at May Term, 1918, of Rowan. Tbe judge sustained tbe exceptions and reversed tbe judgment of tbe ■clerk. Plaintiff appealed.

Appeal by defendant from Webb, J., at April Term, 1918, of Oa-BARRTIS.

<p>1. Trusts and Trustees — Creditors—Reconveyance of Trust Estate — Notice.</p> <p>A grantor of lands in trust for creditors, to pay oft all outstanding mortgages and encumbrances, and all other debts and obligations, who takes a reconveyance of the land under an erroneous recitation in the deed of the trustee that the trusts have been fully administered, is, notwithstanding, fixed with notice of an outstanding obligation, especially when coming within the terms of the trust deed, at the time of the reconveyance, a party defendant to an action to recover it.</p> <p>2. Same — Payment—Burden of Proof.</p> <p>Where a trustee in a deed conveying lands to pay the grantor’s creditors endorses on a note theretofore given by the debtor that it was secured by the trust deed, and, pending an action for the foreclosure of the deed in trust, reconveys the land to the grantor, erroneously reciting the full administration and discharge of his trust, in an action upon the note, the burden of proving payment is upon him.</p> <p>3. Trusts and Trustees — Reconveyance of Trust Estate — Admission of Funds — Notice—Burden of Proof.</p> <p>Where the trustee in a deed to lands for the benefit of creditors recon-veys the land to the trustor, reciting that the trusts therein have been fully performed, the trustee’s recitation in his deed is evidence that he has some funds out of which to pay the trustor’s debts remaining unpaid, and the grantee in the reconveyance is bound by its terms, and the burden of his plea of payment is upon him.</p> <p>4. Limitation of Actions — Bills and Notes — Administrators—Statutes.</p> <p>Where the maker of a note has died before the statute of limitations has run thereon, the payee may institute his action within one year after the issuing of letters testamentary, provided such letters were issued within ten years after the death of the debtor, Revisal, see. 367, being an enabling statute; and where the note has not been barred, the foreclosure of a deed in trust, securing it, may be ordered. Revisal, sec. 391 (3).</p> <p>5. Statute of Frauds — Pleadings.</p> <p>The defendant cannot successfully avail himself of the statute of fraud when he neither denies the debt or pleads the statute.</p> <p>6. Statute of Frauds — Bills and Notes — Prior Indebtedness — Trusts and Trustees — Writing.</p> <p>A note given for the payment of a debt existing prior to, .but secured by the deed in trust for the benefit of creditors, is in recognition of the old debt,- and not a novation, and the transaction is within the intent of the statute of frauds requiring that contracts concerning lands, etc., shall be in writing.</p> <p>7. Trusts and Trustees — Deeds and Conveyances — Trust Estate — Reconveyance — Beneficiaries—Creditors—Consent—Foreclosure.</p> <p>A trustee in a deed conveying lands to secure the grantor’s creditors cannot reconvey the lands to the trustor, free from the trusts imposed, except with the consent of the beneficiary; and the beneficiary may maintain his suit to foreclose upon tile lands as the real party in interest.'</p> <p>8. Statute of Limitations — Nonsuit—Administration—Statutes.</p> <p>Where Kevisal, sec. 367, relating to the time of bringing an action on a note within a year after letters of administration granted, if within ten years from the death of deceased maker, and section 391 (3), relating to the foreclose of the security for the note, apply, their provisions are not affected by the fact that additional parties to the action, ordered by the Supreme Court, had not been made before a succeeding term of the Superior Court, and the judge had thereupon ordered a discontinuance of the action, from which there was no appeal.</p>

<p>1. Insurance, Fire — Denial of Liability — Proof of Loss — Waiver. .</p> <p>Tbe insurer’s denial of liability upon its fire insurance policy is a waiver of its right to require tbe proof of loss therein specified.</p> <p>2. Insurance, Fire — Title — Encumbrances — Payment — Evidence—One Inference, Verdict Directing — Instructions.</p> <p>Where the policy of fire insurance specifies that the title to the property destroyed is in the insured, testimony of the insured that there had been a chattel mortgage thereon, but it had been paid off and discharged before the issuance of the policy, permits but one inference to be drawn, if found to be true by the jury, and an instruction to that effect is a correct one.</p>

<p>Appeal by plaintiff from Gline, J., at July Term, 1918, of Mitchell.</p>

<p>1. Husband and Wife — Wife’s Separate Property — Deeds and Conveyances— Probate — Statutes—Adverse Possession — Equity—Cloud on Title.</p> <p>Where tbe wife conveys her separate.realty to her husband under a deed void for failure of compliance with Revisal, see. 2107, as to the execution and probate of the wife’s deed, the living thereon of the husband and wife until his death, and her continuing thereon thereafter, affords no evidence that he obtained and held the lands adversely to her, and a deed subsequently made by her to another cannot be considered as a cloud upon the title to the lands of the husband’s heirs at law.</p> <p>2. Husband and Wife — Wills—Wife’s Separate Property — Deeds and Conveyances — Void Deed — Statute—Election—Estoppel.</p> <p>A wife is not estopped by tailing under her husband’s will to deny the validity of her deed conveying to him her separate realty, void for noncompliance with Revisal, see. 2107, when there is nothing definite in the will to show that he was attempting to devise her separate realty or to put her to her election, and the devise to the wife was evidently in lieu of the year’s provision and dower.</p> <p>3. Husband and Wife — Wife’s Separate Property — Deeds and Conveyances— Void Deeds — Evidence—Declarations.</p> <p>Oral declarations of the wife are incompetent to give validity to her deed to her husband of her separate realty, which is void for noncompliance with the Revisal, sec. 2107.</p> <p>4. Husband and Wife — Wife’s Separate Property — Deeds and Conveyances— Probate — Statutes—Void Deeds — Adverse Possession — Title.</p> <p>There is no presumption of ouster or of adverse possession in favor of the husband having children of the marriage, upon evidence tending to show that he lived with his wife on her separate realty during their joint lives, such as to ripen title in him under her void deed, made without compliance with Revisal, see. 2107, regarding the execution and probate of the wife in such instances, a stricter degree of proof being required in such relationship.</p>

• ActioN, tried before Bond, Jand a jury, at March Civil Term, 1918, of Dubham. Plaintiff, owning a tract of land on Ellerbee Creek, in said county, in 1917, sued for damages thereto done by defendant in wrongfully dumping raw sewage into said creek, creating a nuisance and causing substantial injury to same, and also in the negligent operating of its septic tank and disposal plant used in connection with the sewage system of the city.

<p>1. Taxation — School Districts — Elections—Constitutional Law.</p> <p>The taxing of a statutory special school district is not for a necessary-expense and falls within the provision of our Constitution, Art. VII, sec. 7, requiring the approval of a majority of the qualified voters therein.</p> <p>2. Elections — Qualified Voter- — -Majority Vote — School Districts.</p> <p>One who is qualified to vote at an election to establish a statutory special school district, requiring the levy of a tax, must be duly registered pursuant to law and having the present right to vote; and the requirement that the measure shall be carried by a “majority of the qualified voters,” by correct interpretation, signifies a majority of the qualified voters of the district appearing upon the registration book, and not a majority of those voting in the election.</p> <p>3. School Districts — Statutes—Requirements—Interpretation.</p> <p>A special school district may not be formed under the provisions of our statutes if the proposed district has less than 65 children of school age, unless the same shall contain 12 square miles of territory, etc.; and where it has ■ been properly established that the extent of the proposed area meets the requirement of the statute, the provision as to the number of children of the school age, within the district, becomes immateriál.</p> <p>4. Elections — Qualified Voter — Poll Tax.</p> <p>A voter within a proposed special school district who has not paid his poll tax is disqualified to vote at the election called for determining the question submitted.</p> <p>5. Elections — Registration—Registrar—Erasing Names — Request of Voter— Statutes.</p> <p>When one who is qualified to vote at an election upon the question of establishing a statutory special school tax district has duly registered according to law, the registrar is without authority to erase his name from the registration book, at his request, the registration book being in the nature of a public record, which may not be changed, except by some method provided by law; the power to order a new registration or revise the “polling book” of voting precincts being conferred by statute on the county board of elections. Gregory’s Supplement, sec. 4305.</p> <p>6. Taxation — Injunction—Majority Vote.</p> <p>Where it appears from the trial of the action upon its merits that the proposition to establish a special school-tax district has been carried by a majority of one vote, ascertained only after the registrar had improperly erased the name of a voter from the registration book, the restraining order theretofore granted should be made permanent.</p>

ActioN, tried before Webb, J., and a jury, at April Term, 1918, of CABARRUS. Tbe action was to recover damages for an injury arising from an alleged negligent derailment of a gasoline car, termed a speeder, operated at tbe time on defendant’s road at Baden, N. 0., and by wbicb an employee of defendant, being carried to bis work, was thrown forward on tbe track and run over and received painful, serious, and permanent physical injury.

ActioN, tried before Webb, J., and a jury, at March Term, 1918, of Randolph.

ActioN, tried before Long, J., and a jury, at July Term, 1918, of Ieedbll. This action was brought (with claim and delivery) for a lot of lumber. Plaintiff contracted to sell tbe defendant a lot of poplar lumber at $21 per thousand, delivered, subject to the measurement of the defendant. . There was nothing said as to when the payment was to be made. The defendant hurried plaintiff to get the lumber to its plant.

Brown and Allen, JJ., concurring, with opinion; Clark, C. J., dissenting opinion. Actiow, tried before Daniels, J., 27 August, 1918, at chambers, upon a motion to continue an injunction.

<p>1. Banks and Banking — Bills and Notes — Ultra Vires Acts — Statutes— Inland Bills — Drafts—Negotiable Instruments.</p> <p>Where a draft drawn to the maker’s order and, having been endorsed by another, is accepted at a bank, and then purchased, in due course, before maturity, by an innocent purchaser for value, the bank may not resist payment upon the ground that the transaction was ultra vires, and not within the authority of its charter, authorizing it to accept bills, notes, commercial paper, etc., for it comes within the statutory definition of an inland bill of exchange, Revisal, secs. 2276, 2279, and may be treated as a bill or note, at the option of the holder.</p> <p>2. Banks and Banking — Bills and Notes — Ultra. Vires Acts — Due Course.</p> <p>The purchase by a bank of a draft drawn to the maker’s order and endorsed by another is not foreign to the purposes of its charter authorizing it to accept bills, notes and other negotiable paper, conceding it not to be within the powers expressly conferred, and the bank is liable thereon to its innocent purchaser for value.</p> <p>3. Banks and Banking — Bills and Notes — Ultra Vires Acts — Consideration— Retained — Due Course — Innocent Purchaser.</p> <p>The defense of ultra vires by a bank to its liability upon a draft payable to the maker’s order, sold to an innocent third person for value, where the bank has retained the purchase money, without offer to restore it, is untenable, there being nothing in the transaction that is either illegal or against public policy.</p>

Appeal by defendant from Long, J., at tbe Second April Term, 1918, of MECKLENBURG. This is. an action to recover damages for personal injury caused, as is alleged, by tbe negligence of tbe defendant. Defendant owns and operates a line of interurban electric railway between Charlotte and Gastonia, via Ehynes Station, a regular stop.

Appeal by defendant from Connor, J., at the February Term, 1918, of CUMBERLAND. This is an ¿ction to recover the amount due the plaintiff as the ward of John C. Gorham against the defendant, the surety on the guardian bond.

Appeal by defendant from Cline, J., at the May Term, 1918, of Caldwell. This is an action to recover judgment against the defendant George as endorser of certain checks of Sidney Spitzer & Co. aggregating $1,900 and as drawer of one cheek for $1-,100. A jury trial was waived and the court found the facts and announced certain conclusions of law as follows: 1.

Appeal by caveator from Long, J., at tbe September Term, 1918, of EowaN. This is a caveat to a paper-writing offered for probate as tbe will of J. N. Ledford upon tbe ground of mental incapacity on tbe part of tbe said Ledford, and tbat tbe paper-writing offered for probate is a letter and not a will. Tbe issue of mental incapacity was found in favor of tbe propounders, and there is no exception thereto. The paper-writing offered for probate is as follows: Me.

Appeal by defendant from Harding, J., at the May Term, 1918, of UNION. This is an action to recover $200, commenced before a justice of the peace and tried in the Superior Court on appeal on an agreed statement of facts.

<p>1. Parent and Child — Contract — Services Rendered — Implied Promise to Pay — Son-in-Law.</p> <p>Services rendered by a child to his parent while living as a member of the family, including the relationship of son-in-law, are presumed to be gratuitous, and no recovery can be had therefor, in the absence of an express contract, ■ when nothing appears except the relationship and the performance of the services; but, under certain circumstances, the jury may find as a fact an intent on the one part to charge and on the other to pay for the services rendered, whereupon the law will imply a contract to pay for their reasonable value.</p> <p>2. Same — Reference—Findings—Evidence—Intent.</p> <p>Where, upon the evidence, a referee has found as a fact that services rendered to a father by his daughter and her husband while living with him as members of his family were rendered and received in such manner and under such circumstances as created an implied contract to pay what they were reasonably worth: Held, the finding is sufficient and will be upheld; and the intent, though, not appreciable to the senses, or announced, may be inferred from the circumstances; and the evidence thereof, in this case, is held to be sufficient.</p> <p>3. Parties — Parent and Child — Son-in-Law — Contracts — Assignment of Right — Judgments.</p> <p>Where the daughter and son-in-law have a valid claim against the father for services rendered him while living as a member of his family, and the daughter assigns her claim to her husband, who sues alone, though his recovery is sustained, yet she should have become a party to ' the action, in order that she may be bound by the judgment.</p>

<p>1. Contracts — Breach—“Liquidated Damages” — Interpretation.</p> <p>While a stipulation for “liquidated damages” for the breach of a contract may be enforcible in the amount stated, in proper instances, the mere use of this expression by the parties to the contract does not necessarily control, for the true intent and meaning of the contract must be determined by a proper consideration of the instrument as a whole the situation of the parties, the subject-matter of the contract and of all the circumstances surrounding its execution.</p> <p>2. Same — Penalty.</p> <p>Where the nature and terms of a contract and the conditions- and circumstances relevant to its interpretation afford sufficient data for a definite and satisfactory estimate of the damages which may arise from its breach, the fixing of them in an amount stated in the contract, designating them as “liquidated damages,” does not of itself control the interpretation, the tendency of the courts being to regard these stipulations as in the nature of a penalty, and to uphold the fundamental principal of just compensation wherever there is such a marked disproportion between the amounts fixed upon and the damages likely to arise as to render them arbitrarily unreasonable or oppressive or likely to become so in the course of adjustment, without reference to the actual loss sustained.</p> <p>3. Same — Pleadings—Judgments—Default and Inquiry.</p> <p>In an action upon a bond to secure the defendant’s performance of the remaining portion of the plaintiff’s contract, covering a term of years, for carrying government mail, as sublessee, with the approval of the government, the contract sued on stipulated a certain amount as “liquidated damages,” to be recovered upon its breach by the defendant: Held,, by a proper interpretation of the contract, the stated amount was in the nature of a penalty, within which a recovery for actual damages may be had upon its breach, the same being of a nature to be readily ascertained or determined upon; and a final judgment by default for the want of an answer was improperly entered, the proper one being- by default and inquiry.</p>

<p>ActioN to enforce specific performance of a contract to sell timber, tried before Long, J., and a jury, at July Term, 1918, of Eandolph.</p> <p>There .were facts in evidence tending to show that on 18 June, 1918, J. C. and ~W. M. Bescher, two tenants in common in a tract of land, entered into a written contract, under seal, giving plaintiff Thomason the option to purchase the timber thereon, at $6,000, within sixty days, or by 18 August, 1917, the said contract being in terms as follows:</p> <p>“Know all men by these presents, that in consideration of the sum of one dollar to us in hand paid by C. E. Thomason, of Davidson County, N. C., the receipt of which, is hereby acknowledged, we, J. O. and W. M. Bescher, do hereby contract and agree with said C. E. Thomason to sell and convey unto said C. E. Thomason and his heirs and assigns all that certain tract or parcel of timber and roads over land, with sawmill sites, situate, lying and being in Concord Township, Randolph County, adjoining the lands of B. M. Pierce and others, and known as the John S. Bescher place, and containing 715 acres, more' or less, and that we will execute and deliver to said C. E. Thomason and his heirs and assigns, at his or their request, on or before 18 August, 1917, a good and sufficient deed for the said timber and roads and mill sites with full covenants and warranty, provided and upon condition, nevertheless, that the said 0. E. Thomason, his heirs and assigns, pay us or our representatives or assigns the sum of $6,000 in cash, or equivalent, it is understood and agreed that the said sale is to be made at the option of the said C. E. Thomason or his heirs or assigns, to be exercised on or before 18 August, 1917.</p> <p>“And it is further understood and agreed that if the said C. E. Thom-ason and his heirs and assigns shall not demand of us the deed herein provided for and tender payment as herein provided for and on or before said 18 August, 1917, then this agreement is to be null and void, and we are*to be at liberty to dispose of the timber to any other person or to use it as we may desire in the same manner as if this contract had never been made; but otherwise this contract is to remain in full force and-eifect.</p> <p>“And to the true and faithful performance of this agreement we do hereby bind myself and my heirs, executors, administrators and assigns.</p> <p>“Witness our hands and seals, this 18 June, 1917. All old-field pine is hereby excepted, all other included.”</p> <p>Coplaintiff J. E. Curry having acquired one-half interest in said contract prior to institution of suit. That prior to 23 June, 1917, plaintiff Thomason, then holding the contract, notified one of the defendants that he would take the timber, etc.' . . . That plaintiff tendered the purchase price on 7 August, 1917, and had always been ready and willing to pay it. There was denial of obligation on the part of defendants, with evidence tending to show that before any acceptance or notice thereof defendants had, in writing, notified plaintiffs that they elected to terminate the contract.</p> <p>On issues submitted, the jury rendered the following verdict:</p> <p>1. At the time of the execution of the option on 18 June, 1917, and as a consideration therefor, did the plaintiff C. E. Thomason pay the one dollar to the defendants, as recited in the said option? Answer: “No.”</p> <p>2. Did the plaintiffs thereafter notify the defendants, or either of tbem, and prior to 23 June, 1917, that they would take the timber, roads and mill sites, under the terms of the said option set up in the complaint and would be down the following week to pay the price and take the deed therefor? Answrer: “Yes.”</p> <p>3. Were the plaintiffs at all times able and willing to pay the purchase price of $6,000 for the property, as recited in the option, in event deed was made therefor? Answer: “Yes.”</p> <p>4. Did the defendants on 23 June, 1917, serve the plaintiffs with the following notice: “This is to notify you that the option given you on your timber, Eandolph County, on Monday, the 18th of June, is withdrawn and we will not convey the timber according to its terms”? Answer': “Yes.”</p> <p>Judgment on verdict for plaintiff, and defendant excepted and appealed. y</p>

ActioN, tried before Cline, J., and a jury, at July Term, 1918, of Catawba. The action is to recover on an alleged open and running account, extending through the years 1906-13,’ and showing a balance due on statement rendered of $286.95, for which suit is brought.

ActioN, tried before Justice, J., and a jury, at March Term, 1918, of YaNCEY.

<p>1. Pleadings — Defense—Counterclaim—Judgment.</p> <p>In an action to recover a balance of the purchase price of lands, allegations in the complaint that the lands were sold as a known tract at a certain price for tlie whole, which was denied by the answer, alleging the price was by the acre, overpayment, and claiming the amount thereof: Held, the matters alleged in the answer were those in defense, not requiring a replication in denial, and motion for judgment upon the pleadings for a counterclaim because not denied, or a requested instruction to that effect, was properly refused.</p> <p>2. Contracts, Written — Lands—Parol Evidence — Contradiction.</p> <p>A written contract for the sale of a known, designated and described tract of land, “containing about” a certain number of acres, at a fixed price, is not for the sale of the land by the acre, and excludes the admission of parol evidence to that effect, in the absence of fraud.</p> <p>3. Contracts, Written — Evidence—Fraud—Misrepresentations—Mutual Mistake — Pleadings.</p> <p>Where parol evidence is sought to vary the terms of a written contract for the sale of lands, as tending to show that the designated tract was sold by the acre, allegation with evidence that the vendor, or his agent, had represented that the land contained a larger acreage than that specified “before, at and after” the transaction, is not sufficient upon the question of fraud or mutual mistake.</p> <p>4. Contracts, Written — Pleadings—Fraud.</p> <p>To set aside a written instrument for the sale of lands for fraud, it is necessary for the complaint to allege an intent to defraud and deceive, with the facts necessary to constitute them, and that advantage had been taken thereof.</p> <p>5. Instructions, Verdict Directing — Written Contracts — Parol Evidence.</p> <p>Where a written contract is alleged and sued on, without allegation or evidence of fraud, and the evidence sought to be introduced only tended to vary the admitted writing, an instruction by the court that if the jury believed the evidence, to answer the issues in the plaintiff’s favor, is a proper one.</p>

ActioN, tried before Ilarding, J., at June Term, 1918, of Scotland, upon this issue: Is plaintiff tbe owner of tbe lands described in complaint, or any part thereof; if so, what part? Answer: “No.” From tbe judgment rendered plaintiff appealed.

<p>1. Master and Servant — Employer and Employee — Physician — Unskillful Services — Negligence—Consideration—Damages.</p> <p>An employer who furnishes medical treatment, when required, to his employees, upon an assessment plan to meet the expenses thereof, is required to exercise due care in the selection of the physician and in continuing him in its service, and, upon its failure to do so, is responsible in damages to an employee caused by his incompetency.</p> <p>2. Same — Evidence.</p> <p>Where the employer is liable in damages for the unskillful treatment of an incompetent physician it had engaged for its employee, testimony of other physicians that an operation by him was unskillfully performed on an employee entitled to such services, and that the patient thereby suffered injury, tends to prove the incompeteney of the physician employed.</p> <p>3. Same — Knowledge—Notice—Inquiry—Assurance.</p> <p>Where there is evidence that an employee of defendant had complained to the defendant that a physician the latter had engaged to attend to its employees when in need of medical care was incompetent, and thereafter sues to recover damages for unskillful medical treatment at his hands, under assurance by the employer, at .the time, of the competency of the physician: Held, evidence sufficient to show that the defendant knew, or was put upon reasonable inquiry, of the incompetency of the physician, and that the employee relied upon the assurance of his employer in submitting to the operation, which he had the right to do.</p>

ActioN, tried before Cline, J., and a jury, at March Term, 1918, of WlLKES.

ActioN, tried before Cline, J., and a jury, at July Term, 1918, of Catawba. The action was brought by the plaintiff to recover damages of the defendant on account of an alleged fraud of the agents of the Greensboro Life Insurance Company.

ActioN, tried before Adams, J., and a jury, at March Term, 1918, of Guilkord.

ActioN, tried before McElroy, J., and a jury, at August Term, 1918, of Buncombe.

<p>Appeal by defendant from Cline, J., at tbe June Special Term, 1918, of' A VERY.</p> <p>This is an action on a fire insurance policy, the property burned being a storehouse.</p> <p>The defendant denied liability ánd set up the special defenses that the plaintiff was not the sole and unconditional owner of the property at the time the policy was issued, and that he failed to make proof of loss within sixty days after the fire, as required by the policy.</p> <p>There was a verdict and judgment for the plaintiff, and the defendant appealed, assigning the following errors:</p> <p>First Exception: To the ruling of the court admitting in evidence the paper-writing dated 1 March, 1916, purporting to be a deed from the Lees-McRae Institute to the plaintiff, M. E. Proffitt, for that the said paper-writing had not been acknowledged at the date of the fire nor at the date of the institution of the action, and was insufficient to pass any title.</p> <p>Second Exception: To the ruling of the court in permitting the plaintiff to testify in regard to the contents of a letter claimed to have been written by plaintiff to defendant without requiring the production of said letter or without requiring plaintiff to show that notice had been served on defendant to produce same.</p> <p>Third Exception: To the ruling of the court in admitting in evidence two letters purporting to have been from Mr. Nash and Mr. Lowe without properly identifying either of them.</p> <p>Fourth Exception: To the ruling of the court in admitting in evidence a conversation purporting to have been between one Mr. Nash and the plaintiff in regard to the making proof of loss by fire of the property covered by the policy when the policy itself offered by the plaintiff provides how proof of loss shall be made, which is otherwise than the manner testified to by the plaintiff.</p> <p>Eifth Exception: To the ruling of the court in refusing to sustain defendant’s motion to nonsuit the plaintiff at the close of the evidence, for that, according to plaintiff’s evidence, he had not complied with the provisions of the policy in regard to making proof of loss, and had brought this action in violation of the terms of the contract.</p>

ActioN heard on return to preliminary restraining order, before Kerr, J., at February Term, 1918, of IIebteobd.

ActioN, tried before Kerr, J., at December Term, 1917, of Chowan, upon these issues: 1. Is the plaintiff the owner and entitled to the possession of that portion of the land described in the complaint which is enclosed within the lines 9, 8, 10, 5, 4, 11, 12, 13, and 1 to 9, on the map, or any part thereof; and if so, what part? Answer: “Yes; the whole of it.” 2. Has the defendant unlawfully trespassed upon the same, as alleged ? Answer: “Yes.” 3.

Appeal by plaintiffs from Daniels, J., at March Term, 1918, of Nash. This is an action to establish a resulting trust in a certain tract of land. The jury returned the following verdict: 1. Was any part of the purchase price of the 50-acre tract of- land conveyed by deed from W. E. Lamm and wife to Griffin H. Holloman paid by the said Griffin H. Holloman out of the individual funds of his wife, Ziney Holloman? Answer: Yes. 2.

Peocessioning proceeding, tried before Calvert, J., at Fall Term, 1917, of Pamlico, upon these issues: 1. Is tbe line marked on tbe map, 0, N, M, A, tbe true dividing line between tbe plaintiff, Lupton, and tbe defendant, Sawyer? Answer: No. 2. Is tbe line marked on tbe map, R, S, T, IT, V, W, K, A, tbe true dividing line between tbe plaintiff, Lupton, and tbe defendant, Sawyer? Answer: Yes. 3.

Action tried before Stacy, J., at June Term, 1918, of Wake, upon these issues: 1. Is tbe defendant, J. W. Tbomasson, indebted to tbe plaintiff? If so, in wbat amount? Answer: Yes, $272.70, plus $44.40, with interest from 1 November, 1915. 2. Was the signature of A. G-. Blanchard to the paper-writing referred to in the complaint obtained by the mutual mistake of the plaintiff’s agent, N. 0. Harris, and the defendant A. Gr. Blanchard, as alleged in the defendant’s answer?

Appeal by plaintiff from Kerr, J., at May Term, 1918, of WilsoN. This action began in the justice’s court to recover $150 rent for April, May, and June, 1917. There were no written pleadings, and there is no real controversy about tbe facts, which, are, that the plaintiff leased to the defendant a building for ten years, beginning 1 January, 1917.

Appeal by Sloan & Company from Calvert, J., at Fall Term, 1918, of SAMPSON. These were two actions, originally; the first action being entitled H. D. Sloan v. Cooper Guano Company and ~W. B. Cooper; the second action being entitled Cooper Guano Company v. H. D. Sloan. By consent, the two actions were consolidated and tried together.

ActioN tried before Bond, J., and a jury, at February Term, 1918, of Pasquotank.

Appeal by defendant from Adams, J., at February Term, 1918, of DatidsoN. This is an action against J. E. Workman, Jr., and Eoy & Shemwell, . for injuries to plaintiff’s horses in an automobile collision. The automobile was driven by Workman, and the collision occurred on the public road between Lexington and Thomasville, at night.

Appeal by defendant from Harding, J., at April Term, 1917, of SuRRY. Tbis is an action for a settlement of tbe estate of S. A. Hauser, in tbe bands of J. M. Hill, trustee, and to compel tbe said trustee to sell certain lands conveyed to bim by deed of assignment. Judgment was entered in favor of tbe plaintiff, and tbe defendants appealed.

Appeal by plaintiff from Bond, J., at April Term, 1918, of Dueham. This is an action to recover damages for'breach of a building contract.

Appeal by defendant from Bond, J., at May Criminal Term, 1918, of Dubham. The defendant was convicted as an accessory before the fact to the murder of her husband, Robert Jones, by one Lonnie Council. Council had been convicted, at a previous term, of murder in the first degree, and was in the State’s Prison at Raleigh, awaiting execution, at the time of the trial of the defendant herein.

Appeal by defendant from Lane, J., at July Term, 1918, of Forsyth. The prisoner was indicted for murder and convicted of murder in the second degree, and appealed.

INDICTMENT for murder, tried before Shaw, J., and a jury, at May Term, 1918, of Surky. Tbe prisoner was charged with tbe murder of Mrs. Alva Hester, which is alleged to have been committed in Forsyth County on 5 March, 1918. The case, upon motion and affidavit of the prisoner, was removed to Surry County for trial.

INDICTMENT tried before Calvert, J., and a jury, at May Term, 1918, of Lenoir. Defendants were indicted for tbe larceny of harness and other property. They were tried and convicted, and from the judgment upon the verdict they have appealed.

<p>I.' Criminal Law — Evidence—Bloodhounds.</p> <p>The action of bloodhounds may he received in evidence when 'it is shown that they have been accustomed to pursue the human track, have been found by experience reliable,in such cases, and that in the • particular instance they were put on the trail of the accused and pursued, and followed it under such circumstances and in such a way as to afford' substantial, assurance ór permit a reasonable inference of identification.-</p> <p>2. Same — Footprints—Identification.</p> <p>Evidence tliat trained and experienced bloodhounds had been put on the trail of the accused at the place he had been at work during the day; that they followed his tracks down the road a mile, passing other dwellings to his own, where he was found; that he protested his innocence without accusation; that the energy of the hounds then became passive or content, one of them placing its paw on overalls he admitted he had been wearing, and that there were particular marks on the bottom of the shoes of the accused which corresponded with the tracks which had been followed, both as to the markings and size and shape, is sufficient to be submitted to the jury upon the question of his guilt.</p> <p>3. Appeal and Error — Evidence—Prejudicial Error — Harmless Error.</p> <p>An unresponsive answer by a witness to a question, which could not have had appreciable significance on the result of the trial, will, not be held reversible error on appeal.</p>

INDICTMENT for murder, tried before Devin, J., at May Term, 1918, of Cumberland. Defendant was convicted and sentenced for murder in second degree, and appealed.

INDICTMENT tried before Daniels, J., and a jury, at June Term, 1918, of Nance. Defendant was indicted for tbe seduction of Myrtle West under promise of marriage. Sbe testified that tlie defendant, in July, 1917, had promised to marry her; that he had visited her frequently since the April before, and was accepted as her lover, and that in consequence of his promise to marry her she had yielded to his embraces and had committed the sexual act with him several times.

Appeal by defendant from Shaw, J., at May Term, 1918, of Rock-INGHAM. This is an indictment for manufacturing intoxicating liquors, and from tbe judgment pronounced upon a conviction tbe defendant appealed, assigning tbe following errors: 1. To tbe action of bis Honor in permitting tbe State to stand aside tbe juror, J. M. Roberts. 2.

Walker, X, concurring with opinion; Hoke, X, concurring in result; Allen, J., dissenting; Brown, J., concurring in the dissenting opinion of Allen, J. Appeal by defendant from Calvert, J., at May Term, 1918, of Feaete-LIN. Tbe defendant was indicted and convicted for seduction under promise of marriage, and appealed.

INDICTMENT fox resisting an officer, tried before Shaw, J., and a jury, at May Term, 1918, of RocKingham.

INDICTMENT tried before Adams, J., and a jury, at July Term, 1918, of Union. The prisoner was indicted for the murder of William Wentz, and convicted of murder in the second degree. When the case was called in this Court, counsel of the prisoner very frankly withdrew all assignments of error, as untenable, except three, which were reserved, as follows: “1. The first of these is, that the court charged the jury as follows: 'The prisoner has testified in his own .behalf.

INDICTMENT for larceny and receiving stolen goods, knowing them to have been stolen, tried before Cline, J., and a jury, at August Term, 1918, of Yadjiin. A quantity of goods was stolen from tbe Gilmer Bros. Company, of Winston-Salem, during tbe early spring of tbis year. Among tbe porters wbo worked at tbe store were Jim Houser and Hurley Houser, wbo lived in Yadkinville. Tbe stealing bad been going on for some montbs.

Appeal by defendant from Cline, J., at August Term, 1918, of WlLKES. Tbe defendant was convicted of involuntary manslaughter, and from the judgment upon such conviction appealed to this Court. The facts, as stated in the brief of the State, are as follows: Russell Mink, a young boy, about 11 years old, was killed on 30 May, 1918, under the following circumstances: He was riding in a car of W. E. Colvard, sitting on the front seat, to the right of Colvard, who was driving.

This motion to allow attorneys’ fees in this proceeding coming on to be heard on 29 June, 1918, and being heard, the court overrules the motion to dismiss for want of jurisdiction, and the said guardian excepting to the same, R. W. Winston, Col. John W. Hinsdale, and John W. Hinsdale, Jr., testify in the case.