Volume 177 — North Carolina Reports

Action tried before Stacy, J., at April Term, 1918, of Buncombe. Tbe action is to recover damages suffered by plaintiff, tbe owner of abutting real estate, by reason of a change of grade in Jobn Street, in tbe city of Asbeville, defendant having refused to make any adjustment of same on demand made pursuant to law. On denial of liability and of any proper demand for adjustment, tbe jury rendered tbe following verdict: 1.

Appeal by plaintiffs from Allen, J., at November Term, 1918, of LENOIR. ■ Tbis was a controversy submitted without action.

This was a special proceeding under the statute applicable to condemn several tracts belonging to the respective defendants as necessary to protect the water supply of- the town of Canton, and tried on issues before Ferguson, J., and a jury, at July Term, 1918, of Haywood. The jury rendered the following verdict: 1. What is the fair market value of the land of A. 0. Walker taken by the plaintiff? Answer: “$16,921.09.” 2. What damage, if any, has A. 0.

ActioN to recover certain personal property, tried before Lane, J., at January Term, 1918, of Haywood. Tbe ancillary remedy of claim and delivery was sued out and tbe defendant gave bond as required by tbe statute and retained possession of tbe property in controversy. These two issues were submitted to tbe jury: 1.

ActioN tried before Connor, J., and a jury, at February Term, 1918, of Robeson. The action is to enforce specific performance of a contract to sell land on the following paper-writing signed by defendant: BaRnbsvjxle, N. C., 10/18/1917. Received on account of trade on home place, $100.00, one hundred dollars. From D. B. lewis. J. P. Mubbay. Witness: W. C. Walteks.

ActioN tried before Qdivert, J., at July Term, 1918, of Wake.

Appeal by defendant from Kerr, J., at August Term, 1918, of Halifax. This was an action brought to recover a dej)Osit of $250 under contract, 16 March, 1917, made by plaintiff with defendant’s agent, for the purchase of ten cars, two of which were delivered and eight of which were never delivered, though demanded. The contract was signed in Weldon, but was not to be binding until accepted by the defendant in Atlanta.

Appeal by defendant from Ferguson, J., at Fall Term, 1918, of MacoN. This is an action to recover damages caused by the negligent delay in the transmission and delivery of an interstate message from Franklin, N. C., to Kingsport, Tenn., informing the plaintiff of the death of his wife. From the verdict and judgment the defendant appealed.

Action tried before Lane, J., and a jury, at May Term, 1918, of Haywood. The action was brought by the plaintiff to recover the amount of an insurance policy, or the sum of $2,150, issued by the defendant upon her dwelling-house, barn and household and kitchen furniture, and other personal property in the house. Her house was destroyed by fire in May, 1917. The jury returned the following verdict 1.

PeocebdiNG commenced before the Clerk of the Superior Court of Buncombe County. A petition was filed by petitioner, to which the respondents answered, and petitioners filed a replication to the answer. The clerk held that issues of fact were raised by the pleadings which should be passed on by a jury, and transferred the proceeding to civil issue docket for trial at term. The respondents excepted to said order and appealed to the judge.

ActioN beard on exceptions to -report of referee, before' Adams; J.„ at June Term. 1918, of Gttilfobd.

ActioN beard on return to a preliminary restraining order before Lane, J., at May Term, 1918, of Haywood.

ActioN for slander, beard on demurrer to complaint, before Stacy, J., at August Term, 1918, of Bbunswick. There was judgment overruling tbe demurrer, • and defendants appealed. •

ActioN for damages -for breach of contract, heard before Lane, J., at Spring Term, 1918, of SwaiN, upon exceptions of defendant to report of referee T. J. Johnston. The court overruled exceptions and confirmed report. From judgment for plaintiff defendant appealed.

ActioN by the receivers of said corporation to recover of the directors and managing officers of same for loss of company’s assets, due to alleged negligence of defendants in failing to perform their official duties, etc., and heard on demurrer to the complaint before Lyon, J., at April Term, 1918, of New Hanover. There was judgment overruling the demurrer, and the defendants excepted and appealed.

Appeal by defendant from Lane, J., at tbe April Term, 1918, of Cherokee. This is an action to recover money.

Appeal by defendants from Cline, J., at tbe June Special Term, 1918, of AvERY. This is an action to recover a tract of land in Mitchell County, brought by the plaintiffs, who are the heirs of John L. Yaught, against the defendants, who are purchasers under a deed executed by the executrix of the said Yaught.

Appeal by defendant from Qline, J., at the Fall Term, 1918, of Watauga. This is an action to recover about five acres of land, the controversy evidently having arisen on account of the draftsman of the plaintiff’s deed having copied one line in an old deed 50 poles, instead of 55 poles.

ActioN to recover the' amount of certain taxes paid by the plaintiff, under protest, upon the ground that they were illegally levied and collected. There was a judgment in favor of the plaintiff, and the defendant excepted and appealed.

<p>Appeal by defendant from Shaw, J., at tbe June Term, 1918, of ROCKINGHAM.</p>

<p>Attorney and Client — Attorneys’ Fees — Reference.</p> <p>Appeal by defendant from Lane, J., at the April Term, 1918, off CHEROKEE.</p>

Appeal by defendant from Allen, J., at chambers, 6 December, 1918, of LENOIR. This is a controversy without action, submitted upon a case agreed, under Revisal, sec. 803. Mrs. Sarah L. Askew died, leaving a will as follows: “I, Sarah L. Askew, of the aforesaid county and State, being of sound mind, but considering the uncertainty of my earthly existence, do make and declare this my last will and testament: “1.

ActioN tried before Stacy, J., at April Term, 1918, of Buncombe,, • upon these issues: 1. Is the defendant indebted to the plaintiff, and if so, in what amount? Answer: “No.” - 2. Is the plaintiff’s claim barred by the statute of limitations? An- ' swer: “No.” The court set aside the verdict on the second issue and rendered judgment against plaintiff upon the first issue. Plaintiff appealed.

INDICTMENT for murder, tried before Cline, J., at July Term, 1918, of Catawba. The defendant was put on trial for murder in second degree and convicted of manslaughter and sentenced to penitentiary. From which judgment he appealed.

IndictmeNt of tbe defendant and bis wife, Nettie, for tbe larceny and receiving of twenty-two dollars, tbe property of •'Will Allmond. The wife, Nettie, was acquitted and tbe defendant was convicted and appealed from tbe judgment upon such conviction. In tbe early part of 1918, Will Allmond and bis brother Tester spent the night at the bouse of tbe defendant, who was an uncle of both boys, tbe defendant and bis wife being absent.

<p>Appeal by defendant from Ferguson, J., at April Term, 1918, of 'CHEROKEE.</p> <p>Tbe defendant was indicted jointly with ber husband for burning a barn. He was 'acquitted, but sbe was convicted and appealed from the .sentence imposed.</p>

<p>1. Judgments — Consent—Actions—Motions in Cause — Husband and Wife— Insanity.</p> <p>An -action brought by the wife to set aside a compromise judgment concerning her lands, to which the husband was a party and agreed to by him at a time she was insane and confined in an asylum, with allegation of these facts, is a direct proceeding to set aside the judgment, and not a collateral attack thereon.</p> <p>2. Judgments — Fraud—Independent Action — Motion in Cause — Court’s Discretion — Same County.</p> <p>An independent action is the proper remedy to set aside a judgment on the ground of fraud, and on any other ground it should be by motion in the cause; yet where both actions' are brought in the same county the-court may, in its discretion, treat the summons and complaint in the second action as a motion in the original one.</p> <p>3. Husband and Wife — Actions—Joinder—Insanity of Wife — Judgments— Consent — Principal and Agent — Statutes.</p> <p>The joinder of the husband in-an action maintainable against the wife-alone, Rev., 563 (4), though unnecessary, makes the husband the agent of the wife, when she is not present in person or by attorney, for the purposes of the suit; this does not obtain if she is insane, and his consent in such ease to the entry of a judgment affecting her lands is voidable, and she may thereafter move to have it set aside.</p> <p>4. Husband and Wife— Actions— Married Women— Statutes— Guardian— Next Friend.</p> <p>It is not required that the wife, as such, prosecute or defend an action concerning her lands by guardian or next friend. Rev., see. 407.</p> <p>5. Appeal and Error — Supreme Court — Counterclaim—Consent of Counsel— Judgments.</p> <p>Where plaintiffs attorneys consent, in the Supreme Court, to a judgment as on a counterclaim, not pleaded or urged in the lower court, this entry may he made in the lower court when the certificate of the judgment on appeal is filed there.</p> <p>Beown, J., not sitting.</p>

Appeal by defendant from Devin, J., at the December Term, .1918, of Beaueoet. Two causes of action are stated in the complaint.

ActioN tried before Whedbee, J., and a jury, at September Special Term, 1918, of WASHINGTON. The action was brought to recover possession of a tract of land on Welch’s Creek containing sixty acres.' Plaintiff claimed the land by collateral descent from Martha A. Pettiford, who he alleged was his sister, which allegation the defendants denied, so that the sole question was whether the relation of brother and sister existed between the plaintiff and Martha A. Pettiford.

ActioN tried before Bond, J., and a jury, at November Term, 1918, of TYRRELL.

Action tried before Bond, J., and a jury, at July Term, 1914, of CAMDEN. ■ The action was instituted, by plaintiff, the lower proprietor, against the defendant, adjoining and upper proprietor, to recover damages for flow of water wrongfully diverted upon plaintiff’s land, and for damages caused by failure on part of defendant to clear off and properly maintain on plaintiff’s land certain lead ditches running through both tracts, whereby it was claimed that plaintiff’s land…

<p>.1. Fires — Damages—Evidence.</p> <p>Where the defendant is responsible in damages for the destruction of timber growing upon the plaintiff’s lands, which it negligently set on fire, testimony of the difference between the value of the land before and after the burning is competent upon the issue as to the amount of damages recoverable in the action.</p> <p>:2. Appeal and Error — Questions and Answers — Leading Questions.</p> <p>No error on appeal will be found the exclusion by the trial judge of a leading question ashed by a party of his own witness.</p> <p>.3. Trials — Counsel—Arguments—Instructions.</p> <p>A remark of counsel in his address to the jury will not be considered, on appeal, as such a flagrant abuse of his privilege as to warrant a new-trial, when it appears that the jury doubtless passed it by without prejudice as being merely a too fervid utterance in the heat of debate, and the ' judge’s charge was sufficient to prevent an injurious- effect upon the adversary party.</p> <p>-4. Instructions — Contentions — Misstatements — Court’s Opinion — Contentions — Appeal and Error — Objections and Exceptions.</p> <p>An objection to a statement. by the trial judge of the allegations and contentions of the parties should be made at the time to afford him an opportunity for correction, or it will not be considered on appeal'; nor will the statement be regarded as an intimation by the judge of his own • ' opinion. - ■</p> <p>5. Instruction — Court’s Opinion — Damages—Pleadings—Appeal and Error — - Prayers for Instruction.</p> <p>Tlie mere restriction of the amount of damages recoverable in an action to the demand therefor, as stated in the complaint, is not to the defendant’s prejudice nor objectionable, as an expression of the opinion of the-judge thereon, it being required that defendant offer special prayers if he-desired more specific instructions as to the measure of damages.</p> <p>6. Fires — Damages—Timber—Evidence.</p> <p>In this action to recover damages for the negligent setting fire to the-timber on plaintiff’s lands, there was evidence tending to show that a spark from defendant’s engine set fire to defendant’s foul right of way and' burned the plaintiff’s adjoining lands, and it is held sufficient to take the-case to the jury, it being incumbent on the defendant to satisfy the jury that its engine, which was in its possession and control, was properly equipped and handled, they being matters peculiarly within its own knowledge, or take the chance of an adverse verdict.</p> <p>7. Appeal and Error' — Indefinite Objection and Exception — Exception to-Charge Containing Two Propositions, One Correct and the Other Not.</p> <p>Exceptions to the judge’s charge, embracing two separate propositions, one of which is correct, is too broad, and will not be considered on appeal.</p> <p>Brown, J., not sitting.</p>

<p>1. Evidence — Wills—Erasures—Deceased Persons — Transactions and Communications — Statutes.</p> <p>Upon the trial of a caveat to a will, the testimony of the beneficiaries thereunder that certain erasures were in the will- when it was opened, after the testator’s death, and that they did not make them, is not a communication or transaction with a deceased person prohibited by Revisal, sec. 1631.</p> <p>2. Evidence — Wills—Erasures—Burden of Proof- — Trials.</p> <p>Declarations of the testator that he had stricken out certain parts of his . will is competent evidence when testified to by a disinterested witness, and the burden of proof is upon the persons claiming thereunder to show that the testator had not made the erasures.</p>

CONTROVERSY without action, from Lenoir, submitted on ease agreed, and decided by Allen, J., resident judge of the Sixth District, on 8 February, 1919.

<p>1. Clerks of Court — Judgments—Motions—Terms of Court.</p> <p>There are no terms or sessions of court for liroceedings pending before the clerk, each case having its own return day; and a demurrer to a petition or written motion made and entitled in the original cause in proceedings for partition before the clerk to set aside a judgment therein, on the ground that it fails to state the term at which it was rendered, is bad.</p> <p>2. Motions — Judgments—Attorney and Client — Attorney in Fact — Principal and Agent — Demurrer—Form of Motion.</p> <p>While it is the better form for one making a written motion, as attorney at law and in fact for the heirs at law of the original owner, to set aside a judgment rendered by the clerk of the Superior Court, in liroceedings for partition of lands, to first state the names of those he represents and then that he is acting for them in the capacity of attorney, the error in stating that he appears as attorney at law and in fact for certain named parties, etc, as the heirs at law of the deceased, is merely informal and harmless, and therefore good against a demurrer, it clearly appearing that the attorney is not claiming any interest in the lands for himself, but is solely acting in a representative caiiacity for the persons named.</p> <p>3. Pleadings — Statutes—Cause of Action — Demurrer.</p> <p>Under our Code system, a pleading will be sustained against a demurrer if, when liberally construed, the whole or any part thereof presents facts sufficient to constitute a cause of action, or if such facts can be gathered from it, though the pleader may not disregard the ordinary and familiar rule that the facts should be concisely and plainly stated, so that it may appear, at least, with reasonable certainty what is the controversy and what are the essential issues to be submitted to the jury, upon which the case may be tried on its merits.</p> <p>4. Appeal and Error — Court’s Discretion — Both Parties in Default — Costs.</p> <p>In this case, where a demurrer was filed before the clerk to a written motion asking to set aside a judgment in proceedings for the partition of lands, it is Held, as the demurrer would probably not have been interposed if the petition had been drawn with more regard for the rules of pleading, as to certainty and precision, both parties are somewhat in default, and the court, in the exercise of its discretion, directs the costs of the appeal to be equally divided between them.</p> <p>Clabk, O. J., did not sit.</p>

<p>. AotioN tried before Daniels, J., and a jury, at September Term, 1918, of Lee.</p> <p>The plaintiff was employed by the defendant to fire the boiler in its mill, and was ordered, on the day he was injured, to take the place of the man who operated the rip-saw at the bench, or grooving machine, in which it was placed. This saw revolved with great rapidity, 5,000 revolutions to the minute, and there was evidence tending to show that there was no guard or other appliance to keep tbe boards from falling on the-saw while it was in motion, and that the machine in this respect was not constructed like those of the same kind which were approved and in general use in other mills, and which had protective guards to prevent such accidents as the one in question. The plaintiff was 17 years old when he was injured, and, according to his testimony, had objected to working at the machine, as he was afraid of being cut by the saw, but he was told it was safe and to go on with the work. There also was evidence on defendant’s part that there were guards on the machine to hold the boards in their proper position, but plaintiff disputed this and stated that they were put there after he was injured. He had worked at the groover only half a day when he was hurt. He testified, in part, as follows: “I am the plaintiff in this action, 19 years old, and live at Broadway, N. 0. About a year and a half ago I worked at Siler City, and was there about a year and a half. I worked about two months with the Oval Oak Manufacturing Company, being hired by Mr. Stone, the superintendent. Mr. Stone looked after the plant and hired and discharged the men. I was-firing the boiler, and the man who operated the grooving machine was out, and Mr. Stone put me to work on it. I was scared I’d get my fingers cut, and told him so. He- told me there was no danger in the machine. He did not tell me any of the dangers of the machine. He gave me no instructions, but in his presence the fellow that had operated the machine told me to pile up the blank pieces, or work, between the standards and the saw, four wide and four deep, and when he finished,. Mr. Stone said, ‘That will be right; it will make it out on the truck even.’ The machine was a flat table, with a saw coming up through the-top of the table, with two pieces on each side of the saw to run the timber up between — to hit the piece exactly in the center — to groove the sides of the washboard. The pieces were about an inch by half an inch and about a foot long. There were no rollers on the table to draw the-pieces on the saw. You pushed the piece with your hands, pushing the piece with your thumb and holding it down with your left hand. There-were standards, between which I was told to put the finished pieces, but no standards between the blank pieces to be worked and the saw. I was-instructed to put the blank pieces. between the standard and the saw. There were no standards to protect the work on the side of the saw. I stacked the blanks up as I was instructed to do. I stacked a pile of the pieces up and turned to get my position, and as I did so some of the pieces rolled over on the saw and hit it, and that is the last I know. Just at that time the machine speeded up. I heard it shaking and rattling, and I know of my own knowledge that this was caused by the-throwing of a belt on some part of the machinery. The engine caught up slack and shook the machine. I saw the pile as it started to .fall and •saw tbe piece as it started toward me from the saw. The machine was pretty shackly.”</p> <p>Plaintiff here described his wound, which was very severe and caused him great suffering and permanent injury. He then further testified". '“I had worked at woodworking plants about two years, but had never operated a machine like this before; never operated a groover. You had to push the blank with your right hand, between little wooden guides, onto the saw and hold them down with your left hand. There was a piece at the end to stop the blank at the right place, and it was grooved only to about six inches of the end. There were four little wire standards on the machine; on the back side you put the timber you had finished-and on the far side your raw timber. The finished product was laid over on the other side of the raw material between the little standards. In operating you picked up an unfinished piece next the saw, put it through, and placed it over between the standards. I do not know whether or not a piece dropped diagonally across the guides would touch the saw; I did not mess with it long enough to find out. Mr. Stone showed me how to push the blanks through and to pick them up. I had •operated the machine only a half day before and returned to its operation that morning. I did not whistle to Mr. Coggins after I was hurt •or have any conversation with him. I do not remember anything that happened until I regained consciousness in the hospital at Greensboro about four weeks afterwards. After the second operation was performed in Greensboro, about September 10th, I was able to go to the moving picture show, and on the 23d I left the hospital. On January 9th I returned to the hospital. I was not fat and weighed only about 120 pounds. I had a piece of gauze in the wound, because the' doctor had advised me to do so. In May, after this suit was started, I went to the hospital for another operation, when the wound was closed, and remained there nine days. I then came home. At the time I was hurt I wasn’t operating the stock. I was piling stuff and went to turn around. I had used all the timber up and was putting up some more.”</p> <p>(Stick is shown witness.) Do you know whether or not this is the .stick which hit you? “No, sir. The stick looks like the ones I handled. Mr. Coggins was working a good ways off. The pieces went into the machine the wide or flat way. I have seen the machine since then. They were not using it when I went to Siler City again. They were using a moulder for this work, through which the piece passed entirely, coming out at the other end. Mr. Stone did not instruct me where to .stand. The pieces were stacked at the right-hand side and it was necessary for me to get into the position I was in when hurt in order to get the material and stack it there. The piece which fell on the saw and was thrown back was-one of sixteen pieces which were stacked up at the .right of the saw.”</p> <p>■ The allegations of the plaintiff as to the construction of the groover and other material matters were denied by the defendant and testimony introduced to show that there was no negligence either in the construction of the machine or in the failure to give proper instructions as to its operation, and further that the injury was caused by the plaintiff’s own negligence.</p> <p>The jury returned a verdict for the plaintiff upon all the issues, negligence and contributory negligence, and assessed his' damages at $5,000. Judgment was entered thereon and an appeal taken by the defendant.</p>

<p>1. Yerdict — Interpretation—Evidence—Instructions.</p> <p>The verdict of a jury must be interpreted on appeal and allowed- significance by proper reference to the testimony in the case and the judge’s charge thereon.</p> <p>2. Same — Negligence—Contributory Negligence — Assumption of Risks.</p> <p>Where the verdict of the jury, under conflicting evidence and a correct charge upon the issues of negligence and contributory negligence, establishes the fact that the death of plaintiff’s intestate, a flagman on defendant railroad' company’s freight train, was caused by his being thrown from the steps of the caboose car, while he was engaged in his duties, to his death by the violent, sudden and unusual movement of the train, the element of assumption of risks is eliminated and an exception that the charge erroneously confined the scope of the inquiry thereon is untenable on appeal.</p> <p>3. Appeal and Error — Negligence—Contributory Negligence — Instructions— Evidence.</p> <p>Where the evidence tends only to show that the plaintiff’s intestate was thrown to his death while standing on the steps of the caboose car to a freight train, holding to a grab-iron, preparatory to getting off, in the usual course of his employment, to throw a switch; that the conductor had locked the car behind them and was standing behind him at the time: Held,, exception that the charge failed to submit to the jury the question of intestate’s contributory negligence in not holding to the grab-iron and in going upon the steps is unsupported by the evidence and untenable.</p>

Appeal by defendants from Daniels, J., at tbe August Term, 1918, of CHATHAM. Tbis is a special proceeding instituted before tbe clerk for tbe establishment of tbe dividing line between tbe respective parties. Tbe case was beard before tbe clerk after tbe survey bad been made and tbe surveyor bad filed bis report, and be decided in favor of tbe contentions of tbe defendant.

Appeal by defendant from Whedbee, J., at the August Term, 1918, of Pitt. This is an action to recover damages of the defendant, Pitt County, for constructing a new road through the property of the plaintiffs.

Appeal by plaintiffs from a judgment rendered by Allen, J.,'at September Term, 1918, of Dupluv. On 12 February, 1911, Jobn R. Barden, being tbe owner in fee simple of tbe tracts of land in controversy, conveyed tbe same to R. C. Pridgen for tbe consideration of $2,000, bis wife joining in tbe deed, wbicb was duly recorded on 6 September, 1911; and on 12 February, 1911, R. 0.

Appeal by defendant from Calvert, J., at tlie March Term, 1918, of Sampson-. This is an action to recover damages for the killing of a mule belonging to the intestate of the plaintiff which the plaintiff alleges was killed by the negligence of the defendant in driving an automobile.

Appeal by plaintiff from Guión, J., at the January Term, 1919, of Duplex. This is an action against the Roper Lumber Company to recover damages for cutting certain timber on the land described in the complaint, and against the administrator and heirs of Jefferson Lanier to recover the purchase price of the same.

<p>1. Negligence — Evidence—Fires—Damages—Deeds and Conveyances.</p> <p>A., the owner of lands, conveyed the standing timber thereon to B., who conveyed it to C., and the latter contracted with D. to cut or manufacture the same on the premises, and while so doing D. set fire to the lands of A. and adjoining owners, who brought their action against B., C., and D. for the resultant damages: Bold, as between the parties, it was not required that the deed from B. should have been registered before the fire occurred, and though registered during the trial it was competent as evidence of a registered instrument, and if established passed the title to the timber and relieved B. from liability in the action.</p> <p>2. Contracts — Partnerships—Evidence.</p> <p>A contract to cut or manufacture lumber between A., the owner of the timber, and B., that the latter should cut the timber at a certain price per thousand, stack the product separately at the mill, convenient for handling, etc., the former to take shingles as manufactured, and thereon advance money for the expenses of manufacture, with settlement each month for the previous month, the owner to have the cull grade of shingles, with equal division of the tar after expenses paid, does not create a partnership between the parties, so as to make the owner of the timber liable to third persons for damages caused to their lands by fire negligently set out by B. while performing his agreement.</p> <p>3. Contracts — Independent Contractor — Negligence—Liability of Principal— Principal and Agent.</p> <p>An owner of trees standing upon lands may not relieve himself from liability to the owner of the lands and adjoining owners, under the doctrine of independent contractor, for damages by fire set out by his contractor in cutting or manufacturing the timber thereon with a stationary engine having a defective smokestack or spark arrester, and throwing sparks upon combustible matter surrounding it, showing negligent construction of the engine and in the manner of operating it.</p> <p>4. Appeal and Error — Objections and Exceptions — Instructions—Evidence.</p> <p>While ordinarily a mistake of the trial judge in endeavoring to rehearse the testimony, or give the evidence of a witness, or the admission of the parties, should be called to his attention at the time to afford him timely opportunity to correct it, or it will not be reviewed on appeal, a misstatement that there is no evidence as to a material and controlling question in controversy does not fall within the rule, and will be held for reversible error.</p> <p>5. Negligence — Fires—Stationary Engines — Evidence—Prima Facie Case.</p> <p>Where there is evidence tending to show that soon after defendant commenced cutting or manufacturing timber on the plaintiff’s land with a stationary steam engine equipped with a ten-foot smokestack, fire was set out upon inflammable surroundings and communicated to plaintiff’s lands to his damage, a prima facie case of negligence is made out against the defendant, affording evidence that the engine was not equipped with a proper spark arrester.</p> <p>6. Instructions — Expression of Opinion — Evidence — Fires — Negligence— Stationary Engines — Defects.</p> <p>Where there is evidence that the plaintiff’s lands were set fire to and damaged by the actionable negligence of the defendant in operating a stationary steam engine thereon not properly equipped with a spark arrester, it is error to the plaintiff’s prejudice for the trial judge, in reference to plaintiff’s contention to the contrary, to state to the jury that he recollected no evidence as to the spark arrester, and his further remark that they could consider any other defects about the machinery, signified that there was no evidence to support the plaintiff’s contention as to the spark arrester, and is reversible error.</p>

ActioN tried before Allen, J., and a jury, at September Term, 1918, of Sampson. Plaintiffs, alleging ownership of a designated tract of land, instituted the action to recover damages of defendant for wrongfully setting out fire and burning over the ground by means of a defective engine operated by defendant and his employees over his tramroad, etc. There was denial of plaintiff’s ownership by defendant and of any and all liability in the matter.

<p>1. Husband and Wife — Principal and Agent — Wife’s Separate Lands — Husband as Agent — Presumptions.</p> <p>A husband cultivating a farm, tbe separate estate of bis wife, without contract of lease merely acts as the agent of the wife therein, the presumption being that his services were gratuitously given as a contribution-to the support of the family, and he has no- interest in the crops that his-creditors can follow and subject to the payment of his debts.</p> <p>2. Same — Liens.</p> <p>Where the husband is merely acting as the agent of his wife in cultivating her farms he may not, as such agent, give a valid lien upon the crops upon his- wife’s land for any purpose.</p> <p>■3. Constitutional Law— Husband and Wife— Principal and Agent— Wife’s-Separate Lands — Landlord and Tenant — Statutes.</p> <p>The wife, under our Constitution, is vested with the right to the custody and control of the entire crops growing on her own lands, raised thereon by her husband as her agent, subject to the rights of her tenants to their share therein under the terms of any contract. Revisal, sec. 1993.</p> <p>4. Husband and Wife — Principal and Agent — Implied Authority.</p> <p>Where the husband and wife are living together, and he is acting as her agent in farming her lands, he has implied authority to incur indebtedness. in her behalf for the fertilizer used thereon in making the crop, with her knowledge and without her dissent. Thompson v. Ooats, 174 N. C., 193, cited and distinguished.</p> <p>5. Pleadings — Principal and Agent — Husband and Wife — Wife’s Separate Lands — Relief.</p> <p>Where the husband has acted as the plaintiff’s agent for the sale of fertilizer, and also as the agent of his wife in cultivating her lands, an action against the wife to subject the crop to the payment of the husband’s debt cannot be maintained, but the guano company may recover for the' fertilizer used on the wife’s, crops, with which she is properly chargeable, after deducting such sums of money as the husband may have received on. the purchase xirice of the fertilizer as the agent of the plaintiff, though, such relief was not specifically prayed for in the complaint.</p> <p>6. Debtor and Creditor — Gratuitous Services — Peonage.</p> <p>The creditor of a husband who has gratuitously acted as. the agent of his wife in cultivating crops upon her land may not maintain his action to recover the value of the services thus rendered by him and subject it to-the payment of his debt. The matter of “peonage” discussed by Clark, O. J.</p>

<p>1. Statutes— Interpretation— Repealing Statutes— Drainage District— Department of Agriculture — Moneys Advanced.</p> <p>Section 1, ch. 236, Public Laws of 1915, by repealing sec. 14, ch. 67, Public Laws of 1911, amendatory of ch. 442, Public Laws of 1909, providing among other things, for advancing moneys to the credit of the Department of Agriculture in the State Treasury to a drainage district formed under the acts, for compensation, etc., of the drainage surveyor, and its refund out of the future sale of the bonds to be issued by the drainage district, etc., construed with sec. 2 of ch. 235, Public Laws of 1915, requiring the Attorney-General, at the request of the Department of Agriculture to bring action against the commissioners of any such drainage district, and the bond of the'petitioners for the district (sec. 2, ch. 442, Laws of 1909) that has failed to refund the money so advanced cannot be construed, by correct interpretation, to relieve a district formed under the statutes from refunding the money advanced, as provided by said sec. 14, ch. 67, Public Laws of 1911, before the enactment of the Laws of 1915, from the proceeds of the sale of the drainage bonds thereafter issued.</p> <p>.'2. Same — Primary and Secondary Liability.</p> <p>The liability of a drainage district to refund the moneys advanced by the State Treasurer to the credit' of the State Board of Agriculture (see. 14, ch. 67, Public Laws of 1911) for compensation, etc., of the drainage surveyor is primary and is not affected by the fact that the statute provides that suit may also be brought against the bond of the petitioners for the district. Sec. 2, ch. 442, Public Laws of 1909.</p> <p>:3. Actions — Parties—Statutes—Interpretation—Department of Agriculture —Drainage Districts — Moneys Advanced.</p> <p>The State Department of Agriculture, where out of its funds the State Treasurer has advanced money for the compensation and expenses of the drainage surveyors, etc., under ch. 67, Laws of 1911, may maintain an action against the drainage district and its commissioners according to the method provided by the statute, the acceptance of the money by the drainage district under the law implying the promise to repay it; and the ■objection that the commissioners of the district had not authorized the -transaction is untenable.</p> <p>4. Actions— Parties— Drainage Districts— Statutes— Refund of Moneys— State Treasurer — Motions—Supreme Court.</p> <p>In an action against the commissioners of a drainage district by the State Board of Agriculture (brought under ch. 236, Laws of 1909) to recover moneys advanced by the State Treasurer to a drainage district under sec. 14, ch. 67, Laws of 1911, the State Treasurer is a proper, if not a necessary party, and his motion made in the Supreme Court that he be made a party plaintiff is granted, the money sought to be recovered in the action, when paid into the State Treasury, to be held for the benefit of the other plaintiff and to be paid out as directed by the law.</p>

, at December Term, 1918, of LeNOIR. By consent, thirty days was given to serve case on appeal and twenty days thereafter to serve counter-case. The appeal was required by the rales to be docketed here on or before Tuesday, 25 February, at 10 a. m., or the appellant was entitled to docket and dismiss under Rule 17, unless the case was docketed or a certiorari on good ground was applied for before the motion to dismiss was made.

Appeal by defendants from Daniels, J., at November Term, 1918, of WayNE. Tbe plaintiffs have brought an action to recover the property in question from the defendants, who are in possession, and the University of the State has intervened and been made a party by order of court. From a judgment for the plaintiffs the defendants and the intervenor appealed.

ActioN tried before Allen, J., at January Term, 1919, of Pitt. The action was to remove a cloud on tbe title of plaintiff, claiming to own the land in fee simple under a devise in his mother’s will, as follows: “Item 1. I give and devise to my son, Osborne 0.

<p>1. Judgments — Default—Irregular Judgments.</p> <p>A judgment by default final taken in a suit to remove a cloud upon the title to the plaintiff’s lands after summons has been duly issued and served, complaint filed without answer, etc., after several terms of the court have elapsed at which the cause was triable, is not irregularly entered or contrary to the course and practice of the courts.</p> <p>2. Appeal and Error — Judgments Set Aside — Findings—Excusable Neglect —Meritorious Defense.</p> <p>In setting aside a final judgment for excusable neglect it must be properly made to appear on appeal that the negligence was excusable, and also that .the defendant had a meritorious defense, with findings by the trial judge on both of these matters; and while his findings of fact are conclusive when supported by evidence, the questions of whether they or each of them are sufficient to constitute the required grounds are matters of law and reviewable on appeal.</p> <p>3. Judgments Set Aside — Attorney and Client — Laches—Duty of Client.</p> <p>A defendant is not relieved of laches for failing to file his answer, or to see that the action is properly looked after, merely because he has employed an attorney for that purpose; and where the action has been duly commenced and complaint filed it is not excusable neglect sufficient to set aside a judgment by default final for want of an answer for him to show that he had employed an attorney to defend him, who was drafted into the army two months after the answer should have been filed and two terms of court had since passed before the judgment complained of had been entered.</p> <p>4. Judgments Set Aside — Meritorious Defense — Evidence.</p> <p>The defense is not sufficiently meritorious to set aside a judgment final for want of an answer in a suit to remove a cloud upon the title to the plaintiff’s land when it appears that both parties claim under grants and mesne conveyances from the State; that the plaintiff’s grant was prior to defendant, and that he had also acquired the title of the defendant’s grantor prior to the execution and registration of Ms deed.</p> <p>5. State’s Land — Grants—Junior Grants — Possession—Color of Title — Statutes.</p> <p>Possession of State’s land under a junior grant made since 1S9S confers no rights upon the grantee or grantees therein, nor does such junior grant constitute color of title. Revisal, sec. 1699.</p>

<p>1. Railroads — Fires—Negligence—Evidence—Nonsuit—Trials.</p> <p>In an action to recover damages by fire to the plaintiff’s property alleged to have been negligently set out by the defendant railroad company’s passing locomotive, there was evidence tending 'to show that the locomotive passed at 3 p. m., that the fire was discovered the following morning at 2:30; that the first of plaintiff’s buildings to burn was near the foul railroad track; and in defendant’s behalf, that the plaintiff’s boiler-room near the center of the lands was the first to catch, and the fire was attempted to have been put out by the plaintiff’s clerk who left it before it was completely extinguished, by which reason it started again- and caused the damages complained of: Held, sufficient to take the case-to the jury upon the issue of defendant’s actionable negligence, including proximate cause, and a motion of nonsuit was properly denied.</p> <p>2. Pleadings — Contributory Negligence — Negligence —Fires—Railroads— Statutes.</p> <p>The plea that an employee of the plaintiff had negligently failed to see-that he had entirely extinguished a fire started by the locomotive of the defendant railroad company, and that the fire rekindled and caused the plaintiff the damages complained of in his action, is one of contributory-negligence required by the statute to be pleaded. Revisal, sec. 483.</p> <p>.3. Negligence — Principal and Agent — Scope of Agency — Instructions— Trials.</p> <p>Where the plea of contributory negligence of the plaintiff’s agent in not completely extinguishing a fire set out by the defendant railroad company is available to the defendant in the action, and there is supporting evidence, a requested instruction that excludes the principle as to whether it was within the scope of the agent’s duty, as such, to extinguish the fire, is, properly refused.</p> <p>■4. Instructions — Appeal and Error — Objections ' and Exceptions — Special Requests.</p> <p>Exception that the charge of the trial judge to the jury was not sufficiently full upon a certain aspect of the case should be to his refusal to give a requested instruction bearing thereon, or it will not be considered on appeal.</p>

Appeal by defendants from Lyon, J., at February Term, 1918, of New HaNovee. This action was brought to recover $705 with interest, being the .amount of the deposit of the plaintiff in the defendant Savannah Trust Company. The defendant trust company sent to plaintiff bank from Savannah by mail, in November, 1912, a .check drawn by Lybrand & Co. on the bank of Swansea, S. C., payable to the Reliance Fertilizer Company.

Appeal by defendants from Bond, J., at February Term, 1919, of WlLSON. This action — summary proceedings in ejectment — was begun before a justice of the peace in Wilson County on 2 January, 1919, and heard the same day. Judgment for possession and for costs was rendered, -from which the defendant in open court, 2 January, 1919, gave notice of appeal to the Superior Court, and filed with the justice a bond to stay execution.

<p>ActioN tried before Stacy, J., upon demurrer, at August Term, 1918, of BRUNSWICK.</p> <p>Appeal by defendants.</p>

Appeal by plaintiff from Devin, J., at the November Term, 1917, of Columbus. This is an action brought by the plaintiff as receiver to recover possession of a mule, a buggy, and harness. At the conclusion of the evidence his Honor entered judgment of non-suit, and the plaintiff excepted and appealed.

Appeal by both parties from Lyon, J., at chambers, on case agreed,, February, 1919, from Cumberland. A controversy having arisen between E. E. Gorham, administrator of the estate of John C. Gorham, and the commissioner appointed to sell the lands of his intestate to create assets for the payment of the debts, of the estate, on the one hand, and Mrs. Georgia Chedester, the intestate’s widow, who has since married II.

ActioN tried before Devin, J., and a jury, at the September Term, 1918, of Alamance.

ActioN tried before Devin, J., and a jury, at September Term, 1918, of DubhaM. Tbe plaintiff alleged that the defendant corporation is indebted to it in the sum of $13,320, with interest as stated, being the balance due on the three notes, one of $1,000, another of $8,000, and the remaining one of $4,500, due ninety days after their respective dates, and given by defendant to it, for money loaned, in the months of March and April, 1918.

<p>Estates — Conditional Fee — Statutes—Fee Tail — Absolute Fee — Deeds and Conveyances — Intent.</p> <p>In consideration of natural love and affection and of one dollar, and for her “maintenance and preferment,” the donor of lands conveyed them to his granddaughter “and to the heirs of her own body; if she never has heirs of her own body, then in that event she never has any” over to certain designated persons and their children, the granddaughter at the time of the conveyance being a child, but since grown up with a child by marriage: Held, (1) at common law the gift to the granddaughter was a conditional fee which became absolute upon the happening of the condition, the birth of the child; (2) the conditional fee is converted into an estate tail under the statute of De Donis (13 Edw., 1), and into a fee simple absolute title under our statute, Rev., sec. 1578; (3) construing the words “heirs of her own body” to mean the donee’s children, there being no child born at the execution of the deed and no intermediate estate, and the deed having been executed since 1879 (Rev., sec. 946), without words of inheritance, the conveyance would be to the granddaughter in fee upon the birth of the child by the marriage; (3) the intent of the donor, appearing by the proper construction of the deed, would be to give the fee-simple estate to the grand-cliild upon the birth of her child by marriage.</p>

Appeal by plaintiffs from Lane, J., at July Term, 1918, of Ashe. Tie defendant, W. Bails, was a general merchant and purchased goods from the plaintiffs. Later, W. Bails and his wife, Essie Lee Bails, made an assignment for benefit of creditors, alleging that they were partners in the mercantile business, and each of them claiming their personal property exemption.

Appeal by plaintiff from Adams, J., at May Term, 1918, of G-uil-EORD. This is an action against the city manager and city council of High Point for a mandamus to require the issuance to the plaintiff of a license to' operate a meat market upon the p0.ym.ent of the amount required in the ordinances for such licenses, at No. 115 on South Main Street in said town. The judge found the facts as set out in the record and refused to order the license to issue. Appeal by plaintiff.

ActioN tried before Lyon, J., and a jury, at February Term, 1918, of Columbus.

Appeal by plaintiff and defendants from Calvert, J., at tbe February Term, 1919, of New HaNover.

ActioN tried before Simio, J., and a jury at November Term, 1918,. •of Davidson.

Appeal by plaintiff from Lane, Jat March Term, 1919, of Güilfoed. In June, 1914, E. T. Corbit, deceased, executed a lease to plaintiff for one acre of land for ten years, and agreed to erect a slaughter-house and dig a well thereon. The plaintiff delivered to Corbit his note in the sum of $500, secured by the chattel mortgage, in payment of the ten years rental.

CONTROVERSY without action, beard before Lane, J., at March Term, 1919, of Guilford. From tbe facts submitted it appears that on 16 March, 1918, plaintiff bargained to Eicbardson Hay and Grain Company a motor truck for $2,950, and that $2,000 of tbe price remains unpaid. And on 7 February, 1919, plaintiffs bargained to same firm another motor truck for $2,500, and that $1,125 of this price remains unpaid.

<p>ActioN tried before Shaw, J., at December Term, 1918, of Guileobd.</p> <p>The case is as follows: Tlie policy was issued by the Greensboro Life Insurance Company, 1 August, 1905, and on 12 September, 1912, tbis company was merged witb defendant. Nine full annual premiums were paid, the last being paid to the defendant on or about 1 August, 1913. Tbe premium due on 1 August, 1914, was not paid in full, but $66.85 was paid upon it and a “blue note” for $96 was given, which plaintiff contends by its terms kept the policy in force until 1 February, 1915. The policy was originally payable to Ruth Underwood, daughter of insured, as beneficiary, but on 1 October, 1907, the beneficiary was changed to the plaintiff. "While plaintiff was beneficiary the insured and plaintiff borrowed $385 from the Greensboro Life Insurance Company and assigned the policy sued on as security for the loan. "While the policy was thus assigned to the company the assured changed the beneficiary, this time from plaintiff to his estate; and while his estate was beneficiary he borrowed sums from the Greensboro Life Insurance Company aggregating $342.29, thus bringing his total indebtedness to $727.29, which was charged against the policy, as a lien on it, in the hands of the company by assignment to it. Of this amount plaintiff ¿signed a note for $385; and of the remaining $342.29, $162.04 was spent in paying the premiums on said policy. After the last loan was obtained by insured he again changed the beneficiary from his estate to the plaintiff.</p> <p>Insured did not at any time avail himself of the privilege of taking the paid-up policy allowed him by nonforfeiture provision (2) set out below. The policy, among othér provisions, contained the following:</p> <p>Relevant portions of Tables A and B:</p> <p>TABLE A TABLE B</p> <p> Nonforfeiture Values Nonforfeiture Values </p> <p> </p> <p>Tables A and B of nonforfeiture values on the margin of the page ■show the guaranteed values of this policy corresponding to the number of years for which full annual premiums have been paid, and in the event of any indebtedness against this policy these values will be reduced proportionately.</p> <p>NONFORFEITURE PROVISIONS</p> <p>(1) Loans will be made by the company in accordance with Table A upon satisfactory assignment of this policy as sole security, at a rate of interest not to exceed 6 per cent per annum, provided premiums are duly paid to the anniversary next succeeding the date when the loan is applied for.</p> <p>(2) If provision (2) has not been availed of one month from default In payment of premiums, the company will voluntarily extend this policy in the first-named sum on page 1 as automatic paid-up term insurance in accordance with Table B.</p> <p>Change of Beneficiary: The insured may, while this policy is in force unassigned, change the beneficiary, and such change will take effect when endorsement thereof is made by the company upon this policy.</p> <p>Assignment: No assignment of this policy shall be valid unless made in writing, and the original or a duplicate original filed in the home office of the company. The company will not be responsible for the validity of any assignment.</p> <p>This policy is incontestable after one year from date except for nonpayment of premiums.</p> <p>On 2 September, 1914, the insured paid to the defendant $19.97 unearned interest on the loan of $727.29, as shown by article 19 of the complaint, and not denied in the answer. The insured and the plaintiff, on 21 August, 1912, executed a note to the Greensboro Life Insurance Company for $150. This note was unsecured, did not refer to the policy, nor profess to be a lien upon it, nor was the policy assigned to secure it, ■and was afterwards destroyed by the defendant’s vice-president.</p> <p>The following is a copy of note for indebtedness to the company secured by the assignment of the policy:</p> <p>$727.29. No.</p> <p>This is to certify that I, the undersigned, the insured, and beneficiary, respectively, under, and the sole owner of, Policy No. 792, issued by the Greensboro Life Insurance Company, have this day borrowed from the said company the sum of seven hundred twenty-seven and 29-100 dollars, and hereby assign the said policy and all profits and benefits now due or which may hereafter become due thereon, to secure the repayment of said loan and the interest thereon as herein provided.</p> <p>The following is a copy of the “blue note”:</p> <p>GREENSBORO, N. 0., August 1, 1914.</p> <p>On or before the 1st day of November, 1914, without grace and without demand or notice, I promise to pay to the order of Jefferson Standard Life Insurance Company one hundred twenty-three 6-100 dollars, at their home office in Greensboro, N. C., with interest at the rate of 6 per cent per annum.</p> <p>This note is accepted by said company at the request of the maker, together with $38.89 dollars in cash, on the following express agreement :</p> <p>That although no part of the premium due on the 1st day of August, 1914, under policy No. 792-G on the life of ~W. I. Underwood has been paid, the insurance thereunder shall be continued in force until midnight of the due date of said note; that if this note is paid on or before the date it becomes due, such payment, together with said cash, will then be accepted by said company as payment of said premium, and all rights under said policy shall thereupon be the same as if said premium had been paid when due; that if this note is not paid on or before the day it becomes due it shall thereupon automatically cease to be a claim-against the maker, and said company shall retain said cash as part compensation for the rights and privileges hereby granted, and all rights-under said policy shall be the same as if said cash had not been paid nor this agreement made.</p> <p>Judgment for the amount of the policy and interest at 6 per cent,, less $150 and interest thereon and costs, from which defendant appealed.</p>

Appeal by respondent, S. P. Williams, from Lyon, J., at tbe February Term, 1919, of PeesoN. This is a contest over tbe appointment of an administrator d. b. n. c. t. a. of tbe estate of R. Jeff Jones. R. Jeff Jones died in Danville, Va., in 1902, testate, leaving bis estate to bis wife, Lenora Jones, with tbe power to sell all bis property and invest tbe proceeds in cotton mill, railroad, or bank stock, she to have tbe use of it during her lifetime as she wished.

Appeal by defendant from Shaw, J., from Guilpobd. Term of court not stated in record. This is an action tried upon exceptions to tbe report of a referee. Tbe action was begun 1 April, 1914.

Appeal by United States Fidelity and Guaranty Company from Lane, J., at the February Term, 1919, of Guilfoed. Tbis is an appeal from an order overruling a demurrer to tbe complaint. The first three allegations in the complaint allege the incorporation of the plaintiff and of the defendants, Longest & Tessier Company and the United States Fidelity and Guaranty Company. The other allegations in the complaint are as follows: 4.

Appeal by defendant from Lane, J., at November Term, 1918, of ROCKINGHAM. This action was begun before a justice of tbe peace to recover $81.60, tbe value of a box of braid “short” in a.shipment from Fall River, Mass., to Reidsville, N. C., and $1.10 freight thereon paid by the plaintiff, to the defendant at Reidsville, N. 0. On appeal to the Superior Court the jury rendered a verdict for the same amount. Appeal by defendant.

CONTROVERSY without action, heard before Lyon, J., holding courts of Tenth Judicial District, Spring Term, 1919, of Person.

<p>1. Appeal and Error — Verdict Set Aside — Matters of Law — Findings of Error — New Trial — Discretion.</p> <p>Where the trial judge sets aside a verdict of the jury for errors committed in appellant’s favor on the trial and not as a matter within his discretion, which course is not approved (Shives v. Cotton Mills, 151 N. C., 294), he should state separately at the time of the trial or in the case on appeal the several rulings he thinks erroneous which induced his action.</p> <p>2. Same — Presumptions—Assignments of Error — Objections and Exceptions —Record.</p> <p>On appeal from an order of the trial judge setting aside a verdict of the jury for errors he thinks he has committed on the trial, wherein he has not severally stated them, his action will not be reversed unless the appellant shows error, the presumption being in favor of- the correctness of the rulings in the lower court; and the exceptions should be made to properly appear of record, not only of the appellant but of the appellee, and the former should assign as error the refusal of his motion for judgment upon the verdict and the order setting the verdict aside, on the grounds that there had been no erroneous ruling against the appellee upon the trial.</p>

Appeal by intervenor, Pontiac Savings Bank, from Devin, J., at September Term, 1918, of Duei-iam. This action was begun before a justice of the peace against E. L. Richmond Company to recover $170 for breach of contract in the sale of a carload of hay. j. H. Berry, a broker of Durham, sold to the plaintiff a carload of hay that came from E. L. Richmond Company wbicb proved to be damaged. Later J. II. Berry sold to tie plaintiff another car of hay from E. L. Richmond Company.

CONTROVERSY without action, beard on case agreed before Shaw, J., at March Term, 1919, of Scotland.

ActioN tried before Ilardinq, J., and a jury, at September Term, 1918, of Gaston. Tbe action was brought by plaintiff, as trustee in bankruptcy of Luther 0. Arrowood, to subject certain land to the charge of money .alleged to have been wrongfully invested by the bankrupt in building a barn and dwelling-house and in making other improvements thereon with the consent of the owner, William 0. Arrowood, in fraud of the ■creditors of the bankrupt.

<p>Appeal by plaintiff from Adams, J., at chambers in -Gastonia, 2 March, 1919 ; from Gastost.</p> <p>This was an application for an injunction against the sale of the lot under an ordinance of Gastonia which prescribed that every surface closet or privy in the city should be cleaned and inspected under the supervision of the city, and a charge or assessment of thirty (30) cents per month was to be levied or imposed for such work, and was to be collected from the owner of the property, and with the additional provision that on failure to pay such assessment such charge shall be a lien upon the real estate upon which such closet is located. The city of Gastonia advertised a piece of real estate of the plaintiff upon which a closet was situated for dues on such closet and for other dues on closets owned by plaintiff. The restraining order was dissolved, and plaintiff appealed.</p>

<p>ActioN tried before Lane, J., at February Term, 1919, of GtotlfoRD.</p> <p>The action was brought by the plaintiff, a national bank, to recover of tbe defendants the amount of three promissory notes aggregating ten thousand three hundred and forty-nine and fifty-four hundredths dollars ($10,349.54), one dated 10 September, 1917, for four thousand three hundred and forty-nine and fifty-four hundredths dollars ($4,349.54), and due on 15 January, 1918; another dated 24 September, 1917, for one thousand dollars ($1,000), due 15 January, 1918; and a third, 8 October, 1917, for five thousand dollars ($5,000), due on 15 January, 1918. These several notes were payable at the office of the plaintiff in the city of Richmond, State of Virginia. Plaintiff sues for the recovery of the face value thereof with interest from maturity, to wit, 15 January, 1918, at the rate of 6 per cent per annum.</p> <p>The material part of the pleadings is as follows:</p> <p>The plaintiff, Planters National Bank, complaining of and concerning defendants, says:</p> <p>1. That it was, on the dates hereinafter mentioned, and ever since has been, and still is, a corporation, created, organized and existing under and by virtue of the laws of the United States prescribed for the organization of national banks, and as such is engaged in banking, with its principal office and place of business in the city of Richmond, State of Virginia.</p> <p>2. That the defendants are all residents of the county of Guilford, North Carolina.</p> <p>3. That the defendant, Wysong & Miles Co., was, at the dates hereinafter mentioned, and ever since has been, and still is, a corporation, with its home office and place of business in the county and State first above named.</p> <p>4. That on 10 September, 1917, the defendant, Wysong & Miles Co., for value received, executed and delivered unto this plaintiff, Planters National Bank, its writing obligatory, or note, whereby it promised to pay, on 15 January, 1918, to this plaintiff, Planters National Bank, or order, without offset, four thousand three hundred forty-nine and fifty-four hundredths dollars ($4,349.54), negotiable and payable at Planters National Bank, Richmond, Va.</p> <p>5. That on 24 September, 1917, the defendant, Wysong & Miles Co., for value received, executed and delivered unto this plaintiff, Planters National Bank, its writing obligatory, or note, whereby it promised to pay, on 15 January, 1918, to this plaintiff, Planters National Bank, or order, without offset, one thousand dollars ($1,000), negotiable and payable at Planters National Bank, Richmond, Va.</p> <p>6. That on 8 October, 1917, the defendant Wysong & Miles Co., for value received, executed and delivered unto this plaintiff, Planters National Bank, its writing obligatory or note whereby it promised to pay, on 15 January, 1918, to this plaintiff, Planters National Bank, or order, without offset five thousand dollars ($5,000) negotiable and payable at Planters National Bank, Richmond, Va.</p> <p>7. O. 0. Wysong and the defendants J. A. Kleemier and J. R. Brown ■all endorsed said writings obligatory, or notes, by writing tlieir several and respective names on the back of the three several notes or writings ■obligatory before the same were negotiated or delivered to this plaintiff.</p> <p>8. On each of said notes, or writings obligatory, and just above and over the signatures of the said Wysong, Kleemier, and Brown, the following entry is made: “The undersigned hereby waive demand, protest, notice of dishonor, and the benefit of the homestead exemption as to this ■debt.” Said entry just quoted on each of said notes was on there before and at the time the said Wysong, Kleemier, and Brown endorsed said ■several notes, and was and still is a part of each of said notes or obligations.</p> <p>9. 0. 0. Wysong died during the year 1918, while a resident of the ■county and State first above mentioned, leaving a last will and testament wherein he named the defendant, Fannie I. Wysong, as executrix thereof, and the said will and testament has been duly probated and recorded in the office of the clerk of the Superior Court for the State and county first above named, and said Fannie I. Wysong has been duly qualified as such executrix, and is now acting as such.</p> <p>10. The maker of, and the endorsers upon, the three several notes or writings obligatory hereinbefore referred to, and all of them, failed to pay the said three sums and every part thereof, at maturity or at any other time, so that the said three sums hereinbefore mentioned, which total ten thousand three hundred forty-nine and fifty-four hundredths, dollars ($10,349.54), are due and owing by these several defendants to this plaintiff, with interest on the full amount of the same, which total, as above stated, ten thousand three hundred forty-nine and fifty-four hundredths dollars ($10,349.54), with interest thereon from 15 January, 1918, till paid.</p> <p>Then follows the prayer for judgment.</p> <p>The defendants answered and counterclaimed, as follows:</p> <p>1. The first paragraph of the complaint is admitted.</p> <p>2. Tho second paragraph of the complaint is admitted.</p> <p>3. The third paragraph of the complaint is admitted.</p> <p>4. The allegations contained in the fourth paragraph of the complaint are admitted to be true, but the defendants allege that the note mentioned in said paragraph is one of a series of notes given by the defendant, the Wysong & Miles Go., to the plaintiff, as hereinafter set out in the second defense and counterclaim in this answer, and that the said note is usurious, and has been paid as alleged in said counterclaim.</p> <p>5. The allegations contained in the fifth paragraph of the complaint are admitted to be true, but the defendants allege that the note mentioned in said paragraph is one of a series of notes given by the defendant, tbe Wysong & Miles Co., to the plaintiff, as hereinafter set out in the second defense and counterclaim in this answer, and that the said note' is usurious and has been paid as alleged in said counterclaim.</p> <p>6. The allegations contained in the sixth paragraph of the complaint are admitted to be true, but the defendants allege that the note mentioned in said paragraph is one of a series of notes given by the defendant, the Wysong & Miles Co., to the plaintiff, as hereinafter set out in the second defense and counterclaim in this answer, and that the said note is usurious and has been paid as set out in said counterclaim.</p> <p>7. The seventh paragraph of the complaint is admitted.</p> <p>8. The eighth paragraph of the complaint is admitted.</p> <p>9. The ninth paragraph of the complaint is admitted.</p> <p>10. The allegations contained in the tenth paragraph of the complaint are not true.</p> <p>Further answering, and for a second defense and counterclaim, the defendants allege:</p> <p>That on or about 12 June, 1908, the defendant, the Wysong & Miles Co., commenced to borrow money from the plaintiff, and thereafter the said defendant, from time to time, and during a period of time extending from said 12 June, 1908, to 8 October, 1917, borrowed various sums of money from the plaintiff, and renewed the loans from time to time and about every three or four months during said period, by executing notes in renewal of former notes.</p> <p>That the plaintiff, in each and every case, and out of each and every loan of money to the defendant, simply gave the latter a credit at the plaintiff’s bank for the amount borrowed at any particular time, and permitted the defendant to check against such account to the extent of 80 per cent of the amount borrowed, and for which said defendant had executed its note to the plaintiff, and the plaintiff retained out of each loan to the defendant 20 per cent of the amount for which the defendant had given its note to the plaintiff; that in addition to retaining the 20 per cent on each loan, as aforesaid, the plaintiff reserved, charged and collected out of each and every loan made by the plaintiff to the defendant, in advance, the interest on the full amount of loan at the rate of 6 per cent per annum.</p> <p>That each and every of said loans, and each and every of said notes in renewal, including the three notes sued on in this case and set out in the complaint, formed a part of a. series of loans and notes given by the defendant to the plaintiff for such loans from time to time during the period of time from 12 June, 1908, to 8 October, 1917, and constituted one continuous transaction.</p> <p>That the said defendant, the Wysong & Miles Co., on 12 June, 1908, borrowed from the plaintiff the sum of $5,000, at 6 per cent interest, due three months from that date, but the plaintiff let the defendant have on said loan and on the note given for said loan only $4,000, and. collected from the said defendant the interest on said sum of $5,000 at the rate of 6 per cent per annum.</p> <p>That on 7 October, 1908, the defendant borrowed from the plaintiff' the sum of $5,000 at 6 per cent, due in ninety days, and gave its note-to the plaintiff for the sum of $5,000, but that plaintiff let the said defendant have on said note only the sum of $4,000, and charged and. collected from the defendant the interest on the sum of $5,000 at 6 per cent.</p> <p>That on 14 January, 1909, the defendant borrowed from the plaintiff the sum of $5,000, at 6 per cent, due in ninety days, and gave the plaintiff a note of the defendant for $5,000, but the plaintiff let the defendant have on said note only the sum of $4,000, and collected from the-defendant the interest on $5,000 at 6 per cent.</p> <p>That the said defendant, at various times and every few months during said period of time from 12 June, 1908, to 8 October, 1917, borrowed other large sums of money from the plaintiff, and gave the notes-of the defendant for said sums of money as borrowed, but the plaintiff in each and every instance let the defendant have only 80 per cent of the amount agreed to be loaned and for which the defendant gave its. note, the plaintiff reserving 20 per cent of each loan, and also charging-interest at 6 per cent on the entire sum for which a note was given by said defendant.</p> <p>That the defendants are unable to give in detail a list or statement of all of said notes and renewals, but the defendant, the Wysong &- Miles Co., paid the plaintiff as interest on said notes the sum of seven thousand one hundred and sixty-one dollars and thirty-seven cents. ($7,161.37).</p> <p>That the defendant gave to the plaintiff a large number of notes in renewal of former notes, and the notes sued on in this case are renewal notes.</p> <p>That the sum of $7,161.37 paid by this defendant to the plaintiff is; usurious and unlawful interest, knowingly charged and collected by the-pláintiff from the said defendant.</p> <p>Wherefore, the defendants demand judgment:</p> <p>1. That the defendants recover of the plaintiff on the counterclaim, set up in the answer twice the amount of interest paid to the plaintiff), to wit, the sum of $14,322.74, and also the amount of interest actually-paid, to wit, the sum of $7,161.37.</p> <p>For costs, and for such other and further relief as the defendant maybe entitled to receive.</p> <p>The plaintiff replied, denying all usury, and also denying circumstantially the existence of any transaction from wbieb usury could be inferred. It further alleged that the contracts were made in Yirginia, and were not usurious, and that the action was not commenced in time for the recovery of any penalty for the alleged usury.</p> <p>The following verdict was returned by the jury:</p> <p>1. Was there an agreement between the plaintiff and the defendant by which the defendant was to keep on deposit with the plaintiff 20 per cent of the loans made by the plaintiff to the defendant ? Answer: “Yes.”</p> <p>2. What amount of interest has the defendant paid to the plaintiff on the loans mentioned in the pleadings? Answer: “$3,846.11.”</p> <p>3. Is the defendant’s alleged cause of action barred by the statute of limitations? Answer: “No.”</p> <p>4. Is the defendant indebted to the plaintiff, and if so, in what amount? Answer: “$10,449.54, with interest on said sum from 15 January, 1918, at. 6 per cent.”.</p> <p>5. Is the plaintiff indebted to the defendant on its counterclaim as alleged in the pleadings, and if so, in what amount? Answer: “$7,693.42.”</p> <p>Judgment was rendered upon the verdict, in favor of plaintiff, for the difference between the two amounts, that is, $10,449.54 and interest and $7,693.42, to wit, $3,445.77, and costs. Plaintiff appealed because there could be no recovery for usury, and defendant appealed because the court denied a recovery for usury on any of the serial notes except those in suit, the exception being as follows: “The court erred in excluding evidence to the effect that the defendant had paid the plaintiff as interest or discount on all the loans made by the plaintiff to it, the sum of $7,161.37, and in confining the defendant to evidence as to the amount of interest or discount paid by the defendant to the plaintiff on the three notes sued on in this case.”</p>

<p>ActioN heard by Lane, J., upon the pleadings and a case agreed, at February Term, 1919, of GuilfoRD.</p>

<p>1. Insurance — Contracts—Interpretation—Lex Loci — Contractus.</p> <p>In an action brought in the courts of this State to recover upon a matured policy of life insurance issued and accepted by the insured in a sister State where the insured lived and died, the validity of the contract will be determined under the decisions of the courts of such other State.</p> <p>2. Contracts — Lex Loci Contractus — Courts — Decisions—Evidence—Questions of Law — Trials.</p> <p>Where the decisions of a sister State are controlling upon a contract made there but sued upon in the courts of this State, our courts will not take judicial notice of such decisions, but require them to be proved as other facts in the case should be established; and when so established their interpretation is a matter of law, to be decided or declared by our courts.</p> <p>3. Contracts — Insurance — Lex Loci Contractus — Courts—Decisions—Laws of Other States — Georgia.</p> <p>It is held in this case that, under the decisions of the Supreme Court of Georgia the delivery of a life insurance policy by the agent of the Company to the insured, while the latter was upon his bed with a sickness from which he afterwards died, did not' bind the insured upon the policy contract contrary to a provision therein, and in the application for the policy, that it would be invalid under the circumstances, and under a provision of the policy that the act of the agent could not therein vary the terms of the contract, there being no element or suggestion of fraud in the transaction.</p>

Appeal by defendants from Long, J., at August Term, 1918, of Davie. This was an action for the recovery of a tract of land containing 30% acres and to set aside a deed from plaintiff to ber husband, Tbomas M. Anderson, deceased, under whom the defendants claim, upon the ground that said deed was void because not executed with the certificate of the officer as required by Rev., 2107.

ActioN beard before Webb, Jupon, exceptions to a referee’s report, at December Term, 1918, of Bukke. The plaintiff alleged that the defendants are indebted to it in the sum of $1,917.10, being the balance due on an account for manufacturing the lumber of defendants at its plant and for other services rendered in connection therewith.

Appeal by defendants from Adams, J., at February Term, 1919, of Mecklenbubg. Tbe plaintiff recovered judgment for damages for breach of contract against the defendant railroad company. The plaintiff sued as the assignees of the contract which said railroad company had made with Porter & Boyd^ Co. for building a railroad bridge across the Catawba near Mount Holly.

<p>1. Domicile — Executors and Administrators — Intent—Change of Residence— Clerks of Court — Statutes—Burden of Proof.</p> <p>. In order to effect a change of “domicile,” as distinguished from “residence” or “inhabitancy,” within the intent and meaning of our statute giving jurisdiction to the clerk of the court in issuing letters testamentary or of administration, Rey., sec. 16 (3), the intent of the deceased, though he may have left his domicile for the purpose of making the change, and the physical change of residence by him,, are both necessary, the one without the other being insufficient, the law being that, though he may have formed the intention to change his domicile, if there is no actual change of residence his domicile remains at his former home, the burden of proof being on the person applying to the clerk for letters to show the jurisdictional fact; but where both the elements are shown, the length of residence in the new place prior to the death of the deceased is not material.</p> <p>2. Domicile — Clerks of Court — Executors and Administrators — Judgments— Actions — Collateral Attack.</p> <p>The right of the clerk of the Superior Court to issue letters testamentary or of administration is made by our statute, Rev., sec. 16 (2), to depend upon the domicile of the deceased within the county, and being jurisdictional, the validity of letters issued by him may be collaterally attacked, by a proper party in interest or in a direct proceeding, depending upon the state of the record in each particular case and the special question involved.</p> <p>3. Same — Record.</p> <p>Where the record in proceedings to obtain letters testamentary or of administration on its face, by presumption of law or a recital of facts, shows the proper domicile, the judgment of the clerk of the court granting them may only be attacked for lack of jurisdiction in direct proceedings, recitals therein that the deceased, late of a certain county, is dead, intestate,' being sufficient; but it is otherwise if the lack of jurisdiction so appears, for then the judgment may be attacked collaterally.</p> <p>4. Domicile — Clerks of Court — Executors and Administrators — Judgments— Parties in Interest — Actions.</p> <p>AYhere one claiming to be administrator brings an action, as such, to recover damages for the negligent killing of his intestate, the defendant is a party in interest, who may attack the validity of the proceedings wherein the administrator was appointed, upon the ground that the domicile of the intestate was not in that county, and that the clerk therefore lacked jurisdiction in the matter, Rev., sec. 16 (3), and this may be done in a direct proceeding, as was done in this ease, or collaterally, as may be proper, in the particular case.</p> <p>5. Domicile — Clerks of Court — Executors and Administrators — Subsequent Appointment — Admissions.</p> <p>Where letters of administration have been granted in one county and thereafter the administrator takes out letters in another and the proper county for tlie purposes of the suit, to which he has been made a party at his request, his having done so has somewhat the appearance of an admission that the prior letters were void, but this is not conclusive upon him. This is said arguendo.</p> <p>6. Limitation of Actions — Executors and Administrators — Void Appointment — Clerks of Court — Jurisdiction—Actions—Parties.</p> <p>Where one has attempted to qualify as administrator under letters issued by the clerk of the Superior Court of a county having no jurisdiction, and brings his action within the time prescribed, and thereafter has qualified in the proper county and applied to the court for permission to become a party to the pending action, to recover damages for the negligent killing of his intestate, the two years within which the action may be brought under our statute having expired at the time of his application to become a party, it is error for the court to permit him to become a party, for the former proceedings could not be maintained under a void qualification as administrator, and the course taken subsequently cannot have the effect of reviving them, as the requirement that the action for the death shall be brought within two years thereafter is a condition precedent annexed to the cause of action, and its prosecution, and not a statute of limitations.</p>

Appeal by plaintiffs from Long, Jat the February Term, 1919, of Caldwell. This is an action brought by A. W. Dula and others against the Board of Trustees of the Lenoir Graded School, asking for a writ of mandamus to compel the said Board of Trustees of the Lenoir Graded , School to open and operate the said school in Lenoir for the balance of the school term, which began in September, 1918, and was to close about 15 May, 1919.

.Appeal by defendants from Cline,'J., at September Term, 1918, of' Watauga. On tbe return of tbe restraining order tbe plaintiff moved for the-continuance thereof to the bearing, and tbe defendants moved to vacate-tbe restraining order and to dismiss tbe action. Tbe court denied the-motions of tbe defendants and continued tbe restraining order to the-bearing. Appeal by defendants.

<p>1. Parties — Statutes—Governor—State Board of Agriculture — State Warehouse Superintendent — Cotton Warehouse Act.</p> <p>The Governor, under the provisions of the Revisal, sec. 528, is the proper party plaintiff in an action for mandamus to compel the State Tax Commission to provide and enforce the machinery for the collection of the tax of twenty-five cents upon each bale of cotton ginned, etc., as provided by ch. 168, Laws 1919, entitled “An act to provide improved marketing facilities for cotton”; and the State Board of Agriculture and the State warehouse superintendent are also proper parties plaintiff under section 2 of the act in question, requiring that its provisions shall be administered by them.</p> <p>2. Constitutional Law — Statutes—Interpretation.</p> <p>The constitutionality of a statute will be presumed, all doubts should be resolved in its favor, and it will not be declared unconstitutional by our courts unless it is so proved beyond a reasonable doubt.</p> <p>3. Same — Taxation—“Trades”—Cotton Ginners — Farmers—Special Tax.</p> <p>Sec. 5, ch. 168, Laws 1919, entitled “An act to provide improved marketing facilities for cotton,” enacts that on each bale of cotton ginned in North Carolina for two years, twenty-five cents shall be collected “through the ginner of the bale and paid into the State Treasury” to specially guarantee or indemnify the State warehouse system- against loss, requiring the State Tax Commission to provide and enforce the machinery for the collection of the tax, etc.: Held, the act is constitutional and valid, and not in derogation of Article V, section 3 thereof, the tax contemplated being uniform upon those of the class designated, and being laid upon a trade, whether that of cotton ginning or farming,, and is within the-authority conferred on the Legislature to further “tax trades,” etc.</p> <p>4. Constitutional Law — Statutes—“Workable” Provisions — Courts.</p> <p>Whether a statute is “workable” in its intended beneficial effect is for the Legislature to determine, and will not be considered by the courts in passing upon the constitutionality of the statute.</p> <p>5. Constitutional Law — Taxation—State Agencies — Statutes—Mandates.</p> <p>An agency of the State, required to provide the machinery for and the enforcement of a tax to be levied under the provisions of the .statute, may not pass upon the constitutionality of the act and refuse to obey- its mandate.</p> <p>Walker, J., concurring in result; Allen, J., concurring in part only.</p>

. Appeal by plaintiffs from Harding, J., at Mareb Term, 1918, of SCOTLAND. This is an action to recover land. Tbe lands in question were owned by Hugh L. Patterson, wbo c[ied September, 1870, leaving a will, wbicb reads as follows: In tbe name of God, Amen. I make this my last will and testament, viz: Item 1.

<p>1. Costs — Transcript—Motions—Judgments—Jurisdiction.</p> <p>The costs of preparing and transmitting the record on appeal to the Supreme Court are costs of the Superior Court, cand therein motions, orders or judgments affecting or taxing them should be made.</p> <p>2. Same — Copying Transcript — Printing Record — Unnecessary Matter.</p> <p>Where it was formerly adjudged in the Supreme Court that the appellant had put into the printed record immaterial and irrelevant matter, which was not set up at the appellee’s instance, and not taxable against the latter in taxing the costs of the appeal against him, and there is a later appeal from an order of the Superior Court taxing the defendant for the copying of such immaterial and irrelevant matter appearing in the transcript of the case sent up: Held,, Rule 22, of the Supreme Court applies to the copying as well as printing the unnecessary matter, and the order appealed from will be reversed.</p> <p>3. ¿ame — Appeal and Error — Prosecution Bond — rDuty of Courts — Statutes. —Rules of Court.</p> <p>The taxing of costs of an action is a creature of statute in contemplation of which each party pays his own costs as the cause proceeds, the prosecution bond being for the security of such costs as the defendant may have wrongfully been compelled to pay, and it is the duty of the Court to prevent imposition therein. Therefore an appeal will lie from an order taxing costs of an action made by the Superior Court judge. Supreme Court Rules 19, 21, 22, 31.</p>

, at December Term, 1918, of Gates. The judge, upon the affidavits, foimd the following facts: 1. On 23 August, 1918, a restraining order in a cause pending, to which the respondent T. J. Parker was party defendant, was issued, a copy of said order is hereto attached.

Appeal by defendants from Allen, J., at the April Term, 1919, of Wake. This is an action brought by the plaintiff, Walter J. Norwood, against the defendant, Ralph H. Crowder, and also against the plaintiff’s brother, W. II.

<p>1. Common Law — Presumptions—Courts—Trials—Evidence.</p> <p>The laws of our sister State are applicable to the trial of a cause in our own courts when it arose there, with the presumption that the common law prevails in the absence of evidence to show otherwise.</p> <p>2. Carriers of Passengers — Waiting Rooms — Stations—Negligence—Heat: .</p> <p>A common carrier of passengers is liable in damages for the sickness of a passenger caused by his having to wait for a late train, after having purchased his ticket therefor, in cold and inclement weather, in its waiting room, insufficiently heated, owing to the negligence of the carrier.</p> <p>3. Instructions — Expression of Opinion — Statutes—Negligence.</p> <p>A charge in a negligence case is not violative of our statute prohibiting the judge from expressing his opinion to the jury on the facts, because he instructs them that defendants may not always be punished for negligence, by reason of the use of the words “as in this case,” when he further states, “if there is any injury,” saying, in effect, that damages may not always be recovered for a personal injury.</p> <p>4. Same — Carriers of Passengers — Waiting Room — Heat—Stations.</p> <p>, In an action to recover of the carrier damages alleged to have been caused a passenger by the negligent failure of the defendant to heat its waiting room in cold and inclement weather: Held, an expression in the charge, “was the negligent act of the defendant to furnish the heat the direct cause of the plaintiff’s injury?” is not the judge’s opinion upon the facts, forbidden by statute, when followed by the words, “if you find there was a negligent act”; and there is no merit to an exception to his statement that there was evidence to show the plaintiff suffered, when in fact there was such evidence.</p> <p>5. Instructions — Fragmentary Parts — Negligence—Expression of Opinion-</p> <p>In the plaintiff’s action for damages arising from the defendant’s negligent acts, the charge, construed as a whole, properly made the recovery to depend upon the establishment of the negligence alleged, and in this connection the judge said, “Was the failure of defendant’s duty the cause of the plaintiff’s sickness,” etc., which is held not an expression of the judge’s opinion upon the facts prohibited by our statute.</p> <p>6. Same — Separate Waiting Room — Stations—Statutes—Common Law.</p> <p>A charge of the court upon the duty of a common carrier to provide and sufficiently heat in cold and inclement weather its separate waiting rooms for white and colored people, under the provisions of our State, is immaterial and harmless, where the cause of action arose in another State, and the common law is presumed to be applicable if, in fact, the carrier had provided the separate waiting rooms at the station in question.</p> <p>7. Instructions — Appeal and Error — Favorable Charge.</p> <p>A charge of the court to the jury that is favorable to the appellant cannot be considered as reversible error.</p>

ActioN tried before Cline, J., and a jury at October Term, 1918, of Wilkes. Plaintiffs sought to recover damages for malpractice of defendants, physicians and surgeons, in wrongly and negligently diagnosing the feme plaintiff’s pregnancy as a case of fibroid tumor of the uterus or an ovarian tumor.

Appeal by defendant from Finley, J., at the March Term, 1919, of Yaptcey. This is an action against the sheriff of Yancey County and the sureties on his bond to recover $10,518.30 alleged to be due on the taxes for 1916, and also to recover the penalties provided for by statutes for the-nonpayment of said amount.

ActioN of devisavit vel non,-tried before Justice, J., and a jury, at February Term, 1919, of Buncombe. Tbis is a proceeding begun before the clerk of the Superior Court of Buncombe County to probate a paper-writing purporting to be the last will and testament of Margaret Deyton, deceased, in solemn form. A ■caveat having been filed, the issue devisavit vel non was raised and the cause was transferred to the civil issue docket for trial upon that issue.

<p>1. Constitutional Law— Roads and Highways— Taxation— Bonds— Special Purpose — Necessary Expense.</p> <p>Chapter 284, Public Laws of 1917, authorizing counties to issue bonds for the purpose of laying out and operating, altering and improving the public roads of the county, etc., is for a special purpose within the intent and meaning of Article V, section 5, of our Constitution, and not within that of section 1 of the same article prescribing the limitation and equa-: tion between the property and the poll tax; and being for a necessary county expense, the vote of the people within the county is not required by our Constitution, Art. VII, see. 7.</p> <p>2. Constitutional Law — Amendments—Roads and Highways — Private Laws. —Statutes.</p> <p>The restriction placed by the amendment of 1916 to our Constitution upon the General Assembly to pass local or private laws as to public highways has no application to the provisions of chapter 284, Public Laws of 1917, for the statute relates to the establishment of roads, ferries and bridges for the whole county at such places as deemed expedient by the local authorities charged with the duty of providing and supervising them, and not for the laying out or maintenance of a special road or' erecting a certain bridge, etc. Brown v. Comrs., 173 N. G., 589; Mills v. Oom/rs., 175 N. C., 215, cited and distinguished.</p> <p>3. Constitutional Law— Statutes— Taxation— Special Purpose— Necessary Expense — Vote of People.</p> <p>Chapter 284, Public Laws of 1917, is a sufficient approval by the General Assembly for the levy of a tax exceeding the constitutional limit fixed by Article V, section 1, to pay the interest on, and create a sinking fund for, bonds issued by the county for the laying out, maintenance, etc., of its public roads under the provisions of the act, though po provision for a vote of the people authorizing such levy has been made by the statute, the purpose designated being for a necessary expense within the meaning and intent of our Constitution, Art. VII, sec. 7, and not requiring it. As to whether in this case the people having voted for the bonds virtually or impliedly voted for the tax, Queref</p>

Action tried before Guión, J., and a jury at January Term, 1919, of Duplin. Plaintiffs sued for damage wliicb tbey alleged was caused by defendant’s negligence in burning tbeir timber. It appears that the defendant was operating a locomotive engine on its railway about sixty-five or seventy yards from the place where the fire started, which was on the edge of a branch.

Appeal by plaintiff from Long, J., at the May Term, 1919, of Caldwell. Held: but that no new registration should be required for such second election. An election was held under this act on 8 May, 1917, and a majority of the votes cast was against the issue, of the bond.

Appeal by defendant from McElroy, J., 8 April, 1919, from SwaiN. This is an action to perpetually enjoin the defendant from interfering with the operation of plaintiff’s flume, which extended for about fifty feet across defendant’s land.

Appeal by plaintiffs from McElroy, J., at the January Term, 1919, of Haywood.

AotioN tried before McElroy, J., on demurrer, at March Term, 1919,. of Chebokee. The plaintiff, who was employed by defendant E. R. Seeley, alleges-that he was injured by the negligence of his employer, as set forth in the complaint.

' Appeal by plaintiff from Calvert, J., at tbe August Term, 1918, of EbANKLIN. This is an action to recover money alleged to be due by note and by open account, in wbicb tbe defendant pleaded a counterclaim.

ActioN tried before Starbuch, J., in Forsyth County Court, and on appeal tried before Bryson, J., at January Term, 1919, of Foesyth. This action was brought to recover a debt secured by a conditional sale note. The plaintiff, who lives in Forsyth, also sought to recover possession of the personal property — one piano, described in the note, which was situated in Lee County.

<p>New Trials — Newly Discovered Evidence — -Laches—Burden of Proof.</p> <p>The Supreme Court will not order a new trial for newly discovered evidence that is merely cumulative, or without probability that the result would be thereby changed, and the burden is upon the petitioner to show by the facts and circumstances, and not by his bare general averment, that he has been free from laches in not having produced it at the trial, or that its omission was not due to his lack of reasonable diligence.</p>

Appeal by plaintiff from Harding, J., at tbe September Term, 1918,. of GastoN. This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff by the explosion of a dynamite-cap on the lands of the defendant, which the plaintiff had leased, the plaintiff at the time of the explosion being engaged in heating water for killing hogs of the defendant. The plaintiff was injured on 24 February, 1914.

Appeal by defendants from Allen, J., at tlie December Term, 1918, •of LeNOIR. Tlie defendants — Perry, a white man, and Ogleston, a negro — were convicted under an indictment charging the unlawful manufacture of spirituous liquors and appealed from the judgment rendered upon the verdict.

<p>AotioN tried before Lane, J., and a jury, at the December Term, 1918, ■of Foestth.,</p>

Appeal by defendant from Bryson, J., at January Term, 1919, of Foesyth. Indictment for having in possession more than one gallon of spirituous liquor for purposes of sale. Tbe defendant was tried and convicted in tbe municipal court of Forsytb and on appeal to tbe Superior Court was again convicted.

<p>Discovery — Examination Before Trial — Aid in Pleading.</p> <p>Tbe plaintiff in an action for injuries by alleged neglect of a physician may,, under Revisal 1905, sec. 866, providing that an examination of a defendant may be bad at any time before tbe trial, bave an examination of defendant to aid bim in filing bis complaint, where be alleges tbat he knows tbe facts generally and substantially, but tbat defendant has tbe precise knowledge necessary for proper proceedings.</p>

Appeal by defendant from Bond, J., at September Term, 1918, of PASQUOTANK. The defendant was indicted and convicted in tbe recorder’s court for having in bis possession sixteen gallons of whiskey for the purposes of sale. On appeal to the Superior Court he was again convicted and appealed.

INDICTMENT tried before Daniels, J., and a jury at November Term, 1918, of Wayne. Tbe prisoner was charged with rape, committed on tbe person of' Mrs. Sarah King, on 17 January, 1918. Tbe prosecutrix testified that she was alone in tbe field picking cotton, about 5 o’clock in tbe afternoon, when tbe defendant approached her from tbe negro cemetery and asked her what she received for picking cotton, and then if tbe butcher-wagon bad passed by.

Appeal by defendant from Kerr, J., at the August Term, 1918, of RERTIE. This is an indictment for an unlawful assault with a deadly weapon ■on one 0. T. White while defendant, as constable and chief of police of the town of Aulander, was endeavoring to arrest the said prosecutor, C. T. White, for disorderly conduct in breach of the criminal law.

AotioN tried before Lyon, J., and a jury at August Term, 1918, of' CuMBBRLAND. Tbe prisoner was indicted for the murder of Yivian L. Bundy, and was convicted of murder in the second degree. The State’s evidence tended to show that Bundy, the deceased, was woods boss of a gang of sawmill hands, of whom the defendant, Dave Evans, was one.

ActioN tried before Bryson, J., and a jury at tbe December Term, 1918, of Eoesyth. Tbe prisoner was indicted for tbe murder of Charles White. .

INDICTMENT for highway robbery, tried before Bryson, J., and a jury at Spring Term, 1919, of Foestth. Defendants were convicted, sentenced and appealed.

Appeal by defendant from Shrnu, J., at December Term', 1919, of GuiLPORD. Indictment for selling spirituous liquor. The defendant was found guilty and sentenced to eight months on the public roads, and appealed.

Appeal by defendant from Shaw, Jat the December Criminal Term, 1918, of Gtulfobd.

Appeal by defendant from Lane, J., at January Criminal Term, 1919, of GuilfoRd. Tbe defendant was indicted for murder in tbe first degree. At tbe beginning of tbe trial tbe solicitor stated in open court that be would ask a conviction only for murder in tbe second degree or of manslaughter. Tbe evidence is stated in tbe case settled upon agreement as follows: “James Greeson, on Christmas Day 1918, was running a small illicit still near bis bouse in Guilford County.

Appeal by the State from McElroy, J., at September Term, 1919, of G-baiiam, from a judgment upon this special verdict: “On the first day of September, 1918, J. A. Ammons, sheriff of Graham, had in his possession a capias with him, which was issued from the Superior Court of Graham on a bill of indictment, commanding him to arrest one Mack Burchfield; that he took Sherman Orisp and eight others with him and started to the home of said Burchfield to make the arrest, and on the…

Appeal by defendant from Ray, J., at March. Term, 1919, of BuN- The defendant,.a colored chauffeur, was indicted and convicted on a charge of manslaughter and sentenced to four months in jail, with authority to commissioners to hire him out.

INDICTMENT for murder, tried before Calvert, J., and a jury at December Term, 1918, of Wake. At the call of the cause for trial, the solicitor for the State announced in open court that he would not insist on a verdict of murder in the first degree but would ask for a verdict of murder in the second degree or manslaughter, as the evidence might disclose.

ActioN tried before Calvert, J., and a jury, at January Term, 1919, of Bladen. Tbe action is against tbe register of deeds of Bladen County and tbe surety on bis official bond to recover damages alleged to bave been caused by tbe register’s negligence in failing to properly index and cross-index a prior mortgage whereby tbe relator of plaintiff, bolding a record mortgage and contract, suffered substantial damage.