Volume 178 — North Carolina Reports

Appeal by plaintiff from Devin, March Term, 1919, of Ctte-eituck. This was an action by plaintiff to recover $295.20, the value of certain cotton sold to the defendant, the Elizabeth City Milling Company, by one A. Cherry, against whom the plaintiff held a mortgage. The complaint alleged that the mortgage was duly recorded in Cur-rituck. At the trial the defendant demurred ore terms and moved to dismiss upon the ground that the complaint did not state a cause of action.

<p>Deeds and Conveyances — Equity — Correction — Trusts — Mortgages—Evidence.</p> <p>A deed absolute upon its face may not be declared a mortgage by tbe courts in tbe absence of allegation and proof tbat tbe redemption clause bad been omitted by mistake or tbat it bad been induced by fraud and under advantage taken; and where tbe grantor was competent to fully understand tbe instrument, bad kept it a week before signing, though spoken of in tbe letter of transmittal as a deed in trust “as per agreement,” be is bound by bis deed, and bis testimony tbat tbe grantee and himself bad agreed that it should be given to secure a loan, is insufficient to convert it into a mortgage.</p>

Appeal by plaintiff from Devin, J., at August Term, 1919, of TYRRELL. Tbis action was instituted, on tbe 27tb day of June, 1916, to bave a sale for partition of tbe lands described in tbe complaint and to compel an accounting by tbe defendant of tbe timber cut from tbe said lands. The plaintiff alleged that be was tbe owner of three-fifths undivided interest in tbe said lands, and that tbe defendant was tbe owner of the remaining two-fifths interest.

<p>ActioN tried before Devin, J., and a jury, at May Term, 1919, .of Hyde.</p> <p>Plaintiff sought to have established a resulting trust as to one undivided interest in a tract of land, which he alleges was purchased by him and his brother, W. S. Harris, the deed having been made to the latter for their joint benefit, and that he |>aid one-half of the purchase money.</p> <p>The jury found for the plaintiff upon the following issues:</p> <p>1. Was half of the purchase money expended in buying the McGowan land described in the complaint, furnished by plaintiff, George W. Harris, and did Sanford Harris take a title to same to hold one-half interest in same in trust for the benefit of George W. Harris, as alleged ? Answer: “Yes.”</p> <p>2. Is plaintiff, George W. Harris, owner of one-half of the fund on deposit in the Bank of Hyde to credit of Sanford Harris at the time of his death? Answer: “Yes.”</p> <p>Judgment was entered for the plaintiff, and defendant appealed. •</p>

Appeal by Carrie W. Hancock, Exrx., from Devin, J., at April Term, 1919, of BEAUFORT. This was a civil action instituted in tbe Superior Court of Beaufort County, in October, 1916, to recover for alleged conversion by Samuel W. Latham of the proceeds of the sale of certain lands. The action was commenced in the right county. Complaint was filed 27 December, 1917. No answer was filed.

Appeal by defendant from Devin, J., at December Term, 1919, of PasquotaNK. Early in 1918 Daniels & Cox, millers, at Elizabeth City, N. 0., made a contract with Southern Distributing Company of Norfolk, Va., for the sale of five hundred bags of meal, to be shipped in 100-bag lots, to be delivered f. o. b. steamer, Elizabeth City. On 9 March, plaintiffs shipped defendant 100 bags meal via “Peoples Line.” There were other shipments, but they are not concerned in this appeal.

MotioN beard by Devin, J., oil 8 May, 1919, in Beaufort. The court had issued an order restraining the defendants from in any way interfering with a certain road, and on return of the order, and after hearing the evidence and the argument of counsel, the court granted an interlocutory injunction to the final hearing, forbidding the defendants from entering upon the premises or using the road except strictly for purposes of ingress and egress, as heretofore, and no more.

<p>Constitutional Law — Husband and Ofe^-Lunatic — Statutes—Deeds and Conveyances. v</p> <p>The provisions oí the Revisal, sec. 2116, dispensing with the necessity of the written consent oí the husband to the conveyance by the wife oí her lands when he has “been declared an idiot or a lunatic” is not inhibited by our State Constitution, Art. X, sec. 6, or in conflict with Re-visal, sec. 1898, providing for proceedings by petition before the clerk to obtain an order of sale, the remedy given by these two sections being in the alternative,, and optional by the wife as to which may be pursued.</p>

Appeal by plaintiff from Bond, J., at June Term, 1919, of BuNCOMBE. Tbe plaintiff by oral contract sold.’ to tbe defendant tbe mill timber on bis land, tbe same to be measured and paid for at tbe rate of $6 per thousand feet before removal. Tbe plaintiff admits that tbe defendant paid at tbat rate for all tbe timber cut and removed, but alleges tliat tbe defendant cut 163 other logs which be left lying upon tbe land.

Appeal by defendant from Qonnor, J., at Chambers, 14 August, 1919 ; from MaetiN.

<p>Appeal by defendant from Bond, J., at February Term, 1919, of Nash.</p> <p>This is an action for specific performance of an option in favor of the plaintiff to cut timber. Yerdict and judgment for the plaintiff. Appeal by the defendant.</p>

<p>ActioN tried before Harding, J., at August Term, 1919, of Caldwell.</p> <p>This case was before this Court at the last term, and our decision therein is reported in 177 N. C., at p. 516, where the facts are stated, so far as pertinent to that appeal. We there held that the act of 1919 increasing the rate of interest, as fixed by the Public-Local Laws of 1917, ch. 67, from 5 per cent to a rate not exceeding 6 per cent was invalid, not having been passed in accordance with the Constitution, Art. II, sec. 14. Since that case was decided the board of commissioners of the county has properly advertised the meeting for the sale of the bonds, and the meeting was held accordingly, at which the commissioners received and accepted a bid for the bonds at a 5 per cent interest rate. The plaintiff sought and obtained a restraining order, and at the hearing of the application for an injunction the court, by consent of the parties, found the facts, and concluded therefrom that the bonds proposed to be sold to the successful bidder will be valid obligations of the county. The court held the bonds to be valid and so adjudged, but enjoined any issue of bonds bearing more than 5 per cent interest. Plaintiff appealed.</p>

Habeas corpus proceedings to determine the rightful custody of an infant child, heard before Devin, J., at Chambers in February, 1919; from Beaufort. There was judgment denying the petition, and petitioner appealed.

ActiON tried before Devin, J., and a jury, at March Term, 1919, of Pasquotank. The action is to recover damages for failure to deliver 100 barrels of seed potatoes, pursuant to a contract of defendant with plaintiff, J. W. Eichardson, and in wbieb coplaintiff had acquired an interest pending negotiations. The amount of $5 per barrel had been paid by plaintiff making order, on “deposit,” to be applied towards the purchase money, pursuant to the terms of the agreement.

Appeal by plaintiff from Devin, J., at January Term, 1919, of Pas-QUOTANK. This is an action to recover damages for the wrongful death of the plaintiff’s intestate, caused, as the plaintiff alleges, by the negligence of the defendant, in that it failed to furnish the intestate reasonably safe tools and appliances with which to do his work, to wit, rubber gloves. 2. That it failed to furnish sufficient help for the work that was being done.

Appeal by all parties from Devin, J., at March Term, 1919, of Ctjr-RITUCK. This action was instituted by the plaintiff to recover the sum of $1,000 and interest alleged by her to have been bequeathed to D. W. Wood-house to hold in trust for the plaintiff by and under the terms of the will of Hiram Gregory, deceased.

CONTROVERSY to determine the question whether defendants can be compelled to lay special township tax for road purposes, heard on case agreed before Bond, Jat June Term, 1919, of Edgecombe. The pertinent facts appearing in the case agreed are as follows: 1. That the township road commission of No. 10 Township is a corporate body, duly created and existing under and by virtue of the Public Laws of the State of North Carolina.

Appeal by plaintiff from Devin, J., at June Term, 1919, of Washington. Tbis is an action to compel specific performance of a contract to convey land, the defendant herein being the registered owner of the land' under the Torrens Law. The plaintiff admitted upon the trial that his contract had not been registered under the Torrens Law and that the affidavit required by section 25 of said law had not been filed. The jury returned the following verdict: 1.

ActioN tried before Connor, J., at April Term, 1919, of Iíektfoed.

<p>1. Husband and Wife — Alimony—Attachment—Ancillary Remedy — Statutes.</p> <p>Chapter 24, Public Laws 1919, is an ancillary remedy given to the wife abandoned by the husband, “to have a reasonable subsistence allotted and paid or secured to her from the estate or earnings of her husband,” thus giving her a remedy both in personam and in rem.</p> <p>2. Same — Contracts—Summons—Service—Publication.</p> <p>An attachment against the husband’s land will lie in favor of the .wife, abandoned by him, for a reasonable subsistence or allowance adjudged by the court, under the implied contract, that he support and maintain her, under the statute declaring and enforcing it and under the order of court: and attachment of the husband’s land is a basis for the publication of summons. Cli. 24, Laws 1919.</p> <p>3. Husband and Wife — Alimony—Debtor and Creditor — Priority.</p> <p>The wife’s inchoate right to alimony makes her a creditor of her husband, enforceable by attachment, in case of his abandonment, which puts every one on notice of her claim and her priority over other creditors of her husband.</p> <p>4. Attorney and Client — Special Appearance — Written Authority — Statutes.</p> <p>Upon special appearance of the attorneys of the husband whose property has been attached by the wife under the statute, for the purpose of dismissing the action, the court should, on motion made, require them to file their written authority. Rev., sec. 213.</p>

ActioN tried before Guión, J., and a jury at May Special Term, 1919, •of Bertie. Plaintiff C. E. Bryant brought suit against his. brother, A. 0. Bryant, to establish a parol trust. He alleged that the administrator of the •estate of his father filed a petition to sell the land in controversy to make assets; that a sale was ordered and the land was advertised for ■sale during the year 1887, and that the plaintiff, 0. E. Bryant, and the ■defendant, A. 0.

ActioN tried before Connor, J., at July Term, 1919, of Lee. This was au application for a mandamus to compel tbe chief of tbe fire department and ex oficio building inspector of Sanford to issue a permit for tbe erection of an oil or gasoline distributing plant in tbe said town, at tbe corner of tbe Southern Railway right of way and Washington Street, a fully itemized description of which accompanied tbe plaintiff’s written application.

<p>Appeal by defendant from Kerr, <7., at February Term, .1919, of HaRNett.</p>

<p>Appeal by defendants from Guión, J., from May Term, 1919, of Bertie.</p>

ActioN tried before Devin, J., and a jury, at April Term, 1919, of Beaufort. The action is to recover damages for physical injury, caused by alleged negligence of defendant in not supplying plaintiff, an employee, with sufficient and proper tools with which to do his work. On denial of liability and plea of contributory negligence, there was verdict for plaintiff and assessing damages at $550.

<p>Appeal by plaintiffs from Kerr, J., at April Term, 1919, of JohustoN.</p>

ActioN in tbe nature of a bill of interpleader, beard on motion to require plaintiff to pay tbe money into court, before Connor, J., at May Term, 1919, of Beetie. There was judgment directing tbe plaintiff to pay tbis fund into court or give a solvent bond to secure tbe same, etc. Plaintiff excepted and appealed.

Appeal by plaintiff from Kerr, J., at March Term, 1919, of Chatham. This is an action on three notes, one for $903 being the only one as to which any question is raised by the appeal. The defendant pleaded usury, and the jury found that $100 of the $903 note is usurious. The defendant has paid nothing to the plaintiff.

Appeal by plaintiff from Kerr, J., at December Special Term, 1918, of Chatham. This is an action to recover damages for breach, of contract in refusing to allow the plaintiff to cut and remove certain timber. The contract was executed on 18 April, 1914.

Special proceedings for partition of land instituted before clerk, transferred to Superior Court on an issue of sole seizin, made by one of defendants, Lucy Holland, etc., and tried before Kerr, J., and a jury at February Term, 1919, of HabNett. There was verdict for defendant on the issue. Judgment, and plaintiffs excepted and appealed.

Appeal by Luther Parham from Connor, J., at Chambers, 31 January, 1919; from VaNCE. This is a controversy submitted without action upon facts agreed for the construction of the will of Missouri A. Parham. She executed the will on 28 April, 1902, and the next day wrote to the draftsman of the will the following letter: “April 29, 1902. “OaptaiN Shaw : — I do not recollect hearing you read it in the will, about the house.

<p>Appeal by plaintiffs from Daniels, Jat April Term, 1919, of Pitt.</p> <p>This was an action to establish a boundary line. On 8 December, 1904, the defendant and Dr. Moye agreed to partition a tract of land which they held as tenants in common — two-thirds to defendant and one-third to Dr. Moye, and employed J. D. Cox to survey the land for partition. They were with the surveyor and the division line-was run by him with their approval, and was marked at the time, through the cleared land by a fence and in the woodland by chopped trees and well defined surveyor’s marks to Tar River, and the deed was made at that time. It further appears from the record that from the date of the survey Dr. Moye occupied only the land lying to the east thereof and the defendant occupied and cultivated the land to the west of this division line. Dr. Moye conveyed the part which he then held in sev-eralty to Ada M. Cherry and husband in January, 1906, who recognized this division line. They conveyed in October, 1908, to the plaintiff, who went into possession of said land, claiming only up to the division line between Jeffress and Moore as marked by the dividing fence and the chopped trees. When the plaintiff purchased said land he had actual knowledge of this boundary line to which Jeffress and Moye and the grantee of the latter had occupied. He made no other claim prior to June, 1916, when Harding, surveyor, suggested to him that if he desired to put his lands on the market for sale it would be wise to have the lands surveyed and platted according to the courses and distances contained in the deed. According to that survey he would obtain the locus in quo, but to do so the line would not only take in land which the defendant had been all the time occupying, but would run through certain buildings which were on the defendant’s side of the line, as it had been surveyed and marked on the ground by the surveyor when Moye and Jeffress were present, and agreeing upon the division. The jury found that the marked line was the true line, and the plaintiffs appealed.</p>

Tbe ground of bis claim being fully set forth in bis written protest, duly filed in tbe proceedings; beard before Daniels, J., at June Term, 1919, of CaRteret.

<p>ActioN tried before Guión, Jand a jury, at May Term, 1919, of Pitt.</p> <p>The action was brought by the feme plaintiff against the defendant to recover of it an alleged deposit of two thousand and ninety and 56-100 dollars, and to recover damages for refusal of defendant to honor plaintiff’s check. (This last cause of action, however, has been abandoned.) The facts out of which this controversy arose may be briefly stated as follows:</p> <p>Prior to the fall of 1915, plaintiff’s husband, who is a party to this action, and W. L. Hall were doing a partnership business in the town of Greenville, and engaged in buying and selling farm products. The firm carried a banking account with defendant, and for the purpose of securing overdrafts executed to defendant company their note for two thousand dollars, appearing in the record. W. M. Moore signed this note as surety.</p> <p>Thereafter said firm and the said W. M. Moore, as surety, became indebted to defendant bank in the sum of two thousand ninety and 56-100 dollars. The firm became financially distressed, failed, and refused to pay the note. Hall was absolutely insolvent; Moore refused to pay, stating “that all of his property was in his wife’s name, and the bank could whistle for its money.”</p> <p>Thereupon the credit of the firm having been given upon the bona fide belief of the bank in Moore’s solvency, the bank investigated Moore’s financial condition. This investigation disclosed that Moore had had considerable property, the title to all of which had become vested in his wife, the plaintiff; it found that plaintiff and her husband were the joint owners of a valuable residential lot in the town of Greenville, which they had purchased in 1908, and which they sold in the fall of 1915 for $12,000 cash, six thousand dollars of which was deposited by W. M. Moore in the National Bank of Greenville in the name of the-plaintiff, and the other six thousand dollars was deposited in the defendant bank by said ~W. M. Moore in the name of the plaintiff.</p> <p>The bank, finding that Moore did not intend to pay his obligation as surety and otherwise, sought advice as to how it might protect itself from loss, and was advised that upon the voluntary conversion of said real estate into cash the estate by entirety was dissolved; that its common-law incidents no longer applied; that one-half of the purchase price received for said lot, to wit, six thousand dollars, became the sole property of ~W. M. Moore and liable for his debts; that Moore had no legal right to give the plaintiff all of the said purchase price and thereby defeat the payment of bis joint and individual liability to the bank. Thereupon the bank, under date of 1 February, 1916, notified the plaintiff of her status at the bank, and of the indebtedness of her husband, and of his refusal to meet his obligation, and further notified her that in order to protect itself from loss it would charge her account with an amount sufficient to pay the indebtedness due by said W. M. Moore, the bank contending that the plaintiff knowingly permitted Moore to perpetrate a fraud upon the bank, and was a party thereto in so far as she accepted all of said purchase price received for said lot in furtherance of the plan of W. M. Moore to defeat his liability to the bank; and thereupon the bank charged the amount of said note and interest to said fund received by virtue of the sale of said lot as aforesaid, and the plaintiff was duly notified that the bank would not honor any check drawn on said account which reduced the amount of said account below the sum of two thousand ninety and 56-100 dollars. Upon receipt of this notice the plaintiff drew a check on defendant bank which it refused to pay, and which if it had paid would have reduced the balance in her name below the amount of defendant’s claim; and thereupon the feme plaintiff brought this action to recover said deposit of the bank. Thereafter W. M. Moore, her husband, was made a party as appears in the record.</p> <p>When the case was first heard there was a mistrial, and thereafter the trial judge rendered judgment in favor of the plaintiff upon the pleadings, from which judgment the defendant appealed. This Court, on the appeal, granted a new trial, and the case, upon the second hearing, having been heard upon its merits, the result was that the jury answered all of the issues against the plaintiff, finding by its verdict that the money in defendant bank was the sole property of WV M. Moore, and placed by him in plaintiff’s name for the purpose of defrauding the bank. Plaintiff appealed.</p>

<p>ActioN tried before Kerr, J., and a jury, at February Term, 1919, of Harnett.</p> <p>This is an action to recover tbe possession of land, for an injunction, ■and for damages. Defendant disclaimed ownership as to the first tract, but denied plaintiff’s title as to the second tract of seventeen acres. The plaintiff claimed the land under a grant from the State, issued on 12 December, 1898, to one James R. Grady, and mesne conveyances from the latter and others to himself. Defendant asserted his right to the land by adverse possession for more than thirty years prior to the date of the grant to J. R. Grady, and he also proved that N. G. Jones conveyed it to J. R. Grady, 7 October, 1862; that John A. Green, sheriff, conveyed it to Geo. ~W. Pegram by deed dated 1 June, 1877, which was made by him at a sale pursuant to a levy under an execution against Grady. Geo. W. Pegram died, and his executor, John D. Pegram, sold the'land, under a power contained in his will, to J. R. Grady for life, with remainder to the children of Mary I. Grady, wife of J. R. Grady, four of whom conveyed their interests as tenants in common to the defendant. The latter also introduced a deed from D. H. McLean, commissioner, to him, dated 8 July, 1911. It was admitted that J. R. Grady resided on the land and occupied it until his death, which occurred 11 June, 1906. Defendant testified that he took possession of the land immediately after receiving his deed from D. II. McLean, commissioner.</p> <p>The court charged the jury that the plaintiff was entitled to recover the land unless the defendant had satisfied them, by the greater weight of the testimony, that he and those under whom he claimed or derived his title had been in possession of the land openly, notoriously and adversely for thirty years before the grant was issued to J. R. Grady, which, under the presumption that a grant had theretofore been issued, would take the title out of the State; and further, he must so prove that he and those under whom he claims had held possession of the land adversely, as above defined, for twenty years of said time, or in lieu of such proof, he must show that he and those under whom he claims has so held for twenty-one years under color of title before the State had granted the land to Grady. The verdict was for the defendant, and judgment being entered thereon, plaintiff appealed.</p>

CONTROVERSY without action, heard before Kerr, J., at May Term, 1919, of Harnett. The controversy involved the right of plaintiffs to collect the purchase money for a piece of land sold by plaintiffs to defendant which the parties agreed should depend on whether plaintiffs’ deed conveyed a good title. There was judgment for plaintiffs, and defendant excepted and appealed.

<p>1. Insurance, Life — Policies — Contracts — Suicide — Defenses — Burden of Proof — Instructions—J ury — Trials.</p> <p>The burden is on the defendant life insurance company, in an action on the policy, to show that the deceased insured committed suicide which invalidated the policy, according to its terms, when this is relied upon as a defense, which will take the case to the jury upon the issue.</p> <p>2. Insurance, Life — Policies — Contracts—Accidents—Passengers—“Traveling.”</p> <p>Where there is a liability under the provisions of a policy of life insurance, “when the death of the insured was caused directly by accident while traveling as a passenger by common carrier,” the fact that the insured was accidentally killed at an intermediate station, after he got off the train until it should start again, and while attempting to board it to continue his journey, does not deprive him of his status as a passenger under the provision of the policy, or avoid liability on the part of the company.</p> <p>3. Clerks of Court — Executors and Administrators — Granting of Letters— Actions — Collateral Attack — Jurisdiction—Appeal and Error.</p> <p>Wliere the clerk of tlie Superior Court has issued letters testamentary upon sufficient evidence, his action in doing so cannot be collaterally attacked, to oust jurisdiction, in the administrator’s action, as such, to recover upon an insurance policy, but only before the clerk to cancel the letters; nor can it be raised for the first time in the Supreme Court, on appeal, when it has not been pleaded, and upon exception to a refusal of defendant’s motion to nonsuit.</p>

Appeal by plaintiff from Allen, J., at Chambers, 17 July, 1919; from LENOIR.

<p>Appeal by defendants from Guión, J., at March Term, 1919, of' SAMPSON.</p> <p>On 27 December, 1910, J. N. Bennett and Clarissa Hargrove, bis. mother, executed a mortgage to O. S. and T. A. Hines to secure certain, indebtedness. The property conveyed was one tract of land, the property of Bennett, consisting of 141 acres, and the other, 21% acres, the-property of Clarissa Hargrove. O, S. and T. A. Hines assigned the-notes and mortgage to D. A. Edwards, who died in February, 1914, and his administrator is defendant in this action.</p> <p>On 13 December, 1915, a notice and advertisement of sale under the-power contained in the said mortgage deed, which had been assigned toll). A. Edwards, were given, signed by C. S. and T. A. Hines, mortgagees, and "Wilbur T. Edwards, administrator of D. A. Edwards, assignee of the mortgage. The notice specified that the sale would take place on 16 January, describing the land conveyed in the mortgage. A deed, executed on 19 January, 1916, by C. S. Hines and T. A. Hines, mortgagees, and "Wilbur T. Edwards, administrator of D. A. Edwards, as-signee, recites that the property was exposed'by them for sale on 18 January, 1916, at 12 o’clock noon, at which sale Thomas Perrett became the last and highest bidder in the sum of $1,000, and the deed was executed to him accordingly. Perrett testified that he bought the land for-J. N. Bennett, but paid no money for it; that on 8 January, 1916, he-conveyed these two tracts of land to "Wilbur T. Edwards for $1,100, as-an individual and not as administrator. By deed 1 December, 1916, Edwards conveyed the two tracts of land to Brewington, the plaintiff. There was evidence to show that the 141-acre tract of land at the time of the sale was worth $3,000 to $4,000.</p> <p>The jury found, upon the issues submitted, that Brewington, the plaintiff, purchased the 21 % acres of land, formerly the property of Clarissa Hargrove, without notice of any equities in her favor, and that the land was duly advertised according to the terms of the mortgage. Judgment for plaintiff for recovery of the tract'of land.</p> <p>The jury further found that W. T. Edwards, administrator of the assignee of the mortgage, procured Berrett as his agent to bid and purchase said land at the sale under the mortgage, and that its value at that time was $29 per acre, whereupon it was adjudged that the plaintiff is entitled to the 21% acres of land and rents and costs, and that Clarissa Hargrove recover of Wilbur T. Edwards the sum of $406.11, with interest from December, 1916.</p>

Appeal by defendant from Kerr, J., at November Term, 1918, of Halifax. This was an action for damages for the negligent alteration in the transmission of a telegram from Greenville, N. 0., to Rosemary, N. 0., both in this State. The message was as follows: “Ge,eeNville, N. 0., 9:45 A. M. Mrs. Addie Speight, 1-24-18. Rosemary, N. C. Father died this morning. Fiineral tomorrow, 10:10 a. m. Appie 0.

ActioN to restrain cutting of timber and to recover part of purchase price for same, heard on return to preliminary restraining order, 2 June, 1919, before his Honor, Connor, J., holding the courts of the Third Judicial District; from Nobthampton. There was judgment for defendants, and plaintiffs excepted and appealed.

ActioN to recover damages for loss caused by negligent delay in shipment and delivery of a lot of potatoes from Bayboro, N. C., to Roanoke, Ya. The goods shipped by plaintiff to his own order, notify Roanoke Fruit Company, etc., on 12 December, 1914. The shipment was routed, over Norfolk and Western, in State of Virginia, the defendant being the initial carrier, receiving the shipment at Bayboro as stated. On denial of liability the jury rendered the following verdict: 1.

ActioN to restrain cutting of timber and for damages, determined on •final hearing before Guión, J., at April Term, 1919, of Onslow. Tbe court was of the opinion that on the pleadings and exhibits made in the cause plaintiffs had shown no right to relief, and thereupon adjudged that defendants go without day. Plaintiffs excepted and appealed.

<p>Appeal by plaintilf from Allen, J., at January Term, 1919, of Wake.</p> <p>This was an action for the recovery of damages for personal injuries alleged to have been caused by the negligence of the defendant in failing to keep a walkway habitually used for the public in a reasonably safe condition. Yerdict and judgment for defendant. Appeal by plaintiff.</p>

Appeal by defendant from McElroy, Jat Chambers, 8 September,, 1919; from Subby. This is a controversy submitted upon an agreed statement of facts without action, in regard to $151,000 of Surry County road bonds which were awarded to the defendant at its bid of par and accrued interest, this bid being the highest bid submitted pursuant to the published notice of sale. The defendant afterwards declined to take the bonds, alleging they were unconstitutional.

ActioN tried before Devin, J., and a jury, at February Term, 1919, of Pasquotank. Fibst Shipment — Second Issue. Plaintiff sued for damages sustained in the shipment of potatoes, and' be especially relied on negligence in tbe transportation of four lots, some of wbicb were either injured or lost. The inquiry in regard to those-damages is covered by the second, fifth, sixth and tenth issues.

Appeal by plaintiff from Devin, J., at May Term, 1919, of BeaueoRT. This is an action to recover damages against the defendant bank for charging back against the account of the plaintiff a check of $380. The jury returned the following.verdict: 1. Did the defendant represent to the plaintiff that the check for $380, signed in the name of Winnie E. Jackson, was good and would be paid? Answer: “No.” 2.

<p>ActioN tried before Connor, J., and a jury, at May Term, 1919, of Lee.</p> <p>Some time before the institution of this action the plaintiff, two brothers and three sisters, one of them the defendant, were tenants in common of a tract of land which they inherited from their father, and the plaintiff, with the three sisters and their mother, were living on the land, he being a young man at the time.</p> <p>The plaintiff and his two brothers made a mortgage on their interest in thé land to secure food and clothing for the defendant and other sisters, leaving the interest of the sisters unencumbered. The mother joined to bar dower, and has been dead for many years.</p> <p>The plaintiff was unable to redeem his interest, and the one-half undivided interest (that of the three brothers) was sold under the mortgage and was acquired by J. A. Mclver, through a third person who bought at the sale. The original interest of the defendant and her sisters is not in the controversy. Subsequently Mclver brought a partition proceeding in the Superior Court of Lee County against the three sisters, including this defendant. The defendants in that proceeding denied the title of the petitioner, and the cotenancy, raising an issue of fact, and the caxi.se was transferred to the civil issue docket for trial, where it remained for several years without any action being taken in it.</p> <p>In 1918 the defendant, Mrs. Harrington, employed an attorney to bring the case to a hearing, so that she could get her interest, one-sixth, out of it, stating that they had been defending- the proceeding so that her brother, Jones McFarland (this plaintiff), could recover something; that she was still willing to do all she could for him. Later, the attorney and the plaintiff were brought together through Mrs. Harrington, and represented them both. He immediately sought to have this .plaintiff made a party to the partition proceeding, but the petitioner resisting this, he failed. He then interviewed J. A. Mclver, the petitioner, in the interest of McFarland, to secure a compromise, and Mclver told him whatever his attorney did in the matter would be satisfactory. The attorney also testified that Mr. Mclver told him he only wanted to come out without loss — get his money and interest back, and his attorney’s fees, but wanted the original mortgagors, or such of them as desired, to get whatever advantage there was in it; that he searched for the mort■gagors, found that the widow and one of the brothers were dead, and the other brother, Malcolm (who had not remained on the farm with the ■mother and sisters), wanted “Jones,” the plaintiff, “to have it.”</p> <p>The cause came on for trial, and plaintiff’s attorney unsuccessfully renewed his motion to have B. J. McFarland made a party. The jury returned a verdict for the petitioner for his one-half interest in the land, 'it being agreed, however, that B. J. McFarland was to have Mclver’s 'interest upon payment of the stipulated amount.</p> <p>It was agreed between the attorneys of Mclver and plaintiff ■ (neither of counsel in this case), representing their clients, that upon payment into court within a given time of this amount McFarland should have title to the property, and that a judgment should be drawn securing 'this result; but McFarland was not a party, and it was therefore agreed 'that if Mrs. Harrington would consent to take title in her name,' she being a party and sister of McFarland, the judgment should be so drawn ■and she would reconvey to McFarland, this plaintiff. A draft of the 'judgment was made and shown to the defendant and explained to her, and she agreed, as plaintiff’s attorney testified, to take and hold the title for this -plaintiff and reconvey to him. The judgment was then signed, and the attorney delivered to her a copy.</p> <p>The defendant denied, in her testimony, that she made any agreement about it, but admitted that she saw the judgment after it was signed, rand testified 'that she knew nothing about the transaction before. Both plaintiff and .defendant- deposited the money with the clerk, where the .deed .was .deposited by Mclver, in accordance with the terms of the judgment. Tbe defendant got tbe deed, refused to convey to tbe plaintiff, and tbe plaintiff sued.</p> <p>Tbe following issue was submitted to tbe jury: “Did tbe defendant, Mrs. Flora Harrington, agree to take tbe title to tbe land described in tbe pleadings for tbe benefit of tbe plaintiff, E. J. McFarland, and to reconvey tbe same to him?” It was answered: “Yes.”</p> <p>Judgment for tbe plaintiff upon tbe verdict, and defendant appealed.</p>

<p>Appeal by plaintiff from Daniels, J., at May Term, 1919, of Pamlico.</p> <p>This is an action to recover fourteen barrels of Irish potatoes which the defendant Ferebee took possession of. On 13 November, 1916, L. J. Upton & Co. entered into a contract with one Anthony Avery, a tenant of Ferebee, which contract was signed for Anthony Avery, who could riot write, by S. W. Ferebee, who was his landlord. Under this contract ■ the plaintiff and the defendant agreed to plant and grow on equal shares during the spring and summer season of 1917 a crop of Irish Cobbler potatoes. Upton furnished the seed potatoes, fourteen bags, furnished the fertilizer, on the basis of 2Y» bags to each bag of seed potatoes, and the defendant Anthony Avery was to cultivate and harvest said crop. One-half of the crop was. to be the property of Upton and the other one-half the defendant’s. And under the seventh paragraph of the contract Upton & Co. agreed to purchase the one-half of the crop, the property of the defendant, at the price of $2.50 per barrel delivered on ■cars at Stonewall. It is admitted that all of the potatoes raised by "Avery were grown from the seed potatoes furnished by Upton, that all the barrels were furnished by Upton, and all the fertilizer used to grow the potatoes was furnished by Upton.</p> <p>The defendant Ferebee, after the potatoes were harvested and delivered to Upton at the railroad station, took fourteen barrels of the same, claiming them to be due him for rent.</p> <p>The defendant set up his title as landlord in his answer, and there was no plea of an estoppel by the plaintiff.</p> <p>His Honor charged the jury in part as follows:</p> <p>“Now, I charge you, gentlemen, that if the evidence satisfies you by its greater weight that Ferebee knew that it was the intention of Upton to take and Avery to give a paper disposing of the whole of the j>otato crop to be grown on Ferebee’s lands by Avery, and aided in the execution of the paper with this knowledge, and permitted Upton to furnish seed potatoes, fertilizer, and barrels under the terms of said paper to Avery, then Ferebee would be estopped to claim any of the potatoes, and you should answer the first issue ‘Yes.’ ’’</p> <p>The jury returned the following verdict:</p> <p>1. Are the plaintiffs owners of the property described in the complaint? Answer: “Yes.”</p> <p>2. What was the value of the potatoes at the time of the seizure? Answer: “$9 per barrel.”</p> <p>His Honor then set aside the verdict as matter of law and allowed the plaintiff to amend by pleading an estoppel, .and the plaintiff excepted and appealed.</p>

Appeal by plaintiff from Daniels, J., at April Term, 1919, of Pamlico. Tbis is an action for the recovery of two thousand dollars for breach of contract. The contract, which was entered into by the plaintiff and defendant and offered in evidence, provides that the defendant was to furnish fertilizer and one hundred bags of Irish Cobbler seed potatoes at a price to be paid by plaintiff to defendant.

Appeal by defendant from Daniels, J., at June Term, 1919, of CARTERET. This is a protest to an entry. The enterer went in front of protéstanos lots and attempted to fill in-navigable water by building sand fences, and then laid his entry.

<p>1. Appeal and Error — Objections and Exceptions — Competent in Part — Requests for Instructions.</p> <p>A general objection to evidence which is competent as corroborative will not be sustained, the remedy being for the appellant to ask that it be restricted to that purpose.</p> <p>2. Evidence — Witnesses Instructed — Presumptions.</p> <p>Where the court directs a witness not to testify except as to competent matters specified by it, it will be assumed on appeal, nothing to the contrary appearing, that the witness understood the direction of the court and observed it.</p> <p>3. Evidence — Deeds and Conveyances — Descriptions—Locus in Quo — Possession.</p> <p>When relevant to the Inquiry, a party to an action involving title to lands may testify, when within his own knowledge, that his deed covered the lands in dispute, and that he had been let into possession thereof.</p> <p>4. Evidence — Description — Corners — Appeal and Error — Prejudice—New Trials.</p> <p>A witness may state that he knew where the stump to a corner pine was located, when relevant to the inquiry in an action involving title to lands; and were the evidence incompetent it must be prejudicial to be reversible error.</p> <p>5. Boundaries — Deeds and Conveyances — Declarations—Evidence—Interest —Ante Litem.</p> <p>Where boundaries to lands are in dispute, and the judge has cautioned the witness not to testify to the declarations of living or interested persons, etc., a general objection to this evidence will not be sustained, the rule being that declarations concerning boundaries must have been made ante litem motam, that declarant be dead when they were offered, and be a disinterested person, and it will be taken that the rule was complied with, unless the contrary appears.</p> <p>6. Instructions — Title—Burden of Proof.</p> <p>Where the instruction of the trial judge has placed the burden upon the plaintiff to show his own title, and it was stated that he can only recover thereon and not on the weakness of the defendant’s title, the further statement that the defendant took chances of failing to show defects in his adversary’s title in not introducing evidence will not be construed into an instruction that he must introduce evidence in rebuttal of plaintiff’s testimony but only that it was his duty to go forward with his proof.</p> <p>7. Appeal and Error — Exceptions.</p> <p>Exceptions to instructions given by the court to the jury will not be sustained if they cover, in part, instructions that were properly given, for the defendant should separate the good from the bad and except only to the latter.</p> <p>8. Limitations of Actions — Adverse Possession — Color of Title — Instructions.</p> <p>Upon the question of adverse possession under color to ripen title to lands, where there is evidence that the claimant had been in such possession for seven years or more, and the judge has so stated the contention, an instruction by the court that they should find for the claimant if they so found the facts, is not equivalent to an instruction that he must have been in possession for more than the seven years, but only that it must have continued for that period as the minimum one.</p>

ActioN tried before Guión, J., and a jury, at June Term, 1919, of LENOIR. Tbe plaintiff sued for the recovery of a lot in Kinston. He alleged ■ownership and right of possession, and the defendant’s unlawful with-bolding of the possession from him.

<p>1. Interstate Commerce — Freight Rates — Illegal Rates — Contracts—Bills of Lading — Knowledge—Representations—Federal Statutes.</p> <p>The intent and purpose of U. S. Compiled Statutes (1916), sees. 8569 and 8574, under the title of “Interstate and Foreign Commerce,” is to prevent any discrimination as to interstate freight rates for the transportation of commodities of the same classification among shippers and an agreement for the carrier to receive or the shipper to pay a different or less rate of freight than determined upon by the Interstate Commerce Commission, directly or indirectly, whether existing with or without the knowledge of either or both of the contracting parties at the time, and irrespective of any representations made, is unenforcible and void; and where the shipper has contracted in his bill of lading to pay a less rate than that prescribed by the law, and, relying upon the assurance of the carrier to endeavor to obtain a refund, pays the difference between that and the lawful rate, he may not recover this difference in the courts of our State, the contract sued on being an illegal one as encouraging rebates and unlawful discrimination and not recognizable therein.</p> <p>2. Interstate Commerce — Commerce Commission — Rates—Overcharge—Carriers — Agreement—Anticipated Adj udication — Courts.</p> <p>Where the carrier in interstate commerce has failed in its promise to present duly and in proper form the shipper’s claim for an alleged overcharge of freight rate which the latter had paid to the carrier, and thus prevents the shipper from presenting his own claim within the time allowed by the statute, and consequently said commission, having then no authority, refuses to pass upon the matter at all, our courts may not adjudicate the question, the same being for the determination of said commission upon whatever evidence may have been introduced before it, and as its determination thereon, favorable or unfavorable, cannot be anticipated or foreseen, any assessment of damage based upon it would be purely speculative and not allowable.</p>

<p>Appeal by plaintiffs from Guión, Jat April Term, 1919, of Ostslow.</p> <p>This is an action to recover damages for trespass upon land in which the title was put in issue and was the real question involved in the trial.</p> <p>Plaintiffs claim title to the land in question under a deed from the State Board of Education to one Carrier, dated 3 July, 1896. The plaintiff offered evidence tending to show that the description in the above deed covered the three tracts of land described in the complaint and evidence to locate said land. Plaintiffs then offered in evidence mesne conveyances, connecting themselves with the aforesaid deed from the State Board of. Education. It was shown that all of these deeds connecting plaintiff with said deed from the State Board of Education described the lands set out in the complaint, and that all grantees through whom plaintiffs held appear to be purchasers for value. The deed from the State Board of Education was, however, objected to on account of alleged defect in its probate, and for that it was asserted by defendants it could carry no title to the grantees in any view.</p> <p>The defendant offered in evidence grant No. 732 to David Allison, dated 29 May, 1795, and it was admitted that this grant covered the land in question. Defendant then offered mesne conveyances connecting themselves with said David Allison grant, one of which was executed and registered in the year 1859, showing that the grantee therein was a purchaser for value. The defendant further introduced evidence tending to show possession of such lands covered by the Allison grant, and their mesne conveyances, from the year 1906 to the present time.</p> <p>The plaintiffs thereupon offered in evidence a deed from Lemuel Doty, sheriff of Onslow County, to 'William R. Davie, Governor of North Carolina, dated 10 October, 1799. It purports to convey the lands set forth in the David Allison grant and lying in Onslow County to the State under a tax sale made by the sheriff of Onslow County. This deed was also objected to by the defendants, both on the ground of its competency and its effect.</p> <p>The attestation clause, the form of execution, and the attempted probate of these deeds were as follows:</p> <p>Deed of State Board of Education: In witness whereof the said State Board of Education has caused its corporate seal to be hereunto affixed and these presents to be subscribed by its president, secretary and treasurer, and this the date above written.</p> <p>Elias Cask,</p> <p> Governor and Ex Officio President State Board Education. </p> <p>Joi-IN C. SCARBOROUGH,</p> <p> Supt. Public Ex Officio Secretary of State Board Education. </p> <p>(Seal of the State of-North Carolina Board of Education.)</p> <p>State of North Caroliha — Pender County.</p> <p>The foregoing signature of John C. Scarborough, Superintendent of Public Instruction and ex officio secretary State Board of Education, W. II. Worth, State Treasurer and ex officio treasurer of the State Board of Education, and Elias Carr, Governor and ex officio president of State Board of Education, with seal of the Board of Education, is adjudged to be correct. Let said deed and certificate be registered.</p> <p>20 July, 1896. W. W. Larbxn, O. S. C.</p> <p>North Carolina. — Onslow County.</p> <p>The foregoing deed of conveyance from the State Board of Education of North Carolina to Oassins M. Carrier, of the county of Jefferson, State of Pennsylvania, with the official seal of the State Board of Education thereto attached, having been exhibited before me, it is adjudged, to be in due form and according to law. Therefore let the same, with this certificate be registered. This 30 July, 1896.</p> <p>Chas, Gerock,</p> <p> Glerlc Superior Court Onslow County. </p> <p>Filed for registration 30 July, 1896; registered in due form, J October, 1896. • O. C. MoktoN, Register.</p> <p>Deed of Sheriff: In witness whereof, I have hereunto set my hand and seal. Signed, sealed, and acknowledged in open court, October Term, 1799. Lemuel Doty,</p> <p>Sheriff. (Seal.)</p> <p>Test: J. O. Scotraff.</p> <p>North CaroliNa — Onslow County.</p> <p>I hereby certify that the deed is recorded in Book A, page the one, agreeable to law. J. 0. Scotraff.</p> <p>The foregoing is a true copy of the original on file in this office. Given under my hand, this 14 February, 1867..</p> <p>E. W. Best,</p> <p> Sec. of State. </p> <p>(State of N. C. Seal.)</p> <p>■ Becorded with official seal. D. Caswell,</p> <p> P. Secretary. </p> <p>Deed — Gor 155-442 acres, Onslow County — "Lemuel Doty to the Governor.</p> <p>State of North CaroliNa — Onslow County.</p> <p>Eeeeived for registration 13 August, 1867, and immediately enrolled in due form of law. Z. M. Costoh, Reg.</p> <p>His Honor held that these deeds were incompetent and invalid to pass title, and plaintiffs excepted.</p> <p>Judgment in favor of defendants, and plaintiffs appealed.</p>

Appeal by plaintiff from Quion, J., at May Term, 1919, of SampsoN. ■ This is an action to recover a sawmill outfit. On 28 April, 1917, tbe plaintiff entered into a contract with the defendant Bullard in reference to said property, which contract was after-wards assigned to the defendant Owen.

<p>Appeal by defendant from Guión, J., at February Term, 1919, of SAMPSON.</p> <p>This is an action to collect certain notes given for tbe purchase price of a stock of goods. Tbe facts are as follows:</p> <p>On 28 March, 1917, N. J. Aboud, a merchant at Roseboro, N. C., sold to the defendant, T. F. Spell, his entire stock of merchandise for the sum of four thousand dollars, five hundred dollars of which was paid in cash and the balance represented by notes as set out in article two of the complaint, said notes being secured by a mortgage deed upon the dwelling-house and premises of the defendant, I. Y. Spell, situate in the town of Roseboro. There was no mortgage or other lien given upon the stock of merchandise.</p> <p>On the same date, to wit, 28 March, 1917, said notes and mortgage were duly transferred and assigned to the plaintiffs, J. E. Befarrah and F. Nassif, trading as the Raleigh Bargain House.</p> <p>Default having been made in the payment of the second note, the plaintiffs sued out an attachment in the Superior Court of Sampson and seized said stock of goods. Upon motion of the defendant said warrant of attachment was vacated and set aside; and thereupon, at the request of the plaintiffs, a receiver was appointed to take charge of said stock of goods, wares and merchandise, sell the same, and hold the proceeds pending the final judgment in this action. Said goods were sold and the net proceeds from said sale were deposited with W. F. Sessoms, Clerk Superior Court.</p> <p>This case was first tried by his Honor, Judge Calvert, at February Term, 1918, and the plaintiffs were nonsuited. An appeal was taken to the Supreme Court, and at the Fall Term thereof said judgment of nonsuit was set aside and a new trial ordered. See Befarrah v. Spell, 176 N. 0., 193. In the meantime, upon the petition of J. E. Befarrah, a member of the firm constituting the Raleigh Bargain House, he was made a party plaintiff and allowed to file a complaint, which he did at August Term, 1918.</p> <p>The certificate of the Supreme Court having been certified down, this cause again came on for hearing before Judge 0. H. Guión, at February Term, 1919. The defendants, Spell and wife, requested his Honor to set apart to them their personal property exemption in the funds deposited with the clerk of the Superior Court. His Honor denied the request, and upon motion of the plaintiff Befarrah, and upon the complaint and answer, his Honor held that the claim of the plaintiffs constituted a purchase-money lien upon the stock of goods, wares and merchandise sold to the defendant, and that they were not entitled to any personal property exemption in said goods or the moneys derived from the sale thereof. Judgment was entered in accordance with the foregoing ruling, from which the defendants, Spell and wife, appealed to the Supreme Court.</p>

Appeal by defendant from Guión, J., at June Term, 1919, of LeNoir. Held: upon tbe pleadings as to tbe Southern Express Company and upon tbe admission of tbe plaintiffs in open court, tbat tbe action bad not been instituted within six months from the time of tbe injury complained of; tbat tbe plaintiffs could not recover for any amount against tbe defendant, Southern Express Company.

<p>ActioN tried before Allen, and a jury, at January Term, 1919, of Wake.</p> <p>William Mitchell died in the year 1890 and left a will, in which he devised the tract of land in question to C. R. Debnam for life, remainder to his five children, Joseph B., Mattie, Bettie, Hattie and Thomas Deb-nam. C. R. Debnam, the life-tenant, is still living, and about thirty years ago he leased the land to the defendant, J. A. Watkins, who has held it from year to year, under the lease, ever since. On 28 October, 1909, C. R. Debnam and Hattie Debnam, one of his children, conveyed all their interest in the land, by deed of trust, to W. N. Jones, to secure an indebtedness of $80, which deed was duly recorded in October, 1909. On 16 December, 1910, O. R. Debnam and Thomas Debnam, one of his children, conveyed all their interest in the land, by mortgage, to B. F. Montague, to secure an indebtedness of $122.33, which mortgage was duly recorded on 26 January, 1911. Thomas Debnam and O. R. Deb-nam having failed to pay the indebtedness secured in the mortgage to B. E. Montague, the latter, under the power of sale in said mortgage, sold the land, and. the defendant J. A. Watkins purchased the same at the sale on 13 April, 1912, for $225, and a deed was duly made to him by B. F. Montague and registered in April, 1912. Hattie Debnam and C. R. Debnam having failed to pay the indebtedness secured in the deed of trust to W. N. Jones, the latter sold the land, under the power of sale in the deed of trust, and conveyed the same to plaintiff, J. B. Debnam, for $260 by deed recorded on 13 July, 1913. The defendant having failed to pay rent or to give possession to the plaintiff, he commenced this action for possession and damages, as shown in his complaint.</p> <p>The jury returned the following verdict:</p> <p>1. Is the plaintiff the owner and entitled to the possession of the land described in the complaint? Answer: “Yes.”</p> <p>2. What is the yearly rental value of said land ? Answer: “$100.”</p> <p>Judgment on the verdict, and defendant appealed.</p>

ActioN tried before Allen, J., and a jury, at Special Term, 1919, of Wake. Tbe action is-to recover damages alleged to bave been caused to tbe lands of plaintiff, a bouse and lot, in Raleigb, N. 0., by tbe construction of a concrete bridge on Hillsboro Street, in said city, over tbe tracks of tbe railroad companies, raising tbe approaches to said bridge, to the injury of plaintiff’s lot abutting on tbe street.

Appeal by defendants from Calvert, J., at April Term, 1919, of New HANOVER. This was. an action to remove a cloud upon title to lands. William Grissom died intestate in 1875 seized of three contiguous tracts of land in said county. His wife died in 1889.

ActioN under sec. 2865, Eev., to recover an amount of taxes agreed to bave been unlawfully and wrongfully collected from plaintiff, beard on demurrer to complaint before Calvert, J., at June Term, 1919, of EeunswioK. There was judgment overruling demurrer, and defendant excepted and appealed.

Appeal by plaintiff from Calvert, J., at April Term, 1919, of New HaNOVER. Mary Washington Howe, the aunt of the plaintiffs, provided in her will as follows: “The remainder of my property I give to my sister, Eebecca Jane McDonald, for ber use until her daughters, Nada Eoberta and Alfreda Eloise, become of age, when it becomes theirs.

Appeal by defendants from Calvert, J., at May Term, 1919, of New HaNOVER. P. H. Hayden died in 1903, testate, leaving, besides other property, the real estate which is the subject of this action. An action was brought in the Superior Court of New Hanover for the purpose of selling said land by judicial sale, freed and discharged of all contingent remainders or other interests in said property.

<p>Employer and Employee — Master and Servant — Carriers of Goods — Railroads — Express Companies — Negligence—Concurring Negligence — Evidence — N onsuit — Trials.</p> <p>The defendant express company hired among the bystanders, including the plaintiff’s intestate, men to help put a shafting, weighing about 2,000 pounds, from its trucks into its express car. There was evidence tending to show that the trucks were properly placed at first with reference to the car door, and when the men were in the act of placing the front end of the shafting in the car door the codefendant railroad company suddenly started the train, moving it about thirty feet, making it necessary to change the direction of the shafting. The trucks could not be placed at right angles, the proper position, because of express packages there, and while loading in this position the end of the shafting slipped from the truck and caused the death of the intestate; that had the trucks been at right angles to the car door, as formerly, the injury would not have been inflicted, and that in the then position of the trucks insufficient help was furnished for the safe loading of the shafting: Held, error to exclude testimony of one of long experience in such work as to the danger of loading the shaft under the changed conditions; that the one holding the handle of a truck was agent of the express company, that its station agent was present, their negligence, if any, being that of defendant express company, as also the answer of a witness to a question to state from what he saw the cause of the dropping of the shaft from the truck; and further, held, under this and the other testimony, sufficient for the jury upon the question of defendant express company’s failing to use reasonable care; concurrent negligence of defendant railroad in moving its train under the circumstances, contributing to the death of the intestate, and the negligent failure of defendant express company in failing to furnish sufficient and experienced help.</p> <p>Walker, J., dissenting; At.t.en, J., concurring in the opinion of Walker, J.</p>

Appeal by defendants from Alim, J., at June Term, 1919, of Wake. Tbis is a motion to set aside a judgment on the ground of excusable neglect. The action is to recover a balance of $300 alleged to be due for tobacco sold and delivered to the defendants under the following contract: “This is to certify that I have bought Lonza Montague’s crop of tobacco for one thousand dollars, not less than three thousand pounds, one lot of tips, next to tips, and primings graded.

Appeal by plaintiff from Allen, J., at May Term, 3919, of Wake.

<p>Appeal by plaintiff from Allen, J., at May Term, 1919, of Wake.</p> <p>This is an action to recover $84.66 alleged to be due by account for goods sold and delivered, commenced before a justice of the peace, and heard on appeal in the Superior Court.</p> <p>The plaintiff introduced evidence showing that he was a farmer and also had a gin and store, and he produced upon the trial his account book or ledger in which he kept the account against the intestate of the defendants in his own handwriting. This book was excluded upon the trial.</p> <p>There are several exceptions to the exclusion of evidence which will be referred to in the opinion.</p> <p>At the conclusion of the evidence his Honor entered judgment of nonsuit, and the plaintiff excepted and appealed.</p>

<p>ActioN for damages tried before Calvert, J., at April Term, 1919, of New Hanover.</p> <p>Judgment for defendant. Plaintiff appealed.</p>

<p>1. Instructions — Contentions — Appeal and Error — Objections and Exceptions.</p> <p>Objection tbat tbe trial judge stated tbe contentions of tbe adverse party more fully tban those of tbe appellant to bis prejudice should be made at tbe time by calling tbe attention of tbe judge to tbe omissions claimed tbat be bad made, and comes too late after verdict.</p> <p>2. Instructions — Requests—Additional Instructions — Appeal and Error.</p> <p>Other instructions tban those given by tbe trial judge should be especially requested, and exceptions taken to their refusal to be available on appeal.</p> <p>3. Instructions — Inadequacy—Statutes.</p> <p>Exceptions in this case tbat the charge of tbe trial judge was inade- , quate, and not in compliance with Rev., sec. 535, are not only untenable but too general. Blalce v. Smith, 163 N. C., 274, cited and distinguished.</p>

Appeal by defendants from Kerr, J., at April Term, 1919, of JOHNSTON. This is an action to recover $2,900, tbe balance due on tbe purchase money of a tract of land. Tbe defendant admitted tbe indebtedness but alleged tbat the title to tbe land was defective, and tbe plaintiff agreed in tbe pleading to a cancellation of tbe contract of purchase if tbe title was not good. .The feme plaintiff, Mrs. H. IT.

Appeal by plaintiff from Stacy, J., at December Term, 1918, of New HaNOVEE. This is an action for tbe recovery of $405.25, being tbe value of certain lumber belonging to tbe plaintiff wbicb was lost, as tbe plaintiff alleges, while in tbe possession of and tbrougb tbe negligence of tbe defendant. Tbe plaintiff was engaged in tbe lumber business and maintained a sawmill near tbe city of Wilmington.

AotioN tried before Stacy, J., and a Jury, at March Term, 1919, of Cumberland.

Civil ACTION, beard by Devin, J., in AlamaNCE Superior Court, the bearing, by consent, being, adjourned to bis chambers in the city of Durham, where he made the following findings of fact and rendered the following judgment: • This was a mandamus proceeding instituted by the Board of Education of Alamance County against the Board of Commissioners of said county, and was heard before the undersigned judge at chambers, at Oxford, on the 24th day of July, 1919, and at chambers,…

Appeal by defendant from Guión, J., at May Term, 1919, of SampsoN. Ejectment. Tbe judge finds from tbe pleadings and admission of tbe parties tbat tbe plaintiff while married executed tbe deed for tbe land to tbe defendant, wbo at tbe same time executed notes for tbe purchase money secured by mortgage on tbe same land.

<p>Appeal by defendant from Galvert, J., at the March Term, 1919, of New IIaNoveR.</p>

Civil aotioN, tried before Galvert, J., at September Term, 1919, of EobesoN. The defendant, the American Eailway Express Company, appealed. The following is the charge of the court and the issues, to all of which the defendant specifically excepted: “Gentlemen of the jury: There are some issues to be submitted to .you.

Appeal by defendant from Devin, J., at April Term, 1919, of TyeRell. This was an action brought under Eev., 2632, before W. L. Godwin, J. P., to recover the penalty of $40 for delay in delivery of two bags of corn, and the value of one bag of corn lost in transit, shipped from Asheboro, N. 0., on 27 March, 1918, and received at Columbia, N. C., on 16 April, 1918. I The evidence showed that three bags were shipped and only two ■ received.

<p>PetitioN to rehear.</p>

Civil actioN, tried befor.e Allen, J., and a jury, at March Term, 1919, of Wake. Tbe action is to recover $500 deposited on condition in a negotiation for purchase of bonds to be issued for defendant, same to be used as part payment on bonds if they were approved and accepted by plaintiff, and otherwise to be returned.

Appeal by defendant from Galvert, Jat the April Term, 1919, of Columbus. This is a proceeding to establish the boundary line between plaintiffs and defendants, begun before the clerk and transferred to the Superior Court upon issue joined, and tried upon an issue of title. The plaintiffs claim title by possession and uhder a deed from Anne K. Blue to D. M. Blue, dated 24 January, 1870, which conveys the northern half of two tracts of land.

<p>Civil actioN, tried before Bond, J., at April Term, 1919, of IIokb.</p> <p>Plaintiffs appealed.</p>

Appeal by defendant from Calvert, J., at tbe September Term, 1919,. of RobesoN. Tbis action was instituted by plaintiff to obtain a divorce from bis wife, tbe defendant, on account of ten years separation.

Civil actioN, tried before Lyon, J., and a jury, at March Term, 1919, of DuRham:. The action is to recover the value of services rendered for defendants’ benefit in carrying the mail from the postoffice in Carrboro, said county, to the railway station. On denial of liability, there was verdict for plaintiff; judgment, and defendant excepted and appealed.

<p>1. Pleadings — Amendments—Courts—Statutes.</p> <p>Tbe Superior Court bas plenary power to allow an amendment to tbe complaint in an action on contract appealed from a justice of tbe peace. Revisal, 1476.</p> <p>2. Carriers' of Goods — Express Companies — Contracts—Negligence—Notice —Damages—Delay of Delivery.</p> <p>Tbe object of an express company is to secure prompt and safe delivery of goods it receives for transportation; and where, upon tbe shipment of carpenter’s tools, tbe shipper bas notified tbe company of tbe necessity for prompt delivery at destination, wMcli tlie latter lias promised by a certain day, the transaction is sufficient to put the express company on notice that damages will reasonably result to the shipper for consequent expenses, loss of time as a carpenter for the want of the tools, etc., if not delivered, and such are recoverable in the event of a protracted and unreasonable delay, proximately caused by the carrier’s negligence.</p> <p>3. Carriers of Goods — Negligence—Damages—Minimizing Loss.</p> <p>Where a shipper by express has been damaged by the negligence of the carrier in delivering the shipment, it is the duty of the shipper to reasonably lessen the amount, and for the judge to so charge the jury.</p> <p>4. Courts — Jurisdiction—Justices of the Peace — Contracts—Torts—Carriers of Goods — Express Companies.</p> <p>A shipper by express who has been damaged by an unreasonable delay in the delivery of the goods may bring his action upon contract within the jurisdiction of a justice of the peace, and waive the tort beyond this jurisdiction, or sue in the Superior Court in a larger sum upon the tort.</p> <p>5. Carriers of Goods — Express—Non-delivery—Damages—Value of Goods— Verdict — Instructions.</p> <p>Where a shipper sues in a justice’s court within its jurisdiction for the nondelivery of the goods, including both-the value of the goods and the consequent damages from the delay, the trial on appeal in the Superior Court will not be disturbed because of delivery having later been made, where it appears that the verdict excluded under the evidence and instructions of the court, the value of the goods, and only included the damages the plaintiff had sustained by reason of the delay.</p> <p>6. Parties — Actions—Principal and Agent — Surplusage—Carriers of Goods —Express Companies.</p> <p>Where an agent of an express company knowingly receives as one shipment goods owned by two persons, and issues the bill of lading to one of them, in a suit for damages arising out of the transaction the one to whom the bill of lading was issued is regarded as the agent of the other, and making such other person a party plaintiff is not erroneous.</p> <p>7. Carriers of Goods — Express Companies — Negligence—Bills of Lading— Contracts — Void Stipulations.</p> <p>An express company, as a common carrier, cannot make a valid stipulation in its bill of lading, against its own negligence, by a provision that a recovery exceeding fifty dollars cannot be had if the goods to be transported “were hidden from view.”</p>

Appeal by defendant from Lyon, J., at May Term, 1919, of Ala-MANCE. This was an action by the plaintiff, 33 years old, the mother of two children, and living with her husband, who is not made a party plaintiff. The defendant was living near by and cultivating a crop on lands of the Southern Power Company, which he had leased for one year, and one William Boswell had also rented a portion of this land and was in possession of it.

<p>Appeal by defendant from Stacy, J., at August Term, 1919, of ALAMANCE.</p> <p>Tbis is an action to recover damages for wrongfully ejecting tbe plaintiff from tbe train of tbe defendant at Greensboro.</p> <p>Tbe plaintiff alleges tbat on 22 December, 1917, sbe went to tbe station of defendant in Graham, accompanied by two children, one two, and one ten years of age, to go to Terra Cotta on a visit. Tbat sbe bought one whole and one half ticket, and upon inquiry was informed by tbe agent tbat tbe train sbe was taking went by Terra Cotta and stopped there. Tbat sbe got on tbe train, and when tbe conductor took up her ticket be told her sbe would have to get off tbat train at Greensboro ; tbat it did not stop at Terra Cotta.</p> <p>Tbe defendant answered and admitted selling tbe tickets. Denied tbat its agent told plaintiff tbat tbe train sbe was taking, which passed Graham about 11 a. m., stopped at Terra Cotta. Alleged tbat said train was not scheduled to, and never bad been scheduled to, stop at Terra Cotta.</p> <p>It averred tbat train 21, which plaintiff took from Graham, according to its published, advertised schedule, did not stop at Terra Cotta, and tbat no train tbat passed Graham did stop at Terra Cotta. Tbat tbe proper way to go to Terra Cotta was to leave Graham on tbe train which plaintiff left on, change at Greensboro to a train tbat left Greensboro about 2 o’clock p. m., and arrived at Terra Cotta about 2:11 p. m. Tbat plaintiff left on tbe proper train, and tbat defendant maintained a comfortable station in Greensboro for plaintiff to wait in, and a comfortable train for plaintiff to go to Terra Cotta on, and tbat these were all in existence and operating on tbe day plaintiff left Graham.</p> <p>Defendant further pleaded tbat plaintiff, by her own conduct brought about any injury which sbe sustained by reason of exposure because of said street-car trip. Tbat sbe voluntarily left tbe station in Greensboro and went to Pomona on a street car, and then walked to her home instead of going on tbe train upon which sbe held a ticket, and which was provided by defendant to carry her to Terra Cotta.</p> <p>Both parties introduced evidence in support of tbe allegations in tbe pleadings, and the plaintiff also testified tbat sbe bad gone to Terra Cotta from Graham before this on the same train, and to her injuries, most of which were sustained by reason of going to Pomona on the street car. The defendant excepted to the evidence of damage after the plaintiff left the train, and also to evidence of the physical condition of the plaintiff at the time of the injury complained of.</p> <p>The defendant requested the court to charge the jury as follows:</p> <p>“1. If you find the facts to be as testified to by the witnesses you will answer the first issue No.’ ”</p> <p>Refused, and defendant excepted.</p> <p>“2. If you find the facts to be as testified to by witnesses, you will answer the second issue 'Yes.’ ”</p> <p>Refused, and the defendant excepted.</p> <p>“3. If you find from the evidence in this case that plaintiff failed to inquire in the station at Greensboro or from the conductor as to a train leaving Greensboro that would stop at Terra Cotta, and that because of such failure and want of knowledge on her part she took the street car; then any injury she sustained by reason of taking said street car you should not consider as damages sustained by plaintiff because of negligence of defendant.”</p> <p>Refused, and defendant excepted.</p> <p>The jury returned the following verdict: *</p> <p>“1. Did the defendant company wrongfully, eject plaintiff from the train, as alleged in the complaint? 'Yes.’</p> <p>“2. Did the plaintiff, by her own negligence, contribute to any and all injuries which she sustained? 'No.’</p> <p>''3. What damage, if any, is the plaintiff entitled to recover of the defendant? '$950.’”</p> <p>Judgment for plaintiff, and the defendant appealed.</p>

Appeal by plaintiff from Stacy, J., at tbe September Term, 1919, of ORANGE. This is an action by tbe executor of Louisa Frye and E. L. Christmas against tbe children of tbe said Christmas to obtain a construction of tbe will of tbe said Frye, and to determine tbe rights in tbe proceeds of tbe sale of a certain lot of land.

Civil action, tried before Devin, J., and a jury, at July Term, 1919, of 'WASHINGTON. The plaintiff sued for damages, alleging tbat she had been employed as a' teacher in Cherry School District, and that after she had served for less than a month she was dismissed by the defendants, members of the schoql committee. She asks judgment for $360, her salary for the full term of nine months, at $40 per nionth.

Civil actioN, tried before Calvert, J., at June Term, 1919, of New HaNOVER. . ■ _ _ It appears that the plaintiff, Carrie W. Smith (wife of Herbert Smith), and Janie II. Held: that the plaintiffs could convey a good title by their deed, and rendered judgment accordingly, and the defendant, Roger Moore, appealed.

PROCEEDINGS for a cartway, tried before Stacy, J., and a jury, at March. Term, 1919, of Cumberland. This is a proceeding commenced by petitioners before the board of supervisors of Elea Hill Township (Cumberland County), for a cartway starting at a point on the national highway and extending along the lines of lands of defendants to a place near tbe lands of 0. L. Holmes, one of tbe petitioners.

. Civil ACTION, tried in Superior Court of RocxiNGham, before Bryson, J., at June Term, 1919, upon the following issues: “1. Is the defendant indebted to the plaintiff, and if so, in what amount? Answer: ‘Yes; $445.50.’ “2. Are the plaintiffs indebted to the defendant,' and if so, in what amount? Answer: ‘No.’ ” , From the judgment rendered the defendant appealed.

Appeal by defendant from Bryson, J., at May Term, 1919, of Eoe-syth. The plaintiffs intestate, Joseph Earl Comer, was a white child, about ' 28 months old, whose parents were preparing to leave the city, their household effects being at the railroad station for shipment.

Civil actioN, tried before Bryson, J., and a jury, at May Term, 1919, of Foesyth. Tbe plaintiff alleged that the defendants are husband and wife, and were so at the times hereinafter mentioned; that it was a creditor of the male defendant, L. 0.

Civil actioN, tried before Bryson, J., at May Term, 1919,. of Fob-syti-i. Tbe plaintiff brought this suit to recover possession of a storehouse, situated on leased premises in the city of Winston-Salem, N. 0., together with $1,200 damages for the alleged detention of same by defendant. The case was referred to J. E. Alexander, referee, at the May Term, 1918, to find the facts and the law in the case, and report same back to the court.

Civil actiow, tried before Webb, J., upon, a case agreed, in the Superior Court of Wilkes, 27 May, 1919. The action was brought to test the validity of certain bonds, to the amount of two hundred and seventy-five thousand dollars, which have been issued, and contracted to be sold to defendants, by the county of Wilkes, for the purpose of constructing public roads in the said county.

Appeal by plaintiffs from Bryson, J., at May Term, 1919, of Foksytb:.

<p>Appeal from Forsyth County Court, Starbuch, J., heard by Bryson, J., at March Term, 1919, of Foesyth, who affirmed tbe judgment.</p> <p>Defendant appealed.</p>

Civil actioN, tried before Bryson, J., and a jury, at March Term, 1919, of Forsyth. This action is by a tenant and occupant of a dwelling-house against defendant, the landlord and owner, to recover damages for physical injuries caused by alleged negligence on the part of defendant in failing to keep the premises in proper repair. At the close of the plaintiff’s testimony, on motion, there was judgment of nonsuit; plaintiff excepted, and appealed.

<p>1. Contracts — Questions of Law — Questions for Jury — Trials.</p> <p>What is the contract that was made by the parties is an issue of fact for the determination of the jury, but when it is admitted or proven, its meaning is a matter of law for the Court.</p> <p>2. Principal and Agent — Ratification—Evidence.</p> <p>In this case it is held that upon the material question of whether the principal had accepted a contract made in its behalf by its agent, there was sufficient evidence for the determination of the jury, that it had done so, not alone from the correspondence and other writings between the parties, but upon the otal evidence and consideration of their acts and conduct evidencing their mutual intent.</p> <p>3. Appeal and Error— Contentions— Instructions— Objections and Exceptions.</p> <p>To errors claimed in the statement of the contentions by the trial judge, his attention must have been called at the time so that he could have had opportunity for making the proper amendments, or exceptions thereto will not be considered on appeal.</p> <p>4. Contracts — Carriers of Goods — Embargo—Tender of Shipment — Defenses —Evidence—Trials.</p> <p>Where an action is brought against the seller of lumber for his breach of contract in not shipping it, and it appears that the defendant has not tendered it for shipment, the fact that an embargo had been placed on shipments will not avail as a defense, where special permits for shipment had been secured by the other party, and especially where the determina- ■ tion of the controversy has been made to depend upon other matters.</p> <p>5. Contracts — Breach—Vendor and Purchaser — Damages—Contemplation of Parties — Resale—Profits Prevented.</p> <p>Where the seller of lumber knew the purchaser was a wholesale dealer, who was selling under contract to others, and had so sold the lumber,, and breached his contract for its delivery, the profits prevented thereby under contracts of sale made by the purchaser are held to be certain and capable of admeasurement, and within the reasonable contemplation of the parties at the time of making the contract, as a probable result of its breach, and may be included in the damages recoverable in the purchaser’s action.</p> <p>6. Contracts — Breach—Place of Delivery — Damages.</p> <p>Held, in this action to recover damages of the seller of lumber for his breach of contract in not shipping it, that, according to the shipping instructions and other evidence, the delivery was to be made in New Vork and the market price there could be used as the basis for the admeasurement of the damages.</p> <p>7. Evidence — Letters—Correspondence—Memoranda—Book Entries.</p> <p>The admission in evidence of a letter in the correspondence written by the objecting party, relating tot a contract made by him for the sale of lumber, when material, may properly be ádmitted as his declarations; and entries made on the sales book by the witness may be used by him to refresh his memory as to the transactions entered, especially when he has testified to his independent recollection thereof.</p> <p>8. Contracts— Breach— Vendor and Purchaser— Resales— Damages — Evidence.</p> <p>Where the plaintiff has made various contracts for the sale of lumber, based upon his purchase of the lumber for wholesale purposes from the defendant, with the latter’s knowledge, it is competent for the plaintiff to show by his evidence his inability to perform his own contracts of sale, by reason of defendant’s failure to ship the lumber, as bearing upon the measure of damage he has sustained by the said breach.</p>

Civil action, tried before Lane, Tbe court overruled tbe exceptions filed to tbe report by tbe defendant Armfield, and gave judgment against bim in favor of tbe Greensboro College for Women. Tbe defendant Armfield excepted and appealed.

Civil actioN for slander, tried before Stacy, J., at September Term, 1919, of AlaMANCe. On the call of the cause defendant was allowed to withdraw his answer and demur to the complaint. Judgment sustaining the demurrer, and the plaintiff excepted and appealed.

OontRoveRsy without action, heard before Calvert, J., at September Term, 1919, of Robeson. The controversy is to determine the right to enforce collection of a bid for real estate, sold for reinvestment under section 1590 of Revisal. There was judgment that the title offered was a good one, and that the defendant, the purchaser at judicial sale, comply with his bid. Defendant excepted, and appealed.

Appeal by defendant from Lane, J., at tbe February Term, 1919, of Guilpoed. This is an action to recover damages alleged to have been caused by the negligence of the city of Greensboro in the improvement of certain streets, and in the diversion of surface water, and also by leaving open a certain pipe in the basement of plaintiff’s house. The jury returned a verdict of $750 for plaintiff, upon which the court rendered judgment, and the defendant ■ appealed.

Appeal by plaintiff from Lane, J., at August Term, 1919, of Guilfohd. Tbis is an action to recover damages for breach, of contract. At the conclusion of the evidence his Honor entered judgment of non-suit and the plaintiff excepted and appealed.

<p>Civil actioN, applying for a writ of mandamus to compel defendants, composing tbe State Board of Examiners for licensing practitioners of chiropractic in tbis State, to issue a license to plaintiff, authorizing him to enter on said practice. Certain facts pertinent to tbe inquiry are embodied in tbe judgment as follows:</p> <p>“1. That tbe defendants constitute tbe State Board of Chiropractic Examiners, being created and established by tbe acts of tbe General Assembly of North Carolina, Public Laws 1917, cb. 73, as amended by chapter 148 of tbe Public Laws 1919, and as such board are vested with all tbe powers and duties as prescribed by said acts, among others, being the duty of examining such applicants for the practice of chiropractic as may present themselves to the aforesaid board, as provided for by the acts creating it, and shall issue a license for the practice of chiropractic to such applicants as they may deem entitled under the several provisions of said acts to receive license enabling them to engage in such practice.</p> <p>“2. That among other provisions of the said acts creating the Board of Chiropractic Examiners, section 2, chapter 148 of the Public Laws of 1919, contains the following: 'Provided, that any person who had been practicing chiropractic in this State prior to the first day of January, one thousand nine hundred and eighteen, may apply and receive license to practice chiropractic in this State upon proof of good character and proper proficiency upon examination.’</p> <p>“3. I find as a fact that the plaintiff made application to the defendants, in their capacity as examining board, to be granted a license to practice chiropractic within this State.</p> <p>“4. I find as a fact that the said defendants, State Board of Chiropractic Examiners, upon considering the application of the plaintiff, in the exercise of their discretion, refused to grant license to the said plaintiff to engage in the practice of chiropractic within this State.”</p> <p>His Honor, being of opinion that the questions presented involved the exercise of discretion on the part of defendant board, entered judgment denying the application, and the plaintiff excepted and appealed.</p>

Appeal by defendant from Lane, J., at September Term, 1919, of Richmond. Tbis action was instituted against tbe Pintscb Gas Company in 1913 to recover damages for emptying sewage on tbe lot of tbe plaintiff in tbe town of Hamlet, N. C. Judgment by default and inquiry was taken at December Term, 1913, for want of an answer.

Civil actioN, tried before Guión, J., at March Term, 1919, of DupliN, upon these issues: . “1. Is the plaintiff the owner of the lands described in the complaint ? Answer: ‘Yes; second tract only.’ “2. Does defendant wrongfully withhold the same from the plaintiff? Answer: ‘Yes; as to second tract.’ ” Judgment for defendant, and plaintiffs appealed.

CONTROVERSY without action, heard before Allen, J., at March Term, 1919, of Wake. The controversy is to determine the rights of respective claimants of the whole and half blood to participate in the personal estate of Charles Worth Skinner, deceased intestate, and now in the hands of Joseph B. Cheshire, Jr., administrator. There was judgment in favor of Mrs. Snow, tbe claimant of tbe balf blood, and tbe claimants of tbe whole blood excepted and appealed.

<p>1. Appeal and Error — Opinion of Court — Issues—Damages.</p> <p>The opinion of court in tliis case, granting a new trial, suggests that the . issue might be amended to read, “To what amount is the value of plaintiff’s premises increased by such permanent improvement?”</p> <p>2. Damages — Permanent Improvements.</p> <p>Where on the issue for damages the question of permanent improvements enters, such question is a mixed one of law and fact, depending largely upon the circumstances of each case, and the measure of compensation is the actual enhancement in the value of the lands by reason of the improvements made thereon.</p> <p>3. Appeal and Error — Anticipating Error.</p> <p>Upon granting a new trial on appeal, the Supreme Court will not ordinarily pass upon matters not presented therein, in anticipation of the law as the Superior Court judge may thereafter rule it to be.</p> <p>Allen, J., dissenting.</p>

<p>Wills — Devise—Executors and Administrators — Trusts—Powers—Consent of Widow — Deeds and Conveyances.</p> <p>By the related provisions of a will the testator gave his estate to his wife for life, appointed an executor, giving him general management thereof, imposed upon him the duty to consult with the widow and secure her written consent “regarding all matters of sale and investment.” and that within tlie discretion of the executor, any property that the testator may own at the time of his death, “be sold, and the proceeds of same reinvested in good and substantial stocks, bonds, or real estate.” Held, the discretion of the executor was restricted by the terms of the will only by the requirement for the consent of the widow in writing, and a sale of the testator’s lands accordingly made, conveyed a good title.</p>

Appeal by defendant from Oalvert, Jout of term by consent, upon case agreed, 8 July, 1919, from BladeN. This is an action to recover the amount of a tax levy of five cents paid under protest. The parties have agreed upon the following facts: “1.

Appeal by plaintiff from Bynum, J., at September Term, 1919, of GuTLEORD. .This is a controversy without action, submitted upon the following facts: 1.

Appeal by defendant from Lane, J., at March Term, 1919, of Guil-j?oed. This action is to recover damages for personal injuries caused bv the negligence of the defendant, who had taken the hood off of a certain cogwheel in the factory where the plaintiff worked, leaving it exposed so that the plaintiff had her dress caught in the cogs, sustaining injuries. Verdict and judgment-for plaintiff; defendant appealed.

Appeal by defendant from Lane, J., at February Term, 1919, of Guilford. This action is to recover mental anguish for delay in delivery of the following message: Eed SpeiNGs, N. 0., 5 :50 p. m., 31 October, 1917. J. T. Watson, Greensboro, N. 0. Go to Charlie McKnight at Vanstory Clothing Company. Get money. Come to Buie via Ealeigh, mother dead. N. A. Watson.

<p>Appeal by defendant from Lane, J., at May Term, 1919, of Guileobd.</p> <p>Tbis is an action to recover damages for tbe failure and refusal of .the defendant to skip flour according to contract.</p> <p>On 14 June, 1915, tbe plaintiffs purchased from the defendant, for tbeir bakery, one carload of flour (210 barrels), and in November, 1915, again bought two carloads, of 210 barrels each.</p> <p>On 29 July, 1916, defendant wired the plaintiff, “Unless you authorize by wire today, permission to ship by 15 August remaining three cars of flour on books for you, with full carrying charges added, we will understand you prefer order canceled. Impossible to carry beyond 15 August."</p> <p>Between 29 July, 1916, and 7 August, defendant sold the three carloads in question, and the plaintiff brings this action.to recover the loss which they allege accrued by their having to purchase flour at a higher rate at that time. Verdict and judgment for plaintiff. Appeal by defendant.</p>

Appeal by plaintiff from Shaw, J., at tbe May Term, 1919, of Mooee. Tbis is an action to recover damages for personal injury, alleged to bave been caused by tbe negligence of tbe defendant. ■ Tbe plaintiff was riding a bicycle along a .public road on 23 March, and was injured by being run over by an automobile, driven by tbe daughter of tbe defendant, who was over twenty-one years of age, and an experienced driver.

Appeal by plaintiff from Adams, J., at April Term, 1919, of Meck-lenburg. On 1 August, 1913, Dr. F. M. Winchester and his wife, Mary W. Winchester, executed to J. H. Little, trustee, a deed of trust on the property in question, securing the payment of two' notes or bonds, one in the sum of $1,200, due Margaret A. Hilton, and one in the sum of $1,000, due F. S. McLaughlin.

Civil ACTION, tried at February Term, 1919, of Meoelenbueg, upon certain issues submitted to tbe jury. From tbe judgment favoring tbe plaintiff, the defendant appeals.

Civil ACTION, tried before Allen, at January Term, 1919, of Wake.

<p>Civil ACTION, tried before Sham), J., and a jury, at March Term, 1919, of STANLY.</p> <p>Defendants appealed.</p> <p>This proceeding was brought by the administrator for a final settlement of the estate of S. J. Edwards, the decedent, J. II. Edwards, suing as administrator and in his individual capacity. The intestate left no lineal descendants. His brothers and sisters are: J. H. Edwards, one of the plaintiffs, J. S. Edwards, Mrs. J. E. Moore, and Mrs. Alice Gr. Hill, who are his next of kin and the distributees of his estate.</p> <p>S. J. Edwards, at the time of his death, was conducting a mercantile business in the town of Oakboro, in the name of S. J. Edwards. • His brother, J. H. Edwards, claimed to be a partner in said business and to own a one-third interest in the same. The defendants, Mrs. J. E. Moore and Mrs. Alice Gr. Hill, filed answers in which they denied that J. H. Edwards was a partner in said business; they also pleaded chapter 77, Public Laws 1913, in bar of J. II. Edwards’ right to recover as such partner, even if it should be found that he owned a one-third interest in said business.</p> <p>The court submitted two issues to the jury, as follows:</p> <p>“1. Was the plaintiff, J. II. Edwards, a partner, owning a one-third interest in the business conducted, by S. J. Edwards at the time of his death, as alleged by J. II. Edwards ?</p> <p>“2. If so, did the partnership do business in the name of S. J. Edwards without filing in the office of the clerk of the Superior Court of Stanly County a certificate conforming to the requirement of chapter 77, Public Laws 1913, as alleged by the defendants?”</p> <p>Both issues were answered “Yes.”</p> <p>The other matters embraced in the complaint were reserved to be referred to some one to take evidence and make report of bis findings. Some, if not all of these matters, were afterwards settled by agreement filed in the record.</p> <p>The court entered the following judgment:</p> <p>“It is, therefore, ordered and adjudged that the plaintiff, J. IT. Edwards, was a partner, owning one-third interest in the business conducted by S. J. Edwards at the time of his death, as alleged by J. IT. Edwards; it is further ordered that the administrators of S. J. Edwards, deceased, pay the said J. H. Edwards oñe-third of the proceeds of the said partnership business before final distribution is made, not to exceed one-third of $5,005.49. This cause is retained for further directions.”</p> <p>There was an agreement as to the settling of certain matters not affected by the questions in this appeal.</p> <p>Judgment was entered upon the verdict, and the defendants, Mrs. Hill and Mrs. Moore, appealed.</p>

Civil action-, tried before Lane, J., at March Term, 1919, of GuiL-FORD. The action was brought to recover the sum of $2,016.03, less $800, ■alleged to be due the plaintiff for work and labor done and materials furnished in the construction of a hotel building, at Spartanburg, S. C., the contractors, Longest & Tessier, having sublet a part of their contract, viz., the plastering, to the plaintiff.

Civil ACTION, tried before Adams, J., at April Term, 1919, of Meck-LENBURGr. Tbis is the third time we have had this case before us. It is reported in 175 N. C., p. 459, and 176 N. 0., p. 811. The facts are substantially stated in the first appeal, reported in 175 N. 0., 459.

Appeal by plaintiffs from Bryson, J., at the June Term, 1919, of Rockingham. This is an action brought by two citizens and taxpayers of the town of Reidsville against the town of Reidsville, and the mayor and members of the board of commissioners of said town, and the Southern Public Utilities Company to restrain tbe bolding o£ an election called for tbe purpose of approving or disapproving tbe sale of tbe electric light plant of Eeidsville to tbe utilities company.

Appeal by defendant from Shaw, J., at tbe September Term, 1919, of MECKLENBURG. Tbis is a proceeding for tbe partition of land transferred to tbe Superior Court upon an issue of sole seizin'relied on by tbe defendant.

Appeal by respondents from Adams, J., at the Fall Term, 1919, of MECKLENBURG. This is a proceeding to caveat a will. J. Alexander Thompson was formerly the owner of the land, purporting to be devised by said will, a part of which, claimed by the caveators, is located in Union County. The said Thompson died in Mecklenburg County in 1836, and as caveators allege, without leaving a will, and thereafter the caveators bought the land in Union County from his heirs.

Civil actioN, tried before Harding, J., at March Term, 1919, of RaNdolei-i, upon these issues: “1. Did the defendant negligently fail to deliver the telegram to the plaintiff, as alleged? Answer: ‘Yes.’ “2. What amount, if any, is the plaintiff entitled to recover of defendant by reason of the negligence of the defendant, as alleged ? Answer: ‘$500.’ ”

CONTROVERSY without action, submitted before Harding, Jat March Term, 1919, of RowaN. 1.

Civil ACTION for trespass upon a certain tract of land, tried before Long, J., at May Term, 1919, of Oaldwei/l, upon these issues: “1. Is tbe defendant, Wood Horton, estopped by tbe record in Wilkes Superior Court from claiming title to tbe 95-acre tract described in tbe complaint? Answer: ‘Yes.’ “2. Are tbe defendants, Wood Horton and Larkin Horton, estopped from claiming title to tbe 95-acre tract by reason of tbeir representation and conduct? Answer: ‘Yes.’ “3.

Special proceeding for the partition of lands by a sale thereof, heard on appeal from the clerk of the court, by Adams, J., at October Term, 1919, of Iredell. The matter was heard in the court below upon an agreed case, and the following statement of facts will sufficiently explain the controversy: In 1881 Daniel Sides died, leaving a last will and testament. He left surviving him nine children and two children of a deceased son.

Civil actioN, tried before Bond, J., at February Term, 1919, of WilsoN, to recover damages for alleged negligent killing of plaintiff's intestate. The plaintiff sues, and insists on his right to recover, under the Federal Employer’s Liability Act, and it is admitted that defendant company at the time was a railroad corporation engaged as a common carrier in transporting inter- and intrastate commerce.

Appeal by defendant from Harding, J., at April Term, 1919, of Cababrtts. This is a proceeding for tbe partition of lands, in which, the plaintiff ■ contends that he is the owner of a one-third interest as the devisee of his wife, Margaret Bamhardt, and that the defendant is the owner of a two-thirds interest as a purchaser from the two sisters of Margaret, Minnie, and Lula. Margaret Ellis, Sr., was originally the owner of the land.

Appeal by respondent from Long, J., at tbe December Term, 1918, of Btjbke. This is an appeal from a judgment rendered in tbe above entitled action against tbe respondent, tbe Battery Park Bank of Asbeville,.

Civil actioN, tried before Harding, J., and a jury, at April Term, 1919, of MONTGOMERY. Tbe action is for claim and delivery of a portable sawmill and other personal property. Plaintiff filed a chattel mortgage only, with power of sale on the property to secure $189.29, and defendant was in default in reference thereto. It also appeared that there was a second unsatisfied note on the property in favor of the Troy Milling Company to secure $100.

Appeal by plaintiff from a judgment of nonsuit by Webb, J., at April Term, 1919, of Aveet. This was an action for libel, brought by tbe plaintiff, chairman of the board of education of Avery County, against the defendant Carr, owner and publisher of the “Mountaineer and Avery Herald,” a newspaper published in Avery County, and the defendants, Guy and Baird, who were the cashier and assistant cashier of the Avery County Bank.

<p>Civil actioN to recover land, tried before Webb, J., and a jury, at April Term, 1919, of Aveey.</p> <p>Tbe complaint of plaintiffs sets forth two causes of action:</p> <p>First. One asserting ownership and the right to possession, which was wrongfully withheld by defendant.</p> <p>Second. That they were the owners in fee of the land, and defendants were in possession wrongfully, claiming title, and asking that the said false claim be removed as a cloud upon the true title held by them. At the close of the testimony on adverse intimation from the court as to plaintiff’s right to recover on either cause of action, plaintiffs suffered a nonsuit and appealed.</p>

Appeal by defendant from Finley, J., at February Term, 1919, of McDowell. This is an action to recover damages for a deficiency in the acreage of a tract of land purchased and paid for by the acre. The acreage was calculated from a map used by the defendant.

Civil actioN, tried before Webb, J.JsA, August Special Term, 1919, of - YaNCey, upon these issues: “1. Were the deeds for the lands described in the complaint delivered?' Answer: ‘No.’ ” l “2. Are the plaintiffs the owners in fee and entitled to the possession of the lands' described in the complaint? Answer: No.’ ” From the1 judgment rendered the plaintiffs appealed.

<p>Civil actioet, tried before Long, J., at July Term, 1919, of Catawba.</p> <p>From a judgment of nonsuit plaintiff appeals.</p>

Appeal by defendant from Finley, J., at Marcb Term, 1919, of YANCEY. The plaintiff was injured in the service of tbe defendant company, and alleges tliat the physician employed by the defendant, and who was compensated by monthly payments collected by the company from the employees, was guilty of negligence and malpractice. Yerdiet and judgment for the plaintiff. Appeal by defendant.

Civil ACTION, tried before Harding, J., and a jury, at April Term, 1917, of MONTGOMERY. The plaintiffs alleged that defendants had trespassed upon certain land described in the complaint, and asks for damages. The defendants,.

Civil actiow, tried before Webb, J., and a jury, at May Term, 1919, of Catawba.

CONTROVERSY without action, heard by Connor, J., at chambers in Wayne. (Time not stated in.record.) From a judgment for the plaintiffs the defendant appealed.

Motioet to remove action to the Federal Court, heard before Adams, J at September Term, 1919, of RowaN. ■ There was judgment in denial of the motion, and the defendant, the Director-General of Railroads, excepted and appealed.

Appeal 'by defendant from Webb, J., at tbe May Term, 1919, of Catawba. This is an action brought by the plaintiff against Charles A. .Kline, the city of Hickory, and the American Surety Company of New York, for material furnished to the defendant^ Charles A. Kline, for the erection of a school building for the defendant, the city of Hickory.

Appeal by defendant from Long, J., at tbe July Terna, 1919, of' Catawba. Tbe plaintiff sues to recover damages for fraud in tbe sale of real estate (160 acres) in Oklahoma, basing tbe action on alleged false representations of defendant vendor, -that it was worth $200 per acre, their purpose being investment and speculation.

, and a jury, at August Special Term, 1919, of 'YANCEY. The complaint sets forth two causes of action: First. That while plaintiff, an employee of the company, was engaged ■as wood chopper in getting out timber from the company’s land, a tree, which plaintiff and another had felled in the course of his work, rolled •on plaintiff’s foot, mashing it severely and ultimately causing the loss of ■several toes.

Civil actioN, tried before Bay, J., at March Term, 1919, of BuN-oombe, upon these issues: “1. Is the defendant, Tempe Harris, indebted to the plaintiff on account of rents, as alleged in the complaint ? And if so, in what amount ? Answer: ‘Yes; $776.84, with interest on $478.50 from September 1, 1917, and interest on $298.34 from October 1, 1917.’ “2.

Civil ACTION to restrain a sale of certain real estate by executors of W. A. Bailey, heard before Harding, J., and a jury, at February Term, 1919, of Davie. At the close of the testimony, on motion, there was judgment of non-suit, and plaintiff excepted and appealed.

Appeal by plaintiff, and also by defendant, Fidelity & Casualty Company, from Ray, J., at May Term, 1919, of BuNCOmbe. Tbe action was brought against the defendants, Southern Railway Company, Champion Fibre Company, and J. H. Blizzard, to recover-damages for the negligent killing of plaintiff’s intestate while in the employment of the Champion Fibre Company, and while attempting to-uncouple cars owned by Southern Railway Company, causing his death.

Civil actioN, tried before Harding, J., at April Term, 1919, of' Cabaeeus. Plaintiff alleged tbat defendant had executed to her intestate, Mary J.. Scott, three notes, one for $250, on 14 March, 1896; one for $50, on 3 April, 1897; and the remaining one for $320, on 9 July, 1896, all of' them due one day after date, with interest from date.

Civil ACTION, tried before Harding, J., and a jury, at August Term, 1919, of CabaRRTjs.

<p>Civil actioN, tried before Long, J., and a jury, at July Term, 1919, of AVERT.</p> <p>Plaintiff alleged tbat be was employed by defendant as a “mucker” in its mine, and was seriously injured by tbe falling of a rock in tbe mine, wbicb struck bis muck, or dump car, near wbicb be was standing, while engaged in bis work, and upset tbe same, lifting it on one of its ends, and tbat tbe car tben fell on bim and broke bis leg.</p> <p>Plaintiff and Ed. Hughes were working in tbe mine together as muck-ers. They bad taken in a car tbe morning tbat plaintiff was injured, loaded, and it was rolled out of tbe mine by gravity, tben returned to tbe mine. When they reached tbe place where they were to reload, they were told to scotch tbe muck car and wait until tbe scaling was finished. These bands were subject to tbe orders of George Tolley, who was foreman, Monnie MeCoury was walking boss, who controlled tbe foreman, and Rube Cook was sealing boss. All of them were superiors of plaintiff, and gave bim orders. Plaintiff bad worked tbat morning in safety at tbe place where tbe rock fell on bim. Rube Cook was scaling a part of tbe roof, but there was evidence tbat tbe rock fell at a place wbicb bad already been scaled. "While they were scaling, Ed. Hughes was ordered to come up and bold tbe light, wbicb be did, not using bis own, but another lamp, and while standing there, be said: “There is a rock I do not like tbe looks of.” Rube Cooke punched tbe rock and it fell. It struck tbe plaintiff’s ear, standing it on end, and tbe car then fell on plaintiff’s leg, wbicb was broken by tbe fall and seriously injured. Tbe plaintiff was standing about five feet from tbe car when it struck bim. He testified tbat be did not bear any one of them say to tbe other men, “Might not this rock bit tbe car,” nor did be bear any one say, “You bad better get away; might not this rock fall?” and nothing was said about tbe rock tbat be beard. He further stated that Mr. Cook was tbe scale boss, and tbat be did not tell them to “get out of tbe way,” but merely said, “"Watch out boys, they are scaling,” and be knew what it meant, and got out of tbe way. He beard some one say, “All right, boys,” while be was standing near tbe car, before tbe rock fell. Ed. Hughes testified:</p> <p>“Tbe rock tbat fell was not tbe one we prized out; Rube and I bad pulled rocks all down to this rock, but bad not followed down far enough to discern it. That was a portion of tbe mine that had been scaled earlier; they had scaled down and left this rock. That portion of the mine over this car had been scaled earlier in the morning; we had worked over that; we worked under that the first time. I do not know how long I have worked with Dan; not very long; Dan was as good a hand as I ever met with on Cranberry; would come as near doing what he had to do as I ever found. I am not still working at that mine; I have not worked there since last February, this year.”</p> <p>There was much more evidence of a like kind.</p> <p>The defendant did not introduce any evidence, but at the close of plaintiff’s testimony it asked for a nonsuit, which was refused, and it excepted.</p> <p>Defendant also asked for the following instructions:</p> <p>“1. If the jury find from the evidence the facts to be as testified to by the plaintiff, the plaintiff is guilty of contributory negligence, and you should answer the second issue 'Yes.’</p> <p>“2. If you find from the greater weight of the evidence that the plaintiff came from a place of safety and stood by and looked at the scalers scale the wall out of curiosity, and could realize the danger as well as those engaged in the scaling, then the court charges you that this would constitute contributory negligence, and you will answer the second issue ‘Yes.’ ”</p> <p>The first of these instructions was refused, and the second was modified, as follows: “Nothing else appearing, the court gives you that instruction, as prayed by the defendant; that is to say, if you find the facts as contended for by the defendant, I give you the instruction as prayed.”</p> <p>The jury returned a verdict finding plaintiff was injured by the defendant’s negligence; that there was no contributory negligence, and assessed the damages. Judgment, and appeal by defendant.</p>

<p>Appeal by defendant from Guión, J., and a jury, at June Term, 1919, of LENOIR.</p>

Appeal by plaintiff from Stacy, J., at the December Term, 1918, of New HaNOvee. This is an action begun before a justice of the peace to recover the sum of $75, which the plaintiff alleged was due him as his commission upon the sale of a piece of property, which the defendant had given to the plaintiff, who was a real estate dealer, to sell for him.

Appeal by defendant from Oalvert, J., at the August Term, 1919, of BlADEN. This is an action on two notes, one for $1,254 secured by an agricultural lien, and the other for $287.78, secured by notes deposited as collateral, and an account for fertilizers also secured in said lien. The plaintiff sued out claim and delivery papers in the action under which twenty-five bushels of corn and the collateral notes were seized, and delivered to the plaintiff in January, 1916.

<p>Appeal and Error — Rules of Court — Motions—Dismiss Appeal — Certificate— Transcripts — Clerks of Court.</p> <p>Tbe clerk of the Superior Court, upon payment of the costs of the certificate, is without authority to refuse to sign the appellee’s certificate, under Rule IT, to docket and dismiss the appeal in the Supreme Court for the appellant’s failure to docket his appeal under the rule, and his refusal to do so, based upon the ground that appellant had paid him on account for making out the transcript, is an attempt to pass upon the rights of the parties on questions reserved for the Supreme Court: it being required of the appellant in such cases, either to apply for a certiorari, or answer ap-pellee’s motion and show cause why his appeal should not be dismissed.</p>

<p>Evidence — Contracts—Lands—Fraud—Questions for Jury — Trials.</p> <p>In this action to enforce a contract to purchase land wherein plaintiff’s title was denied upon the alleged existence of a prior similar contract made with another, with allegation and evidence that the prior contract had been procured by fraud: Held, there was sufficient evidence to sustain a verdict and judgment in plaintiff’s favor, and no error found upon the trial sufficient to disturb them.</p>

CONTROVERSY without action, submitted to Kerr, at Fall Term (8 November), 1919, of Carteret. Tbe following is tbe case agreed : 1.

Appeal by plaintiff from Daniels, J., at May Term, 1919, of LeNoie. This' action was instituted by plaintiff on bebalf of bimself and others, taxpayers, against Lenoir. County, the board of county commissioners, and tbe highway commission of said county, to restrain the issuance and sale of $2,000,000 of bonds, authorized by Public-Local Laws 1919, ch. 391, to construct and build the public roads of that county.

INDICTMENT, tried at November Term, 1918, of Beaufoet, wben tbe •defendant was convicted and appealed. Tbe charge in tbe indictment is that tbe defendant bad unlawfully, willfully, and feloniously, as sheriff of Beaufort County, failed to pay over and deliver to tbe proper persons entitled to receive tbe same, wben lawfully required to do so, certain money and funds which be bad received by virtue or color of bis office in trust, contrary to tbe provisions of tbe statute.

Appeae by prisoner from Kerr, J., at April Term, 1919, of WayNe. The prisoner was indicted jointly with Mabel Howard for the murder of Millard L. Parker, the indictment being in the usual form. He was convicted of murder in tbe second degree and sentenced to ten years in the State’s prison. From this sentence he appealed to this Court assigning only one error.

Appeal by defendant from Kerr, Jat August Term, 1919, of Pitt. Tbe defendant was convicted on a charge that be “Did unlawfully and willfully have in bis possession illicit whiskey, three gallons, with the intent to sell, and did unlawfully and willfully receive at one time, and in one package, more than one quart of intoxicating liquor, contrary to law.” Yerdict and sentence. Appeal by defendant.

INDICTMENT, tried before Daniels, J., and a jury, at January Term, 1919, of Pitt. • The appellant, Garland Stancill, was jointly indicted with Ernest Perry and Raymond Stancill for the larceny of a .lot of leaf tobacco of the value of $250, property of J. II. Little and others, and for receiving the same knowing it to have been stolen.

<p>1. Courts — Opinion upon Facts — Criminal Law — Sentence.</p> <p>Where a large quantity of spirituous liquor was found in the possession of two persons, separately indicted under the statute making such possession evidence that it was for the unlawful purpose of sale, a remark of the judge in sentencing one of them, upon his conviction, that he thought both persons accused had been selling and delivering the liquor at a certain town, is not in the contemplation or meaning of Rev., 535, prohibiting the judge from giving an opinion whether a fact is fully or sufficiently proven, on the trial of the other defendant.</p> <p>2. Same — Common Law — Strict Construction.</p> <p>The restriction on the trial judge that he shall not express his opinion as to whether a fact at issue had been fully or sufficiently proven does not exist at common law, but rests upon statute, Rev., 535, and being in derogation of the common, law, the statute cannot be extended beyond the meaning of its terms.</p> <p>3. Jurors — Discharge—Statutes—Courts—Terms—Improper Remarks — Presumptions.</p> <p>Under the statute, the Jury, for one week of a term of court, are discharged, and do not try the eases of the following week thereof; and the remarks of the judge in sentencing a prisoner during the former week cannot be held as improper for the trial of another defendant for participating in the same offense tried during the next week.</p> <p>4. Appeal and Error — Courts—Continuance of Case — Discretion—Abuse.</p> <p>The continuance of a case, on motion, is within the sound discretion of the trial judge, and is not subject to review, in the absence of abuse, which is not shown by the fact that he tried the case of a defendant the following. week of the same term at which another had been convicted of participating in the same criminal offense.</p> <p>5. Spirituous Liquor — Evidence—Circumstance—Instructions. ,</p> <p>The defendant, tried for violating the prohibition laws of the State, was-seen carrying the liquor to the premises of his brother, and ran away before he could be taken. As the officers were loading an automobile with the liquor, he suddenly appeared and ran away with the key of the-machine to prevent them from carrying it away. Held,, with the other evidence in this case tending to show his guilt, it was not error for the-trial judge to state, in giving the contentions of the parties, that the State relied upon this as a circumstance tending to show guilt, and the same would have been proper as an instruction.</p>

INDICTMENT, tried before Allen, Jand a jury, at March Term, 1919, of Wake. Defendant was tried under an indictment containing four counts for: 1. Having sold whiskey to parties unknown. 2. Having whiskey in his possession for the purpose of sale. 3. Having received more than one quart in one package at one time. 4. Having received more than a quart within fifteen days.

Appeal! by defendant from Daniels, J., at tbe April Term, 1919, of IiENOIR,. Tbe defendant appeals from a judgment pronounced upon an indictment, charging in one count larceny, and in tbe.other receiving one gold watch, three pieces of English gold coin, and one two and a half gold piece of U. S. coin, the property of E. A. Adrey. Tbe State’s evidence tended to show tbat tbe defendant bad been for six years an overseer of tbe convict road force of Lenoir County.

IndictmeNt for murder, tried before Calvert, J., at March Term, 1919, of Bkunswiok. The defendant was indicted for the murder of Susie Spicer, and was convicted of murder in the second degree. From the judgment upon the verdict he appealed to this Court. There is no doubt that there was evidence of the corpus delicti, so the principal question in the case is, Who killed Susie Spicer? The State’s evidence is circumstantial, while the defendant set up an alibi.

INDICTMENT, charging defendant with forcible abduction in first count, and elopement with a married woman in the second count, tried before 8lacy, J., at May Term, 1919, of Cumberland. Defendant was convicted on the second count, and from judgment pronounced thereon appealed.

Appeal by defendant from Bynum, J., at tbe March Term, 1919, of Forsyth. Indictment for highway robbery in feloniously taking by force a watch, etc., from the person of one Gr. M. Simpson, count also for felon-iously receiving said watch, etc. There was verdict of guilty as to both defendants, with recommendation of mercy as to Fannie Robertson.. Judgment imposing sentence on Bunk Medley, the male defendant, and he excepted and appealed.

<p>INDICTMENT for fornication and adultery, tried before Bryson, J., at July Term, 1919, of Sueey.</p> <p>Defendants were convicted and appealed.</p>

<p>1. Statutes — Amendments—Effect.</p> <p>The effect of an amendment to a statute is to incorporate the old statute into the amendment with the same effect as if the amendment had been a part of the old statute when the latter was enacted.</p> <p>2. Bigamy — Criminal Law — Statutes—Courts—Jurisdiction—Bigamous Cohabitation — Constitutional Law.</p> <p>The amendment to Rev., 3361, ch. 26, Public Laws 1913, making it a felony and punishable as in cases of bigamy, for a married person to marry again, in another State, which would have been bigamous if contracted here, and “thereafter cohabit with such person in this State,” does not attempt to confer extra territorial jurisdiction upon our own courts, the offense for which the person is tried, being one committed here.</p> <p>3. Bigamy — Criminal Law — Statutes—Trials—Place Offense Was Committed —Venue—Bigamous Cohabitation.</p> <p>A plea in abatement upon the ground that Rev., 3361, as amended by ch. 26, Public Laws 1913, makes the offense of bigamy and not the offense of bigamous cohabitation triable in the county in which the offender should be apprehended, is bad.</p>

<p>1. Criminal Law — Lynching—Statutes—Constitutional Law.</p> <p>Our statutes, Rev., 3698, to prevent lynchings, making it a felony to conspire to break or enter any jail, etc., for the purpose of killing or injuring any prisoner confined therein, charged with crime or under sentence; and Rev., 3233, also entitled “Lynching,” giving an adjoining county jurisdiction over the crime and offender as “full and complete . . . and to the same extent” as if the crime had been committed therein, are a valid exercise of the legislative powers.</p> <p>2. Criminal Law— Lynching— Statutes— Indictments— Bad Counts Disregarded.</p> <p>An indictment under Rev., 3698, designated to prevent lynching, and brought in an adjoining county under Rev., 3233, charged: (1) a conspiracy to break a prison; (2) breaking and entering the prison with intent, etc.; (3) a riot and disorderly conduct; and (4) defacing and entering a certain building. The first and second counts were good, and, Meld, if the third and fourth were bad, in not stating an offense under the statute, they may be disregarded, and conviction had on the first and second ones.</p> <p>3. Criminal Law— Lynching— Statutes— Attempt— Courts— Jurisdiction— Adjoining County — Less Offense.</p> <p>Under the provisions of Rev., 3269, a defendant, charged in the indictment of a greater criminal offense, may be convicted of the same crime of a less degree, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime; and the trial of an attempt to lynch a prisoner, under Rev., 3698, is not prohibited in the adjoining county under sec. 3233, on the ground that the latter section provides only for the completed offense, sec. 3698 conferring the jurisdiction as full and complete and to the same extent as if the crime had therein been committed.</p> <p>4. Criminal Law — Lynching—Mob—Common Purpose — Evidence—Declarations of Others.</p> <p>Where there is evidence that the defendant charged with an attempt at lynching an incarcerated prisoner, Rev., 3298, was of a crowd that had conspired together for the purpose, and actively participated in the common design, the acts and declarations of other members of the crowd relative thereto, are evidence against him; and when such acts and declarations occurred after the dispersal of the crowd by the militia, it does not affect the matter, if they occurred while the mob was actually engaged in preparing to resume their unlawful purpose.</p>

<p>Appeal by defendant from Shaw, J., at April Term, 1919, of ANSON.</p> <p>Tbe defendant was convicted of murder in tbe first degree, and from the judgment upon such conviction appealed to this Court.</p>

Appeal by prisoners from Lane, J., at February Term, 1919, of SxnxRY. Tbe prisoners, Joe Cain, Joe Bowles, and Gardner Cain, were convicted of murder in tbe first degree of Eiley Easter, and from tbe sentence thereon appealed.

Appeal by defendants from Bond, J., at August Term, 1919, of Halifax. Tbe defendants were indicted under Rev., 3634, on a charge for kidnapping one Annie Smith, and were convicted of an assault upon a woman. Tbey were sentenced to jail for a period of 15 months and 10 months, respectively, with authority to tbe county commissioners to work them upon the county roads, and appealed.

INDICTMENT, tried before Adams, Jat the March Term, 1919, of Gaston. Tbe defendant was convicted of secret assault upon an officer, J. W. Cole, and from tbe judgment of fifteen years confinement at bard labor in tbe State Prison, upon sucb conviction, appealed to tbis Court. Randolph Stephens was tried upon the same bill of indictment, at tbe same time as tbe defendant. He was convicted and sentenced to four years imprisonment, but did not appeal.

CeimiNAl action under section 3702, Revisal, for violation of ordinance of the city of Thomasville, in exhibiting a moving-picture show without license and without paying the tax as required by said ordinance, heard on appeal from recorder’s court before Bryson, Jand a jury, at July Term, 1919, of Davidson.

CRIMINAL action, tried before Shaw, Jand a jury, at Spring Term, 1919, of Anson. Defendant was indicted for crime of arson of a dwelling, tenement bouse, owned by R. F. Bennet, and occupied by John McLendon and family, a tenant on tbe owner’s farm. A second count charged that the house was burned by one Tom Simons, at the instigation and procurement- of defendant, the count being formally as an accessory before the fact to the principal crime.

Appeal by defendant from 'Harding, J., at August Term, 1939, of Burke. Tbe defendant was convicted for selling spirituous liquors to one W. T. Mace. There was evidence of a sale of spirituous liquors on 20 December, 1918, but at no other time, and there was no evidence tending tcshow a sale subsequent to 23 January, 1919. There was a motion for nonsuit, which was refused, and defendant excepted.

<p>Intoxicating Liquor — Distilling—Evidence—Accessory—Criminal Law.</p> <p>Upon trial for illicit distilling there was evidence tending to show that the defendant, on the occasion of an officer searching for a still, took his gun and fired several times in the air, and when the place was found there was no one there, and the still part had been removed, but the balance of the outfit was there, giving indication of recent use, with fire in the furnace. HeVL, sufficient to convict, the purpose of the defendant thus firing evidently being to abet the distillers and to enable them to escape, thus making him an accessory equally guilty with the principals.</p> <p>Walker, J., concurs in result; Clark, C. J., dissenting; Hoke, J., concurring in the dissenting opinion.</p>

Appeal by defendant from Harding, Jat tbe August Term, 1919, of Bubke. This is a criminal action, and from tbe judgment upon tbe verdict the defendant appealed to this Court. Tbe indictment, upon which he was tried, charged: (1) Possession of liquor with the purpose of sale. (2) Beceipt of more than one quart at a time. (3) Beceipt of more than one quart at a time in a single package. (4) Transportation of the liquor.

<p>Appeal by defendant from Finley, J., at tbe April Term, 1919, of Euthereord.</p> <p>The defendant was convicted of murder in the first degree, and from the sentence of death upon such conviction appealed.</p> <p>The deceased, EL E. Edwards, lived on his farm, five or six miles from Eutherford, and about two and one-half miles from Grilkey, a station. The defendant, Dennis Lovelace, who was a flagman, having a regular run on the railroad, had married a daughter of Edwards some nine years before, and had by her four children. The couple lived at Shelby. The wife, Iva Lovelace, with the children, had gone to Union Mills to visit defendant’s father, Gr. W. Lovelace.' On Saturday, 31 August, while on his run between Blacksburg and Marion, and when his train had stopped at Union Mills, the defendant was handed a note from his wife, by his father. In this note she informed him that she was at Union Mills, and asked him to come for her and the children the next day, Sunday, and they would go back home together. The' defendant could not go on Sunday, and the wife, instead of going Home to Shelby, took the children and went to Gilkey, and out to her father’s (the deceased’s) home that afternoon. The defendant went to Shelby Sunday afternoon, and not finding his wife and children at home on Monday morning, 2 September, went to Union Mills. Not finding them there, he came back that afternoon to Rutherfordton, where he left the train, hired an auto and went out to the Edward’s home, about five miles off. This was about 5 :50 p. m.</p> <p>Lorena Edwards, wife of the deceased, gives this account of the events of that afternoon:</p> <p>“Iva came to our house on Sunday evening, and this homicide occurred on Monday evening. My husband had been sick all summer and was a small man, something like five feet high and weighed one hundred and fifteen pounds, and wore No. 4 shoe. It was about six o’clock when Dennis came, and Mr. Edwards was in the field where he was having some work done; the boys were there in the field pulling fodder, and he with them; and Dennis came and I went out on the porch and met him, and he told me he wanted to see Iva; I told him I did not want her to see him; he kept begging to talk to her, and I called her and told her he wanted to speak to her. I don’t remember whether it was before Mr. Edwards came up to the house or not; don’t remember whether Iva was at the door before he came or not, but she came to the door and talked to him, and he kept begging her to have a private chat with her, and she told him she didn’t want to; she told him she didn’t love him, and wasn’t going to live with him. She just told him that she didn’t love him, and wasn’t going to live with him; said ‘We can’t agree; and I am just not going with you.’ I don’t know that he asked her to go then, but he did keep asking her; didn’t ask any pointed question; just pleaded for her to have a private chat with him, and she told him she wouldn’t talle with him privately; she wasn’t going to live with him, because he had mistreated her and she didn’t want to live with him. Mr. Edwards came up and he commenced talking to him, and Mr. Edwards told him that I had been sick in bed and he wasn’t mad, and said, ‘I don’t want to> have any fuss here at all; just want you to leave and go off and not bother us’; and he said he wasn’t going to have any fuss; didn’t want to fuss with him; said ‘If Iva can’t live with me, that’s all right; I’ll leave, go off somewhere and stay’; and Mr. Edwards mentioned to him that he had been living in Shelby, and that they had some hogs and chickens, and all their things, and nobody to take care of them, and said, ‘What are you going to' do about it ?’ and he said, ‘Bring it up here’; he said, ‘You go and get it; do what you please with it; I don’t want it.’ Mr. Edwards went with him to the ear and they were friendly, and he got in the car, and Mr. Edwards stood there by the car when the car went off, and seemed to be as friendly and on as good terms as ever. After the ear left, Mr. Edwards and myself walked around; had some turnip seed sowed that month, and we looked at the turnip patch; and when we come back Iva was sitting in a rocker on the front porch, and Florence and Ruth were sitting on the porch seat on the end of the porch, and Mr. Edwards went over and sat down by Iva on the edge of the porch and leaned back against the column of the porch, the middle column of the porch on the south side of the steps. Coming from the church our home faces in the direction of the church, and a person coming down the road from the church would come in at the front door. I was sitting on the north side of the porch, and we were sitting there and talking, and all at once, at the south end of the house — I was looking toward Iva — I saw Dennis come right around the end of the house; he came up the back way at the kitchen, right around the back end of the house, and Mr. Edwards saw him; I guess we all saw him about the same time. Mr. Edwards said, ‘You’ve decided to come back, have you?’ and he said yes, he wanted to come and tell his babies goodbye, and he walked up and seemed like he stooped over like he was going to kiss the babies; and Iva sat on this side and Mr. Edwards was sitting over here (indicating), and when he stooped to kiss the babies he put his hand on Iva’s right arm on the arm of the chair, his left hand on her right arm, he standing in front of her. Mr. Edwards was sitting on Iva’s right, leaning against the column of the porch, with his feet on the porch, and his hands on his knees, about a foot or two from her, and the baby was on this side. Dennis pulled her, I know, because she held to the arm of the chair and he pulled her so that he pulled her out in the yard, and the chair turned over, and when he did that Mr. Edwards put his hand on his arm and said, ‘Dennis, you mustn’t do that,’ and he said, ‘Gr— damn you, what have you got to do with it?’ and shot him. I don’t know whether he got the pistol in his coat pocket or his pants pocket, but he got it out with his right hand; his left hand had hold of Iva. My husband was standing straight up and he. shot him in the mouth. He was not doing anything, because he didn’t have time to do anything; he started off, and I think he was just dying as he started away from him, and as he started away he shot him in the back. Mr. Edwards’ arms were up (indicating), and his head was to one side, and he started around the house to the back porch, the way Dennis came; Dennis was close to him when he shot first, and I don’t know that he was any further away when he shot the second time than when first shot was fired; he turned around and he shot him in the right shoulder the second time; I saw he was going to fall when Dennis shot him; I started to jump off the porch to go to him, and Dennis said, ‘Don’t you come here! I’ll blow your brains out if you step off the porch!’ Said ‘Damn you; I’ll blow your brains out!’ He was still holding my daughter at the time; she pulled like she was trying to get loose, and be cursed her; said ‘Damn you; if you don’t want a dose of the same medicine you had better be quiet!’ Mr. Edwards went around the house; when he shot him he was turning around, and when he threatened to kill me I went through the house, and Mr. Edwards fell just as I got to the back, close to the back steps; he had gotten around; it seemed he tried to put his foot on the bottom to come in, and fell right above the steps on the ground. He was never able to speak; I don’t know that he breathed at all; his pulse was beating, and when I raised him up and asked him to speak to me, he looked up at me and just made a fuss in his throat; his tongue was torn up, he couldn’t speak, but looked at me as much as to say, ‘I’m dying.’ ”</p> <p>There was other evidence corroborating this witness.</p> <p>The defendant offered evidence tending to prove that he went back to the home of his father-in-law to induce his wife and children to return to their home, and if not, to tell them goodbye; that he had no purpose to kill the deceased, and that he was assaulted by the deceased, and took out his pistol to deter him, and that it was fired accidentally and inflicted the mortal wound in this way.</p> <p>The defendant introduced two witnesses by whom he proposed to show that the relation between him and his wife was cordial. This evidence was excluded, and the prisoner excepted.</p> <p>The State was permitted to show that it was the general reputation, by one J. D. Morris, that the defendant was disagreeable with his own family, including his wife. This evidence was excepted to by the irrisoner.</p> <p>At the close of the testimony of the witness, J. D. Morris, the court took recess, and upon reconvening, the court called the stenographer and had her read, in the presence of the jury, the testimony of J. D. Morris on cross-examination, to the effect that there had been rumors that the defendant was disagreeable with his family, his father and mother, and his wife as well; and further, that the witness had heard that he had run his father and mother from home. The stenographer read all the evidence to which exceptions Nos. 3 to 6, inclusive, on cross-examination of witness Morris relate.</p> <p>The court then stated to the jury: “This evidence on cross-examination of J. D. Morris that was objected to by defendant and admitted by the court is withdrawn from your consideration. After looking into the matter I am satisfied that it is incompetent, and it should not have been presented to you, and you will not consider it in making up your verdict. You have heard the evidence just read as to the general reputation of the defendant for doing certain acts, for mistreating his wife, and running Iris father and mother away from home. You need not consider that in making up your verdict.”</p> <p>To the action, of the court in having the stenographer read the said testimony to the jury the defendant excepts (but this exception was not taken at the trial).</p> <p>At the conclusion of the evidence the prisoner requested the court, in writing, to instruct the jury that the evidence did not warrant a conviction of the prisoner of murder in the first degree, which was refused, and the defendant excepted.</p> <p>His Honor instructed the jury, among other things, as follows:</p> <p>“You are the sole judges of the testimony, and you are also the sole judges as to how much force you shall give any witness’s testimony that comes before you. You can take into consideration the demeanor of the witness on the stand. You can take into consideration such impression as they make on you as to whether they told you the truth or have not told the truth. You can also consider as to whether or not their interest in the result of your verdict has swayed them in telling the truth. In this case it is well enough to charge you that the law looks with some suspicion upon the testimony of interested witnesses, but, notwithstanding that fact, if you are satisfied that the defendant or any other witness has told the truth about all or any part of this testimony, why you can give their testimony as much weight as any other witness, in the event you are satisfied they have told the truth.”</p> <p>The prisoner excepted to the last two sentences in this charge.</p> <p>His Honor also said, in stating the contentions of the prisoner: “It is not contended by the prisoner that he killed the deceased in self-defense,” to which the defendant excepted.</p>

<p>1. Lotteries — Definition.</p> <p>A lottery is defined to be any scheme for the distribution of prizes, by lot or chance, by which one paying money or giving any other thing of value to another, obtains a token which entitles him to receive a larger or smaller value, or nothing, as some formula of chance may determine.</p> <p>2. Lotteries — Games of Chance — Selling Devises.</p> <p>By the use of a machine called a “merchandise vendor,” cards were arranged in several parallel columns, each one calling for the sale of a collar button at five cents each. Every twentieth card called also for a fifty-cent box of candy. By operating a crank each purchaser received a card good for the collar button, and at every twentieth card he was entitled to a fifty-cent box of candy besides. The machine was so arranged that the operator could not tell whether he would receive only the collar button for which he had paid, or in addition, the candy. Held, the device was a gambling one within the intent and meaning of our statute, the chance being as to who would draw the twentieth card and receive the candy in addition to a collar button, which all received.</p> <p>3. Same — Small Values.</p> <p>The fact that a gambling device is for small values does not relieve it of its objectionable features, for upon the same principle one involving large amounts may be operated. It is the element of chance that makes it pernicious to public morals, which it is the object of our statute to prevent, and for this reason it is condemned.</p>

INdictment for murder of Maude Williams, née Grant, tried before Ray, J., and a jury, at August Term, 1919, of Macon. . Tbe prisoner was convicted of murder in the first degree. Judgment on the verdict, and prisoner appealed.

Appeal by defendant from Long, J., at May Special Term, 1919, of Cleveland. Verdict of murder in the first degree, and sentence in accordance with law, from which the prisoner appealed.

INDICTMENT for larceny, tried before Bay, J., and a jury, at July Term, 1919, of Swain. Tbe defendant was indicted for tbe larceny of lumber of the value of $200, tbe property of A. T. Dorsey. All of the evidence was not sent up. From tbe little tbat is here, we gather tbat tbe lumber was stacked or piled in different places.

Appeal by defendant from Ray, J., at tbe July Term, 1919, of SwaiN. This is an appeal from a judgment pronounced upon a verdict of guilty of the charge of the larceny of certain lumber, the property of A. T. Dorsey. There was evidence that about three years ago the prosecuting witness, Dorsey, procured a right of way from the defendant to erect and operate a flume over defendant’s land for transporting lumber and wood, which was afterwards erected and operated by Dorsey.

INDICTMENT, tried before McElroy, J., and a jury, at March Term, 1919, of GRAHAM. There were originally three counts in the bill of indictment; First, charging that the defendants set lire to and.burned a certain building, the property of 0. 0. Mills; the second, that the defendant Yearwood burned the building, and that defendant Tabor aided and abetted him in it; and the third charge, willful injury to the property of C. 0.

<p>Criminal Law — Evidence—Accomplice.</p> <p>One charged with the commission of a crime may be convicted upon the direct testimony of his accomplice therein if fully believed by the jury to be true.</p>