Volume 179 — North Carolina Reports

<p>MotioN by defendant to retax tbe costs for printing tbe record.</p>

<p>Estates — Contingent Interests — Sales—Release—Pleadings—Judgments— Estoppel — Remainders.</p> <p>An estate to testator’s two daughters upon condition that if either of them shall die without leaving lawful issue, then to vest in the surviving sister, but if both of them should die without leaving lawful issue, then to certain of the testator’s sons, “to be equally divided between them or among their heirs, per stirpes and not per capita.” Held, the sons having released any interest in the property and filed answer consenting to a decree in proceedings to sell the lands and hold the proceeds for contingent interests in esse, and others not m esse, under the statute: Held, the estate of the two daughters is defeasible in the event of both dying without issue, and not indefeasible upon the birth of issue; and in the future event of their both dying without issue, the estate of the sons would be indefeasible, and their heirs would be estopped by their present release and their answer in the case, the words “their heirs per stirpes and not per capita” indicating only the division of the remainder.</p>

Case agbeed, submitted to Calvert, J., at November Term, 1919, of RobesoN, involving the title to land. From the judgment rendered the defendant appealed.

Appeal by defendant from Calvert, J., at December Term, 1919, of ROBESON. Tbis is a controversy without action, submitted under an agreed case. Held: and, under order of the board of commissioners, notice of the election was posted at the courthouse door of Bobeson County, and at the voting precinct in Maxton Township for thirty days, and published in the Robesonian for four weeks in succession prior to the day of election.

Special peoceediNgs for partition and sale, beard on appeal from clerk, before McElroy, Jat November Term, 1919, of Foesyth.

Appeal by defendant from Shaw, J., at chambers, 15 October, 1918, from Guilposd.

Civil actioN, beard by Bryson, J., upon facts agreed, at September Term, 1919, of Guileoed. Held: managed, and controlled by the receiver and trustee under the immediate direction and orders of the court. 5. On 28 February, 1914, Olivia Maude Fisher and William R. G-.

Civil actioN to recover damages for j>ersonal injuries to infant plaintiff caused by alleged negligence of defendant company, tried before Bay, J., at May Term, 1919, of MadisoN. On motion, there was judgment dismissing the action, and plaintiff excepted and appealed.

<p>1. Courts— Jurisdiction— Actions— Transitory Causes— Nonresidents— Process — Summons.</p> <p>An action to recover damages for an injury negligently inflicted is for a transitory cause following the person of the party injured, and he, though a nonresident, may maintain it in the courts of our State upon a cause of action arising in another State, irrespective of the nonresidence here of any or all of the parties, or whether the defendant be a corporation, or the place where the injury was inflicted, if valid service of summons can be herein made.</p> <p>2. Statutes — Other States — Decisions—Adopted Here — Interpretation.</p> <p>Where a statute law of another State is afterwards enacted here, and the language has received a settled construction there, the Legislature will be presumed to have adopted it with the intention that it shall receive that interpretation.</p> <p>3. Courts — Jurisdiction—Transitory Cause — Statutes—Other States — Interpretations.</p> <p>Our statute, Rev., 423, providing that actions against foreign corporations may be brought in any county wherein the cause of action arose or in which the corporation usually does business, or in which it has property, or in which the plaintiff, etc., resides, under certain restrictions, is under the subject of venue and not jurisdiction, and, though it enumerates certain cases, it does not purport to restrict the jurisdiction of the court or to prevent the exercise of such jurisdiction as theretofore existed; and under our own decisions and those of New York, from which the statute was adopted, it does not interfere with the jurisdiction of our courts of transitory causes of actions.</p>

Appeal by both plaintiff and defendant from Bay, J., at June Term, 1919, of BuNCOmbe. This action is for the wrongful cancellation of a life insurance policy, and to recover damages for the failure of the defendant to pay to the plaintiff his pro rata share of a fund created under a special contract. The following issues were submitted: 1. Did the defendant wrongfully forfeit or lapse policy No. 1706-A for $5,000 issued to the plaintiff, the same being the policy sued on?

Appeal by plaintiff from Ray, This is an action for damages for personal injuries sustained by the plaintiff, an employee of the lessee of the defendant. The jury found on tbe issues submitted that the defendant was not guilty of negligence, and that plaintiff contributed to her injuries by her own negligence. Appeal by plaintiff.

Civil action, tried before Bay, J., and a jury,' at October Term, 1919, of Burro ombe. This action was brought by plaintiff to recover commissions on rent collected by defendant from the United States on the Haywood White Sulphur Springs property, located near Waynesville, and only involves commissions on the rent for eleven days in March, 1918, and for the month of April, 1918.

Appeal by plaintiff from Bay, J., at tbe June Term, 1919, of Buu-COMBE. This is an action to recover damages for negligence resulting in the death of Lloyd Enloe, a fireman who was killed while at his post of duty and employed by the Southern Kailway Company. Plaintiff’s intestate was killed about 12 o’clock m., on 9 May, 1917, at a point on the line of the Southern Eailway Company about 300 yards west of Lake Junaluska Station in Haywood County.

Civil actioN, tried before Finley, J., and a jury, at November Term, 1919, of BuNcombe. Tbis action was brought in the court below for the purpose of enforcing specific performance of a written contract entered into by the parties to this action, under which defendant agreed to purchase from the plaintiff certain real estate in the city of Asheville, and the plaintiff agreed to convey the same to the defendant absolutely in fee simple.

Appeal by defendant from Bay, J., at tbe June Term, 1919, of Bust-combe. Tbis is a proceeding for tbe partition of land.

Civil ACTION, tried before Bay, J., and a jury, at April Term, 1919, of BUNCOMBE. Tbe action was brought to recover damages alleged to have resulted from a breach, on the part of the defendant, of a contract between the parties in regard to the cutting, logging, and manufacturing into lumber of certain standing timber on land in the county of McDowell, jiear Old Fort, being approximately 4 to 5 miles from that place.

Civil ACTION, beard on case agreed, before Finley, J., at December Term, 1919, of BuNcombe. The action is to collect the purchase money bid by defendant for $40,000 of municipal bonds of Weaverville Public School District, and $50,000 of the Emma Special School Tax District of said county.

Civil actioN, tried before McElroy, J., and a jury, at May Term, 1919, of JaousoN. The action is to recover damages for physical injuries caused by negligence of defendants in the equipment and operation of the railroad of defendant company. There was denial of liability and plea of contributory negligence on part of plaintiff, and, on issues so raised, verdict for plaintiff. Judgment on verdict, and defendant excepted and appealed.

Appeae by plaintiffs from McElroy, J., at chambers, Sylva, N. C., 24 May, 1919, from JacicsoN. This is an action for the recovery of land, for an injunction to the final hearing to prevent cutting and removing timber, and also for a receiver.' There was a temporary restraining order, which the court refused to continue to the hearing, and the plaintiffs appealed.

Appeal by defendant from Webb, J., at the June Special Term, 1919, of CHEROKEE. This is an action for damages for the alleged negligent killing of a mare owned by the plaintiff.

MotioN in tbe cause beard by Ray, J., at August Term, 1919, of MacoN. Tbe plaintiff moved to strike out tbe answer of tbe defendant for want of a defense bond. Tbe motion was allowed, and judgment final for want of answer was rendered. Defendant appealed.

<p>1. Employer and Employee — Master and Servant — Negligence—Safe Place to Work — Eellow-servant.</p> <p>Tbe duty of the employer to furnish his employee a safe place for the performance of his services cannot be delegated, and where the negligence of the employer in this respect concurs with that of his other employees in proximately causing a personal injury to the plaintiff, the employer may not escape liability on the ground that it was caused by the negligence of the plaintiff’s fellow-servants.</p> <p>2. Same — Contributory Negligence — Assumption of Bisks — Questions for Jury — Trials.</p> <p>In this action to recover damages for an alleged negligent injury in the failure of a tannery to provide sufficient lights for the plaintiff, working at night with other employees, filling tubs of boiling water with chipped wood, into one of which, left uncovered, the plaintiff fell to his injury, there was allegation and evidence as to the defendant’s failing to furnish sufficient lights and allowing chipped wood to accumulate in the walkway between the tubs: Held, sufficient to be submitted to the jury upon the question of defendant’s actionable negligence, and that of the plaintiff’s contributory negligence or assumption of risks was also properly submitted to them under a charge free from error. Hicks v. Mfg. Co., 130 N. C., 319, and other like cases cited and applied.</p> <p>3. Employer and Employee — Master and Servant — Safe Place to Work-Negligence — Subsequent Bepair — Corroborative Evidence.</p> <p>Where there is evidence tending to show that an employer has negligently failed to furnish his employee a safe place to work by reason of a certain defect, it is competent to show, by way of corroboration, in certain instances, where the defect is denied, that the place had subsequently been repaired by the employer. Muse v. Motor Oo., 175 N. C., 469, cited and applied.</p> <p>4. Appeal and Error — Objections and Exceptions — Evidence—Exceptions —Bequests for Instructions.</p> <p>A general exception to the admissibility of evidence, competent in part, will not be considered on appeal, unless it is properly asked to be restricted to the purpose for which it was competent, or in the absence of special requested instructions in regard to it.</p> <p>5. Instructions — Special Requests.</p> <p>Where the charge of the judge, construed as a whole, is substantially correct, any special feature of the case omitted by him should be covered by requests for special instructions thereon.</p> <p>6. Instructions — Special Requests — Evidence—Abstract Principles.</p> <p>Prayers for special instructions should not be mere abstract propositions of law, which are not applicable to the evidence, nor should they be based upon a partial statement of the evidence, omitting therefrom that which is material and relevant to the issues, and vitally essential to a proper consideration of the case by the jury.</p> <p>7. Instructions — Opinion of Judge.</p> <p>Held, in this case, the instruction of the court was not objectionable as expressing an opinion inhibited by the statute. Davis v. Blevins, 125 N. C., 433.</p>

Civil actioN, tried before Webb, J., at June Term, 1919, of Cheeo-kee, a jury trial having been formally waived by the parties.

Civil actioN, tried before Webb, J., at June Term, 1919, of Cherokee, upon these issues : “1. Was there a dedication of an easement in tbe land used for a water basin of tbe water system of tbe town of Murphy, and over which pipe lines run to and from said basin, being six acres ? Answer: No.’ - “2. Is tbe plaintiff, Duke Land and Improvement Company, tbe owner of said land? Answer: ‘Yes.’ “3.

Appeal by plaintiffs from McElroy, J., at February Term, 1919, of JACKSON. Tbis action was brought to recover $300 under an oral contract by wbicb tbe defendant agreed to pay tbe plaintiffs said sum as a consideration for an option on tbe plaintiffs’ mica mine for 90 days.

Civil ACTION, tried before McElroy, J., and a jury, at Spring Term, 1919, of Swain. Tbis was an action for the burning of plaintiff’s lumber yard, alleged to have been caused by the negligence of defendant, Norwood Lumber Company. The plaintiff alleged, among other things, that he carried, at the date of the fire, an insurance policy for $2,000 with the Aetna Insurance Company, and upon proof of loss said amount had been paid by the company.

Appeal by defendant from 'Wébb, J.,. at tbe June Special Term, 1919, of CHEROKEE. This is an action to recover possession of two mules in which claim and delivery proceedings were resorted to, and the defendant gave bond, retained the mules, and sold them before the trial.

Civil action, tried before Long, J., and a jury, at June Term, 1919, of Avert.

<p>Appeal by defendant from Bay, J., at May Term, 1919, of BunooMbe.</p> <p>This is an action to recover damages as the result of a collision between an automobile truck belonging to the plaintiffs, and an automobile belonging to the defendant on Biltmore Avenue, near Asheville, 30 March, 1919. The defendant, prior to the bringing of this action, had brought an action against the plaintiffs in Polk County, where he resided, for damages arising out of the same collision. The summons in that action was served and returned prior to the beginning of this action by the plaintiffs. At the return term of the summons in this action, the defendant filed his plea setting up the pendency of the action in Polk, and moved to dismiss this action because of the institution of the prior action pending in Polk, between the same parties, and in regard to the same subject-matter. The motion to dismiss was denied, and the defendant appealed.</p>

PROCEEDINGS instituted before tbe Corporation Commission for an increase of street car rates, beard on appeal before Adams, J., at February and March Term, 1919, of Mecklenburg.

<p>Civil action, beard before Ray, J., at June Term, 1919, of Buncombe.</p> <p>Judgment in favor of the defendant, from which plaintiff appealed.</p>

Civil actioN, tried before Devin, Jat January Term, 1919, of PasquotaNK. Tbe following issues were submitted: “1. Is tbe defendant, I. M. Meekins, indebted to tbe plaintiff as alleged in tbe complaint, if so, in wbat sum? Answer: ‘$1,471.38, and interest from 15 July, 1917.’ “2. Did tbe plaintiff warrant tbe goods sold to defendant Meekins, as alleged in tbe answer? Answer: ‘No.’ “3. Was there a breach of warranty by tbe plaintiff, as alleged in tbe answer ?

Civil actioN, tried before Lyon, J., and a jury, at October Term, 1919, of Hyde. The action is to recover damages for alleged negligence of defendant in cutting a spillway in tbe side of canal whereby a large amount of water was thrown in and upon the lands of plaintiff, causing substantial injury to said land. There was denial of liability by defendant, and, on issues submitted, the jury rendered the following verdict: “1.

<p>Appeal by plaintiff from Bond, J., at September Term, 1919, of Beaufort.</p>

Civil actioN, tried before Lyon, J., and a jury, at July Term, 1919, of CAMDEN. The action is to recover damages for injury to plaintiffs, caused by cutting a drainage canal through the same, at the instance and for the benefit of the defendant drainage district, the said lands lying outside and below the boundaries of the district. There was denial of liability, and, on issues submitted, the jury rendered the following verdict: “1.

Appeal by plaintiff from Lyon, J., at tbe September Term, 1919, of Beaufort. Tbis is an appeal from an order setting aside a decree wbicb granted an absolute divorce to tbe plaintiff. Upon tbe bearing of tbe motion tbe following facts were found: 1.

Civil actioN, tried before Lyon, Jand a jury, at July Term, 1919, of CAMDEN. This action was brought by plaintiffs to set aside a deed made by them to defendants, upon the ground of fraud. It appeared in evidence that one John G. Gray died intestate on 12 September, 1917, seized and possessed of a large estate of both real and personal property, and left surviving Mm four heirs, the plaintiff inheriting an undivided one-fourth interest in the estate.

<p>Appeal by defendants from Lyon, J., at September Term, 1919, of CAMDEN.</p> <p>Tbis is an action to recover damages for failure to rebuild á wbarf known as “Sbilob” wbarf, and for rent under tbe lease thereof. Tbe case was submitted upon facts agreed. It appeared therefrom that tbe defendant lessee covenanted “to maintain tbe said wbarf in its present condition during tbe continuance of tbis lease”; that tbe defendant company went into possession of tbe premises and paid tbe rents provided therein np to 31 December, 1917; that on 15 January, 1918, 270 yards of said wharf were totally destroyed, leaving standing and remaining only 100 yards thereof next to the shore, built over shallow water, and about one-half of the pier-head. The freight house at end of said wharf was also completely destroyed..</p> <p>It was also stated in the facts agreed that “the destruction of said 270 yards of wharf, including the freight house as aforesaid, was due solely to the freezing of Pasquotank Eiver, and the subsequent breaking up of the ice therein, which swept the same away, and the destruction was not due in any part to any fault or negligence on the part of the defendant company. The 100 yards of wharf remaining, as aforesaid, including the one-half of the pier-head also remaining, and all other property rights mentioned in said lease, are absolutely incapable of use for the purpose mentioned in the lease, unless the 270 yards of wharf and the freight house, swept away as aforesaid, be rebuilt.”</p> <p>It was further agreed by the parties that “said freeze began on 31 December, 1917, and continued till 24 January, 1918, and there had been only three such freezes in that locality in the last forty years.” It is admitted that immediately after the destruction of the property aforesaid, the plaintiffs called upon the defendant to replace the same, and the defendant declined to do so, denying any further liability under the lease; and has made no use of the premises since that time. It was agreed, at the time of the refusal of the defendant to rebuild, that the cost of rebuilding the wharf and freight house would be $1,000.</p> <p>Upon the above admissions the court rendered judgment that under the terms of the lease the plaintiff recover $1,000, the cost of replacing said property, and $420, the rent accrued since 31 December, 1917, up to 30 September, 1919, and the costs. Appeal by defendants.</p>

<p>MotioN to vacate attachment, heard before Connor, J., at December Term, 1919, of Edgecombe.</p> <p>The attachment was vacated, and the plaintiff appealed.</p>

<p>Civil actioN, tried before Whedbee, J., and a jury, at May Term, 1919, of Nash.</p> <p>This is an action, under tbe statute (Rev., 1509), to try and determine the title to land, or to remove a cloud from the title of plaintiff to an undivided interest in a certain tract of land, the defendants claiming the same by virtue of a foreclosure sale and deed, under a power contained in a mortgage deed, and mesne conveyances.</p> <p>In 1905 Louis Ricks died seized and possessed of a tract of land in Nash County, containing 218 acres. In his will, duly probated, he devised this land to his wife, Lucinda Ricks, for life, with remainder to the plaintiff, and his brothers and sisters, one-ninth each.</p> <p>In 1906 the plaintiff and four of his brothers each executed a mortgage and crop lien to tbe Brooks Mercantile Company, covering tbeir respective interests in said tract of land..</p> <p>In July, 1911, R. U. Brooks, president of Brooks Mercantile Company, acting in tbe name of tbe corporation wbicb was tben in process of dissolution, sold tbe land, under tbe power contained in tbe mortgages, and executed deeds to B. A. Brooks, bis son and tbe attorney of tbe corporation, for plaintiff’s interest in tbe land. Tbe total consideration recited in tbe five deeds exceeded $1,500. At tbe same time B. A. Brooks reconveyed all five interests in one deed to R. U. Brooks, for a recited consideration of $1,000. No consideration was actually paid for tbe transfer, and tbe plaintiff was not credited with any of tbe proceeds of tbe sale.</p> <p>Tbe alleged foreclosure deed recited tbat sale of said premises was bad on Monday, 12 March, 1907. Tbe notice of sale published in the Nashville Graphic tbe week prior to tbe alleged sale, named 12 March as tbe sale date; tbe notice as to tbe sale of tbe interest of Jonas Ricks named Tuesday, 12 March, 1907, as tbe sale date; 12 March, 1907, was on Tuesday, and tbe sale was made on tbe preceding day, 11 March, 1907. There was no advertisement or notice of a sale on 11 March, wbicb was Monday. All tbe conveyances are duly recorded, and are admitted to be regular in form, and sufficient to convey tbe premises in question.</p> <p>R. U. Brooks devised tbe interest in tbe land acquired by him under these deeds to tbe defendants, bis children and heirs at law, and tbe defendants, in tbeir answer, set up and allege title unde]’ the foreclosure deeds, and tbe will.</p> <p>Tbe plaintiff, in 1918, brought this suit and filed bis complaint, claiming tbat be was still tbe owner of tbe one-ninth interest in tbe lands, and tbat defendants were claiming some interest unknown to him in tbe same, wbicb constituted a cloud upon bis title, and asked to have tbe same removed. Tbe defendants answered, admitting tbat plaintiff once owned a one-ninth interest in tbe lands, but tbat they, through mesne conveyances from tbe plaintiff himself, were now tbe owners of tbe interest wbicb bad formerly belonged to tbe plaintiff.</p> <p>Tbe cause was tried by tbe court and a jury, and plaintiff offered in evidence tbe will of bis father conveying to him tbe land, and tbe admission in tbe answer tbat be did acquire said interest through bis father’s will, and rested. Tbe defendants offered in evidence the mortgage from plaintiff to Brooks Mercantile Company, tbe foreclosure deed to B. A. Brooks, and tbe deed from B. A. Brooks to R. U. Brooks, and it was admitted tbat defendants are tbe devisees of R. U. Brooks. Tbe court tben held tbat this shifted-tbe burden of proof to plaintiff to “show by tbe evidence, and tbe greater weight thereof, tbat tbe foreclosure deed, wbicb is regular and valid upon its face, is in fact inoperative as a deed, or is operative in law only as an equitable transfer of tbe mortgage, as be alleges same to be.” Tbe evidence offered by tbe plaintiff to show tbat said deed was inoperative was admitted, as shown by tbe exceptions, over defendant’s objections.</p> <p>Tbe jury found tbat tbe deed from tbe Brooks Mercantile Company to B. A. Brooks, and from bim to R. U. Brooks, are void as to plaintiff, and tbe court beld tbat -they constituted only an equitable assignment of tbe mortgage given by plaintiff .to tbe Brooks Mercantile Company. It was thereupon adjudged tbat tbe debt due by plaintiff be ascertained, and tbat, if it is not paid, tbe plaintiff’s interest in tbe land be sold for its payment, etc. Defendant excepted and appealed.</p>

Appeal by defendant from Lyon, J., at January Term, 1920, of Nash. Tbe plaintiff, tbe beneficiary, seeks to recover upon a certificate issued upon tbe life of ber late husband, by tbe defendant, a fraternal benefit association. Tbe insured, in bis application, stated be did not use and bad never used opiates, morphine, cocaine, or other narcotics, and there was evidence tending to show that both before and after that date be bad used those articles.

Appeal by defendants from Bay, J., at tbe July Term, 1920, of BuNoombe. Tbis is an action to recover tbe penalty for usurious interests alleged to bave been paid by tbe plaintiff to tbe defendant. Tbe defendant denied tbat usury was charged or paid, and pleaded tbe statute of limitations.

Appeal by defendant from Devin, J., at tbe November Term, 1920, of Edgecombe. Tbis is an action to recover damages for tbe negligent billing of plaintiff’s intestate, D. C. Goff, at tbe public crossing in Eocky Mount at Gay’s store on Cokey Eoad.

, at August Term, 1919, of Wayhe. This action was brought by plaintiff against the Southern Railroad Company, and W. D. Hines, Director General of Railroads, for personal injuries sustained 20 December, 1918.

Appeal by plaintiff from Gormor, J., at September Term, 1919, of Lee. Action for damages for tbe destruction of an automobile while in tbe defendant’s garage for repairs. It was in evidence tbat tbe plaintiff carried bis ear to tbe garage for certain minor repairs, and was to call for it at noon, it' being understood tbat be would need it at tbat time. Wben be called for it at tbat time be was told tbat it would take only a short time longer, not more than 30 minutes.

<p>MotioN to set aside judgment upon the ground of excusable neglect, heard by Connor, J., at his chambers in Wilson, N. C., by consent of the parties and attorneys, on 28 November, 1919.</p> <p>The plaintiff alleged in her complaint that a certain deed executed by her to her husband was void, and asked that it be set aside. The defendant failed to appear or plead, and judgment by default, for want of an answer, was entered accordingly. Defendant moved to set aside this judgment for excusable neglect of the defendant, who was their father, and now deceased.</p> <p>The court found the following facts: “That the summons in the action was issued by the clerk of the Superior Court of Harnett County on the 6th of May, 1916, returnable to the May term of said court, and was personally served on the defendant, Blackman Jernigan, then living in Johnston County, by the sheriff of said county, on the 11th day of May, 1916; that a duly verified complaint was filed under authority of a special order made in this action on the 3d day of July, 1916, and no appearance having, been entered, and no answer filed, a judgment by default final was rendered in favor of plaintiff and against defendant, pertaining to real estate, at September Term, 1916, of this court.</p> <p>“2. That defendant, Blackman Jernigan, died on 7th day of June, 1917, and that the defendants, who file this motion, are his heirs at law and devisees named in his last will and testament.</p> <p>“3. That said heirs at law and devisees, through their attorneys, now move to set aside the judgment by default final entered at September Term, 1917, and within one year from rendition of the same as determined by the Supreme Court in an appeal from the judgment rendered at February Term, 1919.</p> <p>“4. That defendant, Blackman Jernigan, wrote a letter to attorneys at law, residing at Smithfield, N. C., as soon as the summons was served on him, requesting them to represent him in this action, and soon thereafter received from the attorneys a letter advising him that they would represent him; and said attorneys are and were reputable and reliable, and regularly practiced in the courts of Johnston County; but that they do not regularly practice in Harnett County, and do not regularly attend the courts of that county; that they did not enter an appearance for Blackman Jernigan, nor did they file an answer to the complaint herein; that there is no evidence from which the court can find that any other or further communication was had, by letter or otherwise, between the said Blackman Jernigan and the said attorneys, relative to this action, or to any other matter; that from the date of the service of the summons in this action on him to the date of his death, Blackman Jernigan resided in or near the town of Benson, in Johnston County, and his attorneys resided in the town of Smithfield, in said county.</p> <p>“5. That Blackman Jernigan was on the date of the service of summons in this action on him, and continuously to the date of his death, confined to his home by sickness, and was physically unable to attend court or to leave his home to attend to any business whatever.</p> <p>“6. That Blackman Jernigan, during the months of August and September, 1916, and during the months of January, February, and March, 1917, bought and sold land and conducted business transactions involving large sums of money. He executed and received deeds and directed the management of his business.</p> <p>“7. That two actions were pending in the courts of Johnston County against the said Blackman Jernigan duritag the fall of 1916; that he filed answers in both said actions, and by his attorneys contested the same in said courts; that the deposition of Blackman Jernigan was taken in March, 1917, and was used in Ms behalf in the trial of the case of Lucy E. Hays v. Blackman Jernigan in the Johnston County court.</p> <p>“8. That Blackman Jernigan was continuously, between the date of the service of the summons in this action upon him, and the date of his death, mentally capable of attending to business, and of communicating by letter and otherwise with persons relative to business matters.</p> <p>“9. That the plaintiff, Rebecca Jernigan, was the wife of Blackman Jernigan; that no children were born of their marriage; that the land which is the subject-matter of this action was owned by Rebecca Jerni-gan prior to her marriage, and was, after the marriage, and while she was living with her husband, conveyed by her and her husband to M. C. Butler, who, contemporaneously with the conveyance of the land to him, conveyed the same to Blackman Jernigan; that thereafter Blackman Jernigan ceased to live with the said Rebecca Jernigan, and the purpose of this action was to have the two deeds declared void for the reason set out in the complaint; that the affidavits filed herein by the heirs at law and the devisees of the defendant, Blackman Jernigan, and the answer tendered to the court, disclose a meritorious defense to the plaintiff’s cause of action.</p> <p>“Upon the foregoing facts, the court was of the opinion, and so held, that the failure of Blackman Jernigan to file an answer to the complaint was not due to any mistake, inadvertence, surprise, or excusable neglect on his part, and that the motion to set aside the judgment rendered by default at September Term, 1916, ought to be, as a matter of law, denied.</p> <p>“It is therefore ordered and adjudged that the said motion be, and the same is, denied, and that the plaintiff recover of the defendants, heirs at law and devisees of Blackman Jernigan, the costs incurred upon this motion.”</p> <p>Defendants excepted, and appealed.</p>

Appeal by plaintiff from Kerr, J., at September Term, 1919, of Pitt. This was a proceeding by plaintiff under sec. 8, ch. 714, Laws 1905, asking that a jury be appointed to assess damages caused to his land by the county taking 7/10 of an acre of land in the construction of a public road. The jury was duly appointed, and made its report allowing defendant $175 damages. Without waiting for the commissioners to take action, the plaintiff appealed to the Superior Court.

Civil ACTION, tried before Devin, J., and a jury, at October Term, 1919, Of WILSON. Tbe action is to enforce tbe specific performance of a contract to convey a parcel or lot of land in tbe city of Wilson, pursuant to an option to purchase tbe same, contained in a written agreement executed by defendants to tbe plaintiff.

Habeas cobpus proceedings to determine as to care and custody of an infant child, now three and a half years of age, heard, on petition of the parents, before Daniels, J., at chambers in Goldsboro, N. C., on 20 September, 1918.

Civil actioN, beard on appeal from Connor, J., at tbe November Term, 1919, of Watots. Tbis case is one of five separate actions brought by insurance companies to recover tbe total sum of $14,339.36, wbicb was paid by tbem to tbe Griffin Manufacturing Company for loss of property destroyed on 1 April, 1917, by tbe negligence of tbe defendants, witb interest from said date.

Appeal by defendant from Bond, J., at tbe January Term, 1920, of WayNe. This is an action to recover the purchase money of a certain lot which the plaintiff contracted to sell to the defendant, and which the defendant agreed to buy, the defendant refusing to accept the deed of the plaintiff and pay the money, upon the ground that she could not convey the land in fee.

<p>1. Bills and Notes — Negotiable Instruments — Purchaser after Maturity— Equities — Notes.</p> <p>The purchaser, after maturity, of a note secured by a chattel mortgage takes subject to the equities existing between the original parties.</p> <p>2. Same — Corporations—Officers of Both Corporations — Notice.</p> <p>Where a corporation is a purchaser of a note after maturity from another corporation, and knowledge of outstanding equities is had by the proper officer of the selling corporation, who occupies the same position with the purchasing one, it is also notice to the latter.</p> <p>S. Principal and Agent — Unauthorized Agent — Ratification—Acceptance of Benefits — Bills and Notes — Mortgages—Substitution of Property.</p> <p>The ratification of a transaction of a third person acting without authority as agent, may not be in part, for the repudiation thereof must be as a whole without acceptance of any of the benefits; and where the maker of a note secured by a chattel mortgage of mules has exchanged the mules for others in substitution of the mortgaged property, with a money payment to boot, and with knowledge thereof, the purchaser of the note accepts the cash thus paid, his so accepting the cash ratifies the entire transaction, for he may not repudiate it in part and ratify it in part.</p>

Civil actioN, beard before Connor, J., at October Term, 1919, of Lee, on motion to remove tbe cause for trial to Eoestth.

<p>Removal of Causes — Transfer of Causes — Motions—Clerks of Court— Pleadings — Answer—Superior Court — Jurisdiction.</p> <p>Wliere proceedings are commenced by the issuance of a summons by a nonresident plaintiff in the wrong venue, before the clerk of the court, ch. 304, Acts 1919, the defendant may file his motion before the clerk before time to answer has expired, and’thereafter file his answer, when the cause will be transferred to term; and the motion to remove then being properly before the judge, he has jurisdiction and authority to pass thereon, and order the cause transferred to the proper venue.</p>

Civil actioN, tried before Kerr, I.,- at November Term, 1919, of Okav'EN, upon these issues: “1. Are plaintiffs the owners of the-land described in the complaint? Answer: ‘Yes.’ “2. Were the plaintiffs’ lands and crops damaged by the negligence of the defendant, as alleged in the complaint? Answer: ‘Yes.’ “3. If so, what damages are plaintiffs-entitled to recover? 'Answer: -‘$1,000.’ ” The defendant appealed.

Appeal by defendant from Kerr, J., |at November Term, 1919, of CRAVEN. This is an action for damages brought by the plaintiff as father, and also as next friend, on behalf of his daughter, a girl 16 years of age, for seduction. Yerdict and judgment for the plaintiff; appeal by defendant.

Civil action, tried before Kerr, J., at October Term, 1919, of Carteret, brought to, recover a lot of land in the town of Beaufort. His Honor charged the jury, if they believed the evidence, to answer the issues in favor of plaintiff. There was a verdict and judgment for plaintiff; defendants appealed.

Civil actioN, beard by Connor, Jon demurrer to tbe complaint, at January Term, 1920, of Pitt. Tbis action was brought to set aside a judgment entered at August Term, 1914, of tbe Superior Court of Pitt County, in a case entitled “Joseph Lee Stocks v. Ada Stocks,” 'which judgment was taken by default, and purports to vacate and set aside a certain proceeding in which dower was allotted to Ada Stocks, tbe plaintiff therein.

Appeal by plaintiffs from Connor, J., at tbe November Term, 1919, of HARNETT. This is an action by an insurance company to recover tbe amount of. tbe insurance paid by tbe plaintiff to tbe Elm City Lumber Company on account of loss by fire alleged to have been caused by tbe negligence of tbe defendant. 1. On 11 November, 1912, a fire occurred wbicb destroyed lumber owned by tbe Elm City Lumber Company, amounting in value to upwards of $20,000. 2.

Civil aotioN, tried before Kerr, Jand a - jury, at October Term, 1919, of Carteret. Plaintiff alleged tbat in March, 1917, be was employed by tbe defendant as a laborer, and was assigned to tbe work of “boobing stone” by using grab-irons to fasten to tbe stone so as to move them or lift them up.

Civil actioN, tried before Kerr, J., and a jury, at September Term, 1919, of CeaveN.

<p>Contracts— Lands— Sales— Consideration — Bonds—Face Value — Market Value.</p> <p>A contract for the sale of lands.“payable one-half in cash and one-half in Liberty Bonds” contemplates the acceptance of the bonds by the purchaser at their face value, and not according to their market value at the time, the latter interpretation having the effect of changing the express terms of the agreement, which the courts may not do in the absence of allegation or proof of fraud or mistake.</p>

<p>1. Deeds and Conveyances — Interpretation—Intent—Exception—Rule in Shelley’s Case.</p> <p>A deed to lands must be construed to effectuate the intention of the parties as expressed in the entire instrument, except when modified by some arbitrary principle of law, like the rule in Shelley’s case, which, perhaps, is the only exception now prevailing.</p> <p>2. Same — “Heirs”—Children—Defeasible Pee — Title..</p> <p>A limitation of lands over on the death of the grantee or first taker without heir or heirs, and the second or ultimate taker is presumably or potentially one of the heirs general of the first, the term “dying without heir or heirs” on the part of the grantee, will be construed to mean, not his heirs general, but in the sense of children and grandchildren, etc., living at his death; and a gift to' donor’s son J., expressed upon consideration that in case he should die without an heir the gift shall revert to the sole use and benefit of donor’s son T., “his heirs and assigns,” upon the death of J. without issue, the estate would go to the heirs of T., since deceased, of the blood of the first purchaser, who would take under the deed.</p> <p>S. Same — Repugnant Clauses.</p> <p>An estate granted to J. defeasible in effect upon condition that at his death without issue, it would go over to the heirs of his brother T., both being the sons of the donor or grantor,, is not repugnant to a latter expression of the writing granting the lands to J. “his heirs and assigns” in fee, in the sense that one is destructive of the other, for the limitation will be held as a qualification of the granting clause, showing the intent of the grantor was not to convey a fee simple absolute, but a defeasible fee in the lands to J.</p>

<p>Civil actioN, tried before Daniels, Jand a jury, at December Term, 1919, of Onslow.</p> <p>Plaintiff sued before a justice' of tbe peace for tbe value of goods shipped by tbe defendant’s line to bim at Ricblands, N. 0., from Charleston, S. C., which were lost in transit; and for tbe freight paid by him on -tbe same. He stated in bis complaint tbe total sum due, and did not separate tbe items, that is, goods and freight charges which were paid. Judgment was given against bim in tbe justice’s court, and be appealed. In tbe Superior Court be testified^ that be ordered tbe goods from C. D. Francke & Company of Charleston, S. 0., and all were received but tbe steel tires, described as “a bundle of rods.” That be bad demanded tbe rods several times, when be filed bis claim for loss, which included, in tbe total, tbe amount paid by him as freight. In what is called in tbe ease tbe receipted “freight bill,” these goods are stated as “astray” or lost. Tbe claim be filed with the defendant consisted of tbe statement of loss, tbe freight bill and a bill of lading signed by C. D. Francke & Company, but not by tbe railroad company. These papers were delivered to tbe defendant and kept by it for many months without any objection, so far as appears, to its form or substance, or any dispute of tbe claim; that only a part of tbe goods arrived at Ricblands, and were delivered to bim.</p> <p>Tbe court ordered a nonsuit as to both items of tbe claim for loss, because, presumably, tbe bill of lading was not signed by tbe railroad company at Charleston, S. 0., and tbe claim for freight charges paid by bim was not distinctly pleaded, but was included with tbe loss of "the goods without any separate designation, tbe form of tbe complaint being “for the nonpayment of so many dollars,” with interest, “due by goods lost on said company’s road and demanded by him.” Plaintiff excepted, and appealed from the judgment.</p>

<p>1. Mandamus — Public Officers — Municipal Corporations — Unlawful Purposes.</p> <p>Performance of a mere ministerial duty on the part of a public official, when arbitrarily refused, may be enforced by mandamus and, under some conditions, the issuance of a building permit, under our statutes applicable, may come within the principle, but not for the performance of an unlawful act or one in furtherance of an unlawful purpose.</p> <p>2. Same — Gasoline—Oils—Governmental Powers.</p> <p>Police regulations as to the erection of structures for the only purpose of carrying on the business of selling and distributing kerosene oil and gasoline and other petroleum products is within the governmental powers ordinarily possessed by cities and towns.</p> <p>S. Same — Building Inspectors — Ordinances—Defenses—When Available.</p> <p>A permit was requested of a city to erect structures therein to carry on the business of distributing and selling kerosene oil,' gasoline and other petroleum products, and pending investigation by the proper city authorities, a proceeding for mandcmws to compel the issuance of the permit was brought against the building inspector, which was tried in the Superior Court, the judgment appealed from and remanded by the Supreme Court for further findings of fact as to the existence of certain ordinances relative to the inquiry, whereupon two ordinances passed by the proper city authorities forbidding, among other things, buildings of this character, “nearer than one thousand feet from any dwelling,” etc., which forbid the erection of the structures at the proposed location, having been put in evidence and included in the findings of fact. Eeld, the ordinance was a valid one and thereunder the building of said structures at the place being unlawful-; the mandamus must be denied on the second trial; and Held further, this defense was available to the city when brought to the attention of the Court, though the ordinances had been passed since the institution of -the suit.</p>

Appeal by plaintiff from Daniels, J., at tbe Spring Term, 1920, at chambers, under a case agreed, from Onslow. This is an action to recover the purchase price of a tract of land, the defendant having refused to accept the deed tendered by the plaintiff, and to pay the purchase money, according to his agreement, on the ground that the title of the plaintiff is not an absolute fee-simple estate.

Appeal by defendant from Guión, J., at November Term, 1919, of EitANKLIN. Tbis was an action for damages for cutting timber under contract size, and negligent burning of lands of plaintiffs, submitted to R. B. White, referee. No exceptions were taken to his findings of fact or conclusions of law with the single exception of his findings and conclusions as to the breach of the agreement to arbitrate by plaintiffs, and consequent damage to the defendant.

<p>Civil actioN, tried before Guión, J., and a jury, at August Term, 1919, of FbaNKLIN.</p> <p>Plaintiff brought an action against defendant to recover $1,000, the balance of a salary of $2,000 alleged to be due him as drummer for the defendant, who had a tobacco warehouse in Louisburg. Defendant, J. A. Turner, sued plaintiff, in another action, to recover $3,114.77, which they allege he owed them on his “pin hook” account, that is, not on any business done for them, but on his own account, during the years 1915 and 1916 by purchasing leaf tobacco for himself and selling it in the defendant’s warehouse, the latter advancing money to the amount of $24,158.49 to aid him in these personal transactions. Plaintiff paid on this amount in cash $20,043.72, which, together with the one thousand dollars of the salary due the plaintiff, left a balance of $3,114.77, which this suit was brought to recover.</p> <p>The two actions were consolidated and tried together. The balance of salary being treated as plaintiff’s claim, and the balance due of the “pin hook” account as defendant’s counterclaim, plaintiff denying the latter, and averring that he owed nothing upon it, as it was not his account, but that of the defendant. There was evidence on the question, whether what is called the “pin hook” account was the personal account of the plaintiff, or the account of the defendant, based on transactions exclusively theirs. This question was submitted to the jury, and the following verdict was returned:</p> <p>“Is the plaintiff indebted to J. A. Turner upon the counterclaim pleaded in this action; if so, in what amount? Answer: ‘$1,000..’ ”</p> <p>The court charged the jury as follows: “Defendants, while admitting this unpaid account, contend that plaintiff is indebted to Turner and the warehouse company in the sum of $3,840.67, as limited by his complaint, over and above the sum so due him on salary account, and contends that this issue should be answered in his favor for tobacco bought on personal account of J. N. Harris. Therefore, you are relieved of considering the question of amount due plaintiff Harris. The question- you are to consider is, Does plaintiff Harris owe defendant warehouse company this money advanced on personal account of Harris in payment of tobacco purchased by him for his personal use and benefit ? If defendants have satisfied you by the greater weight of the evidence that the tobacco was fought by Harris on his own account, inquire and say how much was paid out on such purchases by the company; and answer the issue in such amount as you may find was paid. If defendants have failed to so satisfy you by the greater weight of the evidence, or, on the other hand, if you shall find that the tobacco was bought by Harris for Turner and the warehouse company, and accepted by the company and paid for by it under such purchases, then answer the issue ‘Nothing.’ ”</p> <p>There was no prayer for instructions. Judgment on the verdict. Defendants appealed, and assigned this single error: “The defendants except to the refusal of the court to grant their motion to set aside the verdict upon the ground that the same is inconsistent with any or all of the evidence, for that if the defendants are entitled to recover anything upon their counterclaim, they are entitled to recover the full amount thereof, and in no view of the evidence could the jury have found consistently with any or all of the evidence that the defendants were entitled to recover the sum of $1,000 and no more, the plaintiff having not denied specifically the purchase by him of any particular lot of tobacco, but contending that all of the tobacco was bought for the warehouse, and none for his own account and risk.”</p>

Appeal by Lucy Little from Guión, J., at May Term, 1919, of FbANKLIN. Perry Wiggins devised in, the sécond clause of his will to his daughter, Lucy Little, a certain tract of land, duly described, containing 50 acres.

<p>Cities — Counterclaims—Second Action — Different Counties — Cause Pending — Pleas in Bar — Removal of Cause — Transfer of Causes — Different Causes — Torts—Contracts—Principal and Surety — Bills and Notes.</p> <p>The surety on a note brought action against the payee thereof for his discharge from liability upon allegation of an extension of time, for a consideration, given by defendant to the makers, without his consent, payment, in full, by the maker, etc.; and, thereafter, the payee brought suit, in another county to recover upon a written contract whereby the surety agreed to pay the note, if the principal' maker did not do so after judgment obtained thereon against him. Held, it was optional with the payee to set up the written agreement with the surety, as a counterclaim, in the first action, or to withhold it and bring an independent action thereon, and the pendency of the first action was not in bar of a recovery in the second, or justify the granting of a motion either to dismiss it or transfer it to the venue of the first action. Alim v. Salley, at this term, where both.actions were founded upon the same tort, cited and distinguished.</p>

<p>1. Corporations — Public Service — Competitors.</p> <p>Ordinarily a public service corporation cannot be required to supply its competitor, a public service corporation, with the material necessary to enable the latter to discharge its duty to the public.</p> <p>2. Same — Monopolies—Electricity—Hydroelectric Power — Charter Rights —Election—Courts.</p> <p>Where the manufacturer of hydro-electric power having a monopoly of the water power over a considerable area in a populous portion of this state, has elected to supply, and has supplied an electric current, under one of its charter powers, to other public service corporations, for distribution or resale to the private users within a limited territory wherein the manufacturer does not, itself, distribute or resell, the corporations thus purchasing the current are not competitors of the manufacturer, but are a part of the general public, and the manufacturer having elected to supply other public service corporations for the purpose of resale, may be forced to do so in our courts without discrimination for like service.</p> <p>3. Same — Consumers—Rates—Corporation Commission.</p> <p>The users of electricity in a city or town have a direct and vital interest in the wrongful refusal of a hydro-electric public service corporation from whom they may alone receive their supply, and where the retail corporation is claimed to be charging excessive rates, the matter is within the jurisdiction of the North Carolina Corporation Commission, when brought before it.</p> <p>4. Same — Final Judgment.</p> <p>Should it be established by final judgment of court that a public service corporation having a monopoly of manufacturing hydro-electric power had wrongfully refused to supply its electrical current to distributing or resale public service corporations, semble the Corporation Commission would have the authority to fix the rate of charges, under the requirements of the Court that the manufacturing company must furnish it.</p> <p>Walker and Allen, JJ., dissenting.</p>

Civil actiok, tried before Connor, J., and a jury, at July Term, 1919, of Chatham. This action was brought to recover the possession of land. The plaintiff, in its complaint, alleged title in itself to a large tract of land, which the plaintiff estimated to contain something like 10,000 acres.

Appeal by defendant from Daniels, Jat February Term, 1920, of Wake. This is an action on two notes, one for $1,500, and tbe other for $12,000, dated 8 April, 1919, due ninety days after date with interest after maturity. Tbe defendant admitted tbe execution of tbe notes, and alleged tbat tbey were without consideration.

<p>1. Nonsuit — Pleadings—Evidence—Bills, and Notes — Collateral—Equity Subrogation — Mortgages.</p> <p>The plaintiff: executed his nóte secured by mortgage, to a corporation in which the defendant was an officer, which was placed as collateral by the payee corporation to a' note, endorsed by the defendant, given by the payee corporation to another, and, thereafter, the payee corporation obtained a renewal note from the plaintiff npon agreement that the first would be cancelled. The maker corporation made several payments on its notes, among other things, with the proceeds of the sale of lands under plaintiff’s mortgage, and the purchaser at the sale reconveyed the lands to the plaintiff, and in this suit the plaintiff seeks to enjoin the foreclosure of the second mortgage by the defendant officer of the maker corporation, who had then paid off the balance due on the note, and who held the collateral, including plaintiff’s second note. There was evidence tending to show that defendant knew of the agreement between the plaintiff and his corporation, and plaintiff introduced a paragraph of the answer alleging the defendant was a transferee of the plaintiff’s note “for value and without notice.” Held, the case should have been submitted to the jury, there being evidence, notwithstanding the answer, that defendant was a purchaser with notice or knowledge; and, Held, further, that the defendant, under the equitable doctrine of subrogation, could have no further right than his corporation, as a holder of the plaintiff’s note given in renewal.</p> <p>2. Bills and Notes — Collaterals—Indorser—Purchase—Benefits—Estoppel.</p> <p>Where a second note and mortgage has been given in renewal of the first, under agreement that the latter should be cancelled, which was not done, and the mortgaged premises has been sold under the first, and the proceeds applied to a note which the payee had given to another, an endorser on the payee’s note; who has paid off the balance and holds the collateral, may not retain the benefits he has received under the mortgage sale, and repudiate the obligations of the transaction as to the renewal note, of which he had knowledge at the time.</p> <p>3. Equity — Subrogation—Superior Equities — Regal Rights.</p> <p>A party may not invoke the equitable doctrine of subrogation when its application would work injustice to the rights of those having superior equities, or would operate to defeat a legal right.</p>

Appeal by plaintiff from Guión, J., at November Term, 1919, of Wake. Tbis case, as stated in tbe record, is as follows, it being necessary to set out tbe evidence, as there was a directed verdict. Tbe plaintiff brought tbis suit to recover tbe penalty of $200 for tbe unlawful issuing of a marriage license, resulting in a marriage between plaintiff’s 13-year-old daughter and one Louis Zapantas, a Greek.

Appeal by defendants from Allen, J., at October Term, 1919, of New HANovee, from a judgment upon tbe pleadings by Allen, J., against tbe Seaboard Air Line Railway and Walker D. Hines, Director… Held: as a matter of law, that tbe defendant, Seaboard Air Line Eailway Company and Walker D. Hines, Director 'General, are not entitled to recover tbe said sum of $236.36 due for advance charges from Htiea, N. Y., to Allenton, Pa., as marked on tbe way bill.

INJUNCTION, returnable before Stacy, J., at Spring Term, 1920, of New Hanover. An injunction was issued in this case restraining the defendant from collecting taxes assessed and levied upon certain shares of stock issued by the Atlantic Coast Line Railroad Company of Virginia, and belonging to the plaintiff and his associates. The injunction was returnable before Stacy, J., in the county of New Hanover, on 29 July, 1919.

Civil action, tried before Guión, J., at the November Civil Term, 1919, of Wake. The court rendered judgment dismissing the action upon the pleadings. Plaintiff appealed. The following is a copy of the complaint: “The plaintiff, complaining of the defendant, alleges: “1. That the plaintiff is a duly incorporated municipal corporation of the State of North Carolina. “2.

Civil actioN, tried before Allen, J., and a jury, at September Term, 1919, of New HaNOveb. This suit was brought originally to recover damages for the conversion of certain collateral securities placed with the defendant for collection and alleged to have been converted by him, but it was agreed that it should be tried as one for the recovery of the sum of $145.47.

Appeal by defendant from .Calvert, J., at tbe October Term, 1919, of Cumberland. This is an action to recover damages for injury to an automobile. It was admitted tbat tbe plaintiff was tbe owner of tbe automobile, and tbat be bad left it at tbe garage of tbe defendant to be taken care of for bire.

■ Appeal by plaintiff from Allen, J., at tbe September Term, 1920, of New HaNovee. Tbis is an appeal from a judgment sustaining a demurrer to tbe complaint and dismissing tbe action. Tbe plaintiffs are parents of Mildred Groom, who, as alleged in the complaint, “died suddenly on an operating table,” while undergoing an operation by tbe defendant, a physician and surgeon.

<p>Civil action, tried before Calvert, and a jury, at October Term, 1919, of CUMBERLAND.</p> <p>TLe action is to recover a tract of land claimed by plaintiff on allegation tbat defendant is in tbe wrongful possession of a portion of said-land.</p> <p>Defendant alleged tbat be owned and was in possession of twenty-two and six-tenths acres of land in said county, setting forth boundaries, and denied tbat bis occupation and possession of said lands is wrongful.</p> <p>On tbe bearing, plaintiff introduced a connected line of deed, tbe first bearing date in 1895, for 185 acres of land in said county describing same by metes and bounds, and tbe last bearing date in October, 1918, purporting to convey said tract of land to plaintiffs. Plaintiff’s evidence, in connection witb tbe admissions in tbe pleadings, further tended to show tbat defendant is in possession of twenty-two and sixrtenths acres of land, witb definite boundaries, tbe land claimed by him in bis answer, and the same lying and being witb tbe larger boundary set forth in plaintiff’s deeds.</p> <p>Plaintiff having rested, defendant demurred to tbe evidence and moved for judgment of nonsuit, under tbe Hinsdale Act, Eev., 539. Tbe court sustained tbe demurrer, and entered judgment tbat plaintiffs are not tbe owners of tbe land described in defendant’s answer, but tbat defendant is tbe owner of said land and entitled to retain possession thereof. Plaintiff excepted and appealed.</p>

Appeal by defendant from Stacy, J., at September Term, 1919, of DURHAM. Tbe plaintiff’s wife bad been a member of tbe defendant, a fraternal organization, for more than 8 years, paying ber dues for said period. Upon, ber death tbe plaintiff brought this action for $300 benefits under ber contract with said organization.

Civtl actioh, tried before Gdivert, Jat January Term, 1920, of ALAMANCE. Plaintiff, on or about 29 June, 1915, issuéd and delivered to tbe defendant, Piedmont Railway and Electric Company, a public liability insurance policy, set out in tbe record.

CONTROVERSY without action, tried by Lyon, J., at March Term, 1920, of Edgecombe. There was judgment for tbe plaintiff, and tbe defendant appealed.

Abpeal by plaintiff from Allen, J., at the January Term, 1920, of ROBESON. This action was instituted upon an agreed statement of facts, to determine the right of the defendant, town of Lumberton, to levy and collect, for municipal purposes, a tax upon the shares of stock of the plaintiff banks owned by the nonresidents of the town of Lumberton, but residents of the State of North Carolina.

<p>Principal and Agent — Landlord and Tenant — Lessor and Lessee — Trusts.</p> <p>Where the managing agent oí a corporation conducting its business in leased premises, obtains a renewal of the lease from the owners in his own name, the lessor and the corporation, both believing he was acting only as agent in procuring the lease, he will he held,„as a matter of law, trustee thereof for his principal.</p>

Appeal by plaintiff from McElroy, J., at August Term, 1919, of SURRY. This was a motion, heard before McElroy, J., at October Term, 1919, of Suery, to set aside a judgment, rendered August Term, 1919, granting an absolute divorce to the plaintiff, upon the ground of surprise and irregularity. The motion was allowed, and plaintiff appealed.

<p>1. Evidence — Nonsuit—Trials.</p> <p>Upon a judgment of nonsuit upon the evidence the appellant is entitled to have it considered as true and construed most favorably for him, giving him the benefit of every inference that may reasonably he drawn therefrom.</p> <p>2. Same — Druggists—Negligence—Damages.</p> <p>Evidence that a druggist was ashed for, and guaranteed that he had given his customer, pure sweet oil, for an infant who had theretofore beneficially been given sweet oil to lieep it in a good, healthy condition, and that it was made violently sick, with vomiting and severe bowel trouble, upon taking the usual sized dose of the oil in question; that it recovered somewhat and was again made violently ill at the second dose, which continued until its death about twelve days afterwards; that the oil received from the druggist was rancid, and not sweet oil, and would probably produce the sickness causing the death of the infant, Held, sufficient for the determination of the jury as to whether the druggist negligently supplied the rancid oil, and that it caused the death of the infant, in an action against the druggist to recover damages for its wrongful death.</p>

Civil actioN, tried before Guión, J., and a jury, at November Term, 1919, of FuaNKLIN. Tbe action purports to be one to establish a right in plaintiff company to cut the timber on a certain tract of land in said county belonging to an infant devisee, Arthur Jordan Griffin, and instituted against defendant, J. W. Yalentine, as guardian of said minor, and the two other defendants who had purchased a portion of the land.

<p>1. Husband and Wife — Alienation of Wife’s Affection — Malice—Damages.</p> <p>In order for the husband to recover punitive damages for the alienation of his wife’s affection he must show directly or by implication that the act complained of was maliciously done, though not necessarily that it was done with ill will.</p> <p>2. Husband and Wife — Alienation of Wife’s Affection — Punitive Damages.</p> <p>Punitive damages may be awarded in the discretion of the jury, in the husband’s action for alienating the affections of his wife, when the defendant’s act was by fraud, malice, recklessness or oppression or other willful and wanton aggravation on his part.</p> <p>3. Same — Criminal Conversation.</p> <p>The husband has personal and exclusive rights with regard to the person of his wife, and criminal conversation with her by another, notwithstanding her consent, constitutes an invasion of his rights.</p> <p>4. Same — Instruction—Evidence—Appeal and Error — Reversible Error.</p> <p>Where there is allegation and conflicting evidence that the defendant alienated the affections of the plaintiff’s wife and also had criminal conversation with her, it is error for the trial judge to charge the jury that they may award punitive damages, in their discretion, without instructing them upon the law relating to the principles upon which punitive damages may only be awarded.</p> <p>5. Husband and Wife — —Alienation of Wife’s Affection — Measure of Damages.</p> <p>Compensatory damages awarded to the husband for the alienation of his wife’s affection are for the loss of the society of his wife, and her affection and assistance, and for his humiliation and mental anguish.</p> <p>6. Husband and Wife — Alienation of Wife’s Affection — Evidence—Conversations — Correspondence—Collusion.</p> <p>Where in the husband’s action to recover damages for the alienation of the wife’s affection there is evidence that the plaintiff and his wife lived happily together for several years when defendant induced and enticed the wife to leave her husband and continue to live separate from him, and to the contrary, that defendant’s improper treatment of his wife had caused her to do so, it is competent, as a part of the res gestae, to show the feelings existing between the husband and wife prior to and after defendant’s alleged wrong, by conversations and correspondence between them, though not as substantive evidence of the defendant’s wrong, and the court should, by proper instructions, confine their consideration of this evidence within its proper bounds, to avoid affording opportunity for collusion.</p> <p>7. Issues — Compensatory Damages — Punitive Damages — Courts—Discretion.</p> <p>Where in an action for damages there is allegation and conflicting evidence sufficient to sustain a verdict of both compensatory and punitive-damages, the better practice is to separate these issues, though this matter is addressed to the discretion of the trial court.</p>

Civil actioN, tried before Allen, J., at January Term, 1920, of Hoke.

Appeal by defendants from Adams, J., at chambers, 17 February, 1920, from Mooee. This is a controversy submitted without action under Rev., 803.

Civil aotioN to sell land for improvement and reinvestment, under sec. 1590, Revisal, heard on demurrer to the complaint before Stacy, J., at November Term, 1919, of Duuham. There was judgment overruling the demurrer, and defendant excepted and appealed.

Appeal by defendant from McElroy, J., at tbe November Term, 1920, of Rooeingham. This is an action brought by Katie Norwood, widow of A. W. Nor-wood, against the Grand Lodge of Masons and R. S. Graves, to recover the balance alleged to be due on a policy of insurance for $300 held by her husband in the benefit department of the Masonic Order.

<p>PetitioN to sell land to make assets, heard on appeal from clerk, before Long, J., at March Term, 1920, of Foesyth.</p> <p>The questions presented and the pertinent facts are very clearly set forth in the case on appeal, as follows :</p> <p>“This is a special proceedings originating before the clerk of the Superior Court of Forsyth County, upon the petition of Mary C. Perry, administratrix of W. S. Perry, for the sale of land to make assets to pay debts. This petition deals with several distin'ct tracts of land, but there is involved in this appeal only tracts 5 and 6 as described in said petition, which tracts were later subdivided into lots and thereafter were and are referred to as lots 16 to 22, inclusive. At the sale J. E. Yan Horn was the purchaser of the aforesaid lots, and upon report of said sale to the clerk of the court and upon the application in writing of the said J. E. Yan Horn, said sale was confirmed by the clerk of the court on 21 January, 1920. To which order of confirmation the petitioner excepted and appealed to the judge of the Superior Court, in which appeal the guardian of the infant defendant subsequently joined, which appeal was heard before B. F. Long, judge, at Winston-Salem, N. 0., on 8 March, 1920, at which time he ordered a resale of the property purchased by the said J. E. Yan Horn, and in all other respects affirmed the said order of the clerk.</p> <p>“Said lots were sold on 23 August, 1919, at which time they brought the sum of $1,516. This sale was reported by the commissioner to the court on 3 September, 1919, with the statement that the price bid was a fair and reasonable one, and the confirmation of the sale was recommended. By a supplemental report of date 15 September, 1919, the commissioner reported that an increased bid had been offered on lots 16, 17, 18, 19, 20, 21, and 22; and a request was made for the resale of those lots as aforesaid. In accordance with the request of the commissioner as aforesaid, a resale of said property was had on 11 October, 1919, when and where J. E. Yan Horn was purchaser of the aforesaid lots at the price of $1,872, and this sale was reported to the court on 22 October, 1919, by the commissioner, with the statement that the price bid was fair and reasonable, and she recommended confirmation of the sale. By a supplemental report of date 13 November, 1919, the commissioner called to the attention of the court that there has been offered an increased bid on said lots, as a result of which a resale was ordered, which was had on 29 November, 1919, when and where the aforesaid lots were bid off again by the said J. E. Yan Horn at $1,970, and on 4 December, 1919, a report of this sale was made by the commissioner recommending confirmation.</p> <p>“On 27 December, 1919, the said J. E. Yan Horn filed with the clerk of the court a written request that said sale be confirmed, the twenty days required having elapsed.</p> <p>“On 1 January, 1920, the commissioner filed a supplemental report, setting forth that she had received an increased bid of $30 on said lots, and asked for a resale.</p> <p>“On 8 January, 1920,. the commissioner filed a second supplemental report, reciting that she had received an increased bid of $197, and asked for a resale.</p> <p>“With the record in this condition, the matter came on before the clerk of the Superior Court, and on 21 January, 1920, he signed an order in which he found facts and overruled the request of the commissioner for a resale and affirmed the sale. The facts found in said order are as follows:</p> <p>“1. That the indebtedness of the estate amounts to about fifteen thousand ($15,000) dollars, and upon which interest is accruing at the rate of about $75 per month.</p> <p>“2. That there have been two other sales of this property, the present sale being the third one.</p> <p>“3. That on 27 December, 1919, J. E. Nan Horn, a purchaser at said land sale of certain parts of the property, filed with the court written requests for confirmation of sale.</p> <p>“4. That on 1 January, 1920, the commissioner filed a report stating that an increased bid had been offered upon certain parcels of land sold, and on 8 January, 1920, filed a report setting forth that a 10 per cent bid had been offered on the property bid off by J. E. Yan Horn, but it was not stated in either of said reports that any security had been given or deposit made by the persons filing said increased bid for the performance of said bid.</p> <p>“5. Considering the costs of a resale, and the monthly interest accruing upon the indebtedness, and the other facts and circumstances herein set out, I find as a fact that the increased bids are inadequate and ought not to cause a resale, and for these reasons, and also because the purchasers acquired fights in the premises, I make this order confirming each and every of said sales.</p> <p>“To this order of the clerk confirming the sale, the petitioner excepted and gave notice of appeal to the judge of the Superior Court in which appeal the guardian of the infant defendant subsequently joined. This appeal came on to be heard before Long, judge, at Winston-Salem, N. C., on 8 March, 1920, at which time the said judge was present to hear only motions, the court in all other respects having been adjourned on account of influenza, and upon the hearing thereof and upon the consideration of affidavits of J. C. Brock, the petitioner, G. C. Davis, S. E. Wooten, and J. A. Lancaster, which will be in the record, and the securing of the 20 per cent increased bid, the order of the clerk was reversed and a resale of the aforesaid lots ordered. To which order of Judge Long the said J. E. Yan Horn, in open court, excepted and appealed.”</p>

Appeal by both defendants from Bryson, Jat October Term, 1919, of GUILFORD. This was an action for personal injuries against the North Carolina Public Service Company and E. G. Lassiter & Company as joint tort feasors. About noon on 13 March, 1917, tbe plaintiff was walking west on Spring Garden Street about three-quarters of a mile outside of the city limits of Greensboro. The road was straight and the view was unobstructed eastward behind the plaintiff, for 600 or 700 feet.

Civil actioN, tried before Bryson, J., at November Term, 1919, of DAVIDSON. Tbe action is brought for a breach of the following contract entered into between the plaintiff and the defendant on 26 March, 1917: “Upon motion of M. H. Stone, seconded by T. A. Finch, it is ordained by the city council of the city of Thomasville, in regular session, 26 March, 1919, that the propositions of Mr. J. ~W. Lambeth submitted at this meeting be adopted and accepted.

Appeal by botb parties from Connor, Jat tbe February Term, 1920, of CRAVEN. Tbis is an action to recover land. Tbe plaintiffs filed tbeir complaint alleging tbe ownership of tbe land and tbe defendants filed answer denying tbe material allegations of tbe complaint, and pleading as a counterclaim tbe following: “24.

<p>Civil actiou, tried before McElroy, J., and a jury, at November Term, 1919, of RocKINgham.</p> <p>This suit was brought to recover damages upon the allegation that the defendant had negligently caused the death of the plaintiff’s intestate by a defect in one of its streets, known as Water Street, at its junction with the bridge over the Dan River, the deceased having been thrown violently from the buggy in which she was riding, resulting in injuries to her person from which she died on 22 August, 1914. Defendant denied that it had been guilty of negligence, pleaded contributory negligence, and specially set up as a defense that the death of plaintiff’s intestate occurred on 22 August, 1914, and tbis action was commenced more than one year from the- said death. Plaintiff replied, admitting that tbis action was commenced on 19 October, 1916, more tban one year after bis intestate’s death, but alleging that an action was previously commenced by summons which was issued on 16 August, 1915, and served on 20 August, 1915, it being returnable to November term of the Superior Court of Rockingham County. That the said action was, on motion of the defendant therein, dismissed by the court on the last day of November Term, 1919 (4 December, 1919)., for failure to file a complaint. That, at the next term of the court the plaintiff moved to set aside the judgment of dismissal upon affidavit • alleging that the former action “was based upon a claim for damages for the wrongful death of Bessie Yirginia Gauldin, caused by a defect in the street of said town of Madison.” The motion was denied by Judge Webb, then presiding, and no appeal was taken. Summons was issued in the present action, 19 October, 1916, and served 1 November, 1916.</p> <p>At the trial of the present action the court below excluded the said affidavit and the judgment or order of Judge Webb, and all other evidence offered by plaintiff for the purpose of identifying the present with the former action, in order to repel the effect of the statute, that a suit to recover damages for death by wrongful act shall be brought within one year after the death. Upon the exclusion of all available and existing evidence offered by plaintiff to carry the burden of the issue as to the bar of the statute he submitted to a nonsuit and appealed.</p>

Appeal by defendant from Bryson, J., at the November Term, 1919, of Guilford.

Civil actioN, tried before Webb, J., on a case agreed, at February Term, 1920, of BuNOOmbe. Tbis is a controversy in regard to tbe title of land arising out of the sale of the same by the plaintiff to the defendant.

Civil action, tried before Calvert, J., and a jury, at January Term, 1920, of Alamance. The action is to recover the amount purporting to be due on four negotiable promissory notes executed by defendants to the Twin City Monument Company aggregating $1,275 principal money, with interest, and endorsed by said company to plaintiff for value before maturity, through William P. Sharp, its then president.

Civil actioN to recover damages for failure on part of defendant to carry out the provisions of a written lease, tried before McElroy, J., and a jury, at November Term, 1919, of BocKINGham.

MotioN to set aside judgment by default final, beard before Finley, at March Term, 1920, of Scotland. Tbe general course of proceedings leading up to tbe principal judgment are embodied in bis Honor’s present judgment denying tbe motion as follows: ■ “1.

Civil actioN, tried before Shdw, Jand a jury, at October Term, 1919, of MeoKlenbueg. Tbe intestate of tbe plaintiff was employed by tbe Southern Power Company, a part of whose business is tbe manufacture and transmission of electricity, and the decedent’s occupation was the supervision of construction work, building tower and pole lines, and maintenance of the same.

Appeal by plaintiff from Shaw, J., at November Term, 1919, of MeceleNbueg. Tbis is an action in forma pauperis, by an aged colored woman, widow of John Connor, deceased, wbo was for many years a member of a colored organization, commonly styled tbe Odd Fellows.' Tbe case was referred to W. M. Smith, referee, and on exceptions to bis report it was reviewed by tbe judge, wbo modified tbe facts found, and entered judgment tbereon against tbe plaintiff, wbo appealed.

<p>Civil action, tried before Connor, J., at November Term, 1919, of WayNE, upon these issues:</p> <p>“1. Did plaintiff sell the laud described in the complaint for $26,000, as alleged? Answer: ‘Yes.’</p> <p>“2. 'What sum, if any, are the plaintiffs entitled to recover of the defendant? Answer: ‘6,000, with interest from 30 June, 1917.’ ”</p> <p>From the judgment rendered defendant appealed.</p>

<p>Civil actioN, tried before Kerr, J., and a jury, at January Term, 1920, of DupliN.</p> <p>The action is based upon the allegations that during the years 1913 to the year 1916, both inclusive, and continuously during said time, the defendant,' Hilton Lumber Company, for its own private use, benefit, and advancement, unlawfully and wrongfully, and from day to day, entered upon and trespassed upon plaintiff’s tract of land described in the complaint, and from day to day and continuously during said years often greatly damaged and injured the plaintiff’s said tract of land.</p> <p>The Hilton Eailroad and Logging Company was chartered by ch. 42, Private Laws of 1901, and in the year 1906 the Hilton Eailroad and Logging Company filed its petition against J. E. Bradshaw, to condemn a strip of land 100 feet wide and 1,280 feet long. The Hilton Railroad and Logging Company alleged that it was necessary that it should acquire a right of way for the whole distance across plaintiff’s lands, because the same was necessary in order to conduct and carry on the business of a public carrier, and that the Hilton Railroad and Logging Company intended and proposed in good faith to construct and operate forthwith, or as soon as practicable, a railroad for transporting freight and passengers from a point on the Atlantic Coast Line Railroad between Wallace and Teachey, near the 37th mile post, in a general direction toward and to a point at or near the village of Hallsville, Duplin County, and at present to build and construct six miles of said road to a point on the run of Island Creek, about one mile, more or less, east of the Wilmington and Kenansville public road, for the purpose aforesaid.</p> <p>R. A. Parsley,, secretary and treasurer of the Hilton Lumber Company, among other witnesses, testified: “We got out the charter for the Hilton Railroad and Logging Company in 1901. At that time the Hilton Lumber Company was already in existence, but it had not come to Dup-lin County, but it came in 1905 or 1906. There are three or four rights of way in that distance of nine or ten miles, which were condemned by the Hilton Railroad and Logging Company. All of the other rights of way were taken in the name of W. L. Parsley. The number of rights of way which were condemned for the distance of nine or ten miles by the Hilton Railroad and Logging Company is four. The strips condemned on each of the four are not connected. The Bradshaw, Harrell, and Batts are disconnected. After the condemnation of these four places the Hilton Railroad and Logging Company was asked to operate trains over the road and refused. A petition was filed in Raleigh before the Corporation Commission to require us to operate trains for public service. 'We declined to do so. We are not operating at all for the Hilton Railroad and Logging Company-, the road is owned by the Hilton Lumber Company; the right of way is the Hilton Railroad and Logging Company’s. For the purpose of getting a road on it and serving it the Hilton Lumber Company operates its trains over these rights of way, and there is no charge for hauling over it. The Hilton Lumber Company is operating trains over this line right now; it has continued to do so since it began in 1905, and it hauls logs for Hilton Lumber Company exclusively, and for no other person or corporation. The distances between the condemned tracts are as follows: Between Boney and Harrell is 817 feet; after leaving the Harrell land we cross the Boney land, Cicero Teachey, DeWitt Marshall, A. B. Farrell, and then come to the Batts’ tract, and that distance is 7,157 feet, that is, from the Harrell northern line to the Batts southern line. The distance between the Boney tract and the plaintiff’s tract is 817 feet.”</p> <p>Tbe condemnation proceeding was beld in 1908, and the Hilton Railroad and Logging Company has performed no other act in Duplin County, or elsewhere since that time, but the Hilton Lumber Company has used that right of way continuously for its private use since said date up to the present time, and now continues to use the same.</p> <p>The contract, if any, between the Hilton Railroad and Logging .Company and the Hilton Lumber Company was verbal.</p> <p>The Hilton Railroad and Logging Company has never listed any property in Duplin County for taxation, or with the North Carolina Corporation Commission.</p> <p>The following verdict was returned by the jury:</p> <p>“1. Is the plaintiff, J. F. Bradshaw, the owner and in the possession of the lands described in the complaint? Answer: ‘Yes.’</p> <p>“2. Did the defendant, Hilton Lumber Company, unlawfully and wrongfully enter and trespass upon the plaintiff’s said tract of land, as alleged in the complaint? Answer: ‘Yes.’</p> <p>“3. Does the defendant, Hilton Lumber Company, continue to unlawfully and wrongfully enter and trespass upon said plaintiff’s tract of land, as alleged in the complaint? Answer: ‘Yes.’</p> <p>“4. Is the plaintiff’s cause of action barred by the statute of limitation ? Answer: ‘No.’</p> <p>“(2) Was the said trespass complained of a continuing one under the statute, section 395? Answer: ‘No.’</p> <p>“5. What damages, if any, is the plaintiff entitled to recover? Answer : ‘$150.’</p> <p>Judgment was entered upon the verdict, which, among other things, granted a perpetual injunction against the unlawful acts of the defendant described in the pleadings and record. Defendant appealed.</p>

Appeal by defendants from Calvert, J., at September Term, 1919, of CUMBERLAND. Tbis is an action against tbe Atlantic Coast Line Railroad Company and Walker D. Hines, Director General, for tbe recovery of damages for personal injuries sustained by tbe plaintiff 6 November, 1918, on bis return to Fayetteville from Camp Bragg,where be was a carpenter employed by Government contractors.

Civil actioN, tried befqre Lyons, Jat December Term, 1918, of RobesoN, upon these issues: “1. Did the plaintiff comply with the terms of the contract between him and the defendant? Answer: ‘Yes.’ “2. Did the defendant refuse to perform his contract with the plaintiff ? Answer: ‘Yes.’ ” From the judgment rendered defendant appealed.

Appeal by defendants from Lane, J., at tbe August Term, 1919, of UNION. This is an action on a note for $540.75, executed by L. S. Small as principal, and tbe defendant, S. N. Stack, as surety. Tbe execution of tbe note was admitted, but tbe defendant alleged tbat tbe delivery of tbe note was conditional. Small, tbe principal in tbe note, was indebted to S. L. McManus in tbe sum of about $1,100, secured by a chattel mortgage.

<p>Civil action", tried before Harding, J., at April Term, 1919, of Cababeus, upon exceptions to referee’s report.</p> <p>In January, 1909, the Franklin Improvement Company owned the Franklin Hotel, with the lot on which it was built, containing 3% acres, with other buildings thereon, and about 75 acres of adjoining land, situated in or near the town of Brevard, Transylvania County. On 7 January, 1909, the defendants purchased said real property, and the furniture in the hotel, at the price of $35,000, through the defendant, T. W. Whit-mire, acting as their agent, he having been instructed to negotiate for a purchase of the property at the lowest price, which was found to be $35,000. The defendants agreed to take the property at that price, “after having carefully inspected the same, and after being advised by reliable persons that it was worth more than twice that much,” or as much as $77,000, and at the time they bought the property they believed that their grantor was selling it at a great sacrifice on account of its then financial condition, and they further believed, after making proper inquiry, that it was worth more than twice the amount they were to give for it, and as much as $77,000. The Franklin Improvement Company conveyed the property to the defendants on the day aforesaid for the price agreed upon, consisting of $12,000 in cash, and the assumption by the defendants of an outstanding mortgage on the property to secure a debt of the improvement company amounting to $17,500, making $30,-000, the remaining $5,000 having been paid by an arrangement between T. W. Whitmire and the improvement company. “That T. W. Whit-mire failed to pay his part of the purchase money, or $5,000 (except as above indicated), but the other defendants, C. H. Robinson, E. J. Robinson, G. A. Smith, and A. J. Hilt did not know this at the time, and in good faith believed that defendants were paying the full amount of $35,000 for the property, as stipulated, instead of $30,000, as they later ascertained. A corporation was then formed by the defendants, who were its officers and directors and stockholders, under the name of “The Franklin Park Improvement Company,” and the defendants conveyed all of the property to it at the price of $77,000, receiving in payment of the purchase money $35,000 of its stock at its par value, $24,500 of its notes, and the company assuming the payment of the debt of $17,500 secured by the mortgage on all its property. The latter debt was after-wards taken up, the defendants advancing for the company the sum of $6,000 contributed by them severally, and in different amounts, for which the company afterwards gave its notes to them, and the balance of $8,000 was borrowed by the company, and a deed of trust executed to Mr. Julius C. Martin, with power of sale to secure the same on the hotel, and 14 acres of the land. The $6,000 was entered on the-books of the company as money advanced by the respective defendants to pay off the $17,500 debt secured by the mortgage on all of the property, on which certain payments had before been made, thereby reducing the amount of the same. The company paid the original purchase money notes from the sale of lots, and defendants reduced their notes for the $6,000 to judgment, to which were afterwards applied, in payment thereof, the proceeds of the sale of the hotel and the 14 acres of land, which were not required to pay the secured debt under the deed of trust to Mr. Martin. These transactions took place before the alleged claim of Gilmer & Moore, mentioned below, accrued, there being no creditors of the company at the time except the defendants, who were then solely interested in the same.</p> <p>The claim of Gilmer & Moore arose out of a contract, by which the company leased the hotel and its furniture on 29 March, 1912, to them, with an option to buy the same, which they alleged was breached by a sale of the property, on 4 or 12 November, 1912, by Mr. J. C. Martin, as trustee, and they contend that they became creditors of the company on that day. The defendants, on the contrary, contend that they did not become creditors until their claim was reduced to judgment in 1915. The lease and option contract were guaranteed by O. H. Robinson and G. A. Smith, as Moore and Gilmer alleged, and the judgment in favor of the latter was obtained in a suit against the company and the guarantors, the facts and results of which will appear by reference to the case of Gilmer & Moore v. Franklin Park Improvement Company, reported in 170 N. 0., at p. 452.</p> <p>The case was referred, it seems, by consent, and the referee made his report to the court in which he found, as a fact, among other things, that the defendants had knowingly and fraudulently overvalued the real estate conveyed to the company by them in payment of their stock subscription and bonds, and he held that they were liable to the company for said subscriptions as unpaid, and, therefore, to the plaintiffs as its receiver, for the -payment of the Gilmer & Moore judgment, and for the cost. When the case was heard by Judge Harding, he reversed the findings of the referee, and found that the property sold to the company by the defendants was not knowingly and fraudulently overvalued, but that $77,000 was believed to be a fair and reasonable price therefor, and after making other findings, not material to be here stated, he gave judgment for defendants, and plaintiff, after filing exceptions, appealed to this Court.</p>

<p>1. Rehearing — Second Rehearing — Appeal and Error.</p> <p>A party whose application for a rehearing of the ease has been denied may not successfully petition for a rehearing, though additional reasons are given in the denial of the former petition by the court in reaching the same conclusion.</p> <p>3. Same — Opposing Party.</p> <p>Where a petition to rehear a case in the Supreme Court has been allowed, the opposing party only may petition for a second rehearing thereof.</p> <p>3. Rehearing — Court’s Discretion — Rules of Court — Appeal and Error.</p> <p>Unlike an appeal, a petition to rehear is a matter in the discretion of the Supreme Court to be exercised under the rules prescribed by it. Rule 53.</p>

Appeal by plaintiff from Calvert, J., at tbe December Term, 1919, of ROBESON. Tbis is an action to recover damages for burning over tbe lands of tbe plaintiffs, one of tbe allegations of negligence being tbat tbe defendant permitted combustible matter to accumulate on its right of way, wbicb was ignited by sparks from tbe engine of tbe defendant, and that tbe fire was thence communicated to tbe lands of tbe plaintiff.

<p>Civil actioN, tried before Connor, J., at tbe November Term, 1919, of Lee.</p> <p>With, this action were consolidated certain cases against the same defendants in which the Moffitt Iron Works Company, Indian Refining Company, Maryland Rubber Company, Sanford Grocery Company, J. E. Hollingsworth, and American Sawmill Machinery Company are plaintiffs.</p> <p>The proceeding was brought in the Superior Court of Lee County, and was heard at different times by Judges Stacy and Connor. The cause was referred to a referee who heard the same and made his report, together with his findings of fact and law. Many exceptions are filed and passed upon by the Superior Court. From the findings and judgment of the Superior Court both parties appealed to the Supreme Court.</p>

Civil actioN, tried before Shaw, J., at December Term, 1919, of GastoN, upon the following issue: “What amount of damage, if any, is the plaintiff entitled to recover of the defendant? Answer: ‘$1,900.’” The court in its discretion reduced the amount to $1,000. Defendant appealed.

CONTROVERSY without action, beard.and determined before Lane, J., at March Term, 1920, of Mecelenburg.

<p>Civil actioN to remove a cloud on title, beard and determined on case agreed before Harding, J., at November Term, 1919, of Caldwell.</p> <p>From tbe facts presented, it appears tbat tbe land in controversy was owned by James Corpening, deceased, and tbat, in 1898, bis live children and beirs at law executed a power of attorney to C. A. Little as attorney in fact, authorizing said Little to sell and convey tbe property, tbat on 12 December, 1899, said C. A. Little sold and conveyed tbe property by deed sufficient in form to pass tbe fee-simple title to one W. D. Joblin, and tbe ownership and title so conveyed has been acquired, and is now held by plaintiff, and tbat plaintiff and those under whom be claims have been in continuous possession of tbe property, claiming to own tbe same, from tbe date of said deed to Joblin in December, 1899; tbat tbe power of attorney referred to was in all respects sufficient in form to authorize a conveyance of said property, and was duly executed by tbe children and beirs at law of James Corpening, deceased, save and except tbat one of said children, Bettie Suddertb, was at tbe time feme covert; ber privy examination was never taken as to the due execution of the instrument; that said Bettie Sudderth became discovert by the death of her husband, C. M. Sudderth, on 30 May, 1912, and she herself died in January, 1916, leaving defendants as her heirs at law, and who claim as such the ownership of her one-fifth interest in the property, except three-fiftieth of the same, the holders of which failed to make answer. On these facts the question at issue between the parties, as presented in the case agreed and in the argument, is whether the title to Bettie Sud-derth’s interest in the property had matured in plaintiff by more than seven years occupation under said deeds and power of attorney, claiming ownership, or whether an occupation of 20 years is required, occupation for this length of time not being shown.</p> <p>There was judgment for defendant, and plaintiff excepted and appealed.</p>

<p>Liens — Municipal Corporations — Cities and Towns — Sidewalks—Paving— Statutes — Limitation of Actions.</p> <p>The lien given a city or town on the lots of an owner along its streets for paving its sidewalk, rests only by statute, Rev., 395, subsec. 2, and not by common law, and is enforeible only against the lots, in rem, and not against the owner individually or ou.t of his other property, and to enforce the same action must be commenced within three years next after the completion of the work, or it will be barred by the statute of limitations.</p>

Civil action, tried before Long, J., and a jury, at September Term, 1919, of ALEXANDER. Plaintiff brought this action to recover damages for the breach of a contract for the sale of land. The defense was that the-description of the land was too uncertain and indefinite, and the contract is, therefore, void.

Civil actioN, tried, before Calvert, J., and a jury, at December Term; 1919, of RobesoN. Plaintiff shipped by the Southern Express Company a package of paint from Lumberton to Hendersonville, in this State, to his own order, and paid the freight charges thereon.

Civil actioN, tried before McElroy, J., at Fall Term, 1919, of Ashe. The defendant demurred to the complaint upon the'ground that it did not state a cause of action. The plaintiff administrator of Martha Hodges was her husband. She died during childbirth on 22 March, 1918.

<p>Appeal by defendant from McMroy, J., at tbe July Term, 1919, of Ashe.</p> <p>This is an action to recover damages for the publication of a libel of and concerning the plaintiff, contained in a letter written by the defendant to the married daughters of the plaintiff in the following words: “I hate to expose him as he is my brother and your father, but he is trying to expose me, and I will have a suit for him when he comes over, instead of bringing feed for bis cattle wben be was in Wilkes be went to a man’s stacks in tbe darkness of tbe nigbt and got bim a load of fodder, put it in bis wagon, and bauled it off. I am sorry be bad sucb little judgment as that; and Cora Hall is telling ugly tales on bim and says be tried to and made ber sit on bis lap and bugged ber, and wanted ber to bug bim. Wben be went back borne be bought ber a nice sweater and sent ber. We tbink be ought to have bought you girls a sweater apiece or .your ma. He was never that free-hearted with bis whole sisters, let alone other people. We tbink be ought to have bought bis little grandchildren sweaters and sucb like, and help you girls with what be bad to give Cora Hall, for she bad plenty of money and clothes, too. She said be cut sucb a shine over ber she got afraid of bim. Of course I reckon be told your ma about it. I hope you will not tbink bard of me for writing tbe truth, for I can prove what I have written.”</p> <p>Cora was a half sister of tbe plaintiff, and was dead at tbe time of tbe trial,</p> <p>Tbe plaintiff in bis testimony gave tbe following account of bis getting tbe fodder:</p> <p>“I went to Wilkesboro, and was gone three nights, and on my way back I stopped at my brother Felix Hall’s store a little after nigbt, don’t know exactly tbe time, and there was snow on tbe ground; I got out of my wagon, rapped on tbe door and hallowed, but there was no answer. I wanted to buy some feed, and I went, around to Felix Hall’s fodder stack, took out two bunches, put it in my wagon, and went to Billings and stayed all nigbt. I did not see F. C. Hall till 27 December, about two months after I got tbe fodder and stayed all nigbt with bim. I told bim I took a little of bis fodder to feed my cattle.”</p> <p>He also denied taking any liberty with bis half sister, Cora.</p> <p>Tbe defendant admitted tbe publication of tbe letter, but denied that be made or intended to make a charge of larceny or of attempted incest, and be alleged that tbe words written by bim were true.</p> <p>There was a motion for judgment of nonsuit, which was overruled, and defendant excepted.</p> <p>Tbe other exceptions will be referred to in tbe opinion.</p> <p>Tbe jury returned tbe following verdict:</p> <p>“1. Did tbe defendant write and publish of and concerning tbe plaintiff tbe language or words in substance as set out in paragraph two of tbe complaint? Answer: ‘Yes.’</p> <p>“2. Did be mean thereby to charge tbe plaintiff with larceny? Answer: ‘Yes.’</p> <p>“3. Did be mean thereby to charge tbe plaintiff with an attempt to commit tbe crime of incest? Answer: ‘Yes.’</p> <p>“4. Were said words written with, malice towards tbe plaintiff? Answer: ‘Yes.’</p> <p>“5. Were tbe charges made in tbe written words contained in paragraph two of tbe complaint true? Answer: ‘No.’</p> <p>“6. What damage is tbe plaintiff entitled to recover of tbe defendant ? Answer: ‘$1,000.’ ”</p> <p>Judgment for tbe plaintiff, and defendant appealed.</p>

Oivtl actioN to dissolve a corporation, beard on motion for receiver, etc., before McElroy, J., on 4 October, 1919, from Stoices. On'tbe bearing tbe court finds, from tbe admissions in tbe pleadings and affidavits, that tbe Walnut Cove Mercantile Company is no longer exercising its powers under tbe charter, and bas not done so since 1912’, then gave judgment that plaintiff is entitled to tbe relief demanded in tbe complaint.

Civil actiou, beard on motion for restraining order, before McElroy, J., in Stoues, September, 1919. No complaint was filed in tbe cause, but, on facts presented by affidavits of tbe parties, there was judgment restraining trustee from making sale presently and until tbe bearing. Defendants excepted, and appealed.

Appeal by plaintiff from Harding, J., at the December Term, 1919, of Bueke.

Appeal by defendant from Harding, J., at tbe October Term, 1919, of Bukke. This is an action to recover certain lumber cut by tbe plaintiff on tbe land of tbe defendant, under contract, and wbicb defendant refused to allow tbe plaintiff to remove. Tbe jury returned tbe following verdict: “1. Is tbe plaintiff tbe owner and entitled to tbe possession of tbe lumber described in tbe complaint, as alleged? Answer: ‘Yes.’ “2.

Appeal by plaintiff from Webb, J., at chambers, September Term, 1919, from Mitchell. In February, 1914, the plantiff brought two suits against the defendant, one for divorce a mesna et ihoro and alimony, and the other for the purpose of declaring the defendant a trustee, holding the title to certain land for plaintiff. Both actions were brought at the same time, and the return term was April Term, 1914, of Mitchell.

<p>Appeal by defendant from Webb, J., at chambers in Asheville, 10 April, 1920.</p> <p>This was a controversy submitted without action, to determine the validity of $30,000 of school bonds issued by the town of Hendersonville, under an ordinance authorized by eh. 138, Laws 1917, as amended by ch. 178, Laws 1919, and known as the “Municipal Finance Act.” The defendants, who purchased said bonds on 20 October, 1919, now decline to pay for them upon the ground that they are not valid. From a judgment in favor of the plaintiff the defendants appealed.</p>

Civil aotioN, tried before Finley, J., and a jury, at December Term, 1919, of BuNcombe. Plaintiff sued for a breach of a contract by which the defendant agreed to employ him in his service, as traffic manager, from 18 March, 1918, to 18 March, 1919, at $250 per month from 1 May, 1918, another arrangement having been made as to the months of March and April. There is a provision in the contract that it can be terminated by either party on 90 days notice.

Appeal by botb parties from Calvert, J., at chambers in Hillsboro, 3 May, 1920. Tbis is an action begun 8 April, 1920, by tbe bigbway commissioners of Woodsdale Township in Person County against tbe Central Highway Commission of Person County, to restrain them from building a road in Woodsdale Township.

Civil acjtion, beard on case agreed before Lyon, J., at Spring Term, 1920, of WASHINGTON.

Cxvxl actioN, tried before Allen, J., and a jury, at October Term, 1919, of New Hanovee.

<p>1. Landlord and Tenant — Lease—Parol Lease — Statute of Frauds — Statutes.</p> <p>A parol lease of lands for more than three years after the date 'of making the agreement is void under the Statute of Frauds, and our own statute, Rev., 976, and not from the time it goes into effect; and a parol agreement of lease to commence in futuro for the full three year period' makes the tenant in possession a tenant at will, the rental price being that agreed upon in the parol lease.</p> <p>2. Same — Acceptance of Rent — Waiver—Appeal—Bond.</p> <p>A landlord, by accepting the rent from a tenant at will in possession,, receives only that which is due him, and this cannot have the effect of waiving his rights under Rev., 976, to declare void a parol lease of more than three years, or render such lease a valid one; and on the tenant’s appeal from a justice’s court in a summary action of ejection, the tenant is required to give bond for the payment of the rent, etc., Rev., 2008.</p> <p>3. Same — Deeds and Conveyances — Registration—Notice.</p> <p>In order to affect with notice and bind a purchaser of lands to a contract of lease for more than three years made by a tenant with a former owner, it is necessary that the lease be registered in the proper county, and, consequently, the lease must be in writing; and hence a parol lease, void under Rev., sec. 976, cannot have this effect. Rev., 980.</p>

, at July Term, 1919, of Haywood. Tbe trial ended on Saturday afternoon, tbe last day of tbe term.

Civil. ActioN, Under the Federal Employer’s Liability Act, to recover damages for alleged negligent killing of plaintiff’s intestate, tried before Bryson, J., and a jury, at at January Term, 1920, of Haywood.

Appeal by defendant from Long, J., at the October Term, 1919, of W*ILKES. This action is for the alleged negligent killing of plaintiff's intestate while working in defendant company’s coal mine, on Tom’s Creek, Virginia, 8 September, 1917. The allegation of negligence relied on by the plaintiff is that defendant did not fnrnish a reasonably safe place to work. The intestate was employed by defendant company as a driver of a mule team in its mines.

Civil actioN, tried before Bay, J., and a jury, at January Term, 1920, of McDowell. Tbe action was brought to recover damages for a breach by defendant of contracts with plaintiff, by which the latter agreed to sell and deliver hay and beans to the defendant. The case was tried upon issues submitted by the court which the jury answered in favor of the plaintiff, assessing the damages at $2,255.87.

Civil actioN, tried before Bryson> Jand a jury, at March Term, 1920, of SwaiN. Tbe plaintiff Hall was a country merchant, and the defendants were operating a large sawmill near Ms store.

Civil ACTION for removal of cloud upon title, tried before Bay, J., at the Eall Term, 1919, of Clay, and from a judgment of nonsuit entered at the close of the plaintiffs’ evidence, the plaintiffs duly excepted and appealed to the Supreme Court.

Appeal by plaintiff from Finle-y, J., at February Term, 1920, of Haywood. This is an action to recover damages for personal injury caused, as the plaintiff alleges, by the negligence of the defendant. The defendant filed answer denying negligence, and setting up as a defense a release executed, by the plaintiff. The plaintiff replied, alleging that the execution of the release was procured by fraud and undue influence.

Orra. aotioN, tried before Bryson, J., at January Term, 1920, of Haywood, upon the following issues: “1. Did the defendant wrongfully and unlawfully burn and destroy the property of the plaintiff, as alleged in the complaint? Answer: ‘No.’ “2. What damage, if any, is the plaintiff entitled to recover?” Plaintiff appealed.

Appeal by defendants from Bryson, J,, at the January Term, 1920, of Haywood.

Appeal by defendants from Bay, J., at tbe November Term, 1919, of MacoN. This is a proceeding commenced before the clerk and transferred to the Superior Court in term for the purpose of having certain lands devised in the will of W. H. Waldroop sold, and a part of the proceeds applied to the education of his children. The widow of W. H. Waldroop is the petitioner, and all of his children are defendants, those under 21 years of age being represented by a guardian ad litem.

Civil actioN, tried before Bay, J., at November Term, 1919, of MacoN, upon the following issues: “1. Did the plaintiff deliver the trunk described in the complaint to the baggage agent of the defendant, Director General, at Charlotte, for the purpose of having same transported as baggage from Charlotte, N. C., to Cornelia, Georgia? Answer: ‘Yes.’ “2. Did tbe defendant, Director General, negligently fail to transport and deliver said trunk ? Answer: ‘Yes.’ “3.

<p>Appeal by plaintiff from Guión, J., at the October-November Term, 1919, of Wake.</p>

Civil actioN, tried before Finley, J., and a jury, at December Term, 1919, of BuNcombe. The action is to recover the value of services rendered by plaintiff as agent and attorney of defendant in collecting from several railroad companies for overcharges of freight on shipments of lumber to the amount of $570, plaintiff claiming and testifying that his services were reasonably'worth $285, being 50 per cent on the amount collected.

<p>CONTROVERSY without action, heard before Lane, J., at March Term, 1920, of MecKLEnburo.</p>

Civil aotion, tried before Guión, J., at November Term, 1919, of Wake, upon these issues: “1. Did the Raleigh Grain and Milling Company make a contract with the defendant for a lot of corn, as alleged? Answer: ‘Yes.’ “2. Was tbe Raleigb Grain and Milling Company ready, able, and willing to perform the contract on its part ? Answer: ‘Yes.’ “3. Did the defendant Spencer refuse to perform his part of the contract? Answer: ‘Yes.’ “4.

Civil action, tried before Daniels, J., at December Term, 1919, of Onslow, upon these issues: “1. Was the property of plaintiffs injured by fire on account of the negligence of the defendant as alleged ? Answer: ‘Yes.’ “2. If so, wbat damages have plaintiffs sustained ? Answer: ‘$1,000.’ ” Defendant appealed.

Appeal by defendants from Daniels, J., at the September Term, 1919, of SAMPSON.

Appeal by defendant from Guión> Jat tbe October Term, 1919, of Wake. This is an action to recover damages for personal injury inflicted while tbe plaintiff was engaged in tbe installation of an acetylene gas generator on tbe premises of tbe defendant. Tbe defendant lived about five miles from Rocky Mount in Nasb Oounty. He bad in use an acetylene gas generator, wbicb furnished light for bis home.

Appeal by plaintiff from Guión, J., at the November Term, 1919, of FbANKXIN. This is an action to recover land. There was a verdict and judgment for the defendant, and the plaintiff appealed.

Crvn action, tried before Calvert, J., at October Term, 1919, of OumberlaNd, upon tbis issue: “Wbat amount, if any, is plaintiff entitled to recover of defendant? Answer: ‘$553.46, and interest.’” Tbe defendant appealed.

Appeal by defendant from GcClvert, J., at the October Term, 1919, of Bladen. This is an action to set aside certain deeds executed by the plaintiff to the defendant, her daughter-in-law, on the ground of fraud. There was a verdict and judgment for the plaintiff, and the defendant excepted and appealed.

Issue of devisavit vel non as to tbe due execution of tbe will of E. J. Finch, deceased, tried before Bryson, J., and a jury, at November Term, 1919, of DavidsoN. Tbe jury rendered tbe following verdict: “1. Vas tbe paper-writing propounded dated 23 April, 1918, executed by tbe testatrix, E. J. Eincb, according to tbe formalities of law required to make a valid last will and testament? Answer: ‘Yes.’ “2.

Appeal by plaintiff and defendants from Shaw, J., at December Term, 1919, of GastoN. This is an action by the trustee in bankruptcy of Luther C. Arrowood to subject certain lands to a charge for money alleged to have been wrongfully invested by the bankrupt in building a barn and dwelling-house, and in making other improvements thereon, with the consent of the owner, William 0. Arrowood, in fraud of the creditors of the bankrupt.

Civil actioN, transferred by the clerk of MecKLenbueg to Harding, J., as upon demurrer. This is an action of quo warranto.

Civil action-, tried before Bay, J., at September Term, 1919, of Haywood. At tbe conclusion of tbe evidence a motion to nonsuit was allowed, from wbicb tbe plaintiff appealed.

PbtitioN for a writ of certiorari as a substitute for an appeal. A true bill of indictment was returned against the petitioner at April Term, 1919, of Anson, charging him with the crime of arson. At the same term of court a true bill was returned against one Jim Eeid (S. v. Reid, 178 N. 0., 745), charging him in one count with the-crime of arson and in another with being accessory before the fact te the crime of arson.

INDictment for rape, tried before McElroy, J., at September Term,, 1919, of Eoesyth. There was a verdict of guilty, and sentence of death pronounced. Defendant appealed.

, at September Term, 1919, of HendebsoN. Tbe defendant was convicted on an appeal from tbe mayor of tbe town of Hendersonville of auctioning goods without having obtained a license as required by tbe ordinance of said town. On appeal tbe solicitor sent a bill of indictment instead of trying on tbe warrant. Beyond an exception to evidence, tbe only question presented is tbe validity of tbe ordinance.

OeimiNal action, determined on special verdict before Shaw, J., at •January Term, 1920, of Cabarrus.

<p>Appeal and Error — Courts—Discretion—Evidence.</p> <p>Upon trial for selling intoxicating liquors in violation of our statute, after tbe defendant and bis witnesses bad testified in bis bebalf and in rebuttal, a State’s witness testified that be was present and bad seen tbe sale charged. Tbe defendant offered himself and bis witness to contradict tbis witness, and tbe Court refused, stating in tbe presence of tbe jury tbat tbe defendant and bis witnesses bad already testified as to tbis fact. Held, tbe refusal of tbe judge was a matter witbin bis discretion in tbe conduct of tbe trial, and there being no evidence of its abuse, it was not reviewable on appeal.</p>

Appeal by defendants from Connor, J., at the Fall Term, 1919, of Chatham. Indictment for manufacturing intoxicating liquor, and aiding and abetting in same. • The defendants were convicted and appealed to this Court.

<p>OsimiNal actioN, tried at the November. Term, 1919, of Pitt, before Kerr, J., and a jury.</p> <p>The action was commenced before C. D. Rountree, a justice of the peace, with the issuance of a warrant against the defendants, charging them with libelling Joseph McLawhorn, sheriff of Pitt County. Upon the preliminary hearing the magistrate found a ease of probable cause against the defendants and they were bound over by him to the County Court of Pitt County. When the ease was called for trial in the County Court, Hon. P. M. Wooten, the county judge, announced from the bench that he would not try the ease for the reason that he was a stockholder in defendant company, and thereupon, of Ms own motion, transferred the cause to the Superior Court of Pitt County for trial, where it was duly docketed, and for three regular terms of said court was continued by the presiding judge upon motion of defendants. The case came on for trial at the November Term, 1919, and without objections from defendants the trial proceeded upon the original warrant. Upon the evidence the defendants were found guilty by the jury, and adj'udged by the court to pay a fine of $100 each, and the cost, from which judgment defendants appealed.</p>

Appeal by prisoners from Kerr, J., at Special June Term, 1919, of JOHNSTON. They were tried at a Special Term of Johnston, 9 June, 1919, upon an indictment'charging conspiracy to murder, and also the murder of, J. A. Wall, deputy sheriff of Johnston County. They were all convicted of murder in the second degree, and each was sentenced to 20 years in the State’s Prison and appealed.

Appeal by defendant from Daniels, J., at tbe December Term, 1919, of LeNOIB. Tbe defendant was convicted before tbe mayor of Kinston on a warrant charging tbat sbe “did unlawfully and wilfully violate a law of tbe State of North Carolina, No., sec., by being a vagrant,” and appealed to tbe Superior Court, where sbe was again convicted. After verdict, tbe defendant moved in arrest of judgment, and tbe solicitor for tbe State asked to be allowed to amend tbe warrant.

Appeal by defendant from Daniels, J., at October Term, 1919, of SAMPSON. Tbe defendant was indicted on a charge tbat be did “willfully and unlawfully sell, or dispose of for gain, to Mat Watson and other persons-, to tbe jurors unknown,, in quantities less than 2% gallons, certain spirituous, vinous, or malt liquors, or a certain mixture containing-alcohol or cocaine, or morphine, or other opium derivative.” Verdict, of guilty, and judgment. Appeal by defendant.

<p>INDICTMENT for murder beard on motion by defendants to quasb tbe Bill before bis Honor, W. M. Bond, Judge, at November Term, 1919, Superior Court Bertie County.</p> <p>Tbe bill of indictment, charging defendants in formal terms with the murder of Ludelle Hyman, deceased, contained on its face the averment that both of defendants were under 10 years of age, and it being admitted on the hearing that said defendants were under the age of ten, the court gave judgment that the Bill be quashed and defendants remanded to the Juvenile Court to be dealt with pursuant to law, being of opinion that, under the act of the General Assembly, establishing said courts, children of that age are exempt from prosecution as criminals.</p> <p>The State, having duly excepted, appealed.</p>

INDICTMENT, tried before Bay, J., and a jury, at January Term, 1920, of Fobsyth.

Appeal by defendant from Shaw, J., at September Term, 1919, of MECKLENBURG. Tbe defendant was convicted of selling milk witbin tbe city limits of Charlotte without having first obtained a permit from tbe health authorities of said city, and was fined $5 and costs, and appealed.

<p>Appeal by prisoners from Adams, J., at October Term, 1919, of Ieedell.</p> <p>Tbe prisoners were convicted of tbe murder in tbe first degree of Lloyd Cloaninger, wbo at tbe time of tbe billing was deputy sheriff of Iredell. Tbe deceased, under a warrant from a justice of tbe peace, was commanded to arrest Boizy Conner and one of tbe prisoners, Sinclair Conner, under a charge of assault with a deadly weapon upon one Farin. On Sunday, 3 August, 1919, a large crowd of negroes, and some whites, were attending a camp meeting at Morrow’s Grove, a negro church. Among these were tbe prisoners, Ralph Conner and Sinclair Conner, and their brother, Boizy Conner, tbe last two being defendants in said warrant, and all three it seems armed with pistols. Tbe deceased officer, accompanied by two other officers, Furr and Broom, of Mooresville, went to tbe camp meeting ground about 3 p.m. to serve tbe warrant against Sinclair Conner and Boizy Conner. Before tbe actual attempt to serve tbe warrant both of them were informed that tbe officers were in search of Sinclair to arrest him, and both were armed with pistols. Sinclair, inquiring where tbe officer was, went toward Cloaninger and asked him: “What in tbe bell does, all this mean?” Tbe deceased, Cloaninger, having tbe warrant in bis band, told Sinclair, “You are under arrest; be quiet,” to which Sinclair replied: “No God-damned man shall arrest me!” Then, crouching behind a tall black negro be drew bis pistol and opened fire upon Cloaninger. Cloaninger returned tbe fire. Tbe only wound that Cloaninger seems to have received at this time was a slight one in one of bis arms, whereas Sinclair Conner was so badly wounded.that after dodging behind an automobile be fell at tbe foot of a tree some distance off. Cloaninger and tbe two other officers followed him to tbe tree, where Cloaninger was trying to ascertain tbe extent of Sinclair’s wounds, and to get a car to take him to some physician for attention. While this was going on, Boizy Conner came up and attacked Cloaninger, but without a weapon. Cloaninger used a blackjack in defending himself from the attack of Boizy. Furr and Broom, the other .officers, then seized Boizy, and while they were holding him Ralph Conner, the other defendant, breaking through the crowd which was trying to restrain him, and declaring that he would kill the damned white man who had shot his brother, came up behind Cloaninger and fired two shots into his body. One of these shots was not fatal; the other, that which passed through Cloaninger’s bowels, was the cause of his death.” Testimony of H. C. Furr; of Dr. Henry long; Johnson Gabriel. Miles Wilson testified: “I was at the camp meeting on 3 August; walked there between 12 and 1 o’clock. I saw Sinclair and Ralph Conner as I was going; they were on the road between church and the woods, about 100 yards from the church. There were four of them abreast together, Sinclair, Ralph, Boizy, and another fellow with uniform shirt and blue pants — I didn’t know him. They were talking when they passed me, and went around right in front of me up to the church. I was going up to the camp ground; they were going along in front of me, and I heard them say — Sinclair said, ‘I don’t intend to- be arrested by any damned man, white or anybody.’ Said, ‘I have got as good a gun as any man ever shot.’ And Ralph said, ‘Yes; and I have got as good a gun as any man, and I will use it if I have to.’ ”</p> <p>John Wally testified: “I was at George Mayhew’s on 3 August, and was at the camp ground that morning about 11 o’clock. I saw Sinclair Conner there, walking around through the crowd. There was a soft drink stand there, and Sinclair came up and made a remark about the sheriff. Some other fellow walked up when he came — they were getting dopes, Sinclair among them. Ralph and Boizy came up and called to him, and he left.”</p> <p>And again: “It was a few minutes after 4 o’clock when I saw Sinclair, Ralph, and Boizy at the soft drink stand. I went to Mr. May-hew’s and got dinner and was at the dope stand at 4 o’clock. The dope stand was three or four hundred yards from the camp ground. While I was standing there, Sinclair came up and asked something about the sheriff, and somebody said, ‘There is the sheriff over there,’ and he said, ‘No; that is a boy; he can’t arrest me. I am talking about the big sheriff.’ And after he made this remark, Ralph and Boizy came up, called to him as they started off, going in the direction of the preaching stand; I heard them murmuring; I could not understand what they said as they went off, about three or four hundred yards, and about 4 or 5 o’clock I heard the report of the pistol.”</p> <p>The State relies upon this evidence of Wally as particularly important under the question of conspiracy. It places the three brothers together after Sinclair had the deceased pointed out to him, and declared that he would not be arrested.</p> <p>Dick Craven, after testifying in regard to tbe first gunfiring between Sinclair and tbe deceased, proceeded: “When tbey finished tbey backed so tbat I could sorter see Cloaninger, and tbe other fellow went back behind my machine, went down to some trees, and another negro on my other side attracted my attention. He said, ‘That is my brother; they can’t arrest him!’ He was about ten feet away (then he says he was fifty feet). He was pressing on with the crowd with a pistol in his hand. Four or five old colored women were holding him; he was pressing on and telling them, ‘Get back or I will shoot!’ He advanced further on and another colored man got between them, and he said, ‘Get out of my way! This is my brother; they cannot arrest him!’ He was using profane language. He said, ‘God damn, get out of my way! That is my brother; nobody can take him!’ He said, ‘I have a 13-shooter and will use it!’ And everything that got in his way, he made get out of his way — had the pistol in his hand. He was moving; advancing all the time, going down the way he saw Cloaninger — down there where this other fellow fell.”</p> <p>The evidence is that this other negro was the prisoner, Ralph Conner. There was a verdict of guilty of murder in the first degree as to both prisoners, and the capital sentence was imposed by the' judge, from which both appealed.</p>

, at August Term, 1919, of LeNOie. The prisoner was convicted of murder in the second degree, and appealed from judgment thereon.

<p>Appeal by prisoner from Shaw, J., at January Term, 1920, of Ibebell.</p> <p>The prisoner convicted and sentenced for the murder in the first degree of J ames Rayle, appealed.</p>

<p>Intoxicating Liquors— Evidence— Collateral Crimes— Motive— Intent— Statutes.</p> <p>Where there is evidence that defendant had liquor in his possession for the purpose of sale, in violation of the statute, evidence that he had liquor in his possession and had sold the same a year previous in another county, is not s,o connected with or related to the offense charged as to be competent to show the intent or guilty knowledge in committing the same, nor is it within the reason of the rule which admits evidence of collateral crimes to prove motive or intent.</p>