Volume 180 — North Carolina Reports

Appeal by defendant from Granmer, J., at tbe April Term, 1920, of Beaueokt. This is an action to recover damages for refusal to accept and pay tbe contract price for 746 barrels of potatoes. Tbe plaintiff contracted to sell and deliver at Aurora, and defendant to buy and pay for, at tbe rate of $3 per barrel, all of tbe No. 1 and No. 2 potatoes grown on three of plaintiff’s farms in tbe June season of 1916.

Civil action, tried before Granmer, J., and a jury, upon an issue of devisavit vel non, at May Term, 1920, of Beaufobt. This is a caveat to the alleged will of George M. Bennett, deceased, the paper-writing propounded as his will being in the following language: Nov. 11, 1917. Deak EbieNb: — I will try and write you a few lines to let you here from me, I am still shut up for measles but haven’t broke out but I am some sick.

Civil actioN, beard before Calvert, J., on a motion to remove tbe same to tbe county of Dabe for trial, wbicb was granted, and tbe removal ordered. Plaintiff excepted, and appealed to tbis Court. Tbe facts are these: Tbe plaintiff sued to recover damages for tbe breach of a contract by tbe defendant to sell and deliver to it a certain quantity of pulpwood, for tbe price of $120,102.10, and also to set aside bonds and a deed of trust on lands for fraud.

<p>Civil action, tried before Stacy, J., at January Term, 1920, of Pas-quotanic. Defendant appealed.</p>

Appeal by defendant from Lyon, J., at March Term, 1920, of Edge-combe. This is an action on a note for $300, given by the defendant to the plaintiff. It is one of three notes, the other two having been paid. All were endorsed by Mr. H. 0. Bridgers, and were given for tbe purchase of stock in tbe First National Bank of Tarboro.

Appeal by defendant from Granmer, J., at tbe Spring Term, 1920, of Beaueokt. This is an action on a note against the defendant Bonner, an indorser. Held: and in bis charge told tbe jury: “Tbe burden is upon tbe defendant to satisfy you by tbe evidence, and by its greater weight, tbat be did not receive notice, and did not waive notice.

Appeal by defendant from Oranmer, J., at the April Term, 1920, of Beaueokt. This is an action to recover possession of a certain tract of land. The defendants denied the right of the plaintiff to recover. . . Prior to 1914, the defendant Daw was the owner of said land, and on 23 May of that year he'and his wife executed a mortgage with power of sale to S. B. Windley to secure $187.50.

Appeal by defendant from Lyon, J., at November Term, 1919, of TYRRELL. This is an action for personal injuries.

<p>Municipal Corporations — Sale of Public Building — Jail—Notice—Approval of Voters — Injunction.</p> <p>In tbe absence of a special statute, tbe mayor and councilmen of a town are unauthorized to sell tbe only building of tbe town in wbicb tbe jail and municipal offices, etc., are located, without having given tbe thirty days notice required by Rev., 2978, or tbe approval of tbe qualified voters of tbe town, Rev., 2916 (6), and in sucb instances a permanent injunction is proper.</p>

Appeal by defendant from Bond, J., at Spring Term, 1920, of Pas-QUOTANK. This case was. heard on the exceptions to the report of a referee, -by Bond, J., at Spring Term, 1920, of Pasquotank. The court sustained all the findings of fact to which the defendants did not except, but they excepted to his overruling certain exceptions as to the law, and appealed from the judgment.

Appeal by propounders from Daniels, J., at October Term, 1917, of Nash. Devisavit vel non.- William Bailey offered a paper-writing purporting to be tbe last will and testament of Ellen Bailey, dated 26 March, 1914. This was caveated by Cora Wilson, who offered a paper-writing also purporting to be the last will and testament of Ellen Bailey,' dated 10 May, 1915. This was caveated by William Bailey. The other heirs at law were made parties.

Appeal by plaintiff from Grammer, J., at April Term, 1920, of Beau-FORT. Judgment was rendered in this case by a justice of tbe peace 3 September, 1919, for $44.79, tbe defendant being present in person and by counsel, tbe justice requiring tbe plaintiff to produce a receipt for tbe goods alleged to be lost before be would sign judgment, wbicb tbe counsel for the plaintiff agreed to do.

Appeal by the defendant from Grimmer, J., at May Term, 1920, of Beaueokt. Tbis is an action to recover damages sustained by an automobile in crossing the defendant’s track on Second Street, Washington, N. 0. Tbe automobile was going west on said street, which the railroad track crosses about 200 feet from Gladden Street. The space between the two streets is occupied by a warehouse. The engine came out from behind the warehouse.

<p>Civil actioN, tried before Lyon, J., and a jury, at October Term, 1919, of Daee.</p> <p>Tbe action is by an employee to recover damages of defendants, Ms employers, for alleged negligence on tbeir part in not providing Mm with, a safe place to do Ms work. There was denial of liability, pleas of contributory negligence, and assumption of risk. On issues submitted, the jury rendered verdict for defendant to the effect that plaintiff was not injured by defendant’s negligence, as alleged in the complaint, and making no response to the other issues.</p> <p>Judgment on the verdict for defendants, and plaintiff excepted and appealed.</p>

Civil actioN, tried before Qranmer, J., and a jury, at April Term, 1920, of Tyrrell.

<p>Carriers of Goods — Express Companies — Special Damages — Notice—Tobacco .Elues — Damages.</p> <p>An express company receiving tobacco flues so crated that the piping is exposed to view, and may be seen and understood as being only for the purpose of curing tobacco, and in a section of country where tobacco is largely grown and cured, and in the tobacco curing season, is evidence of the special circumstances that the consignee’s tobacco will be injured in its curing by the negligent delay in the transportation by the carrier, which the jury may consider in passing upon the amount of damages recoverable in the consignee’s action.</p>

<p>1. Appeal and Error — Instructions—Objections and Exceptions — Records— Statutes.</p> <p>Errors in tbe charge of tbe court, or in granting or refusing to grant prayers for instruction, shall be deemed excepted to without the filing of any formal objections, if specifically raised and properly presented in the case on appeal, prepared and tendered in apt time; and when exceptions are taken they should be considered and passed upon by the trial court, and upon being overruled, made to appear in the record on the appeal to the Supreme Court. Consolidated Statutes, sees. 643, 641, 640, 590; Rev., 591, 590, 554.</p> <p>2. Same — Appearance After Verdict — Pleadings—Judgments—Pro • Con-fesso.</p> <p>Where one of the defendants in an action appears for the first time after a verdict adverse to himself alone, not having filed an answer, and specifically excepts to the charge of the court, he is entitled to have the trial judge pass upon his exceptions, and, upon their being overruled, to have them incorporated in his case on appeal to the Supreme Court, when he has perfected it according to law, and it is reversible error for the trial court to decree that the allegations of the complaint be taken pro eon-fesso against him, and refuse -to consider his exceptions to the charge, and confine him to his exceptions to the overruling his demurrer to the complaint and the overruling of his motion for judgment non obstante vere-dicto.</p> <p>3. Same — Certiorari—Procedure.</p> <p>Where the trial court erroneously refuses to consider appellant’s exceptions to the charge; and in refusing to permit them to be incorporated in the case on appeal, a writ of certiorari will issue from the Supreme Court, directing the trial judge to restate the case on appeal so as to set forth these exceptions, and so much of the charge as may be required to show their true significance, and enable the Supreme Court to properly pass on their merits.</p>

<p>1. Deeds and Conveyances; — Timber Deeds — Contracts—Cutting and Removing Timber.</p> <p>A contract for tbe sale or purchase of timber standing upon lands specifying a certain size, when cut, then standing, or which may be standing or growing during the term of two years from its date, or such time as may be necessary for the removal of the timber not exceeding five years, vests the title and the right to cut and remove the timber in the purchase for the five year period, when he had begun to cut it within the time specified in the contract, and the delay was not caused by any default of his own, but by conditions he could not control.</p> <p>3. Same — Extension Period for Cutting — Conditions Precedent.</p> <p>Where five years is given á purchaser of timber growing upon lands, if without delay attributable to him, it cannot be cut and removed in two years, the principle requiring the performance of a condition precedent or notice, within the first period, as upon the exercise of an option, has no-application.</p>

<p>Appeal by defendant from Crammer, Jat the April Term, 1920, of Perquimans.</p> <p>This is an action to recover damages for breach of contract.</p> <p>In 1918 the plaintiffs procured an option on the Fleetwood farms in Perquimans County; giving them the right to buy the farms and the stock and the farming implements thereon by 1 January, 1919, for $96,875, and subsequently entered into a contract with the defendants giving them an interest in the option.</p> <p>Pursuant to agreement between the parties, the land was offered for sale on 6 December, 1918, when, the crowd at the sale not being as expected, the land was bought in for the benefit of the 'plaintiffs and defendants, and the plaintiffs allege that the first contract was then abrogated and a new contract made, which is the contract sued on, and by the terms of which the defendants agreed that the property bought at said sale on 6 December was to be held for a higher profit and sold as opportunity offered; that the defendant realty company would furnish the money to comply with the option, and would also furnish the money necessary to cultivate said lands during the year 1919, and that the plaintiffs should have one-half of the profits arising from the sale of the lands less the expenses of the sale, and one-half the profits from the cultivation of the lands.</p> <p>The plaintiffs introduced evidence tending to establish the contract, which was not in writing, as alleged by them, and its breach, and also evidence as to the damages they were entitled to recover.</p> <p>The defendants denied the execution of the contract, and also denied that the plaintiffs had suffered any damage.</p> <p>His Honor, among other things, charged the jury as follows:</p> <p>“As to the land, what damages are plaintiffs entitled to recover on account of defendant’s refusal to finance the proposition? And when you come to consider this issue, if you do consider it, I charge you that the measure of damage is the difference between the price of the land in the option, to wit, $96,875, and the fair market value of the land on 1 January, 1919, whatever you find the fair market value to be. And if you find there was a contract, plaintiffs will be entitled to one-half of the difference between the price named in the option and the fair market value of the land and chattels on 1 January, 1919. 'There is no contention about the price named in the option, which is $96,875, so that will give you no trouble. You are to find the fair market value of the property on 1 January, 1919, and then one-half of the difference between it and the option price will be the sum you should write as your answer,” and the defendants excepted.</p> <p>The jury returned the following verdict:</p> <p>“1. Did plaintiffs and defendant enter into the contract, as alleged in the complaint ? Answer: ‘Yes.’</p> <p>“2. Were plaintiffs ready, able, 'and willing to comply with said contract? Answer: ‘Yes.’</p> <p>“3. Did defendants wrongfully breach said contract, as alleged in the complaint? Answer: ‘Yes.’</p> <p>“4. What damages are plaintiffs entitled to recover ?</p> <p>“(a) On account of defendant’s refusal to finance the proposition? Answer: ‘$15,000.’</p> <p>“(b) On account of profits in farming operations? Answer: ‘$7,500.’ ”</p> <p>There was a judgment in favor of the plaintiffs, and -the defendants appealed.</p>

, at the March Term, 1920, of Halifax. Action to set aside a will alleged to be a forgery or fraudulently offered for probate as the will of Bettie Y..Johnson. The alleged will, dated 1 June, 1906, was duly probated in common form on 11 May, 1907.' The plaintiffs seek to set aside the will and probate, on the ground that the paper-writing is not the will of Mrs. Johnson, and to have an accounting and settlement with.

Civil actioe, beard, on demurrer to the complaint, before Bond, J., at August Term, 1920, of Pasquotane. There was judgment overruling the demurrer, and defendant excepted and appealed.

Civil actioN, tried before Crdnmer, J., at March Term, 1920, of Gates, upon these issues: “1. Was the plaintiff injured by the negligence of the defendant, as alleged? Answer: ‘Yes.’ “2. Did plaintiff assume the risk of his injury, as alleged in the answer ? Answer: ‘No.’ “3. Did the plaintiff contribute to his own injury, as alleged? Answer : ‘No.’ . “4. What damages is the plaintiff entitled to recover? Answer: ‘$2,500.’ ”

<p>Civil action, tried before Crammer, J., at May Term, 1920, of Hyde. From judgment of nonsuit plaintiff appealed.</p>

Civil actioN, tried before Lyon, J., at November Term, 1919, of TyeRell, upon these issues: “Q. Were the nets of the plaintiff, J. W. Spruill, injured by the negligence of the defendant, as alleged in the complaint? Answer: No.’ “Q. If so, what damage is the plaintiff entitled to recover ? “Q. Were the nets of the plaintiffs, Herbert W. Bateman and L. L. Basnight, injured by the negligence of the defendant, as alleged in complaint ?

Civil actioN, tried before Crcmmer, J., at Spring Term, 1920, of Dake, upon these issues: “1. Was the property of the plaintiff lost and damaged through the negligence of the defendant? Answer: 'Yes.’ “2. What damage, if any, is plaintiff entitled to recover ?

<p>Civil action, tried before Gwion, J., at February Term, 1920, of Pasquotank.</p> <p>From a judgment of nonsuit, the plaintiff appealed.</p>

Civil actioN, tried before Connor, J., and a jury, at March Term, 1920, of Carteret. •Tbe action is to recover damages for death of plaintiff’s intestate, caused by alleged negligence of defendant while he was claimed to be in defendant’s employment. There was denial of employment of intestate, defendant claiming that the plant and enterprise, at the time, were under control of United States Government.

Civil aotioN, tried before Bond, J., at February Term, 1920, of HARNETT. Tbe following issues were submitted: “1. In what sum, if anything, is defendant, administratrix, indebted to tbe plaintiff, Mrs. A. Y. Coats, as to wbicb sbe was indemnified by tbe terms of tbe bond sued upon to wbicb defendant’s intestate, Jobn E. Wilson, is alleged to bave been surety? Answer: ‘$2,348, witb interest from eacb date of judgment first paid in making up said amount.’ “2.

Appeal by defendants from Qormor, J., at Fall Term, 1919, of Lee. Tbe defendant, J. 13. Held: as matter of law, that the agreement between Edwards and McNeeley (although Benton or Hamilton was not a party to it), was a novation, and released Benton and Hamilton from the original mortgage; and thereupon refused to sign the judgment tendered by the defendants, and signed the judgment tendered by plaintiff, which is as follows:…

Appeal by defendant from Connor, J., at tbe November Term, 1919, of HARNETT. . Tbis is an action to recover damages for trespass on land by entering tbereon and cutting valuable timber trees. Tbe plaintiff alleges tbat be is tbe owner in fee of tbe land described in tbe complaint, and in possession of tbe same, wbicb allegation is' denied by tbe defendant. It is not denied tbat tbe plaintiff was tbe owner of tbe land for life at tbe commencement of tbe action.

, at April Term, 1920, of Beetie. Plaintiffs agreed to sell certain land-to tbe defendants, who refused to comply with tbe contract because, as they alleged, tbe title conveyed to them by the deed tendered is defective. If the title is good and indefeasible, they are ready and willing to pay the purchase money and take the deed.

<p>Estates — Estates Tail— Statutes— Fee— Limitations— Contingencies— Heirs at Law.</p> <p>An estate to testator’s wife for life, then to their named daughter and her children, if any, but should the latter die leaving no children, then to the heirs at law of testator’s wife. The wife being dead, and the daughter being her only heir, and there never having been children born of the daughter, the latter takes an estate tail converted by the statute into a fee-simple title, and should she never have children she would take as the heir at law of her mother; and, in either event, her deed would be a valid conveyance of an absolute fee-simple title.</p>

Appeal by defendants from Bond, J., at the May Term, 1920, of WayNE. The defendants leased to the plaintiffs, for five years, at a fixed rent of $660 a year, payable in monthly installments of $55 each, a lot in Goldsboro, N. C., on Ash Street and Carolina Avenue,' on which was standing a greenhouse and other buildings and improvements.

Appeal by defendant from Gorvnor, J., at November Term, 1920, of WayNE. Processioning proceeding begun before tbe clerk, 29 August, 1917, and transferred by tbe clerk, on answer filed, March, 1918, and tried by jury November Term, 1919, wbo found tbe boundary to be as claimed by tbe plaintiff. From judgment thereon, tbe defendant appealed.

<p>Appeal by plaintiff from Devin, J., at July Term, 1920, of Lee.</p> <p>Tbe plaintiff sued to recover tbe balance due on a note dated 28 June, 1917, wbieb was given in renewal for three notes previously executed by tbe defendant for fertilizer consigned to bim for sale as agent during tbe spring of 1916. Tbe account fell due that fall when Bryant executed said tbre.e notes in settlement. He testified tbat be bad sent these three notes in a letter claiming tbat they were sent without prejudice to bis right to recover damages for an alleged breach of a verbal contract made with bim by a salesman of tbe plaintiff to ship bim another carload of fertilizer for bis own use, by reason of tbe failure to do so be bad sustained damages to bis crop.</p> <p>After demand bad been made for tbe payment of tbe three notes given to tbe plaintiff tbe defendant asked for further indulgence, and gave a single note of $896.02 on 28 June, 1917, for tbe entire amount with bis brother-in-law, the defendant Allen, as surety. At tbe execution of this note Bryant made no claim of any sum due bim by tbe plaintiff. Thereafter be made other payments in 1917 and 1918, reducing tbe balance due on tbe note to $330, but made no complaint or demand on tbe plaintiff for any alleged damages for failure to-ship tbe additional carload of guano until this action was brought, when tbe defendant Bryant set up a counterclaim for $1,000 damages. Verdict for tbe defendant on tbe counterclaim, and from judgment for tbe balance in favor of tbe defendant, tbe plaintiff appealed.</p>

Appeal by plaintiff from Bond, J., at May Term, 1920, of WayNE. This was a petition before the clerk for the condemnation of land for the extension of a street, heard by the judge on appeal.

Appeal by plaintiff from Devin, J., at April Term, 1920, óf Heet-eoed. ' This is an action to recover upon two contracts by which it is alleged that the defendant agreed that upon the sale of his land at auction, plaintiff was to receive $2,000 in casb, and- a credit of $4,000 on any tract of land wbicb tbe plaintiff might buy at that sale. ■ • • The jury found, upon the issues submitted, against the. plaintiff that the land was not sold at auction prior to 15 December,…

<p>Contract— Option — Description of Band — Evidence — Identification — Equity — Specific Performance.</p> <p>An option to sell the owner’s only farm, described therein as “my farm,” for a certain price, within a specified time upon the payment of the sum named, sufficiently describes the land to admit of parol evidence of identification of the subject-matter of the contract, in an action for specific performance by the purchaser.</p>

Civil agtioN, tried before Connor, J., at May Term, 1920, of CbaveN, upon the following issues: “1. Are the plaintiffs the owners and entitled to the possession of the property described in the complaint? Answer: ‘Tes.’ “2. Is the defendant in the wrongful -possession thereof ? Answer: ‘Yes,’ “3. What is a fair rental value for said property since 11 October,' 1918? Answer:‘$20 per month.’” • From the judgment rendered the defendant appealed.

PeoceediNG before Connor, J., at Fall Term,' 1920, of Harnett, upon this issue: “Did the deceased, P. G-.

PetitioN for partition, in which issue of title is raised, and which was beard before Bond, J., at April Term, 1920, of Johnston, upon tbe following agreed facts: 1. That J. H. Benson died intestate in Johnston County, North Carolina, on 6 May, 1917. 2. That said J. H. Benson was seized and possessed, at tbe time of bis death, of a certain tract or parcel of land lying and being in Banner.

Civil action-, tried before Connor, J., at June Term, 1920, of Car-teret, upon these issues: • “1. In what amount, if any, is Thomas Thomas, trustee of the courthouse bond sinking fund, indebted to. Carteret County ? Answer: '$13,-236.49, with interest.’ “2. What sum, if any, is Carteret County entitled to- recover of the United States Fidelity & Guaranty Company as surety for Thomas Thomas, treasurer of Carteret County'? Answer: 'Nothing.’ “3.

<p>1. Bills and Notes— Negotiable Instruments — Covenants — Equities — Statutes.</p> <p>Tbe character of a promissory note in tbe bands of a bolder in due course will not be destroyed or impaired by tbe mere statement thereon of an executory contract on tbe part of tbe payer growing out of the transaction in which it is given, when it otherwise complies with tbe requirements of paper of tbat class; and where tbe instrument, given for a horse, otherwise complies with tbe requirements of negotiability, a certain statement of warranty of tbe horse therein will not admit of tbe application of any equities existing between tbe original parties when tbe Instrument is in tbe bands of an innocent purchaser for value in due course; and tbe principle as to whether such person were put upon inquiry of tbe equity of tbe matter by tbe statement be bad made upon the face of the instrument has no application to transactions of tbis character. Rev., 2153.</p> <p>2.' Bills and Notes — Negotiable Instruments — Title—Endorsement.</p> <p>. In order to a. proper negotiation of a commercial instrument payable to order, so as to shut off equities and defenses existing between the original parties, it must be endorsed by the holder, or by some one for him duly authorized, by writing the name of the holder on the instrument itself, usually on the back thereof, or on some paper physically attached thereto at the time the endorsement was made. Bey., 2178, 2198, 2206, 2212.</p> <p>3. Same — Equity.</p> <p>Where the title to a negotiable instrument, payable to a certain person, or order, has not been transferred to a purchaser, by endorsement, the latter has acquired only an equity to have the transaction completed by endorsement, and until then he takes subject to the equities existing between the original parties.</p>

Civil actioN, tried before Kerr, J., at Spring Term, 1920, of LbNoie, upon this issue: “Is the plaintiff the owner of an easement entitling him to use the road or way over defendants’ land described in the pleadings ? Answer: No.’ ” From the judgment rendered, plaintiff appealed.

Civil actioN, tried on appeal from the recorder’s court of Dunn, N. 0., before Bond, J., and 9. jury, at February .Term, 1920, of HaRNEtt. Tbe action was instituted to recover $317, alleged to be due plaintiff for money bad and received for usurious interest, collected by defendant of plaintiff, and damages on account of illegal sale of land under a mortgage. There was denial of liability by defendant.

Appeal by defendants from Devin, J., at August Term, 1920, of Wavne. The plaintiff, Sallie K. Elmore, and W. S. Elmore were married 1 October, 1868, and lived together until 3 August, 1883, when the husband died. They had several children, some of whom are living, and others have died, leaving children.

<p>Attachment — Insolvent Corporations — Evidence—Fraud.</p> <p>Allegations in affidavits for attachment against an insolvent corporation’s property, that executions had been issued against it, and that it had failed to make use of a small piece of its land, and not paid the taxes thereon; or that its president claimed this land, or its proceeds is insufficient upon the question of fraud of the corporation, for the granting of the warrant. ■</p>

Appeal by defendant from Connor, J., at the April Term, 1920, of CRAVEN. This is an action to recover damages for personal injury, the plaintiff alleging that he was an employee of the defendant, and that while in tbe performance -of bis duty, taking down certain wires on poles, tbat a pole broke because of its rotten condition, and be was thrown to tbe ground and seriously injured.

<p>Appeal by defendant from Kerr, J., at Fall Term, 1920, of SampsoN.</p> <p>Tbis action was brought to recover damages for setting fire to plaintiff’s lands and tbe timber thereon, in April, 1916, and burning the same. The fire came from defendant’s engine, which was operated on his tram-road. There was evidence tending to show that the fire was set out by defendant’s engine, and that it burned plaintiff’s property, and that it started at the side of the tramroad and near to it, or at a trestle on the road where there were tree tops, grass, and other dry and combustible material, and that it burned over a large area of land. One witness stated that the engine passed him about one-half mile from where he first saw the smoke rising from the fire; and when he went to the place, it had burned some distance from the trestle. There was further evidence tending to show that defendant’s engine was the cause of the fire, but it is not necessary to recite it here in detail. The wind carried the fire from the tramroad to the dirt road, and all land between the two had been burned over, and some of the evidence tended to show, that the engine had passed the place shortly before the fire and smoke were first seen. The engine was seen to set out fire a week before this fire in question occurred. This testimony was objected to by defendant, and his objection was overruled by the court, and an exception taken upon the ground that there was no evidence that the engine was in the same condition on the two occasions. The witnesses for plaintiff stated that defendant’s right of way had not been burned off, but was very foul.</p> <p>The defendant’s evidence tended to show that the fire was not started on its right of way, or by its engine, but that it originated elsewhere, and also that defendant had not been guilty of any negligence.</p> <p>The jury returned a verdict for the plaintiff, and assessed his damages at $1,000. Judgment thereon for plaintiff; defendant appealed.</p>

Appeal by defendant from Kerr, J., at March Term, 1920, of DupliN. This is an appeal by defendant Groves from a judgment of the Superior Court of Duplin County, adjudging him in contempt of court for failure to remove a certain building from over an alley-way in the town of Magnolia. From the order of Kerr, judge, defendant appealed.

<p>Appeal by defendants from Lyoru, Jat June Term, 1920, of Edge-combe.</p> <p>K. TL Dickens devised to bis sister, Mary E. Dickens, the lot in question in Tarboro, N. C., “During her life, and upon her death I give and devise the same to John L. Bridgers, Jr., Eouth Hassardshort) and Louis M. Bourne, as tenants in common,” one-third to each; “and in event of any one or more of them being dead, leaving issue, at the time of Mary E. Dickens’ death,' then such issue shall take such part of said real estate as his, her, or their parents would have taken if then living, but if one or more of them be then dead without issue surviving, then his or her share shall then go to survivor or survivors of my said devisees.”</p> <p>Mary E. Dickens, in December, 1880, conveyed her- interest in lot No. 59 in the plat of said town to O. 0. Farrar by deed duly recorded. John L. Bridgers and his wife, and Bouth Hassardshort and her husband, on 5 January, 1881, by warranty deed, duly recorded, and in consideration of - $6,000, conveyed “All their interest in a tract or parcel of land in Edgecombe County, N. O.,” describing said lot by number and by metes and bounds, and adding, “Interest in said half of town lot being an -undivided two-thirds, subject to the estate of O. 0. Farrar of a part thereof during the life of Mary E. Dickens.”</p> <p>On 22 November, 1889, H. 0. Bourne, commissioner, pursuant to a decree of the Superior Court of Edgecombe, and in consideration of $3,000, conveyed to O. C. Farrar, by warranty deed, duly recorded, “All the right, .title, and interest of the said L. M. Bourne in the said property, being one third interest” (describing the above property), and adding, “It being the identical real estate devised by El. II. Dickens to said L. M. Bourne, and reference hereby made to said will and testament.” 1. M. Bourne, on arriving at age, received from his guardian, said H. C. Bourne, the purchase-money from the sale of the lot by said guardian and commissioner, with full knowledge that all his right, title, and interest in said property had been sold to said Farrar.</p> <p>Said 0. 0. Farrar, after purchasing the life estate of Mary E. Dickens, and the interest of M. L. Bourne, John L. Bridgers, Jr., and Routh Hassardshort, believing that he had a good and indefeasible deed in fee simple for said real estate, purchased 41 feet of an adjoining lot owned by A. Braswell and built on the whole lot a three-story brick hotel, with stores on the ground floor.</p> <p>Routh Hassardshort died September, 1907, leaving as her only heir at law, a daughter, Kate Hassardshort, who died without issue 10 December, 1910, and Mary E. Dickens, the life tenant, died 16 December, 1916.</p> <p>This is an action by the plaintiffs Bridgers and Bourne to recover the one-third interest which Routh Hassardshort would have had in said property if she had survived the life tenant, alleging that it was not conveyed by their deeds to 0. 0. Farrar of their interest in the said property. The judge being of opinion with the plaintiff, the only issue submitted to the jury was in reference to the width of the lot.</p> <p>Judgment for plaintiffs; appeal by defendants.</p>

Appeal of caveators from Stacy, J., at January Term, 1920, of PeequimaNs. Caveat to the will of Milton R. Lowe, heard before Stacy, J., and a jury, at January Term, 1920, of Perquimans.

Appeal by defendant from Qormor, J., at tbe June Term, 1920, of GRAVEN. Tbis is an action to recover rent. Tbe plaintiff alleges in ber complaint tbat prior to 1 January, 1918, tbe plaintiff rented to tbe defendant, J. L. Hartsfield, a certain farm in Craven County for tbe year 1918 for tbe sum of $250, and tbat tbe defendant went into possession of tbe land and cultivated it and disposed of tbe crops without paying tbe rent, or accounting for tbe same. .

Civil aotioN for libel, heard on motion to discharge an attachment transferred from the clerk, before Bond, J., at September Term, 1920, of Chaven.

Appeal by all parties, except the executor and Marcom heirs, from Kerr, J., at September Term, 1920, of Wake.

Appeal by plaintiff from Daniels, J., at tbe November Term, 1919, of Lenoie. Tbis is an action to recover possession of a tract of land, and todeclare tbe plaintiff tbe owner thereof.

Appeal by both, parties from Allen, J., at chambers, 23 April, 1920, from LeNoib. This purports to be a controversy without action to determine the rights of the legatees and devisees under the will of N. J. Herring, who died 1 January, 1920.

Civil actioN beard by Kerr, J., on 16 September, 1920, from Wake, upon a demurrer to tbe complaint, and upon a motion for injunction. Tbe court sustained tbe demurrer, and denied tbe motion. Plaintiff appealed.

ApReax, by defendant from Connor, Jat the March Term, 1920, of Pitt. This is an action on an insurance policy issued by the defendant upon the life of Isaac Carson Hardy for the benefit of the plaintiff. The policy was attached to and made a part of the complaint, and contained an incontestable clause which is hereafter set out in the judgment rendered.

Civil actioN for damages for libel, tried before Devin, J., at April Term, 1920, of Hektford. Tbe action was submitted to tbe jury upon tbe following issues: “1. Did tbe defendant publish of and concerning tbe plaintiff tbe letter set out in paragraph three of tbe complaint? Answer: ‘Yes.’ “2. Were tbe matters and things published of and concerning plaintiff in said letter true? 'Answer: No.’ “3. What damage, if any, is plaintiff entitled to recover therefor?

Appeal by all parties from Kerr, J., at September Term, 1920, of Wake. Controversy without action under Rev., 1590, for sale of contingent remainder. The object of the controversy is to sell the house and lot in Raleigh devised to Mrs. Jennie Lee Rees, with remainder over, and reinvest the -proceeds to meet the contingencies stated in the said will. From the judgment all the parties appealed.

This is a controversy without action submitted under the statute (Eev., 803) for the decision of the court, upon the following facts agreed: “Mrs. Alice A. Tillett, Malvern H. Tillett and wife, Amy Tillett, plaintiffs above named, and Frank Nixon and wife, Annie Nixon, defendants above named, parties to a question in difference, which might be the subject of a civil action, hereby agree upon the following case containing the facts upon which the controversy depends, and…

Appeal by propounders from Stacy, ■/., at January Term, 1920, of Pasquotaotc. John L. Hinton, whose will is attacked, and by the judgment declared not to be bis will, died in January, 1910, leaving surviving him his widow, Sophie (since deceased), and six children, viz.: Mary F. Hinton, Sophie Ida Sawyer, Charles L. Hinton, E. Y. Hinton, W. E. Hinton, and R. L. Hinton.

Appeal by plaintiff from Daniels, J., at March Term, 1920, of Waice. This action is for damages to plaintiff and his automobile caused by a collision with one of defendant’s street cars on New Bern Avenue, just beyond Bloodworth Street, in the city of Raleigh, on 1 March, 1918.

. Appeal by defendant from Stacy, J., at February Term, 1920, of New HaNovee, for refusal to sustain tbe demurrer of tbe defendañts-to tbe jurisdiction, and to dismiss tbe action.

Appeal by defendant from Allen, J., at November Term, 1919, of Columbus. This is an action on three notes, executed 28 April, 1913, for $800 each, due respectively 1 June, 1914; 1 June, 1915; and 1 June, 1916, in purchase of a stallion. Summons was served 6 July, 1917. These notes were executed to Crawford and Ceas, and the defendants pleaded and offered proof that the signatures of the,notes were procured by fraud.

Appeal by tbe defendant from Guión, J., at September Term, 1920, Action to recover damages for burning over plaintiff’s land from a fire set out by sparks and cinders escaping from a defective engine, •catebing on a foul and inflammable right of way, and spreading tbence to tbe plaintiff’s land. Verdict and judgment for tbe plaintiff, and .appeal by tbe defendant.

<p>1. Principal and Surety — Payment—Bills and Notes — Notes—Mortgages —Evidence—Husband and Wife.</p> <p>When money is loaned to the husband for the prosecution of his business, secured by a chattel mortgage on his own property, and the wife appears on the note as a joint maker, and the note is further secured bjr a mortgage on their lands held in entireties: Held, a payment of the note by the proceeds of an agreed sale of the personal property of the husband, also discharges the mortgage on the realty, and the liability of the wife as surety on the note; and as between the original parties it may be shown that the wife signed as surety and not as a joint maker thereof.</p> <p>2. Equity — Subrogation—Mortgages.</p> <p>The attorney of a mortgagee had charge of an arrangement whereby a private sale was effected under agreement that the proceeds, sufficient for the purpose, were to discharge the mortgage debt, and the mortgagee gave a third person authority to collect the money and pay it accordingly. The attorney voluntarily guaranteed the payment of the money, and, Held, the equitable right of subrogation to the mortgagee’s right, if any, was not available to him, he not having an interest to protect, or being in any manner liable for the debt.</p> <p>S. Principal and Surety — Bills and Notes — Notes—Evidence.</p> <p>A wife signing a note with her husband for a loan made to him personally by a bank may show, as between the original parties, that she signed as surety, and this principle applies to an attorney or agent of the payee, who, fully aware of the transaction, voluntarily paid the note and claims the equity of subrogation to the rights of the payee.</p> <p>4. Principal and Surety — Equity—Exoneration—Bills and Notes.</p> <p>Where the wife is surety on her husband’s note, secured by a chattel mortgage on his property, and also by mortgage on lands held by them both in entireties, evidence of the value of the chattels covered by the mortgage, privately sold, under an agreement with the mortgagee that the proceeds should satisfy his debt, is admissible upon the question of exoneration of the surety, and the mortgagee having received the proceeds of the sale or the benefit thereof.</p> <p>5. New Trials — Appeal and Error — Substantial Injustice.</p> <p>Mere errors on the trial that have not worked substantial injustice to the appellant will not entitle him to a new trial.</p>

'Civil action, tried before Allen, J., at March Term, 1920, of Cumberland, upon the following issue: “In what amount, if any, is defendant, Mrs. Eula May. McMillan, indebted to the feme plaintiff, Mrs. Annie Theresa McMillan Elliott? Answer: ‘$3,011.35, to be paid by Eula May McMillan to Mrs. Annie T. Elliott.’ ” From the judgment rendered the defendant appealed.

CONTROVERSY without action, beard and determined by Daniels, J., at June Term, 1920, of Wake. Tbe proceeding is brought to recover $13,312.69, with interest from 15 October, 1914, money paid out by tbe plaintiff for removing car track, paving between tracks, etc., for defendant. It was agreed tbat tbis work should be done by tbe plaintiff, and if it should be decided tbat tbe defendant was liable therefor, then tbe plaintiff should recover tbe same.

Appeal by defendant from Guión, J., at the April Term, 1920, of New HaNovee. This is an action on a note under seal for $297.27, of date 23 August, 1913, secured by a mortgage, which the plaintiff alleges was executed by the defendant to J. J. Darby, and that it was transferred by indorsement to the plaintiff bank for value before maturity.

Civil action, tried before Guión, J., at Special June Term, 1920, of BeuNswick. From a verdict and judgment for the plaintiff the defendant appealed.

<p>Civil actioN, tried before Guión, J., at March Term, 1920, of New Hahoveb.</p> <p>From a judgment of nonsuit, the plaintiff appeals.</p>

Appeal by defendants from Kerr, J., at chambers, 17 September, 1920, from Waice. Tbis is a controversy without action to recover tbe purchase price of certain lots of land situate in Ealeigh, bought by tbe defendant Allen at a judicial sale. There was judgment in favor of tbe plaintiffs, and tbe defendants excepted and appealed.

Appeal by defendant from Gal-vert, J., at May Term, 1920, of ALAMANCE. This is an action for specific performance of a contract to convey land made 13 April, 1915.

Appeal by plaintiff from Allen, J., at tbe February Term, 1920, of EobesoN. This is an action to recover a lot of land and to remove obstructions therefrom, wbicb the, plaintiff alleges is a public street in the town of Lumberton. The defendant is in possession of the land and claims to be the' owner thereof. The plaintiff offered in evidence a grant to John Wilson, of date 29 April, 1768, covering the land in dispute.

<p>Civil actioN of trespass quare clausum fregit, tried before Allen, J., and a jury, at August Term, 1919, of Columbus.</p> <p>On issues joined, the jury rendered the following verdict:</p> <p>“1. Is the plaintiff tbe owner of the land in dispute? Answer: 'Yes.’</p> <p>“2. Did the defendant wrongfully and unlawfully enter upon said lands and cut and remove the timber therefrom, as alleged? Answer: ‘Yes.’</p> <p>“3. What damage, if any, is the plaintiff entitled to recover of the defendant? Answer: ‘$156.25, interest to be added.’”</p> <p>Judgment on' the verdict for plaintiff, and defendant excepted and appealed.”</p>

Civil actioN, tried before Devin, J., and a jury, at April Term, 1920, Of HERTFORD.

Civil actioN, tried before Ray, J., at April Term, 1920, of Nash, upon these issues: “1. Ts the defendant indebted to the plaintiff, and if so, in what sum? Answer: '$500.’ “2. Is the plaintiff indebted to the defendant, and if so, in what sum? Answer: Nod ” From the judgment rendered the defendant appealed.

Appeal by defendant from Ray, J., at May Term, 1920, of Foesyth. This is an action for damages sustained by plaintiff’s automobile caused by defendant’s automobile while being driven by one Clay Horn.' The defendant admitted the ownership of the automobile, and there was evidence for the plaintiff that her automobile was injured by the negligence of the driver of the defendant’s car, causing the-collision.

PROCEEDINGS, beard on motion to set aside judgment of foreclosure of mortgage on real estate, before Allen, J., at February Term, 1920, of Eobeson. On perusal of the record and affidavits filed, the court finds the facts and ordered that the judgment be set aside as between the parties because same is irregular and contrary to the course and practice of this court, and the cause be dealt with as the matter is presented in the pleadings filed in the cause.

<p>Civil actioN, tried before Long, J., at Fall Term, 1920, of Foesytii, upon appeal from his Honor, Judge Btarbuch, at the Spring Term, 1919, Forsyth County Court.</p> <p>Defendant appealed.</p>

Appeal by defendant from Bay, J., at June Term, 1920, of Eocii-INGHAM. This is an action for absolute divorce. The defendant excepts because the plaintiff was allowed to testify that he had been a resident of the State for two years next preceding the bringing of the action, and submitting an issue upon that proposition.

Appeal by defendant from Daniels, J., at March Term, 1920, of Waice. Plaintiff brought this action to recover damages for personal injuries sustained at Selma, N. 0., 27 January, 1919, as the result of a collision at a public crossing between the automobile which he was driving and a train on the track of the Atlantic Coast Line Railroad Company, which was being operated by the United States Railway Administration.

Appeal by defendant from Devin, J., at the February Special Term, 1920, of Pasquotank. Tbis is one of three actions, two to recover damages for personal injury, and tbe third, damages for loss of services of a minor son, brought on account of injuries sustained at a public crossing by the train of the defendant striking an automobile in which the plaintiffs were. The plaintiff Perry was driving the automobile. .

Appeal by defendant from Bay, J., at September Term, 1920, of G-uileoed.

Appeal by defendant from Long, J., at tbe March Term, 1920, of Forsyth. This is an action to recover damages for slander against two defendants, who are husband and wife and living together. The jury returned the following verdict: “1. Did the defendant, Sarah Newsome speak of and concerning the plaintiff, M. L. Young, the words in substance, as alleged in the complaint? Answer: ‘Yes/ “2.

Appeal by defendant from Devin, J., at Halifax. This is an action to recover damages to an automobile truck caused by collision with a train at a public crossing. There was a verdict and judgment for the plaintiff, and the defendant appealed.

Appeal by plaintiff from Ray, J., at chambers in Winston, 17 May, 1920. This is one of 19 actions in Eockingham Superior Court by 19 farmers against the Union Guano Company for damages for breach of warranty in certain fertilizers, causing them losses in their crops. After the complaint was filed, the defendants filed a petition to examine said plaintiffs to secure information on which to file its answer.

Appeal by plaintiffs from Guión, J., at Fall Term, 1920, of Cumber-LAND. Tbe action was brought to enjoin tbe levy of a school tax in Gray’s Creek Township. A restraining order was granted, and the cause came on before Judge Guión for final hearing, whereupon, after considering tbe evidence and finding tbe facts, tbe judge dissolved tbe restraining order and directed tbe commissioners to proceed witb tbe levy of tbe tax.

<p>Appeal by defendant from Kerr, J., at March Term, 1920, of DupliN.</p>

Appeal by defendant from Bay, J., at Fall Term, 1920, of Guileoed. Tbis is a proceeding in mandamus beard by bis Honor, Judge- Ray, in Guilford County Superior Court, 14 September, 1920. Tbe petition for a writ of. mandamus, duly verified, was filed by tbe plaintiff according to tbe statute. On tbe return day in apt time tbe defendant filed a petition for removal of tbe proceeding to tbe District Court of tbe United States for tbe Western District of North Carolina.

SummaRY PROCEEDINGS in ejectment under tbe Landlord and Tenant Act, tried on appeal from a justice’s court, before Guión, Jand a jury, at May Term, 1920, of New Hanover.

<p>1. 'Wills — Estates—Devise—Fee—Power of Sale — Remainders.</p> <p>A devise to a son in fee of two tracts of land, with power of sale and limitation, “but if lie die without heirs possessing the land, or either tract,” to the heirs of another of his sons, tafeen in connection with the will in this case construed as a whole: Held, a devise of the land with the power to convey a fee-simple title during the devisee’s life, which, in the event of his not conveying either or both tracks, would carry the limitation over, as directed in the will, and the expression “without heirs possessing the land” referred to the ownership of the title of the first taker at the time of his death.</p> <p>2. Same — Children—-Equal Division — Synonymous Terms.</p> <p>In construing the several devises in a will to ascertain whether or not it was the intent of the testator to divide his lands equally among his children, and to give to each the right to convey a fee, otherwise with limitation over: Held, under the will in this case, the terms, “if she died without heirs of her body, and owning the land,” then over, and “to a son in fee if he die without heirs possessing the lands,” etc., then over does not indicate that the testator intended a different meaning by a difference in phraseology, and the terms are synonymous.</p>

Appeal by plaintiff from Alim, J., at April Term, 1920, of OumbeR-land. Action, to remove a cloud upon title and to recover land. Judgment for defendant, and plaintiff appealed. The case was as follows: James Carroll, Sr., died leaving a will in which, be devised, among other things, two tracts of land to his son, James A. Carroll.

Civil ACTION, tried before Calvert, J., and a jury, at March Term, 1920, of DURHAM.

Appeal by defendant from Lane, J., at Fall Term, 1920, of Stokes. This is a special proceeding for partition of land, wbicb partition was agreed to, and tbe lands bave been divided. Tbe, matter presented on tbis appeal comes up upon exceptions to report of referee passing upon tbe rents and profits.

MqtioN to set aside a decree in a suit for divorce, beard by McElroy. J., at May Term, 1920,. of Guilford. Tbe motion was denied, and tbe defendant appealed.

<p>Appeal by defendant from Bay, J., at September Term, 1920, of Guilford.</p> <p>This is an action brought in the Superior Court of Guilford County to set aside a judgment rendered in Granville County in favor of the defendant in this action against the 'plaintiff herein as indorser on a note, on the ground that the summons in the action was not served on the defendant, although the return of the sheriff shows service.</p> <p>The plaintiff also alleges that the judgment has been docketed in Guilford County, and is a cloud on his title to a tract of land, and facts which would constitute a meritorious defense to the original action.</p> <p>The defendant demurred to the complaint upon the ground that it does not state a cause of action, contending that the remedy of the plaintiff is by motion to set aside the judgment.</p> <p>The demurrer was overruled, and the defendant excepted and appealed.</p>

Appeal by plaintiff from McMroy, J., at August Term, 1920, of UNION. The defendant in this action heretofore instituted an action against the plaintiff herein to restrain him' from the erection of a gin stand by reason of a written agreement which the court held invalid because in restraint of trade. Shute v. Shute, 176 N. 0., 462. Tbe restraining order was dissolved.

Civil ACTION pending in the Superior Court of AnsoN, heard by McElroy, J., at October Term, 1920, upon a motion of the defendant to remove the cause to the county of Mooee. The court allowed the motion, and the plaintiff appealed. The judge found the following facts: That the defendants, after the filing of the complaint, and before the time for answering expired, filed their demand in writing to remove the cause to the Superior Court of Moore County.

Appeal by both parties from Guión, Jat October Term, 1919, of Waxe. The Hintons and Mr. and Mrs. Watson, owners of the land described' in tlieir deed, conveyed tbe timber thereon of a certain kind and size to John Vinson on 23 April, 1907, the same to be cut within eight years from date. There were other provisions in the deed, which may be-omitted as not being material.

CONTROVERSY submitted without action, from- WaKE. Appeal by plaintiff from Brewer, J., 23 September, 1920. This is an action to prevent the collection of a tax, alleged to be invalid, heard on the following agreed statement of facts: “1. That the Legislature, at its Session of 1913, passed an act entitled ‘An act to incorporate Wake Forest Graded School District.’ “2.

Appeal by defendant from McElroy, J., at May Term, 1920, of GrUILFORD.

Appeal by plaintiff from Bay, J., at tbe June Term, 1920, of Roce-INGHAM. This is an action to recover damages by the plaintiff for injuries sustained by him in consequence of the alleged negligence of the defendant. The defendant denies negligence, and pleads contributory negligence.

<p>Appeal by defendant from an order of Ray, J., made at September Term, 1920, of Gtotleoed.</p>

<p>1. War — Railroads—Powers—State Government — National Government.</p> <p>The authority, where war exists, to exercise all those extreme sovereign ' powers under the rule of war, recognized by the civilized world, is vested in Congress by the Constitution of the United States, with all means, not prohibited, that are appropriate to that end; and where it, legally exercised, comes in conflict with a State regulation, the power of the National Government is paramount.</p> <p>3. Same — Courts—Conflict of Powers.</p> <p>It is within the peculiar province of the courts to see that the Federal and State Governments, in their original dual form, each exercise the powers and duties solely apportioned to it, so that the one will not interfere with the other where it is supreme, and the courts, wherever possible, will adopt a rule of construction which will prevent conflict between National and State authority.</p> <p>3. War — Railroads—Powers—Federal Government — State Government— Statutes — Venue—Orders of Director General.</p> <p>The act of Congress placing common carriers under the control of the United States Government as a war measure, by providing that “actions at law or suits in equity may be brought by and against such carrier and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier-no defense be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal Government,” does not conflict with our State statute as to venue in a civil action against the carrier, Rev., 424; and if the orders of the Director General, Nos. 18 and 18a, requiring all suits or actions against carriers to be brought in the county or district of the plaintiff’s residence are not authorized by the act of Congress, they are void as in contravention of the State law.</p>

Civil actioN, tried on appeal from a justice’s court before Lana, J., and a jury, at May Term, 1920, of MecexeNBUBG. Tbe action is to recover tbe sum of $200 for breach of contract of an alleged express warranty in sale of mule by defendant to plaintiff. Tbe summons returnable to tbe justice stated $200 as tbe sum demanded for tbe alleged breach of contract.

<p>Civil action, tried before Bryson, I., at October Term, 1920, of Mecklenburg.</p> <p>The jury trial was waived and tbe matter submitted to tbe court. Tbe question presented arises upon a construction of tbe will of Laura M. Brown. From tbe judgment rendered tbe plaintiffs and tbe defendant Bedford J. Brown appealed to tbe Supreme Court.</p>

<p>1. Motions — Special Appearance — Merits.</p> <p>A defendant entering a special appearance for tlie purpose of dismissing tlie action must confine liimself to jurisdictional grounds, and to obtain the protection of his special appearance he must not plead to the merits of the cause or waive the court’s jurisdiction by asking any favor, such as a continuance, or the like.</p> <p>3. Courts — Amendments—Parties—Justices’ Courts — Superior Courts.</p> <p>The court may allow an amendment to process and pleadings, within its statutory power, either before or after judgment, to correct a misnomer of parties or a mistake in any other respect, by inserting other material allegations when they do not substantially change the claim or defense; or to make the pleading or proceeding conform to the facts proved, Pell’s Revisal, sec. 507; and especially so in the Superior Court on appeal from a justice of tlie peace. Rev., 1467 (Rule II).</p> <p>3. Appeal and Error — Evidence—Superior Coui’t — Discretion.</p> <p>The Supreme Court, on appeal, may not pass upon the weight or credibility of the evidence introduced on tlie trial of an action, and will not disturb the judgment appealed from where there is evidence to support it, except for errors of law under exceptions properly taken and presented.</p> <p>4. Actions — Stay Bonds — Principal and Surety.</p> <p>The plaintiff may recover against the principal and surety on defendant’s bond given to stay execution, in accordance with the express covenant required by the statute.</p>

Appeal by plaintiffs from Connor, J., heard at chambers, 9 October, 1920, on case agreed, from Edgecombe. This is an action to restrain the sale of bonds at less than par, as the defendant was authorized to do by an act of' the General Assembly enacted at the Special Session, 1920. There was a judgment in favor of the defendant, and' the plaintiff appealed.

<p>Deeds and Conveyances — Rule in Shelley’s Case — Heirs of the Body— Estates.</p> <p>An estate to S. “for life, and after her death to the heirs of her body in fee, to their only use and behoof,” in the habendum clause of the deed, conveys to S. a fee-simple estate, under the rule in Shelley’s ease, and the fact that this same language appears in the introductory part does not bring the case without the rule, there being no expression elsewhere in the deed to affect this interpretation.</p>

Appeal by plaintiff from Daniels, J., on a controversy submitted by action, from WayNE, beard 7 October, 1920. Tbis is an action to restrain tbe sale of certain municipal bonds, tbe plaintiff alleging tbat tbe act of tbe General Assembly authorizing tbe sale of tbe bonds is unconstitutional and void. Tbe important and material facts involved in tbis controversy are : 1.

Appeal by defendant from order of Bay, J., on 10 May, 1920, from BoCKINGHAM. This is a proceeding commenced under cb. 24 of tbe Public Laws of 1919, amendatory of sec. 1567 of tbe Eevisal, for tbe purpose of securing to tbe plaintiff subsistence for berself and children, together with counsel fees. From an order allowing subsistence and counsel fees, made by bis Honor, Judge Bay, in the- Superior Court of Boekingham County, tbe defendant appeals.

Appeal by defendants from McEiroy, J., at April Term, 1920, of Stokes. Tbis was an action of ejectment, tried at tbe Spring Term, 1920, of Stokes, before McEiroy, J., and a jury.

Civil action, beard oil tbe pleadings and tbe admissions contained fberein before Bryson, J., at October Term, 1920, of MeciclenbuRG.

Appeal by defendant from Lane, Jat tbe Spring Term, 1920, of MeckleNbukg. This is an action to recover tbe balance due on certain promissory notes.

Appeal by defendant from Lome, Jat September Term, 1920, of RANDOLPH. At March Term, 1918, there was an action pending in the Superior Court of Randolph brought by Mattie L. Morris against her husband, J. B. Morris, the plaintiff in this case, asking for a divorce from bed and board, and to be allowed to live separate and apart from her husband.

<p>Appeal from Lane, Jat September Term, 1920, of RowaN.</p> <p>Tbe facts dedueible from tbe plaintiff’s testimony and tbe testimony of tbe plaintiff’s witnesses are as follows: Plaintiff, fifteen years of age, was employed by tbe defendant to work at tbe defendant’s railroad shops at Spencer, N. C. Plaintiff lived in Salisbury, N. C., and was carried to and from bis place'of employment by tbe defendant on an employee’s train, known as tbe “shop train,” consisting of cattle cars, converted into cars for employees to ride in, which were without platforms, steps, and doors, and were not equipped with bell ropes or signal cords, though there was a narrow entrance on the side of the car near its end. On the afternoon of 30'May, 1918, plaintiff boarded the rear car, or supply car, of the shop train to return home. The shop train proceeded toward Salisbury, stopped at the defendant’s transfer shed, and plaintiff was requested by a Mr. Litton, who had charge of the supply car, and who had heen the plaintiff’s foreman that day, to carry a rag wringer to the transfer shed office. Plaintiff immediately alighted from the supply car, ran to the transfer shed office, delivered the rag wringer, and ran hack to the train, which was then slowly moving off. No hell was run and no signal of any kind given for the starting of the train. Plaintiff boarded the running hoard of the nearest car, the fourth car from the rear car of the train, and endeavored to get in it, but was unable to do so on account of the narrow passageway being crowded and blocked by employees. The speed of the train rapidly increased to a rate of twenty miles an hour, and after riding a distance of approximately three hundred yards, plaintiff was struck by a switch post four and a half feet high, standing eighteen inches from the running hoard, and knocked beneath the wheels of the train. Plaintiff’s left foot was crushed six inches above the ankle, and his right foot severely injured. The shop train ran by the plaintiff. The rear car stopped sixty feet from where plaintiff lay beside the track.</p> <p>The jury returned a verdict finding negligence of defendant, contributory negligence of plaintiff, and assessed damages at $4,000. Judgment thereon, and defendant appealed.</p>

<p>Appeal from Lane, J., at July Term, 1920, of MoNtgomekt.</p> <p>This is a motion to set aside a judgment for excusable neglect. Tbe original motion was also based on another ground, it being that the judgment was irregularly taken, having been rendered contrary to the course and practice of the court, but the judge finds as a fact that at the hearing the only ground alleged was excusable neglect. He found the facts and refused to set aside the judgment.</p> <p>The action .was brought by the plaintiff to recover a five-passenger Overland automobile, and under claim and delivery proceedings the car was taken from the defendants and delivered to the plaintiff, who filed no complaint and paid no further attention to the case. Defendants answered by setting up a counterclaim based on false representations as to the condition of the car, and false warranty. Issues were submitted to the jury, and they found that plaintiff did not own the car; that he had made the false and fraudulent representations which deceived the defendants and induced" them to exchange a mare with buggy and harness and $250 “as boot,” for the car, and assessed tbeir damages at $305. Judgment was entered upon the verdict, and plaintiff appealed.</p>

<p>Civil ACTION, beard and decided on case agreed and by consent before McElroy, J., at chambers in Asheville, N. C., on 2 November, 1920.</p> <p>The action is to recover the purchase price of municipal bonds of the city of Hendersonville to the amount of $62,000, sold or contracted to defendant company by plaintiff at a stipulated sum on 18 September, 1920, and purporting to have been issued under the Municipal Finance Act, Consolidated Statutes, ch. 56, subch. 111. Defendant refuses acceptance and payment on the alleged ground that the sale of said bonds has not been properly advertised as the law requires. As chiefly pertinent to the question presented, it is admitted in the case agreed: (a) “That prior to the sale the said bonds and the proposed sale thereof were duly advertised in the Hendersonville Hems, a newspaper published in the city of Hendersonville, N. C., and having general circulation in said municipality.” (b) That said sale of said bonds was not advertised “in a financial paper or trade journal published within the State of North Carolina for the reason that no such financial paper or trade journal exists or-is published within the State,” which regularly publishes notices of the sale of municipal bonds, (c) That it is agreed that there is no financial paper or trade journal published within the State which regularly publishes' notices of such sales, etc.</p> <p>Upon the facts submitted, the court being of opinion that these bonds would constitute valid obligation of the city, entered judgment that the defendants comply with the contract, and thereupon defendant excepted and appealed.</p>

Appeal by both, parties from Shaw, J., at September Term, 1919, of MeCKLENBITBG. At February Term, 1917, of Mecklenburg, Paul Chatham and the Charlotte Rapid Transit obtained judgment against the defendant, the Mecklenburg Realty Company, for $10,000 and interest from date of judgment.

Appeal by defendant from Harding, J., at August Term, 1920, of Yancey. In 1885 in partition proceeding a decree was entered for the division of the land of Silas McCourry, deceased, among his children.

<p>Appeal by defendant from Long, J., at April Term, 1920, of Ruthek-eokd.</p> <p>Tbis action is to recover damages for tbe negligent burning of tbe plaintiff’s residence and furniture. There is no contest as to tbe plaintiff’s title to tbe property burned, or as to tbe value thereof. Tbe assignments of error are tbe refusal of a motion for a nonsuit, and for tbe refusal of a prayer to instruct tbe jury as prayed, that “if they believe all tbe evidence, tbe defendant at tbe time of tbe fire bad a spark arrester such as was at that time approved and in general use, as required by law, and that tbe engine was being bandied by its operatives in a competent and skillful manner by competent and skillful operatives.”</p> <p>Verdict and judgment for plaintiff; appeal by defendant.</p>

<p>Deeds and Conveyances — Plats—Streets—Lots—Purchaser—Dedication.</p> <p>Where the owner of land plats it into lots, streets, etc., states them off in accordance with the plat, and offers the lots for sale as so marked, and a purchaser buys one of these lots in accordance with the representations thus made, he acquires the right to the use of the streets, which will not be lost as against other purchasers in the absence of his consent, whether the dedication of the streets has been accepted by the municipal authorities or not; and a purchaser of such lots may not close a street beneficial to the use or enjoyment by another such purchaser.</p>

Appeal by defendant from Lane, J., at May Term, 1920, of Mece-LENBURG.

Appeal by defendant from Harding, Jat tbe May Term, 1920, of Caldwell. This is an Action to recover $324 alleged to be due by contract. Tbe defendant, a foreign corporation, entered a special appearance, and moved to dismiss upon tbe ground tbat H. T. Leslie was not a managing agent of defendant, and upon tbe bearing of tbe motion tbe following facts were found and tbe following order made: “1.

Appeal by defendant from Connor, J., at February Term, 1920, of CRAVEN. Tbis is a civil action to settle tbe title to tbe land in dispute, tbe parties agreeing as to tbe facts of tbe case. It will suffice to state as briefly as we can tbeir respective contentions, as tbey will fully disclose tbe nature of tbe controversy.

<p>Explosives — Negligence—Defenses—Unrelated Evidence — Wires.</p> <p>When there is evidence that the defendant was negligent in keeping large quantities of gasoline at its distributing plant, requiring a watchman, which it did not have; that a stream of gasoline was seen flowing from the defendant’s warehouse under such surroundings as would make an explosion probable, and that the plaintiff’s injury was proximately caused by an explosion in the defendant’s warehouse, unconnected evidence that a piece of wire had been found near the defendant’s warehouse is too remote or conjectural to be admitted on the theory that the warehouse had been dynamited by others for whose acts the defendant was not responsible.</p> <p>Note. For further digests, see Stone v. The Texas Co., and Newton v. The Texas Co.</p>

Appeal by defendant from McElroy, Jat Mareb Term, 1920, of Guileoed.

Appeal by defendant from Shaw, J., at April Term, 1920, of G-uilpobd. Tbe plaintiff sued to recover damages for injuries sustained from an explosion on defendant’s premises, in tbe city of Greensboro, on 3 May, 1919, it being tbe same explosion described in Stone v. The Texas Go., decided at this term.

Civil aotioN, tried before Webb, J., at October Term, 1919, of Ruth-eefoRD, upon these issues: “1. Was Fred Pendergrast a registered qualified voter, with a right to vote in the special school election held on the ‘Edwards’ Special-tax District, on 17 May, 1919 ? Answer: ‘No.’ ' “2. Was W. O. Mitchum a qualified registered voter, with a right to vote in the special electipn held in ‘Edwards’ Special School-tax District on 17 May, 1919 ? Answer: ‘No.’ “3.

Civil actioN, tried before Harding, J., at April Term, 1920, of Avery, upon an agreed statement of facts. Ilis Honor rendered judgment in favor of the plaintiff, from which defendant appealed.

Appeal by defendant from Harding, J., at August Term, 1920, of YaNCEY. Plaintiff sued to recover damages for a personal injury, alleged to bave been caused by negligence of the defendant, who was engaged in operating a band sawmill, in the manner described by the witnesses.

ÁPPEAL'by plaintiff from Long, J., at May Term, 1920, of HeNderson.

<p>1. Principal and Surety — Judgments—Payment—Assignment—Trusts— Ti'ustees — Liens.</p> <p>A surety defendant in a judgment with the principal according to principles heretofore obtaining in North Carolina, without the aid of statute, in order to preserve the judgment lien and enforce it for his reimbursement, is required on payment to have it assigned to some third person for his benefit, and, in case of collateral security, he is in such instances also entitled to the full equitable doctrine of subrogation; but if he pays the judgment debt on which he is himself bound, without having it assigned, as indicated, he then becomes the simple contract creditor of his principal.</p> <p>2. Same — Statutes.</p> <p>The Laws of 1919, ch. 194, gives the right of a surety against whom, with the principal debtor, a judgment has been obtained, the right, upon paying the judgment, to demand of the judgment creditor that the judgment be transferred to a trustee for his benefit, providing that the lien shall be kept alive for his benefit, and that the judgment debtor so refusing shall not thereafter be entitled to execution.</p> <p>3. Same — Status Quo.</p> <p>Under a proper interpretation of the relevant parts of ch. 194, Laws of 1919, it is Held,, that the refusal of the judgment creditor to transfer the judgment to some third person to preserve the lien thereof for the benefit of surety, tendering payment of the same, means from his final refusal to do so, and not when the status of the parties remain the same, and the judgment creditor subsequently offers to, and stands willing to, assign, the judgment, as the statute requires.</p> <p>4. Constitutional Law — Statutes—Judgments.</p> <p>Where a statute is susceptible of more'than one construction, that which will reconcile it to the organic law will be adopted; and, SemWe, in this case a different construction put upon eh. 194, Laws of 1919, than that the judgment creditor will not lose the right to execution thereunder, if after-refusing to make the assignment of the judgment he is afterwards willing to comply, and offers to do so when the status, of the parties remain unchanged, is contrary to the construction guaranteeing protection to the rights of existing judgment creditors.</p> <p>5. Same — Remedy—Adequate Relief — Statutes.</p> <p>While a judgment is a feature of the remdy sought in an action, and is to some extent subject to legislative regulation, the rights accruing thereunder cannot be entirely withdrawn or so impaired or interfered with as to leave the owner without adequate relief, as in this case, to destroy the issuing of an execution before the status of the parties is changed, or their rights changed or lost. Oh. 194', Laws of 1919.</p>

Appeal by plaintiff from Harding, J., at the April Term, 1920, of Mitchell. This is an action to recover the possession of land, and to determine' the rights of the plaintiff and the defendant therein. Prior to 4 January, 1915, the plaintiff, T. C. Burleson, was the owner of the land, and on that day he and the defendant executed a deed to George W. Burleson and three others, in which the grantors are described as T. 0.

Civil actioN to recover balance alleged to be due plaintiffs for material and labor, beard before Long, J., on facts agreed upon, at Fall Term, 1920, of HeNdeesoN.

<p>1. Courts — Appearance—Jurisdiction—Motions.</p> <p>Where a nonresident defendant enters a special appearance and denies the jurisdiction of the court, it is the court’s first duty to ascertain its own jurisdiction to.try and determine the case.</p> <p>2. Same — Attachment—Intervenor—Ownership— Issues— Proceedings in Rem — Nonresidents.</p> <p>Where proceedings in attachment are brought in an action for damages for breach of contract, and the funds attached are in a local banli, collected upon a draft sent to it by and drawn to the order of a foreign bank, it is the duty of the foreign bank, and other claimants to the fund, to intervene and assert their rights so that the issue as to ownership may be determined, otherwise this being of the nature of a proceeding m rem, the court would acquire jurisdiction to the extent only of the property attached, and a personal judgment against the nonresident defendant may not be properly rendered.</p> <p>3. Same — Parties.</p> <p>Where the proceeds of the collection of a draft payable to the order of a foreign bank has been attached in a local bank by the plaintiff as the funds of the nonresident bank, in an action for damages for breach of contract, and the issue of ownership has not been determined, and the defendant, the defaulting party to the contract, enters a special appearance and moves to dismiss for the want of jurisdiction of the court, on the ground alone that the proceeds of the draft were owned by and payable to the foreign bank, not connected with the contract, .for the breach of which the plaintiff claims damages: HelCL, it was unnecessary that the foreign bank, which was not connected with the contract or its breach, should be made a party, and service by. publication having been made, and the court having jurisdiction over the subject-matter by the proceedings, quasi in rem, the defendant’s motion to dismiss, for want of the court’s jurisdiction, was properly denied.</p> <p>4. Attachment — Funds—Ownership—Intervenors.</p> <p>It is erroneous for the trial judge to vacate an attachment regularly issued and levied on the funds in a resident bank claimed by the plaintiff to belong to its nonresident debtor, but paid upon a draft drawn to the order of a foreign bank, without having determined the issue as to the ownership of the funds attached, if the question had been properly raised by the interpleading- of the foreign bank.</p> <p>5. Same — Nonresidents—Bonds—Action.'</p> <p>The court, under the facts in this case, having vacated an attachment on the funds in a local bank derived from the payment of a draft made payable to the order of a foreign bank, all being parties to the action, wherein attachment was levied on the funds alleged to have belonged to the other defendant in an action for breach of contract, without the determination of the issue as to ownership of the funds, and haying directed that the funds be paid to the foreign hank upon its giving bond: Held, should the issue arise, and be determined in the plaintiff's favor, and the funds paid as allowed by the judgment, the plaintiff has a right of action on the bond required to be given by the resident bank in lieu of the funds held by it, which were released.</p> <p>6. Courts — Jurisdiction — Special Appearance — General Appearance — Pleadings — Waiver.</p> <p>Where, after entering a special appearance and pleading to the jurisdiction of the court, a nonresident defendant files an answer to the merits, the filing of the answer is equivalent to a general appearance, and the court may proceed to hear and determine the matter as if the said defendant had been personally served with process.</p>

Peoceedings for contempt, or as for contempt, beard before Harding, J., bolding tbe courts of Eighteenth Judieial District, at the courthouse at Hendersonville, N. C., 6 August, 1920, the charge being that H. M. Flack, defendant, Sallie Flack, his mother, etc., in disobedience of the decrees and orders of the court made in the cause awarding the minor children of the marriage to plaintiff was willfully disobeying and obstructing and hindering the due execution of said orders…

Civil action, tried before Long, J., at August Term, 1920, of Buncombe, upon these issues: “1. Did the defendant negligently create a condition about its transformer bouse wbicb enabled the intestate, William Lanning, to come into contact with plaintiff’s wires, as alleged in the complaint? Answer: ¿Yes.’ “2. If so, was such negligence of defendant the primary cause of said William Lanning receiving injuries resulting in death, as alleged in the complaint? Answer: ‘Yes.’ “3.

<p>Civil action, tried before Webb, J., at June Term, 1920, of BttN-oombe, upon these issues:</p> <p>“1. Is the plaintiff estopped by the report of J. M. Carver from claiming that part of said land shown on the court map by the lines 1 to 2, 2 to 3, 3 to 4, 4 to 5, 5 to 6, and 6 to 1 % Answer: ‘No.’</p> <p>“2. Is the plaintiff the owner of the land described in the complaint and shown on the court map by the lines A to B, B to C, 0, to D, D to E, and E to A? Answer:‘Yes’.”</p> <p>From the judgment rendered the defendant appealed.</p>

Appeal by defendant from Long, J., on 2 August, 1920, from Buncombe. This is an action for divorce, which comes here by appeal from an order made upon motion by the plaintiff for alimony and counsel fees. Plaintiff alleged willful abandonment of her by the defendant without just cause, cruel treatment, failure to support, and other matters in aggravation, and, among them, that he left her without any means for her support, and that she had none of her own.

Civil actioN, instituted in tbe superior Court of Wake by Allen Brothers, a copartnership, composed of Daniel Allen, Frank Allen, and W. Gr. Allen v. Tbe Ealeigb Savings Banks & Trust Company, executor of tbe estate of B. Gr.

Civil actioN, tried before Harding, J., and a jury, at August Special Term, 1920, of Yaetoey. The action is to recover damages for physical injuries caused by alleged negligence of defendant company in not properly safeguarding its machinery and in permitting plaintiff, a child twelve years of age, or little over, to go about same whereby he was caught in the cogs of certain portions of the machinery and received painful and permanent injuries to plaintiff’s great damage.

<p>1. Removal of Causes — Federal Statutes — Partnership—Corporations— Parties — Nonresidents—Diversity of Citizenship — Torts—Contracts— Breach. •</p> <p>Where one of the plaintiffs to a suit is a nonresident, as also the defendants, it may not be removed to the Federal Court by the defendants on the ground of diversity of citizenship; and this applies when the. action is for damages for breach of contract, brought by several members of a partnership, who form an incorporated company after the occurrence of the breach of contract sued on.</p> <p>2. Same — Courts—Jurisdiction.</p> <p>Upon a motion to remove a cause from the State to the Federal Court, on the ground of diversity of citizenship, where it appears that the defendants were nonresidents, and the plaintiffs were a partnership, with.one of its members a nonresident, and the action is for breach of contract, the mere fact that one of the plaintiffs signed the contract as “president” does not preclude the State court from inquiring into the fact of incorporation, and retaining the cause for a determination of this question.</p> <p>3. Removal of Causes — Federal Statutes — Partnership—Corporations— Diversity of Citizenship — Courts—Jurisdiction.</p> <p>A partnership, by holding itself out as a corporation, does not thereby convert itself into one, and on petition to remove the cause to the Federal Court, for diversity of citizenship, wherein this question arises, the question of the plaintiff’s fraud in making a misjoinder of parties to retain the jurisdiction of the State court, is one for the determination of the State court, and the cause is not at once removable to the Federal Court as a matter of the defendant’s right under the Federal law.</p>

Appeal by plaintiff from Webb, J., at April Term, 1920, of Madison. Appeal by tbe plaintiff from a judgment of nonsuit. In 1911 tbe defendant company constructed a concrete dam 32 feet high across tbe French Broad River, two miles below Marshall, and built a power bouse for tbe generation of electric power. Tbe defendant bought from tbe owner 3% acres from tbe upper end of a tract of land on tbe south side of tbe river just below its dam and powerhouse.

Civil actioN or proceedings, béard on tbe pleadings on motion by defendant to dismiss, before Webb, J., at June Term, 1920 of BuNcombe. Tbe preliminary records and entries were not presented, there being formal admission made that tbe court bad properly acquired jurisdiction of tbe cause and tbe parties. On consideration of tbe pleadings and tbe facts admitted therein, tbe court entered judgment dismisssing tbe cause and plaintiffs excepted and appealed.

Civil ACTION, tried before Bryson, J., and a jury, at April Term, 1920, of Cherokee. The action is to recover damages for the alleged wrongful killing of the intestate, an employee of the manufacturing company and by the concurring negligence of the two defendants, the manufacturing company and the railroad company, while he was engaged as such employee of the manufacturing company on their yards at Andrews, N. C.. in August, 1917.

<p>Civil aotioN, tried before Bryson, J., and a jury, at Special Term, 1920, of Cheroxee.</p> <p>The purpose of action is chiefly to have declared void and set aside a deed from W. L. F. Woods and wife to Worth Woods on the ground that said deed, though appearing on the registration book, was never in fact delivered. There are also allegations in the complaint that the plaintiff being tbe real owner and in possession of the land, the defendant has wrongfully committed trespass thereon to plaintiff’s damage. At the close of the testimony, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.</p>

Appeal by defendant from McElroy, J., at Spring Term, 1920, of Stokes. Held: and-so adjudged, that under item 2 of the will the division must be made per stirpes and not per capita. Defendants appealed.

Appeal by defendant from Harding, /./at August Term, 1920, of YaNCEV. Plaintiff states two causes of action, in tbe first of wbicb be alleges negligence of tbe defendant in failing to furnish a safe place to work. Tbe defendant required tbe plaintiff to work on a.lumber dock, which was about twelve feet above tbe ground on a frame of studding, which bad been floored and a steel rail track, laid on top of this flooring, upon which track a lumber car or truck was operating.

Afkeai by defendant from Long, Jat tbe October Term, 1920, of BUNCOMBE. Tbis is an action to recover damages for personal injury. Tbe negligence complained of is tbat tbe defendant placed a water meter box on one of its sidewalks two or three inches below tbe surface, witb an insecure covering, and permitted dirt and leaves to accumulate tbereon.

Appeal by plaintiff from Bryson, J., at June Term, 1920, of G-raham. Tbis is an action to recover damages for a trespass on lands embraced in grant No. 10391, entry No. 1178, as shown on tbe court map. Tbe grant was issued to J. B. Caringer and W. T. Shuler on 12 December, 1890. Plaintiffs are tbe heirs at law of W. T. Shuler.

Appeal by plaintiff from Ray, J., at the September Term, 1919, of Geaham. This is an action to recover land, in which there was a judgment for the defendant, and the plaintiff appealed.

Appeal by defendant from Devin, J., at November Term, 1919, of Edgecombe. Motion to dismiss. This was an action for partition at November Term, 1919, of Edgecombe. By consent, the cause was heard at chambers, 15 December, 1919, and notice of appeal given, bond being fixed at fifty dollars. Tbe “case on appeal” was settled by tbe judge 9 January, 1920. Tbe appeal was not docketed bere at spring term, nor until 3 August, 1920.

, and a jury, at April Term, 1920, of WASHINGTON. From judgment for plaintiff, the defendant appealed. The following are the issues passed on by the jury: “1. Was plaintiff, H. A. Oliver, injured by the negligence of defendant, Wilts Yeneer Company, as alleged in the complaint? Answer: ‘Yes.’ “2. Did plaintiff, by Ms own negligence, contribute to Ms injury, as alleged by defendant? Answer; ‘No.’ “3.

Appeal by plaintiff from Bond, J., at tbe September Term, 1920, of VaNce. This is an action on a note for $500 secured by chattel mortgage. Tbe defendants admitted tbe execution of .the note and mortgage, but contended that they were given as collateral to secure an account for. supplies for 1915. Tbe male defendant owed a balance on account for 1914.

Appeal by plaintiff from Devin, J., at tbe April Term, 1920, of Hebteobd. This is an action begun before a justice of tbe peace, and beard on appeal before Devin, J., and a jury. In tbe trial before tbe justice of tbe peace, bad on 20 June, 1917, judgment was rendered against tbe defendant for tbe sum of $188.75, with interest thereon from that date, and costs.

Civil actiok, tried before Kerr, J., at April Term, 1920, of ONsnow, upon this issue: “Are the plaintiffs the owners and entitled to the possession of the lands described in the complaint? Answer: No.’ ” From the judgment rendered the plaintiffs appealed.

Appeal by defendant from Daniels, J., at May Term, 1920, of Wake. Tbis was an action by R. T. Yann and wife, Ella R. Yann, against tbe Southern Railroad and Walker D. Hines, Director General of Railroads, and tbe Southern Express Company, for personal injuries sustained by Ella R. Yann by tbe alleged negligence of tbe defendants, caused by tbe falling of a tongue of a truck operated at tbe union station in Raleigh in March, 1918.

<p>Appeal and Error — Docketing Transcript — Appeal Dismissed — Rules of Court.</p> <p>It is tbe personal duty of appellant to see that tbe transcript of bis appeal is docketed seven days before beginning tbe call of tbe docket of tbe-district in tbe Supreme Court to wbicb it belongs, etc., Rule 5, wbicb neglect of counsel or delay of tbe clerk of tbe superior Court will not excuse and no later time is given because two districts are beard in one week.</p>

Appeal by defendant from Daniels, J., at the second January Term, 1920, of Waite. ■ This is an action to recover damages for breach of contract to build a tobacco barn for the plaintiff, who was a tenant on the land of the defendant Privett. There was a verdict and judgment for the plaintiff, and the defendant áppealed.

Appeal by defendant from Daniels, J., at the January Term, 1920, of FEANKLIN. This is an indictment for abandonment. The State offered evidence, and the defendant testified in his own behalf. At the conclusion of the evidence the record states that the judge said: “Gentlemen, this ends the case. On the testimony of the witness himself he is technically guilty. Defendant excepted. The judge then directed the clerk to enter a verdict of guilty. The defendant excepted.

, at April Term, 1920, of New Hanover. Tbe following issues were submitted: “1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: No.’ “2. Wbat damages, if any, is tbe plaintiff entitled to recover?” From judgment rendered plaintiff appealed.

Appeal by plaintiff from Guión, J., at tbe April Term, 1920, of Columbus. Tbis is an action to recover tbe value of certain baggage.

Caveat to a will, tried on tbe general issue of devisavit vel non, before Calvert, J., and a jury, at June Term, 1920, of HuehaM. Verdict and judgment establisbing tbe will, and tbe caveator excepted and appealed. •

Appeal by defendant from Allen, J., from denial of motion to set aside a judgment, beard at Hillsboro, 8 September, 1919, from GbaN-VILLE. Tbis is a motion to set aside a judgment rendered at July Term, 1920, for mistake and excusable neglect. After bearing affidavits and arguments of counsel tbe court finds tbe following facts: 1.

Apreal by defendant Saunders from Bay, J., at April Term, 1920, of Sueet. The plaintiffs brought this action against Emma Apperson and R. R. Saunders to recover judgment on a note of $210, executed by Emma Apperson, payable to E. E. Saunders and endorsed by E. E. Saunders, after maturity, to the plaintiffs. The defendant, Emma Apperson, filed her answer, alleging fraud, among other defenses, on the part of her co-defendant, E. E. Saunders.

<p>Appeal and Error — Objections and Exceptions — Evidence—Motions—Non-suit — Instructions.</p> <p>Tbe question of the sufficiency of the evidence to sustain a verdict against the defendant in an action against a register of deeds for wrongfully issuing a marriage license, should be raised by a motion to nonsuit or a proper prayer for instruction, for it to be considered on appeal.</p>

Appeal by defendant from Adams, J., at tbe July Term, 1920, of' BlCHMOND. Tbis is an indictment charging tbe defendant with tbe sale of intoxicating liqu.or. Tbe defendant was convicted and sentenced to work on tbe roads of Bichmond County for twelve months, and appealed. There was direct evidence of a sale of intoxicating liquor, as charged in the indictment.

Appeal by defendant from Calvert, J., at tbe June Special Term, 1920, of DURHAM. This is an indictment against three defendants for tbe larceny of tobacco, tbe property of tbe Imperial Tobacco Company. At tbe conclusion of tbe evidence there was a motion for judgment of nonsuit, wbicb was overruled, and tbe defendants excepted. There was a verdict of guilty, and an appeal from tbe judgment pronounced thereon to tbe Supreme Court.

MotioN in tbe canse for judgment, according to tbe opinion of tbe Supreme Court, beard before Adams, J.; from Caldwell. Tbe defendant tendered a judgment, wbicb tbe court refused to sign. From tbe judgment rendered tbe defendant appealed.

<p>Civil actiON, tried before Webb, J., at July Term, 1920, of Haywood. Tbe motion to nonsuit was sustained. Plaintiff appealed.</p>

Appeal by defendants from Lane, J., at tbe September Term, 1920,» of BowaN. Tbe defendants were convicted of tbe crime of fornication and adultery and appealed from tbe judgment pronounced on tbe verdict. Tbe exception relied on is to tbe refusal to nonsuit.

Appeal by defendant from Qrcmmer, •/., at tbe March Term, 1920, of PasquotaNk. Tbe defendant was convicted upon an indictment containing two-counts, one charging tbe breaking and entering a certain store with intent to steal, and tbe other charging tbe stealing of certain goods from said store, and appealed from tbe judgment pronounced on tbe verdict.

<p>Judgment — Criminal I/aw — Suspension of Judgments — Violation of Conditions — Trial Judge — Discretion—Trial by Jury — Appeal and Error.</p> <p>Tbe proceedings of tbe trial judge in a criminal action to ascertain whether the terms of a suspended judgment have been complied with, are addressed to bis reasonable discretion, and do not fall within the province of the jury; and his action thereon is not reviewable on appeal when supported by evidence, unless this discretion has been manifestly abused by him.</p>

Appeal by defendant from Bond, J., at May Term, 1920, of Chatham. The defendant was indicted and convicted of the operation of a whiskey distillery.

MotioN to tax prosecutor with, costs, heard on appeal from a justice’s court, before Bond, J., at April Term, 1920, of Johnston. There was judgment finding prosecution frivolous and malicious, and ordering that unless costs be paid in thirty days, that capias issue for prosecutor, and he be imprisoned till said costs were paid, or until he be discharged according to law, and said prosecutor excepted and appealed.

<p>1. Officers — Public Officers — Prosecuting- Attorney — Removal from Office —Criminal Law — Intent—Statutes.</p> <p>The proceedings before the judge of the Superior Court to remove a prosecuting attorney, sheriff, police officer, or constable from office, O. S., 3208, is of a civil nature for the protection of the public, and is not a criminal proceeding against the officer.</p> <p>2. Same — Property—Constitutional Law— Evidence— Admissions— Trial by Jury.</p> <p>The proceedings before the judge to remove a prosecuting attorney from office “for willful misconduct or maladministration in office,” or on the other grounds stated in O. S., 3208, do not require an issue to be submitted to the jury. Upon the defendant’s own admissions in this case, and evidence, he is guilty of the offense charged, which is sufficient to remove him from office; such office is not a property right under the provisions of the Constitution of North Carolina, Art. I, sec. 19.</p> <p>3. Appeal and Error — Officers—Public Office — Removal from Office— Findings — Evidence—Statutes.</p> <p>An appeal from the judgment of the Superior Court judge that a prosecuting attorney be removed for “willful misconduct or maladministration in office,” etc., is upon questions of law and legal inference, if justified by the findings of facts supported by evidence, Constitution, Art. YI, sec. 8; and the appeal is allowed by C. S., 638.</p> <p>4. Officers — Public Officers — Removal from Office — Statutes—Evidence.</p> <p>Tbe evidence of a prosecuting attorney in proceedings before tbe judge to remove bim from office, O. S., 3208, for misconduct, etc., is sufficient to sustain an order removing bim wben it admits that be attempted to induce, ancl did induce, a person to violate tbe statutes of our State in participating in acts made an offense for immorality, etc., whatever bis intent may have been therein.</p> <p>5. Same — Admissions—Petition to Remove from Office — Conviction.</p> <p>Wben a prosecuting attorney has been removed upon bis own testimony from bis office in proceedings before tbe judge, C. S., 3208, be may not complain that it was not in accordance with tbe specifications alleged against bim in tbe petition, but upon tbe specifications in bis own evidence, as be could not have been tallen by surprise, or well have asked for an amendment to tbe petition, permitted by tbis statute in proper instances.</p>

INDICTMENT for murder, tried before Bond, Jat May Term, 1920,-■of HARNETT.

Appeal by defendant from Guión, J., at the January Term, 1920, of Columbus. The defendant was convicted of murder in the first degree at January Term, 1920, of the Superior Court of Columbus County, and appealed from the sentence of death pronounced on the verdict. The transcript of the record was filed in this Court during this, the fall term, and the State moves to dismiss the appeal because not docketed at the spring term of court.

<p>Appeal by defendant from Bay, 7., at Spring Term, 1920, of Ashe.'</p>

Appeal by defendants in a criminal action from Daniels, J., at June Term, 1920, of Wake. The defendants were convicted of involuntary manslaughter at June Term, 1920, of Wake County Superior Court, lion. F. A. Daniels, judge presiding, and from this judgment, upon such conviction, appeal to this Court. The State’s evidence, fairly considered, tended to show the facts as herein narrated.

Appeal by defendant from Bay, J., at May Term, 1920, of Eocit-INGHAM. The defendant was indicted and tried for subornation of perjury at the May Term, 1920, of Eockingham Superior Court.

CRIMINAL action, tried on appeal from recorder’s court, before Ray, J., at June Term, 1920, of Rockingham.

Appeal by defendant from Bay, J., at tbe August Term, 1920, of DavidsoN. This is an indictment under section 3627 of tbe Revisal. Tbe defendants were convicted, and appealed from tbe judgment pronounced on the verdict.

Appeal by defendant from Bdy, J., at August Term, 1920, of Davidson. Tbe defendant was indicted on two counts, one for an assault witb a deadly weapon upon Wade IT. Phillips with intent to kill, and the other for an assault upon John C. Bower with a deadly weapon with intent to kill. Verdict of guilty, and judgment. Appeal by defendant.

Appeal by defendant from Harding, J., at May Special Term, 1920, of YADKIN. This is an indictment for murder. Tbe defendant was convicted of murder in tbe first degree, and from tbe judgment upon sucb conviction appealed to tbis Court. Spencer McNeill was tried witb tbe defendant, but tbe jury acquitted bim. Tbe deceased was J. E. Zacbary, sheriff of Yadkin County, and tbe killing occurred at an illicit distillery in Yadkin County.

<p>INDICTMENT for obtaining goods by false pretenses, tried before Ray, J., and a jury, at March Term, 1920, of Hendekson.</p> <p>There were three of the indictments, respectively, for having obtained money on notes by false pretenses as to Frank Smith, J. GL Walker, and W. J. Baldwin. The same having been consolidated and tried together, there was a verdict of not guilty as to Smith and Walker and guilty as to W. J. Baldwin. Judgment on the verdict, and the defendant excepted and appealed, assigning errors, etc.</p>

INDICTMENT for murder, tried before McElroy, J., at July Term, 1920, of Catawba. Tbe defendant was convicted of murder in tbe first degree of John W. Gabriel on 29 December, 1919. From tbe sentence of death, defendant appeals.

Appeal by defendant from Bay, J., at tbe March Term, 1920, of HENDERSON. . Tbis is a criminal action, tried- upon an indictment cbarging tbe unlawful manufacture of intoxicating liquor. State’s EvideNce. Sheriff M. Allard Case: I know John Blackwell. He lives in tbe eastern part of Henderson County. I saw him at a blockade still on 3 January, 1920, over at Big Hungary, ten miles from here in tbis county. Mr. Hill and Mr.- Lyda were with me at tbe time.

Appeal by defendant from Long, J., and a jury, at September Term, 1920, of MadisoN. Tbe defendant, together with one Gertrude Sams, was indicted for tbe murder of bis wife. At tbe trial tbe defendant, Frank Henderson, was convicted of murder in tbe first degree, and Gertrude Sams was acquitted. From tbe judgment upon such conviction, Frank Henderson appealed to tbis Court.

<p>Appeal by defendant from Webb, J., at August Term, 1920, of Oheeokee.</p> <p>Tbe defendant and John H. Cooper were tried for murder of Dan Sprinkle. Tbe solicitor at tbe beginning of tbe trial announced tbat be would not ask for a verdict of murder in tbe first degree, and at tbe close of tbe testimony for tbe State took a nol pros as to Cooper.</p> <p>Canup was a policeman in tbe town of Andrews. Tbe deceased (Sprinkle) was drinking tbat nigbt, and was boisterous and profane in tbe presence of Cooper, wbo was also a policeman, and tbe defendant. They attempted to arrest Sprinkle, who resisted. With the aid of the witness Will Cook, and a man named McAfee, they got him down and put handcuffs on one arm. He begged to go home, and said he would come back and pay his fine. Cooper said: “Let him up.” The deceased got up, knife in hand, making two licks at Cook with his knife. He then started for Cooper, who backing said: “Dan, I hate to kill you, but I am going to do it if you don’t stop,” and fired his pistol into the ground. At this juncture the wife of the deceased ran up and got between Sprinkle and Cooper, whose connection with the matter there ended.</p> <p>Will Cook testified: “Sprinkle wasn’t doing anything when Canup fired his first shot. He was standing with his back to us. Me and Canup were behind Sprinkle. I was about as close to Sprinkle as the table. The first shot hit him in the back. It staggered Sprinkle, and he turned around and went to fighting like Canup, and then Canup kept shooting. I didn’t see Sprinkle do anything up to the time Canup shot him in the back the first time. I was standing there all the time. I said to Canup, Don’t shoot him; don’t shoot a drunk man; knock him down and put the handcuffs on him!’ ”</p> <p>The shot that killed' Sprinkle entered his back and came out at his collar bone. The defendant was found guilty of manslaughter, and appealed.</p>

Appeal by defendants from Finley, J., at April Term, 1920, of SCOTLAND. The defendants, four brothers, were convicted of manufacturing liquor, and from the judgment upon such conviction they appealed to this Court.

Appeal by defendant from Long, J., at tbe September Term, 1920, ■of Buktcombe. Tbe defendant was convicted of receiving and keeping liquor on band for sale, and from tbe judgment upon such conviction appealed to tbis 'Court.

Appeal by tbe State from Calvert, J., at November Term, 1920, of BEAUFORT. • The defendant was indicted for the violation of the rules and regulations adopted by tbe State Board of Agriculture to prevent the infection of sound cattle from other cattle infected with tick fever and to cure those already infected.