Volume 181 — North Carolina Reports

<p>1. Libel — Slander—Publication—Facts Constituting Slander.</p> <p>To constitute a libel it is not necessary that the publication should impute the commission of a crime, infamous or otherwise, but the charge is sufficient when a false publication is made, holding one up to public hatred, obloquy, contempt or ridicule, etc.; and the charge may be sustained by a false publication reasonably calculated to injure one in his trade, business or profession, by imputing to him fraud, indirect dealing or want of capacity in reference to the same, without the averment of special damages.</p> <p>2. Same — Pleadings—Admissions—Demurrer—Matters of Defense — Trials —Questions for Jury.</p> <p>By contract the two defendants agreed to sell at auction the lands of customers the plaintiff should procure, upon a division of the profits. Accordingly, and at the instance of one of the defendants, the plaintiff advertised, to procure customers, in a daily newspaper published and circulating in that locality, to which the other defendant published in the following issue of the paper, a denial of any such arrangement, or that he had any knowledge thereof, and “warned” the public that he would not be bound by any selling arrangements made by them with the plaintiff, etc., and this with full knowledge of the contract and against the protest of the plaintiff that it would do him serious damage in his business and prospects: Held, defendant’s publication was libelous without averment of special damages.</p> <p>3. Libel — Notice—Damages—Statutes—Newspapers.</p> <p>As to whether C. S., 2429, et seq., as to notice to defendant in an action for libel, looking to a retraction and apology, applies to individuals having no connection with a newspaper publishing the libel, Query? Held, the statutes haying significance only on the question of punitive damages, do not include compensatory damages for “pecuniary loss, physical pain, mental suffering, and injury to reputation.”</p> <p>4. Pleadings — Answers—Admissions—Instructions—Appeal and Error— Requests for instructions.</p> <p>In an action for libel, where the defendant has filed no answer, an instruction of the trial judge that the plaintiff must satisfy the jury as to the amount of the damages, and that the allegations of the libelous matter must be taken as true against the defendant is not error (C. S., 543), and Held, in this case; while the charge is somewhat general on the issue of damages, it will not be held for reversible error on the record, and the absence of defendant’s prayer to make it more specific.</p> <p>5. Libel — Pleadings—Admissions—Issues—Waiver.</p> <p>Held, in this action to recover damages for slander, the defendant’s failure to answer was not waived by the submission of an issue without objection as to whether the publication was wrongful and unlawful, and made after the plaintiff’s request not to publish it, but it was' for the jury to determine whether in addition to the admissions of a cause of action growing out of defendant’s failure to answer, the tort so admitted was willful and'without just cause or excuse.</p>

<p>Courts — Jurisdiction—Process—Nonresidents—Witnesses—Attachment— Replevy Bond.</p> <p>A nonresident who comes into this State for the sole purpose of prosecuting his action in our courts and acting as a witness in his own hehalf, is not subject to civil process, allowing him a reasonable time for coming and going, nor does he voluntarily submit to the jurisdiction of our courts by merely giving a replevy bond in proceedings for his personal baggage which was attached while he was here on that business.</p>

, at November Term, 1920, of PasquotaNK. This is an appeal from an order on a petition for the establishment of a drainage district.

TMs action was brought under sec. 1589 of the Revisal, now sec. 1143, Consolidated Statutes, and involves the ownership of three tracts of land situate in the counties of Pasquotank, Perquimans, and Gates. The case is submitted on facts agreed, from which it appears plaintiff claims title under three independent sources, as follows: 1.

<p>Contracts — Consideration—Evidence—Questions' for Jury — Trials.</p> <p>In an action by a contractor to recover of tbe owner an additional amount to tbat specified in tbe contract to erect a bouse, evidence tbat tbe owner required tbe contractor to employ a certain class of labor, tbat increased tbe cost sixteen hundred dollars over tbe original estimate, of wbicb tbe contractor agreed to lose fóur hundred dollars and tbe owner twelve hundred dollars, is sufficient as a legal consideration for the promise of the owner to pay the twelve hundred; and in tbis case it is for the jury to decide tbe questions raised, whether tbe new contract was to take effect only when reduced to writing and signed by tbe parties, or whether the alleged promise was made before or after tbe making of tbe original contract, or required a contractor’s bond as a condition precedent to its taking effect.</p>

, at tbe November Term, 1920, of WilsoN. This is an action to recover tbe amount ($2,000) of a deposit alleged to bave been made witb tbe. defendant Banking and Trust Company on 1 September, 1917, by tbe plaintiff's intestate, E. B. Cburcbwell, wbo was ber husband.

Appeal by plaintiff from Cranmer, J., at November Term, 1920, of Edgegombe. This is an action to recover a mare, and tbe balance due on a note. Tbe defendant executed to tbe plaintiff a note for $250, wbicb sum represented tbe purchase price of tbe mare. Tbe note was dated 29 March, 1918, and by its terms tbe plaintiff retained title to tbe mare to secure tbe purchase price.

, at January Term, 1921, of WASHINGTON. Tlaintiffs, lower proprietors, owning land abutting on both, sides of a drainage canal used by them in part for draining their lands, sue the defendant, one of a number of upper proprietors also abutting on said canal, and using the same for drainage, for damages to plaintiffs’ land, .and crops particularly for the year 1919, caused by the negligent and wrongful failure of defendant to clear out and properly maintain the portion of…

<p>Appeal by plaintiff from Devin, J., at June Term, 1920, of Halifax.</p> <p>Civil action, brought by plaintiff to recover the sum of $286.94 for certain yarns sold and delivered to the defendant during the years 1915 and 1919. Defendant admitted receipt and nonpayment of said goods, but set up in defense, and by way of counterclaim, two causes of action, each for an alleged breach of contract, as follows:</p> <p>1. That during the month of October, 1914, the plaintiff contracted and agreed to sell the defendant sufficient splicing yarn to supply its needs for the year 1918, estimated at 12,000 pounds, at 24 cents per pound; that of said amount plaintiff delivered 11,244 pounds only, leaving 756 pounds due and unfilled on said contract.</p> <p>2. That during the month of April, 1919, plaintiff contracted and agreed to sell the defendant 15,000 pounds of splicing yarn at 65 cents per pound, for delivery within six months; that of said amount plaintiff only shipped 8,627 pounds, a portion of which was returned and accepted by plaintiff, leaving 8,262 pounds of yarn due and unfilled on said contract.</p> <p>Upon issues joined the following verdict was rendered by the jury:</p> <p>“1. Is the defendant indebted to the plaintiff, and if so, in what amount? Answer: ‘$286.94, with interest from 10 August, 1919.’</p> <p>“2. Did the plaintiff contract to deliver to defendant 12,000 pounds of splicing yarn during the year 1915, as alleged in answer ? Answer: ‘Yes/</p> <p>3. “If so, did the plaintiff fail to comply with said contract? Answer: ‘Yes.’</p> <p>“4. What damage is the defendant entitled to recover therefor ? Answer: ‘$74.60.’</p> <p>“5. Did the plaintiff contract to deliver to the defendant 15,000 pounds of splicing yarn in 1919, as alleged in the answer? Answer: ‘Yes.’</p> <p>“6. Did the plaintiff wrongfully fail to comply with said contract? Answer: ‘Yes.’</p> <p>“7. What- damage, if any, is the defendant entitled to recover therefor ? Answer: ‘$1,684.80.’ ”</p> <p>Judgment on the verdict in favor of the defendant for the sum of $1,427.86. Plaintiff excepted and appealed.</p>

<p>Appeal by defendants from Lyon, J., at November Term, 1920, of Beetle.</p> <p>This is an action to recover damages for personal injuries sustained by tbe plaintiff, while a passenger, in alighting from the passenger coach. The injury occurred and the cause of action arose 19 December, 1919, during Federal control. The action was begun 28 September, 1920, after the termination of Federal control. The complaint was filed 5 October, before the return date of the summons, and on 23 October, 1920, the defendants filed their petition for removal to the Federal Court, together with their answer. The cause was transferred by the clerk to the Superior Court docket, and at the first term the motion to remove to the Federal Court was denied. Both defendants joined in the motion to remove — John Barton Payne having been substituted for Walker D. Hines as Director General. From the refusal of the petition for removal both defendants appealed.</p>

Appeal by defendant from Lyon, J., at August Term, 1920, of Halifax. This was a civil action for damages, tried upon an alleged wrongful conversion of plaintiff’s property by the defendant, Surry Parker. In July 1916, plaintiff, a resident of Halifax County, purchased from the defendant, who resided at Pinetown, N. C., a steam logging loading .outfit upon a retained-title contract.

<p>1. Statutes — Interpretation—Ambiguity.</p> <p>When the language of a statute is unambiguous and the intent is plain, there is no need for its construction by the courts, and it is the duty of the courts to enforce it according to its obvious terms and meaning.</p> <p>2. Same — Roads and Highways — Road Commissioners — Repealing Statutes — Mandamus.</p> <p>Where a statute, as amended, directs the construction and repair of a certain public highway in a township by the directors of the State Prison, to be done in accordance with and under the direction of the Highway Commissioners of the township, and place thereon, not later than a certain date, a certain force of convicts, suitable teapis, etc., and thereafter withdraws from the township commissioners of the county the power to construct, maintain, and improve the public roads of the townships, and gives it to the Highway Commissioners of the county, created by the act, repealing all laws or parts of laws in conflict therewith, including in specific terms “special or local laws authorizing the raising of money for the purpose: Held, the former acts are ‘local’ or ‘special,’ and their provisions are repealed by the latter act; and an order for a mandamus brought by the county Highway Commission against the directors of the Stare Prison to compel them to' construct, etc., the road as specified in the former statute, .will be denied by the courts. As to whether mandamus was proper remedy, Quere?”</p>

Appeal by both, parties from Galvert, at November Term, 1920, of CaMDEN. This was an action in ejectment, in which the plaintiff recovered, 175 N. 0., 319. A petition was filed for betterments, and in the same case, 176 N. C., 108, the Court held (by Brown, J., for a unanimous Court) that the petitioner (the defendant) was entitled to recover the same. Upon rehearing, 178 N. C., 444, this judgment was reaffirmed.

Appeal by plaintiffs from Granm&r, J., at November Term, 1920, of WlLSON.

, at tbe September Term, 1920, of 'Wa.RREN. Tbis is an action to recover for personal services rendered by tbe plaintiff to tbe intestate of tbe defendant, and certain taxes paid by tbe plaintiff.

<p>Appeal by plaintiff from Bond, Jat September Term, 1920, of Pitt.</p> <p>Plaintiff alleged that be and W. Gr. Stokes, father of the other defendant, had some disagreement about a telephone, W. Gr. Stokes seeming to be very much “wrought up” about it. That they got into a heated controversy. Plaintiff testified: “I told hint to keep his mouth out of my business; he then stepped over to a pile of bricks, and I shoved him on them; about that time I saw his son, W. E. Stokes, coming with a brick in each hand, and I knew they, had me foul. The boy threw one brick at me, which went over my head, but the next one hit me, and I spinned around, wrenched my ankle, and fell; before I could recover and get up, W. Gr. Stokes jumped astraddle of me and hit me with a brick. I did not know anything else; some boys took me up. 'When I recovered I found W. Gr. Stokes standing over me. As a result of the wound I went to the hospital; Dr. Basnight phoned Dr. Taylor, and he took me to the hospital. I think I was in the hospital about ten days. I was totally unable to do anything for about thirty days.” Plaintiff further testified that after-wards his ability to labor was considerably impaired, and that he suffered pains in his head, whereas, before he received the blow, he could do any kind of hard work. This testimony is stated first to show the serious character of the assault upon him, and secondly, the wide difference between the parties in their several versions of the facts.</p> <p>The defendants denied the truth of the plaintiff's testimony, and W. Gr. Stokes stated, on the contrary, that he and plaintiff had an altercation and plaintiff cursed him. He then said: “I had nothing to defend myself with, and I knew he was dangerous. I walked to a pile of brick and he jumped on me. It was all so quick I hardly knew what had happened, but I heard my son say, 'Get off of papa.’ I did not touch him a lick. I was as far as from here to Colonel James from the brick, and had no brick. At the time he jumped on me I was not trying to strike him. He jumped on me and threw me down. I turned him over, but did not hit him. In the trial before I understood that William hit him. . . . The scuffle lasted about one minute and a half. I won’t tell the jury whether he was struck in the face while he was standing up or while he was on me. I was able to turn bim over. I am sure be was bit while be was on me, because I was able to turn bim over. I stood over bim until tbe people came there and took bim away. They all came right over there. I was straddle of bim, but I did not offer to bit bim; I bad nothing to bit bim with. I never bad a fight in my life. Have never been in court. He did not bit me with a brick. He would have killed me if 'William bad not come to me in time. My son saved my life; be is a heavy man; I am no fighter myself.”</p> <p>W. F. Stokes testified: “I noticed Roberson coming toward my father. He was cursing, and I realized that my father was in danger, and I thought it was my duty to protect bim. Roberson bad my father down, and running toward bim I picked up a brick and threw it at bim as a warning, but be did not get off. By that time Roberson was on tbe bottom and my father was on top. I bad two bricks in my band and I threw both of them. Roberson was on my father when I threw tbe first and second brick. They were about 10 or 15 feet from tbe pile of brick. I did not see my father have any brick in bis band. There was no brick, within bis reach. I threw tbe first brick as a warning and it went over bis bead. I knew that tbe second brick that I threw bit bim. It bit bim on tbe bead. Then my father turned bim over. At tbe time I threw tbe second brick I thought it was necessary to save my father’s life. I knew it was a matter of life and death. I have known Mr. Roberson all of bis life.”</p> <p>Tbe court gave tbe jury this instruction, to which tbe plaintiff excepted : “If I go out there today, when one of you has done nothing to cause trouble, and knock you down, and your son sees me with you down, tbe law says your son has a right to protect you from serious bodily barm at my bands.” This instruction was given after bis Honor bad read from Wharton on Homicide (3 ed.), at bottom of page 775, on tbe right of a son to defend bis father.</p> <p>Tbe judge also charged that tbe burden as to both issues was upon tbe plaintiff, when tbe defendant, W. F. Stokes, admitted that be bad struck tbe pláintiff with tbe brick, or that be bad burled tbe brick at bim, “bit-ting tbe mark exactly.”</p> <p>Tbe verdict was against tbe plaintiff as to all tbe issues, and from tbe judgment thereon be appealed.</p>

Appeal by defendants from Bond, J., at November Term, 1920, of CRAVEN. Civil action, brought to recover damages for an alleged breach of contract, the material parts of which were as follows: 26 August, 1919.

<p>Rehearing — Petition—Reasoning—Husband and Wife — Venereal Disease —Assault.</p> <p>The reasons for denying a petition to rehear in the Supreme Court are not usually set out. Stacy, J., in denying this petition states his own opinion as to why the petition should be denied owing to the wide difference of opinion of the bench and bar as to whether the wife’s action may be maintained against her husband for willfully and deliberately infecting her with a loathsome disease.</p>

<p>Appeal by plaintiff from Bryson, J., at tbe May Term, 1920, of JACKSON.</p> <p>“1. Is tbe plaintiff, Margaret Sluder, tbe owner of tbe land described in tbe complaint? Answer: No.’</p> <p>“2. Are tbe defendants, tbe Wolf Mountain Lumber Company, George H. Smatbers, trustee, tbe owners of tbe land embraced in State Grant No. 290, to J. T. Foster, as alleged in tbe answer? Answer: 'Yes.’ ”</p> <p>At tbe conclusion of tbe evidence tbe court directed tbe jury to answer tbe issues “No,” and rendered judgment for tbe defendant. Plaintiff appealed.</p>

Appeal by defendant from Lyon, J., at tbe November Term, 1920, of Halifax. This is an action to recover damages for breach of a contract, under' which the defendant agreed to deliver to the plaintiff 30,000 pounds of blue yarn at the price of thirty-one cents per pound.

<p>Appeal by defendant from. Connor, J., at Spring Term, 1920, of JONES.</p> <p>This was a petition originally filed for actual partition, and by consent a sale of all the property was ordered, and it was sold.. Enough of the proceeds of the sale was left in the clerk’s office to protect the matters involved in this appeal, which arise upon a petition by the plaintiff for betterments.</p> <p>James Harriett was the father of plaintiffs and defendants, and died in 1877, leaving a widow, Mary E. Harriett, who died in 1917, and the plaintiffs and defendants are their only descendants as heirs at law and devisees.</p> <p>Amos L. Simmons, who was then the owner, conveyed the lands known as the “home place” to James Harriett prior to his death in fee simple by description that included more than 100 acres, which was the quantity intended to be conveyed, and- after James Harriett’s death, while his children were young, Simmons executed to Mary ,E. Harriett, the widow and mother of the children, a deed purporting to convey in fee simple the 100 acres known as the “home place,” being 100 acres cut out -of the original boundary in the deed from Simmons to James Harriett. After the deed was made to Mary E. Harriett, she occupied the land up to the bounds set out in the deed to her, and Amos L. Simmons and his descendants occupied the remainder of the land in the James Harriett deed.</p> <p>James Harriett left a will, duly probated, devising the said 100 acres to his wife, Mary E., during her natural life, and then to her children. In 1904 plaintiff, under an arrangement with Mary E. Harriett, went on the land, and from 1905 to 1914, ten years, occupied the land, and he or his mother had the rents and profits thereof. In 1908 his mother made him a deed and delivered it to him under an agreement that it was not to be registered until after her death, and plaintiff kept possession of it till it was taken from his safe after he left the home place in 1914. The plaintiff and the defendants thought up to the time of Mary E. Harriett’s death that she owned the land in fee simple. It is admitted, however, that she only owned a life estate, and the remainder, subject to her life estate, was in the plaintiff and defendants.</p> <p>It is alleged in the petition that the plaintiff made valuable improvements upon the land, which enhanced its value, under the honest belief that he would be the owner of the land upon the death of his mother.</p> <p>The jury returned the following verdict:</p> <p>“1. Did plaintiff, while making improvements on land described in petition, have a well-grounded belief that he was the owner of the land in fee, subject to the life estate of his mother? Answer: ‘Yes.’</p> <p>“2. Was plaintiff, while making improvements on land described in the complaint, a tenant in common with defendants of said land, subject to the life estate of his mother? Answer: ‘Yes.’</p> <p>“3. In what sum, if any, was the value of the said land enhanced at the death of Mary Harriett in June, 1917, by such permanent improvements a's were made during her life by plaintiff? Answer: ‘$1,780.’</p> <p>“4. What was the clear annual value of the land during the time plaintiff was in possession of same, exclusive of the use of improvements made by plaintiff ? Answer: ‘$125 per year.’ ”</p> <p>Judgment was entered upon the verdict in favor of the plaintiff, allowing him the value of the improvements assessed by the jury without abatement on account of the rents, and the defendants excepted and appealed, assigning the following errors:</p> <p>1. In refusing to direct tbe jury to answer the first issue “No.”</p> <p>2. In refusing to charge the jury, “If you believe the evidence, you. should answer the first issue No.’ ”</p> <p>3. In the submission of the first issue to the jury.</p> <p>4. In the submission of the second issue to the jury.</p> <p>5. In the submission of the third issue to the jury.</p> <p>6. In not setting aside the verdict.</p> <p>7. In not signing the judgment tendered that the defendants go without day.</p> <p>8. In signing the judgment set out in the record.</p> <p>9. In refusal to credit the $1,780 found on the third issue with the $1,250 for the ten years rental at $125 per year found under the fourth issue.</p> <p>10. In not crediting on the $1,780 found on the third issue with rent at the rate' of $125 per year from the beginning of the year 1905 to the date of Exhibit “A,” 23 May, 1908.</p> <p>11. Eor that the judgment as rendered did not deduct from the $1,780' found on the third issue, 7150/15875 of $1,780 being the pro rata part of the land other than the home place of the unimproved value of the-whole land. ‘</p>

Appeal by plaintiffs from Devin, J., at January Term, 1921, of Pitt.

Appeal by plaintiff from Connor, Jat September Term, 1920, of SAMPSON.

<p>1. Gifts — Causa Mortis.</p> <p>To establish a gift causa mortis, it must be shown that the donor intended the transfer of the subject-matter and a present actual or constructive delivery thereof, in the contemplation by the donor of his death from a present illness or some immediate peril.</p> <p>2. Same — Inter Vivos — Intent—Delivery.</p> <p>Evidence that the donor had deposited money in the bank and had received a certificate therefor, payable to the order of himself, or his wife, and had deposited the certificate in his wife’s trunk among his valuable papers, when he was in good health and attending to his business, is insufficient to establish a gift of the money to his wife, either causa mortis or inter vivos, and evidence that at the time he had stated to the cashier that he desired his wife to have the money in case of his death, and especially without having communicated this intent to his wife, and without further evidence of delivery, was insufficient.</p> <p>U. Gifts — later Vivos — Intent—Delivery.</p> <p>To constitute a valid gift inter vivos, there must be a donative intent and a present unconditional delivery to the donee or some one for him, making a completely executed transfer to the donee of the present right of property and its possession.</p> <p>4. Same — Nudum Pactum.</p> <p>To constitute a gift inter vivos, it is necessary to show a delivery as well as a donative intent, and without a present actual or. constructive delivery it is only a promise of a gift, without consideration, and unen-forcible.</p> <p>5. Same — Causa Mortis.</p> <p>The chief distinguishing characteristics between a gift inter vivos and one causa mortis, are that the former is absolute, and the latter is revocable and takes effect in futuro, and in each instance it is necessary to show both the present intention to make the gift and the delivery of the thing given.</p> <p>6. Wills — Interpretation—Money on Deposit — Certificates of Deposit— Evidence.</p> <p>As to whether a certificate of deposit will pass under a bequest in a will of “'money on hand,” quere? and: Held, this interpretation will not prevail when a contrary purpose is quite apparent; and evidence of the declaration of the testator of what he wanted done with the money in the bank, is incompetent.</p>

, at August Term, 1920, of Halifax. This 'action is brought to recover $100,000 damages for personal injuries sustained in a crossing accident at Weldon, N. O., 10 February, 1920.

, and a jury, at June Term, 1920, of Halifax. • The action is to recover damages for an unlawful and wrongful assault and battery on plaintiff by defendant, H. G. Bland, and in which plaintiff seeks to bold defendant company liable by reason of tbe fact tbat plaintiff was a passenger of defendant road, and tbat Bland was an employee of tbe company at tbe time, and tbat tbe assault was made and injuries inflicted under circumstances tbat rendered the company, etc.,…

<p>Appeal by plaintiff and defendant from D&üin, J., at October Term, 1920, of WayNE.</p> <p>Oivil action for damages, tried upon an alleged breach of the following contract:</p> <p>Goldsboro, N. 0., 6 October, 1919.</p> <p>I agree to make John D. Howell a deed for the 21 acres of land that I bought from Willie B. Pate when he pays me, on 1 January, 1920, the balance of purchase price, $6,500, he now paying me $500 to bind said trade. J. H. Pate.</p> <p>Witness: J oust D. Howell.</p> <p>It appears from the pleadings that the $6,500 stipulated in the contract to be paid on 1 January, 1920, was not tendered until 6 January, 1920. But in this connection it is alleged that on 6 October, 1919, after the execution of the contract, and again later, the defendant orally agreed to extend the time of payment for a period of two weeks.</p> <p>Defendant moved for judgment on the pdeadings. Motion overruled, and exception.</p> <p>Upon issues joined, the jury rendered the following verdict:</p> <p>“1. Was the plaintiff prevented from paying the purchase money for the Pate land on 1 January, 1920, by reason of the agreements and representations of the defendant, as alleged in the complaint ? Answer: ‘Yes.’ '</p> <p>“2. What damage, if any, is the plaintiff-entitled to recover of the defendant for failure to convey said land ? Answer: ‘$500.’ ”</p> <p>Plaintiff tendered judgment for $500 on the verdict, and for $500 with interest from 6 October, 1919, to cover the initial payment on the contract, which was admitted in the pleadings to have been made and not refunded. His Honor declined to sign judgment tendered by plaintiff, and entered judgment on the verdict for $500 and costs.</p> <p>Both plaintiff and defendant excepted, and appealed.</p>

Appeal by plaintiff from Kerr, J., at November Term, 1920, of Wake. Tbis is a civil action, brought by plaintiff, W. M. Allen, against defendant, Benneban Cameron, for tbe specific performance of a written contract, whereby Mr. Cameron agreed to sell to W. M. Allen, and said Allen agreed to buy from bim a bouse and lot in Raleigb, N. 0., on East Jones Street, at the price of $8,000 in cash.

<p>Appeal by defendant from Kerr, •/., at August Term, 1920, of FRANKLIN.</p> <p>Civil action, brought to recover moneys alleged to have been withheld on a logging and sawmilling contract.</p> <p>On 16 December, 1915, plaintiff's intestate entered into a written contract with the defendant whereby he undertook to cut a certain tract of standing timber and manufacture the same into lumber as per specifications set out in the written agreement — the work to be completed within eighteen months. It was stipulated in the contract that the cutting and sawing of said timber was to be paid for as the work progressed, settlements to be made every two weeks; and the defendant was given the -right to reserve and hold back 10 per cent of the amount due on the lumber delivered as a guarantee for the satisfactory fulfillment of the contract.</p> <p>In August, 1916, plaintiff's intestate whs accidentally killed at his sawmill while engaged in carrying out his contract with the defendant. Plaintiff alleges that at the time of the death of the intestate, the defendant had in its hands the sum of $445.22 as moneys reserved on lumber manufactured and delivered up to that date. The defendant answered and alleged that upon a proper accounting between the parties, up to the date of the death of plaintiff’s intestate, it would appear that the defendant had made overpayments to the amount of $282.19, and asked for an affirmative judgment against plaintiff for this sum. Later the defendant filed an amended answer, and set up by way of further defense and counterclaim that the defendant had suffered damages in the sum of $1,126.17 as the difference between the contract price and what it cost the defendant over and above that price to have the remainder of the timber cut and manufactured into lumber.</p> <p>His Honor, being of opinion that the contract was personal to plaintiff’s intestate, and that his death relieved his representatives from further fulfillment, and also being of opinion that the fortnightly settlements were binding between the parties, excluded evidence which the defendant proposed to offer on its counterclaims and directed a verdict in favor of the plaintiff. Defendant excepted and appealed.</p>

Civil actioN, beard by agreement of parties, before Harding, J., at Marion N. C., September, 1920.

<p>Appeal by defendant from Goimor, Jat tbe September Term, 1920,, of SAMPSON.</p> <p>This is a civil action to recover damages for wrongful death alleged to have been caused by the negligence of the defendant.</p> <p>Randall Pusey, plaintiff’s intestate, together with Henry Yann and Festus Turlington, were going from Falcon to Fayetteville, riding in a Ford runabout, Yann being the owner and driver of the car. The public road upon which the jflaintiff’s- intestate was traveling crosses the Atlantic Coast Line Railroad just above Wade Station in Cumberland County at an acute angle. At the time of the injury complained of,. 29 August, 1914, the defendant company was constructing a new track, parallel to its original track, and about eight feet distant therefrom, the' new track having been practically completed at the crossing referred to, except that the dirt had not been packed in guard-planks laid down over the crossties as is always done when such crossings are completed.</p> <p>The young men approached this crossing from the west side, passed over the old track, but when the wheels struck the rails of the new track they skidded, and the car was thrown something like 15 feet across the track to the point indicated on the plat, the front end of the car was. reversed, and the three occupants thrown out, young Pusey being instantly killed.</p> <p>The evidence was conflicting as to the rate of speed of the automobile at the time of the injury. Henry Yann, the driver of the car, testified that when he got on the track he was running from six to ten miles per hour. He also admitted that he had been drinking cider, and other witnesses testified to the same effect.</p> <p>The evidence showed that many automobiles had passed over the-crossing on the day in question; that there was a camp meeting going on at Falcon, and that the cars going to and coming from Fayetteville' had to pass over this crossing.</p> <p> </p> <p>There were three issues submitted to the jury: first as to the negligence of the defendant; second, as to the contributory negligence of the plaintiff’s intestate; and third, as to damages.</p> <p>The jury answered the first issue “Yes,” the second issue “No,” and the third issue “$10,000.”</p> <p>The only exceptions in the record are based upon the charge of the judge to the jury, and his refusal to give certain instructions as prayed, for by the defendant, as follows:</p> <p>“1. The defendant contends that a passenger in an automobile, which is being driven by another at a dangerous rate of speed, may be charged with negligence if he remains in the car and does not remonstrate with the driver, and that if the jury should have found from the greater weight of the evidence in this case that Henry Yann was driving the car at a dangerous rate of speed, and that Pusey remained in the car and made no effort to stop him, and that such conduct on the part of Yann, acquiesced in by Pusey, contributed to the injury complained of, then the jury should have answered the second issue ‘Yes,’ and his Honor erred in refusing to so charge.</p> <p>“2. That his Honor should have given the second prayer for instructions, to wit: If the jury shall find from the greater weight of the testimony that young Pusey was going to Fayetteville with Turlington and Yann on a pleasure trip, and that they were all engaged in a joint enterprise, either of business or pleasure, and if the jury shall further find by the greater weight of the evidence that Pusey trusted the management of the car to Yann, and that Yann drove the car at a dangerous rate of speed, or entered a dangerous zone or crossing at a rate of speed in excess of what would be prudent under the circumstances; and if the jury shall further find that the injury would not have occurred but for said conduct on the part of Yann, then I charge you that Pusey would be guilty of contributory negligence, and it would be your duty to answer the second issue ‘Yes.’</p> <p>“3. That it was error to refuse to charge as requested as follows: I charge you that it is negligence on the part of a passenger if he commits his safety to an intoxicated driver of an automobile; and if the jury shall find from the greater weight of the evidence that Henry Yann was intoxicated,- or under the influence of intoxicating liquors, and that this fact was known to young Pusey, and that. Pusey continued his journey to Fayetteville under such circumstances; and if the jury shall find from the greater weight of the evidence that the injury complained of was caused by the intoxicated condition of Yann, or if said intoxicated condition contributed to said injury, then the deceased was guilty of contributory negligence, and it would be your duty to answer the second igsue ‘Yes.’</p> <p>“4. That it was error to refuse to charge the jury that if they should' find from the greater weight of the evidence that Henry Vann, the-driver of the car, entered upon the crossing of the defendant at a greater-rate of speed than sis miles per hour, in violation of chapter 191 of the-Public Laws of 1909, then Vann would be guilty of a violation of the: criminal law; and if the jury should further find that Randall Pusey,, at the time of the accident, was engaged with Vann in a joint enterprise,, that is to say, that they were going to Fayetteville for recreation, and that Pusey did not remonstrate with Vann, or undertake to control the-speed of the car, that Pusey would also be guilty of a misdemeanor in that he aided and abetted Vann in the violation of the criminal statute; and if the jury shall further find that but for such act and conduct on the part of Pusey the injury would not have occurred, then it would be the duty of the jury to answer the second issue ‘Yes.’ His Honor refused to give said instruction, and defendant excepted.</p> <p>“5. That it was error to charge the jury as follows: The court charges you that from the evidence in this case, and the defendant so admits, that the crossing in question was across a public highway extending from Dunn to Fayetteville, and unless the defendant company built and maintained its tracks at said crossing, in a manner as safe and convenient to the public as it would have been if said railroad had not been built across said highway, then such neglect of duty would constitute negligence, and defendant excepted.</p> <p>“6. That it was error to charge the jury that if they found that the negligence of the railroad company was the proximate cause of the injury, then they should answer the first issue ‘Yes,’ notwithstanding the fact that there was also negligence on the part of the driver; and he also-charged them that if they found that the negligence of both the driver and the railroad company, both acting together, both concurring, both contributing to the result, caused the death of Mr. Pusey, then both the driver and the railroad company would be liable, and it mattered not. which one the plaintiff sued; that he was entitled to recover of either, and in that event they would answer the first issue ‘Yes,’ and defendant excepted.”</p>

Appeal by defendants from Kerr, J., at tbe August Term, 1920, of FRANKLIN. This is an action to set aside a deed made by Mrs. Cornelia M. Boone to her daughter, Mrs. Eugene Sykes, upon the ground that the grantor did not have sufficient mental capacity to execute a deed. The jury returned a verdict in favor of the plaintiffs, and the defendants excepted and appealed from the judgment rendered on the verdict, assigning the following errors: “1.

Appeal by defendants from Darnels, J., at chambers in B buns wick, 33 September, 1920. The General Assembly of North Carolina, at its regular session, 1919, passed an act entitled “An act to submit to the voters of Brunswick County the question of the location of the county-seat, and to provide county buildings,” same being chapter 263 of the Public-Local and Private Laws of 1919.

<p>Appeal by defendants from Daniels,' J., at August Term, 1920, of BeuNswicic.</p> <p>Civil action for slander, brought by plaintiff against tbe Fisheries Products Company, Tbomas H. Hayes and H. B. Tberian, president and manager, respectively, of said corporation. Upon motion duly made, tbe court directed a verdict in favor of the defendant, Tbomas H. Hayes; and there was a verdict against tbe other two defendants for damages in tbe sum of $6,500. His Honor reduced this award to $3,500, and entered judgment in favor of plaintiff for said amount. Tbe defendant corporation and H. B. Tberian excepted and appealed.</p>

<p>Appeal by both parties from Guión> J., at November Term, 1920, of ROBESON.</p> <p>The plaintiff’s intestate was a farmer who was killed at a railroad crossing about a quarter of a mile from his house as he was returning home in his automobile. He was struck by the defendant’s northbound express train at a point where the railroad track crosses the public road one and a half miles north of the station at Buie’s.</p> <p>' In approaching this crossing for a distance of several hundred yards the railroad and the public road run nearly parallel, gradually converging into a “V” and at a point about 114 feet from the crossing the public road makes a sharp turn and approaches the railroad at a right angle and through a cut about 11 feet deep. The railroad approaches the crossing through a cut of about the same depth. The uncontra-dicted evidence is that after turning this curve, 114% feet from the defendant’s track, it was impossible to see the train running north until within 10 feet of the track. The evidence shows that when the plaintiff’s intestate turned the curve at that point and started through the cut, the train was 854 feet from the crossing. The railroad cut extended 250 yards in that direction. The evidence also shows' that between the track and the public road there was a very heavy growth of young pine timber, bushes, shrubbery, and other undergrowth, and that this, together with the fact that the track is constructed through a cut 11 feet deep, obstructed the vision of the plaintiff’s intestate in seeing the approach of the northbound train, which was running late and at a high rate of speed, estimated at 60 miles an hour or more by the railroad employees and other witnesses.</p> <p>Practically all the witnesses, including the defendant’s section foreman and his helpers, testified that the engineer did not blow for the crossing, nor did he ring the bell or give any other signal. The section foreman who reported the collision indicated in his report to the company, made on the day the deceased was killed, that no signal was given. One witness, Patterson, testified that when he saw the smoke from the defendant’s engine it was 854 feet from tbe crossing, according to measurements afterwards made, and at tbe same instant be saw plaintiffs intestate turn tbe curve and start through tbe cut to tbe crossing. He was traveling slowly, about eight or ten miles an hour. He was not seen again until after tbe train bad passed, when be was found crushed and wounded, having been struck and thrown about 35 feet by tbe defendant’s train. He died about ten o’clock p. m. of tbe same day in a hospital in F ayetteville.</p>

Appeal by petitioners from Devin, J., at September Term, 1920, of JOHNSTON. Special proceedings to sell land for partition, transferred on answers filed to tbe Superior Court, and beard on case agreed.

Appeal by- defendants from Oormor, Jat December Term, 1920, of LENOIR.

Appeal by defendant from Kerr, J., at August Term, 1920, of' EbANKLIN. This case has been before us twice heretofore, Roe- v. Journigan, 115 N. C., 261, and 8. c., 179 N. 0., 686. The facts are fully stated in the first appeal, 175 N. C., at p. 262. William Roe executed a deed 26 August, 1881, to plaintiff’s father, W. S. Roe, by which he conveyed to him a life estate with remainder to his then wife for life if she survived him, and then to his children.

Appeal by plaintiff from Kerr, at second Civil Term, 1920, of WaKE. Tbe action is to recover of Morris-Divers Company a balance clue for goods sold and delivered, and to bold defendant, tlie Matthews Auto Electric Company, and its members, J. P. and C. T. Matthews, liable by reason of having bought the stock of goods of the debtor, in violation •of plaintiffs’ rights, and when the statute applicable to sales in bulk of such stock had not been complied with.

Appeal by plaintiff from Calvert, Jat April Term, 1920, of Durham. Tbe water-works in the city of Durham are owned by the municipality and are operated by it under the supervision of the defendant Board of.' Water Commissioners.

Appeal by defendant from Daniels, Jat tbe December Term, 1920, of New HaNOVee. Tbis is an action to recover for alleged negligence in striking plaintiff while be was in an automobile truck crossing tbe tracks of tbe defendant at Seagate (or Greenville Sound) station, and for damage to tbe truck. Tbe allegations of negligence are: 1.

Appeal by defendant from Cranmer, J., from New Hanoveb, heard at Wilson, October Term, 1920. This is an appeal from a judgment overruling a demurrer to the complaint, the ground of demurrer being that there is a misjoinder of. parties and causes of action.

Appeal by defendants from Guión, Jat tbe May Term, 1920, of New Hanover. Tbis is an action to recover $145.47 for tbe wrongful conversion of ■certain notes and accounts, and growing out of a contract 'for tbe sale •of fertilizers entered into between tbe plaintiff, a manufacturer of fertilizers, and tbe defendant, on 2 February, 1914.

Appeal by the defendant from Finley, 'J., at April Term, 1920, of Foesyti-i. This was a motion to set aside a judgment entered at March Term, 1920, of the county court of Forsyth. The action was begun 4 February, 1920, and the summons was served 9 February, returnable to the February term of said court, which convened 23 February.

Appeal by plaintiff from Finley, J., at November Term, 1920, of Forsyth. The defendant, George C. Tudor, is the father of Bynum Tudor, who at the time the plaintiffs intestate was killed in the automobile wreck was something over sixteen years of age, “living at the home of his father and under his care, custody, and control.” George 0.

<p>1. Insurance, Life — Principal and Agent — Fraud—Premiums—Misrepresentations — Evidence.</p> <p>Evidence that the agent of the insurer, after urging the insured to pay his premium on his life insurance policy soon to become due, and not let it lapse, is informed by the insured that he doubted that he could keep the policy in force, as he had developed a case of tuberculosis, and thereupon the agent misrepresented to the insured that the policy had already lapsed upon his taking up a policy loan that had been made to him, and the insurer would receive no more payments of premiums, which in ignorance the insured believed, and did not then resist on account of his physical condition and resulting depression, but afterwards brought suit for reinstating the policy, and he had always been able, ready, and willing to pay the premiums: Helé, sufficient on the question of actionable fraud to sustain a verdict in favor of the beneficiaries of the policy obtained after the death of the insured.</p> <p>3. Insurance, Life — Principal and Agent — Fraud—Ratification.</p> <p>Where the insurer retains the rights or benefits of cancellation of a life insurance policy procured by the fraud of its agent, it may not retain the benefits thus received and repudiate it, for such would be a ratification thereof, whether expressly or impliedly authorized by it or not.</p>

Appeal by plaintiff from Webb, J., at February Term, 1921, of Foesytti. Civil action to recover damages for an alleged negligent injury and killing of plaintiff’s intestate, a boy between eight and nine years of age.

<p>Appeal by defendant from Bay, J., at November Term, 1920, of ÜAVIDSON.</p> <p>This is an action for divorce a mensa et thoro because of cruel treatment, which, rendered feme plaintiff's condition intolerable and her life burdensome.</p> <p>It is not necessary to set forth in detail the specific allegations of cruelty. The case is here upon a motion to remove the same for trial to the county of Davie, where plaintiff’s husband resides and has his domicile.</p> <p>The motion was denied. Defendant thereupon appealed.</p>

Appeal by defendant from Bay, J., at November Term, 1920, of GrTTILPORD. Civil action to recover the sum of $414.50, balance alleged to be due on contract for certain automobile tires sold and delivered the defendant under a written jobber’s agreement.

Appeal by defendants from Bay, J., at October Term, 1920, of Guileord.

Appeal by plaintiff from Bay, J., at November Term, 1920, of GrUILFORD. Plaintiff’s cause of action, briefly stated, is that defendant, Sheriff of Randolph County, through one of his deputies, arrested one Robert.

Appeal by plaintiff from Ray, J., at November Term, 1920, of DAVIDSON. Civil action to recover of defendant, Register of Deeds of Davidson CountyJ the penalty of two hundred dollars allowed by sections 2500 and 2503, Consolidated Statutes, for issuing a marriage license to one John W. Galloway and plaintiff’s daughter, Alma Lemmons, without tbe consent of ber parents and without reasonable inquiry as to ber age, sbe being at tbe time under tbe age of eighteen.

Appeal by plaintiff from Bryson, J., at June Term, 1920, of CHEROKEE. Civil action commenced in the Superior Court to recover a horse, plaintiff claiming under what is in substance a mortgage, executed by -the defendant to secure the purchase price, on which there was a balance due of $37.

<p>Sheriffs — Fees—Salaries—Duties—Distilleries—Statutes.</p> <p>The fees or emoluments incident to a sheriff’s office enumerated in Rev., 2777, and extended by ch. 807, Public Laws of 1909, to allowance for the seizure and destruction of illicit distilleries, are excluded by a public-local law applicable to a certain county, subsequently enacted, but prior to the commencement of the term of the incumbent, wherein it is provided that the sheriff shall turn over to the county treasurer all moneys collected from fees, and receive a specified sum as a salary in lieu of his fees, with exception only of certain fees allowed to his township deputy in certain instances, the duty to seize the illicit distilleries being the same as any other required of him as sheriff of the county.</p>

<p>Appeal by plaintiffs from Finley, J., at January Term, 1921, of Guileobd.</p> <p>Tbis is an action against tbe defendant, insurance company for an injunction against tbe erection of a building upon that portion of tbe property bought by it from its codefendant, tbe County of Guilford, which is within 18% feet of tbe plaintiffs’ line, claiming that they- are the owners of an easement therein. The court rendered judgment upon the pleadings against the plaintiffs, who appealed.</p>

Appeal by plaintiff from Finley, J., at February Term, 1921, of Guileoed. This action is against tbe defendant insurance company and tbe county of Guilford, alleging tbat tbe plaintiff is owner of an easement 10 feet in width over land purchased by tbe insurance conjpany from its eodefendant, tbe county of Guilford, and tbat tbe insurance company bas obstructed said alleyway by placing a large brick building thereon, and asking for $10,000 damages.

Appeal, by plaintiff from Finley, Civil action for debt. All the material facts are set out in the judgment of the Superior Court, which follows: “This cause coming on to be heard, and it appearing to the court that this action was begun on 31 December, 1919, before a justice of the peace of Guilford County, by the plaintiff making affidavit to obtain a warrant of attachment and issuing a summons against the defendant; that said summons was returned ‘defendant not to be…

Appeal by defendant from Bay, J., at the February Term, 1921, of Mooee. This action was brought by the plaintiff to recover the price of fertilizer goods sold and delivered by the plaintiff to the defendant in March, 1919, under a contract previously made. The defendant admitted in his answer that he made the contract, and that “Exhibit A” attached to the complaint is a true copy thereof.

Appeal by defendants C. M. Reeves et al. from McElroy, J., at December Term, 1920, of Moobe. Tbis suit is to enforce specific performance of an option to convey land. Tbe judgment on demurrer against tbe plaintiff by Judge- Coolce at April Term, 1911, was reversed on appeal in tbis ease, 156 N. C., 353; on appeal from Judge Adams at September Term, 1914, tbe judgment was affirmed with modifications asked by tbe plaintiff, 170 N. C., 102.

Appeal by defendants from Finley, J., at February Term, 1921, of Guileoed.

' Appeal by defendants from Allen, J., at the September Term, 1920, of DURHAM. This is an action brought by the plaintiff, a minor, through his next friend, to recover damages for the loss of his arm and other injuries, resulting from the alleged negligence of the two defendants. The plaintiff offered evidence tending to prove the following facts: The plaintiff was nineteen years of age at the time of his injury in October, 1919.

Appeal by plaintiff from Ra,y, J., at tbe November Term, 1920, of DAVIDSON. This is an action commenced before a justice of tbe peace to recover tbe value of certain shoes shipped by express from Brockton, Mass., to Tbomasville, N. C., to tbe plaintiffs. Tbe shoes were never delivered, and in tbe express receipt executed by tbe defendant there was tbe following stipulation: “7.

Appeal by propounders from Bay, J., at November Term, 1921, of Guileoed. This is a proceeding for the production and probate of a certain paper-writing as the will of J. Vestal Johnson. At tbe bearing bis Honor found tbe following facts, to wbicb all parties agreed: “1. Tbat J. Yestal Johnson died in tbe county of Guilford, State of North Carolina, after an illness of one week, on June 17, 1918, possessed of real and personal property. “2.

Appeal by defendant from Daniel, J., beard on ease agreed at March Term, 1921, of RobesoN. This action is to recover purchase price of one hundred thousand dollars ($100,000) bonds of Fairmont Graded School District, issued pursuant to ch. 42, Private Acts of Special Session 1920.

Appeal by defendants from McElroy, J., at December Term, 1920, of RICHMOND. • Civil action of. ejectment, commenced in July, 1920.

Appeal by both, parties from McJSlroy, J., at November Term, 1920, Of SCOTLAND. This is a controversy over the construction of item 3 in the will of Hugh L. Patterson. A jury trial was waived, and from the judgment of the court both parties appealed.

<p>Appeal by defendant from Bryson, J., at September Term, 1920, of GASTON.</p>

Appeal- by plaintiff from Bryson, J., at October Term, 1920, of MECKLENBURG. This action, begun in the court of the justice of the peace by the plaintiff, a merchant of Columbia, S. C., seeks to recover from the defendants, expert dyers and cleaners of Charlotte, N. 0., $191.25 and interest, alleging that the plaintiff sent certain articles of wearing apparel to the defendant company to be cleaned and the same were never returned to him.

Appeal by defendant from Harding, J., at April Term, 1921, of MeCKLENBuEG. This case comes here upon a case agreed, heard before Judge Harding, with reference to the title to a house and lot in the city of Charlotte, N. C., the plaintiffs having entered into an agreement with the defendant for the purchase of the same by him.

Appeal by defendants from Finley, J., at September Term, 1920, of Forsyth. The plaintiff’s testator, J. C. Tise, was the owner of the property known as Vade Mecum Springs, a summer resort in Stokes County. By bis will be gave directions for bis burial and made certain bequests to bis wife and to bis relatives, and to tbe cburcb and to tbe poor of 'Winston, and to tbe endowment fund of tbe Y. W. 0. A. of Winston, and then followed: “Item (i).

Appeal by defendant from Tlardmg, J., at March Term, 1921, of MeceleNbueg. Controversy without action, beard upon, the following .agreed statement of facts: “1. That both plaintiff and defendant are corporations organized and existing under the laws of the State of North Carolina, with their principal offices in Charlotte, N. C. “2.

Appeal by petitioners in partition proceedings from Finley, J., at June Term, 1920, of RichmoNd. Tbis is a proceeding for partition of land. Both parties claim under Joseph Hines, who died in 1865, leaving a will. In the first item of tbe will the testator devised all his property to his wife for life.

<p>1. Constitutional Daw — Statutes—Bocal Daw — Road Districts — Counties.</p> <p>A public-local act incorporating road commissioners of a county, and giving them the powers, rights, duty and authority, as to the highways of that county, etc., that were formerly held by the county commissioners, does not contravene sec. 29, Art. II, of the State Constitution, in depriving the board of county commissioners of certain powers relating to the public roads therein.</p> <p>2. Same — Bonds.</p> <p>An act of the Begislature authorizing the road commissioners of a county to issue bonds, upon the approval of its electors, to obtain moneys for the expenditure upon certain particularly designated objects in respect to its public roads, and which does not contain any provision for the laying out, altering or discontinuing any road or highway, does not contravene Art. II, sec. 29, of our State Constitution, prohibiting the Begislature from passing local, private or special act relating to the subject.</p> <p>3. Same — Limitation of Issuance of Bonds in Series.</p> <p>Municipal or district bonds for road purposes may be issued in tbe judgment of tbe proper authorities as and when needed, when tbe statute under wbicb they are issued impose no limitation tbereon, except as to tbe total amount, by requiring that it should not exceed a certain per cent of tbe assessed property valuation of tbe district.</p> <p>4. Same — Notice to Purchasers of Bonds.</p> <p>Where tbe proper authorities are given, under tbe statute, discretion to issue road bonds for a district as and when needed, not exceeding an amount to be ascertained according to a percentage of tbe assessed property valuation of tbe district, a provision in tbe order for issuing tbe bonds, that it was tbe first to be made, is notice that other bonds under tbe same power would thereafter be issued.</p> <p>5. Constitutional Law — Road Districts — Counties—Municipal Corporations — Statutes—Amendments to Statutes — Elections.</p> <p>An amendment to a former act authorizing a road district to issue bonds for road purposes upon tbe approval of tbe electors, wbicb imposes additional expenditures and reduces tbe amount of tbe bonds to be issued, and is silent as to another election on tbe question, restores tbe authority of tbe former act, and tbe purchasers of tbe bonds may not successfully maintain that another election is essential to tbe validity of tbe bonds.</p> <p>6. Same — Necessary Expenses.</p> <p>Tbe expenditure of moneys by a road district for its roads is for necessary purposes, and where bonds are authorized by statute to be issued with tbe approval of tbe electors of tbe district, an amendment to tbe act, wbicb is silent upon tbe question of holding another election, cannot be construed to require it.</p> <p>7. Elections — Polling Places — Electors—Presumptions—Notice.</p> <p>Where polling places in each township of a road district have been established for a long time and are regarded as permanent, it will be presumed that each voter within tbe district knew where be should register and vote on tbe question of bonds, and where tbe notice of tbe election complied with tbe law except designating tbe exact location of these well-known polling places, tbe election will not be declared invalid solely on that account.</p> <p>8. Municipal Corporations — Bonds — Maturity of Bonds — Statutes— N otice — Contracts.</p> <p>A purchaser of municipal bonds, having a definite time fixed for their maturity, purchases with notice of tbe provisions of a statute authorizing their issuance, permitting tbe obligor to pay tbereon within five years, or create a sinking fund, and be is bound by bis contract: SemMe, this question is only academic.</p>

Appeal by plaintiff 'from Bay, J., at November Term, 1920, of Stoees. Civil action to recover damages for an alleged breach, of a written contract to convey land.

<p>Appeal by defendant from Bay, J., at December Term, 1920, of Guilford.</p> <p>Tbis is a controversy pending in tbe Superior Court of Guilford County wherein the plaintiffs filed petition for a writ of mandamus, praying that the defendant be required to furnish electric current and power to the plaintiff, North Carolina Public Service Company, through its substations at Greensboro and High Point, for use in operating the street-car lines in both of said cities, and for the use and benefit of the municipalities and the citizens thereof for light and power, as is now being furnished.</p> <p>In apt time the defendant, observing the requisite formalities, filed a petition for removal of the cause to the District Court of the United States for the Western District of North Carolina. This motion for removal was denied, and the ruling was affirmed on appeal. The defendant then filed an answer to plaintiffs’ petition, joining issue upon the merits of the case.</p> <p>Thereafter plaintiffs applied to the court below for a temporary injunction, as ancillary to the original proceeding, which was granted and made returnable at Greensboro on 14 December, 1920. Prior to said return date, the defendant filed a second petition and bond, again asking that the case be removed to the Federal Court. This was denied, and defendant gave notice of. appeal.</p> <p>Plaintiffs then moved for judgment on the pleadings, which was allowed. Defendant excepted and appealed.</p>

Appeal by plaintiffs’ from MoElroy, J., at first September Term, 1920, of RICHMOND. Civil action to recover damages for alleged ponding of water against and sobbing lands of plaintiffs by reason of defendant’s concrete dam and flash dam at Blewett’s Falls on tbe Pee Dee River. There was a verdict and judgment in favor of the defendant. Plaintiffs appealed.

<p>1. Deeds and Conveyances — Timber—Reservation of Title — Conditions— Notice.</p> <p>A grantor of lands reserving “all wood and timber” thereon, with provision that should the grantee divide the lands into the lots the reserved right would cease “after any building is begun,” is required to give a reasonable notice of the time the reservation shall expire, when no time limit therefor is specified.</p> <p>2. Same — Equity—Cloud on Title — Suits.</p> <p>Where the grantor of lands has reserved the right to the timber growing thereon, but this right to cease if the grantee divide the lands into lots and erect buildings thereon, and the grantee, after reasonable notice to cut the timber has not done so on all of the lots, his claim of right to continue the cutting as to these remaining lots is a cloud upon the grantor’s title, which he may have removed in his suit for that purpose.</p> <p>3. Deeds and Conveyances — Timber Deeds — Expiration of Time Limit— Injunction — Equity.</p> <p>An order perpetually enjoining a grantee in a deed from cutting timber upon land after his right has ceased is a proper one in a suit by the owner to remove the grantee’s claim of right as a cloud upon his title.</p> <p>4. Appeal and Error — Supreme Court — Equity—Bill oí Peace — Pending Suits — Injunction—Statutes.</p> <p>A judgment of tlie Superior Court may be modified on appeal wliere tbe plaintiff’s right to remove adverse claims as a cloud upon his title to lands has been established, so as to enjoin, upon defendant’s appeal, actions pending in the Superior Court involving the same equity and the same subject-matter, where the parties thereto have been made parties to the case at bar, the proceedings being in the nature of a bill of peace. C. S., 1412.</p>

Appeal by plaintiff from Shaw, J., a>t tbe October Term, 1920, of BueKe. Action beard on appeal of plaintiff from a justice court to tbe Superior Court.

Appeal by plaintiff from Lane, J., at the July Term, 1920, of RANDOLPH. Plaintiff contracted with defendants to sell them a roller-mill outfit for $1,225, to be paid in certain specified installments.

Appeal by plaintiff from Lane, J., at the November Term, 1920, of CabaRRus. The action is to recover damages done to plaintiff's automobile in a collision on the public road leading from Concord to Kannapolis by the alleged negligence of Jay Litaker, a minor son, 17 or 18 years of age, who was driving his father’s car, and who was endeavoring to pass another automobile in front of him.

Appeal by plaintiff from Bryson, J., at the December Term, 1920, of GaSTON. This is an action instituted in the justice’s court on 16 August, 1920, to recover the sum of $24 paid by him to the city of Gastonia as a license tax imposed by said city for the business of operating one automobile for hire in said city, for the fiscal year beginning 1 June, 1919, to 1 June, 1920.

Appeal by defendant from Lane, J., at September Term, 1920, of EowaN. Civil action to recover of defendant, as a common carrier, (1) damages for tbe loss of a carload of lumber belonging to plaintiffs; and (2) for an alleged negligent burning of same. Plaintiffs, wbo are lumber dealers, undertook to sbip some lumber from Elmwood, N. 0., to tbe Danville Lumber Company, Danville, Ya., in tbe summer of 1918, over tbe defendant’s railroad.

Appeal by defendant from Bryson, J., at the September Term, 1920, of Mecklekburg. The action is to recover damages for destruction of a building of plaintiff, situated within tbe limits of the city of Charlotte, and caused by the alleged negligence of defendants in failing to furnish a timely and adequate water supply to enable the fire-department to extinguish the fire and save plaintiff’s building.

<p>Civil action, tried before Harding, Jand a jury, at February Term, 1921, of MeckleNbueg.</p> <p>Tbe action is instituted by plaintiff against Mecklenburg County to recover tbe sum of $1,010.60 paid by tbe plaintiff to tbe sheriff under protest to prevent a sale of certain personal property upon wbicb plaintiff beld a chattel mortgage, tbe said sum being a license tax alleged to have been due to State and county by tbe Mecklenburg Amusement Company for tbe year commencing 1 June, 1918, and expiring 31 May, 1919. Tbe facts in evidence tended to show that plaintiff, on 10 October, 1917, sold to one Robert Welch twenty pool tables, etc., taking a mortgage, or -contract for conditional sale, duly registered, to secure purchase price. That some time thereafter said Welch sold his interest in said property to the Mecklenburg Amusement Company, and this company operated said pool tables at Liberty Park, outside the corporate limits of the city of Charlotte, from some time the latter part of 1917 until about the first of February, 1919. That the sheriff collected the license tax from the company _ for the year ending 31 May, 1918, though the company operated said tables, etc., to last of January or first of February, 1919, as stated, without having paid the tax or obtained license or applied for same to the county commissioners or otherwise. That the levy by the sheriff was for the unpaid tax and the plaintiff holding the mortgage or lien to secure the debt paid same under protest, having made proper demand upon treasurer of the county and the State Treasurer, as the statute requires, instituted this action to recover the amount. It further appeared that on obtaining possession of the property plaintiff caused it to be sold at public auction under the terms of the mortgage or lien, and bought the same in at $2,200, and plaintiffs indebtedness at the time of sale, and secured by the instrument, was $2,726.96. Plaintiff admitted that the property was worth at least the $2,200, and on an issue submitted the jury fixed the market value of same at $3,750.</p> <p>On these, the facts pertinent, the court entered judgment that the defendant go without' day, and plaintiff excepted and appealed.</p>

<p>1. Appeal and Error — Service of Case — Affidavit—Counter Affidavit— Certiorari.</p> <p>An affidavit of counsel that time had been agreed upon for preparing and serving his ease on appeal will be considered in the Supreme Court on appellee’s motion to dismiss, where uncontradicted by counter affidavit, and the motion will be disallowed, and a certiorari will issue, where appellant shows merits.</p> <p>2. Same — Settlement of Case.</p> <p>Where the trial judge has not sufficiently passed upon the appellant’s exceptions to the report of a referee and has unsuccessfully endeavored to draw a judgment satisfactory to the parties, which was to be first submitted to them before filing, and has inadvertently failed to notify the appellant of its filing, who was not satisfied therewith and desired to appeal, his exceptions presenting serious legal questions for final adjudication, the Court will remand the case to afford the appellant opportunity to be heard upon his exceptions by the trial judge, and to have him settle the case on appeal, in the course and practice of the court, upon the refusal in the Supreme Court of the appellee’s motion to dismiss.</p> <p>8. Appeal and Error — Reference—Superior Court — Affirmance of Report —Evidence.</p> <p>The Supreme Court will not,' on appeal, pass upon the affirmance by the trial judge of facts found by the referee, upon supporting evidence.</p> <p>4. Appeal and Error — Docketing of Case — Superior Courts — Order Extending Time for Docketing.</p> <p>While the trial judge may not extend the time of appellant to file his case on appeal, except by consent, this consent is presumed when the order for an extension is filed, or is of record.</p>

Appeal by plaintiffs from Long, Jat tbe Special October Term, 1920, Of TRANSYLVANIA. It is well in a case of tbis kind to so state tbe facts as to present alternatively tbe contentions of tbe parties, witb sucb reference to tbe testimony as will serve to give a clear conception of tbem, and substantially using tbeir language. PlaiNtiffs’ Contention.

<p>Appeal by plaintiff from McElroy, J., at February Term, 1921, of BüNCOMBE.</p> <p>Tbis is an action to recover damages for an alleged breach of covenant of seizin for defect of title as to 98.6 acres in a tract of land. The defendants executed to the. plaintiff a conveyance for several tracts of land, and the plaintiff alleges that as to a portion of tbe first tract of land therein recited there is a defect of title as to 98.6 acres. Upon the agreed statement of facts the court rendered judgment against the plaintiff, and he appealed.</p>

Appeal by plaintiff from Long, J., at December Term, 1920, of BUNCOMBE. Tbe action is brought by an endorsee and bolder in due course of a promissory note given by one J. M. Carver to J. W. Crafton, defendant, for money won by tbe defendant in a game of cards and endorsed by tbe defendant, tbe payee of tbe note, in due course and for value to plaintiff bank.

<p>Appeal by defendant from Alien, J., from judgment on case agreed, rendered March, 1921, from Beaueobt. . '</p> <p>This is a controversy submitted without action on an agreed statement of facts, and the single question presented is whether Seth B. Baugham is the owner of the indefeasible fee in the lot of land described in the agreement of the parties.</p> <p>W. P. Baugham, who was the former owner of this and other lands, died in 1910, leaving a will, the third item of which is as follows:</p> <p>“3d. Should I die without leaving any children or child surviving me, or should my children die without surviving them any lawfully begotten children or issue, should one or more die without legal issue, the remaining ones to share in that one’s or their interest in my estate, share and share alike. Should all of my children die leaving no lawfully begotten issue, then in that case I give, devise, and bequeath all of my' said property to my heirs at law, said heirs to be determined by the laws of the State of North Carolina.”</p> <p>At the time of his death the said W. P. Baugham left surviving him Mary A. Baugham, widbw; William E. Baugham, Seth B. Baugham, Pattie B. McMullan, Christine 0. Baugham, and Mary Baugham (James H. Baugham, one of the children of W. P. Baugham, deceased, having died intestate, without issue, in July, 1918), all of whom joined in a petition for partition in which there was the following allegation:</p> <p>“That your petitioners, Pattie B. McMullan, William E. Baugham, Seth B. Baugham, Christine C. Baugham, and Mary Baugham, desire to own their respective interests in the said lands, described in section two hereof (which includes the locus in quo), in severalty, in fee simple, absolutely free from the limitation over to- them, respectively, in case of the death of any without leaving surviving children, as set forth in the will of W. P. Baugham, deceased, and your petitioner, Mary A. Baugham, consents to the said division upon the express condition as follows: (Sets forth conditions as to payment of her annuity not here involved.)</p> <p>“The clerk of the Superior Court, in ordering the partition of the said lands, adjudged that the same should be divided in accordance with the above stipulation, and the decree of the said clerk has been duly confirmed by the judge.”</p> <p>Tbe lot involved in tbis controversy was allotted in said proceeding to Setb B. Baugbam.</p> <p>His Honor beld that Setb B. Baugbam was tbe owner of tbe lot in fee simple absolute, and tbe defendant excepted and appealed.</p>

<p>Appeal and Error — Objections and Exceptions — Negligence—Evidence Admitted Without Objection — Questions for Jury — Trials.</p> <p>The principle upon which an exception to the admission of evidence is untenable when such has theretofore been admitted without objection, has no application when the testimony excepted to is incompetent as an invasion of the province of the jury to ascertain a fact at issue as to the defendant’s actionable negligence, and that formerly admitted relates to notice of defendant of the conditions existing at the time. (Stacy, J., on petition to rehear.)</p>

<p>Appeal by plaintiffs from McMroy, Jat September Term, 1920, OÍ RICHMOND.</p> <p>This was an action to recover damages for ponding water against and sobbing lands of the plaintiffs by reason of the defendant’s concrete dam and. flash dam at Blewett’s Falls on the Pee Dee River. Yerdict and judgment for defendant. Appeal by plaintiffs.</p>

Appeal by defendants from McElroy, J., at August Term, 1920, of UNION. Tbis was an action for tbe abduction of plaintiff’s sixteen-year-old daughter from bis borne by tbe defendants. Yerdict. and judgment for plaintiff. Appeal by defendant.

Appeal by plaintiffs from Lane, Jat May Term, 1921, of Mece-LENBURG.

Appeal by defendant from Harding, J., at August Term, 1920, of Rutheeeoed. Civil action to recover damages for injuries resulting from maintaining an alleged nuisance.

Appeal by plaintiff from- Shaw, J., at February Term, 1921, of Catawba. The plaintiff’s intestate was killed 30 September, 1919, by the overturning of a one-ton motor truck near Icard, wkicb was owned and operated by tke defendant in connection with his hardware business-It was driven by an employee, Titus Hefner.

Appeal by defendant from Wébb, J., at October Term, 1920, of JACKSON. Civil action to recover an alleged balance due on a grocery account.

Appeal by plaintiffs from Long, J., at January Term, 1921, of Haywood. Civil action to recover upon two contracts of insurance. They were written by tbe defendant to cover a certain lot of lumber belonging to tbe plaintiffs and wbicb was destroyed by fire while said contracts were in force.

<p>1. Gilts — Inter Vivos — Causa Mortis — Possession—Delivery.</p> <p>In order to a valid gift of personal property inter vivos tliere must be an actual or constructive delivery with the present intent to pass the title, applying also to gifts causa mortis, with the principal distinction that the latter are made in contemplation of death from a present illness or peril, and is revocable during the life of the donor and revoked by his recovery or escape or by his surviving the donee.</p> <p>2. Same — Donative Intent.</p> <p>Where a chose in action is represented by a bond or other written obligation, a valid gift may be made by delivery of the instrument without indorsement with the intent to presently pass the'title, and when the donee is the debtor there may be a gift of the chose in action by a destruction of the instrument with the intent to give, or a written receipt of whole-or a part of the debt.</p> <p>3. Same — Postponement ol Enjoyment.</p> <p>Where a gift is otherwise complete, it will not be rendered ineffective merely because the enjoyment is postponed to a future date or until the death of the donor.</p> <p>4. Same — Conditions.</p> <p>Where the subject of a gift is not reasonably capable of actual delivery, such is not always required; and where the payee of a note indorses the principal sum to the maker, with the present intent of a gift, but reserves the right to the interest during her life, and retains the possession of the note, this possession so retained is evidently for the purpose of enabling her to collect the interest during her life, passing to the donee all control and ownership of the, principal sum, and does not affect the validity of the gift, which becomes effective at the death of the donor when the conditions have been performed. Semble, a written assignment is necessary to a valid gift when the subject-matter is a mere chose in action, and not evidenced by written instrument.</p> <p>5. Gifts — Acceptance—Presumptions.</p> <p>Where a donor, in the presence of the donee, makes a gift to the principal of his note to him, and retains the right to the interest during her life, the latter’s acceptance is presumed, nothing else appearing.</p>

Appeal by defendant from Calvert, J., at tbe November Term, 1920, of Pasquotank. Tbe plaintiff brought tbis action against tbe defendant for lumber sold and delivered and for wbicb tbe defendant agreed to pay a specified price. Tbe defendant admitted tbe purchase of lumber and tbe price agreed upon, but alleged that tbe lumber actually received was not 90 per cent heart as purchased, as a result of wbicb tbe defendant bad been damaged to tbe extent set up in its counterclaim.

! Appeal by botb parties from Horton, J., beard on case agreed, from PERSON. Tbis is a controversy without action submitted under section 626 of Consolidated Statutes, for tbe purpose of obtaining a construction of certain sections of tbe last will and testament of Jobn 0. Terrell, deceased, and settling certain controversies wbicb bave arisen by reason of a devise to Cunningham School District.

Appeal by defendant from McElroy, J., at the August Term, 1920, of UNION. This'is an action to recover damages for personal injuries. There was a verdict and judgment for the plaintiff, and the defendant appealed.

Appeal by defendants, beard on case agreed by Ray, J., 30 November, 1920, from Stokes. Tbis is a proceeding for partition of land tried on tbe following agreed facts: 1. Tbat Williams II.

Appeal by defendant from Connor, Jat tbe May Term, 1921, of WaKE, a jury trial having been duly waived.

<p>Appeal by plaintiff from Long, J., at tbe February Term, 1921, of CHEROKEE.</p> <p>Plaintiff claimed that J. S. Bateman & Company, of Cincinnati, Ohio, owed it. Plaintiff was holding Bateman & Company’s hay, at Murphy, N. 0. Bateman called iffaintiff over the telephone, and plaintiff agreed to release the hay if Bateman would get Early & Daniels Company to guarantee the claim. Bateman then went to Early & Daniels Company, told them Fain did not want to pay Bateman’s drafts because of some shortage claims which existed, and asked them to wire Fain of his standing. Early and Daniels Company then sent this telegram: “J. S. Bateman & Company reliable people. Any justifiable claims will be taken care of promptly.” • Bateman & Company were then in business, apparently doing well, and Mr. Boss, who sent the telegram, considered him solvent, and sent the message in good faith. Plaintiff was in a position to protect itself by holding Bateman’s hay. Plaintiff trusted Bateman to make a guaranty contract with Early & Daniels Company, jbut ^Bateman did not do tbis. Early & Daniels Company did not know that Fain was bolding tbe bay, nor tbat Fain was to release it if Early & Daniels Company would guarantee tbe account.</p> <p>Tbe court submitted tbe following issues:</p> <p>“1. Did tbe defendant, Early & Daniels Company, falsely and fraudulently represent to tbe plaintiff tbat J. S. Bateman & Company were reliable people, and would promptly take care of any justifiable claims of tbe plaintiff against said Bateman & Company, as alleged in tbe complaint? Answer:‘No.’</p> <p>“2. Did tbe plaintiff, upon tbe faitb of tbe said representation of Early & Daniels Company, extend credit to J. S. Bateman & Company for tbe amount as alleged in tbe complaint, to wit, $291.61 % Answer : ‘No.’ ”</p> <p>Tbe court beld tbat there wasjio guaranty, and upon tbe verdict gave judgment for tbe defendant, and plaintiff appealed.</p>

Appeal by plaintiff from Calvert, J., at tbe November Term, 1920, of OamdeN. On 12 September, 1917, John G. Gray died domiciled in Camden County, and intestate, leaving an estate of land and personal property worth, as defendants contended, about $12,000. Defendant Harrison qualified as administrator. About 20 September, tbe defendants approached the plaintiffs and asked them what they would take for their interest in the estate.

Appeal by defendant from Lane, J., at the October Term, 1920, of Ieedell. This is an action, commenced 1 May, 1919, to recover land, which formerly belonged to Jane E. Click, a married woman, who died intestate in October, 1901, leaving as her only heirs one daughter, Annie Fleming, and the plaintiffs, who are the children of a deceased daughter, Belle V., and of the defendant, W. S. Clendenin. The interest of Annie Fleming has been conveyed to the plaintiffs.

<p>Appeal by plaintiff from Connor, J., at January Term, 1920, of CRAVEN.</p>

Appeal by defendant from Cranmer, J., at November Term, 1920, of WlLSON. Tbis'is a proceeding to sell one hundred acres of land for partition, the petitioners claiming that they are tenants in common with the defendants as the heirs of Martha Barnes.

Appeal by defendant from Lyon, J., at November Term, 1920, of Beetle. Civil action for damages, tried upon an alleged negligent injury to plaintiff’s two mules. Yerdict and judgment in favor of the plaintiff. Defendants appealed.

Appeal by plaintiff from Bond, J., at December Term, 1920, of JoNES. Civil action to recover upon a life insurance policy issued by tbe defendant to plaintiff’s intestate, Guy T. Kinsey. Tbe case turns upon a single question. Defendant admitted tbe execution of tbe policy and its liability tbereon, unless its plea of suicide witbin tbe stipulated period was found to be valid.

Appeal by plaintiff .from Bond, J., at October Term, 1920, of Pamlico. Civil action to recover the price of a carload of Irish potatoes. Verdict and judgment in favor of the defendant. Plaintiff appealed.

Appeal by plaintiff from Bond, J., at July Special Term, 1920, of Chatham. Civil action to recover two tracts of land, consisting of 110 acres and 7y% acres respectively. Upon issues joined, the following verdict was rendered by the jury : “1. Was E. J. Yarborough, at the time she executed the deed to J. A. Yarborough for the 110-acre tract described in the amended complaint, the tenant of the company from and under whom plaintiff land and timber company claims title?

Appeal by defendant from Connor, J., at October Term, 1920, of LeNOIR. This was an indictment for highway robbery. Defendant was convicted of larceny from the person; and from the judgment of the.court upon the verdict he appealed.

<p>Appeal and Error — Parties—Case Remanded.</p> <p>A case on appeal will be remanded to make additional parties, when they appear from the agreed case to be necessary for a proper determination of the controversy.</p>

Appeal by defendants from Connor, J., at the November Term, 1920, of DüPLIN. This is an action to recover the value of one gray mare and one mule.

Appeal by defendant Aman from Connor, J., at September Term, 1920, of SampsoN. Civil action, tried upon exceptions to report of referee. Upon tbe bearing bis Honor modified tbe findings of tbe referee in some particulars, and as tbus amended tbe same was adopted and approved and judgment entered tbereon in favor of tbe plaintiff. Defendant A. W. Aman excepted and appealed.

Appeal by defendant from Connor, J., at tbe September Term, 1920, of SAMPSON. Tbis is an action on a policy of insurance.

Appeal by defendant from Daniels, J., at October Term, 1920, of New HaNover. Tbis was a civil action to recover on a contract of insurance issued by tbe defendant on tbe life of Lee Roy Hart for tbe benefit of bis mother, plaintiff herein.

Appeal by plaintiff from Kerr, J., at tbe February Term, 1921, of New HaNOVee. Tbis is an action to recover damages for tbe death of tbe intestate of tbe plaintiff, caused, as tbe plaintiff alleges, by tbe negligence of tbe defendant in tbat (1) tbe defendant failed to keep a proper lookout down tbe track; (2) tbat tbe defendant failed to bave a jack-knife or derailer or other appliance on its storage track at Warsaw. .

Civil aotioN beard on report of referee and exceptions thereto. Appeal by intervenors from Allen, J., at February Term, 1920, of CumbeelaNd.

<p>1. Carriers of Passengers — Alighting from Train — Proper Assistance— Negligence — Damages—Insult—Punitive Damages.</p> <p>Passengers alighting from a train at a station are entitled to reasonable and proper assistance, and when the conductor has been made aware of a physical infirmity of a very old woman, and that her condition required a stepbox or an ordinary box from the lower step to the ground, which he could readily and easily have furnished, but insultingly refused to do so, the company is. not only responsible in actual damages for the injury proximately caused, but in punitive damages to be awarded in the discretion of the jury.</p> <p>2. Appeal and Error — Objections and Exceptions — Evidence.</p> <p>. Exception to evidence should be specific when a part thereof is unobjectionable, and a general exception thereto cannot be sustained on appeal.</p> <p>3. Appeal and Error— Verdicts— Nonsuit— Peremptory Instructions— Evidence.</p> <p>Verdicts of juries are accepted as right- on appeal unless some legal error has been, committed by the trial judge sufficient to set them aside, and unless there is such, the action of the trial judge in refusing a motion to nonsuit, or its equivalent, a peremptory instruction upon the evidence, will not be disturbed on appeal.</p>

Appeal by defendant from Allen, J., at September Term, 1920, of ALAMANCE. This was an action to recover $452.50 alleged to be due as commissions on. the sale of three motor trucks for defendant under a verbal contract. There was conflict in the evidence which was fairly submitted to the jury.

Appeal by plaintiff from Finley, J., at November Term, 1920, of Roobiingham. Action to set aside a deed for a right of way over plaintiff’s lands and an agreement fixing the compensation or amount of damages therefor, plaintiff alleging that his signatures to said instruments were procured by the false and fraudulent representations of defendant’s agent. Upon issues joined, the jury returned the following verdict: “1.

Appeal by plaintiff from Ray, J., at November Term, 1920, of Guilpoed. Civil action for trespass which involved tbe true location of tbe dividing line between tbe premises of plaintiff and defendants who were adjoining landowners. Tbe locus in quo is a strip of land about 28 feet wide, to which both parties claimed title and possession. Upon issues joined, there was a verdict and judgment in favor of defendants. Plaintiff appealed.

Appeal by defendants from Ray, J., at October Term, 1920, of Guil-ford. This is an action to recover of the defendant on account of a breach' of contract for labor done, services performed, expenses incurred, profits earned, and money paid out by the plaintiff for the use of the defendant. Complaint was duly filed, and in the answer there was a general denial.

Appeal by defendant from Harding, J., at March Term, 1921, of MeokxeNbueg. Controversy without action, heard upon an agreed statement of facts, substantially the same as those in the case of The Stephens Go. v. Myers Park Homes Go., just decided. Judgment in favor of plaintiff. Defendant appealed.

Appeal by defendants from Bryson, J., at September Term, 1920, of MECKLENBURG. This is an action to recover the value of certain furs which the plaintiff sent to the defendants to be repaired and which it is alleged the defendants failed to return. There was a verdict and judgment for the plaintiffs, and the defendants appealed.

Appeal, by plaintiff from Adams, J., at January Special Term, 1921, of TaNCEY. Civil action to recover damages for an alleged negligent injury and killing of plaintiff’s intestate. There were facts in evidence tending to show that the deceased and his younger brother, on 29 June, 1920, employed by the defendant for the purpose, were engaged in stacking lumber on the defendant’s mill yard.

Appeal by defendant from McElroy, J., at March Term,' 1921, of BTJNCOMBE. Criminal indictment charging the defendant with transporting, receiving, keeping on hand for sale and selling spirituous and intoxicating-liquors, contrary to the form of the statute in such eases made and provided, and against the peace and dignity of the State.

Appeal by defendant from McElroy, J., at January Term, 1921, of BUNCOMBE. The defendant was tried and convicted on a bill of indictment which charged the possession of liquor for an illegal purpose and transporting the same, and from the judgment upon such conviction he appealed to this Court. The defendant introduced no evidence.

Appeal by plaintiff from Cormor, J., at December Term, 1919, of WayNE. Civil action to recover damages for an alleged breach of a logging and sawmilling contract. Defendants denied liability and set up, by way of further defense, counterclaims arising out of alleged breaches of the same and other contracts by the plaintiff. By consent, the case was referred to a referee under the statute, to hear the evidence and report his findings of fact and conclusions of law.

Appeal by plaintiffs from McElroy, J., at May Term, 1919, of JACKSON. Tbe action is claim and delivery for logs cut from a certain tract of land in said county, and it was admitted by tbe parties litigant tbat tbe title depended on whether the plaintiffs or defendant owned tbe land from which the logs had been cut. His Honor in effect instructed the jury that on the evidence, if believed, the title was independent in the defendant.

<p>Appeal by plaintiff from Finley, J., 26 May, 1921, from Guilfoed.</p>

<p>Criminal Law — Abortion—Pregnancy—Destruction of Unborn Child— Drugs — Advice—Intent—Indictment—Evidence.</p> <p>Indictment and evidence that the defendant advised the prosecutrix, who was then “pregnant or quick with child,” to take a certain drug, medicine, or substance with intent to destroy the child is sufficient for a conviction under C. S., 4226, the advice and intent for the stated purpose being indictable under our statute. Rev., 3618 and 3619.'</p>

<p>INDICTMENT for secret assault. Appeal by defendant from Bond, J., at October Term, 1920, of Pamlico. Defendant was convicted of an assault with a deadly weapon. Judgment on verdict, and defendant excepted and appealed.</p>

<p>1. New Trials — Homicide—Criminal Law — Mob Violence — Appeal and Error.</p> <p>The principle that a new trial will he granted in a criminal action where the conduct of a lawless mob, hostile to the prisoner, had direct bearing on the immediate conduct of the trial, and was of a kind or character intended and well calculated to distract the jury from intelli'gent, calm, and impartial consideration of tire issues involved, liag no application when, as under the facts of this case, it is made to appear that the cause was impartially heard and determined in a seeming and well-ordered manner, entirely unaffected by the futile action of the lawless element endeavoring to break into the jail and lynch the several defendants under indictment for murder in the first degree, and giving every assurance that the rights of the defendants, and each of them, were given full consideration.</p> <p>2. Trials — Criminal Law — Severance—Court’s Discretion.</p> <p>In criminal cases, as in this one, a trial of several defendants for the same homicide, it is within the sound discretion of the trial judge to permit or refuse defendants’ motion for a severance, and it will not be reviewed in the absence of patent and gross abuse.</p> <p>,3. Trials — Evidence—Infants—Court's Discretion — Appeal and Error. ■</p> <p>Objection to the admission in evidence of the 11-year-old son of the .deceased, on account of his youth and incapacity, etc., upon the trial of homicide, is to the sound legal discretion of the trial judge, which is not reviewable on appeal in the absence of patent or gross abuse.</p> <p>4. Appeal and Error — Objections and Exceptions — Unanswered Questions.</p> <p>Exceptions to the rejection from the evidence of unanswered questions will not be considered on appeal when the answers thereto are not made to appear.</p> <p>5. Jury — Evidence—Jury Room — Documents, Etc. — Trials.</p> <p>The jury must determine the cause before them on the evidence as it is heard by them or as presented in open court, unless by consent and in certain restricted instances allowed by statute, and, as a matter of right of a party, the jury is not allowed to take with them documentary or other written evidence for their private inspection.</p>

<p>1. Appeal and Error — Objections and Exceptions — Instructions—Contentions.</p> <p>An objection of a party to an action that the trial judge did not state his contentions with sufficient fullness to the jury, while the contentions of the other party were fully given, should be made in time to afford the judge an opportunity to supply any omission, or it will not be considered on appeal.</p> <p>2. Verdict — Impeachment—Evidence.</p> <p>Evidence to impeach and set aside a verdict of a jury must be shown by other evidence than that of the jurors, or any of them, to be considered on appeal. As to the power of the court to set aside a verdict for cause after adjournment, see S. v. Kinsmils, 126 N. C., 1095, and other cases cited in the opinion.</p> <p>3. Same — Appeal and Error — Findings.</p> <p>The trial judge should find the facts upon which he refuses to set aside a verdict for cause, on appellant’s motion, or it will not be considered on appeal.</p> <p>4. Jurors — Verdict—Evidence—Compromise—Personal Consideration.</p> <p>Jurors on a trial for a criminal offense are required to form their opinion of the'guilt or innocence of the defendant from the evidence, and it is gross wrong in them to agree to the verdict rendered, with a recommendation for mercy, básed upon consideration of personal inconvenience, and thus compromise with the other jurors.</p>

Appeal by defendant from Cranmer, J., at November Term, 1920, of Nash.

Appeal by defendant from Horton, J., at November Term, 1920, of CuMBERLAND. Criminal prosecution, tried upon an indictment charging tbe defendant with manslaughter. There was-evidence on behalf of the State tending to show that on Sunday, 25 April, 1920, about 6 p. m., James A. King was struck by an automobile and injured to such an extent that he died within three or four hours thereafter.

CbimiNal action. Appeal by defendant from Granmer, J., at January Term, 1921, of Pender. Indictment was for an assault and battery on Jessie Brown, etc. On bearing, defendant plead guilty of statutory assault on a female. C. S., '4215. It was admitted by tbe solicitor tbat no deadly weapon was used and no serious damage done.

<p>1. Appeal and Error— Criminal Law— Judgments— Sentence— Court’s Discretion.</p> <p>Where a statute leaves a punishment for its violation within the sound discretion of the trial court, the sentence imposed therein will not be reviewed by the Supreme Court on appeal where its exercise has not been grossly and palpably abused.</p> <p>3.Criminal Law — Statutes—Automobiles—Highways—Intoxicants—Sentence — Court’s Discretion.</p> <p>The intent of C. S., 4506, is to protect the public from the danger of intoxicated persons, etc., driving automobiles on public highways and streets, and the punishment imposed, being restricted by the statute to a minimum as to fine or imprisonment, is left to the sound discretion of the trial judge.</p> <p>3. Courts — Statutes—Jurisdiction—Inferior Courts.</p> <p>Where a statute creating a municipal court does not give it criminal jurisdiction over the offense of driving automobiles upon a public highway or street, while intoxicated, etc., this jurisdiction is acquired by Laws 1919, now C. S., 4506, to the extent only of binding the defendant over to the Superior Court upon conviction.</p> <p>4. Same — Appearance—Appeal Bond — Presumptions.</p> <p>The bond of the defendant given upon being bound over from an inferior to the Superior Court is for his appearance and answering in the Superior Court, and the recital in the bond that it is an appeal is immaterial when the upper court in fact had original jurisdiction of the offense.</p> <p>5. Criminal Law — Indictment—Waiver—Statutes—Pleas.</p> <p>The defendant, charged with a misdemeanor not containing the element of fraud, deceit, or malice, may, on his appeal to the Superior Court, waive the bill of indictment and the grand jury’s action thereon, by appearing and entering a plea of guilty, under C. S., 4610.</p> <p>6. Constitutional Law — Statutes—Criminal Law — Indictment—Waiver.</p> <p>C. S., 4610, authorizing the waiver of an indictment in the Superior Court by the defendant bound over .from an inferior court, is constitutional and valid. Constitution, Art. IV, sec. 13.</p> <p>7. Courts — Inferior Courts — Appeal—Superior Courts — Criminal Law— Misdemeanor — Indictment.</p> <p>Upon an appeal from an inferior court to the Superior Court from a conviction of a petty misdemeanor, the necessity of a bill of indictment in the latter court is dispensed with.</p> <p>8. Appeal and Error — Criminal Law — Pleas—Judgment—Pacts Admitted.</p> <p>Where a defendant in a criminal action pleads guilty in the Superior Court, on his appeal from the judgment he cannot question the facts charged or the regularity or correctness of the proceedings, and there is nothing for review except whether the judgment is legal upon the facts admitted.</p> <p>9. Criminal Law — Statutes—Sentence—Cruel and Unusual Punishments.</p> <p>A sentence of the Superior Court for two years on the public roads for violating C. S., 4506, in running an automobile upon the public highways or streets by one intoxicated, etc., cannot be held as a matter of law on appeal'as the unconstitutional imposition of a cruel or unusual punishment. .</p>

Appeal by defendant from Bay, J., at December Term, 1920, of Guileokd. Indictment for assault with intént to commit rape on one Lillian Marshall. The jury rendered a verdict of guilty of an assault on a ■female. Judgment on the verdict, and defendant excepted and appealed.

Appeal by defendant from Ray, Jat January Term, 1921, of RICHMOND. The defendant was indicted jointly with one Maner for the larceny of a Ford automobile, the property of one H. H. Anderson, and there was a count for receiving. The plea was not guilty.

Appeal by defendants from McElroy, J., at September Term, 1920, OÍ ÁNSON. Criminal prosecution, tried upon an indictment charging the defendants (fourteen in number) with conspiring, confederating and agreeing among themselves and with others to unlawfully and feloniously assault and murder one W. H. Watkins.

<p>1. Homicide — Self-defense—Evidence—Criminal Law — Appeal and Error.</p> <p>Where upon the trial for a homicide there is evidence tending to show that the deceased had drawn his pistol on his brother after a quarrel between them, at the same time threatening his life, and then they commenced shooting at each other, which resulted in death, upon the trial for a homicide the prisoner, by his own testimony, may show, with the burden of proof on him, that without default on his own part he had shot and killed under a reasonable apprehension of his own death or great bodily harm; and the exclusion of his answer .to a question to the effect that he so believed when he fired the fatal shot, is reversible error on his appeal, which will entitle him to a new trial.</p> <p>S. Same — Instructions—Trials.</p> <p>Where evidence of self-defense is erroneously excluded on the trial for a homicide, the error is emphasized by an instruction to the jury that a verdict of guilty of manslaughter at least should be returned, unless the jury should find that the prisoner had abandoned the fight in good faith or had signified his purpose to do so before firing the fatal shot.</p>

<p>Appeal by tbe,State from Ray, Jat January Term, 1921, of ANSON.</p> <p>Criminal prosecution for an assault with a deadly weapon, inflicting: serious injury upon one Ellis Harrington.</p> <p>It is admitted that at the time of the alleged assault, 2 May, 1920, the defendant was less than sixteen years of age; that he was arrested upon a warrant issued by a 'justice of the peace, and that upon the preliminary hearing a motion was made to transfer the cause to the juvenile court, based upon the following affidavit:</p> <p>“W. D. Coble, being duly sworn, says that he is the father of Jim Coble, the defendant, and that the’said Jim Coble is only fifteen years of age, and will not be sixteen until in July, 1920.</p> <p>“Wherefore, in behalf of said minor, he asks that the charge of assault against him be removed to the juvenile court for Anson County.</p> <p>“W. D. Coble.</p> <p>“Sworn to and subscribed before me, this 5 May, 1920.</p> <p>“E. E. Baebet, J. P.”</p> <p>This motion for removal was denied by the justice, and the defendant was bound over to appear and answer the charge preferred against him at the next term of the Superior Court.</p> <p>At the September Term, 1920, of Anson Superior Court a bill of indictment was returned by the grand jury, to which the defendant was required to plead; and it is admitted that at the time of the finding of said bill the defendant had reached the age of sixteen years.</p> <p>When the ease was called for trial at the January Term, 1921, the defendant renewed his motion to have the cause transferred to the juvenile court. This motion was overruled. Whereupon the defendant, reserving his right to enter a plea in abatement, submitted to the offense and moved to be discharged upon the ground that the prosecution had abated by reason of the fact that his case, at the time of the alleged occurrence, was cognizable only in the juvenile court, and that, as he had reached the age of sixteen years without any valid action having been taken against him, the Superior Court at term was without authority to proceed further in the cause. 'This motion was allowed, and the State appealed.</p>

Appeal by tbe defendant from Lane-, J., at May Term, 1920, of MecKLenbtjeg. Tbe defendant was indicted for an assault upon Ruth Martin with intent to ravish her. The evidence against the defendant will sufficiently appear from that .given by the prosecutrix herself, which is as follows: “On 12 April, 1920, I was living with my father, R. T. Martin, on North Caldwell Street. I am past eighteen years of age. I sleep on the second floor of my father’s residence.

<p>Appeal by defendant from Bay, J., at tbe January Term, 1921, of ANSON.</p> <p>Tbe defendant was tried on a bill of indictment cbarging murder of Frank Robinson, and be was convicted of manslaughter with a recommendation by the jury to the mercy of the court. From the judgment upon such conviction he appealed. The solicitor, at the outset, declined to ask for a verdict of murder in the first degree, but did ask for one of murder in the second degree.</p> <p>The State’s evidence tended to show that the defendant had been charged with begetting a bastard child on the person of a sister of the deceased; that the deceased had made many threats against the defendant, which threats were communicated to him; that in consequence of such threats the defendant armed himself with a pistol and came to the town of Wadesboro on 8 May, 1920; that the deceased sought him out and the trouble occurred between them in front of Gilmore’s store, in that town; that he entered into the fight willingly, and killed the deceased with the pistol without legal excuse.</p> <p>The evidence of the defendant tended to prove the following facts: On 8 May, 1920, the defendant, who resides in the country, came to Wadesboro to deliver milk and butter for his mother. He brought with him a raincoat. He placed this raincoat behind the counter in the store of Mr. Gilmore, together with a pistol. After he had delivered his produce he arranged to ride home with a friend, and went into Gilmore’s store to secure his coat. The pocket in the raincoat was shallow and torn, and as his pistol could not be carried in his pocket, he placed the pistol in the pocket of his overalls, and turned to leave the store. The deceased accosted the defendant. The defendant paid no attention to him. The deceased then called the defendant: “Son Oarraway, God damn you, you heard me!” The defendant had descended the store steps and was on the sidewalk. The deceased then said: “You God damn son of a bitch, didn’t you hear me?” The defendant answered: “Speak to me like I am a human; I am not a dog.” Mr. Gilmore, the proprietor of the store, heard this conversation, and stepped up to the two, and placed his hand on Robinson’s shoulder and warned him that he would get into trouble, and that he had better leave. He testified that the deceased, Robinson, was still cursing the defendant, and had a knife in his hand. Also that the defendant did not curse, and said nothing more than that he was not afraid of Robinson. Gilmore, seeing that Robinson was bent on trouble, turned his back and went into the store. At this time Oarraway, the defendant, undertook to leave, and Robinson got in front of him and cut him off. Defendant turned again, and was again obstructed by the deceased. The deceased then cut the defendant with a knife, entering on the left side of the forehead above the eye, the wound extending down the face, around under the ear, and on the throat. The wound was not dangerous, but bled profusely. After inflicting this blow the deceased grabbed the defendant with his left arm around the neck, clutched his neck with his body pressed against tbe defendant’s right arm and shoulder. This grasp of the defendant by the deceased was described by the witnesses as the “sandy crook.” The position of the deceased was such as to enable him to hold the defendant fast by the neck and by the weight of his body prevented the movement of his right arm. Deceased then undertook to again cut the throat of the defendant, and continued in this effort for some time. The two struggled up the street a few steps, the deceased all the time undertaking to cut the defendant’s throat. The defendant, being unable to disengage himself from this “sandy crook,” succeeded in drawing his pistol from his pocket and pressed the same against the body of the deceased and fired twice, inflicting mortal wounds. When these shots were fired the deceased was undertaking to reach the throat of the defendant with his knife. After these shots were fired the defendant released himself and at this time he described himself as being dizzy from the blow that he had received and was knocked out of his senses; the blood was just pouring over his face, and he apprehended that his injuries were serious ones. His eyes and face were covered with blood, and in this way his vision became blurred and obstructed. The deceased was then in a stooping or half-sitting posture on the steps of Tice’s store. The defendant got a few feet from the deceased and he turned around to see what the deceased was doing. The deceased was gritting his teeth, and had his hand in his hip pocket. The defendant testified that he thought the deceased was fixing to spring toward him again. He then shot three more times. The last shots were superficial and not sufficient to produce serious injury.</p> <p>It was in evidence that Frank Robinson, the deceased, was under the influence of whiskey at the time of the difficulty.</p> <p>The defendant assigns the following errors which are based on exceptions appearing in the record:</p> <p>1. Joe Winfield testified that he was passing Gilmore’s store, and saw the beginning of the trouble; that he went back to where the defendant and the deceased were and tried to stop them; that he told the deceased to let the defendant alone; that the deceased paid no attention to him, and that when the defendant tried to leave the deceased got in front of him and stopped him; that at this time the deceased came out with his knife; that they were hooked up together, and scuffled for some distance, and that the deceased struck the defendant somewhere about the face with his knife. The witness was asked this question:</p> <p>Q. Do you remember who else you saw around there? A. Mr. Jockey Martin — him and his lady had passed and were in the beef market and he come back to me .and says, “Joe, he is going to cut him to pieces, ain’t he?”</p> <p>By the court: Was the fight going on at that time? A. Yes, sir.</p> <p>To tbe foregoing evidence the State objected. Objection sustained, and the evidence excluded from the jury. The defendant excepted.</p> <p>2. The defendant, being recalled, testified: “I had been knowing Frank Robinson for about ten years. I knew his reputation for violence when he was drunk. He was mean. He would kill you. He had killed one man.”</p> <p>Motion by the State to strike out answer. Motion allowed, and the defendant excepted.</p> <p>3. The defendant testified: “Threats were communicated to me as being made by Frank Robinson. Will Robinson’s daughter communicated the first threat. She met me on the street down here at Mr. Fulton Allen’s store and said to me the boys had decided to leave it to her mother to let her do what she wanted to do. The boys were Will, Lee, and Daisy. These were Frank’s brothers. Said they decided to leave it to her mother and let her do what she wanted to do. All except Frank, and Frank said, ‘He would be Gr— d— if he was going to leave it to her — he was going to kill the G-— d — • s— o— b — . She came to where I was, laughing, and said I had better watch Frank Robinson. I guessed she was referring to the charge that I was the father of the child of Frank Robinson’s sister.”</p> <p>At this juncture the State moved to strike out the evidence of the foregoing threats. Objection sustained, and the evidence withdrawn from the jury, to which the defendant excepted.</p> <p>There are other exceptions to the charge.</p>

Appeal by defendant from Ray, J., at tbe January Term, 1921, of UNION. Tbe defendant was indicted under a bill wbicb in its first count charged him with tbe possession of intoxicating liquors for tbe purpose of selling tbe same.

<p>1. Constitutional Law — Criminal Law — Statutes—Weapons—Arms—Unconcealed Weapons.</p> <p>A statute making the carrying of a weapon, specifying pistols, among other things, from the premises unconcealed, a misdemeanor and punishable the same as if carried concealed, unless a permit be first obtained upon a statement of the purpose for which it was to be carried, the payment of a $5 license fee and the giving of a $500 bond, exceeds the legislative power of police regulation and is in violation of the declaration of rights in our State Constitution, that “The right of the people to keep and bear arms shall not be infringed,” with proviso that “nothing herein contained shall justify the practice of carrying concealed weapons or prevent the Legislature from enacting statutes against said practice.” Const., Art. I, sec. 24. Semble, a pistoi is included in the word “arms” ex vi termini.</p> <p>2. Same — Questions of Law — Trials—Case Agreed.</p> <p>Where it appears from a special verdict that the defendant was tried for carrying an unconcealed weapon, made a misdemeanor under a public-local statute; that he had been accosted on the street of a town by one who desired to bring about a fight, and that the defendant then put down ’some packages he was carrying and went to his store and returned with a pistol, carrying it openly: Held,, the offense created by the statute was unconstitutional, and a conviction thereunder could not be sustained, as a matter of law.</p> <p>Walker, J., concurring in result; Allen, J., concurring; Stacy, J., concurring in opinion of Allen, J.</p>

Appeal by plaintiff from Lane, J., at the February Special Term, 1921, of Bukke. This is an indictment against tbe defendants, as commissioners of Muddy Creek Drainage District, for failure to file certain reports and to publish tbe same as required by secs. 5374 and 5375 of tbe Consolidated Statutes. Tbe drainage district was formed and organized under chapter 348, Public-Local Laws 1913. A motion to quash tbe indictment was allowed., and tbe State appealed.

Appeal by defendant from Bryson, J., at tbe January Term, 1921, of MONTGOMERY. Tbe indictment is for violation of prohibition laws of State, and contains five counts, and tbe case on appeal states tbat defendant was acquitted on all of tbe counts except tbe count wbicb charged receipt of more than a quart within fifteen days, this being tbe fourth count in tbe bill.

Appeal by defendant from Harding, J., at September Special Term,. 1920, of HeNdeesoN. Criminal prosecution, charging the defendant with selling spirituous, and intoxicating liquors to one William Thomas.

Appeal by defendant from McElroy, J., at -January Term, 1921, of BUNCOMBE. The defendant was found guilty on two counts: first, for selling liquor, and second, for keeping liquor on band for sale, in violation of prohibition laws. Yerdict of guilty, sentence, and appeal.

Appeal by defendant from Bryson, J., at the January Term, 1921, of Ieedell. This is an indictment against the prisoner for the murder of J. H. Nance, which the State alleges was committed under the circumstances detailed in the testimony of its witness, Ivey Sims, the substance of which is hereinafter set forth. The State’s witness, Ivey Sims, and the defendant, W. Y. Westmore-land, were in Statesville on the night of 20 October, arriving there about 11 o’clock.

Appeal by tbe defendant from Long, J., at July Term, 1920, of BtjNgombe. Tbis is an indictment of tbe defendant for tbe willful abandonment of bis wife without providing adequate support for ber. O. S., 4447. They were married on 25 January, 1912, and be abandoned ber on 5 April, 1916, but tbey lived together a short time in the fall of 1916, when be again abandoned ber and went to Georgia to live, the wife remaining in Asheville, N. 0.

Appeal by defendant from Long, J., at November Term, 1920, of RUNCOMBE. Tbe prisoner was convicted of the murder in the first degree of F. W. Monnish. The evidence for the State was that on 3 September, 1920, about 10 a. m., the prisoner, J. T. Harris, a merchant of Ridgecrest, Buncombe County, lay in wait in weeds near a path coming from the cottage of F. W. Monnish to the postoffice at that station and with a shotgun fired two charges into Monnish as he passed by.

Appeal by defendant from Ray, J., at the January Term, 1921, of ElCHMOND. The indictment was for “soliciting orders or proposing to take orders, or proposals for the sal*e of certain spirituous and intoxicating liquors or bitters, or other concoctions containing alcohol.” C. S., 3369.

Appeal by J. II. Creasman, intervener, from Adams, J., at March Term, 1921, of ITeNdeesoN. The defendant, II. B. Johnson, was tried and convicted under an indictment charging him with having in his possession and transporting-spirituous liquors in violation of law; and the automobile, used by the defendant for transporting same, was sought to be condemned and forfeited as provided by statute.