Volume 182 — North Carolina Reports

<p>1. Waters— Surface Waters— Drainage — Canals—Prescriptive Rights— Damages.</p> <p>Where the users of a canal by prescriptive right enlarge the same, and thereby place water upon the lower proprietor to his damage, they are liable therefor, and, upon conflicting evidence, the issue should be sub' mitted to the jury.</p> <p>2. Waters — Surface Waters — Enlargement of Canal — Costs—Statutes.</p> <p>The method by which the users of a canal by prescriptive right may enlarge or deepen it with an apportionment of the costs, is provided by our statute, C. S., 5274.</p>

Appeal by plaintiff from Allen, Jat January Term, 1921, of PASQUOTANK. This was an action upon a contract, made by correspondence, for the delivery by defendant to the plaintiff at Elizabeth City of 1,000 sacks of seed Irish potatoes to be shipped subject to weather hazards, and upon receipt of written order from the plaintiff for shipment. The plaintiff deposited with the defendant the sum of 50 cents per sack in advance.

Oxvil action, tried before Calvert, J., and a jury, at January Term, 1921, of WASHINGTON. The action is one for malicious prosecution, involving the arrest of present plaintiff, and was determined for plaintiff on the following issues and verdict : “1. Did defendant, S. M. Combs, cause the plaintiff, 0.

, at April Term, 1921, of MeckleNBURG. Tbe plaintiff, wbo is the wife of ~W. B. Hipp, brings this action alleging that her husband, while working as an employee of the defendant company in Hopewell, Virginia, was “seriously, painfully and permanently injured as a proximate result of the carelessness and negligence of the defendants,” setting out the manner in which he was injured and the extent of such injuries and the expense, and that under the law of Virginia, which is…

Appeal by plaintiff from Allen, J., at March Term, 1921, of Gates. Civil action to recover damages for an alleged breacli of contract and loss of commissions growing out of tbe purchase and sale of certain peanuts during tbe year 1920. Plaintiff contends that by agreement be purchased said peanuts as agent for defendant.

Appeai by defendant from restraining order granted by Allen, J., at chambers, Washington, N. 0., 4 March, 1921, from Beaueobt. This is an appeal from an order restraining the defendants from selling certain lands under powers contained in two deeds of trust.

Appeal by defendants from Alien, J., at February Term, 1921, of PASQUOTANK. This is an action to recover an amount alleged to be due by contract in connection with a sale of certain lands in a partition proceeding. The lands .belonged to the wife of the defendant A. C. Bell and to a minor son of the defendant W. H. Jennings, in equal parts, and was sold for division in said proceeding on 11 October, 1919, E. G. Sawyer being the highest bidder in the sum of $10,250.

Appeal by defendant from Allen, J., at January Term, 1921, of PASQUOTANK.

, at Spring Term, 1921, of PeRquimaNS. This case was here at a former term, and is reported in 180 N. C., at p. 51, to which we refer for a statement of the facts other than those to be found herein.

Appeal by defendant from Alien, J., at tbe July Term, 1921, of WASHINGTON. Tbis is an action for divorce a vinculo, upon tbe ground that the-parties bave lived separate and apart from eacb other for five years before tbe commencement of tbis action, and was brought under the-provisions of Public Laws of 1921, cb. 63. Plaintiff bad previously obtained a decree for divorce from bed and board.

Appeal by petitioner from Allen, J., at chambers, 4 March, 1921, from Beaufort. Tbis' is a petition for a writ of habeas corpus to determine tbe right to tbe custody of a child fifteen months of age. Tbe petition was filed before one of tbe judges of tbe Superior Court, who transferred tbe same to tbe juvenile court.

S., 984, i. e., conduct tending to impede and impair the respect and authority of the court, but not committed in its immediate presence.

<p>Appeal by plaintiff from Oalvert, J., at April Term, 1921, of Edge-combe.</p> <p>Tbis is an action for divorce. Yerdict and judgment for defendant. Appeal by plaintiff.</p>

Appeal by plaintiffs from Connor, J., at chambers, 1 July, 1921, from Nash. Civil action to determine tbe validity of certain proposed bonds. Tbe facts are set out in tbe judgment of tbe Superior Court, wbicb is as follows: “This is a civil action wherein tbe plaintiffs are seeking a permanent injunction against tbe defendants against tbe issuance and sale of certain school improvement bonds of Oak Level School District, Nash County, North Carolina.

, at Special July Term, 1921, of Johnstoit. Tbis is an action by the husband for divorce. The plaintiff and defendant were married 31 May, 1896, and there were five children born to them.. They lived together till 1910, when the wife was committed to the State Hospital for the Insanej and has not been home since.

<p>1. Constitutional Law— Counties— Treasurer— Statutes — Banks—Trust Companies.</p> <p>Sec. 14 of Art. YII of our Constitution should be construed with reference to other sections therein, with certain specified exceptions not relevant to this case, and thereunder the Legislature is given full power to modify, change, or abrogate any and all provisions thereof and substitute others in their place; and though section 1 provides in terms that for the ordinary purposes of general county government there shall be elected a county treasurer, etc., it is yet within the legislative authority to so modify this requirement that they may delegate to the county commissioners the authority to abolish the position of county treasurer and appoint a bank or banks to act in this capacity for the consideration only which may arise to them from a deposit therein of the taxes collected; and C. S., 1389, is constitutional and valid.</p> <p>2. Same — General Laws.</p> <p>It is not required that the power conferred in sec. 14. Art. VII, of the State Constitution to modify, change, or abrogate any and all provisions of this article, with the exceptions enumerated, should be general in its operation, or that it should in terms formally abrogate any given section therein, and substitute another in its stead, for the act making such change, local in its operation, must be given effect under its provisions, if otherwise valid.</p> <p>8. Same — Government Agencies — Delegated Powers.</p> <p>While legislative powers may not ordinarily be granted by our General Assembly, they may be granted under our system of government to municipal corporations for local purposes, where, as such agencies, they are possessed and in the exercise of governmental powers in designated portions of the State territory, whether such localities are the ordinary political subdivisions of the State or local governmental districts created for special and quasi-public purposes.</p> <p>4. Mandamus — Counties—Treasurer—Public Funds.</p> <p>Where, under the power of a valid statute, C. S., 1389, the county commissioners have abolished the office of county treasurer, and have vested the duties of the office in certain banks and trust companies which have qualified thereunder, mandamus will lie to compel the treasurer, seeking to hold over and denying the validity of the statute, to turn over to the proper party the moneys that he has received and attempts to: hold by virtue of his former office.</p> <p>5. Same — Statutes — Questions for Court— Demand for Jury Trial— Waiver.</p> <p>An action to enforce the turning over of public funds by the ex-treasurer of the county to the present financial agents regularly appointed, and who have qualified to act in that capacity according to the terms of valid statutes directly applicable, C. S., 1400, 3205, 3206, 4385, is not in strictness a money demand, under sec. 867, which must be proceeded with as an ordinary civil action, requiring a finding of disputed facts by a jury, but comes under sec. 868, providing that the summons may be returnable before the judge at chambers or in term, who shall determine all issues, of law and fact unless a jury is demanded by one or both of the parties,, which, in the instant case, comes too late, being taken for the first time without exception in an additional brief allowed to be filed after the argument of the case in the Supreme Court has been made.</p>

Appeal by plaintiff from Allen, J., at tbe April Term, 1921, of BEAUFORT. Tbe action is to recover damages for the alleged negligence of T. L. Bland, proprietor of Hotel Louise, and another, in leaving open tbe elevator shaft leading off tbe hotel lobby and into which plaintiff fell, receiving serious, painful, and enduring injuries. There was denial of liability and plea of contributory negligence on part of plaintiff.

Appeal by defendant from Calvert, J., at June Term, 1921, of WlLSON. Summary proceedings in ejectment tried originally before a justice of the peace and then Ae novo upon appeal in the Superior Court, where the following verdict was rendered by the jury: “1. Did plaintiff and defendant enter into a contract for the rental of the property in question for a term of three years beginning 25 February, 1921 ? Answer: ‘Yes.’ “2.

Appeal by plaintiff from Granmer, J., at July Term, 1921, of Lee. Civil action pending in tbe Superior Court of Lee County. Tbe plaintiffs, desiring to elicit certain information, wbicb tbey allege is not otherwise obtainable, and is necessary and material to enable them to file their complaint, submitted tbe requisite affidavit and moved before tbe clerk for an order to examine tbe defendant as provided by C. S., 900 et seq. This was allowed.

Appeal by defendant from Devin, J., at October Term, 1920, of Chatham. Tbis is an action for injuries sustained by tbe plaintiff from an automobile driven by tbe defendant, D. H. Overton, in tbe streets of Raleigb, J. D. Overton, tbe owner thereof, being joined as a defendant. Yerdict and judgment for tbe plaintiff. Appeal by tbe defendant, J. D. Overton.

<p>Appeal by plaintiffs from Horton, J., at March Term, 1921, of Pitt.</p> <p>On 2 May, 1916, J. J. Ford recovered judgment against the plaintiffs in this action (who were defendants in that action), before S. T. Carson, a justice of the peace (the defendant herein). They gave notice of appeal to the Superior Court, and then and there paid to the said justice of the peace, the defendant S. T. Carson, the appeal fee of 30 cents, together with the further sum of 50 cents for docketing the same in the Superior Court, which it is alleged he agreed to send up with the said papers on appeal.</p> <p>The complaint alleges that the justice negligently and carelessly failed to send up said case, and failed to remit the fee for docketing the appeal, paid to bun by the plaintiffs (defendants in said action), whereby the the plaintiff in said action at August Term, 1916, procured judgment dismissing said appeal because it had not been docketed in time. The court finds as facts that “The next term of the Superior Court of Pitt convened 20 May, 1916, after said term of court, the justice of the peace having failed to send up the case with the fee for docketing.”</p> <p>The complaint further alleges that by reason of the dismissal of the said appeal the plaintiffs in this action were required to pay the said J. J. Ford the sum of $106.12, and that the plaintiffs had a good and meritorious defense to the action brought by Ford, he being indebted to the plaintiffs at that time more than the amount of said claim.</p> <p>The plaintiffs paid off the Ford judgment and brought this action in the county court of Pitt to recover the amount thereof, $106.12, and obtained verdict and judgment for the full amount, whereupon the defendant appealed to the Superior Court, in which the court nonsuited the plaintiffs, who appealed.</p>

<p>Deeds and Conveyances — Boundaries—Evidence—General Reputation.</p> <p>Where tbe location of tbe boundary line between adjoining owners of land is in controversy, in an action of trespass involving title, and i't appears from tbe call in one of tbe deeds, from a common source, tbat it is a certain distance from a certain street, calling in question tbe width of the street, it is competent to show tbe general reputation of tbe width of tbe street by a witness who has known it for thirty years, commencing at a time before any question relating to it was in controversy, or any of tbe land was owned by tbe parties to tbe action.</p>

<p>Appeal by defendant from Allen, J., at January Term, 1921, of PASQUOTANK.</p> <p>This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. Plaintiff had been employed by the defendant to work in his sawmill, and was engaged at the time of his injury on the platform in loading sawed lumber upon trucks preparatory to hauling it to the drykilns, or to the yard of the mill. The lumber was brought to the platform by a chain or conveyor, and while so performing his duties he was knocked from the platform by a heavy board, which had fallen from the conveyor, and injured. Plaintiff alleged negligence in several particulars. Defendant answered and denied that there was any negligence on their part, and pleaded assumption' of risks and contributory negligence.</p> <p>There was much evidence taken upon the questions of negligence, contributory negligence and assumption of risks, and exceptions entered to rulings, but they need not now be considered, as we are of the opinion that a material error was committed in another respect. Defendant pleaded that the plaintiff had executed a release to them from all damages growing out of said alleged injury, and Mr. Hoag, an attorney at law, of Norfolk, Va., who procured the release, was examined at length as a witness for the defendant in regard to its execution, the plaintiff having alleged that the release was obtained by fraud, or mistake. The following appears in the record of the case as to what occurred between the judge and the witness during the redirect examination of the witness, Mr. Hoag:</p> <p>“At this point his Honor, the jury being present, announced that he wanted to ask the witness a question, and did so as follows :</p> <p>“Q. You say you are a lawyer in Virginia? A. ‘Yes, sir.’</p> <p>“Q. Is it in accordance with your idea of professional ethics in Virginia for a lawyer to go to a man and approach him if he has not brought any lawsuit and get written statements from him? A. 'Absolutely so. We do not approach him if he has employed a lawyer first, but if he has not we do that quite frequently. It is considered ethical.’</p> <p>“Q. I -wish you would show be one of the rules.</p> <p>“To all the foregoing questions by the court the defendant in apt time objected. Objection overruled and defendant excepts.</p> <p>“His Honor continued: I would like to see the ethics for my own information. Is it ethical for a lawyer of one State to go into another State and prepare a case when he is not licensed in that State? A. ‘We have done that so frequently in Virginia without any question of the bar, just as a matter of information so I could make a settlement, I came here to ascertain the facts.’</p> <p>“To the foregoing questions by the court the defendant in apt time objected. Objection overruled and defendant excepts.</p> <p>“The court continues: I don’t want the jury to be prejudiced against the witness on account of my asking these questions. It is so unusual for a lawyer from another State to come into the State doing professional work that I wanted to see what standard he was governed by.</p> <p>“Q. You don’t practice in this State? A. 'No, sir.’</p> <p>“I think it is the duty of the court to look into those matters and protect anything wrong going on, but I don’t see anything wrong going on in this case. I think it is proper for the court to inquire, but the jury is not to consider it at all, it is a matter between witness and court, and he being a lawyer.</p> <p>“To the foregoing questions and statements by the court the defendant in apt time objected. Objection overruled and defendant excepts.”</p> <p>, This dialogue between the judge and the witness was duly and specially excepted to by the defendant as it progressed, and has been assigned as error by it.</p> <p>There was a verdict, followed by a judgment, for the plaintiff, and defendant appealed.</p>

Appeal by plaintiff from Horton, at the March Term, 1921, of Pitt. Plaintiff sued before a justice of the peace to recover of defendant $126.19. He had employed the defendant as clerk in August, 1914, at $50 per month, and the defendant’s services having proved satisfactory, the plaintiff contracted with the defendant for 1915 and 1916. The plaintiff contends that he was to pay the defendant for his services for 1915 $720, and for 1916 the sum of $800.

<p>Appeal by plaintiff from Gramner, J., at April Term, ■ 1921, of HERTFORD.</p> <p>Civil action, founded on contract and growing out of a certain promissory note and mortgage executed by the defendant and delivered to the plaintiff on 19 June, 1915. As an ancillary remedy, plaintiff seized the mortgaged property and took same into his possession under a writ of claim and delivery at the time of issuing summons. Jenkins & Boyette subsequently intervened and claimed title to said property by virtue of a prior mortgage, antedating that of the plaintiff’s. Upon the execution of a bond, the property was turned over to the interveners.</p> <p>The defendant filed no answer, but the interveners replied and set up, as an affirmative defense, that since the institution of this action the defendant had been adjudged a bankrupt, and, upon order of the Federal Court, the mortgaged property had been turned over to the trustee in bankruptcy. It was further alleged, in bar of the plaintiff’s right to recover, tliat all tbe assets of tbe defendant, J. D. Gardner, bad been administered in said court' — tbe plaintiff and other creditors being paid tbeir pro rata part, according to tbeir respective priorities — and tbat tbe defendant bad been duly granted bis full discharge by tbe bankrupt court.</p> <p>Upon motion, there was a judgment as of nonsuit entered on tbe pleadings. Plaintiff appealed.</p>

Appeal by both parties from Lyon, J., at tbe April Term, 1921, of WayNe. Summary proceedings in ejectment, under tbe landlord and tenant act, instituted before a justice of tbe peace, carried by appeal to tbe county court of Wayne County, and tbence to Superior Court of said county, where- it was tried before D&oin, J., and a jury, at November Term, ,1920.

Appeal by defendant from Lyon, J., at May Term, 1921, of Wayne. Civil action to recover broker’s commissions alleged to be due under a -contract of agency, said agreement being in words and figures as follows, to wit * AUTHORIZATION TO SELL LAND. 'North Oaeolina — Wayne County.

Appeal by defendant from Lyon, J., at May Term, 1921, of WayNE. Civil action, brought by plaintiff, a contractor, to recover tbe balance due on a building contract. Upon motion of tbe defendant, Fremont Warehouse & Improvement Company, tbe architects, Benton & Benton, who drew tbe plans 'and, specifications for said buildings, were made parties defendant.

Appeal by defendants from Devin, J., at tbe February Term, 1921, of CRAVEN.

<p>Wills — Devise—Estates—Fee—Contingencies—Words and Clauses — “Or” Construed as “And.”</p> <p>In a devise to tbe testator’s son of certain lands, and in tbe event be “should die during bis minority, or childless, . . . tbe remainder” over to tbe trustees of a certain church, tbe words “or childless” will be construed “and childless,” so as not to deprive tbe son, tbe primary object of tbe testator’s bounty, of tbe right and title to tbe land upon bis coming of age, when not in clear contravention of tbe purpose of tbe testator elsewhere expressed in bis will. Patterson v. MoOormioJc, 177 N. C., 448, cited and distinguished.</p>

Appeal by defendants from Lyon, •/., at June Special Term, 1921, of SAMPSON. Lovett Lee died intestate in Duplin County in March, 1916, leaving him surviving his widow, the defendant O. M. Lee, and 1 children. The widow qualified as administratrix.

Appeal by defendant from Bond,, J., at tbe June Term, 1921, of LeNOIE.

Appeal by plaintiff from Horton, J., at August Term, 1920, of Pitt. Civil action to recover the amount of an insurance policy issued on tbe life of J. 0.

MotioN to relieve a bidder from obligation to buy land, beard on appeal from clerk of tbe Superior Court before bis Honor, Devin, J., bolding tbe courts of tbe Eiftb Judicial District on 24 May, 1921. From tbe facts properly presented it was made to appear tbat R. L. Sermons and wife having executed a mortgage witb power of sale to H. L. Sermons, of date 12 September, 1919, to secure three promissory notes aggregating $3,200.

Appeal by plaintiff from Bond, J., at February Term, 1921, of LENOIR. Civil action brought by plaintiff, the landlord, against defendant, tenant upon her farm, to recover for certain advancements made during the year 1919.

Appeal by plaintiff from Bond, J., at March Term, 1921, of DupliN. Civil action to recover broker’s commissions upon an alleged sale of real estate. The complaint is as follows: “The plaintiffs, complaining of the defendant, come and allege: “1.

Appeal by defendants from an order of Bond, J., 22 August, 1921, continuing restraining order to tbe bearing, from FbaNICLIN. Tbis is an action by J. E. Williams and others, taxpayers of Franklin County, to restrain tbe county commissioners of Franklin from revaluation and raising tbe levy of taxes after tbe date prescribed by law. Tbe restraining order was granted by Devin, J., 2 August, 1921.

<p>Appeal from Bond, J., at chambers, July 2, 1921, from Hyde.</p> <p>This is a controversy between the Board of Drainage Commissioners of Mattamuskeet District in Hyde County, and Thos. D. Davis, sheriff of said county, submitted without action upon agreed facts. It is admitted that plaintiff is a duly constituted drainage corporation and that defendant was sheriff of Hyde County during the years 1917, 1918, and 1919, and charged with the duty of collecting assessments for construction and maintenance of the drainage system levied in said drainage district. No controversy exists as to compensation for collecting assessments levied for payment of bonds issued for construction work, but it arises only with respect to commissions on the assessments levied annually for maintenance.</p> <p>By chapter 509, Laws 1909, the State Board of Education, by virtue of .its ownership of Mattamuskeet Lake and other lands near it, was authorized to join in tbe petition to establish the drainage district, the corporate name of which was “Board of Drainage Commissioners of Mattamuskeet Lake” (sec. 3). The Board of Education did join in the petition (Garter v. Comrs,, 156 N. O., 183), and subsequently sold to the Southern Land Reclamation Co. (Garter v. Comrs., supra; Caravan v. Comrs., 161 N. 0., 100; Qibbs v. Comrs., 175 N. C., 5; Mann v. Mann, 176 N. 0., 353.)</p> <p>The drainage district has issued bonds and levied assessments to maintain the district. No question is presented as to the legality of -the bond issues or the maintenance assessments. The defendant being the sheriff and tax collector of Hyde County, whose compensation is not fixed by salary,.colleeted all these assessments for the years 1917, 1918, and 1919; gave bond for their collection; has paid the same to the treasurer of the county; his accounts have been audited; and for his services and responsibility he retained, and his act in this respect was approved by the court below, the commissions fixed by law, as he contends. It is admitted in paragraph 3 of the facts agreed that the defendant, as sheriff, collected the maintenance assessments and accounted for the same, less his commissions. It is to recover these retained commissions that this action is brought. The contention of the plaintiff is that “no provision is specifically made for any compensation or commission to the sheriff for the collection of maintenance assessments, and that defendant is not entitled to any commission on this maintenance fund.” The power to make the assessments is not denied, the obligation resting upon the sheriff to collect is not denied; nor is it denied that the sheriff’s failure to collect would subject him to liability. The specific and only question involved here and for the Court’s consideration is: Was the sheriff of Hyde County entitled to receive commissions on collections of assessments levied exclusively for maintenance purposes by the commissioners of said drainage district for the years 1917, 1918, and 1919, and if any, then what commissions? The sheriff has collected and paid to the treasurer of the county these maintenance assessments, less his commission. The plaintiffs insist that the sheriff is obliged to make these collections without compensation and is suing to recover the commissions unlawfully retained by the sheriff.</p> <p>The plaintiff board of commissioners contends that he was not entitled to such commissions. The defendant sheriff contends that he was entitled to 5 per cent commissions. The court below held with defendant and gave judgment accordingly. Plaintiffs excepted and appealed.</p>

<p>Parties — Courts—Pleadings—Constitutional Law — Contracts.</p> <p>Where a township road district has been reincorporated by statute, and included in a newly formed county road district, with a decrease in the taxes formerly allowed to be levied to such an extent as to be insufficient to meet the contract obligations already incurred by the former district to several creditors, and one of them seeks by mandamus to compel the collection of the taxes formerly authorized to be levied by the township district, the same to be applied to the payment of his debt alone, and not to be pro rated among them all: SernbVe, the effect of the later act was to impair the obligation of a contract, prohibited by section 10, clause 1, Article I, of the Constitution of the United States; but the case will be remanded for making all like creditors parties, so that they may be bound by the final judgment, as they are interested therein, and with such amendments to the pleadings as the trial judge may deem proper to be allowed.</p> <p>Clark, C. J., by opinion, concurring in result.</p>

Appeal by defendant from Bond, J., at the February Term, 1921, of SAMPSON. This action was brought to adjust certain liens of creditors on the property of their debtor, E. C. McLamb. It will give a clear idea of the case to set forth the allegations of the amended complaint, supplemented by certain facts not definitely stated therein.

Appeal by defendant from Goimor, J., at tbe June Term, 1921. of Waee. Tbis action was brought to recover tbe amount of two negotiable promissory notes executed by tbe defendant, eacb of them in tbe sum of $5,0()0 (dated 30 March, 1920), and payable to tbe order of tbe maker twelve months after their date, and endorsed by tbe defendant, tbe maker thereof, in blank and before maturity, and delivered to tbe Har-nett County Trust Company.

Appeal by defendant from Bond, J., at Spring Term, 1921 of Lewoie.. Tbis action was brought to recover damages for a false and fraudulent representation as to the age of a race-horse, which induced, the plaintiffs to purchase the same. The jury returned a verdict for the plaintiff and assessed his damages at $280, and defendant appealed from the judgment.

<p>1. Reference — Findings—Courts—Evidence—Appeal and Error.</p> <p>Where the trial judge, after reviewing the evidence, approves and adopts the referee’s findings of fact thereon, it is sufficient, and his action will not be disturbed on appeal when there is evidence to support the findings so made.</p> <p>2. Same.</p> <p>Conclusions of law in the report of a referee are not based upon the evidence, but upon the facts found therefrom, and an exception that a conclusion of law was based on an erroneous finding of fact, which was approved and adopted by the trial judge, is not reviewable on appeal, when there is evidence to support such finding.</p> <p>3. Actions — Partnership—Independent Business.</p> <p>Where one of the partners is engaged in an independent business unrelated to that of the partnership, and has for such individual enterprise purchased goods, wares, and merchandise from the partnership, the principle upon which one partner cannot sue the other except for a settlement of partnership affairs has no application.</p> <p>4. Attachment — Undertakings in Lieu of Property — Statutes.</p> <p>Where attachment has been levied on the defendant’s property necessary for the prosecution of his business, and upon his giving bond, he or his receiver is permitted by the court to continue operations, the giving of the bond is in lieu of the lien acquired in attachment, and analogous to the proceedings in discharge authorized by statute (Pell’s Revisal, secs. 774 and 775) ; and he may not take advantage of the bond by continuing to ship his property thereunder beyond the jurisdiction of the court, and thereby repudiate it.</p> <p>5. Same — Appeal and Error.</p> <p>Where the court has adjudged that the defendant in attachment, who in the course of his business, has rapidly been shipping lumber beyond the State, continue therein upon giving a bond in substitution of the lumber' attached, conditioned upon the payment of the debt, he or his receiver may not thereafter except to the order made for his benefit, and at his request.</p> <p>■6. Attachment — Appearance—Undertakings in Lieu — Benefits—Waiver— Pleadings.</p> <p>An attachment debtor waives any defect therein by appearing and pleading to the merits of the action; and also by accepting the benefits of an order of court substituting at his request an undertaking in lieu of the property subject to the attachment.</p>

Appeal by plaintiff from Granmer, J., at February Term, 1921, of Columbus.

Appeal by defendant from Connor, J., at July Term, 1921, of WlLSON. Submission of controversy without action. C. S., ch. 12, art. 25. STATEMENT 0E’FACTS.

<p>MotioN to set aside judgment by default final, beard before bis Honor, Lyon, Jbolding the courts of the Fourth District at Goldsboro, N. C., on 10 June, 1921, apparently by consent.</p> <p>The facts more directly relevant to the inquiry and bis Honor’s judgment thereon are set forth in the record as follows:</p> <p>It appears to the court, and the court finds from the record of the cause, and affidavits submitted, the following facts:</p> <p>1. The summons in this cause was issued by the clerk of the Superior Court of Harnett County, 13 April, 1921, returnable 2 May, 1921, the last named date being -the first Monday of May.</p> <p>2. The summons was by the sheriff of Wilson County, together with a copy of the complaint, duly served on the defendant 20 April, 1921.</p> <p>3. The complaint, duly verified, declared on a promissory note, and' demanded judgment to the amount of the note, alleging that the plaintiff was the holder in due course of said note.</p> <p>4. On 10 May, 1921, eight days after the return date of the summons, and on the second Monday of May, 1921, judgment by default final was entered by the clerk of the Superior Court against the defendant for the amount demanded by the plaintiff.</p> <p>5. The defendant, on 18 May, 1921, for good cause, requested an ■extension of time in which to answer the complaint. The defendant was informed by the clerk of the Superior Court of Harnett County that the time to answer would be extended as requested, and for the cause assigned, but for the fact that judgment had already been entered in the cause.</p> <p>The court finds further that the defendant could have, and would have, answered prior to 22 May, 1921, had judgment not already been •entered and had the clerk of the Siqperior Court of Harnett County refused the application. of the defendant for an extension of time in which to answer.</p> <p>6. The court finds that the defendant has a meritorious defense; that the defense set up in the further defense of the answer sought by the •defendant to be filed in this cause, and used in his motion as an affidavit, is a good and meritorious defense to the plaintiff’s alleged cause of action.</p> <p>The court is of opinion that chapter 156, Laws 1919, was repealed by ch. 96, Public Laws, Special Session 1920, and is further of the •opinion that the judgment entered by the clerk of the Superior Court in this case was premature, and for that cause irregular, and that the defendant is entitled to have his motion that the judgment be set aside .and that he be granted leave to answer sustained.</p> <p>It is now by the court, on motion of the defendant, ordered and de•creed that the judgment hertofore entered in this cause by the clerk of the Superior Court of Harnett County be, and the same is hereby, set •aside and declared of no effect. The defendant is permitted to file .answer within ten days from this date.</p> <p>From this judgment plaintiff appealed, assigning error the ruling of his Honor that ch. 156, Laws 1919, was repealed by ch. 96, Public Laws, Special Session 1920, and that the judgment of the clerk being therefore premature and irregular, defendant is entitled to have same ■set aside.</p>

Appeal by plaintiff from Bond, J., at March Term, 1921, of DupliN. This was an action for personal injuries received by plaintiff at the sawmill operated by the Gamp Manufacturing Company, but owned by its codefendant, through the alleged negligence of the defendants. On motion of the defendants a judgment of nonsuit was entered and the plaintiff appealed.

Appeal by plaintiff from Bond, J., at February Term, 1921, of LENOIR.

Appeal by. plaintiff from Connor, J., at tbe May Term, 1921, of Wake. Civil action to recover damages for breach of warranty in tbe sale of two cotton gins. At tbe close of plaintiff’s evidence, on motion, there was judgment of nonsuit, and tbe plaintiff excepted and appealed.

Appeal by defendant from Lyon, J., at April Term, 1921, of WayNe. This was a petition for sale for partition of a small lot in Goldsboro, and the defendant bank pleaded sole seisin. The jury responded to the issue that the plaintiff was owner of an undivided three-fifths interest in the premises, and from the judgment thereon the defendant appealed.

Appeal by defendants from Gormor, J., at March Term, 1921, of Waice. This was an action for personal injuries sustained at a grade crossing in Selma, N. C., on 27 January, 1919, by the alleged negligence of the defendants. From verdict and judgment tbe defendants appealed.

Appeal by defendant, J. B. Barnes, from Gormor, J., at March Term, 1921, of Walie. Civil action instituted by J. W. Wilbon against George W. Howard and J. B. Barnes to recover damages for injuries sustained by plaintiff in a collision between a buggy in which be was riding and an automobile truck driven at tbe time by one Bill Lawrence.

Appeal by defendant from Daniels, J., at May Term, 1921, of CUMBERLAND. Civil action to recover damages for an alleged negligent injury to plaintiff while a passenger on defendants’ “shuttle train,” which was a mixed train composed of an engine and several cars and used in carrying workmen from the city of Fayetteville, N. C., to Camp Bragg and back, a distance of several miles.

Appeal by defendants from Daniels, J., at tbe February Term, 1921, of Cumbekland. Civil action to recover damages for personal injuries, caused by alleged negligence of defendants, while plaintiff was engaged at bis work as brakeman on a freight train on road of defendant company and while same was being operated by the government of United States under the supervision and control of W. D. Hines, Director General.

Appeal by plaintiff from Kerr, J., at June Term, 1921, of New HaNOVEE.

<p>1. Equity — Injunction—Criminal Law— Municipal Corporations— Cities and Towns — Ordinances.</p> <p>Tbe enforcement of the criminal law, whether by statute or valid ordinance, made punishable as a misdemeanor under general statute, cannot be interfered with by the equitable remedy by injunction.</p> <p>2. Same — Damages.</p> <p>Where the violation of a town ordinance is made a misdemeanor, its validity may be tested by the one who is tried for violating it as a matter of defense, and he cannot invoke the equity jurisdiction of the court by' injunction on the ground that his remedy is inadequate because an incorporated city or town cannot be made liable in damages in such matters.</p> <p>3. Same — Statutes—Automobiles.</p> <p>An ordinance providing ior the examination of the character and ability of qne applying for the license for running an automobile upon the streets of the city, and the issuance of a license if proven or adjudged satisfactory by the municipal authorities, upon the payment of an annual license fee of §5, comes within the valid legislative powers conferred on municipal corporations by general statute in regard to their well government, for the protection of the citizens from danger of collisions, and for the morals of the community, Laws 1907, ch. 343, secs. 45 and 46, and is further sustained by the express provisions of the act of 1919, relating to the subject.</p> <p>4. Same — Licenses—Automobiles.</p> <p>An ordinance of a municipality regulating the issuance of licenses to permit the running of automobiles upon their streets is not invalid because they require a license fee, but is enforceable for the protection of the pedestrians and others from collisions, and for the better morals of the citizens, and being in part a police regulation, an injunction will not lie.</p>

Appeal by defendants from Horton, J., at April Term, 1921, of GRANVILLE. Civil action in ejectment. Tbe locus in quo in a small strip of land 80 feet wide by 161 1-3 feet long, situated on tbe north side of Williams-boro Street in tbe city of Oxford. Tbe facts are fully set forth in 175 N. C., 373, where this case is reported on a former appeal, and tbe evidence as there stated is substantially tbe same upon tbe present record.

Appeal by plaintiff and by each of tbe defendants from Horton, J., at tbe May Term, 1921, of OeaNge. Tbis was an action for tbe death of tbe defendant at a railroad crossing at Cameron, N. 0., caused by a train wbicb was being operated at tbat time by tbe defendant Eandolpb & Cumberland Eailway Company, lessee of tbe defendant.

Appeal by defendants from Daniels, J., at tbe March Term, 1920, of CUMBERLAND. This was a civil action brought by the plaintiff to recover damages for injury to Samuel A. White, the ward of the plaintiff, alleged to have been caused by the negligence of the defendants.

■Appeal by defendant from Gonnór, J., at tbe June Term, 1921, of Waice. Plaintiff brought this action to recover damages for personal injuries alleged to have been sustained at Sanford, N. C., 18 July, 1919, by being thrown from a stand-pipe while putting water in the tank of an engine.

Appeal by plaintiff from Devin, J., 14 May, 1921, of AlaMANCe, at chambers. This action was brought to recover the value of certain bonds of the United States, known as Liberty Bonds, which were deposited with the defendant for the purpose of being exchanged for the new bonds to be issued in their stead under the Act of Congress. The exchange was effected by the defendant and the bonds received by it and deposited in its bank, which will hereinafter more fully appear.

<p>Corporations — Certificates—Transfer of Shares — Limitation of Powers— Approval of Directors — Trusts—Telephones—Competitive Service.</p> <p>Where a local telephone exchange has been organized for the purpose of excluding its control by trusts or combinations, or corporations hostile to its interests, under a certificate of incorporation obtained from the Secretary of State requiring any transfer of its stock to be favorably passed upon by its board of directors, and the certificates of stock contain this provision, the action of the directors declining to have the shares paid for by the applicant transferred to him on the books of the company and thus precluding his voting as a shareholder, passed in good faith, is valid, there being nothing therein against public policy, or other provisions of the law; and notwithstanding his averments that he was not interested in companies hostile to this one, or that he has no improper motive therein.</p>

Appeal by ’Watson, trustee, from Webb, J., at May Term, 1921, of EoRSYth. On 18 January, 1919, tbe plaintiffs executed to Watson, trustee for Winston-Salem Building and Loan Association, a deed of trust to secure $800. This debt not being paid at maturity, upon tbe request of tbe beneficiary the trustee advertised the property for sale, and on 9 May, 1921, sold it for $3,000.

Appeal by plaintiff from Finley, J., at chambers, 1 September, 1921,. from StaNLY.

Appeal by defendant from Lyon, J., at the October Term, 1921, of CRAVEN. Submission of controversy without action. C. S., 626. The facts agreed are as follows: 1. That B. H. Stokes is in possession and claims title to two certain tracts of land described in a deed dated 11 March, 1910, which reads as follows: State of North CAROLINA — -Craven County.

Appeal by plaintiff from Connor, J., at tbe May Term, 1920, of Wake. Tbe plaintiff alleged tbat in December, 1918, be rented a farm from tbe defendant for tbe cultivation of certain crops during tbe year 1919; tbat be agreed to plant ten acres in tobacco, ten in cotton, ten in corn, and ten in wheat, on certain conditions or agreements, wbicb are fully stated in tbe complaint.

MotioN to set aside three several judgments on a money demand entered against defendant lodge and others, heard on appeal from a justice’s court before Webb, J., at February Term, 1921, of EockiNgham. The justice having set aside judgment for lack of service, and on allegations tending to establish fraud.

Appeal by defendant from Devin, J., at the Spring Term, 1921, of DURHAM. Trial by jury was waived by the parties. The action is to recover the sum of $102,942.30, assessed against the defendant company for its proportion of the cost of paving the Main Street of said city on which the tracks of defendant, a street railway, are laid.

Appeal by defendants from Webb, J., at the May Term, 1921, of Eobsyth.

Appeal by defendant King from K&rr, J., at tbe March Term, 1921, of New Haitoveb. This appeal is prosecuted by one of the defendants, B. F. King, Jr., from a judgment for plaintiffs in two cases which were consolidated and tried together by consent of counsel and order of the court.

<p>1. Ejectment — Landlord and Tenant — Notice to Tenant.</p> <p>A verbal notice to terminate a lease given by tire landlord, in conformity with the statute, is sufficient.</p> <p>2. Same — Term of Lease — Issue.</p> <p>Where the controversy in a summary proceeding in ejectment between landlord and tenant, is whether the contract is by the month or by the year, as to the landlord’s notice to terminate it, only one issue is required, as to the’expiration of the lease at the time of the commencement of the action, with the burden of the issue on the plaintiff.</p> <p>3. Same— Immaterial Issues— Burden of Proof— Appeal and Error— Harmless Error.</p> <p>Where two issues are submitted to the jury in the landlord’s action of ejectment, one as to the expiration of the term of the lease, as being by the month as xilaintiff claimed; or by the year, as the defendant claimed, the second issue will be regarded as surplusage ¿n appeal, and an instruction placing the burden of proof on this last issue on the defendant will be regarded as harmless error, it appearing that the jury, in answering the first issue in the affirmative, understood and intended to render their verdict in favor of the plaintiff.</p> <p>4. Instructions — Theory of Trial — Evidence—Context.</p> <p>Instructions to the jury are considered with reference to the theory upon which the case is tried, and the evidence and contentions of the parties, and are construed with the context.</p>

Appeal by plaintiff from Crammer, J., at chambers, 17 March, 1921, from VaNce. Civil action, heard on motion to dissolve a restraining order and counter motion by plaintiff to make same permanent, by consent.

, at June Term, 1921, of Oabteeet. Action to determine tbe extent of plaintiffs’ liability on a certain note and mortgage, executed and delivered to Thomas Thomas, and by him given as security to the county of Carteret.

Appeal by caveators from Daniels, J., at May Term, 1921, of ROBESON. Issue of d&uisavit vel ncm raised by a caveat to tbe will of Tetilla M. Edens. Alleged mental incapacity and undue influence are tbe grounds upon wbicb tbe caveat is based.

Appeal by plaintiff from Webb, J., at March Term, 1921, of Foesyth. Civil action to recover damages under C. S., 160, for an alleged wrongful death. Plaintiff’s intestate on the night of August 15, 1919, was brakeman on the Winston-Salem yards of the Southern Railway Company, which, at that time, was being operated by the Director General of Railroads.

Appeal by Charles E. Hamilton, caveator, from Long, J., at tbe September Term, 1921, of Fobsyth. Jobn Neal, born in Winston, N. C., a mdlius films, died in Ornaba, Neb., leaving an estate estimated to be of tbe value of $800,000 or over. On 19 October, 1920, wbat was claimed to be a copy of a lost, or destroyed, will disposing of bis property and appointing tbe Wachovia Bank and Trust Company executor and trustee, was admitted to probate in tbe Superior Court of Forsyth.

Appeal by plaintiffs from Webb, J., August Term, 1921, of DavidsoN. Held: and plaintiffs appealed.

Appeal by defendant from Finley, J., at tbe March Term, 1921, of Guileoed. Civil action to recover one-half of profits accrued from a deal in real estate alleged by plaintiff to be due from defendant. There was denial of liability and plea of statute of limitations. On issues submitted the jury rendered the following verdict: “1. What amount, if any, is plaintiff entitled to recover of defendant? Answer; ‘$2,218.24, with interest at 6 per cent from 6 March, 1921.’ “2.

Appeal by defendant from Finley, J., at tbe Spring Term, 1921, of STOKES. Civil action tried before Finley, Judge, and a jury on appeal from a justice of tbe peace.

Appeal by defendant from Finley, J., at April Term, 1921, of Guil-eoed. Civil action to recover damages for an alleged assault, false arrest and malicious prosecution. Upon denial of liability, and issues joined, tbe jury returned tbe following verdict: “1. Did tbe defendant assault tbe plaintiff as alleged in tbe complaint ? Answer: ‘Yes.’ “2. If so, wbat damage is tbe plaintiff entitled to recover of tbe defendant? Answer: ‘$25.’ “3.

<p>Appeal by defendants from Finley, J., at February Term, 1921 of Guilford.</p> <p>Tbis is an action by tbe plaintiffs, attorneys at law, to recover $5,050 as a fee for services claimed to bave been rendered in adjusting tbe loss by fire on a stock of goods witb certain fire insurance companies. Tbe complaint allfeges tbat tbe defendants employed tbe plaintiffs to adjust said losses with tbe insurance companies, and that afterwards pending the said adjustment the defendants agreed to pay the plaintiffs 20 per cent on the amount recovered, which the plaintiffs claim was $25,250, on which they seek to recover a fee of $5,050. The defendants deny the making of such contract and allege that the only contract ever made with the plaintiffs was to pay them $200 for their services in making proofs of loss and in assisting in adjusting the same, which was all the service the plaintiffs rendered. The defendants further allege that ,$25,250, the basis on which the plaintiffs demand $5,050 as 20 per cent fee, was never recovered; that in fact the insurance companies took over $15,000 of goods and $550 for fixtures and agreed to pay $9,700 in cash, loss by fires, of which $3,250 has not been paid, and allege not only that there was no contract for 20 per cent, but that, if there was it should be computed only on the cash actually recovered, and they contend further that if there were any contract for 20 per cent, it was made during the time the plaintiffs were acting in pursuance of their employment and was void, and the plaintiffs are entitled only to reasonable compensation for their services to be assessed by the jury.</p>

<p>Appeal by defendant from Finley, J., at the May Term, 1921, of DAVIDSON.</p> <p>This was an action for false imprisonment. ' The plaintiff alleges that he was wrongfully arrested and imprisoned in the city jail of Charlotte under the orders and directions of the defendant, in command of the 1st Regiment, N. C. National Guard. The defense was that the defendant was acting under the orders of the Governor to quell a threatened riot in that city, and arrested the plaintiff upon a reasonable apprehension that it was his duty to do so.</p> <p>The pleadings raised the issue whether the conduct of the defendant was in good faith or was arbitrary and unwarranted. The jury found all the issues against the defendant, who makes no exception except as to the refusal to nonsuit, and the refusal to give certain prayers for instruction, which, as the record shows, the court substantially gave. From the verdict and judgment the defendant appealed.</p>

Appeal by defendant from Webb, J., at chambers, 14 October, 1921, from DavidsoN. Controversy without action, heard upon an agreed statement of facts, the material and controlling parts of which are as follows; “1.

Appeal by plaintiff from Bryson, J., at September (Special) Term, 1921, of StaNly. Tbe commissioners of Albemarle, under authority of cb. 56, Laws 1915, assessed against tbe iilaintiff for improvements on tbe street in front of bis lot on North Stneet tbe sum of $207.05. He filed exceptions and appealed. In tbe Superior Court tbe court instructed tbe jury if they believed tbe evidence to answer tbe issue $207.05, with interest, and tbe plaintiff appealed to this Court.

Appeal by defendants from Bay, J., at June Term, 1921, of Scotland. This is an action to recover the price of four carloads of cement. There are three causes of action stated in the complaint. On 17 September, 1920, the plaintiff shipped the defendants one carload, 231 barrels of cement, at $6.09 per barrel, less freight and war tax, making $1,039.03, which amount was paid to the plaintiff by the defendant.

Appeal by plaintiff from Bond, J., at chambers, 20 July, 3.921, from Hyde.

Appeal by plaintiff from Bond, J., at chambers, 2 July, 1921, from Beaufort. This is- a controversy between the board of drainage commissioners of Mattamuskeet District in Hyde County and Charles Brinn, treasurer of Hyde County prior to the first Monday in December, 1916, and S. S. Mann, receiver; submitted without action upon agreed facts.

<p>Appeal by defendant from Finley, J., at tbe February Term, 1921, Of GuiLEOKD.</p> <p>Tbis action was brought to recover damages for tbe injury to or destruction of a easb register, sold by tbe plaintiff (wbo lived and carried on bis business at Higb Point, N. C.) to tbe Bank of Hickory Grove, at a town by tbat name in tbe State of South Carolina, tbe machine having been shipped via tbe American Eailway Express Company to tbe consignee at tbat place. It is alleged tbat when shipped it was in perfect condition, but when it arrived at its destination it was found to be in a very ruinous state, and tbe manufacturer could not repair it, even at great cost, because its number bad been lost, so it was left in tbe possession of tbe American Eailways Express Company. Tbe jury assessed tbe damages at $300, and defendant appealed from tbe judgment on tbe verdict.</p>

Appeal by defendant from Lyon, J., at tbe January Term, 1921, of' WayNB. During the month of January, 1918, Messrs.

Appeal by defendant from Finley, J., at the May Term, 1921, of GrtTILEORD. This action was originally brought by the plaintiff against R. A. Wheeler individually. He was never sued as secretary and treasurer of plaintiff corporation.

<p>Negligence — Evidence—Nonsuit—Trials—Railroads.</p> <p>Where the plaintiff’s driver stopped his team of mules at a garage across a 50-foot street from the defendant’s railroad tract, and while he was in the garage, the mules, without apparent fright or other cause, suddenly-turned and ran across the track in front of the defendant’s running train, and thereby a mule was killed and the wagon injured the sole, efficient, and proximate cause of the' alleged injury was the negligence of the plaintiff’s servant, and he cannot recover in his action for damages.</p>

<p>Appeal by defendants from Webb, Jat March Term, 1921, of FORSYTE.</p> <p>Civil action to recover damages for an alleged negligent injury to plaintiff by falling over a rope barricade which the defendants had erected around a newly laid concrete sidewalk in the city of Winston-Salem.</p> <p>The defendants were engaged, under a contract with the city, in replacing an old sidewalk with a new concrete one in front of the premises occupied by the plaintiff’s sister. The plaintiff, a woman of about fifty years of age, a seamstress by occupation, had rooms on the opposite side of the street, and took her meals at her sister’s home.</p> <p>The defendants’ servants, at about six o’clock in the evening of 19 November, 1919, had completed the laying of the new concrete sidewalk in front of the residence of the plaintiff’s sister, and erected barricades and placed red lanterns in the vicinity immediately before stopping work. They placed a plank, about 12 inches wide, from the gate to the curb across the new concrete for the protection of the new concrete in ease persons should desire to enter or leave the premises. They erected a number of posts, three or four feet high, along the curb between the street and sidewalk, and tied a rope to the top of these posts to act as a barrier for the protection of the new concrete. A'post was placed at each side of the plank at the curb so close together as only to leave room for a person to pass between, and the rope, according to the contentions of defendants, was permitted to hang down alongside the post, to pass under the plank, and ascend alongside the other post to' its top, the rope hanging loosely under the plank, and the plank projecting several inches beyond the rope and the edge of the curb. According to the' plaintiff’s contentions, the rope was placed above the plank and was carelessly permitted to sag down to within a few inches of the plank, thus rendering it dangerous for pedestrians to pass over.</p> <p>About 6 or 6 :15 id. m., the plaintiff came to supper from the opposite-side of the street and went into her sister’s home, walking along this plank to do so. Twenty-five or thirty .minutes later, the plaintiff, returning to her room, .came out of the gate, walked across the plank and tripped against some obstacle — she did not know what at the time— which, on arising, she discovered to be the rope.</p> <p>Upon issues submitted, the jury returned the following verdict :</p> <p>“1. Were the defendants independent contractors in doing the work referred to in the complaint, as alleged in the complaint? Answer: ‘Yes.’.</p> <p>“2. Was the plaintiff injured by the negligence of the defendants, as alleged in the complaint?. Answer: ‘Yes.’</p> <p>“3. Did the plaintiff of her own negligence contribute to her injury, as alleged in the answer? Answer:‘No.’</p> <p>“4. What damage, if any, is the plaintiff entitled to recover? Answer : ‘$1,500.’ ”</p> <p>From the judgment rendered on the verdict in favor of plaintiff the defendants appealed.</p>

Appeal by plaintiff from Long, J., at chambers, 9 November, 1921, from Ashe. Civil action, submitted on an agreed statement of facts, to determine tbe regularity of certain highway bonds of Ashe County. The following facts, taken from the case agreed, will suffice for our present decision: a “1.

Appeal by caveators from Ray, J., at March Term, 1921, of Ukioh. Issue of devisavit vel non raised by a caveat to the will of Maggie A. Ross. Alleged mental incapacity, undue influence and want of due execution are the grounds upon which the caveat is based. The jury returned the following verdict: “Is the paper-writing propounded, and every part thereof, and the codicil attached thereto, the last will and testament of Maggie Ross, deceased?

Appeal by plaintiff from Harding, J., May Term, 1921, of Meok-LENBURG. ' This is ah action to remove' a cloud upon title submitted upon the pleadings and agreed statement of facts. Held: and the defendants appealed.

, at chambers in Charlotte, 10 October, 1921, from GastoN. The defendant company owns a tract of land on which is situated a cotton manufacturing plant of 23,040 spindles and a village of 70 tenement houses occupied by its employees.

, at tbe October Term, 1921, of BEAUFORT. Submission of controversy without action. The statement of the agreed facts is as follows: “1.

<p>Appeal from a judgment of Bay, J., at June Term, 1921, of Richmond, on defendant’s motion to remove tbe cause to Meckxenbubg.</p> <p>Tbe plaintiff is a resident of Richmond County, and tbe defendant a corporation engaged in business in Mecklenburg. Tbe plaintiff and tbe defendant, on 26 January, 1920, entered into a written contract, by tbe terms of wbicb tbe plaintiff, called tbe dealer, was to sell Hupmobiles for tbe defendant, called tbe distributor. Tbe plaintiff deposited with tbe defendant $250, wbicb was to be returned upon plaintiff’s giving up tbe agency. Tbe contract was terminated 1 January, 1921, and tbe plaintiff demanded tbe return of bis money. In February, 1920, the plaintiff went to Obicago to assist tbe defendant in shipping cars, and remained there until tbe first day of April. Tbe plaintiff alleged that tbe reasonable value of bis services was $343. He brought suit to recover these two sums from tbe defendant. When tbe cause came on for bearing, tbe defendant made a motion for tbe removal of tbe cause to Mecklenburg. Tbe motion was denied, and tbe defendant excepted and appealed.</p> <p>Tbe basis of tbe defendant’s motion is tbe following stipulation in tbe contract: “In case of any disagreement between tbe distributor and tbe dealer, any action that may be taken against tbe distributor shall be brought in tbe city of Charlotte.”</p>

<p>1. Corporations — Dissolution—Continuance for Certain Purposes — Deeds and Conveyances — Statutes.</p> <p>The certificate of dissolution of a corporation of the Secretary of State continues the corporation for three years, making the directors trustees unless otherwise ordered by the court, with full power, among others specified, to settle its affairs, close its business, etc., C. S., 1193, and the provisions of the following section, 1194, that the directors as trustees may sell and convey the corporate property, does not exclude the idea that they may do so in the name of the corporation in whom the original legal title was originally vested.</p> <p>3. Same — Probate.</p> <p>Where the certificate of the probate of a deed from a corporation, dissolved upon certificate of the Secretary of State, made within the time allowed by C. S., 1193, recites as a fact judicially found that the deed was made in the name of the corporation by the order of the directors, the trustee’s, under the statute, objection that it was not executed in the method required by O. S., 1194, is untenable; and the signature of the agent in charge, if made upon the mistake that he was in law the assignee of the mortgage, is only surplusage, and harmless.</p> <p>3. Appeal and Error — Opinions—Stare Decisis — Justices’ Courts — Judgments — Superior Courts — Docketing—Rules of Property.</p> <p>The doctrine of stare deaisis is established by the Court under an ancient and unbroken line of decisions, and when involving the title to lands, should be regarded and upheld by the courts, though this rule is not inflexibly binding upon their judgment in avoiding palpable error: Held, in this case, the Court will not disturb the "precedent established that an execution may not validly issue against lands when docketed in the Superior Court more than a year after its rendition in the courts of the justice of the peace. The doctrine of stare decisis and its requisites, and of flat justitia mat coelum, discussed by Walker, J.</p> <p>4. Deeds and Conveyances — Mortgages—Judgments—Execution Sales— Title.</p> <p>The owner of land conveyed to A., taking immediately a mortgage to secure the purchase price, and thereafter the land was sold in execution of a judgment against A., under which the defendant claims title by deed accordingly made; and the plaintiff claims as a purchaser under the executed power of sale contained in the mortgage: Held, the title remained in the mortgagee and the purchaser at the mortgage sale and his grantee obtained a good title as against that claimed under the execution sale, notwithstanding the mortgage note may have been assigned to a third person. Semble, the title passed immediately from A., under the mortgage, leaving none upon which the execution under the judgment could take effect.</p>

<p>Appeal by plaintiff from Harding, J., at tbe April Term, 1921, of GUstoN.</p> <p>Tbis action was brought by tbe plaintiff to restrain tbe collection of drainage assessments levied by tbe Gaston County Drainage Commission No. 1, of Gaston County, N. C., against certain lands witbin sucb drainage district now owned by tbe plaintiff. Tbis drainage commission was created by a special act of tbe Legislature, chapter 427, Public Local Laws of 1911.</p> <p>Tbe drainage district was established in 1912 in pursuance of sucb act, and at tbe time of its establishment A. 0. Stroup was tbe owner of tbe forty-three acres of land in sucb district now owned by tbis plaintiff. Stroup owned tbe lands when they were classified and when assessments were first levied, and be attended tbe meetings of tbe commission, and was present at tbe time tbe commission sat as a body to bear and determine complaints from tbe landowners, as provided for in tbe act.</p> <p>Stroup did not except to tbe findings of tbe commission, or to tbe establishment of tbe district with said forty-three acres included witbin it, nor to any action of tbe commission tbe day it sat as a body to bear and determine complaints, fix tbe classifications and rate and tbe amount of assessments, nor did be except or take an appeal from any of tbe actions of tbe commission.</p> <p>Plaintiff Mitcbem afterwards purchased said forty-three acres of land with full'knowledge that tbe same was included witbin tbe drainage district, and that assessments bad been levied against tbe lands. Since plaintiff has owned the lands, other assessments have been levied, and plaintiff has not at any time excepted to or appealed from any of tbe orders of tbe commission. He has not paid any of tbe assessments levied upon tbe lands. After be bad constantly refused to pay, and in order to force collection of tbe assessments, tbe lands were advertised for sale by tbe tax collector. Plaintiff, pending tbe date of sale, brought tbis action and obtained a temporary restraining order, which was dissolved at tbe bearing before Judge Bryson. Tbis action came on for trial before Harding, J., and a jury, at April Term, 1921, when, at tbe close of plaintiff’s evidence, and upon motion of defendant, tbe court rendered judgment as of nonsuit, from which tbe plaintiff appealed to tbis Court.</p>

Appeal by defendant from Calvert, J., at tbe February Term, 1921, of Nash. ' Action of trespass and to remove a cloud from plaintiff’s alleged title to a piece of real estate. Tbe court charged tbe jury tbat on tbe facts in evidence, if accepted by them, they would find for plaintiff. Yerdict for plaintiff, and defendant excepted and appealed.

Appeal by caveator from Kerr, J., at tbe January Term, 1921, of Halifax. Petition to set aside probate of will of Mrs. Betty Y. Johnson, and to recall letters testamentary issued therein, heard on appeal from the clerk of Superior Court of Halifax County.

Appeal by defendant from Bay, J., at tbe May Term, 1921, of UrnoN.

Appeal by plaintiff from Bay, J., at February Term, 1921, of StaNly. Civil action to recover balance due on ten promissory notes executed by tbe defendant and delivered to tbe plaintiff for a certain quantity of mill machinery.

Appeal by defendant from Harding, Jat March Term, 1921, of MeokleNbueg. Civil action to recover damages for an alleged negligent injury to plaintiff in a collision between a Ford automobile, in which the plaintiff was a passenger, and a truck belonging to the defendant. Upon denial of liability and issues joined, the jury returned the following verdict: “1. Was the plaintiff’s injury caused by the negligence of the defendant, as alleged in the complaint? Answer: ‘Yes.’ “2.

Appeal by defendants from Bay, J., at September Term, 1921, of Meckxenbueg. This was a proceeding in summary ejectment, begun before a justice of the peace and tried at September Term, 1921.

Appeal by defendant from Bryson, J., at March Term, 1921, of RANDOLPH. Civil action to recover damages for an alleged negligent failure to transmit and promptly deliver two telegrams — one announcing the serious illness, and the other the death of plaintiff’s mother.

<p>1. Banks and Banking — .Checks—Mortgages—Forgeries—Deeds and Conveyances.</p> <p>A depositor of defendant’s bank obtained a loan from the plaintiff, secured by mortgage on his sister’s land, with a certificate made by a notary public, and deposited the check, and obtained the money thereon for his own use, from the bank, by endorsing his sister’s name as her agent, without her authority or knowledge. The mortgage and the note it secured were forgeries: Held, the defendant bank was liable to the plaintiff for the amount of the check so endorsed and paid, and the principle upon which a bank may not be held responsible for cashing a forged check of the depositor where the drawer is at fault, or has received the benefit, etc., has no application.</p> <p>3. Same — Drawers of Checks — Canceled Mortgages — Actions—Reinstatement of Liens — Negligence.</p> <p>A lender of money upon a forged note and mortgage made the check payable to the supposed mortgagor, and gave it to her brother, who placed it to his own credit in the bank, and he gave the lender his check on the proceeds for a former debt due by himself to the lender and secured by a mortgage on his own land: Held,, the bank was entitled to credit for the amount of the borrower’s check credited back to the lender; and if the lender has canceled the mortgage made by the brother to him, his remedy would be by suit to reinstate his lien.</p>

Appeal by defendant from Daniels, Jand a jury, at the April Term, 1921,.of CUMBERLAND. It is not necessary to set out all the evidence. So much is stated as is necessary to explain the questions presented. The plaintiff brought suit to recover damages for false arrest and imprisonment. Evidence for the plaintiff tended to show the facts to be as herein stated. The defendant corporation was engaged in manufacturing cotton cloth in the city of Fayetteville.

<p>1. Guardian, and Ward — Clerks of Court — Summons—Personal Service on Ward — Valid Process — Statutes.</p> <p>Where a guardian ad litem has been duly aixpointed to represent a party to an action under disability, tbe court will protect bis interest, and tbougb our statute specifies that a summons must be served on sucb person, no practical barm would result therefrom to tbe ward where a guardian ad litem has been appointed, and he accepts the service of the summons and presumably performs Ms statutory duties; and the proceedings will not be declared void as to the ward when such has been done. C. S., 451.</p> <p>2. Guardian and Ward — Disability—Insane Persons — Clerks of Court_ Appointment — Certificates—Public Institutions — Statutes—Evidence.</p> <p>The certificates of the superintendents of hospitals for the insane, which are to be received as sufficient evidence for tbe clerk of the Superior Court to appoint a guardian for an insane person, etc., when duly sworn to and subscribed before the clerk of the Superior Court, notary public, etc., C. S., 2286, relates to the superintendents of such hospitals under governmental control, and do not include within the meaning of the statute superintendents of private institutions of this character, and the appointment by the clerk of guardians ad litem on their certificates is void.</p> <p>3. Constitutional Law — Statutes—Trial by Jury — Insane Persons — Disability — Statutes—Guardian and Ward — Inquisition of Lunacy.</p> <p>The constitutional provision preserving the fight to a trial by jury, Article I, section 19, applies only to cases in which the prerogative existed at common law or by statute at the time the Constitution was adopted, and C. S., 2287, requiring that only sis freeholders shall be summoned to inquire into the sanity of the person alleged to be insane, is constitutional, not requiring a jury of twelve.</p> <p>4. Insane Persons — Disability—Statutes—Inquisition of Lunacy — Partition — Ratification—Deeds and Conveyances — Statutes.</p> <p>Where the clerk of the court has unlawfully appointed a guardian ad Mem, upon insufficient evidence, in proceedings to partition land, and thereafter the ward has been adjudged sane under the proceedings of C. S., 2287, the ward may ratify the division of land allotted in the proceedings by receiving the benefits thereof, and executing interchangeable deeds with the other parties.</p>

Appeal by defendant from Shaw, J., at tbe March Term, 1920, of RANDOLPH. This is a civil action brought to recover damages for personal injuries of the fem There was a verdict and judgment for the plaintiff, and defendant appealed.

<p>1. Contracts — Action—Breach—Quantum Meruit.</p> <p>Where the daughter has contracted with her father to work his farm and take care of him for life, and after many years of such duty the father has moved from the farm, and his conduct has prevented the daughter, without her consent, from further performing her agreement, the latter may not maintain her action to recover the land, the consideration to be given her for her work and care for the period of her father’s life; but the law will imply his promise to pay for the services she rendered before his breach, such amount as they were reasonably worth, if she sues, as in this case, before his death.</p> <p>2. Same — Pleadings—Remedies—Election.</p> <p>Where the complaint sets forth a contract that a daughter will take care of her father during his life, and also alleges that, after years of such service, he has breached his contract so as to render it impossible for her to perform her part in order to get full compensation thereunder: Held, upon demurrer, the allegations of the complaint will be liberally construed, and in effect it is an abandonment of her action on the special contract and an election to sue for the reasonable worth of the services the daughter has actually rendered.</p> <p>3. Pleadings — Surplusage—Cause of Action — Dismissal.</p> <p>While the rules of pleading require that redundant allegations should be omitted, the courts will give them a liberal interpretation and not dismiss the action on that account, if by disregarding surplusage it appears that a good cause of action has been stated.</p> <p>4. Same — Demurrer—Surplusage—Contracts-—Quantum Meruit.</p> <p>A demurrer to a complaint, in an action to recover the reasonable worth of services rendered in consideration of the defendant’s promise to will the plaintiff certain land at his death if she would perform specified services during his lifetime, which he failed to perform, admits the truth of these allegations; and where it appears from an interpretation of the complaint that the plaintiff, during defendant’s life, after the latter had rendered further performance by the former impossible, elected to sue to recover the reasonable worth of the services already rendered, an- allegation that the plaintiff was ready to receive a deed for the land will be considered as surplusage, as she was not entitled to the land until he died, and had elected to sue for the value of her services before that event occurred.</p> <p>5. Remedies — Contracts—Quantum Meruit — Election.</p> <p>Where plaintiff seeks to enforce a special contract to will the plaintiff property for services rendered, and damages are sought to be recovered on a quantum meruit at the same time for its breach, the remedies are inconsistent, and the plaintiff is put to his election between the two.</p>

<p>Appeal by defendant from Lyon, J., at the June Special Terra, 1921, of SAMPSON.</p> <p>This action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused by the defendant’s negligence in keeping its crossing in an unsafe condition.</p> <p>On 29 August, 1914, the plaintiff and his companions were driving in a Ford automobile from Falcon, N. 0., to Fayetteville, N. 0., and after darkness had set in, they attempted to cross over the tracks of the defendant, where the public road from Dunn to Fayetteville intersects with the said tracks, a little above the station at Wade. In so doing the automobile was wrecked, and one of the passengers, Randall Pusey, was killed, and the plaintiff was knocked senseless and otherwise injured. There were two tracks on the crossing, one of which was then being laid, and had not been completed, and, as plaintiff alleges, rendered the crossing unsafe, and even dangerous, as the rails were exposed and high above the surface of the ground, and further, the track and its condition could not be seen in time to avoid the injury. The other facts necessary to an understanding of the matter will be found in the rex:>orted case of Pusey v. B. B., 181 N. 0., 137.</p> <p>The case was submitted to the jury, under the evidence and the charge of the court, and the jury returned a verdict for the plaintiff. Judgment thereon, and defendant aj)pealed.</p>

Appeal by defendant from Lane, J., at chambers, 29 September, 1921, from YadkiN.

<p>1. Judgments — Consent—Estoppel.</p> <p>A consent judgment, like any other, does not go beyond the matters embraced in the action, to estop other and independent transactions existing between the parties, and not necessary to its determination, or within the scope of the inquiry.</p> <p>2. Same — Unrelated Judgments — Principal and Surety — Mortgages— Powers — Void Sales.</p> <p>A surety on a note whose liability was secured by a mortgage given by the maker on his land, attempted to foreclose under the power of sale, without having paid the note, and thereafter having paid the debt of the 1 maker, judgment was entered by consent of the parties, whereunder a commissioner sold and conveyed to the plaintiff, and the surety was reimbursed from the proceeds. Prior to the entry of the consent judgment, one of the parties obtained by assignment from another and different judgment creditors two judgments taken in unrelated matters: Held, the attempted sale by the surety was void, and the party to the action, who had obtained the judgments by assignment, was not estopped by the consent judgment to have execution issue thereunder on the lands.</p> <p>3. Judgments — Execution—Prior Liens — Purchaser—Notice—Sales—Appeal and Error — Former Appeal.</p> <p>A purchaser at the sale of land under execution takes with notice of prior registered judgments, and a sale of the lands under execution on these judgments will not be enjoined when tbe element of estoppel does not exist; nor will tbe appellant be concluded by tbe affirmation of tbe judgment in a former appeal upon wbicb tbis phase of tbe controversy was not presented.</p> <p>4. Same — Waiver.</p> <p>Tbe agreement in a consent judgment that tbe commissioner appointed for tbe sale of tbe lands of tbe judgment debtor to reimburse tbe surety on tbe note in suit shall convey to the purchaser will not be construed as a waiver by a party of bis existing lien under judgments that were independent of and not considered ill tbe proceedings.</p>

Appeal by defendant from Shaw, J., at June Term, 1921, of Wilkes.

Appeal by defendants from Shaw, Jat the August Term, 1921, of YANCEY. This action was brought to recover the price of timber, bargained and sold to the defendants, at their request, from plaintiff’s land, and also damages for the use of certain lands occupied by them' as a sawmill yard for sawing and storing timber cut from other lands.

Appeal by defendants from Adams, J., at the June Term, 1921, of HENDERSON. This action was brought to recover damages for improvements made upon land, which defendants promised by parol to convey, but which they failed to do, and for money expended and services rendered in reliance upon said promise so repudiated.

Appeal by defendants from Connor, J., at October Term, 1921, of BbuNswiok. Tbe plaintiffs are residents and taxpayers of Brunswick, and tbe defendants are tbe board of county commissioners of said county. Ob. 251, Private Laws 1921, entitled “An act to establish a bigb school district and issue bonds with which to build and equip bigb school buildings, and to provide for tbe payment of said bonds and tbe maintenance and government of said school,” was ratified 8 March, 1921.

<p>Appeal by defendants from Bryson, J., at the May Term, 1921, of Ieedell.</p> <p>This is an action for personal injuries sustained by tbe plaintiff wben struck by tbe engine of tbe Southern Railroad Company, 24 December, 1919, while that comjiany was being operated by tbe Director General of Railroads.</p> <p>Tbe plaintiff bad left tbe plant of tbe Statesville Furniture Company in Statesville about 4:30 p. m. that day on bis way to bis borne in tbe city, and was going along a path which crossed tbe railroad track near tbe station. This path was used by tbe public generally, there being evidence that about 200 people crossed tbe track at that point on that afternoon. Tbe railroad track from Charlotte at that point makes a very short curve. Tbe plaintiff, 66 years of age, stepped on tbe track and walked along tbe same for a short distance to go around tbe train which obstructed bis crossing, wben be was struck from behind by tbe engine, knocking him from tbe path, and received serious bodily injury.</p> <p>There was motion for judgment as of nonsuit, which was overruled, and at tbe close of tbe defendant’s evidence this motion was renewed and again refused. This is tbe sole exception presented by the appeal.</p>

<p>PetitioN by appellant (defendant) for certiorari and motion by plaintiff to dismiss appeal, or affirm tbe judgment.</p>

Appeal by plaintiff from Webb, J., at May Term, 1921, of Fobsyth. Civil action to recover damages for failure to procure a policy of insurance protecting plaintiff’s automobile in case of collision, etc. At tbe close of plaintiff’s evidence, on motion, there was judgment of non-suit, and plaintiff excepted and appealed.

Appeal by plaintiff from Webb, J., at chambers, 8 August, 1921, from DavidsoN. Civil action to enjoin the levy and collection of a special tax in Arcadia School District, Davidson County, upon the ground that the election authorizing said levy was without warrant of law, and therefore void.

Appeal by plaintiff from Webb., J., at September Term, 1921, of CrUILEORD. Civil action to recover damages for an alleged breach of contract,, growing out of the following negotiations: On Wednesday, 24 March, 1920, the plaintiff, who resides in Greensboro, N. C., addressed a letter of inquiry to the defendant, who lives at Smithfield, N. C., asking what was the lowest price he would take for his stock in the Jefferson Standard Life Insurance Company.

Appeal by plaintiff from Bhctw, J., at tbe October Term, 1921, of Mecelenbueg. Controversy without action, submitted on an agreed statement of facts. There was a judgment in favor of the defendant, from which the plaintiff appealed.

<p>Appeal by defendant from Kerr, J., at the January Term, 1921, of Halifax.</p> <p>Civil action to recover $3,000, with interest, as an amount alleged to be due plaintiff for commission in affecting a sale of the timber on a certain tract belonging to defendants. The court being of opinion that plaintiff was entitled to recover on the facts admitted in the pleadings, judgment was so entered, and defendants excepted and appealed.</p>

Appeal by defendant from Long, J., at tbe August Term, 1921, of SuRRY. Civil action to recover for value of services rendered by plaintiff to intestate for tbirty-five years or more prior to latter’s death, of tbe alleged value of $4,000. Tbe first cause of action is on tbe allegation tbat these services were under a promise and assurance given to plaintiff tbat tbe intestate would provide compensation for plaintiff in bis last will and testament.

Appeal by defendant from Shaw, J., at the June Term, 1921, of Wilkes. Civil action, tried and determined on case agreed. From the facts and admissions properly presented, it appears that'on 9 December, 1907, Mrs. Nancy C. McGrlammery, then wife of L. M. McGrlammery, owner of the land in controversy, and who had been properly constituted a free trader, pursuant to the statute, undertook to convey said land, by written deed, to ber btisband.

<p>Appeal by plaintiff from Nay, J., at tbe May Term, 1921, of Moobe.</p> <p>On 15 January, 1906, defendants McLeod and wife conveyed by deed to one M. K. Gray tbe timber on a tract of land in Moore County, giving Gray three years in wbicb to cut and remove tbe same, witb a modification of tbe time in these words: “Unless be or they should be providentially hindered in tbe cutting, manufacturing, and removing tbe same by reason of death, or fire, and then, in that event, be or they are to have tbe period of five years from tbe date of tbis indenture and agreement to cut, manufacture, and remove tbe same.</p> <p>Tbe plaintiff Wilcox claims to be tbe assignee of Gray, or of bis beirs, and alleges that be was providentially hindered'by death from cutting and removing tbe timber within tbe three years, and that consequently be bad five years to cut and remove tbe same, under tbe exception in tbe contract, and asks for a recovery of tbe timber and damages.</p> <p>Plaintiff submitted to a nonsuit in deference to an intimation of tbe court as to bis right of recovery, and appealed.</p>

Appeal by defendant from Shaw, J., 20 September, 1921, from RUTHERFORD. Peremptory mandamus, granted on 20 September, 1921, to compel tbe defendants to deliver to tbe treasurer of tbe graded sebool committee of Forest City tbe proceeds of bonds issued to provide a fund for tbe erection of a sebool building in tbe Forest City Graded Sebool District.

Appeal by defendant from Shcúw, J., 15 September, 1921, from Ruthekeosd. Appeal by tbe defendants from a judgment restraining tbe defendants from erecting a school building in tbe town of Forest City.

Appeal by Robert Harris, Jr., guardian of Mrs. Nettie Harris, from W&bb, J., at the February Term, 1921, of RogkiNgham. Civil action, beard on exceptions to the report of a referee. H. C. Harris died 11 April, 1911, leaving a last will and testament, wbicb is as follows: “Being in my.wright mind I make tbis my last will baving destroyed all others.

Appeal by defendants from a judgment of Webb, J., confirming tbe referee’s report, at February Term, 1921, of RooitiNGHAM. Civil action, beard on exceptions to tbe report of a referee. Tbe plaintiff filed a petition before tbe clerk to sell land for assets. Tbe defendants filed several answers, and Webb, J., referred tbe cause to Lindsay Patterson, Esq., to take and state an account and report bis finding of facts and conclusions of law.

Appeal by defendant from Ray, J., at tbe March Term, 1921, of SCOTLAND. Tbe plaintiff, Hattie Bowman, instituted before tbe clerk two proceedings for a sale for partition of tbe lot in controversy. In February, 1916, Lizzie Howard London conveyed to West Howard a deed for said lot, and on tbe day following West Howard reconveyed a portion of said lot to bis mother, Lizzie Howard London.

Appeal by American. Railway Express Company from Bay, J., at August Term, 1921, of Mitchell. Summons was issued against both defendants on 22 November, 1919. Tbe Southern Express Company entered a special appearance, and moved to dismiss the’action as to it on tbe ground that process bad not been served. There was an order for an alias summons, and an alias writ of attachment against tbe stock held by tbe Southern Express Company in tbe American Railway Express Company.

Appeal by defendant from McElroy, J., at August Term, 1921, from Iredell. Civil action to recover possession of a tract of land under an alleged parol agreement, whereby the plaintiff contends that the locus in quo was purchased by him from one E. J. Plott, title taken in the name of Dr. W. W. Wilhelm, now deceased, wbo bad advanced a part of tbe purchase money witb tbe understanding tbat deed would be made to plaintiff upon tbe repayment of tbe amount borrowed or advanced.

Appeal by plaintiffs from Shaw, J., at July Term, 1921, of McDowell. Civil action to recover damages for loss of commissions arising' out of defendant’s alleged breach of contract to purchase nine lots, same having been sold to him as the last and highest bidder at a public sale. From the judgment of nonsuit entered at the close of the evidence, plaintiffs appealed.

Appeal by defendants from Long, J., at the May Term, 1921, of Haywood. Civil actions to recover damages for an alleged negligent injury to, plaintiff’s intestate and damages to tbe automobile in which he was riding, by consent, consolidated and tried together in the Superior Court.

Appeal by defendants from Bryson, J., at July Term, 1921, of SwaiN. Civil action to recover damages for an alleged negligent injury to plaintiff while working at tbe defendant’s planing mill on 10 January, 1920.

Appeal by plaintiff from Webb, J., at tbe October Term, 1921, of ChjILFORD. Civil action to recover damages of tbe defendant for tbe willful and wrongful killing of plaintiff’s intestate, wbo was a police officer, and at tbe time of bis death was engaged in tbe discharge of bis duty in undertaking to arrest defendant for violation of tbe prohibition law. Defendant escaped immediately after plaintiff’s intestate was killed and personal service on defendant could not be made.

Appeal by defendants from Bryson, J., 10 October, 1921, from Caldwell. Civil action beard on preliminary restraining order before tbe judge bolding tbe courts of tbe Sixteenth Judicial District and by consent of tbe parties at Morganton, N. 0., on 10 October, 1921.

Appeal by intervener from ShcCiv, J., at the July Term, 1921, of McDowell. Civil actions to recover damages for alleged breaches of contracts, by consent consolidated and tried together in the Superior Court.

Appeal by plaintiff from Show, J., at tbe August Term, 1921, of YaNCEY. Civil action to recover damages for physical injuries suffered by reason of tbe alleged negligence of defendant company, its agents and employees, in operating a lumber mill. At close of plaintiff’s evidence, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.

<p>Evidence — Hearsay—Principal and Agent — Brokers—Commissions.</p> <p>When the controversy is whether or not the owner was to pay his selling agent or broker a commission upon the sale of his lands at a certain price, or whether the price was to be net to him, a witness who has had a conversation with the owner respecting it does not render his evidence incompetent as hearsay, by the use of the words “my impression” or “my understanding,” etc., these words referring more or less to the uncertainty of the memory of the witness; nor will the evidence be objectionable as uncertain of the source of this recollection when it may be seen by reference to his answers to other questions that he was testifying to what he had heard the owner say.</p>

<p>Appeal by defendant from Long, J., at tbe April Term, 1921, of Cherokee.</p> <p>Tbe purpose of tbe action is to have declared void, and set aside as a cloud on plaintiff’s title, an alleged deed from W. L. F. Woods and wife, Laura, to defendant, appearing on tbe registration books of Cherokee County as of December, 1912, on tbe ground tbat tbe said deed bad never been delivered to defendant. Tbe cause was before tbe Court on a former appeal by plaintiffs from a judgment of nonsuit against him in tbe lower court, and same will be found reported in 180 N. C., 631. Pursuant to tbe opinion in tbat appeal setting aside tbe judgment of nonsuit, tbe cause in tbe present trial was submitted to tbe jury on appropriate issues, and there was verdict for plaintiff. Judgment on tbe verdict, and defendant excepted and appealed, assigning errors.</p>

, at December Term, 1921, of DavidsoN. Tbe petitioners, trustees of tbe Caroline E. Ford and Martha A. Haden Home, and E. B. McBary, life tenant, filed a petition in tbe Superior Court of Davidson County for tbe sale of a certain part of the lands devised by Caroline E. Ford, in item 23 of her will appearing in tbe record. Testatrix died in tbe year 1909, and tbe life tenant, E. B. McBary, is still living.

<p>Appeal by defendant from Bryson, J., at March Term, 1921, of RANDOLPH.</p> <p>Civil action for personal injury alleged to have been caused by tbe negligence of tbe defendant. Tbis action was instituted by tbe plaintiff Snyder to recover damages on account of injuries be sustained while working as bead miller of tbe Southern Crown Milling Company in tbe town of Asbeboro, N. C. Tbe mill was operated by electric current furnished by tbe defendant from a municipally owned and operated plant. On tbe day of tbe injury, tbe town bad notified tbe Southern Crown Milling Company and tbe plaintiff that it was necessary to suspend operations pending work on the transmission line necessitating tbe removal of some of tbe poles and tbe severance of tbe power transmission line. The transmission line, which was composed of three separate wires, connected wdtb a three-phase electric motor at the plant of tbe Southern Crown’ Milling Company, by which tbe machinery of tbe mill was operated. Tbis transmission Tine, composed of the three wires, carried an alternating three-phase current of 2,300 voltage. There was testimony indicating that in tbe course of the work that was done by tbe employees of tbe defendant upon tbe occasion in question, tbe relative positions of two of tbe three wires constituting tbe transmission line became transposed and resulted in the motor at tbe mill running backward instead of forward as it bad been accustomed to do, when tbe current was turned on. After tbe lapse of sufficient time, as be thought, for the work to -be completed, but before receiving actual notice that tbe power lines were ready for use, tbe plaintiff caused an employee of tbe mill to switch on tbe current of electricity, and tbe plaintiff himself threw in gear tbe brakes or rolls in tbe usual way, starting tbe operation of tbe plant. The machinery thereby put in operation all operated backward and opposite to tbe normal or proper way. The plaintiff, who insists be did not at tbe time notice that tbe machinery was operating backward, went to tbe first brake or set of rolls, tbe place where tbe grinding of tbe grain was commenced. Tbe brake contained two horizontal corrugated or grooved iron rolls, side by side, revolving together at tbe top and away from each other at tbe bottom when in use in tbe proper way, taking in tbe grain from above and crushing it as it passed' between tbe corrugated rolls. These rolls were operated by belts and pulleys running at high speed in plain view of tbe operator. Tbe plaintiff immediately after putting tbis machinery in operation went to tbe first brake, inserted bis band and arm in an opening in tbe stand underneath tbe rolls, and observing that tbe rolls were not crushing tbe wheat as they should, put bis band up against tbe revolving rolls and bis fingers were drawn inward, up and between tbe rolls, resulting in tbe injury to bis band and arm complained of. Tbe plaintiff contends that it was necessary that be place bis bands upon tbe revolving rolls of tbe brake as be did at tbe time of tbe injury, for tbe purpose of determining wbetber or not they were properly adjusted; whether they were heating; and whether they were gummed up with wild onions or the crushed grain; and that it was customary for millers to put their hands upon the rolls while in operation as he did for that purpose. The defendant contends that this was neither necessary nor customary, and was dangerous and liable to cause injury, even when the rolls were operating in the proper direction. The case was submitted to the jury upon the three issues of negligence, contributory negligence, and damages.</p>

<p>Bills and Jiotes — Judgments—Indorser—Principal and Surety — Evidence —Pleadings—Liability of Principal — Payment by Indorser.</p> <p>Where one of two defendants has paid a joint judgment upon a note against them both, and bas the judgment assigned to another for his use, who brings action to recover against the other judgment debtor, he may, as between themselves, show that the defendant in the second action was the principal payee, and that he, the plaintiff, was an indorser, though not pleaded in the original action, and recover the full amount of the judgment he has paid, the action being, in substance, one by the surety on the note to recover against the principle thereon. O. S., 3963; 1795, excluding evidence of transactions with deceased persons does not apply, the parties to the action being alive.</p> <p>Adams, J., did not sit.</p>

<p>1. Wills — Estates—Contingencies—Vested Rights.</p> <p>After devising and bequeathing Ms real and personal property to Ms children, the testator directed his executors to keep Ms estate intact until the death of Ms wife, and “after the death of my wife, to distribute and divide my estate among all of my children, share and share alike, the children of any deceased child of mine taking Ms or her share, provided that if any of my children are dead without lineal descendants, the share of such child or children shall go to my other children, equally”: Held, the contingency determining those who should take was the death of the testator’s wife, or the children or grandchildren of the testator then living, the latter taking under the testator’s will, and not as heirs at law of their deceased parent.</p> <p>2. Same — Husband and Wife — Descent—Husband’s Interest — Curtesy.</p> <p>Where the grandchildren of the testator have taken as survivors, after a life estate of their mother, under the terms of the will of their deceased grandfather, their father cannot be entitled to take any interest therein as representative of his deceased wife, or as tenant by the curtesy, or agree with the guardians of his minor children to any extent that would affect their rights under the will.</p> <p>3. Guardian and War’d — Where Appointed — Wills—Testator—Domicile.</p> <p>Where the infant grandchildren of the testator take upon a contingency, as directed by the will, properly probated here, it is required that the guardian appointed be a resident of this State, according to our law, unless the funds have been properly removed to another state, O. S., 2195, 2196 ; and the law of this State governs the interpretation of the will when the testator died domiciled here.</p> <p>Hoke, J., dissenting.</p>

<p>Appeal by plaintiff from Shcuw, J., at the August Term, 1921, of Rtjthereokd.</p> <p>Civil action for the recovery of damages for personal injury.</p> <p>The plaintiff alleged that the defendant owned and operated a cotton mill and mercantile business in the town of Caroleen; that it owned a large tract of land on which its plant was situated and on which had been erected a number of tenement houses, occupied by the operatives of the defendant; that a public highway extended from the defendant’s store to Ellenboro, and that the road leading from this highway extended through the defendant’s property in the direction of Beasontown in the outskirts of Caroleen; that this road was a thoroughfare used, not only by the defendant’s operatives, but by the public generally; that in the spring of 1920 the defendant, for the purpose of gain and profit to itself, organized a baseball team at Caroleen, and permitted the game of baseball to be played on its premises from time to time, and that the defend-., ant hired baseball players and charged its employees and others admission fees. The plaintiff further alleged that the defendant, in order to exclude those who had not paid the admission fee, wrongfully caused to be stretched across the road referred to a rope which was attached to posts or poles on the defendant’s premises and thereby wrongfully obstructed said thoroughfare and constituted a nuisance; and that in the month of September, 1920, the plaintiff, while traveling in a Ford car driven by another, came in contact with the rope stretched across the road; that the rope caught under plaintiff’s chin and across his throat and violently threw him from his seat in the car, and that he was thereby painfully and seriously injured.</p> <p>The defendant alleged that prior to the injury it had prepared a diamond on its premises, had purchased the usual paraphernalia and fixtures, and had built a grandstand for the amusement and pleasure of its operatives, but had nothing whatever to do with the management of the baseball team, and received no compensation or profit from the games played there from time to time; that the operatives of the mill had organized a ball team for the purpose of playing match games among themselves and others in the community, and that the team charged an admission fee merely for the purpose of purchasing balls, bats, gloves, and other equipment, and that all the proceeds were paid to the ball team; that the defendant had no notice of the alleged obstruction in the road, and had nothing to do with it, and no opportunity to remove it before the alleged injury occurred.</p> <p>At the close of all the evidence, the defendant moved to dismiss the action as in case of nonsuit. The court granted the motion, and plaintiff excepted and appealed.</p>

Appeal by plaintiff from Harding, J., at the August Term, 1921, of Cherokee.

Appeal by defendant from Harding, J., at tbe Spring Term, 1921, of Gkaiiam. Tbe plaintiff is a resident of Grabam County, and tbe defendant is a foreign corporation, engaged in tbe manufacture of lumber, witb plants in Tennessee. Tbe defendant owned timber lands in Grabam County and operated a railroad for bauling logs from Grabam to its plants. Tbe defendant bad camps, a hospital, and an office in Grabam County.

Appeal by defendant from Long, J., at tbe Spring Term, 1921, of MacoN. Civil action to recover damages for trespass on land. Plaintiffs claimed title under a grant from tbe State to themselves, No. 16,105, dated 31 December, 1903, and registered 27 January, 1904. Tbe defendants alleged tbat on 20 May, 1864, tbe State issued grant No. 2,924 to II.

Appeal by defendant from Long, J., at tbe February Term, 1921, of JACKSON. Tbis action was brought by tbe plaintiff to recover damages for cutting timber, and other trespasses on tbe plaintiff’s land, and to remove tbe claim of tbe defendant as a cloud on tbe plaintiff’s title.

Appeal by plaintiff from Long, J., at tbe Spring Term, 1921, of Cherokee. Tbis is an action to try tbe right or title to an easement, and to remove a cloud wbicb rests upon it because of an adverse claim, wbicb is asserted by tbe defendant. In tbe year 1908, and prior thereto, A. A. Fain owned a lot in tbe town of Murphy.

Appeal by plaintiff from Lane, J., at tbe November Term, 1921, of SCOTLAND. Civil action, beard on case agreed. Held: and tbe people bad a free and full opportunity to express their will upon tbe questions submitted to them; that tbe election and tbe registration were well advertised, and that tbe time for registration and for tbe election, as appointed by tbe law and tbe order of tbe board of commissioners, was well known to tbe people, and tbe…

Appeal by defendant from Galvert, J., at January Term, 1921, of Nash. Action to recover damages for an alleged negligent injury, tried upon the usual issues of negligence, contributory negligence and damages. From a verdict and judgment in favor of plaintiff the defendant appealed.

Appeal by defendant from Allen, J., at February Term, 1821, of TYRRELL. Action to recover damages for an alleged breach of contract, wherein the defendant agreed to sell to the plaintiff 500 truck barrels to be ■used in moving and marketing a certain quantity of Irish potatoes. Upon denial of liability and issues joined, the jury returned the following verdict: “1. Did plaintiff and defendant contract to buy and sell the barrels, as alleged in the complaint?

Appeal by defendant from Allen, J., at January Term, 1921, of Pas-QUOTANK. Upon tbe issue whether the plaintiff and defendant entered into a contract of partnership, as alleged in the complaint, the jury answered “Yes,” and it appearing to the court that the taking of an account of the partnership receipts and expenses was necessary for the information of the court, such reference is ordered, and the defendant appealed.

<p>Appeal by defendant from Calvert, J., at May Term, 1921, of WilsoN.</p>

Appeal by defendant from Ferguson, J., at June Term, 1921, of Daee. Action to recover damages for an alleged negligent injury to plaintiff’s property. Upon denial of liability and issues joined, the jury returned the following verdict: “1. Did tbe defendant negligently injure tbe boat of tbe plaintiff as alleged? Answer: ‘Yes.’ “2. What damage, if any, is plaintiff entitled to recover ? Answer: ‘$200.’ ” From a judgment in favor 'of plaintiff, tbe defendant appealed.

Appeal by plaintiff from Allen, J., at February Term, 1921, of Pas-QUOTANK. Action to recover damages for an alleged breach of contract, plaintiff contending tbat tbe defendant bad agreed to sell and deliver, as per terms of acceptance, 50,000 pounds of hosiery yarns during tbe fall of 1919. Tbe negotiations between tbe parties, leading up to tbe alleged agreement, are in writing and consists of certain letters and telegrams, all of which were offered in evidence.

Appeal by plaintiff from Allen, J., at May Term, 1921, of Beaueoet. Action for trespass involving tbe true location of tbe boundary line between tbe lands of plaintiff and defendants, admittedly adjoining property owners. From a verdict and judgment in favor of tbe defendants, tbe plaintiff appealed.

Appeal by defendant from Kerr, Jat February Term, 1921, of HERTFORD. Criminal prosecution, tried upon an indictment charging the defendant with arson and house-burning. The defendant was acquitted of the charge of arson, but convicted of the lesser offense. From the judgment pronounced upon the verdict, the defendant appealed.

Appeal by defendant from Crarwner, J., at March Term, 1921, of Halifax. Action to recover damages for the loss of two express packages alleged to be worth the sum of $136.75. From a verdict and judgment in favor of plaintiff, the defendant appealed.

Appeal by defendant from Devin, J., at November Term, 1920, of Harnett. This was a motion, filed in the Superior Court, to set aside two judgments upon the ground of excusable neglect and upon the further ground that they purported to be consent judgments; whereas, movants allege that said judgments were entered by their codefendant without authority from them, and without their consent. .

Appeal by defendant from Devin, J., at.May Term, 1921, of Pitt. Action to recover the face value of defendant’s promissory note, executed and delivered to the Limestone Products Company, and, by the latter concern, sold and transferred to the plaintiff bank. Upon denial of liability and issues joined, the jury returned the following verdict: “1.

MotioN by defendants to reinstate the appeal in this case, which, has been docketed and dismissed under Eule 17, on motion of plaintiffs.

Appeal by plaintiff from Devin, J., at Hay Term, 1921, of Pamlioo. Civil action to recover damages for an alleged negligent personal injury- Upon denial of liability and issues joined, tlie jury returned the following verdict: “1. Was plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: ‘Yes.’ “2. Did plaintiff by his own negligence contribute to his injury? Answer: ‘Yes.’ “3. What damage, if any, is plaintiff entitled to recover?

MotioN to reinstate appeal. Tbis case was tried at June Term, 1921, of BbunswicK, before Kerr, J., and a jury. Verdict and judgment against defendants, wbo appealed, and were allowed by consent 60 days in wbicb to serve case on appeal, and plaintiff 60 days thereafter to serve countercase.

Appeal by defendant from Horton, J., at June Special Term, 1921, of ALAMANCE. Criminal prosecution, tried upon an indictment charging the defendant with having engaged in immoral prostitution, and unlawfully using a building for like purpose, in violation of the statute. Tbe defendant offered no evidence, but moved to dismiss tbe action or for judgment as of nonsuit under tbe Mason Act, chapter 73, Public Laws 1913. Motion overruled, and defendant excepted.

. Appeal by defendants from Bond, J., at chambers, 3 September, 1921, from Wake. Civil action to enjoin tbe defendants from certain alleged unlawful and wrongful practices.

Appeal by defendant from Finley, J., at March Term, 1921, of Guilfoed. Action to recover damages for an alleged negligent injury to plaintiff while performing the duties of a brakeman in the city of Danville, Va., on 24 March, 1919.

Appeal by defendant frota Finley, J., at February Term, 1921, of. Guileokd. Action to recover damages for an alleged negligent injury to plaintiff while performing the duties of a brakeman in the Pomona yards, near Greensboro, N. C., on the morning of 8 April, 1919.

Appeal by defendant from Bay, J., at tbe May Term, 1921, of Moobe. Action to remove a cloud from plaintiff’s title, and for general relief. On issues joined, there was verdict for plaintiff. Judgment, aüd defendant excepted and appealed.

Appeal by defendant from Finley, J., at tbe May Term, 1921, of GrUILFORD. Civil action to recover damages for an alleged shortage in acreage in a tract of land bought by plaintiff from the defendant. The contract of purchase is set out and construed in this same case as reported on the former appeal in 180 N. 0., 313. Upon trial in the Superior Court, the jury returned the following verdict: “1.

Appeal by defendants from Adams, J., at August Term, 1921, of BuNcombe. This action was begun before a justice of the peace, and on 4 June, 1921, judgment was rendered by said justice against the defendants, who appealed. On 13 August the defendants applied to Adams, J., in the Superior Court, for recordari. The motion was refused, and the petitioner appealed.

<p>The defendant, with others, was indicted in the court below for the murder of James Smith, and was convicted of murder in the second degree. The solicitor for the State withdrew the charge of murder in the first degree. There was no suggestion from defendant’s counsel that the question of manslaughter was involved, or that there was any evidence of the same. No instruction was requested on that subject, and no reference to manslaughter made by defendant until the defendant, after verdict and judgment, filed his exceptions, and upon them based his assignments of error, in which he made his first reference to manslaughter, when he excepted because the court failed to charge as to manslaughter. The substance of the record on this point is as follows: The case was fully argued by both the State and the defendant, neither the State nor the defendant’s counsel discussing any question except the guilt or innocence of the defendants on the charge of murder in the second degree. No allusion was made in the course of the argument by either the solicitor or associate counsel for the State, or by any counsel for either of the defendants, to the guilt or innocence of the defendants of any crime except murder in the second degree, and specifically no contention was made either by, the State or the defense that the defendant was guilty of either murder in the first degree or manslaughter. The only question argued being whether the defendants were guilty or innocent of the charge of murder in the second degree. During the course of the argument for the defendant, the defendant’s counsel read the statute defining the crime of murder in the second degree to the jury, and argued to the jury the punishment that was permissible upon a conviction under the same, and told the jury that if the defendants were convicted they would be punished by imprisonment from two to thirty years, in the discretion of the court. The solicitor likewise admitted to the jury that the statute had been correctly read, and that the punishment suggested by the defendants’ counsel was possible upon a conviction, but argued to the jury that the matter of punishment was not for their determination, but should and could be left to the court to administer in justice and mercy. At the conclusion of the argument, the court charged the jury at length with respect to the case, stating fully the contentions of both the State and the defendants, to all of which there was no exception.</p> <p>There was testimony to the effect that one of the witnesses had heard the defendant fighting the deceased the night of the homicide, and that, before the homicide, he had heard him threaten to kill him. There was evidence tending to show that McArthur and Smith were killed with a heavy single-tree, made of solid oak and having iron bands at each end of it, and which was a deadly weapon. The indentations in the skull of McArthur corresponded with the shape of the ends of this single-tree. The dead bodies of McArthur and Smith were hauled in a cart belonging to John Jones (which was borrowed by defendant, Henry Jones) to the canal near Henry’s home, and thrown into the canal, Henry having-said that he wanted the cart to carry the boys (McArthur and Smith) to the canal and “chunk them in.” There was evidence that blood stains were found on Henry’s kitchen floor, and the single-tree in the bottom of the cart. There was other evidence tending to identify the defendant as the one who committed the homicide in addition to his admission in jail that he and his wife had killed the boys, and that he intended to “put it on Dad,” and also his threat to kill Smith because of some real or fancied grievance.</p> <p>The jury, under the evidence and the charge of the court, convicted the defendant of murder in the second degree, and from the judgment upon the verdict he appealed.</p>

Appeal by defendant from Lyon, J., at tlie May Term, 1921, of Chatham. Defendant was convicted of manufacturing spirituous liquor, and, being sentenced to eighteen months on the roads, he appealed. The only question is whether there was any evidence of his guilt, and this was raised by his motion to nonsuit the State.

Appeal by defendant from Granmer, J., at March Term, 1921, of VaNOe. Criminal prosecution, tried upon an indictment under C. S., 4447, charging the defendant with willfully abandoning his wife without providing for her adequate support as required by law. The prosecutrix and defendant were married 2 June, 1918. The defendant enlisted in the Navy three days later, and while stationed in Norfolk, Ya., his wife spent some time with him there.

<p>1. Seduction — Promise of Marriage — Supporting Evidence — Statutes.</p> <p>Evidence tbat the defendant, indicted for seduction under the promise of marriage, was engaged to the prosecutrix at the time of the alleged offense, and so held himself out and as such had gone with her, is sufficient supporting evidence of the testimony of the prosecutrix that he had seduced her under promise of marriage to be submitted to the jury.</p> <p>2. Same — Inferences for Jury.</p> <p>The acts and conduct of the defendant, tried under the statute for seducing the prosecutrix under promise of marriage, may be sufficient for .the jury to infer the promise independently of the testimony of the prose-cutrix thereto, and are held, sufficient under the whole evidence in this-case.</p> <p>3. Same — Instructions.</p> <p>Where, under the evidence, the court has instructed the jury that the State must show the guilt of the defendant, tried for seduction under a breach of promise of marriage, beyond a reasonable doubt, and properly upon the other elements of the offense, a further charge, upon the evidence, that the promise must be either express or implied, is not erroneous, taken in connection with his charge that the promise must have been the sole inducement to the act without “other motive.”</p> <p>4. Trials — Remarks of Counsel — Seduction—Improper Remarks — Appeal and Error.</p> <p>Where an attorney has been arguing to the jury for the conviction of the defendant on trial for seduction under a'breach of promise of marriage, in conformity with the evidence in the case, he is within his rights in generalizing upon the enormity of the offense, and the necessity of protecting the virtue of our women from designs and practices of this character upon them.</p> <p>Walker and Stacy, JJ., dissenting.</p>

Appeal by defendant from Kerr, Jat the August Term, 1921, of CUMBERLAND. This is a criminal action, in which the defendant was charged, in two counts of the indictment, with, first, unlawfully selling liquor to A. T. Copper, and second, with unlawfully keeping liquor for sale, contrary to the statutes in such cases made and provided. He was convicted on the first two counts for selling and for having liquor for sale, and from the judgment he appealed.

Appeau by defendant from Granmer, J., at tbe April Term, 1921, of N ORTHAMPTOW. Tbe following is tbe bill of indictment: “Tbe jurors for tbe State upon tbeir oatb present, tbat J. M. Jenkins, late of tbe county of Northampton, on 5 March, 1921, with force and arms, in said county a lot of bacon meat of tbe value of $25, tbe goods and chattels of Gr.

Appeal by defendant from Daniels J., at September Term, 1921, of OeANGE. Indictment for perjury. Defendant was convicted, and from sentence on tbe roads of Orange County for four months, appealed to this Court, assigning for error: 1. For that bis Honor declined to set aside tbe verdict as contrary to tbe weight of tbe evidence. 2. For that bis Honor entered judgment on tbe verdict.

<p>Appeal by defendant from Horton, J., at March Term, 1921, of Car-teket.</p> <p>Criminal action. Defendant was convicted under the following bill of indictment;</p> <p>“The jurors for the State upon their oath present: That Henry Dudley, late of the county of Carteret, on 28 December, 1920, did willfully, unlawfully and feloniously take escallops with drags or scrapes in that •territory in Bogue Sound lying between Spooners Point and Brant Island, tbe same being that territory designated as unlawful or forbidden grounds, in violation of orders, rules, regulations, etc., of tbe Fisheries Commission Board at meeting beld 7 October, 1919, and known as Eegu-lation No. 13, contrary to tbe form of regulations of said commission board and against tbe peace and dignity of tbe State. And tbe jurors for tbe State upon tbeir oatbs aforesaid do further present: did willfully, unlawfully and feloniously violate Eegulation 5 of tbe orders, rules and regulations of tbe Fisheries Commission Board, passed at various meetings beld from 29 April, 1915, to 5 July, 1920, contrary to tbe form of tbe regulations of said Fisheries Commission Board.”</p> <p>From judgment on tbe verdict, tbe defendant appealed, assigning for errors chiefly: tbe refusal to quash tbe bill for that same did not state a criminal offense; refusal to instruct tbe jury that on tbe entire evidence if accepted by tbe jury no criminal offense has been established.</p>

Appeal by defendant from Long, J., at August Term, 1921, of Eocb:-INGHAM. Criminal prosecution tried upon an indictment charging all three of the defendants with robbery, and the defendant, Coford, with a felonious assault. On Sunday night, 6 June, 1921, E. H. Finney, an elderly man, was called from his home by the defendant, Coford, and another man in company with him.

<p>1. Spirituous Liquors — Intoxicating Liquors — Return in Kind — Barter— Payments — Evidence—Appeal and Errors — Harmless Error.</p> <p>A loan of intoxicating liquor upon a ijromise that it should be returned in hind is a violation of our prohibition law, and where there is further evidence that the buyer had promised to pay in money, rejection of testimony as to whether the defendant had eventually been paid is immaterial, either the barter or the promise to pay being sufficient. C. S., 3378.</p> <p>2. Criminal Law — Indictment—Spirituous Liquors — Intoxicating Liquors —Statutes.</p> <p>The validity of an indictment for the unlawful sale of intoxicating liquors does not depend upon a charge of a sale to any particular person or to persons unknown. C. S., 3383.</p> <p>3. Same — Jurisdiction—Courts.</p> <p>When it appears that the court has jurisdiction of the offense charged against the defendant of violating our prohibition law, it is not necessary for conviction for that indictment should charge the date of the transaction of that the offense was committed in that county. C. S., 4625.</p> <p>4. Same — Waiver.</p> <p>Where an indictment for the violation of our prohibition law has been found by the grand jury of the county, the defendant, as to jurisdiction, waives the omission of the indictment to charge that the offense had been committed in that county, by failing to enter a plea in abatement at the trial.</p> <p>5. Same — Statutes.</p> <p>A motion in arrest of judgment will not be allowed after conviction for omission of the bill of indictment to charge the date of the offense or its failure to show the venue thereof. C. S., 4623, 4625.</p> <p>6. Criminal Law — Verdict— Jurors — Explanation—Recommendation of Clemency.</p> <p>The verdict in a criminal case should either be “guilty” or “not guilty,” and the trial judge should properly see that it is so rendered, it being in his discretion to hear the jurors state their reasons for their verdict of guilty; and a recommendation for clemency is but surplusage.</p>

CRIMINAL action, tried before Horton, J., at May Term, 1921, of Durham. The warrant issued by the recorder is as follows: “Gr.

<p>1. Criminal Law — Evidence—Motions—Nonsuit.</p> <p>Defendant’s motion to dismiss a criminal action as in case of nonsuit upon the evidence will be denied when the State’s evidence, taken alone or with the other evidence in the case, is sufficient in law for a conviction.</p> <p>2. Same — Circumstantial Evidence — Inferences—Questions for Jury— Trials.</p> <p>Where there is absence of direct proof of the defendant’s guilt on the trial of a criminal action, the jury may not only find the basic facts, but make the permissible inferences therefrom in determining the question of the defendant’s guilt or innocence, which enters into the consideration of the court upon defendant’s motion to dismiss as in case of nonsuit.</p> <p>3. Spirituous Liquor — Intoxicating Liquor — Nonsuit—Motions—Evidence —Questions for Jury.</p> <p>Evidence tending to show that a furnace for a still had been found in the vicinity of the defendant’s home, from which the still had been removed, but -found nearer defendant’s residence, with other evidence that spirituous liquor had been made and found there, and also found at defendant’s home to which was a pathway, with the other evidence in this case: Held, sufficient to sustain a verdict of the defendant’s guilt in unlawfully manufacturing spirituous liquor and having it in possession for the purposes of. sale.</p> <p>4. Same — Instructions—Expression of Opinion — Statutes—Appeal and Error.</p> <p>Where there is evidence sufficient to convict the defendant for unlawfully manufacturing spirituous liquor and keeping it on his premises for sale, the giving of a requested instruction that the jury should consider the fact that the still was not on the defendant’s premises as tending to show his innocence, would be an expression of the judge’s opinion upon the weight and effect of the evidence, and is properly refused.</p> <p>5. Spirituous Liquor — Intoxicating Liquor — Evidence—Scienter—Corre-lated Facts — Intent.</p> <p>Where there is evidence that the still and liquor were found in the possession of the defendant, charged with the unlawful manufacture and sale of intoxicants, and under his control, the question of his intent or purpose becomes both relevant and material, and it may be shown as throwing light on that question, but not as a separate offense, that about ninety days before the trial a still was found near the defendant’s house, giving indication that it had been operated the preceding night.</p>

Appeal by defendant from Webb, J., at tbe May Term, 1921, of ROCKINGHAM. Tbe defendants were convicted of larceny of a large quantity of oats, tbe property of Nello Teer, and from tbe judgment upon sucb conviction appealed to tbis Court. Exceptions seven and nine were directed to tbe judge’s refusal to give judgment as of nonsuit at tbe conclusion of tbe State’s evidence, and again at tbe conclusion of all tbe evidence.

Appeal by defendant from Webb, J., at the May Term, 1921, of BoCKINGHAM. Criminal action. Tbe indictment is for larceny of an automobile with, a count for receiving same knowing it to have been stolen. Defendant was convicted, and from judgment on the verdict appealed:

Appeal by defendant from Finley, J., at February Term, 1921, of DAVIDSON. Criminal prosecution, tried upon an indictment charging tbe defendant with tbe larceny of a Ford automobile, with a count in tbe bill charging him with receiving same, knowing it to have been stolen. The defendant entered a plea of not guilty, and offered evidence tending to establish an alibi, or that, at the time in question, he was some twelve or fifteen miles from the scene of the crime.

<p>Appeal from Long, J., at July Term, 1921, of Forsyth.</p> <p>Tbe defendant was prosecuted for a breach of sections 4226 and 4227 of the Consolidated Statutes, upon the following bill of indictment:</p> <p>“The jurors for the State upon their oath present:. That Robert L. Martin, late of the county of Forsyth, on 28 June, in the year of our Lord one thousand nine hundred and twenty-one, with force and arms, at and in the county aforesaid, unlawfully and willfully and feloniously, did administer to Rosa Yow, a woman pregnant and quick with child, and did prescribe for said Rosa Yow and advised and procured said Rosa Yow to take certain medicines, drugs and other substances, and used and employed other instruments and money with intent to destroy said child, the same not being necessary to preserve the life of the mother, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.</p> <p>“And the jurors aforesaid, upon their oath, do further present, that Robert L. Martin, at time aforesaid, with force and arms, at and in county aforesaid, unlawfully, willfully and feloniously did administer to Rosa Yow, a pregnant woman, and prescribe for said pregnant woman, and advise^ and procure said Rosa Yow to take medicine, drugs and other things, with intent thereby to procure the miscarriage of said Rosa Yow, against the form of the statute in such case made and provided and against the peace and dignity of the State.”</p> <p>The jury convicted the defendant, who, after judgment was pronounced, appealed. He has assigned several errors, among them the refusal of his Honor to dismiss the action as in case of nonsuit. The State introduced only two witnesses, Dr. Mimms, and W. P. Tow, a brother of Rosa. The defendant offered no evidence. The evidence, most favorable to the State, tended to show the facts to be as herein stated. Rosa Tow wa's 18 or 19 years of age. Several months before the indictment she had married a man named Howard Daye, with whom she lived only a short time. On Saturday she went to- her brother's house, which was four or five miles from Winston-Salem, and on the next Monday at three o’clock in the afternoon suffered an abortion, or miscarriage. On Monday night Dr. Mimms was called to see her, and found her in bed slightly bleeding. At the time of the abortion, or miscarriage, she was advanced in pregnancy from two to four months. The defendant accompanied Dr.- Mimms on this visit, and told him that another doctor had charged $200 for the operation, one-half of which the defendant had paid by a check which he had destroyed after it was cashed. On this visit Dr. Mimms and the defendant went into-Rosa’s bedroom, the defendant seating himself on a sofa in one corner of the room. The defendant was drinking, and occasionally “opened up and said something,” and Dr. Mimms, while not positive, thought the defendant was awake, and if awake, could hear Rosa’s conversation with the witness. In the presence of the defendant Rosa told Dr. Mimms that since becoming pregnant she had desired a miscarriage, and had called on a physician who charged her $200; that the defendant had given her a check for $100, which, with $100 of her own money, she had paid this physician; that the physician when the money was paid took her into a room, laid her on a table, used some kind of instrument in packing something in her womb, and gave her medicine to take. She said this doctor, after getting his money, refused to visit her, and the defendant said he had phoned him to go and he ought to have gone. At one time the defendant paid Dr. Mimms $60. Defendant made another visit with Dr. Mimms. On the second Saturday night next preceding the first visit, the defendant and Rosa called at Dr.. Mimms’s office, but left there while he was attending a call; and five or six days before this visit Rosa had come to his office alone. In the presence of others she addressed the defendant in endearing terms, and they were very affectionate. There were other circumstances tending to show their intimate relation.</p>

Appeal by defendant from Finley, J., at tbe Spring Term, 1921, of Stokes. Tbe defendant was convicted of murder in tbe second degree and from tbe judgment upon sucb conviction appealed to tbis Court.

Appeal by defendant from Ray, J., at May Term, 1921, of ScotlaND. Tbe defendant was indicted and convicted under a charge of having in his possession spirituous and intoxicating liquors for sale, and from the judgment thereon appealed.

<p>Civil action, beard on demurrer to complaint before Bay, J., at October Term, 1921, of Meoklenbubg.</p> <p>Tbe action is instituted by tbe State on relation of tbe Attorney-Creneral to annul tbe charter of tbe Rama Rural Community on tbe grounds alleged in tbe complaint, tbat tbe requirements of tbe statute under wbicb tbe charter purported to have been issued, C. S., 7380, bad not been complied with, and tbat on tbe facts presented tbe alleged charter was- not authorized by said statute. Tbe complaint, among others, containing allegations tbat the petitioners in their written application for tbe charter bad made it appear tbat tbe proposed community embraced one entire school district, and bad concealed from tbe Secretary of State tbe essential fact tbat it contained parts of three school districts in said county, each of wbicb constituted a separate special school tax district in said county, the said statute providing tbat a charter of this kind in question may only be issued for territory embracing one entire school district.</p> <p>Defendants demurred, and for tbe reasons chiefly: (1) Tbat tbe courts are without jurisdiction to question tbe acts of tbe Secretary of State in issuing tbe charter, or bis findings of fact concerning tbe same; (2) tbat relator of plaintiff has no legal right to maintain tbe action; (3) tbat tbe complaint does not contain facts sufficient to justify tbe relief sought nor any other relief within tbe scope of tbe pleadings, etc.</p> <p>Judgment overruling the demurrer, and defendant excepted and appealed.</p>

Appeal by plaintiff from Ray, J., at chambers, 9 June, 1921, from MeckleNbueg.

A pun at. by defendant from Ferguson, J., at August Term, 1921, of Wilkes. This was an indictment for seduction under promise of marriage. There was evidence tending to show that the prosecutrix, Darrie Ball, before the seduction, charged in this case, had been seduced under promise of marriage by Thomas Ball. This she admitted.

<p>Appeal by defendants from Bryson, J., at April Term, 1921, of Oa-BARE.US.'</p> <p>Criminal action. From a perusal of tbe record it appears that at said April Term, 1921, a bill of indictment, No. 78, was submitted to tbe grand jury, charging that tbe defendants, Harvey Overcasb and Arcb Petbel, on 29 January, 1921, did feloniously steal, take, and carry away two thousand yards of cloth of tbe value of two hundred dollars of tbe goods and chattels, etc., of tbe Locke Cotton Mills, and there was also a count in tbe bill for feloniously receiving said property knowing the same bad been stolen.</p> <p>At tbe same April Term, 1921, there was a further bill submitted, No. 79, charging that on said 29 January, 1921,' Fred Widenhouse, William Sides, and Walt Sides with force and arms, at or in the county aforesaid, did break into the warehouse of said Locke Cotton Mills with felonious intent and did there feloniously steal, etc., five bolts of cloth, the property of said company of the value of two hundred dollars, and with a count on bill for feloniously receiving the property. In No. 80 at same term a bill was submitted charging in proper terms, that on 15 January, 1921, William Sides, Dewey Furr, and Roy Hall feloniously did break and enter the warehouse, etc., of the Locke Cotton Mills and then and there did feloniously steal, etc., cloth of the value of two hundred dollars, the property of said company, with a count for receiving, etc.</p> <p>These bills were all considered and found by the grand jury to be true bills, and the three causes by consent were tried together at said term and before the one and the same petit jury, and all of the defendants were convicted of the crime of larceny, except Roy Hall, he being acquitted of the offense. There was judgment on the verdict, and defendants Over-cash and Pethel excepted and appealed.</p>

<p>1. Appeal and Error — Failure to Docket — Dismissal.</p> <p>Where the defendant in a criminal action has failed to docket his case until after the expiration of the term at which it should have been heard, the Attorney-General may on motion have it dismissed as a matter of course.</p> <p>2. Criminal Law — Sentence—Judgment—Pending Sentences — Commencement of Sentence.</p> <p>A sentence, upon, conviction in a criminal action, which recognizes an existing sentence of the same defendant then pending on appeal to the Supreme Court, and makes the term of imprisonment to begin at once, or immediately after the expiration of the former sentence, according to the outcome of the appeal, is not void for uncertainty, indefiniteness, or being alternative or contingent; and' when a pardon has been obtained from the Governor, in the meanwhile, the present sentence will take effect at once.</p> <p>3. Appeal and Error — Criminal Law — Sentence—Case Remanded — Void Sentence.</p> <p>Where the sentence in a criminal case is void for indefiniteness, etc., the case will be remanded in order that a correct sentence may be imposed.</p>

<p>1. Homicide — Murder—Evidence—Nonsuit—Trials.</p> <p>. Where, upon the trial for murder, there is direct evidence of the actual shooting- of the deceased by the defendants, and circumstantial evidence that they afterwards loaded the deceased’s body in a wagon and took it to the place where he was afterwards found dead, a motion as of nonsuit was properly denied.</p> <p>2. Evidence — Homicide—Murder—Res Gestae.</p> <p>Upon a trial for murder, circumstantial evidence, forming a part of the res gestee, is properly admitted.</p> <p>3. Homicide — Murder—Evidence—Nonsuit—Trials—Dismissal as to One Defendant — Instructions—Prejudice—Appeal and Error.</p> <p>Where two defendants are tried for committing the same crime, the court, upon the evidence, eliminates one of them from the trial upon non-suit, and a part of the evidence is only admissible as to the one thus discharged, it will not be held as prejudicial to the other when the judge instructed the jury, unmistakably, that this evidence must, not be considered against the defendant remaining on trial.</p> <p>4. Ooui’ts — Trials—Bench Warrants — Ax’rest of Witness — Expression of Opinion.</p> <p>Where one of the defendants, on trial for murder, has been released on the granting of a motion as of nonsuit upon the evidence, and ordered arrested, in the presence of the jury by the judge for illicit distilling of spirituous liquor, on evidence given on the trial, and bond required for his appearance, it is not an expression of opinion by the trial judge in the case at bar upon the weight or credibility of the evidence, as it might if he had been held for perjury.</p> <p>5. Instructions — Contentions—Disagreement Between Judge and Attorney —Jury.</p> <p>When the counsel and judge disagree as to a part of the evidence introduced during the trial, in the charge to the jury while stating the contentions of the parties, it is proper for the court to instruct the jury to depend upon their own recollection of the evidence.</p>

<p>CRIMINAL action, tried before Bryson, J., and a jury, at tbe April Term, 1921, of Cabarrus.</p> <p>Frank Blackwelder and Sid McDaniel were indicted for tbe murder of M. W. Allman, but Blackwelder only was tried. When tbe case was called for trial, tbe solicitor announced tbat be would not request a verdict for murder in tbe first degree, but only for murder in tbe second degree, or for manslaughter, as tbe evidence might warrant. Tbe jury returned a verdict against Blackwelder for murder in tbe second degree. Tbe judgment of the court was pronounced, and the defendant, having entered exceptions of record, appealed to the Supreme Court.</p> <p>There was evidence for the State tending to show the facts to be as follows: M. W. Allman resided in Carbarrus County, some distance from Concord, the county-seat, and about a quarter of a mile from the cross-roads. On the occasion hereinafter referred to, he, his wife, and his son were at his home. Between one and two o’clock on the morning of 4 January, 1921, the defendant arrived at Concord on a train which had come from Charlotte, and at the station met McDaniel and a man named Jones. The defendant, after a conversation with the other two, went to the-Hartsell mill, and took a pistol and some cartridges from a traveling bag which he had left at the home of McDaniel’s mother. About two o’clock these three men left Concord in a Ford car, and went in the direction of the place at which the deceased lived, and about four o’clock in the morning a car passed the residence of the deceased, and stopped in front of his garage, which was about fifty yards from the residence; the wife of the deceased about this time heard the door of the car close, and raised'the curtain, looked through the window, and saw the car go on down the road. In about three minutes the car returned, and again passed the residence of the deceased, and stopped at a distance of about forty or fifty yards from the house in the road leadifig to Concord. The deceased, his son, and his wife had been disturbed by the noise, and the deceased going out to make an investigation, called out, “What are you doing there?” Just prior to this time, or about this time, the son of the deceased heard the door of the garage open, and taking the shotgun went to the piazza and fired the gun twice. The car which had stopped beyond the house thereupon moved on in the direction of Concord, and the deceased and his son a few minutes thereafter took the car of the deceased from the garage and went in pursuit of the other car a distance of about two miles, when failing to overtake it, they returned in the direction of their home. When about a mile from home, the deceased and his son met the defendant and McDaniel in the road coming from the direction of their residence, and apparently going toward Concord. Upon their meeting, the deceased had the car stopped, and entered into a conversation with the defendant and McDaniel. The deceased inquired where Blackwelder and McDaniel were going, and they said they were going to Concord. The deceased asked where they were from, and they said from Georgeville. The deceased asked theif names, and Blackwelder said his name was Smith. The deceased inquired whether the car had run off and left them, to which Blackwelder answered “No.” The son of the deceased then got out of the car, walked in front of it, and the deceased thereupon told Blackwelder and McDaniel to come in front of tbe car so that he might see them in the light. They came in front of the car, and Blackwelder inquired whether the deceased knew them. The deceased said he did not, got out of his ear, took a position near his son, and said to Blackwelder and McDaniel, “Why do you hold your hands so closely in your pockets? You have a gun, haven’t you?” Blackwelder and McDaniel had their hands in their overcoat pockets, and Blackwelder said “Yes.” . The deceased took the shotgun which his son had. He had previously asked Blackwelder and McDaniel if they had been in his garage, and each of them said “No.” The deceased said, “I have reason to believe you are the two fellows I ran out of my garage a few minutes ago.” He asked them to take their hands out of their pockets, and Blackwelder remarked, “There is no use of that.” The deceased then said, “If you were not in my garage at the time mentioned, why do you refuse to take your hands out of your pockets?” Blackwelder and McDaniel then began shooting with pistols, and the defendant fell at the first shooting. The shotgun which he held was fired as he fell, and again after he had fallen to the ground. The son was shot in each shoulder. McDaniel shot him and Blackwelder shot the deceased. They fired four or five times before the shotgun was fired. Blackwelder was shot in the hand, and as he and McDaniel ran away, the son of the deceased fired two shots at them. The shotgun was the only weapon in the possession of the deceased and his son. The deceased was shot on the morning of 4 January, and died at three o’clock on the morning of the 7th. The defendant Blackwelder was a mechanic, and worked in one of the mills at Concord, and had mechanic’s tools which he kept in his suitcase. On the morning following the homicide, defendant’s glove and a pair of bolt nippers were found on the ground near the scene of the shooting. The defendant had previously pleaded -guilty of carrying a concealed weapon and of larceny in Mecklenburg County, and had been sentenced to the roads for a term of two years. He had served about thirteen months when he was pardoned. He had been charged with breaking into a store at Mooresville, and had been arrested on another occasion, and, it seems, had been released after trial. There was evidence tending to show that the general reputation of the defendant was bad. It had been raining for some time before the shooting took place, and the deceased, in his dying declaration, said that he noticed when he met Blackwelder and McDaniel that they had very little mud on their shoes, though the road from his house to the scene of the shooting was very muddy.</p> <p>The State contended that Blackwelder, McDaniel, and Jones had gone in a car from Concord to the residence of the deceased for the purpose of committing larceny of the car which the deceased had locked in his garage; that Jones drove the car, and that Blackwelder and McDaniel got out of the car when it stopped in front of the garage, broke the door, and were in the act of taking the car away when they were frightened by the deceased and by the firing of the gun; that the night was dark, and after their car had left them, they secreted themselves and made their way cautiously in the direction of Concord, traveling as little as possible in the road. The State contended that Blackwelder and McDaniel at the time o'f the shooting had committed a felony, and that they were affected with notice of the statute which gave the deceased a right to arrest them without warrant.</p> <p>The defendant contended that he, McDaniel, and Jones had gone from Concord in search of liquor, and that they left their car near the place of the shooting, while Jones went alone for the purpose of getting the liquor and bringing it to the defendants in the ear; that it was their purpose, after getting it, to return to Concord; that Blackwelder and McDaniel were secreted within a short distance of the road when the two ears referred to passed in the direction of Concord; that neither Blackwelder nor McDaniel knew anything about the other car, had not been in it, had not gone to the residence of the deceased, knew nothing of the attempted larceny of the car owned by the deceased, and that the deceased did not have any reasonable ground for believing that they had broken the garage and attempted to take his car. The defendant further contended that when the four met in the road, the deceased required Blackwelder and McDaniel to walk in front of the car, and to hold up their hands; that the defendant thereupon said, “Please don’t shoot me; give me a living chance”; that the deceased immediately thereupon fired his gun and shot Blackwelder’s hand out of his pocket; that Blackwelder then began shooting his pistol with the other hand; that he shot once or twice, started to leave the road, stepped into a ditch and fell; that the gun was fired directly over him, and as soon as he recovered himself, he began shooting again. The defendant contended that he and the deceased were at arms length; that the deceased had no right to arrest him; and that he shot the deceased, if at all, upon the principle of self-preservation, and insisted upon the law of self-defense in his exoneration.</p> <p>The court admitted evidence tending to show all the occurrences at the residence of the deceased and at the garage, to which the defendants excepted, and the defendant thereafter moved to strike the evidence from the record, and upon the court’s declining the motion, again excepted. The first five exceptions relate to the admission of evidence as to what took place at the residence and at the garage.</p> <p>The defendant excepted to the court’s charge to the jury as set out in the opinion of the court. This is the defendant’s sixth exception. .</p>

I Appeal by defendant from Harding, J., at the May Term, 1921, of MeCKLENBuRG. Criminal action.

<p>Appeal by defendant from Adams, J., at tbe July Term, 1921, of Buncombe.</p> <p>Tbe defendant was convicted of having in bis possession spirituous liquors for tbe purpose of sale. He was arrested as be was walking on Cburcb Street in Asheville by officers who bad received information that be bad liquor in bis possession for sale. He was not searched by them, and be requested that they should not do so. They put him in an automobile, and took him to tbe sheriff’s office, where tbe defendant voluntarily took out of bis several pockets 5 pints of corn whiskey, which were later introduced in evidence on bis trial. Officer McLean testified that be told tbe defendant that be bad a search warrant for bis person, thereupon tbe defendant said: “All right, but don’t do it here.” It appears that tbe search warrant was what officer Wells called an “alias John Doe warrant,” which bad been obtained that morning. Tbe warrant was not used at all, except as above stated, and when carried to tbe sheriff’s office tbe defendant voluntarily took tbe whiskey out of bis pockets.</p> <p>Tbe defendant was found guilty by tbe jury, and tbe judge being satisfied from tbe testimony of tbe witnesses, wbo were examined after tbe verdict, stated in tbe judgment: “Tbe defendant bas heretofore been convicted for illegal sale of spirituous liquor and fined, and it appearing from tbe testimony of these witnesses that tbe record of tbe defendant for 'dealing in liquor is bad, it is adjudged that tbe defendant be confined in jail and assigned to work on tbe public roads of Buncombe County for tbe term of two years, not to wear felon’s stripes.” Appeal by defendant.</p>

<p>1. Assault — Intent to Kill — Deadly Weapon — Poison—Statutes.</p> <p>An assault by means of poison comes within the intent of our statutes making an assault with a deadly weapon with intent to kill punishable as a felony. C. S., 4213, 4214.</p> <p>3.Same — Evidence—Nonsuit—Trials—Questions for Jury.</p> <p>Evidence tending to show that after threats of poisoning made by the wife against her husband, the daughter prepared her father’s breakfast at their home in the presence of her mother, sent it out to him by their son, and the daughter thereafter attempted to destroy in the fire a spoon having a greenish color on it, apparently paris green, a poison; and soon after the father had commenced his breakfast he became ill from the effects of paris green, is sufficient for conviction of the offense of an assault with intent to kill, as to each defendant.</p> <p>3. Same — Husband and Wife — Threats.</p> <p>In case of assault and battery with intent to kill by poison, with evidence tending to show the previous threats of the wife, and that the poison was put into the food prepared by the daughter in her mother’s presence at their home, and that the husband was poisoned from eating thereof, the testimony of the husband as to his wife’s previous threats is not inadmissible under the provisions of O. S., 1802, but is admissible for the purpose of showing knowledge and identifying the perpetrators of the crime, and is distinguishable from the rule that threats are ordinarily inadmissible on- trials for assault and battery.</p> <p>4. Assault — Instructions—Intent to Kill — Poison.</p> <p>The charge upon the trial of an assault with intent to kill by administering poison by several defendants, with evidence sufficient of the guilt of each, that if one of them did it without the knowledge of the other, the one who did it would be guilty, and the other would not be, is the stating of a legal truism, and not error, when construed with the other parts of a correct charge.</p> <p>5. Assault — Evidence—Motive.</p> <p>While motive is not a necessary ingredient of the crime of an assault with intent to kill by poison (a deadly instrumentality), it may become important, with other relevant evidence, to identify the accused as the one who has administered, or helped to administer, the poison.</p>