Volume 183 — North Carolina Reports

Appeal by defendant from Horton, at December. Term, 1921, of Beaueoet. Civil action to recover damages for an alleged breach of contract. Upon trial in the Superior Court, the jury returned the following verdict: “1. Did defendant contract to sell and deliver typewriters to plaintiff, as alleged in the complaint? Answer: ‘Yes.’ “2. If so, did defendant breach said contract, as alleged in the complaint? Answer:‘Yes.’ “3.

Appeal by defendant from Daniels, J., at the January Term, 1922, of Beaufort. Civil action, submitted and determined on cas'e agreed.

Appeal by caveators from Iiorton, J., at November Term, 1921, of PasquotaNK. D. B. Bradford died in Elizabeth City, November, 1918. Ilis wife, aged 79, predeceased bim in December, 1916, leaving no children. After his wife’s death, he lived with his nephew, J. B. Griggs, but after a few months he married Minerva I. Gross, a trained nurse, aged 23.

<p>Appeal from Allen, J., at November Term, 1921, of Edgecombe.</p>

Appeal by defendants from Allen J., at September Term, 1921, of Edgecombe. This action began before a justice of tbe peace to recover $192 and interest for jewelry purchased from tbe |>laintiff.

Appeal by plaintiffs from Ferguson, J., at November Special Term, 1921, Of WASHINGTON. In July, 1920, tbe plaintiffs bought certain articles from the Farm Equipment Company of Raleigh, which delivered them to the defendant company at Raleigh for transportation to Plymouth, and issued its bill of lading to vendor.

<p>Appeal by both plaintiff and defendants from Bond, J., at Fall Term, 1921, of LeNOib.</p> <p>Civil action, beard on case agreed.</p> <p>From tbe facts presented it appears tbat the Atlantic and North Carolina Railroad is a corporation owning a railroad franchise and property, etc., which extends through the city of Kinston, and the co-defendant is in possession of and operating the same under a lease of 91 years and 4 months from and after 1 September, 1904, same having been made by the Atlantic and North Carolina Railroad to one Howland and acquired and held by the Norfolk Southern Railroad. That several of the streets of plaintiff cross the road and tracks of these companies at right angles and somewhat less, and that the said city, claiming to act under proper statutory authority, had entered in an extensive improvement of said streets, paving, etc., and have assessed a proportionate part of the cost against the defendants as abutting owners, and the action is to collect said amount from said companies by foreclosure of the alleged lien on the franchise and property of the companies and a judicial sale of same. There was denial of liability by both defendants, and a question presented, also, of primary and secondary liability of the two companies in case collection of said assessment should be successfully enforced.</p> <p>Upon tbe ease submitted, tbe court entered tbe following judgment:</p> <p>Tbis case coming on to be beard upon the facts agreed and contentions of tbe parties signed by counsel and filed’ witb tbe record, upon consideration of said facts agreed and tbe contention of tbe parties, and after bearing argument -of counsel, it is now considered, ordered, and adjudged tbat tbe said assessments, and each of them, wbicb were levied under cb. 202, Private Laws of 1913, were duly and legally levied and constitute a lien upon tbe property of tbe defendants as is contemplated in and by cb. 202 of tbe Private Laws of 1913, but tbat such lien is subject to tbe right, privilege, and easement of tbe defendants and tbeir successors as common carriers to continue to use tbe said property for rigbts-of-way purposes, and for all other rights and purposes requisite and needful to tbe defendants and each of them in tbe.performance of tbeir duties as common carriers, embracing within tbis exemption from lien tbe depots, freight and passenger, of tbe defendants, and all equipment and property of every kind incident to and necessary to tbe performance of tbeir duties and carrying on of tbe business of common carrier.</p> <p>It is further ordered, considered, and adjudged tbat tbe assessments and each of them wbicb were levied under cb. 56 of tbe Public Laws of 1915 were duly and legally levied, and constitute a lien upon tbe property of tbe defendants as is contemplated in and by cb. 56 of tbe Public Laws of 1915, but tbat such lien is subject to tbe right, privilege, and easement of tbe defendants and tbeir successors as common carriers to continue to use tbe said property for rigbts-of-way purposes, and for all other rights and purposes requisite and needful to tbe defendants and each of them in tbe performance of tbeir duties as common carriers, embracing within tbis exemption from lien tbe depots, freight and passenger, of tbe defendants, and all equipment and property of every kind incident to and necessary to tbe performance of tbeir duties and carrying on of tbe business of common carriers: Provided, tbat tbe triangular lot of land lying between tbe right of way of tbe defendant Atlantic and North Carolina Railroad Company and tbe Atlantic Coast Line Railroad Company and on tbe south side of Caswell Street, witb a frontage of 321.9 feet, shall not be subject to tbe exemption from lien as hereinbefore provided.</p> <p>It is further ordered and adjudged tbat tbe costs of tbe proceeding be paid by tbe defendants.</p>

Appeal by defendants from Bond, J., at tbe Pall Term, 1921, of Waice. Civil action, beard on case agreed. Tbe following are tbe facts submitted : “1.

<p>1. Trusts — Fraud—Parol Trusts — Equity.</p> <p>Where tbe mortgagee of lands has induced tbe mortgagor not to file bis petition in voluntary bankruptcy by agreeing by parol tbat tbe mortgage be foreclosed by suit, bought in by tbe mortgagee, and held in trust to make it obtain tbe best available price, and in breach of tbis contract tbe mortgagee has become tbe purchaser at tbe judicial sale, and has failed to perform bis agreement, and has negligently resold tbe land below tbe prices it should have brought, and tbe gravamen of tbe present action is tbe fraud thus perpetrated, tbe parol contract is but an incident to tbe fraud, against which equity will relieve; and the statutes in other jurisdictions which will not permit a trust in lands to be established by parol, has no application.</p> <p>2. Same — Constructive Fraud — Mortgages—Judicial Sales — Foreclosure.</p> <p>Where tbe mortgagee has become tbe purchaser of tbe mortgaged land in proceedings to foreclose by suit, and has perpetrated a fraud upon tbe mortgagor in violation of a parol agreement be bad theretofore made with him, to hold tbe land in trust for certain purposes, tbe mortgagee’s breach of tbe parol contract constitutes a species of constructive, if not actual fraud against which equity will relieve, and establish a trust in favor of tbe mortgagor to prevent tbe perpetration of tbe fraud.</p> <p>3. Trusts — Equity—Actual Fraud — Bad Faith — Constructive Fraud.</p> <p>Equity, in proper instances, will not withhold relief if actual fraud be not shown, when such conduct and bad faith is shown on the party against whom it is sought as would shock the conscience of the chancellor.</p> <p>4. Same — Judgments—Estoppel.</p> <p>A judgment in a suit of foreclosure of a mortgage on land does not estop the mortgagor from showing such fraud therein on the purchaser’s part as will create a constructive trust in his behalf.</p> <p>5. Trusts — Mortgages—Equity—Damages.</p> <p>The rules of equity are those of conscience and prevail where the relief at common law is inadequate and deficient; and where the purchaser of land foreclosed by suit has fraudulently disposed of the lands which he should have held in trust, he will be held to respond in damages.</p> <p>6. Pleadings — Interpretation—Lex Fori — Trusts—Fraud—Express Trusts.</p> <p>Where suit is brought here to affect the foreclosure at a judicial sale of land in another state with a trust ex maleficio, the pleadings will be construed under our own decisions, the lex fori, as to whether the allegations are sufficient to allege a constructive trust, liberally construed, or only an express trust: Held, in this case, a constructive trust was sufficiently alleged to be shown.</p> <p>7. Appeal and Error — Presumptions—Burden of Proof — Prejudice.</p> <p>Error alleged on the trial in the Superior Court must affirmatively be shown by the appellant in the Supreme Court, with certainty that he has thereby been prejudiced or disadvantageously circumstanced before the jury, which does not sufficiently appear in this case to award a new trial.</p>

<p>Appeal by plaintiff from Brock, J., at October Term, 1921, of BuNCOMBE.</p> <p>Civil action, beard on return to preliminary restraining order.</p>

<p>Appeal by plaintiff from Webb, J., at November Term, 1920, of CHEROKEE.</p> <p>Civil action to recover damages for an alleged wrongful seduction.</p> <p>Tbe evidence of tlie plaintiff tended to show that the defendant, then a man twenty-six years of age, began to show plaintiff attentions and keep company with her in the year 1913, when the plaintiff was a mere child, not yet fifteen years old. These attentions were kepit up by the defendant continuously until the year 1916, when the defendant seduced the plaintiff and procured her to have sexual intercourse with him, which acts of intercourse were kepit up from time to time and as a result of which the plaintiff gave birth to a child. Plaintiff testified that she had never had intercourse with any one except the defendant. This was all denied by the defendant.</p> <p>There was further evidence on behalf of the defendant tending to show that the plaintiff was a woman of bad character and of lewd and lascivious habits.</p>

<p>PetitioN by defendants to rebear this case, reported in 182 N. C., 205.</p>

<p>PbtitioN to rehear this case, reported in 182 N. C., 44.</p>

, at chambers, 20 December, 1921, from Nash. Civil action permanently to enjoin defendant from levying road tax in Nash County, and from increasing road tax in Manning’s Township in said county. On 1 December, 1921, a temporary restraining order was granted, and on 20 December it was dissolved. Plaintiff appealed. There were two alleged causes of action: 1.

CONTROVERSY without action, heard 27 January, 1922, by Harding, J., at chambers in the city of Charlotte, on case agreed, from Mecklenburg. The defendant, on 21 January, 1922, executed and delivered'to the plaintiff a deed conveying a lot in the third ward; the defendant acknowledged the execution of the deed before Miss Mary Newman, who was a notary public; and thereafter Mrs. N. T>.

Appeal by defendants from Allen, J., at the December Term, 1921, of Edgecombe. This suit was brought to recover damages for the burning of an automobile, which plaintiff had left with the defendant to be repaired and cleaned, upon the allegations of negligence as alleged in the complaint.

<p>Injunction — Issues of Pact — Mortgages.</p> <p>Where the purpose of the action is to enjoin the sale of lands under a deed in trust or mortgage, and upon the hearing before the judge, upon the injunctive remedy sought, the affidavits are conflicting upon the question at issue as to whether the mortgage debt had been paid, the injunction should be continued to the hearing to ascertain the facts involved.</p>

<p>1. Eminent Domain — Government—Private Property — OPublic Use — Compensation — Constitutional law.</p> <p>A government bas, under tbe power and principles of eminent domain, tbe right to appropriate private property for a public use, on making due compensation therefor.</p> <p>2. Same — State Agencies — Discretion—Statutes.</p> <p>Where tlie statute authorizes the taking oí private property for a iiublic purpose, the necessity for the exercise of the power in a given case, ancl the extent of it, under all ordinary circumstances, is for the Legislature, either directly or through subordinate agencies designated for the purpose.</p> <p>3. Same — Reasonableness and Necessity — Implied Powers.</p> <p>When the Legislature has not defined the extent or limit of the appropriation of private property to be taken for a public use, the authorities charged with the duty are restricted to such property in kind and quantity as may be reasonable and necessary to the purpose designated.</p> <p>4. Same — Questions of Law — Trials.</p> <p>Where the statute does not definitely determine as to the kind and quantity of private property, to be taken by its designated agencies for a public purpose, such kind and quantity may be so taken by them as may be reasonably necessary therefor; but when such agencies have acted in good faith and do not exceed a reasonable discretion with which it is vested, the courts will seldom, if ever, interfere.</p> <p>5. Same — Notice to Owner — Time of Payment.</p> <p>Where the statute'authorizing designated agencies of the State to take private property for a public use otherwise provides, it is not necessary to notify the owner that his property is to be appropriated: Provided, he is to be notified and given opportunity to be heard in the proceedings on the question of compensation that may be due him.</p> <p>6. Same — State Highway Commission — Roads and Highways.</p> <p>Under the provisions of our statutes the State Highway Commission is given power to enter on and appropriate land of private owners, on giving notice, for the purpose of constructing highways as a part of the State system, C. S., 3667 et seq., with the right to acquire material, gravel beds, etc., necessary for the construction and maintenance of such roads, conferring for the purpose the powers of eminent domain (C. S., 1715 et seq.), with an additional provision in enlargement of such powers, authorizing the commission to enter the lands, take possession of such timber and materials, and use them for the purpose required, prior to bringing condemnation proceedings, and without making a deposit, etc., in the event of the owner’s appeal, or compensating the owner prior to the final determination of the action as to the amount: Held, the right of the commission to use the materials for the purposes stated being specifically given by statute, it is not required that the board first proceed by action before taking the necessary materials for the State highway construction or maintenance.</p>

<p>Appeal by plaintiffs from Allen, J., at October Term, 1921, of WASHINGTON.</p> <p>Civil action to recover damages for an alleged breach of contract.</p> <p>On 4 November, 1919, tbe plaintiffs, Mrs. Bina Arps and husband, -J. M. Arps, executed and delivered to the defendants a paper-writing whereby the said defendants were given the right, privilege, and option to purchase the “Arps farm” of 200 acres or more, situate in Plymouth Township, Washington County, at and for a.stipulated price and upon the terms therein set out, but it was understood and agreed that the said •option should be exercised on or before 10 December, 1919.</p> <p>The defendants gave the plaintiffs due and timely notice of their intention to exercise the option and paid a part of the purchase price, but failed to execute the notes and mortgage, as provided in the contract •of sale, and now refuse to comply with their agreement upon the ground that there is a shortage of approximately 52 acres in the land contracted to be sold.</p> <p>At the close of plaintiffs’ evidence there was a judgment as of nonsuit upon the theory that as the contract was in the nature of an option, and •defendants did not accept same in writing, the plaintiffs were remediless under the statute of frauds.</p>

Appeal by defendant from Allen> J., at the October Term, 1921, of Nash.

Appeal by plaintiff from Calvert, J., at second May Term, 1921, of Nash. Civil action to recover the sum of $636.23, due by contract, and evidenced by three checks given to the plaintiff by the defendant. The amount and correctness of the plaintiff’s claim was not denied; but the defendant set up, by way of further defense, a counterclaim in the sum of $513.73 for tobacco sold to the plaintiff, and which was destroyed by fire while on the warehouse floors of the defendant.

<p>1. Injunction— Corporations — Nonresidents—Undertakings—Contracts— Parties.</p> <p>Where, in an action against a contractor and subcontractor, it is admitted that the latter is a nonresident corporation, and is about to remove the remainder of its property from the State, and it is alleged that it owes the plaintiff in a certain sum, and it appears that the contractor has admitted service of summons and entered an appearance, and owes its codefendant money in- a sum little more than the amount in suit, an order restraining the defendant contractor from paying over to its co-defendant subcontractor, the moneys due it under the' subcontract, is properly granted; and a provision in the order that the restraining order should automatically cease upon the subcontractor giving a bond in a certain sum in lieu thereof, and that the plaintiff also give bond to assure the defendants’ costs and expenses was properly entered under the circumstances.</p> <p>"2. Injunction — Issues—Fraud—Trials.</p> <p>Where the plaintiff has sufficiently shown that he is entitled to the injunctive relief sought in the action, all collateral matters as to fraud, etc., are properly continued to be determined with the other issuable matters of fact at the trial.</p>

<p>1. Estates — Heirs—Rule in Shelley’s Case.</p> <p>A devise of an estate to each of the testator’s children “as long as they may live and after their death to their heirs,” passes to each a fee-simple interest under the rule in Shelley’s case. Wallace v. Wallace, 181 N. C., 158, cited and applied; Mills v. Thorne, 95 N. C., 382, distinguished.</p> <p>2. Dower — Executors and Administrators — Lands — Sales — Assets — Creditors.</p> <p>Upon the petition of the widow, as executrix and individually, to have the lands of her deceased husband sold to pay his debts,, and for the -allotment of her dower therein, the widow is entitled to her dower in the lands, and, subject thereto, the lands should be sold under the statute to make assets to pay the debts of the deceased, it appearing that the personal property is inadequate.</p>

<p>Appeal by plaintiff from Ferguson, J., at November Special Term, 1921, of WASHINGTON.</p> <p>In 1882, H. J. Williams and wife executed a deed reciting in tbe premises and in tbe habendum a conveyance to Annie W. Herrington and Mary E. Lewis for tbeir natural life, “and at tbeir death, then to tbeir children, reserving a life estate in said land for H. P. Lewis and bis wife, Ella E. Lewis,” tbe parents of Annie W. Herrington'and Mary Lewis. Following tbe description of tbe land is a provision that Annie W.' Herrington should have and possess tbe eastern iiart of tbe land conveyed during her natural life, and at her death it should go to her children; and that Mary Lewis should have and possess tbe western part during her natural life, and at her death to her children, if she should have any, but if she should die leaving no children, then to Annie W. Herrington during her natural life, and at her death to her children. About 1896 this land was accordingly divided by Annie W. Herrington and Mary E. Lewis, and such division is recognized by the-parties to this suit. The land described in the petition is the part which was allotted to Mary E. Lewis.</p> <p>At the time the deed of H. J. Williams and wife was executed, Annie W. Herrington was married and had children; Mary Lewis was not married. In 1895, Mary Lewis married W. P. Knowles, and in 1904 was the mother of two children, Ruth and Annie Knowles. Thes.e were the only two children born to Mary Lewis prior to 1908.</p> <p>In 1904 a special proceeding was begun by W. P. Knowles, his wife (Mary Lewis), and Ruth Knowles and Annie Knowles, by their general guardian, for the purpose of selling the land, and an order was made by the clerk appointing a commissioner to make sale. This order was afterward approved by the judge. The sale was duly confirmed, the commissioner made a deed to tbe purchaser, and the purchaser, on 4 November, 1904, made a deed to the plaintiff. In 1908 a third child, "William, and in 1912 a fourth, Eobert, were born to Mary Lewis Knowles.</p> <p>The petitioner instituted a proceeding to register its title under the Torrens law. Eobert Knowles and William Knowles, children born after the sale was made by order of court, filed an answer and denied petitioner’s title. They assert that under the deed from H. J. Williams to Mary Lewis they take an interest in the lands claimed by the petitioner, and that the special proceeding under which the lands were sold in 1904 did not have the effect of divesting their interest in the land.</p> <p>The contention of the defendants is that the children of Mary Lewis took a contingent remainder under the deed from H. J. Williams, and that the court could not sell their contingent interest, and that the purchaser at said sale did not acquire their interest. The proceeds derived from said sale are in the hands of W. P. Knowles, the father of the defendants, who asserts that he is holding the proceeds for the benefit of the two children who were in being at the time the land was sold under order of court. .</p> <p>The examiner of titles made report, to which the petitioner filed exceptions. In the Superior Court the following issues were drafted:</p> <p>“1. Is the petitioner the owner of the land described in the petition ? Answer: ‘Yes. The petitioner owns the interest of W. P. Knowles, Mary E. Knowles, Kuth Knowles, Annie Knowles, and E. L. Herrington and Annie W. Herrington, but is not the owner of the interest of William and Eobert Knowles, and which they took under the deed from H. J. Williams, Book Y, page 35, nor of such children as may be hereafter born to Mary E. (Lewis) Knowles.’</p> <p>“2. Were L. G. Koper, guardian, and S. B. Spruill, attorney, properly authorized to represent the minors and to execute the deed, as alleged ? Answer: ‘Yes.’ ”</p> <p>After the jury had answered the second issue, the court answered the first as a matter of law.</p>

Appeal by plaintiff from Calvert, at the September Term, 1921,. of WARREN. Tbis is a controversy as to tbe title and possession of a tobacco crop, wbicb was sold by tbe defendant, Sheriff E. E. Davis, wbo collected and bas in bis custody tbe proceeds of tbe sale, subject to tbe decision of tbe court as to tbe ownership thereof.

Appeal by defendant from Calvert, J., at August Term, 1921, of Beetle. Civil action to recover damages for tbe negligent burning of plaintiff’s s.eed-bouse and contents. Certain insurance companies, wbo claimed to be subrogated to tbe rights of tbe insured, were made coplaintiffs. Tbe jury found tbat tbe property of tbe Bertie Cotton Oil Company bad been burned by ’ tbe negligence of tbe defendant, and assessed damages.

Appeal by defendant from Granmer, J., at tbe January Term, 1922, of Pitt. Tbe plaintiff appealed from an order directing removal of tbe action from Pitt County to Martin County.

Appeal by defendant from Devin, J., at February Term, 1922, of Waite. Civil action to restrain the defendant Collector of Revenue of North Carolina from collecting an income tax out of the official salary of the plaintiff, who is one of the Superior Court judges of the State.

<p>Appeal by defendants from Kerr, •/., at February Term, 1921, of HERTFORD.</p> <p>Upon tbe issues submitted tbe jury found tbat tbe defendants were indebted to tbe plaintiff in tbe sum of $155 and interest, and tbat tbe plaintiff was not indebted to tbe defendants by way of counterclaim.</p>

Appeal by plaintiff from Granmer, J., at chambers, 23 November, 1921, from HakNETT. Civil action for debt, wherein plaintiff seeks to avoid certain conveyances as having been executed in fraud of the rights of creditors. He also asked for the appointment of a receiver, and for a restraining order, to the end that certain personal property might be held pending the determination of the rights of the parties.

Appeal by plaintiff from Calvert, J., at October Term, 1921, of HERTFORD. Civil action for trespass, involving title to a tract of land. There was a second cause of action set up in the complaint, but this is not now before us for consideration. At the close of all the evidence, his Honor suggested that he would instruct the jury to answer the issue of title in favor of defendant if they believe the evidencé.

Appeal by defendants from Lyon, J., at the December Term, 1921, of Gartebet. Proceeding for partition. The jury found that the plaintiffs and the defendants are tenants in common.

<p>1. Injunction — Judgment — Pleadings — Issues of Fact — Questions for Jury — Trials.</p> <p>Upon the hearing by the judge upon the question of continuing a restraining order to the hearing, the judge, upon proper findings, may-dissolve the temporary order, but in doing so it is error for him to also determine an issue of fact, material to the rights of the parties, and which should be reserved for the jury to pass upon at the trial.</p> <p>2. Same — Deeds and Conveyances — Mental Capacity.</p> <p>Upon the hearing by the judge of a motion to continue a preliminary restraining order to the hearing, the title to lands was made to depend, by the pleadings, upon the mental capacity of the grantor to mate a valid deed to the locus in quo: Held, though the restraining order was properly dissolved under the facts appearing in this case, it was reversible error for the judge to incorporate in his order an adjudication of title, as this involved an issue as to the fact for the jury to determine at the trial.</p>

Appeal by plaintiff from Devin, J., upon case agreed, 31 January, 1922, from AlamaNCe. . Civil action to restrain tbe issuance of bonds by tbe Altamahaw-Ossipee Consolidated School District. Held: the'measure was approved by a large majority of the duly qualified voters of the district, and thereupon the plaintiff, a citizen and taxpayer of the district, instituted the present action to restrain the issue of said bonds, as stated.

Appeal by defendant from Lyon, J., at tbe November Term, 1921, of GRAVEN.

Appeal by intervener from Lyon, J., at the September Term, 1921, of Pitt. This is a civil action commenced in the Superior Court of Pitt County by the Mascot Stove Manufacturing Company against L. C. Turnage, trading as the Pitt Hardware Company. Upon the complaint, R. T. Cox was appointed receiver of L. 0. Turnage, who, as an individual, was doing a hardware business in the town of Ayden, N. C., under the firm name or trade name of the Pitt Hardware Company.

Appeal by defendant from Allen, J., at chambers, 30 November, 1922, from Nash. Application by plaintiff for an allowance for subsistence, expenses, and counsel fees, as provided in C. S., 1667, as amended by ch. 123, Public Laws 1921. The plaintiff and the defendant were married on 10 June, 1919, and lived together until 14 June, 1921, when plaintiff alleged the defendant abandoned her and withdrew support.

Appeal by defendant from Calvert, J., at the November Term, 1921, of Bertie. Among other evidence, there was testimony tending to show that plaintiffs are surviving partners of the firm of TJ. S. Morris & Brothers, at Lewiston, Bertie County. The firm was composed of U. S. Morris, W. F. Morris, and N. S. Morris. N. S. Morris lived at Sparrows Point, Md. The others lived at Lewiston CWoodville), N. 0.

, at November Term, 1921, of CbaveN. This was a petition filed by II.

Appeal by Jesse Fussell from Pitt, beard by Lyon, J., at Beaufort, II August, 1921, from a continuance of restraining order to tbe bearing. Tbis action was begun originally against tbe Carolina Fertilizer and Pbospbate Company and tbe Bank of Grimesland to restrain tbe payment by tbe Bank of Grimesland of certain money deposited therein, and for wbicb a time certificate bad been issued.

Appeal by plaintiff from Lyon, J., at August Term, 1921, of Pitt. Civil action to recover damages for an alleged breach of contract.

Appeal by plaintiff from Lyon, J., at November Term, 1921, of Pasilico. Civil action to recover on a life insurance policy issued by tbe defendant to Reginald Paul, now deceased, tbe plaintiff being named as beneficiary in said contract of insurance.

Abpeal by tbe defendant from Lyon, J., at tbe November Term, 1921, OÍ CRAVEN. Civil action, tried on appeal from a justice’s court. Tbe action is to recover a statutory penalty for negligent delay in tbe transportation and delivery of freight under C. S., 3516.

<p>1. Mortgages — Title — Cancellation — Bills and Notes — Assignment— Statutes.</p> <p>Where a note, secured by a mortgage, is assigned and pledged as collateral by the mortgagee to his own note, without an assignment of the mortgage conveying title for the purpose of the security, but which was only left with the payee of his note, the legal title to the lands remains in the mortgagee, who alone is authorized to cancel the mortgage. O. S., 2594 (1).</p> <p>2. Same — Registration—Notice.</p> <p>Where the lender of money accepts as collateral a note secured by mortgage, in order to protect himself he must have the legal title transferred and assigned to him by a proper conveyance for the purpose, and have it registered as notice against subsequent conveyances for value, etc.; otherwise, the assignment of the note can operate on the note alone.</p> <p>3. Same — Mortgagees—Cancellation in Person — Exhibit of Instruments— Satisfaction.</p> <p>Only the mortgagee is entitled to have his' mortgage canceled on the book in the office of the register of deeds, either in person, C. S., 2594 (1), or by the register of deeds upon the exhibition of the mortgage and note properly endorsed by him, C. S., 2594, subsecs. 2 and 3; and when the mortgagee cancels the instrument in person, under subsec. 1, it is a complete release and discharge of the mortgage, subsec. 4, for in such case the statute does not require the exhibition of the mortgage and the note it secures.</p> <p>4. Same — Collateral.</p> <p>The legal title to mortgaged lands is conveyed by tbe instrument to tbe mortgagee, and remains in bim until transferred or assigned, for tbe purpose of tbe security or tbe cancellation of tbe instrument, C. S., 2594; and where tbe mortgagor has afterwards conveyed tbe fee-simple title to another, and receives a mortgage back to secure a note for tbe balance of tbe purchase price of which tbe same mortgagee becomes tbe bolder, bis personal cancellation of tbe first mortgage, without producing it or tbe note it secures, is a complete discharge or release of tbe lien thereof, and where be borrows money after such cancellation, and hypothecates tbe note of tbe second mortgage as collateral to bis own, tbe lender for tbe purposes of tbe security, acting in good faith, has a prior lien on tbe lands.</p> <p>5. Mortgages — Deeds and Conveyances — Statutes—Connor Act.</p> <p>Tbe Connor Act, requiring tbe registration of conveyances to give notice to subsequent purchasers, etc., includes mortgages within its terms.</p>

Appeal by receivers from Devin, Jat the November Term, 1921, of LENOIR. Civil action, heard on certain exceptions to report of a receiver.

<p>1. Contracts — Vendor and Purchaser — Breach—Evidence—Questions for Jury — Trials.</p> <p>In the vendor’s action to recover the difference between the contract price of a carload shipment of potatoes and that obtained after he had taken possession and sold them to others upon the breach by the purchaser in refusing to accept the shipment, where the evidence is conflicting, a charge of the court making the defendant’s liability to depend upon whether he had refused the shipment without just or legal cause is not erroneous.</p> <p>2. Same — Inspection—Resale by Vendor — Damages.</p> <p>In an action by tbe vendor of a carload of potatoes for its purchase price arising from the wrongful refusal of the defendant to receive it upon alleged breach of contract, the exception of defendant that the potatoes were to be inspected before the contract should become binding cannot be maintained on appeal, when, under the charge of the court and the evidence, the jury have found against his contention.</p> <p>3. Evidence — Character—General Reputation — Vendor and Purchaser.</p> <p>Where the purchaser has been sued for breach of his contract in wrongfully refusing to accept a carload of potatoes from the delivering carrier, and offers evidence tending to show that the potatoes were inferior in quality to those he had purchased, his character or reputation as a- dealer in potatoes is properly excluded, and when he has testified in his own behalf, only his character by general reputation may be shown.</p> <p>4. Contracts — Breach—Vendor and Purchaser- — Damages—Resale.</p> <p>Where the defendant has breached his contract in not receiving a carload of potatoes from the delivering carrier, and the purchaser has taken possession for the purpose of selling them, he is only required to take due precaution to prevent damage to the purchaser in disposing of the shipment to others, or not to increase them beyond those that would naturally and reasonably result from the purchaser’s breach, and which were within the contemplation of the parties in making the contract.</p> <p>5. Same — Place of Resale.</p> <p>Where the purchaser has breached his contract in refusing to accept from the seller a shipment of potatoes, and the seller has sold them to others, in the exercise of reasonable care, skill, and prudence, the purchaser’s contention that they should have been sold on his local market, and not sent to New York for the purpose, is untenable when the contract is silent on the subject, and it appears that it was not intended to be sold in the local market, but to be shipped beyond that point.</p>

<p>Appeal by defendant from Devin, J., at tbe September Term, 1921, of Duplin.</p> <p>Tbis action was brought in tbe court beloiv for an account and final settlement with Henry E. Faison, executor of Henry ~W. Faison, deceased, but is described by tbe plaintiff as a suit to surcharge and falsify bis accounts. It is alleged that Henry W. Faison died in December, 1885, leaving a will, which was duly admitted to probate, and the two executors named therein, Henry E. Faison and Martha W. Faison, duly qualified as such in January, 1886.</p> <p>It is stated that no regular accounts were filed by Henry E. Faison and Martha W. Faison as executor and executrix, the latter having died in 1910. It appears in the record that in response to a citation issued by the clerk of the Superior Court of Duplin County the defendant H. E. Faison, as surviving executor, filed what purports to be an account of debits and credits, and showing “a balance due by the executors of $4,516, but this paper is not in the form of a regular final account, but is more of a memorandum of the items of debit and credit, and could hardly be called a final account as the law requires to be filed.</p> <p>The defendant pleaded what is termed “a final account and settlement” with the plaintiff and the other parties interested in the estate. The defendant Henry E. Faison, executor, alleges that he and the plaintiff and the others entitled to an interest in the estate came to a settlement in regard to the same, and it was agreed finally that the plaintiff owed at least a balance of $2,000 to the estate, or that much more than her share thereof, which sum of $2,000 it was agreed should be paid by plaintiff to the executor, for the younger children to whom it ivas due, in final settlement, which was not done until a judgment was rendered at February Term, 1914, of Duplin Superior Court, affirmed in the Supreme Court, on appeal, 21 October, 1914, when the sum of $2,000, with accrued interest, amounting to $3,800, was paid into the office of tbe clerk of tbe Superior Court to await tbe filial determination of tbis action, and upon bis filing a bond for tbe same, tbe said money was paid over to Henry E. Faison as executor, wbo, as plaintiff alleges, paid tbe same over to William Faison, Percy Faison, and Winnifred Faison, but plaintiff alleges that tbis was wrongful and unlawful, which tbe defendant executor denies.</p> <p>Tbe court declined to submit tbe following issues upon tbe two pleas:</p> <p>“1. Was there a settlement between tbe executor and plaintiff at tbe time she bid off tbe lands at $2,000, that tbe balance of tbe debts due on said judgment should not be collected, and that in consideration of tbis settlement it was agreed that she bad received her full share of tbe personal estate, and that tbe $2,000 due on tbe land sale should be paid oyer to tbe minor children, as alleged in tbe answer ?</p> <p>“2. Is tbe plaintiff’s cause of action barred by statute of limitations ?”</p>

Appeal by defendant from Allen, J., at November Term, 1921, of WlLSON. Civil action to recover damages for an alleged negligent injury and wrongful killing.

Appeal by defendant from Grammer, J., at July Term, 1921, of Lee. This is an action by a broker on an alleged indebtedness of $250 for making sale of land. The defendant listed the land for sale with the plaintiff and a number of other brokers, and the same was sold to one Price. The defendant was introduced to Price by one Garter (to whom the defendant paid $25 for making the sale).

<p>, Appeal by plaintiff from Calvert, J., at the August Term, 1921, of EeRtié.</p> <p>Civil action, beard on appeal from a justice’s court.</p> <p>The action, purporting to bé under C. S., 4480, is instituted by plaintiff, a former landlord, against defendants, on averment tbat one Jack Outlaw, after agreeing to make a crop on certain lands of plaintiff for 1918, and receiving advancements for said purpose as plaintiff’s tenant to tbe amount of $19.82, wrongfully and willfully abandoned said crop without paying plaintiff for said advancements. And tbat defendants, witb full knowledge of said abandonment, and after being forbidden so to do, employed said tenant to work for them, and moved him on their lands, contrary to law as contained in O. S., 4480. Defendant, reserving the right to move to dismiss for lack of jurisdiction, and for that the statute on which the claim is based is unconstitutional, made answer denying the acts alleged against defendant, and denying any and all knowledge of any breach of contract by the alleged tenant, and at spring term thereafter moved to dismiss the case for that the statute is unconstitutional. Motion overruled. Cause continued.</p> <p>At the trial term, the jury having been impaneled, the record states that the defendants again demurred because it appears that the action lies only in tort, and that the justice had no jurisdiction of same, the demand being for more tban $50, and the justice’s judgment being for more tban tbat sum. •</p>

Appeal by plaintiff from Granmer, J., at tbe August Term, 1921, of WayNe. On 17 November, 1919, the plaintiff made an order for the extension of Asb Street, and thereafter instituted a proceeding for the condemnation of the defendant’s property. On 26 November, 1920, the clerk made an order condemning a strip of the defendant’s land 50 by 420 feet, and appointed three commissioners to appraise the land and the benefits.

Appeal by defendants from Lyon, J., at November Term, 1921, of PAMLICO. Civil action to recover balance due on open account for oils and gasoline sold and delivered to tbe defendants during tbe year 1920.

Appeal by defendant from Lyon, J., at November Term, 1921, of Pamlico. Civil action to recover damages for an alleged breach of contract to sell land. TJpon denial of liability and issues joined, the jury returned the following verdict : “1. Did the plaintiff and defendant contract, as alleged in the complaint? Answer:‘Yes.’ “2. If so, did plaintiff and defendant rescind said contract ? Answer: ‘No.’ “3.

Appeal by plaintiff from Bond, J., at the June Term, 1921, of LeNOik. Dora Nobles and her sister, Denny Nobles (the husband of each being a party), instituted before the clerk a special proceeding against the defendant (their brother) for partition of land and accounting for advancements. The plaintiffs alleged that their father, S. IT.

Appeal by defendant highway commission from Lyon, J., at the January Term, 1922, of Duplin. Appeal from an order dissolving a restraining order. W. T. Clifton owns a life estate and Lucian Clifton the remainder in certain real estate in the town of Faison, on which is situated a dwelling, occupied by W. T. Clifton, together with shade trees and yard shrubbery.

■ Appeal by plaintiff from Harding, J., at the June Term, 1921, of BuNcombe. Civil action to recover damages for the loss of merchandise. On 5 October, 1917, the plaintiffs ordered from Friedman & Company of New York a box of clothing, which was turned over to the Pennsylvania Railroad Company for transportation and delivery to the purchasers in Asheville.

Appeal by plaintiff from Devin, J., at the March Term, 1922, of Wake. This is a controversy as to the ownership of and title to the tract of land containing 242.5 acres in Swift Creek Township, Wake County, which is particularly described in the record.

Appeal by propounders from Grammer, J., at July Term, 1921, of Lee. Issue of devisavit vel non raised by a caveat to the will of Susan McKay. Alleged mental incapacity and undue influence are the grounds upon which the ¡«caveat is based. The jury returned the following verdict: Is the paper-writing propounded, and every part and clause thereof, the last will and testament of Susan E. McKay? Answer: No.’”

<p>1. Escrow — Bills and Notes — Negotiable Instruments — Evidence—Parol Evidence — Contracts.</p> <p>The maker of a negotiable note may show, as between the original parties, a parol agreement that the payee had accepted it to be valid only upon the happening of a certain event, and in violation thereof had transferred it to an innocent purchaser for value, in due course, in his action to recover the amount of the note that he had been forced to pay to the holder, when the agreement resting in parol does not vary, alter, or contradict the written terms of the instrument.</p> <p>3. Same — Vary, Alter, or Contradict.</p> <p>It may not be shown by parol that a negotiable note was to be held in escrow in contradiction of its express written terms that the payee may cash it before maturity, and the maker would pay it when it should become due.</p> <p>3.' Escrow — Evidence—Fraud—Appeal and Error — Questions íor Jury-— Evidence.</p> <p>Where there is allegation and evidence that the defendant had fraudulently negotiated a note in violation of a parol agreement that it should be held in escrow, to the loss of the plaintiff in being compelled to pay the note in the hands of a purchaser for value in due course, it is reversible error for the trial judge to refuse to submit the issue of fraud and have only that relating to the establishment of the escrow relied upon by the plaintiff, which was answered by the jury for defendant under a peremptory instruction.</p>

Appeal by defendants from Bond, J., at chambers at Louisburg, 15 November, 1921. This was a proceeding to restrain the defendants from levying a higher rate for general county purposes, the poor fund and pensions, than 15 cents.

<p>Appeal by defendant from Bond, J., at the November Term, 1921, of Wake.</p> <p>Civil action for tbe recovery of damages for tbe wrongful and negligent death of plaintiff’s intestate, tried by Bond, J., and a jury, at tbe October-November term of tbe Superior Court of Wake. Tbe intestate was standing near a steam boiler used by tbe defendant in tbe operation of a sawmill wben tbe boiler exploded, causing tbe death of tbe intestate. There was evidence for plaintiff tending to show that her intestate was an employee of tbe defendant, and evidence for defendant tending to show that be was not. Tbe jury found that tbe intestate was such employee, answered tbe issue of negligence in favor of tbe plaintiff, and assessed damages.</p>

Appeal by defendant from Bond,, J., at second October Term, 1921, of Waee. Summary proceeding in ejectment to evict the defendant, a tenant, from tbe premises of the plaintiff.

<p>Habeas cokpus proceedings, heard and determined on petition of Blanche McCade, before Bond, J., at Raleigh, N. C., on 30 November, 3921.</p>

<p>Appeal by defendant from Gormor, J., at tbe October Term, 1921, of New HaNOVee.</p> <p>Tbis was a civil action, brought by the plaintiffs to recover damages of the defendant for the alleged negligent burning by the defendant of the feme plaintiff’s cottage and furniture at 'Wi’ightsville Beach.</p> <p>At the trial the defendant admitted the plaintiff’s ownership in fee simple of the lands and premises described in the complaint, but required the plaintiffs to put in the deed which showed the purchase price of the property alleged to have been destroyed through the negligence of the defendant.</p> <p>Tbe defendant admitted in tbe pleadings that it was a corporation, engaged in tbe business of supplying tbe town of 'Wrightsville Beach and persons along its system with electricity for lights, power, and gas for lighting, beating, cooking, and other purposes, charging its usual rates for gas and electricity. That upon the tract of land described in the complaint was a summer residence or cottage, which was not occupied during the winter months, but occupied only during the summer months, and that the plaintiff had household and kitchen furniture for living purposes in said cottage, and was preparing to move down and occupy said cottage for the summer season, expecting to begin such occupancy on 3 June, 1920. ‘</p> <p>That it was the custom of the company to cut off its supply of electricity and gas to cottages in the early fall by disconnecting, in some manner, the supply of gas and electricity from such cottages at the main pipe and wires feeding said cottages, and that before gas and electricity were turned into the cottages they required the owner, or persons expecting to occupy such cottages to make application to the defendant for connecting up and turning on the gas and electricity, and required the keys to the cottage to be surrendered to the defendant, so that they might enter the same and inspect the meters and connect with the. supply of electricity and gas, which had been disconnected the previous fall.</p> <p>■That on 31 May, 1920, application was made for gas service for the plaintiffs’ cottage, and the keys to the same were turned over to the defendant, to enable it, or its agents, or servants, to enter such cottage and connect up the gas fixtures so that the plaintiffs could use and consume gas according to their needs for cooking and heating purposes, and that the plaintiffs paid the defendant its charges for such service. That it was the custom of the defendant immediately after making the necessary connections, to turn on the flow of gas and light the same in order to ascertain whether or not its patrons would be able to receive the expected service. That in disconnecting the gas in the fall, the defendant’s custom was to disconnect the metal or iron pij>e which conducted the gas through the meter at some point inside the building, near where the pipe entered the meter, and this was the method used in the plaintiff’s cottage.</p> <p>That on 1 June, 1920, between the hours of 11 and 12 o’clock a. m., before the plaintiffs had moved into said cottage, the defendant’s servants or employees entered said cottage to connect up, test out, and put in proper condition the gas fixtures for use by the plaintiff, and that in a very short time after the defendant’s employees had left the cottage, fire was discovered in the kitchen or rear part of the cottage, at and around where the defendant’s employees had been working and connecting the gas, and that gas from the defendant’s pipe was ponring out into said cottage a burning flame, and the plaintiff’s cottage and furnishings were completely destroyed and consumed by the said fire.</p> <p>The foregoing facts are substantially admitted in the pleadings, the only denials of the defendant being that as to negligence and the value of the property destroyed by the fire, the defendant stating, in the ninth paragraph of its answer, that it was probably more than an hour after defendant’s employees left the house before the fire was discovered.</p> <p>The evidence tended to show, in addition, that when Mr. Peterson moved out of the cottage the previous fall, all matches and combustible materials had been removed from the cottage. That Mr. Peterson, about a week previous to the fire, and before he surrendered the keys to the defendant company, for the purpose of connecting up the gas and electricity, visited the cottage and left the same securely locked- and fastened, and that there was no fire in the cottage. That the defendant’s employees, during the morning, about 12 o’clock, entered the cottage with the keys to install the meter and connect the gas in the kitchen, and this they did, and after doing so, lighted the gas to test it out. There is no evidence that any other person from that time until the fire was discovered, was in, at, or around the plaintiff’s cottage. That Mrs. Peterson left Lumina on the 1:15 car and went to visit Mrs. Colucei, who was occupying the cottage next to Peterson’s, and after she had been on the porch for’a few minutes she heard a noise in the Peterson cottage, which sounded like that made when she turned on the gas in her gas range and put the match to it, when it doesn’t catch, making a “sizzling noise,” and she called the attention of Mrs. Oolucci to the same. A few minutes thereafter she saw fire coming out of the weatherboarding, where a few minutes before she had seen smoke coming from the cottage. She tried the doors and found them locked, and could not get in. The kitchen door was then forced open and flames were found burning around the gas meter. The noise which she heard when she first called Mrs. Colucci’s attention to it was like that of gas coming out of a pipe.</p> <p>John Cowan testified that when the door was broken open all he could see was an arm of flame coming out with a hissing sound.</p> <p>Mrs. Jacobs testified that the meter was near the gas stove and a long flame was coming out, making a “sizzling sound,” and that she heard the noise before the cottage was broken into.</p> <p>The cottage and its contents were totally destroyed by the fire.</p>

Appeal by plaintiff from Connor, J., at tbe second May Term, 1921, of Wake. At tbe conclusion of plaintiff’s evidence, bis Honor rendered judgment of nonsuit.

Appeal by plaintiff from Kerr, J., at May Term, 1921, of New HANOVER. This was an action to recover $3,615 for alleged breach'of contract. The execution of the contract was admitted by the defendant, but alleging that it had been mutually canceled and released about 1 June, 1912, in consideration of a cancellation and discharge of an indebtedness of about $800, which was then due by .the plaintiff to the defendant.

Appeal by defendant from Kerr, J., at tbe October Term, 1921, of ClIMBERLAND. Plaintiff sued to recover tbe amount alleged to be due on a note executed by defendant for fertilizer. Defendant admitted tbe execution of tbe note, and pleaded plaintiff’s breach of contract in failing promptly to deliver tbe guano.

Appeal by defendants from Cowivor, J., at January Term, 1922, of RladeN.

Appeal by defendants from Kerr, J., at December Term, 1921, of ROBESON. Civil action to recover fifteen bales of cotton, or tbe value thereof, as rent for a 200-acre farm for tbe year 1919, wbicb subsequently, by agreement, entered into and became a part of tbe purchase price of tbe land — tbe defendant R. T. Gaitley having bought tbe farm during bis tenancy.

<p>Appeal by plaintiff from Connor, J., at September Term, 1921, of New HaNovee. ■ ■</p> <p>Civil action to recover damages for an alleged negligent delay and injury to a carload of furniture while in the possession of the defendants for transportation.</p>

Appeal by defendant from Connor, J., at February Term, 1922, of ROBESON. Controversy submitted without action on case agreed. Judgment for plaintiffs; defendant appealed.

Appeal by defendant from Daniels, J., at tbe October Special Term, 1921, of WayNE. This action was brought for the cancellation of a promissory note for $400, made by the plaintiff to the defendant, upon the ground of duress, and because it was given upon a promise to suppress a criminal prosecution, or to mitigate the punishment of the plaintiff’s nephew for the crime of false pretense.

Appeal by plaintiff from Daniels, J., at September Term, 1921, of Durham. This action was brought by the plaintiff to recover for injuries alleged to have been inflicted upon him by the willful wrong of the defendant in driving her motor car against the plaintiff on the public streets of Apiex. Issues were submitted to the jury and verdict returned by them for $1,250, and judgment entered tbereon.

Appeal by defendant Standard Ice and Fuel Company from Lane, J., at the May Term, 1921, of MeckleNburg. This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the defendant Standard Ice and Fuel Company’s negligence. On 28 June, 1919, plaintiff’s son and intestate,.

<p>1. Constitutional Daw — Statutes—Retroactive Daws — Vested Rights_ Curative Statutes.</p> <p>Where a statute is void only because of a neglected omission of formal constitutional requirements, and is of a subject-matter within its authority, the observation of these requirements in a later act amending the first one cures the defect therein and gives validity thereto, in the absence of intervening rights to the contrary.</p> <p>2. Same — Schools—Bonds—County Commissioners.</p> <p>In a suit by the commissioners of a school district within a county under the provisions of C. S., 5681. to compel the county commissioners to deliver to it certain school bonds for negotiation that the voters of the district bad approved at an election held according to the statutory provisions affecting them, it appeared that the issue was in the sum of $75,000, or $50,000 in excess of the amount authorized by O. S., 5678, and that the original act had not been passed in accordance with the requirement of our Constitution, Art. II, see. 14, but was later ratified by the Legislature in conformity therewith. There being no intervening vested rights: Held, the former infirmity of the bonds was cured by the later act, and a judgment in favor of the plaintiffs was a proper one.</p>

Appeal by plaintiff from Kerr, J., at March Term, 1921, of New HANOVER. This action was brought to recover the value of a carload of fertilizer shipped by plaintiff from Acme, N. 0., on the Atlantic Coast Line Railroad to defendants Tucker & Nobles, at Munford Siding — a blind siding — or nonagency station of the Atlantic Coast Line Railroad, two miles north of Greenville, N. 0., and operated under the control of the Atlantic Coast Line Railroad agency at Greenville.

Appeal by defendants from Daniels, J., at September Term, 1921, of ALAMANCE. In 1917 the city of Burlington contracted with its codefendant, the engineering company, to build certain streets, and the latter company contracted with the plaintiff to furnish the stone for that purpose, the stone to be furnished according to plans and specifications of the city, which were made part of the contract between them.

Appeal by defendant from Devin, J., at the November Term, 1921, of GLanville. Tbe defendant was a merchant, depot and express agent, and postmaster at Lyon.

<p>Appeal by plaintiff from Kerr, J., at the January Term, 1922, of DuehaM.</p> <p>Civil action to recover $143, money deposited in the defendant bank by agent of plaintiff, and alleged to have been paid out on checks unauthorized by depositor.</p>

Appeal by plaintiff from Kerr, J., at January Term, 1922, of DURHAM. Civil action to establish plaintiff’s alleged claim and right of easement to a 10-foot alley running across and over the defendant’s land.

Appeal by defendant from the refusal of the motion to remove the cause to another county by Long, J., at the November Term, 1921, of Stoxes. This is an action begun by plaintiff on 5 July, 1921. The complaint was filed 24 August, 1921.

<p>1. Eminent Domain — Condemnation—Statutes—Exceptions—Dwellings— Municipal Coi*porations — Cities and Towns.</p> <p>Where a city, under its charter, is given the same power to condemn lands of private owners for municipal purposes that is given to railroads and other public utilities, it is bound by the restrictions placed on them by C. S., 1717, which provides that such power shall not extend, among other things, to dwellings, without the consent of the owner; and the principle arising under the general power to condemn, leaving the matter largely within the discretion of the governing authorities seeking condemnation, does not apply to the statutory exceptions.</p> <p>2. Eminent Domain — Condemnation — Clerks of Court— Procedure— Appeal — Jurisdiction—Courts.</p> <p>Where issuable matters are raised before the clerk in proceedings to condemn the lands of private owners for a public use, the clerk should pass upon these matters presented in the record, have the land assessed through commissioners, as the statute directs, allowing the parties, by exceptions, to raise any question of law or fact issuable or otherwise to be considered on appeal to the Superior Court from his award of damages, as provided by law.</p> <p>3. Same — Injunction.</p> <p>Under the method of procedure in the condemnation of lands for a public use: Meld, that issuable matters raised by the parties should be taken advantage of by exceptions, and the entire record sent up to the Superior Court by the clerk, where all exceptions may be presented, the rights of the parties may be protected meantime from interference by injunction issued by the judge on application made in the cause, and in instances properly calling for such course.</p> <p>4. Eminent Domain — Condemnation—Municipal Corporations — Cities and Towns — Streets—Offer to Dedicate — Acceptance.</p> <p>Where a municipal corporation has not accepted the offer of a private owner of lands to dedicate the streets and an open square of his lands he has had platted for sale, the proceedings of the municipal corporation to condemn a part of these lands for a public use presents entirely a question of private ownership, and of itself sets up no issue in bar of condemnation proceedings before the clerk, pursuant to the statutory authority and according to the course and practice of the court.</p> <p>5. Same — Acquired Jurisdiction.</p> <p>Where the clerk of the Superior Court has erroneously at once transferred the proceedings in condemnation to the Superior Court on issue joined between the parties, and an appeal therefrom has been taken to the Superior Court, the judge thereof acquires jurisdiction for the hearing and determination of the controversy under the provisions of C. S., 637, and may order other proper or necessary parties to be made for the further determination of the cause.</p> <p>6. Eminent Domain — Condemnation — Nuisance—Dwellings—Statutes— Exceptions.</p> <p>The creation and maintenance of a nuisance which sensibly impairs the value of lands of private owners is a taking within the principle of eminent domain and condemnation proceedings thereunder, and within the exception contained in C. S., 1714, withdrawing dwellings from the effect of the statute.</p> <p>7. Same — Appeal—Superior Courts — Courts—Jurisdiction—Discretion of Court — Parties—Trials.</p> <p>The owner of land divided it into building lots, upon condition of the advantages of a square to be kept open for their use, and some of these lots had been purchased and built thereon for homes. The town, not having the statutory authority to condemn dwellings, instituted proceedings to condemn this open square for an addition to the city cemetery, and upon issue joined in Superior Court as to whether a cemetery so situated would be a nuisance and injure the homes upon the lots sold, the clerk, under exception, erroneously transferred the proceedings for trial at term: Held, it was in the discretion of the Superior Court judge to make the purchasers of the homes parties and hold the case for the determination of the jury before proceeding further.</p>

<p>Appeal by botb parties from Daniels, J., at September Term, 1921, of ÁLAMANCE.</p> <p>Tbe plaintiff is a public-service corporation, with its principal office at Burlington. On 21 December, 1915, it entered into a contract with tbe defendant to furnish it electric power to operate and light its mills situated in tbe town of Graham at tbe rate of one cent per k. w. b. for electric energy. This contract was later modified by divers agreements to tbe basis of one and one-half cents per k. w. b. In September, 1921, tbe plaintiff wrote tbe defendant advising that on account of increased cost due to war conditions it would be necessary to raise tbe rate to two cents per k. w. h., and thereafter tbe bills were made out against tbe defendant at that rate. Tbe defendant pleaded as a counterclaim all collected above tbe one and one-half cent rate which it bad paid from November, 1918, to June, 1920.</p> <p>At tbe close of tbe evidence, on motion of tbe defendant, tbe court directed a judgment of nonsuit as to tbe plaintiff’s claim to recover tbe amount in excess of one and one-half cents, which excess tbe defendant bad refused to pay after June, 1920.</p> <p>Tbe court charged tbe jury that if they found tbe facts to be as testified to by tbe witnesses they should answer against tbe defendant tbe issue on its counterclaim to recover back tbe excess above one and one-half cents which tbe defendant bad paid on plaintiff’s demand between November, 1918, and June, 1920..</p>

Appeal by defendants W. E. Dalton and Mrs. Eobert Broadnax from Long, J., at November Term, 1921, of Eookistgham.

Appeal by plaintiff from Long, J., at November Term, 1921, of ROCKINGHAM. Civil action to recover damages for an alleged breach, of warranty in the sale of certain fertilizers; plaintiff alleging that his crop of tobacco was injured by reason of some deleterious or harmful substance contained in the fertilizer sold by the defendant.

Appeal by defendants from Long, J., at September Term, 1921, of Eobsyth. This case was before the Court, 181 N. 0., 215, where the facts are fully stated. Bynum Tudor, son of the defendant George C. Tudor, at the time the plaintiff’s intestate was killed in the automobile wreck, was something over 16 years of age; living with. Ms father under Ms care and custody.

<p>Husband and Wife — Marriage—Contracts—Services of Wife — Promise to Pay — Quantum Meruit.</p> <p>Eor tbe wife to recover for services rendered to ber husband in his business, or outside of her domestic duties, while living together under the marital relation, there must be either an express or an implied promise on his part to pay for them; and the relationship of marriage, nothing else appearing, negatives an implied promise on bis part to do so.</p>

Appeal by defendants from Long, J., at January Term, 1922, of Guilford. Tbis is an action by tbe beneficiary to recover upon an insurance (funeral or death benefit) policy in the funeral benefit department of the defendant, the National Council of Junior Order United American Mechanics.

Appeal by respondent from Long, J., at .October Term, 1921, of Subry. Rule to attach W. A. Hawkes as for contempt. The plaintiff brought suit against the defendant to recover damages for the seduction of the plaintiff’s daughter, and upon proceedings in arrest and bail the defendant executed a bond with his father, W. A. Hawkes, as surety. Later, the plaintiff and ~W. A. Hawkes happened to meet each other in Hillsville, Va.

<p>1. Appeal and Error — Objections and Exceptions — Broadside Exceptions.</p> <p>Exceptions to the admission of evidence on the trial, which is correct in part, without specifying that which is objectionable, are-too generally taken to be considered on appeal.</p> <p>2. Employer and Employee — Master and Servant — Negligence—Safe Appliances — Evidence.</p> <p>Where the principle requiring an employer to furnish his employee reasonably safe tools and machinery with which to perform his services is involved in the issue as to defendant’s negligence in an action to recover damages for a personal injury, evidence as to the machines in other like factories, upon the question of whether the one causing the injury was of as safe a character as those approved and in general use, is competent.</p> <p>3. Same — Nonsuit—Trials.</p> <p>Where there is evidence that a machine at which the plaintiff was injured while in the course of his employment was not of the kind as that approved and in general use for the same character of work, and that an imperfection in the machine caused the injury, a motion as of nonsuit is properly denied.</p> <p>4. Same — Minors—Instruction to Employees — Duty of Employer — Warnings.</p> <p>The plaintiff, a boy of fifteen years of age, was employed to work at a power-driven machine, and was alleged to have been injury by the negligence of the defendant, of which there was evidence on the trial, and, among other things, that the boy was not instructed by his employer, the defendant, as to its proper operation: Held, it was the duty of the defendant to have previously given to plaintiff such warning and instruction as was reasonably required by his youth, inexperience, and want of capacity to enable him, with the exercise of ordinary care, to perform the duties of his employment, under the existing conditions, with reasonable safety to himself.</p> <p>5. Employer and Employee — Master and Servant — Dangerous Instrumen-talities — Duty of Master.</p> <p>It is the duty of the employer to select a power-driven machine, at which his employee is required to work in the performance of his duties, with reasonable care and prudence as to its safety, and it is actionable negligence where the employer has failed to select one that is reasonably safe for the work to be done, or one that he knew to be defective, or where he should have known it in the exercise of ordinary care, and the defect proximately caused the injury ^complained of in the employee’s action.</p> <p>6. Same — Contributory Negligence — Questions for Jury — Instructions— Trials.</p> <p>Where the evidence tends to show that the plaintiff, defendant’s employee, has proximately caused the injury alleged by the negligence of the defendant in failing to furnish a reasonably safe machine with which the plaintiff should do dangerous work, the question of the plaintiff’s contributory negligence, if pleaded and relied on, is ordinarily for the determination of the jury, under proper instructions from the court.</p> <p>7. Instructions — Presumptions—Appeal and Error.</p> <p>It will be presumed, on appeal, that the jury have given the charge of the court a fair and reasonable construction, and a charge upon any pihase of the case must be examined with its own 'context, and that of the entire charge, so as to disclose its real meaning and import.</p>

CONTROVERSY without action, determined before Devin, J., at March Term, 1922, of Waice.

<p>1. Trespass — Damages—Equity—Cloud on Title — Actions—Costs—Trials.</p> <p>In an action for trespass and for damages the plaintiff, after trial of issues as to trespass, etc., may not abandon these contentions upon the trial, and have the court consider the action as an equitable one to remove a cloud upon the title, and so avoid the payment of the full amount of the costs incident to the litigated issues.</p> <p>2. Same — Pleadings—Issues—Appeal and Error.</p> <p>Where, in an action for trespass and for damages, the plaintiff alleged title to the locus m quo under his deed, and the defendant, admitting this paper title, alleged ownership in a part thereof by adverse possession: Eel&, upon the withdrawal of all claims of trespass and the consequent damages, it was error to the defendant’s prejudice for the trial judge to regard the action as a suit to remove a cloud upon the plaintiff’s title, ignore the issues raised by the pleadings, and tax each party with one-half of the costs.</p> <p>3. Costs — Equity—Cloud on Title — Statutes.</p> <p>Where the defendant disclaims title to lands in a suit to remove a cloud thereon, the plaintiff is chargeable with the costs under the express provisions of our statute, C. S., 1743.</p>

Appeal by defendant from Allen, at July Term, 1921, of Hyde. Plaintiffs were joint owners of a tract of land containing about 525 acres, bounded on the east by tbe Gibbs canal and on the north by the Poplar Ridge road. Defendant entered into a written agreement with the plaintiffs by which the defendant acquired the right to enter on plaintiffs’ land and to widen, deepen, maintain, and use the canal..

<p>Appeal by plaintiffs from Kerr, J., at the October Term, 1921, of BladeN.</p> <p>Civil action to enjoin and perpetually restrain the defendants from levying and collecting a special school tax, authorized by a vote of the people in a new and proposed consolidated district of what was originally three contiguous and adjacent school districts in Bladen County, namely, Council, a local tax district, and Carver’s Creek and Boggy Branch, non-local tax districts. A majority of the voters in-the two districts last named voted against levying the special tax here called in question, but the tax was carried in the entire territory voting as a unit.</p>

<p>1. School Districts — Creation of Districts — Combination of Districts.</p> <p>C. S., 5526, providing for the creation of a special school tax district by the county board of education without regard to township lines, upon an election to he held within the proposed district, after notice, etc., refers to territory having no special school tax and has no application to the enlargement of such district under the provisions of C. S., 5530, wherein one or more school tax districts have already been established and there is other contiguous territory sought to be included which has not voted any special school tax.</p> <p>2. Same — Outlying Territory — Vote of the Electors — Elections.</p> <p>Where one or more special school tax districts have been established under the provisions of our statutes applicable, such districts may not extend their territory to include other districts and adjacent territory that have not voted a special tax, without the question having first been submitted to and approved separately by the voters of the outlying territory, and giving them the right to independently determine for themselves whether they shall be specially taxed, in the amount proposed. O. S., 5530. The distinction between Riddle v. Cumberland, 180 N. 0., 321, and Perry v. Comrs., <mte, 387, and this case, shown and commented upon by Walker, J.</p> <p>S. Same — Enlargement of Existing District.</p> <p>In proceedings to establish a special school tax district under the ¡provisions of O. S., 5526, it appeared that therein was included several local tax districts already established, and also territory wherein no special tax haci been voted, and the proceedings were properly instituted by only one of these local school tax districts: Held,, the proceedings were for the enlargement of the petitioning local tax district, and required that the others therein should also have proceeded regularly under the statute and that the electors in the proposed part that had not voted a special tax be permitted to vote separately upon the question of the contemplated increase for the designated purpose. C. S., 5560.</p> <p>4. Statutes, in Pari Materia — School Districts — Special Tax — Elections.</p> <p>C. S., 5526, providing for the creation of new local school tax districts, and section 5530 requiring tbie question of an enlargement of an existing special school tax district to be submitted separately to the voters of the proposed new territory are to be construed m pari materia, and the provisions of each are held reconcilable with those of the other.</p> <p>5. Same — Taxation—Elections.</p> <p>Laws of 1921, ch. 179, providing 'for the consolidation and adjustment of rates of taxation and authorizing the voters of a district so consolidated to vote special tax rates for the schools in the entire district, etc., should be-construed to harmonize with O. S., 5530, and the provisions of the former statute do not affect or impair the requirement of the latter one, that for an extension of the boundaries of an existing local school tax district or districts, the approval of the tax proposed .must first be given by the voters in the proposed new and contiguous territory.</p> <p>6. Same — Abolition of Districts.</p> <p>Under the provisions of C. S., 5530, a local tax school district may be abolished by the act of creating a new one of which it is a component part, while section 5531 is restricted simply and singly to the abolition of an existing district, and so construed: Held, these sections are in harmony with each other.</p>

Appeal by plaintiff from Daniels, J., at September Term, 1921, of DuehaM. Civil action, tried on appeal from tbe justice’s court. The action is to recover damages for the value of a xoackage, to wit, a bicycle motor attachment, bought in St. Louis, Mo., and shipped with defendant to plaintiffs at Durham, N. C., under a uniform express receipt and contract of carriage, and which was never delivered to plaintiffs, the consignees.

Appeal by plaintiffs from Lane., J., at July Term, 1921, of Foesyth. Civil action to enjoin and restrain the holding of an election in a new ■■and proposed consolidated school district composed of what was originally two contiguous and adjacent districts in Forsyth County, namely, Bethania, a special tax district, and Old Town School District, a non-local tax district.

Appeal by plaintiff from Long, J., at the January Term, 1922, of Guilford. Summary proceeding in ejectment to evict the defendants as tenants-from the premises of the plaintiff.

Appeal by plaintiff from Long, J., at February Term, 1922, of Guileord. Civil action to recover damages for'an alleged breach of contract, the material parts of which are as follows: GkeeNsbobo, N. 0., 25 October, 1919.

Appeal by plaintiff from Lane, •/., at December Term, 1921, of Mooee.

<p>Appeal by both parties from Lane, J., at December Term, 1921, of Mooee.</p>

Appeal by plaintiff from Lane, J., at December Term, 1921, of Moore. This action was brought to recover damages for the negligent setting out of fire by the defendant, the plaintiff alleging that the fire spread to bis premises and burned bis property, and that be was thereby damaged. At the close of the plaintiff's evidence the defendant demurred thereto and moved to dismiss the action, and the court allowed the motion and dismissed the action, and plaintiff excepted.

Appeal by defendant from Finley, J., at September Term, 1921, of RICHMOND.

<p>Appeal by defendant from Granmer, Jat November Term, 1921, of HABNETT.'</p> <p>Civil action to establish, plaintiff’s ownership in an open square in the town of Dunn, abutting on the railroad’s right of way through said town, and to restrain defendant from trespass and other wrongful interference with plaintiff’s rights therein. Defendant denied plaintiff’s ownership of the property, and in a further answer averred that said square had been dedicated as a public square and accepted as such by the town authorities before plaintiff had or claimed any right therein, and prayed for an injunction restraining plaintiff from alleged wrongful trespass or use of said square. The cause was submitted and verdict rendered on the following issue:</p> <p>“Is the plaintiff the owner in fee simple, and entitled to the possession of the land described in the complaint? Answer: ‘Yes.’ ”</p>

<p>1. Limitation of Actions — Adverse Possession — Husband and Wife.</p> <p>Where the husband owns or has title to the loom m quo, his living thereon with his wife is his sole possession in regard to the question of title ripened by adverse possession, and the principle upon which it is regarded as that of his wife when she owned the title and he claims under a void deed from her, as decided in Komegay v. Price, 178 N. C., 441, does not apply.</p> <p>2. Trespass — Standing Timber — Damages—Boundaries.</p> <p>Where the plaintiff claims timber growing upon lands by adverse possession of the lands, depending upon whether defendant’s boundary was the high- or low-water mark of a stream, it is competent for the plaintiff to show the location of the high-water mark, and where the land alleged to ’ have been trespassed upon was situated, and not only what damages had been done to it from the cutting and removing of the trees, but how and to what extent, if any, the remaining land had been injured or depreciated by the defendant’s alleged trespass.</p> <p>3. Same — Evidence.</p> <p>Where the plaintiff brought an action in the nature of an action for trespass and for damages for the defendant’s cutting and removing timber standing upon the lands, which he claims by adverse possession, depending upon the location of defendant’s boundary line, testimony of the defendant’s grantors that he had altered his deed with respect to this boundary is competent upon the question of defendant’s good faith in claiming the lands and denying trespass, and as impeaching the validity of the defense and showing the true location of defendant’s boundary; though not with reference, in this case, to its legal effect upon the continued validity of the defendant’s deed.</p> <p>4. Evidence — Cross-examinations—Impeachment—Damages—Trials.</p> <p>Where the defendant corporation has denied the trespass and the wrongful cutting and removing timber upon the plaintiff’s land, and its general manager has testified as to the comparative value of the timber, it is competent for the plaintiff to cross-examine him as to those matters to test the value of his testimony as to the value of the land, timber, etc., and also to show his animus, feeling, or bias.</p> <p>5. Appeal and Error — Evidence—Objections and Exceptions — Broadside Exceptions.</p> <p>Exceptions to testimony, to be considered on appeal, must not be to several distinct parts without particularly indicating the ground of objection.</p>

Appeal by plaintiff from Connor, J., at September Term, 1921, of BbuNswick. Civil action to recover damages of defendant for wrongfully and negligently causing the death of Fred Ballard, plaintiff’s intestate.

Appeal by plaintiff from Bay, J., at April Term, 1921, of ANSON. Civil action to recover damages for an alleged negligent personal injury. . Plaintiff, express messenger on train No. 13, running from Wilmington to Charlotte, was injured in a wreck on the night of 2 May, 1919; said wreck occurring about two miles west of Lilesville, and being caused by a derailment of the train.

Appeal by defendant from Ray, J., at tbe October Term, 1921, of MecicleNbueg. Civil action to recover damages for an alleged negligent personal injury. Plaintiff, an employee of tbe defendant company, was engaged, witb other servants, in tbe work of erecting a steel tower and water tank for tbe Standard Bonded Warehouse Company in tbe city of Charlotte.

<p>Actions — Equity—Nonsuit—Statutes—Executors and Administrators.</p> <p>Where there is evidence in support of defendant’s counterclaim that she had rendered services to her mother, in the latter’s lifetime, under an express promise to pay for them, and that her mother had died without property, except her home place, which continued to remain in the defendant’s possession after her death; and that the plaintiff was the grantee of her brother, who had obtained the locus in quo by a fraudulent deed from his mother of which the defendant had full knowledge, or actual or constructive notice thereof: Held,, the fact that more than one year had elapsed before the beginning of the present action, from the termination by nonsuit of the defendant’s action to recover for such services from the administrator of her mother, does not bar her recovery upon her counterclaim, the same being of an equitable nature to which our statute, C. S., 415 (Rev., 370), has no application, under the facts of this ease, the defendant having, all the time, had continuous possession of the land. Mast v. Tiller cited and approved.</p>

<p>1. Common. Carriers — Carriers—Railroads—Master and Servant — Employer and Employee — Negligence — Commerce — Statutes—Federal Employers’ Liability Act.</p> <p>Evidence that tbe plaintiff, an experienced brakeman of a railroad company engaged in interstate commerce, was thrown between a box car and a flat car, while, in the course of his employment, he was crossing from the one to the other with the train in motion, by a sudden and unexpected jerking of the train, of such force as to break his hold upon the box car and jerk the flat ear from under his feet; and that the cars had been picked up at a station they had left without inspection of the cars or drawheads is sufficient for the determination of the jury upon the issue of actionable negligence, in an action against the carrier to recover damages under the Federal Employers’ Liability Act.</p> <p>2. Same — Assumption oí Risk.</p> <p>Tie doctrine of assumption of risk, though not wholly abolished by the Federal Employers’ Liability Act, has no application where the negligence of a fellow-servant, which the injured party could not have foreseen or expected, is the sole, direct, and immediate cause of the injury, the risks assumed by the employee being only those incidental to the proper and careful operation of the railroad.</p> <p>3. Instructions — Negligence—Carriers—Railroads—Personal Injury.</p> <p>The instructions as to the measure of damages to be awarded to an employee who received a personal injury caused by the negligence of his employer, a railroad- company, are, in this case: Belcl correct under the ruling approved in JR. B. v. Tilglimcm, 237 TJ. S., 499; R. R. v. Bwrnest, 229 TJ. S., 114.</p>

Appeal by defendant from Shaw, J., at October Term, 1921, of Mecelenbubg. Plaintiff sued to recover $447.50 as balance due for purchase of ten wheel scrapers and other implements.

Appeal by defendant from Wébb, J., at November Term, 1921, of G-uileobd. Plaintiff alleged that he was injured by the negligence of the defendant. Defendant denied negligence, and pleaded plaintiff’s contributory negligence and assumption of risk. The issues of negligence, contributory negligence, assumption of risk, and damages were answered in favor of the plaintiff.

Appeal by propounders from Bond, J., at September Term, 1921, of Wake. Issue of devisavit vel non raised by a caveat to tbe will of Louisa Eugenia Harrison. Alleged want of execution, mental incapacity, and undue influence are tbe grounds upon wbicb tbe caveat is based. Tbe jury returned tbe following verdict: “1.

Appeal by plaintiffs from McElroy, J., at September Term, 1921, of MONTGOMERY. Plaintiff alleged tbat they were the owners and entitled to the possession of a tract of land in Ophir Township; that the defendants had trespassed thereon, and had cut and, unless restrained, would continue to cut valuable timber, and that they unlawfully withheld possession from the plaintiffs. ■ An answer and a replication were filed.

Appeal by plaintiff from Gramner, J., at August Term, 1921, of WayNE. Civil action, tried on demurrer to complaint.

<p>Appeal by plaintiff from Cranmer, J., at August Term, 1921, of WayNE. «</p>

<p>1. Compromise and Settlement — Contracts—Consideration.</p> <p>The plaintiff was injured while in the course of his employment for the defendant, causing, among other things, the amputation of his arm, and while preparing to bring suit for damages upon the alleged negligence of the defendant, was approached by the defendant’s superintendent or foreman in charge and control of its employees, who suggested a compromise upon condition that the defendant would give him employment such as he was then capable of doing, and pay him a living wage for the support of himself and family for life: Held, the compromise being an adjustment of a 'bona fide claim, is a sufficient consideration to support the agreement thus made, whether it was well grounded or not.</p> <p>2. Same — Employer and Employee — Master and Servant — Principle and ' Agent — Ratification.</p> <p>A contract by way of compromise to give employment at a living wage to an employee, sufficient for himself and his family, whose arm had been amputated as a result of an injury alleged to have been caused by the defendant employer’s negligence, is too unusual to come under the ordinary powers of a foreman or of an agent of more general powers, but may become binding by the knowledge or acquiescence of the owner; as where the defendant employer was a manufacturing plant, mostly owned by one person, who was aware of the injury, and that his company paid the expenses incident thereto, and for- years kept this crippled employee on the payroll and paid him the same wages that he had received before the injury, these circumstances being sufficient to impute knowledge to the management of the defendant’s plant of the contract agreed upon by its boss or foreman.</p> <p>3. Limitation of Actions — Contracts — Breach — Master and Servant— Employer and Employee.</p> <p>Where an employee, injured while engaged in his duty to his employer, has compromised his claim for damages by going back to work in a crippled condition under an agreement that he should receive a living wage for life sufficient for the support of himself and family, and upon breach of the employer of this agreement, has been forced to seek employment elsewhere, the fact that he has done so, under the circumstances, will not avoid his recovery in his action upon the compromise agreement, and the statute of limitations will begin to run only from the time of the defendant’s breach of the contract.</p> <p>4. Contracts — Breach—Uncertainty—Intent—Interpretation.</p> <p>The courts look with disfavor upon the destruction of contracts on account of uncertainty, and, when possible, will so construe them as to carry into effect the reasonable intent of the parties.</p> <p>5. Same — Employment for Life — Living Wages — Evidence—Damages— Employer and Employee.</p> <p>A contract of employment for a living wage for life to an injured employee for himself and family, etc., founded upon a sufficient consideration, is not too uncertain for enforcement, the persons, the purpose, and the time of the contract being given, and the amount capable of reasonable ascertainment from the evidence of the capacity of the employee to earn wages, his physical condition, the number of his family, the cost of necessaries for an ordinary livelihood, together with the mortuary tables, etc., the final amount of the damages for the breach being reduced by such as by diligent effort he would be able to earn under his physical disability.</p>

<p>Appeal by plaintiff from Kerr, J., at tbe October Term, 1921, of CUMBERLAND.</p>

<p>Deeds and Conveyances — Husband and Wife — Probate Officers — Statutes —Certificates—Amendments—Subsequent Certificate — Justices of the Peace — Notary Public.</p> <p>Where a justice of the peace has failed to certify his finding that the deed of the wife’s lands to her husband and herself to he held by them in entirety was not “unreasonable or injurious to her,” as required, among other things, by C. S., 2515, he may not, after the death of the wife, validate the deed by making a new certificate including this vital finding as of the time of his first probate, or excuse himself upon the ground of ignorance or inadvertence, it being at least required that she should have had due notice of this proposed action, and have been afforded an opportunity to be heard; and the deed itself being void under the statute, the will of the husband disposing of the locus m quo is also ineffectual. Semble, after executing the first certificate, the power of the justice ceased or became functus officio; but this point is not herein decided.</p>

Appeal by plaintiffs from Crammer, J-., at March Term, 1922, of Caeteeet. Prior to 7 August, 1916, Thomas Thomas was, and had been for many years, the cashier of the defendant bank, and by reason of his misappropriation of the funds and securities of said bank, he was short in his accounts to -the amount of $71,000. His father, Alonzo Thomas, was in default as treasurer of Carteret County, and as was also Thomas Thomas, who succeeded him as treasurer.

Appeal by defendants from Sarding, J., at chambers, 16 January,, 1922, from RockiNGHAM. Application for mandatory injunction. There was evidence tending-to show the facts to be as follows: Plaintiff is the owner of 1% acres-of land in the unincorporated town of Spray, on which its mill is-situated. Its premises, except where the driveway connects with the public road, are surrounded by the lands of the water power and land, compoany and allied corporations.

Appeal by botb plaintiff and defendant from Bay, J., at December Term, 1921, of Gaston. Civil action to recover damages for an alleged wrongful conversion of plaintiff’s automobile. Upon denial of liability and issues joined, tbe jury returned tbe following verdict: “1. Did tbe defendant wrongfully convert to bis own use tbe property of tbe plaintiff, as alleged in tbe complaint? Answer: ‘Yes.’ “2. Is tbe plaintiff’s cause of action barred by tbe statute of limitations?

<p>Appeal by plaintiffs from Finley, J., at November Term, 1921, of Mitchell.</p> <p>Civil action, under C. S., 1743, to quiet title, or to remove a cloud therefrom, and also to recover damages for an alleged wrongful trespass.</p> <p>There was a verdict in favor of the plaintiffs, which his Honor set aside and ordered a new trial of the cause. -</p>

Appeal by petitioners from Bryson, J., at Spring Term, 1922, of Catawba. A former appeal, beard at the Fall Term of 1921, is reported in 182 N. 0., 114. It is agreed that the record in that appeal shall, so far as applicable, be accepted as the record in this appeal.

Appeal by plaintiff from Connor, J., at tbe Fall Term, 1921, of Bbunswick. Civil action, beard on return to preliminary restraining order.

Appeal by both parties from Kerr, Jat January Term, 1922, of DURHAM. Civil action to recover damages of defendant company for breach of contract to employ plaintiff for year 1921, and for slander in wrongfully and maliciously charging plaintiff with larceny in January of said year.

<p>1. Negligence — Evidence—Questions for Jury — Trials—Automobiles.</p> <p>Where damages for the negligent driving of an automobile is sought in the action, evidence that another was driving the owner’s car at the time, in pursuance of his duties as defendant’s employee, or about the defendant’s business, at excessive speed upon the- wrong side of a street, and caused damage to the plaintiff, riding in the opposite direction on his motorcycle, where he had the right to be, is sufficient to take the case to the jury.</p> <p>2. Same — Burden of Proof — Appeal and Error.</p> <p>In an action to recover damages, caused to the plaintiff by the alleged negligent driving of the defendant’s automobile, where the evidence is conflicting as to the ownership of the automobile or whether the driver was at the time engaged in the business of the defendant, the making out of a prima faoie case'for the plaintiff does not raise a legal presumption of negligence, or cast upon the defendant the burden of disproving by the preponderance of the evidence his ownership, or that the machine was not being operated in his business, or shift the burden of the issue from the plaintiff, but raises only an inference upon which the jury may find the issue in the plaintiff’s favor.</p> <p>3. Evidence — Automobiles—License Plates — Ownership.</p> <p>Where the ownership of an automobile, causing damage to another by the negligent operation of its driver, is in question in the action, the license number or plate indicating that the defendant was the owner is ■ competent as a circumstance tending to show his ownership, with other proof thereof.</p>

<p>Appeal by plaintiff from Webb, J., at December Term, 1921, of Guilford.</p> <p>Civil action, tried on case agreed, to recover damages for breach of covenant of seizin, contained in a deed made by defendants to plaintiff, said deed having the full covenants usually contained in a fee-simple conveyance of realty. On the facts presented, the court being of opinion that there had been a breach of the covenant, and the- damages suffered were only nominal,</p>

Appeal by defendants from Webb, J., at February Term, 1922, of UNION.

<p>Appeal by defendants from McElroy, J., at August Term, 1921, of CABARRUS.</p> <p>This is an action brought by the plaintiffs, the four Cannon Cotton Mill Companies, for a restraining order and permanent injunction against the defendants to restrain and prevent them from collecting certain taxes which were levied by the board of commissioners of Cabarrus County at their meeting on 3 September, 1920, for that year against the property of the plantiffs, and duly certified to the defendant sheriff and tax collector about 1 October, 1920.</p> <p>The ground on which the plaintiffs ask this restraint is an alleged order of the Corporation Commission of 4 January, 1921, reducing the amount set out by the order of the county commissioners at their regular meeting in September, 1920, and directed by the tax list to be collected upon the property of the plaintiffs.</p> <p>The defense set up by the county commissioners and the sheriff and tax collector is that, as appears by the record, the amount ascertained and assessed against the plaintiff’s four mills on 1 May, 1920, was $19,480,308; that from this valuation the plaintiffs appealed, and that the State Tax Commission authorized and instructed the local authorities of Cabarrus to reduce said valuation of the four mills to $16,961,308; that subsequently the State Tax Commission, to complete its work before it made its report to the Governor, as required by Laws 1919, ch. 84, called the county supervisor and the county board of appraisers and review to Raleigh for further consultation and conference with the State Tax Commission, and as a final concession and settlement of the valuation of the property in Cabarrus County, authorized the county supervisor of said county in making his final report to allow a further reduction of $3,000,000 to “cover any variations that might arise,” and this was done, as shown at bottom of page 51 of the record in this case; and that all the said $3,000,000 was apportioned solely and entirely to these plaintiffs, reducing the valuation of their combined property, as the defendants claim, to $13,961,308 (no part of said $3,000,000 reduction having been apportioned to any other mill owner or any other taxpayer whatever in said county), and this amount was assessed by the defendants, county commissioners, as the basis calculated by them of the tax to be collected on the plaintiffs’ mills for the fiscal year 1920, and the tax list so calculated was placed in the hands of the sheriff for collection, and upon which the county is seeking to recover -the taxes which the plaintiffs are endeavoring to restrain.</p> <p>On 10 August, 1920, the Legislature met in extra session at the call of the Governor, and at that date, in its final report on valuation, which the Goverrior transmitted to the General Assembly, the Tax Commission, on page 1, uses these words: “We have the honor to report the successful completion of this work, and present herewith the tabulated result.” On page 4 the commission says: “¥e are assured that such values have been made as will place upon these industries a fair share of the public burden, and certainly it will be more equally distributed among them than under the former methods of valuation. The work in this line was in the nature of assistance to the local boards by whom the final valuations were made,” and at its conclusion they express their “feeling of relief that the arduous task is completeIn this report, which the Legislature adopted, the taxable value of the property in Cabarrus is stated to be $49,473,505.</p> <p>In sec. 1, ch. 1, Laws, Extra Session 1920, ratified 26 August, the General Assembly enacted, “The assessment or valuation of property made under the provisions of Laws 1919, ch. 84, is hereby approved by the General Assembly and adopted as the basis for the levy of tax rates for the State, and all subdivisions of the State for which taxes are levied for the year 1920,” and in section 5 of said chapter authority is given and provision made for the boards of commissioners of the various counties of the State to levy taxes for the various counties in conformity with this valuation for the year 1920. It appears from the record that on 30 August, 1920, the certificate from the State Tax Commission of said valuation for the county had been received, and at the regular meeting of the defendants, 3 September, the county commissioners, in accordance with the said act of the Legislature, the assessment was made out against each taxpayer, and about 1 October this tax list was placed in the hands of the sheriff, and he was proceeding in the exercise of his duties to collect the taxes so assessed and levied.</p> <p>The plaintiffs sought to enjoin the collection of $22,342.17 of the taxes charged against them on this tax list, in the hands of the sheriff upon the allegation that on 4 January, 1921, the State Tax Commission reduced tbe previous assessment on their property which had been placed on the tax list by the county commissioners under authority of the act of the Legislature, by the sum of $4,654,619, leaving the assessment of the plaintiffs’ property reduced to $9,306,689, and ask this injunction against the collection of any taxes on the amount of said reduction.</p>

<p>Appeal by defendant from Harding, J., at June Term, 1921, of BuNcombe.</p> <p>Civil action to recover damages for an alleged breach of covenant in a rental contract.</p> <p>On 1 July, 1919, plaintiff leased from the defendant, for a period of one year, a certain store room, known as the Swannanoa-Berkley Barber Shop, located on Biltmore Avenue in the city of Asheville, N. 0. The rent was to be paid in monthly installments of $40 each. Plaintiff alleges that, in addition to the premises' and fixtures, defendant agreed to furnish “hot and cold water” sufficient for the successful carrying on of his business. This latter covenant is denied by the defendant; and, upon issues joined and counterclaim set up by defendant, the jury returned the following verdict:</p> <p>“1. Did the plaintiff and defendant enter into the contract, as alleged in the complaint? Answer: ‘Yes.’</p> <p>“2. Did the defendant breach said contract? Answer: ‘Yes.’</p> <p>“3. What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: ‘$150.’</p> <p>“4. Did the plaintiff breach said contract, as alleged in the answer? Answer: ‘No.’</p> <p>“5. What amount, if any, is the defendant entitled to recover of the plaintiff? . Answer:‘Nothing.’”</p>

Appeal by defendant surety from Bond, J., at October Term, 1921, of BUNCOMBE. Civil action, beard on appeal from judgment of clerk. Tbe action is instituted by plaintiff, returnable to July Term, 1921, against Scott Dillingham as an individual and Scott Dillingbam, Incorporated, to recover tbe sum of $2,000 due upon tbe purchase price of an automobile sold to defendants, and which sum defendants expressly promised to pay plaintiff.

AppEAi'by plaintiff from Lane, J., dissolving a temporary restraining order, March, 1922, from McDowell.

Appeal by plaintiff from McElroy, J., at December Term, 1921, of BUNCOMBE. Tbis is an action brought to recover damages for a breach of contract.

Appeal by petitioners from McElroy, J., 21 December, 1921, from BuNCOMBE. , This is a petition in the above entitled cause, it being a proceeding before the clerk of the Superior Court for partition*, in the following terms : The petition alleges that William W. Lyman, the father of the petitioner, W. W. -Lyman, Jr., owned the land mentioned in the petition since the death of his father, on 13 December, 1893.

<p>Appeal by plaintiffs from Webb, J., at December Term, 1921, of Guilford.</p> <p>Civil action, tried on pleadings and tbe admissions of the parties in the cause, a jury trial having been formally waived. The action is instituted to enforce an agreement entered into between plaintiff and defendants concerning the sale of certain lands by defendants to plaintiff and a restoration of part of the purchase price to plaintiff, and on the hearing it was properly made to appear that B. J. Fisher, formerly of Asheboro, N. C., died on 15 April, 1903, owning at tbe time valuable real estate situated in Greensboro, N. C., and also in England, and leaving bim surviving as bis devisees and beirs at law bis widow and tbeir four infant children, Olivia Maude, Elsie May, "William Randolph, and Millieent Rosa, and also a daughter in England by a former wife, Lillian Brenda Eisber. That in said will, duly admitted to probate and recorded, said testator disposed of tbe said real estate, including tbe property in controversy, as follows:</p> <p>“2. I give, devise, and bequeath to my daughter, Lillian Brenda Eisber, of Chester House, "Wellingboro, Northampton, England, all my property of all kinds and description in Great Britain, in fee simple absolutely.</p> <p>“3. I give, devise, and bequeath to my beloved wife, Isabella Eisber, all my property on America, both real and personal, to her use and disposal all moneys accruing annually, to use and enjoy tbe same during her life, if she shall so long continue my widow, and from and after her decease, or second marriage (whichever shall first happen), all her interest in my estate shall cease and be forever lost.</p> <p>“4. At the death or remarriage of my wife, Isabella Eisber, my will and desire is that all my property in America be divided equally between my children, to wit, Olivia Maude, Elsie May, "William Randolph Grover, Millieent Rosa, provided they have arrived at the age of 21 years, or if any of my said children have married and died, leaving surviving a child or children, it or they to have that portion which would have fallen to its mother or father (as the case may be), had he or she been living.</p> <p>“5. In the event of the death of my wife, as aforesaid, before the children arrive at the age of 21 years, then the whole of my property is to go into the hands of my executor hereinafter named, and he shall collect all moneys and interest, and shall expend them for .the use and benefit of my children as aforesaid, who are'under the age of 21 years, but shall hand over to those over the age of 21 years that division to which they are entitled of annual interest.</p> <p>“6. All moneys not applying or necessary to be spent for my children under 21 years to be invested in United States Government securities for all my said children, and when all have arrived at the age of 21, then this general fund and all other properties to be divided between my said children, and by themselves, so that each shall have an equal share of my estate.”</p> <p>That on or about 5 December, 1909, Elsie May Eisber, one of the children above mentioned, died, a minor without issue, or ever having married. That later, in 1914, under the terms of said will and by order of court in a pending cause, the property and the control and management of tbe same was turned over to Isabella Fisber, administratrix cum testamento annexo, and Isabella Fisber individually, and Olivia Maude Fisber, and ~W. R. G. Fisber, tbe children wbo bad tben become of age. And thereafter a large indebtedness having accumulated against tbe property by reason of improvements, taxes, assessments, and insurance thereon to tbe amount of near $50,000. Mrs. Fisber and her three surviving children, including Millicent Rosa, wbo bad at that time also come of age, sold a portion of said property in Greensboro on tbe corner of East Market and North Elm streets, to tbe American Exchange National Bank for $135,000, and contracted to sell two other pieces of said property, including that now in controversy to defendants, for $95,375, receiving a part of purchase money in cash and tbe remainder ■ secured by a first mortgage on tbe property. That these defendants, after subdividing tbe property, resold same to different parties, one lot being sold to L. M. Humphrey at a stated price, and a second lot sold to tbe plaintiff corporation for $36,300, plaintiff paying in cash $9,300 of said purchase price and giving notes and mortgage for remainder of same, etc. That said Humphrey, purchaser of one of tbe lots, having refused to pay on tbe alleged ground that tbe vendors bolding under tbe deed from Mrs. Fisber and children, did not have a good title to tbe property, defendants instituted suit to test tbe question, and same was carried by appeal to tbe Supreme Court, and it was held that, for reasons stated in tbe decision, Thompson v. Humphrey, 179 N. O., 44, under tbe will tbe Fisber children bad only a contingent interest in tbe property, and on tbe facts as there, presented, their deed would not convey an indefeasible title. Pending tbe case, plaintiff and defendants entered-into tbe agreement now sued upon and later enlarged to tbe effect that if tbe Court should bold against tbe validity of tbe deed by Mrs. Fisber and her children,, and defendants were unable to perfect tbe title offered by them, in that case tbe contract of sale between plaintiff and defendants should be set aside, tbe money paid by plaintiffs returned to them, and their notes canceled and surrendered. That pending tbe said suit between defendants and Humphrey, or as soon as tbe decision in tbe cause was announced, Mrs. Fisber and her surviving children, together with tbe defendants, instituted a civil action under C. S., 1744, to obtain a sale of said property from Mrs. Fisber and her children at tbe price of $95,375, on averment that tbe property was affected by contingent interest, that tbe sale as made was a most desirable and advantageous one for tbe estate, and all persons having an interest therein, and in said suit Mrs. Fisber as administratrix cum testamento annexo of her husband and as an individual, and her three surviving children, together with tbe present defendants, were made plaintiffs, and “tbe unborn children of Olivia Maude Fisber, "William Randolph Fisber, and Millicent Rosa Fisher, and all others having contingent interest in the estate,” were described as defendants, and on petition and inquiry duly instituted, Mr. 0. 0. Cox was regularly appointed guardian ad litem, representing all persons having contingent remainders or other contingent interest in the property under said will, etc. In the petition Mrs. Fisher, as administratrix and as an individual, and her children, bring into court all the proceeds of the sales had by them over and above the amount paid out on the accumulated debts, which constituted valid liens of the property, describing.how they are now invested, and submitting such investments and property to the court’s jurisdiction, and pray that the same, as agreed upon by them, be carried out and confirmed. The cause having been fully heard, the court, at March Term, 1920, his Honor, P. A. McElroy, presiding, found the facts and entered his judgment as follows:</p> <p>NORTH CAROLINA — GüILFORD COUNTY,</p> <p>March Term, 1920.</p> <p>Isabella Fisher, administratrix c. t. a. of B. J. Fisher, deceased, Isabelle Fisher, individually, Olivia Maude Fisher, William Randolph Fisher, Millicent Rosa Fisher, American Exchange National Bank of Greensboro, N. C., F. Thompson, J. E. Stockwell, G. L. Stanbury, and J. E. Faulkner,</p> <p> against </p> <p>The unborn children of Olivia Maude Fishery William Randolph Fisher, and Millicent Rosa Fisher, and all other heirs at law or contingent remaindermen under the will of B. J. Fisher, deceased.</p> <p>It appearing to the court that a petition, in the above entitled proceedings, was filed in this court on 9 March, 1920, and that thereafter O. C. Cox, of Greensboro, N. C., was appointed guardian ad litem to represent the interest of contingent remaindermen who are not in esse, or who cannot be ascertained; that said guardian ad litem has been duly served with summons herein and has filed an answer to said petition; and the court finding from the petition and answer the following facts, to wit:</p> <p>That B. J. Fisher died in the city of New York, 15 April, 1903, leaving a last will and testament, copy of which is attached to the petition herein, marked “Exhibit A,” and made a part thereof; that said last will and testament was duly admitted to probate in the surrogate’s court in the State of New York, and thereafter, to wit, on 3 August, 1903, Isabella Fisher duly qualified and was appointed by said court administratrix with the will annexed; that a copy of said last will and testament has been duly and regularly admitted to probate or recorded in tbe office of tbe clerk of tbe Superior Court of Guilford County, as provided by law, and letters testamentary, with tbe will annexed, bave been duly issued to Issabella Fisber; tbat said last will and testament of B. J. Fisber is recorded in tbe office of tbe clerk of tbe Superior Court of Guilford County in Bpok “G,” page 367-, tbat prior to and at tbe time of bis death said B. J. Fisber was tbe owner and in possession of several valuable lots and bouses and other unimproved real estate in tbe city of Greensboro, county aforesaid, a portion of which is described in tbe petition; tbat on 1 February, 1904, in an action entitled “Isabella Fisber, administratrix, et al., versus Olivia Maude Fisber et alA. L. Brooks was appointed receiver and commissioner to take charge of tbe estate of tbe said B. J. Fisber, deceased, under tbe control and direction of tbe court, and tbat thereafter said estate was administered by A. L. Brooks, receiver, and C. A. Bray, trustee, as will more fully appear from tbe record of tbat action on file in tbe office of tbe clerk of tbe Superior Court of said county.</p> <p>Tbat Elsie May Fisber died while an infant, on or about 6 December, 1909, unmarried and without leaving surviving her any child or children; tbat tbe other three children named in paragraph four of said will are petitioners herein, and tbat none of same bave ever married; tbat each of said surviving children is now, and was at tbe time hereinafter mentioned, more than 21 years of age; tbat during tbe time said C. A. Bray was trustee of said estate be secured an order of court permitting him to erect a building upon tbe lot belonging to sáid estate situated at tbe corner of North Elm and East Market streets, and pursuant to said order said building was erected and an indebtedness of $40,000 was incurred by reason thereof, and a deed of trust securing said indebtedness was authorized and made a lien upon said property; tbat both of tbe parcels of land described in tbe petition bad small buildings thereon, and were not yielding -to petitioner anything like 6 per cent upon the sale price thereof, after the payment of insurance, taxes, repairs, and other expenses; and Isabella Fisber, Olivia Maude Fisber, William R. G. Fisher, and Millicent Rosa Fisber found that the estate was being gradually depleted and lessened, and after tbe payment of expenses tbe income was not sufficient for the proper care and maintenance of said Isabella Fisher; and plaintiffs were compelled to borrow money from time to time, hypothecating said property until at tbe times hereinafter alleged tbe total indebtedness against tbe same amounted to $50,000; that at the October Term, 1914, of Guilford County Superior Court the court signed an order or judgment in the action of Isabella Fisber et al. versus Olivia Maude Fisher et dl., which provided, among other things: “That the said C. A. Bray, as trustee, may be relieved of any further responsibility as such trustee, upon turning over and trans--ferring to Isabella Fisher, administratrix c. t. a. of B. J. Fisher, Isabella Fisher, individually, Olivia Maude Fisher, William R. G. Fisher, and Millicent Rosa Fisher, all of said property and effects now in the hands of said trustees belonging to said estate.”</p> <p>That at the March Term, 1915, of said court, the court rendered judgment affirming á report of a referee, which referee had held that Isabella Fisher was devised a life estate in all the property of'B. J. Fisher in America, and that Olivia Maude Fisher, William R. G. Fisher, and Millicent Rosa Fisher are the owners in fee of said estate, subject to the rights in said estate of Isabella Fisher, as will appear from the judgment roll in said case; that said Isabella Fisher, and her children as aforesaid, and the other plaintiffs herein, believed that the said Isabella Fisher owned a life estate in the real estate described in the petition, and that Olivia Maude Fisher, William R. G. Fisher, and Millicent Rosa Fisher owned the remainder in fee simple as tenants in common; that on account of the very small income derived from said property, and the inability of said' Isabella Fisher and children to improve or erect larger buildings upon'said property, they decided to sell said land and invest the principal in interest-bearing securities; that pursuant to said intention, the said parties entered into a contract to sell and convey to the American Exchange National Bank for the sum of $135,000 that tract or parcel of land in the city of Greensboro, said county and State, at the northeast corner of the intersection of Elm and Market streets, which is fully described in deed from Isabella Fisher et al. to American Exchange National Bank, recorded in the office of register of deeds of Guilford County, in Book.298, page 95; that on or about 18 July, 1919, said parties contracted to sell and convey to J. F. Thompson, J. E. Stoekwell, G. L. Stansbury, and J. E. Faulkner, for the sum of $95,375, the two tracts or parcels of land lying and being in the city of Greensboro, on the east side of Elm Street, adjoining Howard Garner and others, and fully described in deeds recorded in Book 327, pages 209 and 260, which deeds were executed pursuant to said agreement; that out of the $135,000 received from the American Exchange- National Bank, Isabella Fisher paid off and discharged' a deed of trust and other indebtedness against said property in the sum of about $50,000, and of the remainder invested $72,000 in Guilford County bonds, bearing 5 per cent interest, and $13,000 in Liberty Bonds.</p> <p>That said J. F. Thompson and associates paid in cash for the property sold them as aforesaid the sum of $20,875, and executed -and delivered to Isabella Fisher and children a first mortgage deed in the sum of $72,500, maturing five years after date, with interest at 6 per cent, payable semiannually, which said mortgage is now outstanding and in full force; and that the $20,000 aforesaid has been invested as follows: $10,000 in Budd Manufacturing Company, Philadelphia; $5,000 in Hiawatha Coal Company, Philadelphia; $1,000 in Victory Bonds; $3,000 in Liberty Bonds; $1,000 in Penny Corporation, Philadelphia.; that the income from the estate of the said B. J. Fisher as it is now invested largely exceeds the income derived from the real estate aforesaid; that the prices received from said land upon the sales aforesaid weré full and fair, and said sales were for the best interest of all parties interested in said property; that after the contracts of sale and conveyances as aforesaid, L. M. Humphrey, who had contracted to purchase a part of the property bought by J. F. Thompson and associates, declined to take deed for same and pay the purchase price, alleging that the said property was affected by a contingent remainder, and thereupon a test suit was brought in the name of J. F. Thompson et al. versus L. M. Humphrey et al., and same was carried to the Supreme Court of North Carolina; that, as will be seen by reference to the opinion of the Supreme Court in said action, said Court held that there are outstanding contingent interests in said property, and that plaintiffs were, or are, the owners of a defeasible fee in said property; that the parties hereto are all the persons and parties in esse that have any interest, present or prospective, in said land; that they desire that the purchasers of said property have a good and indefeasible title to the same; that said contracts, agreements, and sales were made for reinvestment.</p> <p>That the prices offered and paid are full and fair, and were at the time same were entered into; that it is now for the best interest of all parties concerned, and especially the devisees and legatees under the last will and testament of B. J. Fisher, deceased, that said contracts, agreements, and sales be made, confirmed, and approved by this court, and that the proceeds thereof, or purchase money, be invested as provided by Revisal of 1905, sec. 1590, and amendments thereto.</p> <p>And the court finding these facts to be true, it is now, upon motion, ordered, adjudged, and decreed that the sale and conveyance of the property, described in paragraph 14 of the petition, to the American Exchange National Bank at the price of $135,000 be and the same is hereby in all respects approved and confirmed; and that the sale of the property, ■described in paragraph 15 of the petition, to J. F. Thompson, J. E. Stockwell, C. L. Stansbury, and J. E. Faulkner be and the same is hereby in all respects confirmed and approved; and that it is for the best -interest of all persons concerned, and particularly the contingent remainder-men and devisees under the will of B. J. Fisher, that said property be sold and said proceeds be reinvested as provided by Revisal of 1905, sec. 1590; and to this end Charles A. Hines is hereby appointed a commissioner to execute and deliver deeds conveying to the respective purchasers the property described in the petition, absolutely in fee simple, forever free and clear from all right, title, and interest of all parties in connection therewith, including- life tenants, vested remaindermen, and contingent remaindermen, and all right, title, and interest of all of the devisees and legatees under the last will and testament of B. J. Fisher, deceased.</p> <p>And that the proceeds from said sale be reinvested as provided by law; and that the said Isabella Fisher be and she is hereby declared and designated as trustee to hold said funds as at present invested, subject to the further order of this court as to reinvestment; that she pay the interest and income from said mortgages, stocks, and bonds to herself individually, after payment of taxes and other costs, and the principal she shall hold intact during her life, so that same may be paid, at her death, to the persons entitled thereto under the will of B. J. Fisher, deceased; that to this end she may loan said money upon first mortgage on real estate in Guilford County, or invest the same in bonds of the United States, the State of North Carolina, or Guilford County.</p> <p>That she shall hold and collect the notes and deeds of trust given her by I. F. Thompson et al. for $14,500, and notes and other deeds of trust may be substituted therefor as provided in the original deed of trust, and the new notes thus substituted shall be made payable to Isabella Fisher, trustee or administratrix.</p> <p>And it is further ordered that the cost of this action, to be taxed by the clerk, and including a fee of $100 to O. C. Cox, guardian ad litem, shall be x>aid by the XDetitioners herein. . P. A. McElboy,</p> <p> Judge Presiding. </p> <p>And it ajipearing further that Charles A. Hines, commissioner, ap-XDointed for the x>urpose, had tendered jdaintiff a fee-simple deed for the property pursuant to said decree. His Honor, Judge Webb, at said December Term, 1921, entered judgment as follows:</p> <p>This cause coming on to be heard at December Term, 1921, of Guil-ford Superior Court, before the Honorable J. L. Webb, judge juesiding, a jury trial having been waived, and being heard by consent upon the facts alleged in the comxffaint, and either admitted or not denied in the answer, and upon the entire record in the case of “Isabella Fisher et al. v. the unborn children of Olivia Maude Fisher et al.,’1 summons wherein was issued from said court on or about 9 March, 1920, and uj>on the agreement of the |>arties that, if the title in plaintiff to the land in controversy is now a good and indefeasible title in fee simple, jdaintiff shall take nothing by its action, but shall retain said land, but that, if said title is not now a good and indefeasible title in fee simple, plaintiff shall reconvey to defendants said land without covenants, and that defendants shall thereupon cause to be canceled of record the deed of trust executed by plaintiff to R. G. Yaughn, trustee, and tbe mortgage executed to defendants by plaintiff, as set out in tbe contract of 9 September, 1919, attached to tbe complaint as Exbibit A and returned to plaintiff its note for $22,000 to Isabella Fisher and her children and its note for $5,000 to défendants and pay to plaintiff tbe sum of $9,300, with interest thereon from 9 August, 1919, together with all interest, recording fees, insurance, and taxes paid on said land by plaintiff, as set out in said contract, and otherwise comply with said contract, damages, in every particular, if any, not to exceed $100, and that plaintiff shall pay to defendants rent for said land at the rate of $90 per month from 1 August, 1919; and</p> <p>The court being of the opinion and finding that plaintiff is now seized of a good and indefeasible title in fee simple in and to the lands in controversy, to wit, the land described in deed recorded at page 287 of Book 327 of the office of the register of deeds of said county.</p> <p>It is now, therefore, considered, ordered, and adjudged by the court that plaintiff take nothing by its action, and defendants go hence without day and recover of plaintiff their costs of action, to be taxed by the clerk.</p>

Appeal by plaintiff from WebbJ., at September Term, 1920, of Geabcam. Civil action for the recovery of lands embraced in State Grant No. 2861, and located on the waters of “Little Snowbird” in Graham County. The plaintiff and the defendants all claim title to the land in controversy under State Grant No. 2861, entry 6748, issued to W. H. Herbert on 18 December, 1865.

Appeal by defendant from Brock, J., at tbe April Term, 1922, of CHEROKEE. Civil action to recover damages for an alleged negligent injury. Tbe plaintiff was injured while operating a “lay and sand belt” in tbe defendant’s furniture factory at Murphy, N. 0., on 14 August, 1920. He alleges that bis injury was due to tbe negligence of tbe defendant in failing to exercise ordinary care in undertaking to furnish him a reasonably safe place to work.

Appeal by defendant from Darnels, J., at September Term, 1921, of ALAMANCE. Plaintiff brought suit against the Piedmont Power & Light Company and the Alamance Railway Company to recover damages for the alleged negligent death of her intestate. The Alamance Railway Company operates an interurban street car line connecting Burlington, Graham, and Haw River, and the Piedmont Company owns a plant in which electricity is generated for running the cars.

Appeal by plaintiff from Finley, J., at February Term, 1922, of MECKXENBTJRG. Civil action, beard on demurrer ore tenus to tbe facts as alleged and admitted in tbe pleadings. Tbe pertinent facts being tbat in July, 1921, plaintiff, while standing on a sidewalk of a street or alley in tbe city of Charlotte was run into by a truck negligently driven by an employee of tbe city, and in excess of speed permitted by tbe statute law directly controlling tbe matter, 0.

Appeal by defendant from Long, J., in habeas corpus proceedings-instituted and beard before bim at chambers, 18 April, 1922, from Iredell. Cause presented on writ of certiorari, duly issued from tbis Court, to review a decision of Long, J., on petition of Sherrill Harris. From perusal of the record, it appears that under.0. S., cb. 27, subch. 4, as amended by Laws 1921, cb. 110, a recorder’s court was established for Iredell County.

Appeal by plaintiffs from Shaw, J., at the February Term, 1922, of BtjNCOMbe. Oivil action, beard on return to preliminary restraining order. Tbe action, instituted by plaintiffs, citizens and residents of Swannanoa Consolidated School District, in said county, seeking to restrain defendants, from making a bond issue of $50,000 of said district, pursuant to an election of the voters, and under Public-Local Laws 1915, ch. 722.

, at April Term, 1922, of Buhcombe, the cause having been removed from Cherokee by consent. Civil action to recover damages for alleged breach of warranty title. The parties waived a trial by jury, and agreed that the court, after hearing the evidence and the argument, should answer the issues. The plaintiff introduced in evidence the following: 1.

Appeal by defendant from Brock, J., at January Term, 1922, of Haywood. Civil action, tried on 21 April, 1920, tbe defendants and tbe Kroeler Manufacturing Company made tbe following contract; J. T. GbeeN Lumbeb Company, Tryon, N. C. Kroeleb Manueactubing Company, Naperville, Ill. Shipping information given from Naperville 80% draft attached. At once.

Appeal by plaintiff from Brock, J., at January Term, 1922, of Haywood. Proceedings to establish a cartway over lands of defendant, under Public-Local Laws 1921, ch. 291, beard on appeal from action by board of county commissioners dismissing the petition.

Appeal by plaintiff from Brock, J., at the Spring Term, 1922, of SwaiN. Civil action, brought by tbe plaintiffs against W. M. DeHart, sheriff of Swain County, to recover damages for the unlawful attachment of certain property claimed by them. One W. E. Coley, prior to this time, had been operating a “carnival show” in some of the western counties of this State.

<p>Appeal by plaintiff from Devin, Jat tbe October Term, 1921, of ONSLOW.</p> <p>This action was brought to recover a tract of land containing seventy-two acres, more or less, which is described in the amended complaint, and the timber thereon, the plaintiffs alleging that the plaintiff M. L. Parker is the owner of the said land, and the Dill-Cramer-Truitt Corporation is the owner of the timber on the same.</p> <p>The defendants answered and denied the ownership by plaintiffs, as alleged, of the land or the timber thereon. It appears that the admitted source of title on both sides was William S. Hill, who formerly owned the disputed land, and who conveyed it, by good and sufficient deed, dated 30 November, 1821, and duly registered, to- Edward Ward, who died, leaving a last will and testament, dated 12 August, 1834, in and by which be devised tbe said tract of land to bis sister, Fanny Mumford, for and during ber life, and at ber death to bis nephew, Edward M. Mumford. That Fanny Mumford died, and Edward M. Mumford then became seized and possessed in fee simple of tbe said tract of land. Tbe defendants allege, in this connection, and in answer to tbe plaintiffs’ allegations in this respect, that while Edward M. Mumford was thus tbe owner of tbe tract of land, a judgment was duly rendered against him in tbe Superior Court of Onslow County, and an execution was duly and regularly issued against him, to tbe sheriff of said county, one E. Murrill, who duly and regularly levied tbe same upon tbe lands devised by Edward Ward to Edward M. Mumford, and after due advertisement the said sheriff sold said land as provided by law on 1 May, 1869, conveyed tbe same, as sheriff, by deed to L. W. Humphrey and E. S. Parker, as appears by tbe registry of tbe said deed, “and that tbe said Humphrey and Parker did at once take possession of tbe same thereunder, and did exercise and use said possession under and by virtue of tbe said deed up to all tbe boundaries thereof as set out in tbe aforesaid deed from Hill to Ward, and that thereafter E. S. Parker and wife conveyed to L. W. Humphrey all their right, title, and interest in tbe above described Hill-Ward lands, and that L. W. Humphrey did thereafter, to wit, on 11 March, 1870, convey all of tbe land (which is described in tbe deed from William S. Hill to Edward Ward) to one R. W. Ward, and by mesne conveyances these defendants are now tbe owners of all tbe interest of tbe aforesaid parties in and to tbe above described lands, as well as tbe other lands described in deeds from other parties, all of which together comprise tbe lands known as tbe ‘Town Point Plantation,’ and conveyed by tbe defendant Charles M. Warner to tbe defendant C. C. Coddington, and tbe defendants, according to their respective rights among themselves, are tbe absolute owners in fee simple thereof.”</p> <p>Plaintiffs allege that while Edward M. Mumford was tbe owner of tbe land devised to them, be conveyed twenty (20) acres of tbe land to Reuben Everitt by tbe following description: “Tbe certain tract or parcel of land lying and being in tbe county of Onslow, bounded on tbe west side by Lewis Creek, and entirely surrounded on all other sides by tbe lands of tbe said party of tbe second part, known as tbe Everett land, tbe aforesaid parcel of land being near tbe Montfort mill seat, containing 20 acres, more or less.” That by mistake of tbe draftsman tbe word “west” was inserted for “east,” and that tbe description of tbe 20 acres should read as follows: “Tbe certain tract or parcel of land lying and being in tbe county of Onslow, bounded on tbe east side by Lewis Creek, and entirely surrounded on all other sides by tbe lands of tbe,said party of tbe second part, known as tbe Everett land, tbe aforesaid parcel of land being near tbe Montfort mill seat, containing 20 acres, more or less.”</p> <p>Tbe description in the sheriff’s deed to Humphrey and Parker is as follows: “Bounded on the north by New River, on the wejst by Lewis Creek, then following calls for certain adjoining lands, containing 1,300 acres, more or less, and known as ‘Town Point Plantation.’ ”</p> <p>The case was referred to Hon. E. K. Bryan, and the referee made his report to the court, in which he stated separately his findings of fact and conclusions of law, and without now stating what they were, we may say generally that he concluded, and so reported, that the plaintiffs were not entitled to recover, but that defendants are the owners of the land in dispute between them. The judge, upon exceptions by plaintiffs, approved and confirmed the referee’s findings of fact and conclusions of law.</p> <p> </p> <p>Among other things, the referee found:</p> <p>1. That the description contained in the deed from Reuben Everett to John Shepard, heretofore referred to, did not convey to John Shepard the 72 acres in dispute in this action, and that the parties intended the lines of “Town Point Plantation,” as shown on the map hereto attached, from 11 to 13, to 10, to 14, to 15, to 16, to 17, to 18, to 19, to 7, thence to 6, as the bounds of the deed from Reuben Everett to John Shepard, which said line is the line of the “Town Point Plantation” referred to in said deed; and, therefore, the deed from Reuben Everett to.John Shepard did not convey to John Shepard the 72 acres in dispute in this action. That the plaintiffs assert title to the land and timber respectively claimed by them, through mesne conveyance and inheritance from the said John Shepard. One of the boundaries of said land, pertaining to this case, being “on the east and south by Lewis Creek and the land known as the ‘Town Point Plantation,’ formerly the property of E. W. Mumford.”</p> <p>2. That “Town Point Plantation,” at the date of the judgments, levy, advertisement, and sale by the said Elijah Murrill, sheriff, and at the time he executed and delivered the deed to Humphrey and Parker, was a well known tract of land, and consisted of the lands within the bounds described in the deed from William S. Hill to Edward Ward offered in evidence, and that the lines, as called for in that deed, were the lines and boundaries of “Town Point Plantation,” and were known as such, and that said description is a specific description by metes and bounds and courses and distances, and that “Town Point Plantation” included within its bounds the lands in dispute in this action. And again, the referee found that the said sheriff levied said execution upon “Town Point Plantation,” and one house and lot in Jacksonville, N. C., and under due process advertised and sold “Town Point Plantation.” The judgment roll and entries were made part of the findings, the same as if fully set forth therein. .</p> <p>3. That the deed from Elijah Murrill, sheriff, to Humphrey and Parker was made by the sheriff in pursuance to judgments lawfully and legally obtained by the plaintiffs against the defendants mentioned therein, and that executions were duly issued to the sheriff upon said judgments, and in accordance with law and the command contained in said executions and the venditioni exponas, the sheriff levied upon, advertised, and sold the lands comprising “Town Point Plantation,” and made the deed heretofore mentioned. He also found from the evidence, which reveals just what lands constitute “Town Point Plantation,” it was the intent and purpose of said sheriff in making said deed to the purchaser, and in making his levy and sale to sell and convey to the purchasers all of the lands constituting “Town Point Plantation,” and that if, as a matter of law, the call for Lewis Greek as the western boundary in said deed does not of necessity make the creek entirely the western and northwestern boundary of the land conveyed, then “Town Point Plantation” is, and was intended as, the controlling description, and is quite definite, and said deed conveyed to the said Humphrey and Parker all of “Town Point Plantation,” and conveyed to said purchasers the legal title to the land in dispute by the courses mentioned in the Hill deed to Ward from .... to 12, to 11, to 13, to 10, to 14, to 15, to 16, to 17, to 18, to 19, to 7, to 6 on the map.</p> <p>4. Resides being found as a fact by the referee, it was admitted by plaintiffs, as reported by him, that “Town Point Plantation” included the disputed land or locus in quo.</p> <p>There are many other findings of the referee, and conclusions stated by him, which need not be stated.</p>

<p>Appeal by xolaintiff from Horton, Jat December Term, 1921, of ChowaN.</p>

<p>Contracts — Damages.</p>

<p>Appeal by defendants from Lyon, J., at November Term, 1921, of CeaveN, in an action to recover the face value of a promissory note.</p>

<p>Appeal by defendant from Devin, J., at August Term, 1921, of DupliN, in an action to recover damages for an alleged negligent burning of plaintiffs’ timber.</p>

, at December Term, 1921, of New HaNOvee. It appears that plaintiff, a citizen of this State, having a cause of action against the Orange Rice Mill Company, a foreign corporation, instituted this suit in the Superior Court of New Hanover County, and sought to establish jurisdiction by attaching the proceeds of a certain draft in the hands of the American Bank and Trust Company of 'Wilmington, N. 0., it being alleged that said funds belonged to the defendant.

Appeal by defendant from Lane, J., at November Term, 1921, of ANSON. This is an action to recover for 43,187 feet of lumber at $22 per 1,000 feet, delivered by plaintiffs to defendant, and accepted by them. To the complaint the defendants set up a counterclaim for breach of contract in failing to manufacture lumber of certain timber, and asking judgment for $13,938.66 damages.

<p>Appeal by defendant from Long, J., at January Term, 1922, of Guileoed.</p> <p>Civil action.</p>

Appeal by defendant from Daniels, J., at November Term, 1921, of LeNOIR, in an action to determine the true location of the boundary line between the lands of plaintiffs and the defendant.

Appeal by defendants from Brock, J., at October Term, 1921, of Buucombe, in an action, under C. S., 1743, to quiet title, or to remove a •cloud therefrom, and to have the plaintiffs declared to be the undisputed .owners of the lands described in the complaint.

Appeal by defendant from Brock, Jat November Term, 1921, of BuNcombe. The defendant was prosecuted for the unlawful manufacture of spirituous and intoxicating liquor. The officers found a still site five or six hundred yards from the defendant’s house — about 100 yards from his cornfield and 20 feet from his pasture, three or four barrels of beer, fermenters filled with beer, and a thumping keg used to put low wine in.

Appeal by defendant from Horton, J., at November Term, 1921, of PasquotaNK. The defendant was indicted in three counts: 1. Having in bis possession a quantity of intoxicating liquors for the purpose of sale, to wit, nine quarts of grape brandy. 2. ■ Transporting the same from one point within the State to another point in the State. 3. The receipt of the same in fifteen days. General verdict of guilty.

<p>CRIMINAL action, determined on special verdict before Ferguson, J., and a jury, at Fall Term, 1921, of Moore.</p> <p>The bill of indictment charged defendants in three counts:</p> <p>1. With unlawful manufacturing'of spirituous liquors.</p> <p>2. Unlawfully aiding in such manufacturing.</p> <p>■ 3. In an unlawful, attempt to manufacture, and setting forth the overt act, etc. Upon the evidence the jury rendered the following special irerdict:</p> <p>“In the above-entitled cause the jury rendered the following special verdict, to wit: That defendants, in June, 1921, placed a bag of meal in a swamp of Drowning Creek, Moore County, and at the same time and place nailed a coffee mill to a tree; that on 6 June, 1921, defendants placed two empty barrels in the swamp near said mill; that on 7 June, 1921, the defendants were arrested on a public highway near said swamp by a deputy sheriff, and the defendants had some meal and bran; that, at the time of being arrested, defendants stated to the sheriff that they intended to make some liquor out of said meal and bran; that defendants did not have a still, but stated that some one had promised to let them have a still later; that defendants intended to make some liquor, if they could get a still, but they never got a still and never made any liquor.”</p> <p>The above constitutes all the defendants did.</p> <p>If, upon the foregoing verdict, the Court is of the opinion that defendants are guilty, then the jury for their verdict say the defendants are guilty; but, if upon said special verdict the Court is of the opinion that the defendants are not guilty, then the jury for their verdict say that the defendants are not guilty.</p>

Appeals by relator and defendant from Shaw, J., at September Term, 1920, of Polk. Civil action, in tbe nature of a quo warranto, brought under O. S., 870, to determine tbe question of title to tbe office of sheriff of Polk County for tbe two-year period beginning in December, 1918, and ending in December, 1920. Tbe defendant and tbe relator were rival candidates for tbe office of sheriff of Polk County in tbe general election of 1918.

Appeal by defendant from Bryson, J., at tbe July Term, 1921, of SwaiN. Tbe indictment is for murder of one J. H. Eose, a prohibition agent of tbe Federal Government, while tbe latter was engaged in tbe effort to arrest tbe prisoner for alleged violation of tbe Federal, prohibition law.

CRIMINAL action, tried before Bryson, J., and a jury, at August Term, 1921, of Burke. Tbe defendant was prosecuted for tbe murder of Lillie Kincaid, bis wife, and from judgment pronounced on a verdict for murder in tbe second degree, be appealed. The defendant’s residence, which was in Chesterfield, five or six miles from Morganton, was occupied by the defendant, his wife, her mother, and the defendant’s brother, whose mental condition was abnormal.

CeimiNal action, tried, before Lane, J., and a jury, at July Term, 1921, of Catawba. Defendants were indicted for the murder of Homer Barringer. The State waived a verdict for murder in the first degree, and requested a verdict of murder in the second degree or for manslaughter. There was evidence tending to show, and it is admitted in the brief of the defendants, that Albert struck the deceased in the forehead with a rock, inflicting a wound which resulted in his death.

Appeal by 'defendant from Granmer, J., at November Term, 1921, of Lee. The defendant was indicted under C. S., 3409 for the unlawful and wilful manufacture of whiskey and for aiding, assisting and abetting parties, whose names are unknown to the jurors, in the said manufacture. Verdict of guilty.

<p>Appeal by defendant from Oranmer, J., at August Term, 1921, of' Chatham.</p>

Appeal by defendant from Cranmer, J., at October Term, 1921, of Chatham. Tbe defendant and J.-W. Mays were indicted for tbe manufacture of intoxicating liquor, and for aiding and abetting in sucb manufacture. Tbey were convicted, and after judgment pronounced tbe defendant Clark appealed. There was evidence for tbe State tending to sbow tbe following circumstances: Mays bad come from Durham and bad lived in Chatham for only two or three months.

Appeal by defendant from Crammer, J., at October Term, 1921, of CHATHAM. Tbe defendant was indicted under the statute in two separate counts, in that he had whiskey in his possession for the purpose of sale; and that he received more than a quart of it within fifteen consecutive days. John Burns testified for the State that he was a special deputy in Chatham County, and on 18 March, 1921, he went to the home of the defendant and searched his house and his barn.

Appeal by defendant from Crammer, J., at November Term, 1921, of Wathe. Criminal prosecution, tried upon an indictment charging tbe defendant with having willfully and unlawfully rented rooms in her bouse for purposes of prostitution in violation of Public Laws 1919, cb. 215.

Appeal by defendant from Horton, J., at August criminal term of Pitt. Tbe defendant was arrested on a warrant issued from the mayor’s court of Greenville, charging (1) possession of liquor for sale; and (2) charging the sale thereof to one Guy Catón; and was bound over to the recorder’s court.

Appeal by defendant from Devin, J., at January Term, 1922, -of FRANKLIN. Tbe defendant was indicted for tbe larceny of 238 pounds of leaf tobacco, tbe property of E. R. Grissom. There was a count for receiving tbe tobacco knowing it to bave been stolen. Tbe following is tbe material part of tbe State’s testimony : F. G. Avent testified tbat be was in Raleigb on 3 November, 1921, at tbe Union Warehouse.

Appeal by defendant from Bond, J., at January Term, 1922, of New HaNOVER. Tbe defendant was indicted for rape committed upon tbe person of Ruby Smith, and convicted, and

Appeal by defendant from Connor, J., at December Term, 1921, of New HaNoveb. Appeal by defendant from judgment on writ of habeas corpus. In October, 1919, the defendant was tried and convicted in recorder’s court of the city of Wilmington for violation of the prohibition laws, and sentenced to the roads for a term of twelve months.

Appeal by defendant from Devin, J., at November Term, 1921, of GRANVILLE. Tbe defendant was convicted on an indictment for manufacturing liquor. Tbe testimony for tbe State was that officers Hutchins, Hob-good, Walters, Bowling, and Newton, on tbe afternoon of 26 June, 1921, went out on Bearskin Creek, in Granville County, and found a still being operated by a white man and a negro. When tbe officers got witbin about 20 steps of tbem, botb ran.

Appeal by defendant from Kerr, J., at February Term, 1922, of Alamance. Defendant was convicted of violation of an ordinance of tbe city of Burlington.

PetitioN for habeas corpus, In re S. T. IIooTcer, beard before Lyon, J bolding tbe courts of tbe Eiftb Judicial District, Fall Term, 1921, at tbe courthouse in Greenville, N. 0., on 12 September, 1921; from Pitt.

Appeal by defendants from Harding, J., at January Term, 1922, of Eoesyth. The defendants were charged with stealing one diamond of the value of $700, the property of 1!. P. Orr, and for receiving the same knowing it to be stolen. The defendant Kate Hauser was found guilty of larceny of the stone, and Curtis Gentry guilty of receiving the same knowing it to be stolen.

<p>Appeal by defendant from Long, J., at October Term, 1921, of StTRRY.</p> <p>Indictment for manslaughter, caused by negligently running an automobile, thereby causing the death of one O. N. Swanson. 1</p> <p>There*was evidence on the part of the State tending to show that the Swansons, the father, O. N. Swanson, and son, Claude Swanson, driver, on the front seat, two daughters and a younger son on a rear seat, were traveling in a Mitchell car on the improved highway going north from Pilot Mountain to Westfield about three o’clock p. m. on 12 June, 1921.</p> <p>About four miles from Pilot Mountain, and on a curve in said road, a Ford, driven by the defendant and occupied by himself and other young men, had a head-on collision with the Mitchell car just at the curve, and in consequence of such collision Mr. O. N. Swanson was seriously injured and died soon afterwards. At the curve, the point of collision, the road was twenty-two feet wide. Immediately to its right was an embankment. The Mitchell car, going north, -was running to the right of the center of the road, within twelve or fifteen inches of the embankment. The Ford car, coming south, instead of taking the right at the curve, cut across the curve, and at the time of the collision was plainly on the right of way of the Mitchell car. The radiator of the Mitchell car showed that it was a head-on collision. After the collision (record, p. 7), “The Swanson car was something like a half foot from the bank; that is the right front wheel. The Jessup car something like 2% feet, probably three feet. The rear of the Swanson car was 2% feet from the bank and the rear of the Jessup car 4 or Where the cars were standing when I saw them, they were further towards West-„ field. I do not know where the cars had skidded; both cars were pointing toward the bank.” At the point of collision, the Ford car, if properly driven, would have had 15 feet of passage room to the right of the Mitchell car. There was a ro.ad called the Bryant road which entered the improved highway about opposite the point of collision.</p> <p>Cy Bryant testified (record, p. 9) : “I live about three hundred yards west of the place where the collision occurred. There is a road leading from my father’s bouse to the main road. At the time' of the collision, I was coming from my father’s house and got to the cherry tree where I saw two cars coming, both on the right, hugging the curve. I stopped about 30 steps from the highway. The Swanson car was going north, the Jessup car south. The Swanson ear pulled to the right, very near the bank; the Jessup car cut to the left right against Swanson, then I heard the crash. Charlie Jessup was driving. Claude Swanson was driving Swanson’s ear. I stepped the distance from where I stopped to the road, and it was thirty steps.”</p> <p>At the curve one could see from the south going north 127 feet. There is evidence that the defendant was drinking the day of the accident, and his reputation as a whiskey drinker was bad.</p> <p>There was evidence for defendant tending to show that the collision occurred at or near the center of the highway; that Charles Jessup was not drinking or under the influence of liquor on the occasion; and at or about the time of the occurrence the attention of the defendant was attracted by the approach of a third car, from a side road, and which was about to enter the highway at or near the point where defendant’s ear then was.</p>

Appeal by defendant from Long,J., at October Term, 1921, of Subby. The defendant was prosecuted on an indictment containing four counts, charging bim (1) with the unlawful sale of liquor; (2) with having liquor in his possession for the purpose of sale; (3) with unlawfully receiving liquor; and (4) with the unlawful transportation. His Honor instructed the jury upon the evidence relating to the second, third, and fourth counts. There was a general verdict of guilty.

<p>Appeal by defendant from Horton, J'., at November Term, 1921, of PASQUOTANK. '</p>

<p>1. Trials — Attorney and Client — Improper Remarks — Argument.</p> <p>A remark of the solicitor in an argument to the jury upon the trial of the defendant for the illicit manufacture of liquor, as to the appearance of the defendant, who had not become a witness, being typical of a blockader, is improper, and when not corrected by the judge when called to his attention, is reversible error.</p> <p>2. Same — Instructions.</p> <p>Where the solicitor has made remarks to the jury, in his argument before them, to the prejudice of the defendant in a criminal action, the judge may either correct them at the time they have been called to his attention, or afterwards in his charge to the jury.</p> <p>8. Same — Appeal and Error.</p> <p>Where the solicitor has gone outside of the evidence to make prejudicial remarks about the personal appearance of the prisoner on trial in a criminal action, and the judge, upon having it called to his attention, has stated he would correct it in his charge, his instruction in this case that the jury must confine itself to the evidence and not consider the perspnai appearance of the prisoner, is held, sufficient to remove the prejudice, such matters being left largely in the discretion of the trial judge, and it being for the defendant to offer prayers for instructions more full and explicit should he have so desired.</p>

<p>Appeal by defendant from Ferguson, J., at October Special Term, 1921, of Moore.</p>

<p>Appeal by defendant from Finley, J., at July Criminal Term, 1921, of RICHMOND.</p>

<p>Appeal by defendant from Bay, J., at tbe August Term, 1922, of MECKLENBURG.</p> <p>Indictment for. larceny of a Ford automobile, tbe property of one 0. W. Johnson.</p>

<p>1. Intoxicating Liquor — Spirituous Liquor — Evidence—Verdict—Motions —Nonsuit—Trials.</p> <p>Held,, the evidence in this case of the close relation and conduct of the two defendants indicted for violating the prohibition law, the location of the still on the land of B. and with pathway to his house, his furnishing ■ the wood for the still, found by the officers fired and surrounded with material for the distillation of liquor, and the acts and conduct of S. in relationship to the unlawful act, is upon defendants’ motion to nonsuit, sufficient to sustain a verdict of conviction against B. of “guilty of permitting a distillery to be erected on his premises and manufacturing liquor,” and against S., of “guilty of manufacturing liquor.”</p> <p>3. Appeal and Error — Rules of Court — Dismissal.</p> <p>A case on appeal will be dismissed in the Supreme Court when the appellant has not conformed to the rule requiring that it be docketed in a certain time before the call of the district, at the first term of the Supreme Court beginning after the trial, and has failed to apply for a certiorari on good cause shown.</p>

Appeal by defendant from Bay, Jat tbe November Special Term, 1921, of GastoN. Tbe indictment charged tbe defendant with tbe murder of Eli Pasour, bis father. Tbe State prosecuted only fo'r murder in tbe second degree •or manslaughter. The defendant admitted that he shot and killed the deceased with a pistol, and introduced evidence tending to show self-defense. Other circumstances relevant to the exceptions are stated in the opinion.

Appeal by defendant from McElroy, J„ at November Term, 1921, of Ieedell. Criminal prosecution, tried upon an indictment charging the defendant with murder. There was evidence on behalf of the State tending to show that J. Robert Dishman, accompanied by Yan Benfield, was traveling in a Ford car along a public highway in Iredell County when, late in the afternoon of Sunday, 18 September, 1921, be approached a horse and buggy standing near the edge of the road.

<p>Appeal by defendant from Broclc, Jat April Term, 1922, of RANDOLPH.</p>

<p>Evidence — Criminal Law — Forgery—Corroboration—Appeal and Error— Prejudice — New Trials.</p> <p>The defendant upon a trial for forgery offered evidence that he was a traveling salesman, and at the time and place charged was in another town, some five hundred miles distant, and in corroboration of his own and of that of others of his witnesses, offered as evidence an order signed by a customer at the latter place, and also testimony of his landlady there that the defendant and his wife had lodged at her hotel, identifying several checks he had given for their board. The court excluded the evidence as to the order for merchandise and testimony of the defendant’s witness as to the date and the period of time for which the checks were given: Held, the evidence rejected was competent as tending to prove a pertinent circumstance in corroboration of defendant’s testimony, and that of his other-witnesses, and its exclusion by the court was reversible error.</p>

Appeal by defendant Hall from Bay, J., at January Term, 1922, of Cherokee; and appeal by the State from arrest of judgment as to Garland Haney. When the case was called, the solicitor announced that he did not ask for a verdict of guilty for murder in the first degree.

Appeal by defendant from Kerr, J., at November Term, 1921, of ROBESON. On the bearing it was made to appear that, at July criminal term preceding, defendant was convicted or submitted to an indictment charging bim and three others with the crime of assault with intent to kill one Burnett.

Appeal by both parties from Brock, J., at April Term, 1922, of CHEROKEE. Civil action beard on exception to referee’s report. Tbe defendant Gentry was sheriff of Cherokee County from December,. 1914, to December, 1920, and executed oficial bonds with the defendant United States Fidelity and Guaranty Company as his surety. Suit was brought by the plaintiffs and pleadings filed. The case was. referred to S. ~W. Black, referee, before whom there was a repleader.

Appeal by defendant -from Shaw, J., and a jury, at December Term, 1921, of TeaNstlvaNia. Action to recover damages for negligently causing tbe death of ■plaintiff’s intestate. There was denial of liability and plea of contributory negligence, and on issues submitted the jury rendered a verdict for plaintiff assessing the damages.