Volume 184 — North Carolina Reports

Appeal by defendant from Allen, J., at January Term, 1922, of Pasquotanic. Tbis is an action of slander. Plaintiff alleged in bis complaint tbat be resides in Pasquotank County, and bas lived there since be was twelve years of'age, be now being fifty-two years old, and tbat be bas always borne a good character and reputation among bis neighbors and in the community where be made bis home, and that be deserved the same.

<p>Discovery — Evidence—Examination of Parties — Statutes—Appeal and Error — Parties.</p> <p>An affidavit in support of a motion in tbe cause, to allow tbe plaintiffs to examine tbe defendant adversely under tbe provisions of O. S., 900, showing that tbe defendant bad assumed to manage tbe estate of a deceased person of whom tbe plaintiffs were tbe heirs at law, under a paper-writing purporting to be a will, but which bad been set aside by tbe court upon caveat entered, and that this was the only available way in which certain information necessary in tbe action could be obtained, etc., is held, sufficient to sustain tbe order of examination allowed by tbe clerk and approved by tbe judge of tbe Superior Court, and defendant’s appeal is accordingly dismissed in tbe Supreme Court. Jones v. Guano Oo., 180 N. C., 319, cited and distinguished.</p>

Appeal by defendant from Bond, J., at April Term, 1922, of Oueeitucx. Controversy without action, submitted on an agreed statement of facts. Plaintiff, being under contract to convey certain lands to the defend-_ ant, executed and tendered a deed therefor and demanded payment of the purchase price, as agreed. The defendant declined to accept the deed and refused to make payment, claiming that the title offered was defective.

Appeal by defendant from Daniels, Jat February Term, 1922, of PasquotaNK. Tbe action is instituted by plaintiff, an employee of defendant company, to recover damages for physical injuries caused by tbe alleged negligence of defendant company in failing to provide a proper machine-with which to do plaintiff’s work, and in negligent failure to keep said machine in proper repair.

Appeal by plaintiffs from Bond, J., at Spring Term, 1922, of ChowaN. Controversy without action, submitted on an agreed statement of facts. Plaintiffs, being under contract to convey certain lands to the defendant, executed and tendered a deed therefor, and demanded payment of the purchase price, as agreed. The defendant declined to accept the deed and refused to make payment, claiming that the title offered was defective.

Appeal by defendant from Bond, J., at April Term, 1922, of ChowaN. The action is to recover damages for breach of warranty by defendant in the sale of a herd of cattle of said defendant, which were at the time running in the range in Alligator Township, Tyrrell County. There were also allegations in the complaint that said warranty was false and fraudulent on the part of defendant.

Appeal by defendant from Lyon, J., at May Special Term, 1922, of PasquotaNic. This action was brought to recover the value of thirteen “log chains” shipped by J. A. Reynolds & Brothers from Norfolk, Va., over the defendant’s line of railway, to plaintiff at Elizabeth City, N. C. Nineteen of the log chains were delivered to plaintiff at Elizabeth City, but the defendant failed to deliver the other thirteen chains, and for them the suit was broug'ht.

<p>Appeal by plaintiffs from Bond, J., at chambers in Elizabeth City, 28 July, 1922, dissolving the restraining order theretofore granted. From PasquotanK.</p>

Appeal by defendant from Horton, J., at June Term, 1922, of Edgecombe. Civil action to recover damages for loss and failure to deliver a shipment of goods. From a verdict and judgment in favor of plaintiff, the defendant appealed.

<p>1. Mortgages — Contract to Convey — Equity of Redemption — Dower.</p> <p>Tbe grantee in possession of land under a contract to convey bolds in tbe nature of an equity of redemption by mortgage, in wbicb bis wife, after bis death, is entitled to dower.</p> <p>2. Same — Possession—Widows—Limitation of Actions — Heirs.</p> <p>Tbe dower interest of tbe wife in tbe equity of redemption of lands formerly belonging to ber deceased busband, beld by ber in continued possession after bis death, is superior to tbe right of tbe husband’s heirs at law, but not adverse in tbe sense that it would start tbe running of tbe statute of limitations against them.</p> <p>S. Same — Children of First Marriage — Evidence.</p> <p>Tbe busband was in the' possession of land in tbe nature of a mortgagor, and after bis death bis wife by a second marriage continued thereon. Tbe mortgage was canceled out of tbe estate of tbe deceased busband, after bis death, and tbe mortgagee conveyed tbe land to bis children as heirs at law, some of them by tbe first and some by tbe second marriage: Held, tbe possession of tbe wife after tbe death of ber busband did not start tbe running of tbe statute of limitations, or ripen tbe title in ber by adverse possession as against tbe children of the busband by tbe first marriage. Tbe character of tbe wife’s possession under tbe evidence in this case at least raised a question for tbe jury.</p> <p>4. Trials — Argument of Counsel — Depositions Withdrawn — Approval of Court — Orders.</p> <p>A party to an action may not withdraw depositions be has bad taken from tbe files of tbe court without leave and an order from the court, and upon Lis so doing, the counsel for the adverse party may argue to the jury that the depositions were unsatisfactory to the party at whose instance they had been taken.</p>

<p>1. Trespass — Evidence—Verdict.</p> <p>Upon tbe trial of an action for assault upon tbe person and trespass upon tbe property of tbe feme plaintiff, there was evidence that tbe agent of tbe defendant called at tbe bouse to collect a deferred payment under a vendor’s lien upon a sewing machine, refused to wait therefor until the return of the plaintiff’s'husband, and resisted her efforts in opposition: Held, sufficient to sustain a verdict awarding damages to the plaintiff.</p> <p>2. Principal and Agent — Trespass—Torts of Agent — Damages.</p> <p>Where the defendant’s agent authorized to collect deferred payment under a vendor’s lien in the sale of a sewing machine, uses force in taking the machine away upon the nonpayment of the amount due, it is a tort performed in the course of the agent’s employment for which the principal is answerable in damages.</p> <p>S. Instructions — Statutes—Expression of Opinion of Judge — Prejudice— Racial Distinctions.</p> <p>Where the presiding judge instructs the jury, who are all white men, of their duty to give exact justice between a colored plaintiff and a white defendant, without considering the color line, but specifically and clearly disclaims any opinion of his own upon the facts in evidence, it is not objectionable, as an expression of an opinion by the judge, forbidden by the statute.</p>

Appeal by botb parties-from Bond, J., at February Term, 1922, of Beaueoet. Civil action for tbe recovery of damages for alleged trespass on land.

Appeal by defendant from Daniels, J., at May Term, 1922, of Dabe. Civil action to recover damages for an alleged breach, of contract. Upon denial of liability and issues joined, there was a verdict and judgment in favor of plaintiffs. Defendant appealed.

Appeal by plaintiff from Bond, Jat April Term, 1922, of Beaueokt. Civil action, tried and determined on tbe pleadings.

Appeal by defendant from Horton, J., at June Term, 1922, of Edgecombe. Plaintiff brought suit to recover $1.21 for loss or damage to goods in transit, and for a penalty of $50 for failure to pay the claim within the time prescribed by the statute. C. S., 3524. The defendant operates a railroad from Tarboro to and beyond Macclesfield, in Edgecombe County.

<p>Appeal by defendant from Horton, J., at April Term, 1922, of Edgecombe.</p> <p>Tbe action is to recover damages caused to plaintiff’s property by defendant in negligently permitting tbe city sewer or drains to fill up, thereby causing tbe surface waters in tbe city to flood tbe plaintiff’s property, and doing substantial damage to same. Denial of liability by defendant. Yerdict for plaintiff, assessing bis damages at $1,000.' Judgment on tbe verdict, and defendant excepted and appealed.</p>

Appeal by plaintiff from Allen, J., at June Term, 1922, of VaNce. Tbe plaintiff sued out a warrant before a justice of tbe peace and obtained judgment tbereon 12 November, 1919, for $131.07 against defendant for failure to deliver 75 bundles of cotton ties. From tbis tbe defendant appealed in apt time to tbe Superior Court.

Appeal by defendant from Galvert, J., at February Term, 1922, of JOHNSTON. This was an' action for the recovery of the amount stipulated in a beneficiary insurance certificate payable to the widow of the deceased member. She qualified as administratrix of the estate, but at the trial, by consent, the summons was amended by striking out the word adminis-tratrix, and the suit was prosecuted in her name individually, as beneficiary. C. S., 547.

Appeal by defendants from Allen, J., at April Term, 1922, of HERTFORD. Tbe first issue and tbe answer thereto are as follows: “1. Was tbe conveyance of tbe bouse and lot in Ahoskie, described in tbe complaint, from J. C. Newsome to Tbomas Newsome made witb tbe intent and purpose on tbe part of J. C. Newsome to binder, delay, or defraud bis creditors, or any of them? Answer: ‘Yes.’” Judgment for tbe plaintiff. Appeal by tbe defendants.

Appeal by defendants from Kerr, J., at chambers, 24 August, 1922, from Yastce.

Appeal by defendant from Horton, J., at April Term, 1922, of WASHINGTON. This is an action to recover damages for injuries to plaintiff, a passenger on one of the defendant’s trains, caused by the acts and conduct of the conductor.

Appeal by both parties from Bond, J., at May Term, 1922, of Beaufobt. This was an action of ejectment by plaintiff, wbo bad taken a deed from one Judkins, wbo, tbe defendants alleged, at tbe instance of Morgan Farrow, bad bought tbe land in for Farrow at a mortgage sale under a mortgage executed by Farrow.

Appeal by defendant from Horton, J., at January Term, 1922, of WASHINGTON. Plaintiff J. J. Johnson boarded the defendant’s train on 10 July, 1920, at Bowden, N. O., en route to Norfolk, Ya., having purchased a ticket at Bowden to Rocky Mount. He was ejected from the train by the conductor at Dudley, N. C., for failure to produce his ticket. The jury found that the ejection was wrongful, and answered the issue as to compensatory damages $1,000.

Appeal by plaintiff from Allen, J., at January Term, 1922 of WahkeN. R. B. Davis died 28 September, 1914, and on 22 October, 1914, O. C. Davis, one of tbe defendants, qualified as bis administrator, with tbe other defendant, tbe Fidelity and Deposit Company, as bis surety. O. 0.

Appeal by defendant from Allen, J., at February Term, 1922, of Halifax.

Appeal by defendants from Ferguson, J., at Special April Term, 1922, of YaNCE. Civil action to cancel a voluntary deed of trust. On 1 December, 1920, tbe plaintiff, Mrs. Mabel K. Bell, witb tbe written assent of ber busband, since divorced, executed a voluntary deed of trust conveying all of ber property to E. S. McCoin, trustee, for tbe use and benefit of berself and ber four minor cbildren.

Appeal by plaintiff from Calvert, J., at tbe Fall Term, 1922, of NORTHAMPTON. Tbe action is on a promissory note for $843.78, given by defendant to tbe Guarantee Food Company of New York, vendor, dated 3 December, 1917, payable sixty days after date.

Appeal by defendants from Allen, J., at chambers in Smithfield, 16 August, 1922. This was.a restraining order in behalf of plaintiff, a junior mortgagee of J. C. Stancill, forbidding the defendants to sell under a senior deed of trust executed by J. C. Stancill and wife to secure an indebtedness to the defendant Parrish.

Appeal by L. D. Gulley, one of the creditors of the defendant company, and the petitioner in this cause, from a ruling of the receiver for said defendant, alleging divers specific liens on property at the time the receiver was appointed. The matter was heard on exceptions to the report of the receiver, before Allen, J., at August Term, 1922, of the Superior Court of Wayne, and the petitioner Gulley appealed.

Appeal by defendants from Granmer, J., at February Term, 1922, of CRAVEN. Civil action to recover damages for an alleged breach of warranty or guarantee in a contract for the sale of land.

Appeal by plaintiff from Granmer, J., at June Term, 1922, of Caetbket. Civil action to quiet title, subsequently converted into an action of ejectment, and to recover damages for an alleged trespass. At the close of plaintiff’s evidence, on motion of defendants, there was a judgment as of nonsuit, from which the plaintiff appealed.

Appeal by plaintiff from Calvert, J., at September Term, 1922, of CRAVEN. Held: in which an additional tax of 10 cents per $100 was voted, and the city of New Bern was authorized to issue $40,000 in bonds for said schools, of which amount $20,000 was issued, and, as provided in the act, the money was paid over to the board of trustees in such manner and for such uses and purposes in the building and equipment of…

Appeal by defendant from Allen, J., at March Term, 1922, of Halifax. Tbe issue was answered by tbe jury in favor of tbe plaintiff, and from tbe judgment rendered tbe defendant appealed.

Appeal by plaintiff from Calvert, J., at February Term, 1922, of HARNETT. On 4 October, 1917, the parties entered into a written contract for the purchase by the defendant of a heating and lighting plant. The plaintiff brought suit to recover the contract price of $206.25, with interest. The defendant admitted the execution of the written instrument, and alleged that the plaintiff verbally contracted to install the system at her home and had failed and refused to do so.

Appeal by defendant'from Ferguson, J., at February Term, 1922, of Pasquotank. Civil action for breach of contract of sale for seed potatoes.

Appeal by defendants from Coomor, J., at chambers, in August, 1922, from MabtiN. ' Controversy without action, to determine the validity of a school bond election, submitted on an agreed statement of facts. From a judgment declaring that the election in question was held without authority or warrant of law, the defendants duly excepted and appealed.

Appeal by defendants from Cranmer, J., at chambers, 2 March, 1922, from CbateN. Civil action to restrain the sale of land under a deed of trust. From an order continuing the injunction to the final hearing, the defendants appealed.

Appeal by defendant Fleming from Lyon, J., at March Term, 1922, of SAMPSON.

Appeal by defendant from Allen> J., at October Term, 1921, of Nash. The plaintiff is a corporation conducting a mercantile business at Spring Hope, and the defendant is a corporation' organized and existing under the laws of Wisconsin. On 6 February, 1919, the plaintiff gave the defendant’s salesman two orders for shoes. The first ($93.60) was shipped, payable 45 days net, on 11 April, and was paid by the plaintiff on 24 June.

<p>1. Banks and Banking — Principal and Agent — Cashier—Personal Interest —Implied Powers of Agency — Inquiry as to Agent’s Authority.</p> <p>A cashier of a bank has no implied authority, by virtue of his position, to bind the bank by a transaction with another, in which, with the knowledge of the other party, express or implied, he is acting for his own interest alone, and not that of the bank for which he is cashier; and where such third party relies upon a transaction of this character as a credit upon a note he owes the bank, the burden is upon him to show that such authority has been actually or impliedly given the cashier by the board of directors or other officers of the bank having this power.</p> <p>2. Same — Dual Agencies — Equity—Innocent Parties — Negligence.</p> <p>Where a cashier.of a bank accepts as a credit upon a note given to the bank, one given to a borrower by a concern which the cashier largely owns and controls, without the knowledge or consent of the directors or other proper officers of the bank: SeM, the borrower was put upon notice of the want of authority of the cashier to act for the bank in this respect, and he is not entitled to have such credit allowed upon his note to the bank.</p>

Appeal by defendants from Bond, J., at chambers, Elizabeth City, 20 May, 1922, from PasquotaNIC. John L. Hinton was a resident of Pasquotank, and died in 1909, leaving a will, which was duly probated and recorded in said county 29 January, 1910. His children, Mary E. Hinton, E. L. Hinton, C. L. Hinton, E. V. Hinton, W. E. Hinton, and Ida Sawyer were the sole beneficiaries under said will.

Appeal by defendant ice company from Crammer, J., at June Term, 1922, of Caeteeet.

<p>1. Bills and Notes — Notes — Negotiable Instruments — Fraud—Title— Acquisition by Original Payee — Holder in Due Course — Burden of Proof.</p> <p>Where the fraud of a payee of a negotiable note would render the instrument invalid originally in his hands, it will also render the instrument invalid in his hands when, with notice of and participating in the fraud, another has acquired the note by endorsement for value, and, in turn, has endorsed the same to the original payee for value; and the burden is upon the original payee in his action upon the note to show that-he had acquired the title as a holder in due course, when the defendant has shown the infirmity in the instrument. C. S., 3039.</p> <p>2. Bills and Notes — Notes — Negotiable Instruments — Fraud—Title-Original Payee — Holder in Due Course.</p> <p>Tbe payee of a negotiable instrument, that be bas procured by fraud, may not acquire a valid title by afterwards acquiring tbe same from a bona fide bolder in due course, wbo bad no knowledge of tbe infirmity of tbe instrument.</p> <p>S. Appeal and Error — Verdicts—Issues.</p> <p>Where a verdict, interpreted by reference to tbe pleadings, tbe facts in evidence and the charge of tbe court, bas given the appellant tbe full benefit of tbe positions be bas insisted upon in tbe determination of tbe issue submitted, tbe refusal of tbe court to submit tbe issue in tbe precise terms as tendered by tbe appellant, will not be held for reversible error.</p>

Appeal by plaintiff from Ferguson, J., at March Special Term, 1922, of Lenoir. Civil action to recover damages for an alleged negligent injury to plaintiff’s truck, caused by collision with defendant’s train. From a verdict and judgment in favor of defendant, the plaintiff appealed.

<p>1. Bills and Notes — Negotiable Instruments — Drafts—Intervener—Title —Burden of Proof.</p> <p>An intervener claiming tbe proceeds of a draft attached in the plaintifE’s action, in order to recover, must make out his claim and show title to the property attached.</p> <p>2. Same — Banks and Banking — Holder in Due Course — Prima Facie Case.</p> <p>Where it is shown that the draft, the subject of plain tiff's attachment, had been duly executed, made payable to the intervener and in its possession, it raises the presumption that the intervener became a holder in due course; and with the other evidence in this case: Meld, sufficient to establish a prima facie case of the intervener’s bona fide ownership and to leave the issue for the jury to determine, under a proper instruction.</p> <p>3. Same — Depositors—Instructions—Agency for Collection.</p> <p>The plaintiff attached the proceeds of a draft in the hands of a local bank for a debt against the defendant nonresident drawer, which had been sent by the intervener bank where the defendant deposited. The evidence raised the question as to whether the intervener was a purchaser in due course or merely received the draft for collection. The draft was endorsed to the intervener bank, and there was evidence that it had no authority to charge it back to the drawer, if unpaid, but was taken with other collateral for the defendant’s debt to it under a plan for substituting securities, etc.: Meld, it was correct to charge the jury that if the inter-vener bank was a purchaser for value without notice, it became prima fade the owner; but if by express agreement or one implied from the course of dealing, the intervener had a right to charge back the draft to the depositor, if unpaid, it was an agency for collection.</p>

Appeal by defendant from Devin, J., at May Term, 1922, of Wake. This was an action for the possession of an automobile with the ancillary remedy of claim and delivery. The plaintiff claimed the right to possession by virtue of a chattel mortgage executed to him by Carr E. Booker,, duly recorded in the office of the register of deeds of Wake to secure a note in the sum of $600, and interest, for money loaned, dated 1 November, 1920.

Appeal by plaintiff from Daniels, J., at January Term, 1922, of TYRRELL. Civil action. Tbe issues were answered as follows: “1. Are plaintiffs owners and entitled to possession of tbe lands described in tbe complaint? Answer: ‘Yes.’ “2. Did defendant Richmond Cedar Works wrongfully and unlawfully trespass upon same? Answer: ‘Yes.’ “3. What damage, if any, has plaintiff sustained? Answer: ‘One cent.’ ” Judgment for plaintiffs; appeal by defendant.

<p>Appeal and Error — Reversible Error — limitation of Actions — hands— Adverse Possession — Boundaries—Title—Intention—Instructions.</p> <p>While the mistake of tlie owner of land in using and occupying lands beyond bis fixed and established boundary line without the intention of claiming more than he has within the acknowledged confines of his deed is not such adverse possession as will ripen his title under our statutes of limitation; this principle does not apply when the owner claims a certain divisional line as his boundary, identifies it as such, and introduces evidence of his possession and claim thereto; and where such appears as the evidence in the case, with further testimony of the claimant, the plaintiff, that he had never intended to hold any land that did not belong to him, but had always claimed the locus in quo to the line he claimed as his own, as of right, it is reversible error for the Judge to charge the Jury on this testimony alone that they should find for the defendant if they should further find that the plaintiff had occupied the land beyond the boundary by mistake, and not intentionally.</p>

<p>1. School Districts — Elections—Bonds—Taxation.</p> <p>A graded school district, maintained under the general statutory powers given the county board of education, having a duly appointed committee, secretary, and treasurer, etc., is one functioning by legislative authority, and comes within the privilege and power given by statute to hold an election on a specified bond issue and levy a special tax for school purposes. Paschal v. Johnson, 183 N. C., 129, cited and applied.</p> <p>2. Same — Publication—Newspapers—Statutes.</p> <p>It is now made sufficient, by statutory amendment, so far as the newspaper publication is concerned, for a school district to publish a notice of an election to vote upon the issuance of bonds for school purposes and levy a tax therefor, in some newspaper published in the county, outside of the district, when no newspaper is published therein. Laws 1921, ch. 122.</p> <p>3. Same — Preliminary Notice.</p> <p>The preliminary notice of twenty days for a new registration for an election provided by O. S., 5926, applies, under the general election law, to an election called by a school district to vote upon the issuance of bonds by the district for school purposes, and a tax levy to provide for the same.</p> <p>4. Same.</p> <p>The failure of a school district to publish the preliminary notice for a new registration of an election to vote upon the issuance of school bonds and provide for tlie necessary tax levy according to O. S., 5926, does not invalidate tlie affirmative result of the election or affect the validity of the bonds or levy, when it appears that the new registration, as well as the election, had been given ample previous notice by publication in a newspaper circulating extensively in the district; by notice posted at the courthouse door, and three other public places therein; and that from a large vote polled only two electors had voted against the proposition, and it does not appear that any had been deprived of his opportunity to vote.</p>

Appeal by defendant from Daniels, J., at May Term, 1922, of CRAVEN. Civil action for alleged breach of contract on part of defendant company in failing to put in a sidetrack from main line of its road to tbe tobacco prize bouse of plaintiff, situate two hundred yards from defendant’s road. On denial of liability, the cause was submitted and determined by the jury on the following issues' “1. Did plaintiff and defendant enter into a contract, as alleged in the complaint?

Appeal by tbe individual defendants from Lyon, J., at June Term, 1922, of LeNOIR.

Appeal by defendant from Devin, J., at May Term, 1922, of Wake. Civil action to recover damages for an alleged negligent delay and injury in transit to a car-load shipment of livestock, consisting of 49 bogs and one pony. Upon denial of liability and traverse thus joined, tbe following issues were submitted to tbe jury and partly answered by tbem as indicated: “1.

<p>1. Bills and Notes — Negotiable Instruments — Banks and Banking — Purchase — Due Course.</p> <p>Where one of two partners has given his individual note to the other to be discounted at a bank, and the one thus acting as the agent for the other has placed the proceeds to the partnership credit, and has checked it out for partnership purposes, in the firm’s name, the maker of the note is guilty of negligence in not notifying the bank of his partner’s want of authority to thus check out the funds until after the maturity of the note; and the bank, being an innocent purchaser for value and in due course may recover on the note, irrespective of the question of whether the maker of the note had received benefit from the transaction.</p> <p>2. Same — Evidence.</p> <p>Upon the question of whether a bank, discounting a note of an individual partner, at the instance of his copartner, was a purchaser in due course for value, without notice, it is competent for the cashier, as both substantive and corroborative evidence, to testify that the partner making the transaction informed him at the time that the proceeds were the contribution of the maker to the partnership funds, and in contradiction of the maker’s testimony of the lack of the authority of his partner to place the proceeds to the partnership credit, and check on it in the partnership name for partnership purposes, upon which he relies in defense to the bank’s action upon the note.</p> <p>3. Same — Principal and Agent — Partnership. -</p> <p>Where'a partner makes his individual note and gives it to his copartner to have discounted at a bank, it is with the ordinarily implied authority for the partner so acting to place the proceeds to the partnership credit, and check it out under the partnership name for partnership purposes; and the bank discounting the note without notice of the maker’s claim to the contrary is a purchaser in due course, and may recover in its action upon the note against the maker.</p> <p>4. Appeal and Error — Instructions—Reversible Error.</p> <p>Where the court has erroneously instructed the jury that an innocent holder for value of the note sued on, and without notice of its infirmity, is not entitled to recover if the defendant has not received value therefor; a correct instruction elsewhere appearing in the charge is contradictory and does not relieve the error from prejudice.</p>

Appeal by defendant from Lyon, J., at chambers in Elizabethtown, 30 December, 1921. In this action the plaintiffs recovered judgment for $7,690, with interest, as the purchase price in a contract to purchase certain land. The judgment was declared to be a specific lien upon the land described in the complaint, and a commissioner was appointed to sell the land and report to the court, and there were directions in the judgment as to the application of the proceeds of the sale.

<p>Appeal by plaintiff, from Connor, at April Term, 1922, of ROBESON.</p>

Appeal by J. R. Cannady, surviving partner of Gibson & Cannady, plaintiff, from Daniels, J., at March Term, 1922, of Dueham. ' This case was heard by Daniels, J., upon agreed facts. The only parties before the court are J. R. Cannady, surviving partner of the firm of Gibson & Cannady, and the defendant company.

Appeal by plaintiff from Harding, J., at chambers, 30 March, 1922, from EocitiNGHAM.

Appeal by realty company from Grcmm&r, J., at February Term, 1922, of Chaven-.

Appeal by defendant from Lyon, J., at April Term, 1922, of ONsnow. Civil action to recover damages for tbe seduction of tbe plaintiff. When the plaintiff was called as a witness tbe defendant objected to ber examination on tbe ground tbat sbe was incapable of understanding tbe obligation of an oatb and mentally incapable of testifying to tbe occurrences set forth in the complaint.

Appeal by garnishee from Oranmer, J., at December Term, 1921, of New ITaNOvee. Civil action to recover of defendant, the Eades Hay Company, $2,125 damage for shortage on shipment of hay sold by said company to plaintiff, said Ea.des Hay Company, being a nonresident corporation, service of summons was had only by publication.

Appeal by defendant from Devin, J., at September Term, 1922, of New Hanover. Civil action, beard on motion to consolidate the present action witb another now appearing on the docket of the Superior Court of New Hanover County, in which J. P. Temple is plaintiff and the Eades Hay Company defendant. The present is a suit by plaintiff against defendant to recover certain moneys collected by defendant bank on drafts sent to said defendant by plaintiff bank.

<p>1. Constitutional Law — Racial Discrimination.</p> <p>EelS,, on this appeal, there was no evidence to sustain an allegation that the constitutional inhibition against race discrimination in the distribution and use of the public school funds had been violated.</p> <p>2. Constitutional Law — School Districts — Local Legislation — Statutes.</p> <p>Since the enforcement of the amendment to our Constitution, Art. II, sec. 29, a special act of the Legislature to establish or change the lines, etc., of a school district, and any proceedings under it, are null and void.</p> <p>3. Taxation — School Districts — Statutes — Limitation of Powers — Void Levy.</p> <p>The power of the county board of education to levy a tax under an election called by the county commissioners, for the purpose of erecting, enlarging, altering, and equipping buildings, etc., for school purposes, under Public-Local Laws of 1920, ch. 87, see. 1, Extra Session, is expressly therein limited, “unless or until” the qualified eléctors have voted for the proposition; and a levy of such tax contrary to this restriction as to the time thereof is void under the express statutory inhibition.</p> <p>4. Same — Void Levies — Elections—Ratification.</p> <p>Where the levy of a tax by a county for school purposes is originally invalid because in violation of an express provision of the statute under which the levy is proposed to be made, requiring that the levy shall not be made unless and until the approval of the voters at an election held, etc., and which has never been modified or changed, the subsequent approval thereof by the voters cannot have the effect of relating back and curing the defect, or render the levy a valid one.</p> <p>5. Injunction — Taxation—Acts Accomplished — Statutes—Remedy of Taxpayer.</p> <p>Injunctive relief is not available to the taxpayers of a county, where a tax levy for school purposes has been made, when it appears that under the levy complained of the moneys have been raised and distributed to the branches of government entitled thereto, some of which are not parties to this suit. Semble, the only remedy for the injured taxpayers is to pay the illegal tax under protest and sue to recover the same, as provided by statute. O. S., 7979.</p>

Appeal by plaintiff from Bond, J., at May Term, 1922, of New BlANOVER. Civil action to recover damages for the intestate’s death, alleged to have been caused by tbe negligence of tbe defendant while operating an automobile-on a public highway. The first issue, Was the death of the plaintiff’s intestate caused by the negligence of the defendant, as alleged in the complaint? was answered in the negative. Judgment, and appeal by plaintiff.

<p>1. Coui’ts — Attachments—Amendments oí Warrant — Process—Service— Statutes.</p> <p>A warrant of attachment served by the sheriff of the county and addressed to “any constable or other lawful officer of the county,” may be allowed by the court to be amended to conform to the statutory requirement. O. S., 547.</p> <p>2. Interpleader — Title—Parties—Merits—Right of Interpleader — Appeal and Error.</p> <p>An intervener, claiming title to the funds in litigation, is only interested in the question of title as it affects his claim, and cannot be prejudiced upon the refusal of the court to permit him to interfere in the matter in litigation as it affects only the rights of the original parties.</p> <p>3. Banks and Banking — Interpleader—Drafts—Burden of Proof — Agency for Collection — Questions of Law — Trials.</p> <p>Where the proceeds of a draft have been attached in the hands of a local bank, a forwarding bank that intervenes and claims independent title has the burden of proof of its right to the fund; and where the draft has not thereon been endorsed to it, and there is no evidence in its behalf to show that it had not reserved the right to charge it against the drawer’s account, if returned unpaid, but only a conclusion of law to that effect testified to by an officer of the intervener, a judgment against it by the trial judge, as a matter of law, will be upheld on appeal, upon the principle that the intervening bank has not disproved it was an agency for collection only.</p> <p>Stacy, J., did not sit.</p>

<p>Appeal by defendant N. B. Outlaw from Ferguson, J., at March Special Term, 1922, of Lenoie.</p> <p>Action to recover a sum of money as owelty, for the purpose of equalizing a partition of lands among tenants in common, and to have the said sum made a charge on the property from which it is alleged to be due.</p> <p>1. John E. Outlaw owned the land, situated in Trent Township, and adjoining the lands of G-. W. Eouse and others, and at his death it descended to his three brothers as his only heirs at law, namely, N. B. Outlaw, James A. Outlaw (the father of defendants, Lloyd Outlaw and Mrs. Eva Eouse), and the plaintiff Mangus Outlaw.</p> <p>2. That the tenants in common executed to eacb other deeds for their several portions of the land, the deed of N. B. Outlaw and James A. Outlaw to the plaintiff reciting that the tract described in it contained 160 acres, which were otherwise described merely by metes and bounds, the deed of plaintiff and James A. Outlaw to N. B. Outlaw reciting that the said tract of land contained 150 acres, and the deed from plaintiff and his brother N. B. Outlaw recited that the tract therein described contained 130 acres, all the tracts being otherwise described by metes and bounds.</p> <p>3. That by mistake of the surveyor and the mutual mistake of the parties, the tract conveyed to plaintiff for his share contained 111 71/100 acres instead of 160 acres. That plaintiff, on 14 December, 1918, conveyed his tract of land to one K. E. Sutton, who contracted with the Atlantic Coast Realty Company to sell the same for him, K. E. Sutton, and when it was being surveyed for that purpose the mistake as to the acreage was first discovered, as above set forth.</p> <p>4. When the mistake was thus revealed, it was agreed between plaintiff and E. E. Sutton to rescind their transaction, the plaintiff surrendering all papers or liens taken by him from Sutton for the balance of the purchase money due to the plaintiff, and the latter paying back to Sutton the part of the purchase money he had already received.</p> <p>5. Certain allegations appear in the complaint, which, with the prayer for judgment, are as follows: that the said 48.29 acres of land, the deficiency recited as aforesaid, is reasonably worth the sum of $3,138.85, one-half of which amount plaintiff is entitled to recover from the defendant N. B. Outlaw, and the other one-half thereof from the defendants Lloyd Outlaw and Mrs. Eva Rouse. That the defendant Lloyd Outlaw has, pending this action, conveyed his interest in said lands to his sister, the defendant, Mrs. Eva Rouse, who now claims title to the entire tract, so quitclaimed as aforesaid to her father, the said James A. Outlaw, deceased. That the defendant N. B. Outlaw, prior to the institution of this action, conveyed the share of said land so conveyed to him as aforesaid to his son, N. W. Outlaw. Wherefore, the plaintiff demands judgment: (1) That the portion of the lands so quitclaimed and conveyed as hereinbefore recited to James A. Outlaw, deceased, be charged with the payment of one-third of the value of the deficiency hereinbefore recited, that is, one-third of the value of 48.29 acres of land, that is, with the amount of $1,046.28, and that said amount be declared a lien thereon. (2) That the share quitclaimed and conveyed to N. B. Outlaw be-charged with the payment of one-third of the value of the deficiency hereinbefore recited, that is, one-third of the value of 48.29 acres of land, that is, with the amount of $1,046.28, which amount be declared a lien thereon. (3) For judgment against the defendant N. B. Outlaw for $1,046.28, the value of one-third of said 48.29 acres, the deficiency hereinbefore recited, upon the payment of which amount by said N. B. Outlaw the lien against the share so quitclaimed and conveyed to him to be discharged.</p> <p>6. An answer was filed by defendants, and issues made up, upon which the jury returned the following verdict:</p> <p>“(1) Did the plaintiff accept the deed for the portion of land conveyed to him and the money paid to him by reason of a mutual mistake between himself, N. B. Outlaw, and J. A. Outlaw, deceased, as alleged? Answer: ‘Yes.’</p> <p>“(2) If so, what sum is the plaintiff entitled to recover of the defendant N. B. Outlaw? Answer: ‘$680.’</p> <p>“(3) If so, what sum is the plaintiff entitled to recover of the defendant, Mrs. Eva Eouse? Answer: ‘$108.’”</p> <p>7. Judgment was entered upon the verdict for the sums found to be due, and they were severally charged as liens upon the t.wo shares, that allotted to N. B. Outlaw- and the share allotted to Mrs. Eva Eouse, respectively, for the sums found to be due by each of them.</p> <p>The defendant N. B. Outlaw assigned the following errors:</p> <p>(1) To so much of the judgment as declares that the share of land belonging to N. B. Outlaw was subject to a lien in favor of the plaintiff for the payment of $680, with interest.</p> <p>(2) For that said attempted lien declared by judgment could in no view bind any one except N. B. Outlaw, and could not bind purchasers.</p> <p>He thereupon appealed from the judgment.</p>

<p>Appeal by defendant from Devin, J., at April Term, 1922, of Wake..</p>

Civil action, beard on return to preliminary restraining order, before Connor, J., on 12 June, 1922, from CumbeelaND. Tbe action is to challenge the formation of Seventy-first Consolidated School District in said county. To restrain a proposed bond issue, and the levying of a special tax to provide for same, pursuant to an election held in said district.

<p>Appeal by plaintiff from Connor, J., at tbe Fall Term, 1922, of CUMBERLAND.</p> <p>Civil action to recover on an insurance' policy on an automobile, covering risk of destruction by fire and lightning. At tbe close of tbe testimony, and on motion made in apt time, there was judgment of nonsuit, and plaintiff excepted and appealed.</p>

<p>1. Judgments by Consent — Contract—Consideration—Pleadings.</p> <p>A consent judgment may be made effective and. extended to any matters tbat may be agreed upon by tbe parties tbat are witbin tbe general jurisdiction of tbe court, and tbe position is untenable tbat, as in case of an adversary judgment, it is restricted to tbe matters presented in tbe pleadings. .</p> <p>2. Railroads — Carriers — Right of Way — Consent Judgment — Depot Terminals — Heirs at Law — Reverter.</p> <p>In plaintiff’s action to recover from a railroad company upon a consent judgment entered in a suit brought by their ancestor to compel tbe running of trains over tbe lands of her predecessor in title, to an old depot, tbe terminal lands having been acquired by tbe defendant by mesne conveyances in fee, a judgment was entered by tbe court upon tbe consent of tbe parties, tbat purported, in express terms, to apply to and include both tbe lands used for a right of way exclusively, and for tbe location of a station: Held, tbe term “right of way,” applied to railroad companies, may include tbe depot site and grounds ordinarily used in tbe operation of a railroad; and tbe judgment in question evinced tbe intent of tbe parties that tbe depot site and grounds should revert upon tbe final cessation of its use for railroad purposes; and tbe plaintiffs in tbe present action, as heirs at law of tbe plaintiff in tbe former one, are entitled to recover it. This position is fortified by tbe fact tbat tbe locus in quo was tbe only land acquired by the defendant by mesne conveyances from tbe predecessor in title of tbe plaintiffs’ ancestor.</p> <p>Clark, C. J., did not sit.</p>

Appeal by plaintiffs from Bond, J., at chambers, 18 September, 1922, from BladeN. Held: and are therefore void. From an order denying the application for injunctive relief, plaintiffs appealed.

Appeal by plaintiffs from Bond, J., at chambers, 24 June, 1922, from BLADEN. Held: and are therefore void. From an order denying the application for injunctive relief, plaintiffs appealed.

<p>Appeal by defendant from Bond,, J., in habeas corpus proceedings, beard at December Term, 1921, of Wake.</p>

Appeal by plaintiff from Connor, J., at November Term, 1921, of Oolumbus. Civil action to recover damages for death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. ’ We will first state the material portion of the evidence, it being partly the defendant’s statement of it, but principally the part taken by us from the record itself.

Appeal by defendant from Bond,, J., at February Term, 1922, of New HaNover. This was an action brought by tbe plaintiff for tbe recovery of a certain sum of money due by contract, and secured by a crop lien, executed by tbe defendant to tbe plaintiff, for tbe purchase of certain fertilizers.

<p>1. Adjoining Landowners — Light and Air — Boundaries—Party Walls.</p> <p>The owner of lands in the business section of a city, unless otherwise restricted by his deed, may build upon his land to the line of a store building on the lands of an adjoining owner, though by so doing he will close the windows or openings of the owner on that side of his building, and to that extent deprive it of light and air.</p> <p>2. Same — Deeds and Conveyances.</p> <p>The legal implication that when the owner of lands conveys a part thereof he grants all those apparent and visible easements on the part retained which were at the time used by the grantor for the benefit of the part conveyed, and were reasonably necessary for its use, cannot be made effective against the contrary intent of the grantor as gathered by a proper interpretation of the deed.</p> <p>3. Deeds and Conveyances — Interpretation.</p> <p>A deed to lands will be so construed as to effectuate the intent of the parties as gathered from each and every related part.</p> <p>4. Same — Adjoining Landowners — Light and Air — Party Walls — Alleys— Easements.</p> <p>A conveyance of a part of the owner’s lands from a line running in the center of a dividing wall of his store building in the business section of a city, conveys to the grantee the right to build to that wall; and where the right to the permanent joint use of an alleyway running along this wall is also conveyed by or reserved in the deed, the conveyance or reservation of this right does not preclude the grantee from using the party wall by arching over the alleyway and preserving its proper use as such.</p>

Appeal by defendant from Granmer, J., at May Term, 1922, of Columbus. Civil action to recover damages for an alleged negligent personal injury. Upon denial of liability and issues joined, there was a verdict and judgment in favor of the plaintiff. Defendant appealed.

Appeal by plaintiff from Connor, J., at the May Term, 1922, of ■OumbeelaND. This was a special proceeding, commenced before the clerk of the Superior Court of Cumberland County, in which, the Greensboro Bank •and Trust Company, as guardian for certain minor beirs of one C. L. Bevill, claimed an undivided one-sixth interest in a lot of land in the ■city of Fayetteville, the remaining five-sixth being owned by the defendant, and asked for a sale for partition.

<p>Appeal by plaintiff from Oormor, J., at April Term, 1922, of ROBESON.</p> <p>Civil action to restrain tbe collection of a judgment of tbe Superior Court of Eobeson County, rendered in a case wberein Joe B. Bass was plaintiff and E. Pittman Barnes was defendant, and W. H. Murray surety on supersedeas bond.</p> <p>From an order denying tbe relief sought, tbe plaintiff appealed.</p>

<p>Appeal by defendant from Harding, J., at May Term, 1922, of Forsyth.</p> <p>Civil action to recover damages for an. unlawful assault upon plaintiff by defendant’s agents and employees in breach of the duty owed from defendant to plaintiff. There was evidence on part of plaintiff tending to show that in March, 1920, plaintiff was in and upon the premises of the railway station at Walkertown for the purpose of buying a ticket and taking the nest train to Walnut Cove on defendant road, and while there for the purpose, the agent of defendant made an unlawful assault upon plaintiff with an insulator, an inkwell, and an iron poker, inflicting severe wounds and bruises, from which he still suffers.</p> <p>There was evidence on part of defendant tending to show that plaintiff was not on defendant’s premises for the purpose of becoming a passenger, but was there as an idler and a loafer, making himself a general nuisance. That he refused to leave when ordered off, and before going or attempting to leave, and before any assault made upon him, plaintiff grossly insulted defendant’s agent, and in a manner well calculated to provoke the assault complained of.</p> <p>On issues submitted, the jury rendered the following verdict:</p> <p>“1. Did the defendant, the Norfolk and Western Railway Company, through its agent,- unlawfully assault the plaintiff, as alleged ? Answer: ‘Yes.’</p> <p>“2. What damages, if any, is the plaintiff entitled to recover therefor ? Answer: ‘$2,000.’ ”</p> <p>Judgment on verdict for plaintiff, and defendant appealed, assigning errors.</p>

Appeal by plaintiff from Finley, Jat July Term, 1922, of Ashe. Civil action to recover damages for tbe loss of plaintiff’s cow, alleged to bave been killed by tbe negligent operation of defendant’s train. From a judgment in favor of defendant, tbe plaintiff appealed.

<p>1. School Districts — Consolidation — Taxation—Nontax Territory — Elections — Approval of Voters.</p> <p>Where special school tax districts have been consolidated with nonschool tax territory, it is, in effect, an enlargement of the special tax territory, and coming within the provisions of O. S., 5530, it is required for the validity of a special tax to be levied for school purposes in the enlarged territory that it be approved by the voters outside of the special tax district, or districts included in the consolidated territory, at an election to be held according to law.</p> <p>2. School Districts — Consolidation — Taxation — Existing Districts — Collateral Attack — Actions—Injunction.</p> <p>Where nonspecial school tax territory is included in a consolidated school tax district with a school tax district that has theretofore voted and continued to levy a special tax, the question of the validity of the tax so levied by the existing district cannot be attacked collaterally in a suit to enjoin the levy of a special tax on the entire consolidated district, later attempted to be formed.</p>

Civil agtioN, beard on return to preliminary- order against tbe levying a tax in a consolidated school district, beard before Harding, J., bolding tbe courts of tbe Twelfth District, on 30 September, 1922. There was judgment continuing tbe restraining order to tbe bearing, and tbe defendants excepted and appealed.

Appeal by plaintiff from Oranmer, J., at April Term, 1922, of New HaNOVER. Civil action, tried upon an agreed statement of facts. Judgment was entered for tbe defendant, and the plaintiffs excepted and appealed. The substance of the facts agreed is as follows: 1. The plaintiffs are residents of the city of Savannah, Ga., and co-partners engaged in the business of selling automobiles under the general name of South Georgia Motor Company. 2.

Appeal by plaintiff from Connor, J., at chambers, 4 October, 1922, from AlamaNCe. Controversy without action to enjoin the defendant from holding a special election within the corporate limits of the city of Burlington on. the question of issuing bonds on behalf of a school district. The following is a summary of the material “facts agreed.” 1.

Appeal by defendant from Harding, Jat August Term, 1922, of Guileoed. By virtue of Public-Local Laws of 1921, cb. 131, and tbe amendments thereto, tbe defendant ordered an election, in wbicb was submitted to the’ qualified voters of Guilford County (excepting tbe city of Greensboro: and tbe township of High Point) tbe question of levying and collecting an annual special tax for tbe purpose of maintaining tbe schools and erecting school buildings in tbe prescribed territory.

Appeal by defendant from Kerr, J., at Hay Term, 1922, oí Obaluje. Tbe plaintiff alleges that it delivered to tbe defendant, at Efland, N. 0., in October and November, 1918, five consignments of hosiery for transportation to Lykens, Pa. Tbat tbe shipments were consigned to plaintiff, “order notify Enterprise Hosiery Mills, Lykens, Pa.,” which is' on the Pennsylvania Railroad, and that uniform “order notify” through bills of lading were issued covering said shipments.

<p>Appeal by defendant from Harding, J., at July Term, 1922, of DAVIDSON.</p>

Appeal by defendant from Long, J., at March Term, 1922, of GrOTLPORD. This was a civil action, brought by the plaintiff- to recover damages for personal injuries alleged to have been caused by the negligence of defendant, or its agents, while the plaintiff was in the employ of the defendant.

<p>1., Execution — Choses in Action — Common Law — Statutes.</p> <p>At common law, choses in action were not subject to seizure and sale under final process of execution, and except and to the extent the same have been modified or changed by statute, this rule still prevails.</p> <p>S. Same — Equity—Ei. Pa. — Supplemental Proceedings'.</p> <p>Except in case of attachment proceedings, wherein provision is made for exceptional and urgent cases, choses in action can only be made available to the creditor by civil action in the nature of an equitable ft. fa., or by the statutory method of supplemental juoceedings, both of which methods, in this jurisdiction and in proper instances, are still open to claimants.</p> <p>3. Same — Negotiable Instruments — Notes—Banks and Banking — Collat-erals — Set-off.</p> <p>In proceedings supplemental to execution, notes owned and held by the judgment debtor, or hypothecated as collateral to his own notes made to a bank, are choses in action, and the bank may apply them to the payment of its own claims against the judgment debtor, in accordance with the terms of hypothecation, when the same have matured, and when not matured, and it has an equitable right of set-off when the debtor is insolvent, to the extent necessary to protect its own interest, and, also, the right of application according to any contract it may hold which specifically affects the property.</p> <p>4. Same — Notice.</p> <p>A judgment creditor, in pursuing the remedy allowed by our statutes in supplemental proceedings, C. S., 711 et seq., acquires no lien upon the choses in action of the judgment debtor held by a bank as collateral by the issuance of notice, this being shown by perusal of section 714, providing for arrest and bond,- on proper affidavit, etc.; section 717, for an order of the judge, without arrest, for bidding the transfer of the judgment debtor’s property, etc.; section 723, for the appointment of a receiver, etc.</p> <p>5. Same — Deposits.</p> <p>A bank may apply the deposits of its customer to tbe payment of bis note after maturity, by way of set-off, unless some other creditor bas in tbe meantime acquired a superior right thereto in some way recognized by the law; and a mere notice to the bank in proceedings supplemental to execution is insufficient to deprive the bank of this right.</p> <p>6. Same — Levy.</p> <p>Where it has been determined in proceedings supplemental to execution that there are certain notes made payable to the judgment debtor, some .of which he has hypothecated with a bank as collateral to his own notes given thereto, a levy of the sheriff, by virtue of the writ therein, requiring that the bank turn over and deliver to him all such of the collaterals as may be sufficient to satisfy the judgment in a certain amount, is inoperative and ineffectual.</p> <p>7. Appeal and Error — Judgment—Fragmentary Appeal — Cost.</p> <p>Where the clerk of the Superior Court, in supplemental proceedings, has erroneously entered an order that a bank holding certain collateral of the judgment debtor turn the same over to the sheriff to satisfy the execution issued under the judgment, the finding of the Superior Court judge that the facts were insufficient, and his setting aside the clerk’s order and remanding the cause for further hearing and findings in the proceedings, without prejudice to either party, is not such final judgment, or one in its nature final, as will admit of instant appeal to the Supreme Court, and the appeal therein will be dismissed, at appellant’s cost.</p> <p>8. Same — Dismissal—Court’s Discretion — Objection and Exception.</p> <p>While it is held in this case that the appeal was premature and improvidently taken, the Supreme Court expresses its opinion on the exceptions presented in the record, the nature of the case rendering it desirable, under the authority of 8. v. Yates, 183 N. C., 753, and other cases cited.</p>

Appeal by plaintiffs and.defendant, Elizabeth Terry, from Harding, J., at September Term, 1922, of Guileoed. Civil action in ejectment and for a sale for division of certain lands, situate in Guilford County, North Carolina.

Appeal by defendant from Webb, J., at February Term, 1922, of Uní ON. The plaintiffs own a lot on Hayne Street, Monroe, lying just north of the defendant’s opera house lot. In partition proceedings in 1864, between those under whom both parties claim, the division line was settled at the location claimed by the plaintiffs in this action.

Appeal by defendant from Long, J., at September Term, 1922, of RICHMOND. Civil action, beard on tbe report of a referee.

<p>Appeal by petitioners from Harding, J., at April Term, 1922, of Sueby.</p> <p>Civil action, beard on an agreed statement of facts.</p> <p>John M. Doss died leaving a last will and testament tbe two material items of wbicb are as follows:</p> <p>“Second: I give and devise to my beloved wife, Mary M. Doss, tbe tract of land on wbicb I now reside, containing three hundred acres, more or less, bounded by tbe lands of "Wesley Wooten, E. Parker, McKinney, and others, for her natural life in satisfaction of her dower and thirds in all my lands.”</p> <p>“Fifth: My will and desire is that all tbe residue of my estate (if any), after taking out tbe devises and legacies above mentioned, shall be sold and tbe debts owing to me collected, and if there should be any surplus over and above the jiayment of tbe debts, expenses, and legacies, that such surplus shall be equally divided and paid over to my said wife and daughter in equal proportions, share and share alike.”</p> <p>The action was instituted as a proceeding for partition of the land described in the second item of the will. The facts agreed are as follows : The petitioners and the defendants, Winston McKinney and W. E. McKinney, are the collateral heirs of the testator, John M. Doss, who died on 3 September, 1915-, the defendants R. E. Saunders, Caroline Haymore, Charlotte Bowles, Louise Saunders, Fletcher Saunders, Lillian Jackson, Lucy Kirkman, J. W. Saunders, Robert Perkins, Virginia Perkins, and Mary Perkins are the collateral heirs of Mary M. Doss (widow of the testator), who died intestate on 14 May, 1918; and the defendant W. C. McKinney is the surviving husband of Sarah Doss McKinney (the only child of John and Mary Doss), who died intestate, without issue, 3 February, 1921, at the age of nineteen years. The land described in the petition as tracts 1, 2, 3, 4 is the land embraced in item two of the will. The testator devised to his daughter Sarah a tract in Yadkin County and three houses and lots in Mount Airy, which, with ten acres sold by her guardian and the land described in the second item of the will, was all the real estate owned by John Doss at the time of his death. The executor named in the will died before the testator, and the widow qualified as administratrix c. t. a. of John M. Doss on 7 September, 1915, and made a final settlement of her administration on 7 August, 1917. The personal property was more than sufficient to pay all the testator’s debts and the funeral expenses. The widow and Sarah Doss resided on the home place, described in the second item, until the widow’s death, and Sarah remained there until her marriage. With the exception of the ten acres referred to above, none of the testator’s land has been sold. W. 0. McKinney was appointed guardian of Sarah Doss McKinney on 25 November, 1918, and E. E. McKinney was appointed her administrator 1 September, 1921. On 17 May, 1918, L. P. Jones qualified as administrator of Mary M. Doss, and made his final settlement 23 May, 1919. W. C. McKinney was appointed administrator d. b. n., c. t. a., of John M. Doss 20 September, 1921; and as guardian of Sarah. McKinney he took charge of her real and personal property and managed it up to the time of her death. The will was written by the executor named therein, who was not a lawyer.</p> <p>The petitioners contend that the testator did not dispose of the re-versionary interest in the land described in item two, and that upon the death of his daughter the title descended to them as heirs at law. The heirs of Mary M. Doss contend that the testator devised to her an undivided one-half interest in the land, that she held such interest as purchaser, and that they have acquired her title. W. C. McKinney contends that the fifth item of the will operates as an equitable conversion of the reversionary interest into personal property, that upon the death of Mary M. Doss her interest went to her daughter, Sarah Doss McKinney, and that W. C. McKinney, as husband of Sarah, acquired her interest.</p> <p>The court adjudged that ~W. C. McKinney is entitled to the proceeds to be derived from the sale of the land, and appointed a commissioner to make the sale. The petitioners and the heirs of Mary M. Doss excepted and appealed. The land described in item two will be referred to as the “home place.”</p>

Appeal by defendant from Lane, J., at December Term, 1921, of RICHMOND. On 4 March, 1920, tbe defendant Long executed and delivered to tbe plaintiff a chattel mortgage and crop lien to secure bis promissory note to tbe plaintiff in tbe sum of $4,795, due on 15 November, 1920.

<p>Appeal by plaintiff from Webb, J., at September Term, 1922, of GASTON.</p> <p>The State Highway Commission demurred to the complaint. Demurrer sustained. Plaintiff appealed.</p>

Appeal by plaintiffs from Finley, J., at March Term, 1922, of MeckleNbueg. Tbe plaintiffs brought this action to recover $46.70, alleged to be due for wages for work for the week ending 13 September, 1920, and for the recovery of $191.83 bonus, and for $553.60 claimed as damages for breach of contract of employment, the same being wages for the period from 13 September, 1920, to 25 December, 1920, at the rate of pay theretofore earned by plaintiff and his wife.

Appeal by plaintiff from Bay, J., at October Term, 1922, of StaNly. Civil action to recover balance due on ten promissory notes executed by tbe defendant and delivered to the plaintiff for a certain quantity of mill machinery.

Issue of devisavit vel non, beard before Brock, J., and a jury, at February Term, 1922, of Mooee. Tbe alleged testatrix was married to E. A. Hastings Seymour on 12 July, 1921, and died on 26 September, 1921.

<p>Appeal by defendant manufacturing company from Long, J., at February Term, 1922, of DavidsoN.</p> <p>Tbe defendant Baxter Shemwell organized the Accounting Machine Company, a Nevada corporation. Subsequently he organized the Mays Calculating Machine Company in Delaware, and the plaintiff brings this action for services rendered in such organization during the months of January, February, and March, 1917; and in his complaint states that he “rendered all the above named, together with other legal services for the Mays Oolculating Machine Company.” Later on in the spring and summer of 1918 the said Baxter Shemwell organized the Mays Manufacturing Company under the laws of North Carolina for the purpose of taking over the business of the Mays Calculating Machine Company, and on 24 June, 1918, the defendant Mays Manufacturing Company, by a written agreement, did take over said business, together with all the assets and assumed all the liabilities of the said Mays Calculating Machine Company. The plaintiff alleges that thereby it received the benefit of all the plaintiff’s services, and he estimates the value of his services at $1,500. At the trial a nonsuit was taken as to Baxter Shemwell.</p> <p>The defendant, the Mays Manufacturing Company, pleaded a general denial, and also the three years statute of limitations. From the judgment against said company it appealed.</p>

Appeal by defendant from Webb, J., at May Term, 1922, of UNION. This is an action for the alleged negligent death of the plaintiff’s intestate, who was killed by the electric current of the defendant company while painting the defendant’s towers for transmission of its electric current. Yerdict and judgment for plaintiff. Appeal by defendant.

Appeal by defendants from Webb, J., at October Term, 1922, of MECKLENBUEG. Controversy without action, submitted on an agreed statement of facts, the material parts of which are stated in the opinion. From a judgment in favor of the plaintiff, the defendants appealed.

Appeal by defendant from Bay, J., at the April Term, 1922, of MONTGOMERY. This action was begun before a justice of the peace against, the defendant, a- justice of the peace, for the recovery of the penalty of $200 for performing a marriage ceremony “without first having a marriage license therefor delivered him as required by law.” Judgment having been rendered against the plaintiff, he appealed to the Superior Court, where tbe action was tried de novo.

Appeal by defendant from Long, Jat tbe April Term, 1922, of GrTFILEORD. Civil action to recover on a judgment in favor of plaintiff against defendant road for $2,500 damages for negligent billing of plaintiff’s intestate by defendant’s lessee, the Southern Eailway Company, heard on demurrer to the answer of defendant.

Appeal by plaintiff from Daniels, J., at tbe July Term, 1922, of WASHINGTON. On. or about 21 March, 1915, tbe Farmers Union Supply Company, a corporation, executed to T. J. Basnigbt a certain mortgage deed, recorded in Book 67, page 165, to secure tbe payment of money borrowed by it for tbe purpose of purchasing a lot and erecting a building thereon in which to conduct its business, it being the same property described in said mortgage.

Appeal by intervener from Bay, J., at March Term, 1922, of Ieedell.

Appeal by defendant from Bay, J., at chambers, 3 July, 1922, from Buree. Civil action to obtain a mandamus, beard by consent. Tbe action is instituted by tbe Burke County Road Commission, established by Public-Local Laws of 1921, cb. 64, to compel tbe defendant board to turn over to them tbe proceeds of certain bonds for road purposes alleged to belong to plaintiff commission under and by virtue o£ said statute and other acts appertaining to the subject.

Appeal by plaintiffs from McElroy, J., at October Term, 1922, of Aveey. This is a controversy without action. The plaintiffs sought to recover from the defendant $180 taxes, paid under protest, for the year 1921.

Appeal by plaintiffs from Bryson, J., at May Term, 1922, of Davie. Held: and is therefore void. From an order denying the application for injunctive relief, plaintiffs appealed.

Appeal by plaintiffs from Broch, J., at chambers in Wadesboro, 30 November, 1922, from Mooee. Held: and are therefore void. From an order denying the application for relief, plaintiffs appealed.

Appeal by plaintiffs from Broclc, J.„ at chambers in Wadesboro, 30 November, 1922, from Mooee. Held: and are therefore void. From an order denying the application for relief, plaintiffs appealed.

Appeal by defendant from Lane, J., at the May Term, 1922, of HENDERSON. Civil action to recover damages for failure to carry and to deliver a certain amount of money. Upon denial of liability, and issues joined, tbe jury returned tbe following verdict: “1. Was tbe currency in controversy delivered to tbe defendant at its office in Hendersonville, as alleged? Answer: ‘Yes.’ “2.

Appeal by defendants from Shaiu, J., at chambers, 21 April, 1922, from MadisoN. Tbe defendant demurred upon tbe ground tbat there was a misjoinder of both parties and causes of action. Joe M. Burlinson owed tbe plaintiffs, J. J. Redmon and W. H. Redmon, trading and doing business as J. J. Redmon & Son, and as individuals, tbe sum of $20,000.

<p>1. School Districts — Schools—Consolidation—Statutes.</p> <p>It is not necessary to the valid consolidation of nonspecial school tax districts with special school tax districts that it be approved by the voters of the nonspecial school tax districts, when the questions of taxation and bond issues are not involved, C. S., 5473, and especially so when the consolidation has been made according to the provisions of a Public-Local Law applicable to the county wherein the consolidation has been made.</p> <p>2. Same — Taxation—Bonds—Nontax Territory — Elections.</p> <p>Where a Public-Local Law relating to a county wherein special school tax districts and nonspecial school tax territory have been consolidated into one district does not require a separate vote by the nonspecial tax territory upon the question of special taxation and the issuance of bonds for school purposes, objection to the validity of such taxation and bonds for the failure to vote separately thereon cannot be sustained; and after such consolidation, the consolidated district is authorized to vote special tax rates for schools in the entire district, under the general law. Laws 1921, ch. 179.</p> <p>S. Same.</p> <p>Where special school tax districts and nonspeeial school tax districts have been consolidated, and the district as a whole has voted, but separately as to each district, approving the question of special taxation for school purposes, and the election as to each, inclusive of the nontax territory, is upheld, counting the votes separately therein, the result of the election will be declared valid. O. S., 5530.</p> <p>4. Same — Poll Tax — Property Tax.</p> <p>Since tlie adoption of tlie constitutional amendment of 1920, a special school district may not impose a tax upon the polls for school purposes; and where a poll tax and a property tax have both been favorably voted for at an election held for the purpose,- the tax upon the poll will be held unconstitutional and the property tax upheld by the courts.</p> <p>5. Constitutional haw — Contracts — Vested Rights — School Districts— Schools — Taxation.</p> <p>The constitutional amendment of 1920 will not have the effect of relating bach and invalidating taxation on the polls in a school district which had met the constitutional requirement before the amendment had become the law; for such would have the effect of impairing vested rights existing under a valid contract.</p>

<p>Appeal by defendant from Long, J., at November Term, 1922, of RICHMOND.</p> <p>Civil action, beard on case agreed.</p> <p>It appeared tbat plaintiff, tbe surviving widow and principal devisee under tbe will of ber husband, John L. Ledbetter, deceased, bas' contracted to sell to defendant a piece of ber land, claiming to own same under tbe provisions of said will. Defendant, admitting tbe contract and title of Jobn L. Ledbetter, as alleged, resists payment of tbe price agreed upon on tbe ground tbat tbe bargainor, under tbe terms of tbe will, did not bave a good title. There was judgment for plaintiff, and defendant excepted and appealed.</p>

<p>1. Verdicts — Motion to Set Aside — Discretion of Court — Courts—Appeal and Error — Trials.</p> <p>A motion, before tbe trial judge to set aside a verdict and award a new trial on tbe ground tbat tbe verdict was contrary to tbe weight of tbe evidence is addressed to tbe legal discretion of tbe judge, and bis denying tbe motion is not reviewable on appeal when no abuse of discretion is shown.</p> <p>2. Appeal and Error — Evidence—Eraud—Instructions—Verdict.</p> <p>Where tbe defense to an action to recover upon tbe notes sued on is fraud in tbe procurement of tbe notes, and tbe evidence is conflicting, an exception by plaintiff that the judge failed to charge the jury that there was insufficient evidence of the fraud comes too late after a verdict in defendant’s favor to he considered on appeal. •</p>

<p>Appeal by defendant from Shaw, J., at tbe April- Term, 1922, of BUNCOMBE.</p>

Appeal by defendant from Brock, Jat chambers in New Bern, 28 November, 1922, from Pitt. This case was submitted upon an agreed statement of facts.

<p>1. Constitutional Daw — Taxation.</p> <p>The State Constitution vests exclusive authority in the Legislature to levy taxes, Art. V, sec. 3, which may not be interfered with by the courts, a coordinate part of the Government, when it is exercised within the constitutional restrictions. Art. I, sec. 8.</p> <p>3. Taxation — Corporations — Shares of Stock — Shareholders—Constitutional Law.</p> <p>Art. V, sec. 3, of our State Constitution requires legislative enactment for the levy of taxes, and objection to a statute that requires corporations to pay the taxes on every element of value that goes to make up their taxable assets, and specifically excludes the payment of taxes upon the shares of stock by the individual owner is untenable, and mandamus to compel the State Tax Commissioner to enforce the payment of taxes by the individual owner on his shares, contrary to the provisions of the statute, will not lie. The relation of the shareholders to the corporation, as creditors, discussed by Adams, J.</p> <p>3. Constitutional Law — Mandamus—Actions—Controversy.</p> <p>While either the relator or respondent may raise constitutional questions for the Court to pass upon in proceedings for mandamus, they must be material to the determination of the rights of the parties, so as to conclude them by judgment in the controversy presented to the courts; ' and the courts will not pass upon such questions when they merely present abstract principles not so related to the subject-matter of the action. Laws 1921, ch. 34, see. 4.</p> <p>Stacy, J., concurring; Walker and Hoke, JJ,, concurring in both opinions; Clark, C. J., dissenting.</p>

<p>Employer and Employee — Master and Servant — Carriers of Freight— Railroads — Negligence—Federal Employers’ Liability Act — Automatic Couplings — Federal Safe Appliance Act — Contributory Negligence— Assumption of Risks — Instructions.</p> <p>The plaintiff was employed in interstate commerce as head brakeman by the defendant railroad company with the duty to set all through switches and to couple and uncouple cars, and while performing this duty he was struck and injured while cutting off a car coupled to the train with an improper automatic coupler used in violation of the Federal statute known as the “Safety Appliance Act,” by his striking a car that had been placed on the “house track” under his supervision, with conflicting evidence as to whether this car had been placed in the “clear,” and the conductor so informed: Held,, in an action brought under the Federal Employers’ Liability Act, the refusal of a requested instruction by the defendant that the injury would be due to the plaintiff’s contributory negligence if it was caused by the close proximity of the car on the house track under the circumstances was not erroneous; and an instruction of the court that the defendant would be answerable if the violation of the Federal statute contributed to the injury was proper, both upon the issues of contributory negligence and assumption of risks.</p>

<p>This is a petition to rebear tbe case reported in 182 N. 0., 653. From EoCKINGHAM.</p>

<p>Appeal and Error — Injunction—Actions—Suits—Causes of Action Ceasing — Dismissal—Costs—Highways—Roads and Highways.</p> <p>Where it appears, on appeal from an order of the Superior Court judge enjoining a board of county commissioners from wasting and misapplying certain proceeds from the sale of bonds issued for highway purposes, that on account of the change in the personnel of the board the proceedings have become unnecessary, the action will be dismissed. On this appeal the cost is taxed equally between the plaintiffs and defendants. Beinble, the judge was without authority to direct the application of the funds, but that good cause was shown for continuing the injunction to the final hearing.</p>

Appeal by plaintiff from McElroy, J., at July Term, 1922, of Avery. Tbis is an action for tbe recovery of damages for breach of a contract for cutting and logging a certain boundary of timber, tbe description of wbicb tract is set out in tbe record. Verdict for tbe plaintiff for $300. Appeal by plaintiff.

Appeal by plaintiff from Long, J., at September Term, 1922, of Ieedell. Civil action, heard on case agreed. The action is to recover the purchase price of a lot situate in said county, which plaintiff, devisee under the will of D. A. Miller, has contracted to sell to defendant at the price of $600. Defendant, admitting the contract, resists payment on the ground that plaintiff could not convey a good title.

Appeal by plaintiff from Galvert, J., at tbe July Term, 1922, of TRANSYLVANIA. At close of plaintiff’s evidence, on motion, there was judgment dismissing tbe action as in case of nonsuit under 0. S., 567, and plaintiff excepted and appealed.

<p>Appeal by defendant from Calvert, J., at July Term, 1922, of McDowell.</p> <p>There were allegations with evidence on part of plaintiff tending to show that on 22 September, 1919, plaintiff was employed for defendant company by one James Boyd, vice principal and foreman of said company, and sent into the woods on the Blue Eidge Mountains to nose and knot logs and drive grabs into said logs and load the teams, etc., in the woods, some distance from defendant’s camp. That for purposes of doing the work, said foreman himself gave defendant an axe with a defective handle. Speaking to the condition of said axe, as in connection with the work, plaintiff testified: “We had to nose and trim the logs so they would not drag on the ground, trimmed off the front end. To do this I was required to use an axe, and the one I was given to work with was a good axe only it had a defective handle. The handle was bursted from the eye of the axe, to the best of my knowledge, 12 inches up the handle, about one-third of the handle being gone. It looked like the split part had been trimmed out with a knife or axe, and that made it a limber, switchy handle, and when you struck with it it did not strike true.” Witness further said that Boyd, about five o’clock in the afternoon, came out and sharpened the axe, telling witness to be careful, that the axe was sharp and he might cut his foot. That a little later, as plaintiff was knotting a log, the axe glanced from a small dead snag on a limb overhead and by reason of having this limber handle it was deflected and struck plaintiff’s foot, inflicting a painful and permanent injury. There was other supporting evidence as to the defective condition of the axe handle and the severity of the injury. There was no evidence offered by defendant.</p> <p>On issues raised by the pleadings, the jury rendered the following verdict:</p> <p>“1. Was plaintiff injured by the defendant’s negligence, as alleged in the complaint? Answer: 'Yes.’</p> <p>“2. Did plaintiff, by his own negligence, contribute to his injury, as alleged in the answer? Answer: 'No.’</p> <p>''3. Did plaintiff assume the risk of injury, as alleged in the answer? Answer: 'No.’</p> <p>“4. What damage, if any, has plaintiff sustained, as alleged in the complaint ? Answer: '$1,000.’ ”</p> <p>Judgment for plaintiff. Appeal by defendant, assigning for error chiefly the refusal to allow his motion for nonsuit.</p>

<p>1. Municipal Corporations — Cities and Towns — Condemnation—Eminent Domain — Streets and Sidewalks — Discretionary Powers — Courts.</p> <p>The courts will not interfere with the statutory discretionary powers given to the governing authorities of an incorporated town to take lands from adjoining owners in widening its streets for the public welfare, unless their action in doing so is so unreasonable as to amount to an oppressive and manifest abuse of the exercise of this discretion. C. S., 2791, 2792.</p> <p>2. Same — Appeal and Error — Findings of Facts.</p> <p>Where it appears that the governing authorities of a town have taken plaintiff’s adjoining lands to widen a street intersecting with other streets so as to lessen the danger to traffic thereon, and it is made to appear by affidavits and otherwise that doing so was a reasonable exercise of the discretion vested in them, the findings of the trial judge, upon opposing affidavits, that such course was unnecessary to a certain extent, and reducing the width of the land which should be appropriated for the purpose, is not binding on the Supreme Court on appeal, the question being, primarily, whether the administrative authorities of the town have so grossly and manifestly abused the exercise of their discretionary powers as to render their action ineffectual, which does not appear upon the facts of the instant case.</p> <p>3. Municipal Corporations — Cities and Towns — Streets and Sidewalks— Condemnation — Eminent Domain — Estoppel.</p> <p>The governing authorities of a town are not estoxiped to condemn land for the widening or improving of its streets by reason of an owner having put extensive improvements on his land a long time prior to the time it was condemned for that purpose, the power of condemnation, in cases of this character, being a continuing one to be exercised when and to the extent that the public good may require it.</p>

Appeal by defendants from Calvert, J., at May Term, 1922, of WayNe.

<p>1. Railroads — Employer and Employee — Master and Servant — Negligence —Sufficient Help — Evidence—Questions for Jury — Trials..</p> <p>In an action to recover damages for tbe negligent killing of plaintiff’s intestate by tbe defendant railroad company, there was evidence tending to sbow that tbe intestate, in tbe course of bis employment, bad applied tbe brakes on two ears that bad been “shunted” onto a sidetrack from tbe defendant’s freight train, and that then the defendant’s train “shunted” another car onto tbis track that came in contact with those to which tbe plaintiff had applied the brakes, connecting the automatic couplings so that the three cars, instead of remaining stationary, began to run back down grade; that the intestate got back upon the car and used a “brake stick” as a lever, which was fixed within the spokes of the brake wheel, for additional power, and upon the breaking of this “brake stick,” the intestate was thrown between the cars to his injury and resultant death, there being no other employee than the intestate to act as brakeman under the circumstances: Held, sufficient evidence upon which the jury could find that the service required for stopping the cars under the circumstances was more than the intestate could singly 'perform with reasonable safety; that defendant had negligently failed in its duty to furnish him sufficient help, and that this negligence was the proximate cause of the intestate’s death.</p> <p>2. Same — Assumption of Risks.</p> <p>A brakeman on a freight train assumes the risks of his employment that are incident thereto and obvious, but not such as are caused by the negligence of the railroad company, or its employees, for whose acts it is iiable, under such circumstances that the employee may not reasonably anticipate in time to avoid the result of an injury thereby caused, the rule not applying that the servant assumes the risk by remaining in the service after he knows it, or it is obvious, and he appreciates the danger arising from it.</p> <p>3. Same — Rules of Employer.</p> <p>A rule of a railroad company that its employees shall not use a “brake stick” intended to be inserted between the spokes of the brake wheels for stopping its freight cars will not alone bar the recovery of such employee in his action to recover damages for the alleged negligence of the defendant railroad company when the rule has not been enforced, but habitually disregarded, if the use of the “brake stick” was reasonably required under the circumstances.</p> <p>4. Same — Defects—Instructions.</p> <p>Under the evidence in this case, it is held, that the defendant railroad company could not reasonably object to a charge of the court instructing the jury that, where an employee knows of a defect that has caused the injury complained of, and appreciates the risk and the danger attributable to it, and continues in the employment without objection, or obtaining from his employer, or representative, an assurance that the defect would be remedied, the employee assumes the risk, even though it arises out of his employer’s breach of duty, as the instruction is in its favor, if erroneous.</p> <p>5. Damages — Statutes—Federal Employers’ Diability Act — Compensation —Negligence—Wrongful Death — Present Value — Railroads.</p> <p>The measure of damages under the Federal Employer’s Liability Act for the negligent killing of plaintiff’s intestate, an employee of the defendant railroad company, is for “compensation” to the legal dependents, to be computed at the present cash value of the future benefits of which the beneficiaries were deprived by the death, making adequate allowance, according to the circumstances, for the earning power of money.</p> <p>6. Appeal and Error — Objections and Exceptions — Instructions—Exceptions — Damages — Present Value — Negligence — Wrongful Death— Federal Statutes — Federal Employer’s’ Liability Act.</p> <p>A charge of the court upon the measure of damages to be given to the legal dependents of an employee negligently killed by the defendant railroad company under the provisions of the Federal Employers’ Liability Act, that omits from the jury’s consideration the present value of the future benefits that the legal dependents had been deprived of by the death, permits a recovery beyond that allowed by the statute, and an exception thereto presents the error on appeal without the necessity of a special request confining the recovery within the proper limits, there being but one legal principle involved and erroneously stated, which makes the error positive or affirmative, it being a failure to state the applicable principle correctly, and not a mere omission to charge as to some special or particular phase of the case.</p> <p>7. Courts — Practice—^Federal Courts — State Courts.</p> <p>Semble, the Federal courts follow the rules of practice in the state courts holding an exception to the charge is sufficient on appeal, without a request for instruction, when the charge is of itself an erroneous statement of the measure of damages to be awarded by the jury for a wrongful death, in this case the negligent killing by a railroad company of its employee.</p> <p>8. Appeal and Error — New Trials as to One Issue — Damages.</p> <p>There being no error upon the issues of negligence, etc., committed by the trial court in an action against a railroad company for the alleged negligent killing of plaintiff’s intestate, but only upon the issue as to the measure of damages, a new trial- upon that issue alone is ordered on this appeal.</p>

Appeal by defendant from Lane, J., at August Term, 1922, of ^BUNCOMBE. This action was begun before a justice of the peace by the plaintiff’s testator, Gwyn Edwards, and was originally entitled Gwyn Edwards v. Willie Lee Miller. Edwards died, and the bank above named, as his executor, became a party plaintiff. Edwards secured judgment on 21 June, 1920, against Miller for $85, with interest on that sum from 21 June, 1918, with costs.

<p>1. Wills — Interpretation.</p> <p>In interpreting a will to ascertain a testatrix’s intention, tbe court should place itself as near as may be in her position, and when the language she has therein used is ambiguous or doubtful, it should take into consideration the situation of the testatrix at the time and the relevant ■facts and circumstances .surrounding her at the time the will was executed, the first rule of construction being to give effect to the testatrix’s intention as found in the terms of the will and within the limits which the law prescribes; and the predominant and controlling purpose of the testatrix must prevail when ascertained from the general provisions of the instrument over particular and apparently inconsistent expressions to which, unexplained, a technical force may be given.</p> <p>2. Same — Devises—Domestic Servants — Employees.</p> <p>A bequest in a will “to any servant or any other household employee” of the testator should be construed as if expressed “to any household servant or any other household employee,” and does not include within its meaning those who worked upon the testator’s farm, occasionally doing carpenter’s work in the home, laying cement in the house, or laying rock on the premises, making flower boxes, etc., though occasionally, or at rare instances, they may have performed some slight service that may come within the letter of the definition though not within its spirit, and the clear intention of the testatrix.</p> <p>3. Wills — Interpretation—Intent—Evidence—Parol Evidence.</p> <p>Parol evidence of a testator’s declarations of his intent in making a will, made before or at the time he executed it, is incompetent, the rule being that the intent as gathered from the written instrument, under the established rules of interpretation, will prevail.</p> <p>Stacy, J., dissenting; Clark, O. J., concurring in the dissenting opinion.</p>

Appeal by defendant from Lane, J., at Fall Term, 1922, of Polic. Tbis is an action for the recovery of certain legacies alleged by the plaintiffs to be theirs under and by virtue of the will of Mrs. Fanny Jones Ricks. After the disposition of a large sum in pecuniary legacies to friends and relatives, the material portions of the will required to be considered in this case are as follows : “Item 1. To Lizzie Burkhardt, $1,000.” “Item 11.

<p>Appeal and Error — Docketing—Certiorari—Dismissal—Buies of Court— Statutes.</p> <p>Appeals to tbe Supreme Court are only within the rights of the parties when the procedure is in conformity with the appropriate statutes or rules of court, and neither the parties in litigation nor their attorneys have authority, by agreement among themselves, to disregard the rules regulating appeals in the Supreme Court; and where the appellant has failed to docket his appeal or move for a certiorari under the rule regulating the matter, the appeal will be dismissed.</p>

<p>Appeal by defendants from Connor, J., at chambers, August, 1922, from MaetiN.</p>

Appeal by-plaintiff from Calvert, J., at November Term, 1921, of Halifax. Ejectment, and to recover damages for an alleged trespass. • Upon denial of tbe plaintiff’s title and claim, there was a verdict and judgment in favor of defendant. Plaintiff appealed.

Appeal by defendants from Cranmer, J., at June Term, 1922, of WlLSON. Action to set aside a lease and a deed alleged to have been executed by Mariab Taylor at a time when she was non compos mentis. From a verdict and judgment in favor of plaintiffs, the defendants appealed.

Appeai by plaintiff from Calvert, J., at chambers, 24 March, 1922, from JOHNSTON. Action to restrain the sale of securities held by the defendant as collateral to an indebtedness due by plaintiff to defendant. From an order dissolving the injunction, the plaintiff appealed. The plaintiff admitted that he was due the defendant $5,472.50, and pleaded usury.

Appeal by defendant from Ferguson, J., at February Special. Term, 1922, of Chatham. Plaintiffs sold defendant all the timber of prescribed dimensions within certain boundaries, “excepting from the above the second-growth timber and original growth in the pastures.” The consideration was $7,500, of which $6,000 has been paid. The plaintiffs obtained a restraining order to prevent defendant’s removal of the timber in controversy.

<p>PetitioN to rehear.</p>

<p>Appeal by defendants from Bond, J., at the April Term, 1922, of PeequimaNS.</p>

<p>Appeal by defendants from Qranmer, J., at January Term, 1922, of Pitt.</p>

Appeal by defendant from Crammer, J., at June Term, 1922, of Caeteket. Action to recover upon a health and accident insurance policy. Issues were submitted to the jury, and answered by them as follows: “1. Did plaintiff, in good faith, substantially comply with the contract of insurance, as alleged in the complaint? Answer: ‘Yes.’ “2. What amount, if any, is plaintiff entitled to recover from defendant?

Appeal by defendant from Iiorton, J., at February Term, 1922, of Nash. Tbe defendant appealed from bis Honor’s judgment continuing a restraining order until tbe final bearing of tbe action.

<p>1. Negligence — Dangerous Machinery — Vendor and Purchaser — Implied Invitation.</p> <p>A purchaser of cotton seed who enters upon the premises of the owner of a cotton gin for that purpose in accordance with the owner’s arrangement, is upon the premises at the implied invitation of the owner.</p> <p>2. Same — Questions for Jury.</p> <p>Evidence that the owner of a cotton gin had left the ends of bolts dangerously projecting at a place they had connected power-driven shafting, and about eighteen inches from the place where a purchaser has to select the seed he wants and take them away, is sufficient to take the case to the jury, and for the jury to pass upon the question of the want of ordinary care upon the issues of defendant’s actionable negligence in the purchaser’s action.</p> <p>S. Same — Instructions—Ordinary Oare.</p> <p>Under the evidence of this case: Held,, an instruction that makes the nearness of eighteen inches from the dangerous part of the shaft, if so found by the jury, negligence as a matter of law, and also leaves out the element of defendant’s want of ordinary care on the issue of negligence, is reversible error.</p>

<p>1, Contracts — Breach—Damages—Loss of Business — Profits Prevented— Duty of Damaged Party — Rule of Prudent Man.</p> <p>Where a party to a contract willfully interferes with the other party and wrongfully causes him to quit operation, or prevents him from filling it, which results in loss to his established business and property used in his undertaking, the party so injured may recover in his action such damages as may reasonably be shown as a result of the wrong done him, including profits prevented thereby, after deducting therefrom such amount of the loss as he might have avoided in the exercise of ordinary business prudence.</p> <p>3. Same — Evidence.</p> <p>Where a party to a contract may recover for the loss to his established business wrongfully caused by the breach of the other party, evidence of past profits may be shown as an element for the jury to consider in passing upon the issue, with the other facts in evidence.</p> <p>3. Same — Nonsuit—Trials—Punitive Damages.</p> <p>The evidence in this case held sufficient to be submitted to the jury upon the question whether the defendants wrongfully prevented the plaintiff from fulfilling his obligation under a contract with him, within the life of the contract, causing loss to his business, etc., and the defendant’s position that the loss was caused by the plaintiff’s weakly submitting to the defendant’s acts instead of asserting his rights is untenable. Semble, the plaintiff was entitled to recover punitive damages had he chosen to assert them.</p>

Appeal by defendant from Lyon, J., 15 March, 1922, from DupliN. Action, heard on return to a preliminary restraining order. The action is to restrain sale of certain lands sold to plaintiff by defendant Georgie Hicks, and advertised to be sold under a deed of trust given to secure purchase price. On the facts presented there was judgment continuing the restraining order till the hearing, and defendants excepted and appealed.

Appeal by defendant from Lyon, J., at February Term, 1922, of SAMPSON. Exceptions to allotment of homestead and personal property exemptions filed by the defendant before the- clerk of the Superior Court and transferred by bim to the civil issue docket. From a judgment overruling the defendant’s exceptions, this appeal is prosecuted.

Appeax by defendant from Daniels, J., at May Term, 1922, of CRAVEN. Civil action to recover damages for an alleged breach of contract in the sale of seed oats. Upon denial of liability and issues joined, there was a verdict and judgment in favor of the plaintiffs, from which the defendant appealed, assigning errors.

Appeal by defendants from Cownor, J., at February Term, 1922, of CumbeRlaNB. Civil action in assumpsit, tried upon tbe following issues : “1. Did plaintiff deliver to tbe defendants 50 boxes of cbeese, in accordance witb defendants’ order? Answer: 'Yes.’ “2. In wbat sum, if any, are defendants indebted to plaintiff? Answer : ‘$323.64, and interest.’ ” Judgment on tbe verdict in favor of tbe plaintiff, from wbicb tbe defendants appealed.

Appeal by defendant from McBlroy, J., at March Term, 1922, of Buree. Criminal action. The defendant was convicted of a violation of the prohibition law, and from the judgment pronounced he appealed.

Appeal by defendants from Harding, J., at April Term, 1922, of Ashe. Civil action for trespass, and to remove cloud from title. Both, parties claimed title to the locus in quo; and, upon the traverse and issues thus joined, there was a verdict and judgment in favor of the plaintiffs. Defendants appealed.

Appeal by defendant from Bryson, J., at February Term, 1922, of Catawba. Civil action to recover damages for an alleged negligent injury and wrongful billing. From a verdict and judgment in favor of plaintiff, tbe defendant appealed.

Appeal by plaintiff from Webb, J., at chambers, 3 November, 1922, from Catawba. Controversy without action, heard on plaintiff’s motion to enjoin the issuance of school bonds and the levy of a special tax. Judgment for defendant. Plaintiff appealed.

<p>Appeal by plaintiff from Bryson, J., at March Term, 1922, of Watauga.</p>

Appeal by defendant from Calvert, J., at tbe May Term, 1922, of Chatham. Tbe defendant was convicted of manslaughter, and from tbe judgment upon sucb conviction appealed to tbis Court. Tbe jury, in rendering tbe verdict of manslaughter, accompanied it witb a request tbat tbe judge should be lenient in bis punishment. Tbe judgment was tbat tbe defendant be confined in tbe State’s Prison for three years.

<p>Appear by defendant from Connor, Jat June Special Term, 1922, of Beaufort.</p> <p>Tbe prisoner was convicted of the crime of rape upon the person of one Mattie E. Williams, and appealed from the sentence of death pronounced by the court. A synopsis of the evidence is necessary to explain the exceptions.</p> <p>The State’s evidence tended to show the following circumstances. The prosecutrix is the wife of Samuel Williams. Their only child is two years of age. They lived at Dr. Mariner’s place, on the Pea Ridge road, about three miles from Belhaven, with the husband’s mother, sister, and brother. Mrs. Satterthwaite, a sister of the prosecutrix, lived at Hope Store, a quarter of a mile down the road. Seventy-five yards from the junction of the Pea Ridge and Belhaven roads was the Williams mail box. Along the road between the Williams home and the mail box two-thirds of the adjoining land is cleared, and one-third in woods. There are two or three houses on the cleared land. At about eight in the morning of a Thursday in March, 1922, while her husband was working at a distance in the field, the prosecutrix went to the mail box, and from there to the home of her sister, where she remained perhaps fifteen minutes. She did not know how long it took her to walk to her sister’s. On her return home, impelled by sudden indisposition, she went into the woods, and while there was criminally assaulted by the prisoner. She begged, pleaded, and straggled. After accomplishing his purpose, the prisoner said that if she told what he had done, he would kill her husband and the whole family. She liad known the prisoner for some time, and he had never before offered her any indignity. As she walked home, she wept, but made no outcry. On reaching home about 10 o’clock, she went first to her room for a minute or two and then to the cook-room, where she found her husband’s mother and sister. She remained there until dinner time, when her husband came. He was at home Thursday, Friday, and a part of Saturday. He and she occupied a room together. She mentioned the subject first to her husband on Sunday night after they had retired. In the meanwhile, she had frequently wept in his presence and had repeatedly refused to tell him the cause. She testified: “From the moment this occurred until I told my husband, my physical condition was such that I was just feeling it all the time, and I could not rest in any way, and when he mentioned anything to me, I couldn’t keep from crying; it would hurt his feelings and he would turn and go off and not say anything to me. I do not mean that he turned in anger. He would ask me if I was sick and didn’t want a doctor, and I told him no. He would ask what was the matter, and I would commence crying, and he would leave me. He couldn’t bear to see me cry. . . . I did not tell him before Sunday simply because I didn’t see how I could. Such a thing as that I would rather die than tell it; then he threatened our lives, that was a hard part, too; it made me fearful for myself and my family’s safety. . . . I did not mention it to him until Sunday night after we had gone to bed. I saw my sister a few minutes Sunday night. I lived with my sister before I was married, and we were fond of each other.”</p> <p>The prosecutrix was corroborated by her husband, who said, also, that the prisoner came back to his home at 10 :30; and Dr. Mariner testified that about a week after the assault was said to have occurred he examined the prosecutrix and found her genital organs bruised and inflamed. There was evidence tending to show that the character of the prosecutrix and her husband is good.</p> <p>For the defendant there was evidence tending to show an alibi. Noland Davis testified that the prisoner came to his house at 7 o’clock Thursday morning, saying he had come from "Williams’s and remained there until after the mail car passed, and that the two then went to Satterthwaite’s store, and were together until 9 :45, when the prisoner said he had to go to Belhaven. J. B. Satterthwaite, a witness for the defendant, testified that he is a brother-in-law of the prosecutrix, and conducted a mercantile business at Hope Store; that the prosecutrix left his house at 8 o’clock going home; that between 6 and 7 o’clock the prisoner passed his store going to Williams’s, and about 10 o’clock came to tbe store witb Norval Davis and asked what time it was. He did not act as if drinking, an'd was not under the influence of liquor. The prisoner testified: “I went to Williams’s house on Thursday morning. I stopped at Mr. Satterthwaite’s store. I was riding on my wheel and I left the store and went to Mr. Williams’s. He was in the kitchen. I went from the house to the stables to hitch up the mules. After the mules were hooked up, he told me to take my wheel and carry a package to Mr. Stevens. Stevens was a conjure doctor. He told me it was 25 minutes of 8, or half-past 7 at that time. He told me to meet the fellow on the road. I went as far as Norval Davis’s. I stopped there and sat on the front porch and talked with Norval Davis until about half-past nine. I went from there to Mr. Satterthwaite’s store with Norval. We walked side by side, and I carried the wheel with me. Norval asked Mr. Satterthwaite to carry him to Hyde County, and Mr. Satterthwaite agreed to do it. I left about the same time they did. I rode my wheel. It was about 10 o’clock. I did not pass anybody. The only time I saw Mrs. Williams that morning was through the window. That was about 7 o’clock in the morning. When I got back I put my wheel over the fence. Mr. Williams was drinking some water from the kitchen well five or six steps from the kitchen. Mr. Williams asked me if I wanted anything. I told him I wanted some candy. He told me, “I haven’t anything very much for you to do,” and gave me a bush hook to work on the ditch. After I came out of the shop, I looked up the road and saw Dr. Mariner coming in. I went on. down the field to go to Norval Davis’s around 7 o’clock in the morning. I did not see Mrs. Williams. On my way back from Satterthwaite’s store I did not see anybody. I worked in the field two hours, from 10 to 12. I stopped at 12 o’clock and walked out with Haywood. I asked him if he thought I had time to go home and get dinner. He said, yes, if I didn’t take too long to eat. I didn’t go back to work for Mr. Williams that afternoon, because I stopped to get my corn, some new corn I wanted to plant. I worked for Mr. John Craddock that evening, and on Saturday I went to Leechville. Saturday evening I went to Belhaven; coming back I went to Mr. Williams’s. I saw Mr. Williams, Mrs. Williams, and their mother. I bought some baking powder. I went to Belhaven with Mr. Williams Sunday morning. We went to see the conjure doctor. I don’t know a thing about the crime against Mrs. Williams.” There was evidence tending to corroborate the prisoner’s theory.</p> <p>In rebuttal, a witness for the State, Lesofsky, said: “I had a conversation with Ed. Dill about this matter while he was in the jail at Belhaven. I have known Dill for 20 years. I saw a crowd and went to the jail. I didn’t know who it was at the time, but found it was Ed. Dill. There was a crowd on the corner, two or three, or more. There was nobody there except me and him, when I spoke to him. I went to see him just for curiosity. No one heard the conversation except him and me. Nothing said by me, or anybody, by way of threats or inducements. I said, ‘Ed., what in the devil are you doing in here?’ He said, ‘I was drunk, I got a white woman, and the white woman said I done something to her, but I wouldn’t dispute her word.’ I didn’t say anything to him then. He was sober and not frightened.”</p>

Appeal by defendant from Allen, J., at June Term, 1922, of YaNCE.

<p>Appeal by defendant from Devin, J., at July Term, 1922, of "Wake.</p> <p>Tbe defendant was indicted jointly witb Wilson Wagoner, Luther Clark, Ed. Marshall, and one Bowling for the illicit distilling of whiskey and aiding therein. He was convicted, sentenced, and appealed.</p>

Appeal by defendant from Granmer, J., at March Term, 1922, of CARTERET. Criminal prosecution, charging the defendant with an assault on one Malissa Sharp. From an adverse verdict and judgment of six months on the roads, the defendant appealed.

<p>Appeal and Error — Case—Settlement by Judge — Mistake—Certiorari.</p> <p>The case on appeal, as settled by the trial judge, imports verity, and must be accepted as absolutely true in the Supreme Court on appeal; and unless it is made to properly appear by the judge’s own statement that he will correct the record as to matters relied on by the movant, a motion for writ of certiorari will not be granted; the averment of the movant’s belief that the judge will supply the omission if afforded an opportunity is insufficient.</p>

<p>Appeal by defendant from Cranmer, J., at April Term, 1922, of BeuNswick.</p>

<p>Appeal by defendant from Kerr, J., at March Term, 1922, of DURHAM.</p>

Appeal by defendant from Kerr, J., at the June Term, 1922, of ALAMANCE. Criminal prosecution, tried upon an indictment charging the defendant with receiving more than one quart of spirituous liquors at one time, or in a single package, in violation of C. S., 3385. From an adverse verdict and judgment thereon, the defendant appealed.

Appeal by defendant from Brock, J., at July Term, 1922, of Eoestth.

Appeal by defendant from Oranmer, J., at July Term, 1922, of Duplin. Criminal prosecution, tried upon an indictment charging the defendant with embezzling $350 and a Studebaker automobile on 27 February, 1918, alleged to be the property of one Willie Waters, denominated in the record as “nominal prosecutor.” The State’s evidence, if believed, showed that the defendant Flowers, in 1918, sold to the prosecuting witness, Willie Waters, an automobile for $475.

Appeal by defendant from Oranmer, J., at February Term, 1922, of GrREENE. Criminal action for the unlawful sale of intoxicating liquors. There was evidence on the part of the State tending to show that in September, 1921, E. II.

Appeal by defendant from Allen, J., at March Term, 1922, of VaNce. On 20 December, 1921, Mabel K. Bell made an affidavit before a justice of the peace of Nance County that tbe defendant, her divorced husband, had willfully abandoned . and failed and refused to support his four children, of the age of four, six, eight, and eleven years, respectively; and thereupon she obtained a warrant under which the defendant was arrested and afterward bound to the Superior Court.

Appeal by defendant Glande Schoolfield from Harding, J., at August Term, 1922, of G-uilfobd. Criminal prosecution, tried upon an indictment charging the defendants with tbe forgery of a check, and also with uttering the same with intent to defraud, knowing it to have been falsely forged. O. S., 4293 and 4294. Clarence Schoolfield was acquitted. His codefendant, Claude School-field, was convicted, and from the judgment pronounced he appeals, assigning errors.

<p>Spirituous Liquor — Intoxicating Liquor — Indictment—Manufacturing— Aiding and Abetting — Issues—Verdict—Evidence—Nonsuit—Trials.</p> <p>Where there is circumstantial evidence tending to show that the defendant had free access to the cellar in a house in the country where spirituous liquor was unlawfully manufactured, and was present at the time, and that he carried whiskey in cans from thence to a place of business he had in a nearby city, and had brought several persons out from the city, etc., it is sufficient for conviction under a count in the Indictment charging the unlawful manufacture of intoxicants; and where the jury have rendered a verdict of guilty upon an issue as to aiding and abetting therein, though no such offense was specifically charged, he would be equally guilty with those who had actually done the illicit manufacturing, añd a motion as of nonsuit was properly disallowed. O. S., 3409.</p>

<p>Costs — Criminal Law — Submission — Statutes — Civil Actions — Jury— Trials.</p> <p>The plea of guilty to an indictment for failure to list taxes as required by the Revenue Act comes within the intent and meaning of C. S., 1229, requiring in criminal cases a tax of $4 against the “party convicted or adjudged to pay the cost,” and applies whether the jury has been impaneled or not; and the tax of $5 in civil actions should be imposed, as a part of the costs, when the jury has been impaneled. This but evidences the legislative intent to draw this distinction between criminal and civil actions, the reason therefor, though apparent, being immaterial in construing the meaning of the statute.</p>

Appeal by defendant from McElroy, J., at Spring Term, 1922, of CLEVELAND. Tbe defendant was convicted, at March Term, 1922, of Cleveland Superior Court, of having in his possession spirituous liquors for the purpose of sale, and of receiving more than one quart thereof within fifteen days time, and from the judgment upon such conviction appealed to this Court.

<p>1. Instructions — Expression oí Court’s Opinion — Statutes—Appeal and Error — Intoxicating Liquors — Spirituous Liquors.</p> <p>Where the defendant, on trial for violating our prohibition laws, has not admitted his guilt, and the trial judge, in his charge to. the jury, has assumed that he was guilty upon the evidence of a State’s witness, it is an expression by the judge of his opinion whether a fact has been fully or sufficiently proven, and constitutes reversible error. C. S., 564.</p> <p>2. Same.</p> <p>Where the verdict of the jury has acquitted the defendant indicted for violating our prohibition laws under the count charging an unlawful sale of intoxicating liquors, but has convicted him of having the unlawful possession of the liquor for the purpose of sale, an expression of his opinion by the trial judge upon the evidence that the defendant had made the unlawful sale, applies also to' the count charging that he had the unlawful possession for the purposes of sale, and constitutes reversible error.</p>

Appeal by defendant from McElroy, J., at August Term, 1922, of Wilkes. Criminal prosecution, tried upon an indictment charging the defendant with the murder of his wife. Tbe defendant was convicted of murder in tbe second degree, and from tbe judgment pronounced tbereon be appealed, assigning errors.

Appeal by defendants from Shaw, J., at March Term, 1922, of BUNCOMBE. Criminal prosecution, tried upon an indictment charging the defendants with engaging in the manufacture -of. spirituous liquors in violation of the State statutes. From an adverse verdict and judgment pronounced tbereon, tbe defendants appealed.

Appeal by defendant from Ray, J., at August Term, 1922, of Bueke. Indictment for assault with deadly weapon.

<p>1. Criminal Daw — Homicide — Murder — Manslaughter — Instructions— Appeal and Error — Objections and Exceptions.</p> <p>Where, upon the trial of one charged with homicide, there is evidence tending to show murder in the first degree, murder in the second degree, manslaughter, and self-defense, it is the duty of the presiding judge, in his charge to the jury, to declare and explain the various phases of the evidence relating to self-defense, and to the various degrees of felonious homicide, and his failure to instruct upon all the essential questions of law properly raised by the evidence constitutes as to each reversible error, which is presented by exception on appeal without specifically raising the question of error complained of by prayers for instruction tendered ánd refused.</p> <p>2. Same — Statutes—Malice.</p> <p>Where, upon a trial for a homicide, the prisoner has admitted the tilling with a pistol, and relies upon the plea of self-defense, and the evidence presents for the consideration of the jury murder in the first degree, murder in the second degree, and manslaughter, and the prisoner has been convicted of murder in the second degree, it is reversible 'error for the trial judge to charge the jury as to the law relating to murder in the first degree under the provisions of G. S., 4200, and then to instruct them that all other killings would be murder in the second degree, for this would deprive the prisoner of such of the evidence as tended to repel the inference of malice from the killing with a deadly weapon, which, if established, would, at least, reduce the grade to the offense of manslaughter.</p> <p>3. Same.</p> <p>A charge which fails to instruct the jury as to the law upon every essential phase of the evidence relating to the degrees of felonious homicide is reversible error, and an exception for failure to charge the jury concerning the various degrees when the evidence presents them takes the question to the Supreme Court on appeal without the necessity of its presentation by defendant’s request for special instruction. The necessary elements of the criminal offense of manslaughter arising under the evidence in relation to the charge given in this case discussed by Adams, J.</p>

Appeal by defendant from Harding, J., at August Term, 1922, of DAVIDSON. Criminal prosecution, tried upon an indictment charging the defendant with having spirituous liquors in his possession for the purpose of sale, of receiving more than one quart at any one time, and of receiving more than one quart within fifteen consecutive days, in violation of the State statutes. From an adverse verdict, and judgment pronounced thereon, the defendant appealed.

Appeal by defendant from Lane, J., at the July Term, 1922, of BuNcombe. Criminal prosecution, charging the defendant with the crime of murder in the first degree. From an adverse verdict and sentence of death, the defendant appealed.

<p>Suspended Judgment — Sentence—Criminal Law — Inquiry—Court’s Jurisdiction.</p>

Appeal by defendant from Shaw, J., at February Term, 1922, of BUNCOMBE. Criminal prosecution, tried upon an indictment charging the defendant with receiving, keeping in bis possession for sale, and transporting spirituous liquors in violation of law. From an adverse verdict, and judgment pronounced thereon, the defendant appealed.

Appeal by defendant from Long, J., at September Term, 1922, of UNION. Criminal action, tried on appeal from tbe recorder’s court. The warrants on which defendant was tried, as finally amended, charged an unlawful keeping of spirituous liquors for purposes of sale, O. S., art. 4, sec. 3379, and unlawfully receiving more than one quart within fifteen consecutive days from persons other than common carriers, C. S., art. 5, sec. 3385.

Appeal by defendant from Bay, J., at August Term, 1922, of Caldwell. Tbe defendant was convicted of murder in tbe first degree. Tbe defendant John A. Bush shot tbe deceased, Will Cline, on the-afternoon of 21 August, 1922, and Cline died at 6 :30 tbe evening of 22 August. .Tbe State’s evidence tended to show both motive and threats. Tbe motive was a disagreement about tbe discharge of water from deceased’s land upon that of tbe defendant in such way as to-damage tbe land.

Appeal by defendants from Bryson, J., at Fall Term, 1922, of Polk. . The defendants were convicted of manufacturing spirituous liquors. Tbe appeal presents a number of unusual questions, but we do not deem it necessary to notice but tbe two or three main contentions of tbe defendants, which will sufficiently cover tbe case and tbe points presented by defendants’ counsel in tbeir very able and learned brief, wbicb was supplemented by a strong oral argument in tbis Court.

Appeal by defendant from Brock, J., at April Term, 1922, of Macon. Tbe defendant was convicted of manslaughter. Tbe State’s evidence tended to sbow tbat on 10 September, 1921, tbe defendant, Harley Baldwin, tbe deceased, Aus Wright, Bill Baldwin, father of Harley, and. Dick Wright were engaged in a game of. cards, about two hundred yards below Nantahala Bridge.