Volume 226 — North Carolina Reports

Appeal by defendants from Sink, J., at Chambers in tbe courthouse in Greensboro, N. C., 19 October, 1945. The three cases above entitled, because of their similarity in factual and legal features and interconnected interests, were consolidated for hearing, and by consent of all parties heard by Judge Hoyle Sink on agreed facts without a jury.

Appeal by defendant from Clement, J., at June Term, 1945, of Guilfoed. Civil action to recover damages for personal injuries. On or about, 1 May, 1944, plaintiff boarded one of defendant’s electric passenger trolleys at a point on East Market Street in Greensboro for tbe purpose of going to Freeman Mill Road. In order for him to complete bis trip, it was necessary that be transfer to another bus at tbe intersection of Market and Elm Streets.

<p>1. Executors and Administrators § 3—</p> <p>Wliere, after letters of administration have been issued, a will is found and probated and letters issued thereon, the letters of administration must be revoked, G. S., 28-31; however, all acts done by the administrator in good faith prior to the discovery and probate of the will are valid and binding.</p> <p>2. Executors and Administrators § 4: Abatement and Revival § 11—</p> <p>A cause of action which survives against successor personal representatives of an estate likewise survives in their favor. G. S., 28-172, -181.</p> <p>3. Same—</p> <p>Upon the revocation of letters the clerk of the Superior Court is required immediately to appoint a successor, G. S., 28-33, and the law contemplates a continuity of succession until the estate has been fully administered.</p> <p>4. Same: Death § 4—</p> <p>A cause of action for wrongful death properly instituted does not abate upon the death, resignation or removal of the personal representative who instituted the action, but the action survives to his successor. G. S., 1-74.</p> <p>5. Same—</p> <p>The personal or legal representative of an estate in instituting an action is a formal or nominal, although a necessary, party, and acts in the capacity of a trustee or agent for the estate, or for the beneficiaries of the estate when the recovery, as in case of actions for wrongful death, is not an asset of the estate.</p> <p>6. Same — Where action for wrongful death is instituted within time allowed, third successive representative may be made pai>ty and maintain action.</p> <p>The duly appointed administrator of the estate of deceased instituted action for wrongful death within the time allowed. More than a year thereafter it was discovered that deceased had left a will, which was duly probated in the state of her residence. On motion of defendant in the action for wrongful death, an order was entered revoking the letters and directing the administrator to show cause, and on the same day an administrator c. t. a. was appointed. At the hearing on the motion to show cause it was ordered that the order of revocation remain in full force and effect. Eighteen days thereafter the administrator c. t. a. resigned, having made no reports and taken no steps in regard to prosecuting the action. The original administrator at the instance of the beneficiary of the estate was appointed administrator o. t. a., d. 6. 'n. Held: The motion of the administrator o. t. a., d. 6. n., that he be permitted to enter the action for wrongful death as plaintiff should have been allowed.</p>

Appeal by defendant from Alley, J., at September Term, 1945, of Guilford (Greensboro Division). Civil action instituted 20 February, 1944, for tbe recovery of $2,600.00 from tbe defendant, alleged to be due as a balance on salary. Tbis cause was beard by bis Honor upon an agreed statement of facts, a jury trial having been waived by tbe parties. Tbe essential parts of tbe agreed statement of facts are as follows: 1.

Appeal by plaintiff from Alley, J., at September Term, 1945, of Guilbobd. Reversed. Claim for compensation tinder the Workmen’s Compensation Act for the death of George Bradshaw McPherson. The Industrial Commission found that the deceased was an employee of defendant Southern Waste Paper Company, and that his injury by accident, resulting in his death, arose out of and in the course of his employment by the defendant.

<p>1. Master and Servant § 59d—</p> <p>The provision of the North Carolina Unemployment Compensation Act for refund of money is sufficiently broad to cover refund of -money paid through mistake without raising technical distinctions between voluntary and involuntary payments, and defense to recovery on the ground that there is no remedy for recovery for taxes voluntarily paid is inapplicable. G. S., 96-10 (e).</p> <p>2. Same—</p> <p>Section 26, ch. 377, Session Laws of 1943, which enlarges the time within which the application and refund of unemployment compensation taxes may be made from one to three years, is procedural and relates merely to the limitation on the authority of the commission to make refund, and therefore giving the statute retroactive effect does not violate any constitutional inhibition, but even if it should be considered strictly as a statute of limitations, retroactive effect would not impair obligations of contracts or destroy vested rights, and therefore would be constitutional.</p> <p>3. Limitation of Actions § 3—</p> <p>Giving retroactive effect to statutes enlarging the period of limitation for the institution of an action or filing of claim does not violate any constitutional inhibition when such effect does not impair the obligations of contracts or disturb vested rights.</p> <p>4. Master and Servant § 59d—</p> <p>Section 26, eh. 377, Session Laws of 1943 (G. S., 96-10 [e]), is held to disclose the intent that its provisions be retroactive as well as prospective, and under the statute an employer may file claim for refund of taxes erroneously paid within three years of payment and the Commission may make refund, even though such refund was precluded under the terms of the prior statute because more than one year had elapsed from date of payment.</p> <p>5. Same—</p> <p>Under the facts of this case formal application for refund of taxes paid held waived, and further, the Commission had authority to make the refund on its own initiative.</p>

Appeal by plaintiffs from Nettles, J., at September Term, 1945, of Forsyth. Affirmed. Civil action for equitable relief against tbe burden of restrictive covenants contained in deeds to property in a residential development, beard on demurrer.

<p>Appeal by defendant from Bobbitt, J., at August Term, 1945, of Wilxes. No error.</p> <p>Criminal prosecution on bill of indictment charging that defendant •did kill and murder one William Bunker.</p> <p>Defendant and deceased were prisoners confined in a prison camp located in Wilkes County. Some time shortly prior to the homicide the defendant had been put in solitary confinement for a period of days. He believed that this was due to the fact the deceased had reported to the prison officials certain acts of sex perversion by defendant. Being incensed thereby, he had made a number of threats against deceased, the object of his unnatural love.</p> <p>On Sunday, 1 April, 1945, the prisoners were in camp, more or less at ease. Bunker, the deceased, and two other prisoners were passing, ball in the yard outside the. cell block. The defendant went to the yard and told Bunker he wanted to see him. He put his arm around Bunker and they walked into the cell block and continued on down about midway the cell block while the defendant still held Bunker around his waist. As they proceeded defendant had a knife-like weapon in his hand and Bunker was holding defendant’s wrist. Bunker cried out to the twenty-odd prisoners in the cell block, asking for help and pleading that they stop defendant and not let defendant kill him. They in turn shouted to defendant, telling him not to kill Bunker, but they did nothing further to interfere.</p> <p>Bunker lost his hold on defendant’s wrist. Defendant then tripped Bunker, who fell to the floor. Thereupon defendant stabbed him several times with the weapon. He said, “G-- d-you, I told you I was going to kill you.” Bunker managed to get up and run to the sink. Defendant caught up with him, knocked him down,, and stabbed him five or six times. Two of the stab wounds entered the heart, causing the death of Bunker before he reached the hospital.</p> <p>The weapon used by defendant was a hand-made knife or dirk-like instrument, having a wood handle and a blade six inches long. The blade was set in tbe handle, was sharp on both sides and was pointed on the end. It was about %6 inch thick and % inch wide.</p> <p>There was a verdict of guilty of murder in the first degree. The-court pronounced judgment of death and defendant appealed.</p>

Appeal by defendant from Alley, Jat 9 July, 1945, Mixed Term, of Guileoed. The defendant was tried upon an indictment charging him with larceny of $260 from the person of C. H. Josey, and challenges the conduct of the trial in the particulars noted.

<p>1. Municipal Corporations § 14 — City is required to provide handrails and sufficient light when appropriate in discharge of duty to maintain streets in reasonably safe condition.</p> <p>Plaintiff instituted this action alleging that his intestate was killed as a result of the negligence of defendant municipality in failing to provide handrails or guards and sufficient light at a bridge which was a part of a city street. Defendant demurred on the ground that it was acting in its sovereign capacity and was immune from suit. Held: The demurrer should have been overruled, since the maintenance of guard rails and providing reasonably adequate light when appropriate is required of a city in discharge of its positive duty to maintain its streets in a reasonably safe condition for travel, G. S., 160-54. The doctrine of sovereign immunity obtains in this State only when the negligence alleged is solely or exclusively predicated on defect or negligence in the original construction.</p> <p>2. Same—</p> <p>While a city may not be under legal necessity of lighting its streets at all, where a city does maintain street lights, it is negligent in failing to provide lighting which is reasonably required at a particular place because of a dangerous condition of the street.</p>

<p>Appeal by defendant from Williams, J., at June Criminal Term, 1945, of "Wake.</p> <p>Tbe defendant was tried upon a bill of indictment charging him with an assault, with intent to commit rape, upon one Martha Anne Midgette. The jury returned a verdict of guilty of an assault with intent to commit rape. From sentence of imprisonment predicated on the verdict the defendant appealed, assigning errors.</p>

<p>1. Homicide § 4d—</p> <p>Murder committed in the perpetration or attempt to perpetrate a robbery is murder in the first degree. G. S., 14-17.</p> <p>2. Same—</p> <p>Where there is a conspiracy to rob and one of the conspirators kills in the attempt to perpetrate the robbery, each of the conspirators is guilty.</p> <p>3. Criminal Law § 41d—</p> <p>Where incriminating testimony of a witness has been attacked by cross-examination to impeach the witness’ credibility, testimony by officers of similar, consistent statements made by the witness is competent for the purpose of corroborating the witness.</p> <p>4. Criminal Law § 33—</p> <p>The finding' of the court that the confessions offered in evidence were voluntary will not be disturbed on appeal when the finding is supported by evidence.</p> <p>5. Same—</p> <p>Unless challenged, the voluntariness of a confession will be taken for granted.</p> <p>6. Same—</p> <p>The fact that defendants were under arrest and in the presence of a number of officers at the time of making confessions does not in itself render the confessions incompetent for lack of voluntariness.</p> <p>7. Criminal Law § 34g—</p> <p>Conversations between several conspirators in furtherance of the common purpose is competent against another conspirator even though he was not present.</p> <p>8. Homicide § 25—</p> <p>Evidence of defendant’s participation in a conspiracy to rob resulting-in tbe death of the victim at the bands of a co-conspirator in the attempt to perpetrate the offense held, sufficient to overrule defendant’s motion to nonsuit.</p> <p>9. Criminal Law § 81e—</p> <p>When there is no prejudicial error in the charge when read contextually, assignments of error thereto will not be sustained.</p>

<p>1. Adverse Possession § 19—</p> <p>In an action involving title to' timber lands, evidence that plaintiff, for a period of 27 years, listed the property for taxes, cleared and cultivated small patches, cut and removed logs and crossties, held sufficient to be submitted to the jury on the question of adverse possession by the continuous use of the property for the purpose of which it was susceptible.</p> <p>2. Trial § 16—</p> <p>Where evidence is admitted conditionally and later excluded and the jury instructed not to consider it, any error in its admission is corrected and an exception to its admission cannot be sustained.</p> <p>3. Adverse Possession § 18—</p> <p>In a case tried solely on the theory of adverse possession for a period of 20 years, a deed to plaintiff executed at the time he took possession but unregistered until after defendant’s deed, is competent as a relevant fact in connection with other circumstances tending to show claim of title.</p> <p>4. Same—</p> <p>Under a claim of title by 20 years adverse possession, tax receipts, though insufficient alone, are competent in connection with other circumstances to show that plaintiff had been asserting a claim to the property.</p> <p>5. Evidence § 15—</p> <p>Conflict in statements in plaintiff’s evidence affects its credibility but not its competency.</p>

Appeal by defendant from Carr, J., 30 July, 1945, in Chambers, in Alamance. This is an action brought under the Uniform Declaratory Judgment Act, G. S., Art. 26, sec. 1-253, for the purpose of interpreting the last will and testament of W. P. Ingle, deceased, to determine whether the plaintiffs have a good and indefeasible title in fee simple to the property devised in said will.

<p>Descent and Distribution § 1: Master and Servant § 30b: Death § 9—</p> <p>A railroad company settled a claim for wrongful death of an employee engaged in interstate commerce. The funds were paid to his adminis-tratrix. Held: The funds have the same status as though they had been recovered under the Federal Employer’s Liability Act in solido without apportionment of the award by a jury, and therefore the funds should be distributed according to- our statute of distribution and not apportioned among the beneficiaries of the deceased according to the pecuniary loss each sustained.</p>

<p>Appeal by defendant from Dixon, Special Judge, at March Term, 1945, of MecxleNbubg.</p> <p>The defendant was indicted for the murder of one Theodore Malpert. At the outset of the trial the solicitor announced he would not ask for a verdict of guilty of murder in the first degree but for a verdict of guilty of murder in the second degree or of manslaughter, as the evidence might warrant.</p> <p>The State offered evidence tending to show that the defendant shot and killed the deceased in a difficulty in an automobile, and the defendant, testifying in his own behalf, admitted that he shot and killed the deceased and pleaded self-defense.</p> <p>The jury returned a verdict of guilty of manslaughter, and from judgment of imprisonment predicated on the verdict defendant appealed, assigning errors.</p>

Appeal by defendant from Burgwyn, Special -Judge, at April Term, 1945, of EobesoN. Tbe jury returned a verdict of guilty of murder in the second degree, and from judgment of imprisonment, predicated on the verdict, the defendant appealed, assigning errors.

Appeal by plaintiff from Harris, J., at June Civil Term, 1945, of ORANGE. This is an action by the plaintiff to recover damages for personal and property injuries alleged to have been caused by the negligence of the defendants.

Appeal by plaintiff from Nettles, J., at September Term, 1945, of FORSYTH. Civil action for absolute divorce on ground of adultery. Tbe defendant denied tbe allegations of tbe complaint, pleaded condo-nation, and set up a cross-action for divorce a, mensa et thoro on tbe ground that plaintiff’s improper relations with other women and indignities offered to tbe defendant were such as to render her condition intolerable and life burdensome.

Appeal by defendants and claimants from Nettles, J., at October Term, 1945, of Foesyth. Error and remanded. Exceptions to report of receiver as to allowance of claims. The plaintiff’s claim for $775.62 was allowed, and those of other claimants were placed in second class. The receiver’s report was approved and confirmed by the court. Defendants and other claimants adversely affected excepted and appealed.

Appeal by plaintiff from Johnson, Special Judge, at April Term, 1945, of AlamaNce. This was an action to recover for breach of contract to maintain and support the plaintiff as consideration for the execution of a deed. At the close of the evidence judgment of nonsuit was entered, and plaintiff excepted and appealed.

Appeal by plaintiff from Bobbitt, J., at October Term, 1945, of Wilices. Tbis was an action to recover damages for the burning of plaintiff’s motor truck, alleged to have been caused by the negligence of defendant’s agents and employees while acting within the scope of their employment.

Appeal by defendant Southeastern Air Service, Inc., from Bobbitt, J., at January Term, 1946, of McDowell. Civil action to recover damages for wrongful death, heard on motion by the corporate defendant, made on special appearance, to quash the summons herein and to invalidate the attempted service thereof. The airplane accident which caused the death of plaintiff’s intestate, a student pilot, occurred on 31 December, 1944.

Appeal by respondents Nettie DeFord, Cyntbia DeFord Adams, and Sgt. Lyman DeFord, from Carr, J., September, 1945. From JohNSTON. Proceeding instituted in tbe juvenile court of Johnston County to determine the custody of James Lyman DeFord, an infant seven years of age. Petitioner, Mrs. Elizabeth Brown Mann, and respondent Lyman DeFord, a native of North Carolina, married 25 January, 1935, in Louisiana, of which State petitioner was then a resident.

Appeal by defendants from Pless, J., at Novembei’ Term, 1945, of Caswell. The defendants were tried upon five bills of indictment, for offenses growing out of the same or interrelated transactions and consolidated for the purpose of trial: Two for assault with a deadly weapon, one for kidnapping, one for attempted burglary, and one for forcible trespass. They were convicted on the charges of attempted burglary and forcible trespass, and acquitted on the others.

<p>Appeal by defendant from Burgwyn, Special Judge, at October Term, 1945, of Halifax.</p> <p>The defendant was indicted under two bills of indictment, one charging him with the murder of Marjorie Blackwood and the other with the murder of A1 Preston Blackwood. Without objection, the two indictments were consolidated for the purpose of trial. The defendant was convicted of murder in the first degree upon the bill of indictment charging him with the murder of Marjorie Blackwood, and convicted of murder in the second degree upon the bill of indictment charging him with the murder of A1 Preston Blackwood. Upon the conviction of first degree murder of Marjorie Blackwood the court entered judgment of death, and the defendant appealed, assigning errors. No appeal was taken by defendant from the conviction of him of second degree murder of A1 Preston Blackwood.</p>

Appeal by petitioners from Carr, J., at November Term, 1945, of JOHNSTON. Petition to sell land for partition. It is alleged that the feme petitioners and respondents, as the only children and .heirs at law of Susan Jernigan, deceased, are tenants in common by inheritance of a tract of land in Johnston County, containing 88y% acres, which their mother left undevised at the time of her death, 27 October, 1943.

Appeal by defendants from Ga/rr, J., at October Term, 1945, of Wayne. Cedric Toler and Tburman Toler, both minors, by their next friend, Lloyd E. Toler, instituted actions for personal injuries against the defendants, trading as Savage Taxi. The cases were consolidated for trial by consent. On 14 January, 1944, about J :30 p.m., Cedric Toler and Thurman Toler were riding on a bicycle on Ash Street in the City of Goldsboro.

<p>Kidnapping §§ 1, 2—</p> <p>Kidnapping is the taking and carrying away of a human being by physical force or by fraud, done unlawfully or without lawful authority, and a charge defining the offense as forcibly taking and carrying away of a human being is held, for error as being incomplete. G. S., 14-39.</p> <p>Sea well, J., dissents.</p>

<p>1. Criminal Law § 78c—</p> <p>Assignments of error should be based upon exceptions briefly and clearly stated and numbered in the record, but in a capital case assignments of error not so based nevertheless may be considered. Rule 21.</p> <p>2. Rape § lb—</p> <p>An indictment charging that defendant with force and arms did unlawfully, willfully and feloniously ravish and carnally know the prosecuting witness, a female, by forcé and against her will, is held sufficient to support a verdict of guilty of the capital offense and judgment of death pronounced thereon.</p> <p>8. Rape § 23~—</p> <p>The failure of the court, in defining assault on a female, to state that the perpetrator must he a male over eighteen years of age will not be held for error on defendant’s appeal, since there is a presumption that defendant is over eighteen years of age and the burden rests upon him to show the contrary.</p> <p>4. Criminal Law § 42c—</p> <p>In cross-examining a witness for the State, defendant is not entitled to ask a question which assumes facts which are not established or admitted.</p> <p>5. Rape § 4—</p> <p>In this prosecution for rape, evidence tending to show that defendant choked and beat the prosecuting witness and by the use of force had sexual intercourse with her against her will, together with testimony of an admission made by defendant to the chief of police that defendant had feloniously assaulted .prosecutrix, is lielü, sufficient to be submitted to the jury, and defendant’s motion for a directed verdict of not guilty was properly refused.</p>

<p>1. Courts § 14—</p> <p>An action to recover balance due on a contract for the sale and delivery of goods, consummated in another state, is governed as to its substantive features by the laws of such other state.</p> <p>2. Sales § 13a—</p> <p>The Uniform Sales Act has not been adopted in the State of West Virginia, where the contract in suit was consummated, and therefore the provisions of that Act in regard to warranties has no application.</p> <p>3. Sales § 27—</p> <p>Where, in an action to recover the balance due on an executed contract of sale, defendant sets up a counterclaim for breach of warranty, the court has the power, upon objection, to limit defendant’s evidence on the issue of damages to those items alleged by him, and recovery on the counterclaim could not exceed the amount so alleged and demanded.</p> <p>4. Contracts § 25a—</p> <p>Only those damages may be awarded for a breach of contract which are within the reasonable contemplation of the parties as a natural and probable consequence of the breach and which are, therefore, foreseeable.</p> <p>5. Same: Sales § 27—</p> <p>Special damages, while most frequently applicable to executory contracts, are recoverable in proper cases for breach of executed sales contracts, but in all instances the party sought to be charged must have been duly informed at the time of making the contract of the circumstances out of which the damages may arise, and such special damages must be properly pleaded.</p> <p>e. Sales § 27—</p> <p>Where, in an action to recover the balance due on an executed contract of sale, defendant pleads breach of warranty, but fails to plead special damages and offers no evidence that at the time of making the contract the seller had knowledge that defendant had a contract to resell, evidence proffered by defendant to show the loss and amount of the expected profit from such resale is properly excluded.</p> <p>7. Same—</p> <p>In this action to recover balance due on executed contract of sale the issues submitted, without objection by defendant, were (1) the execution of the contract and the delivery of the goods, answered in the affirmative by consent, (2) the amount plaintiffs were entitled to recover, and (3) the amount, if any, defendant was entitled to recover on his counterclaim for breach of warranty. Held,: Nothing else appearing, plaintiffs were :prima facie entitled to recover the purchase price on the second issue subject to diminution to its full extent by any recovery by defendant on tbe third issue, and defendant was not prejudiced by an instruction to answer tbe second issue, in the amount of the contract price if the jury was satisfied by the greater weight of the evidence of the contract of sale and delivery of the goods thereunder.</p> <p>8. Same—</p> <p>Breach of warranty in a sales. contract is an affirmative plea, whether as a defense or as ground for recovery of damages, and the seller is not required to anticipate or negative such defense, but the burden is on the purchaser pleading such defense to establish it by the greater weight of the evidence.</p> <p>9. Same—</p> <p>In this action to recover balance due on an executed sales contract defendant set up a counterclaim for breach of warranty and his evidence on the question of damages relating thereto was not limited except for the exclusion of evidence relating to special damages not pleaded, but the court limited recovery on the issue to the purchase price paid or agreed to be paid. Upon conflicting evidence the jury answered the issue of damages on the counterclaim “nothing.” Held: Even though the limitation of the recovery might be more applicable to instances where the remedy sought is rescission or offset, in view of the jury’s verdict defendant was not prejudiced by such limitation.</p>

Appeal by defendants from Phillips, J., at October Term, 1945, of MoNtgomeet. Modified and affirmed. This action was instituted in 1941 to restrain defendants from cutting timber on plaintiffs’ 30-acre tract of land. Tbe plaintiff Charity Poole Clark is one of the heirs of H. P. Poole, deceased. At the time of his death H. P. Poole owned three tracts of land, containing respectively (1) 7% acres, (2) 64 acres, and (3) 60 acres.

Appeal by defendant from Gwyn, J., at November Term, 1945, of Caldwell. Criminal prosecution tried upon two warrants, one cbarging reckless driving and tbe other witb operating a motor vehicle while under tbe influence of liquor or narcotic drugs, in violation of G. S., 20-138. Tbe jury returned a verdict of not guilty as to tbe charge of reckless' driving and a verdict of guilty as to tbe charge of operating a motor vehicle while under tbe influence of liquor.

Appeal by defendant from Burney, J., at October Criminal Term, 1945, of LeNOie.

Appeal by all the defendants except the administrator, from Bone, J., at September Term, 1945, of Lenoir. This is a special proceedings instituted before the clerk of the Superior Court of Lenoir County, for the sale for partition of certain lands situate in the City of Kinston and County of Lenoir, devised by Addie Moseley Taylor, and, for the construction of her will devising and bequeathing the residue of her property, of which said lands are a part.

<p>Appeal by defendants from Gwyn, J., at November Term, 1945, of Caldwell.</p>

Appeal by plaintiff from Bone, J., at September Term, 1945, of LeNOIR. Tbe plaintiff divided bis land amongst bis children, including tbe defendant Laura Davis Lovick, an illegitimate daughter, conveying to each of them by deed in fee tbe remainder after reserving to himself and wife a life estate. Tbe wife is now dead.

Appeal by defendant from Burney, J., at October Term, 1945, of SampsoN. Reversed. Criminal prosecution under a warrant charging the unlawful possession of illicit liquor for the purpose of sale, beard in the Superior Court on appeal from the county recorder’s court. On the night of 21 January, 1945, three police officers went to the home of defendant. Two of them went to the kitchen window to listen. They heard two or three people inside talking.

Appeal by plaintiff from Phillips, J., at January Term, 1946, of Catawba. Civil action to recover (1) royalties upon tbe use by defendants in their hosiery mill of patent devices, invented by the plaintiff, and (2) damages for wrongful interference with plaintiff’s use of his invention. From judgment of nonsuit entered at the close of plaintiff’s evidence, he appeals, assigning errors.

Appeal by defendant from Armstrong, J., at August Term, 1945, of Cabakrus. Civil action to recover one-balf cost of digging well on land leased and optioned by plaintiff to defendant, wbicb tbe defendant later purchased by exercising option.

<p>Appeal by defendant from Olive, Special Judge, at January Term, 1946, of Randolph. Reversed.</p> <p>This was a summary proceeding in ej'ectment begun before a j’ustice of the peace, based upon affidavit that defendant had “entered into possession” of a described house and lot, and “refuses to vacate the house.” Summons was issued 1 September, 1945, and judgment for plaintiff rendered 8 September. Defendant appealed to the Superior Court.</p> <p>On the hearing in the Superior Court plaintiff testified that he rented the property to Mrs. J. B. Branson for $15 per month, that he gave her notice in March, 1945, that he wanted the house 1 September. The rent was paid by Mrs. Branson to that date. On 4 September, 1945, plaintiff wrote J. B. Branson that he had placed the matter in the hands of his attorney and “he will give you due notice when to vacate.” The attorney wrote defendant J. B. Branson giving him until 10 September, 1945, to vacate.</p> <p>There was verdict for plaintiff, and from judgment rendered thereon defendant appealed.</p>

Appeal by defendants from Parher, J., at September Term, 1945, of Wake, beard in Supreme Court upon motion in arrest of judgment.

Appeal by movents from Carr, J., at December Term, 1945, of JOHNSTON. This proceeding began 30 December, 1930, as a tax foreclosure suit, under tbe current statute, chapter 221, Public Laws of 1927; chapter 204, Public Laws of 1929 (C. S., 8037); against Mrs. J. R. Ellis and her husband, J. R. Ellis, with service on Mrs. Ellis alone.

<p>1. Divorce § 14—</p> <p>Where a complaint alleges certain acts of misconduct constituting bases for divorce, both absolute and from bed and board, with prayer for relief demanding subsistence for the plaintiff and the minor child of the marriage, and for such other relief as may be just and proper, without prayer for divorce, the cause is an action for alimony without divorce under G. S., 50-16.</p> <p>2. Same—</p> <p>In an action for alimony without divorce under G. S., 50-16, there is available to the wife not only the grounds specifically set forth in the statute; b.ut also any ground that would constitute cause for divorce from bed and board under G. S., 50-7, or cause for absolute divorce under G. S., 50-5.</p> <p>3. Divorce § 5c—</p> <p>In an action for divorce from bed and board under G. S., 50-7, it is necessary that the complaint allege that any of the acts of misconduct 'constituting the basis of the action were without adequate provocation on the part of plaintiff.</p> <p>4. Divorce § 5b—</p> <p>In an action for absolute divorce on the ground of adultery it is not required that the complaint allege that the misconduct was without adequate provocation.</p> <p>5. Divorce § 14—</p> <p>Where, in an action for alimony without divorce under G. S., 50-16. the complaint alleges adultery and also sets forth acts of misconduct constituting a basis for divorce from bed and board, the failure of the complaint to allege that the misconduct was without adequate provocation is not fatal, since such allegation is not necessary in an action for absolute divorce on the ground of adultery, and this ground, independently, is sufficient to sustain the action for alimony without divorce.</p> <p>6. Divorce §§ lc, 14—</p> <p>In an action for alimony without divorce the allegation of adultery forming a basis for the relief sought cannot be held fatally defective on the ground that it sets forth facts amounting to condonation when the complaint also alleges acts of misconduct committed by defendant after the reconciliation which revive the old grounds.</p> <p>7. Divorce § 12—</p> <p>The complaint in this action is held to state a cause of action for alimony without divorce'under G. S., 50-16, and therefore was sufficient basis for the order allowing alimony pendente lite.</p> <p>8. Divorce § 14—</p> <p>In this action for alimony without divorce plaintiff set forth in the complaint that she had theretofore instituted an action for subsistence in which an order had been made, hut that plaintiff secured the dismissal of this suit after defendant had begged forgiveness and promised to mend his ways. Held: The court was without jurisdiction to incorporate into the allowance granted plaintiff the amount supposedly due under the prior order, both because of the vagueness of the reference to the prior order in the complaint and also because of the fact that the prior action had been dismissed.</p>

Appeal by defendant from Cwrr, J., at November Term, 1945, of WayNe. No error. Criminal prosecution on bill of indictment wbicb charges that defendant did kill and murder one Hubert Carraway, tbe charge' of murder in the first degree being waived by the solicitor. All the testimony tends to show that on the night of 17 August, 1945, defendant’s car stalled at his sister’s home.

Appeal by defendant from Hamilton, Special Judge, at February Term, 1946, of Mecklenbtjeg. The essential parts of the agreed statement of facts upon which this controversy was submitted to the court below, are as follows: 1. Prior to the year 1913, Paul Chatham acquired a tract of land partly lying in the eastern section of the City of Charlotte and partly outside, and caused a map thereof to be made, said map showing 53 blocks and known as Chantilly. 2.

Appeal by defendant from Parker, J., at November Term, 1945, of Wake.

Appeal by defendant from Bone, J., at January Term, 1946, of Wake. Criminal prosecution upon indictment charging the defendant with the murder of one Ernest Jones, Jr. The evidence tends to show: That on the afternoon of 15 December, 1945, about 1:00 o’clock, the defendant and his wife had a quarrel. His wife left home and stated she was going to the home of her mother at 706 Carroll’s Alley, in the City of Raleigh.

Appeal by plaintiff from Bobbitt, J., at November Extra Term, 1945, of MeCKLENBTJRG. Civil action, by broker to recover commission for procuring purchaser ready, able and willing to buy land on terms authorized. The plaintiff is a licensed real estate broker iñ the City of Charlotte.

<p>Appeal by plaintiff from Parker, J., at December Civil.Term, 1945, of Wake. Affirmed.</p> <p>Civil action for divorce beard.on demurrer to tbe further defense and cross action pleaded in defendant’s answer.</p> <p>Tbis case was here on former appeal. Pearce v. Pearce, 225 N. C., 571. After the cause was remanded tbe defendant filed an amended answer in wbicb she pleads a revised further defense and cross action.</p> <p>Tbe plaintiff demurred for that tbe facts alleged, in view of defendant’s admissions, are not sufficient to constitute (1) a cross action or (2) a valid defense. Tbe demurrer was overruled and plaintiff appealed.</p>

<p>1. Criminal law § 51—</p> <p>The legal sufficiency of evidence to go to the jury is for the court; its credibility, weight and significance are for the jury, upon appropriate instruction by the court respecting the degree, or intensity of proof required to convict.</p> <p>2. Homicide § 25—</p> <p>Evidence of defendant’s guilt of manslaughter in .an attempt at criminal abortion held sufficient to be submitted to the jury, but as a new trial is ordered on an exception relating to the admission of evidence, recitation of the evidence is not necessary.</p> <p>3. Criminal Law §§ 42e, 81c — Admission of entire news articles, without proper correlation for pui’pose of impeaching witness, held error.</p> <p>Two witnesses for defendant testified, in corroboration of testimony of defendant, that they saw a taxi leave the defendant’s residence at the time in question, in conformity with defendant’s statement as published in articles in the local papers. The articles referred to did not contain any statement relating to a taxi. The State, over objection offered in evidence the entire articles for the purpose of contradicting and impeaching the witnesses. Seld: Since the statements of the witnesses and the news stories were not sufficiently correlated for the purpose of contradiction and impeachment, the admission of the entire news articles, which constituted second-hand evidence of the events recorded therein, was error, and since the articles contained statements prejudicial to defendant beyond those admitted by defendant in his testimony, the admission of the news articles cannot be held harmless.</p>

Appeal by defendants Euth Buffaloe Wilson, Katie Buffaloe and Norman B. Buffaloe from Grady, Emergency Judge, at September Term, 1945, of Wake. Modified and affirmed. This was an action by tbe executors of tbe will of David T. Barnes, deceased, under tbe Declaratory Judgment Act, for advice and direction in tbe administration of tbe estate. Tbe devisees and legatees are made parties defendant. All are of full age.

<p>Appeal by defendants from Grady, Emergency Judge, at January Term, 1946, of Waee.</p> <p>Proceeding under Workmen’s Compensation Act to determine liability of New York Life Insurance Company (Employer) and Travelers Insurance Company (Carrier) to Mrs. Bessie Rogers Rewis, widow and only surviving dependent of Millard Rewis, deceased employee.</p> <p>In addition to tbe jurisdictional determinations, tlie essential findings of tbe Industrial Commission follow:</p> <p>Millard Rewis was employed by tbe New York Life Insurance Company as an agency organizer. In tbe mid-afternoon of 28 December, 1943, be bad occasion to go to tbe eleventh floor of tbe Security Bank Building, Raleigb, N. C., on business of bis employer. While there be found it necessary to visit tbe men’s washroom. Shortly after entering tbe washroom, feeling faint from idiopathic ulcerative colitis, which bad plagued him for several years, and in an effort to get some fresh air, be went to one of tbe open windows in tbe washroom, slipped on tbe slick tile and fell through tbe window to the roof of tbe adjoining building nine stories below. He died as a result of tbe fall.</p> <p>No one saw tbe deceased fall to bis death, but while be was in one of tbe stalls, where bis coat and overcoat were afterwards found banging, be called to a person in an adjacent booth and said: “Please help me to tbe window, I am about to faint.” Two windows were open directly in front of tbe stall used by tbe deceased. Tbey were 32 inebes from tbe floor, 35 inebes wide; 28 inebes from tbe sill to tbe top of tbe lower section of tbe window; tbe sills were approximately 15 inebes thick; and tbe distance from tbe front of tbe stall to tbe window was approximately 37 inebes. Tbe floor of tbe washroom is of tile, very slick, and was washed in tbe morning of each day. Tbe body of tbe deceased was found directly beneath tbe open window.</p> <p>Tbe Commission found as a fact that tbe deceased sustained an injury by accident, which arose out of and in tbe course of bis employment, when be accidentally fell from tbe window of tbe men’s washroom on tbe eleventh floor of tbe Security Bank Building-; that bis “feet slipped on tbe slick tile when be sought comfort at tbe open window”; that tbe fall was tbe proximate cause of bis death; that bis pre-existing idiopathic condition was not tbe cause of bis death, and that tbe deceased did not commit suicide. 'Whereupon compensation was awarded.</p> <p>On appeal to tbe Superior Court, tbe award of tbe Commission was upheld. From this latter ruling, tbe defendants appeal, assigning errors.</p>

Appeal by plaintiff from Hamilton-, Special Judge, at February Extra Term, 1946, of MeckleNbukg. Civil action to recover damages resulting from alleged actionable negligence of defendants.

Appeal by plaintiffs from Sink, J., at October Term, 1945, of Meck-lenbtteg. No error. Civil action' for a decree tbat under the terms of an express parol contract defendant Keith M. Beatty holds title to certain lands as trustee for plaintiffs. Here on former appeal. McCorkle v. Beatty, 225 N. 0., 178. • There are three tracts of land. Two belonged to plaintiff R. L. McCorkle and one to plaintiff Sara L. McCorkle.

Appeal by plaintiff from Phillips, J., at November Term, 1945, of IREDELL.

Appeal by defendant from Williams, J., at December Term, 1945, of New HaNovek. Civil action for specific performance and damages for tortuous eviction. Summons was issued 12 June, 1944, and complaint filed simultaneously therewith.

Appeal by defendant from Bone, J., at September Term, 1945, of SAMPSON. Civil action to recover on six policies of insurance for total and permanent disability.

<p>Appeal by defendant, Wachovia Bank and Trust Company, Administrator d. h. n., c. i. aof the estate of J. C. Welch, Sr., deceased, from Nettles, J., at February Civil Term, 1946, of Gtjileobd (Greensboro Division).</p> <p>Civil action for termination of testamentary trust and for final settlement of administration of estate of J. 0. Welch, Sr., deceased, to which defendant Wachovia Bank and Trust Company, as administrator d. i. n., c. t. a., of estate of J. C. Welch, Sr., deceased, and as Trustee under his last will and testament, by permission of court filed cross action for declaratory judgment, as to questions of law as hereinafter shown, upon which cross action the case was heard and determined in Superior Court.</p> <p>The cause coming on for hearing the court found, and all the parties admitted substantially these pertinent facts as alleged in the cross action aforesaid :</p> <p>I. That J. C. Welch, Sr., of Guilford County, North Carolina, died on 19 Tuly, 1920, leaving a last will and testament, which was duly probated and recorded in said county on 14 August, 1920, pertinent portions of which are as follows: “After payment of my just debts and funeral expenses, I declare that my property shall be managed and disposed of as hereinafter directed :</p> <p>“1. I constitute and appoint my wife, Mary Welch, and my son in law, George T. Penny, executor and executrix respectively of this my last will and I give them, or in case of the death of either of them, the survivor, full power and authority to manage, invest, reinvest and to sell both real and personal estate by public auction or by private sale and to convey the same by such deeds or other instruments as may be necessary to present the legal title thereto . . .</p> <p>“3. I direct that my said executrix and executor or either of them shall collect all interest and other income after paying all expenses, properly chargeable to income, to pay over the balance or net income in monthly payments as follows: (1) one-sixth to my wife, Mary Welch, during her natural life and at her death the said one-sixth shall be paid equally to all of my children or their representatives. (2) One-sixth to my daughter, Lena E. Penny. (3) One-sixth to my daughter, Euth Welch. (4) One-sixth to my daughter, Lizzie Welch. (5) One-sixth to my wife, Mary Welch, for the use and benefit of my son, J. C. Welch, Jr., during his minority and to my son, J. 0. Welch, Jr., I direct the said one-sixth to be paid after his arriving at his majority and thereafter. (6) The remaining one-sixth I direct to be paid to my daughter, Allie Foster, wife of J. T. Foster, during her natural life, to her sole and separate use and upon her individual receipt, to be free from the control, interference, direction or debts of her husband and at the death of my said daughter, Allie Foster, I direct that the said one-sixth income shall go to and be paid to the children of my said daughter, Allie Foster, but if she dies leaving no children or issue of such, then her share shall go and be paid in equal shares to her mother, if living, and her brother and sisters or their heirs.</p> <p>“4. I direct that in the management of my estate that my executrix and my executor or either of them shall improve or sell all of the unproductive real estate in their, his or her sound discretion and with the proceeds from such sale either improve such real estate as seems best or invest the same in Government Bonds.</p> <p>“It is my desire and I so direct that all personal property of which I shall die possessed shall be invested either in Government bonds or in tbe improvement of my real estate. It is my intention and direction that my estate be managed as above outlined during the life or lives of my executrix or executor and at the death of either of them that the powers herein enumerated shall be exercised by the survivor. At the death of both my executrix and executor, it is my desire and I do direct that my estate be divided into five equal shares and that one share each be given to my daughters, Lena "Welch Penny, Buth Welch and Lizzie Welch and to my son, J. C. Welch, Jr., the remaining share of one-fifth I direct to be paid over to the Wachovia Bank & Trust Company, Winston-Salem, North Carolina, as Trustee, to be held in trust and invested and the net income derived therefrom to be paid over semiannually or more frequently if practicable to my daughter, Allie Welch Foster, during her natural life, to her sole and separate use and upon her individual receipt to be free from the control, interference, direction or debts of her husband and at the death of my daughter, Allie Foster, the said income from the said one-fifth share shall be paid to the child or children of my said daughter until the youngest child arrives at the age of twenty-one years, at which time the said share of one-fifth, discharged of all trust, shall go and be paid to the child or children of my said daughter, Allie Foster, but if she die leaving no child or children or an issue of such, then the said share of one-fifth shall go and be paid in equal shares to my daughters, Lena E. Penny, Buth Welch, and Lizzie Welch and to my son, J. C. Welch, Jr., or their heirs.”</p> <p>II. That at the time his will was made and executed, and at the time of his death, J. C. Welch, Sr., had a wife, Mary F. Welch, a minor son, J. C. Welch, Jr., and four daughters, Lena E. (Welch) Penny, Buth Welch, Elizabeth (Lizzie) Welch, now Elizabeth Welch Burchfield, and Allie Welch Foister; that J. C. Welch, Jr., was not of age and was inexperienced and untried in business affairs; that the four daughters likewise were young and had no business training; that testator had two sons-in-law, J. T. Foister and George T. Penny, the former being “non grata, persona,” and the latter being “highly regarded and esteemed by the testator as an experienced, able and successful business man . . . and . . . had the trust and confidence of said testator,” and testator “had great confidence and trust in his wife . . ., who was acquainted with his affairs to a considerable extent, and aware of his desires and wishes in'respect of his estate.”</p> <p>III. That Mary F. Welch and George T. Penny duly qualified as Executrix and Executor of the said will of J. C. Welch, Sr., on 14 August, 1920, and entered upon the execution of the- said will and of the trust therein set forth.</p> <p>IV. That Mary F. Welch died on 12 September, 1933, and George T. Penny was removed as Executor of the will of J. "0. Welch, Sr., by order of Clerk of Superior Court of Guilford County, on 7 December, 1935.</p> <p>Y. That, in tbe order removing George T. Penny as aforesaid, “defendant, Wachovia Bank and Trust Company, was appointed Administrator de bonis non, cum testamento annexo of said estate, and was clothed and vested with all the powers, duties and authority set out in said will of J. 0. Welch, Sr., deceased, and vested in it by law,” and thereupon said Bank and Trust Company duly qualified and has since been acting as such administrator, and discharging the duties charged upon the executrix and executor by said last will and testament, and holds the assets of said estate, which principally consists of improved productive business real estate.</p> <p>YI. That Ruth Welch, one of the five children, and a beneficiary under the will of J. 'C. Welch, Sr., died intestate on 19 October, 1933, without issue and without ever having been married, leaving as her only heirs at law her brother, J. 0. Welch, Jr., and sisters, Allie Welch Foister, Lena Welch Penny and Elizabeth Welch Burchfield, the remaining four beneficiaries mentioned in item four of the will.</p> <p>YII. That since the death of Mary E. Welch, the widow, and of Ruth Welch, the daughter, occurred prior to the appointment and qualification of Wachovia Bank and Trust Company, as administrator d. b. n., c. t. a., of said estate, and since J. C. Welch, Jr., is now of full age, the said administrator d. b. n., c. i. a., has been paying the net income of the estate in monthly payments of one-fourth each to Lena Welch Penny, Elizabeth Welch Burchfield, Allie Welch Eoister and J. C. Welch, Jr.</p> <p>YIII. That at the time of the removal of George T. Penny as executor, as above stated, the estate was considerably in debt, and embarrassed by mortgages, delinquent taxes and street paving assessments, but by careful and prudent management of the administrator d. b. n., c. t. a., the remaining properties of the estate, of the estimated value of $225,000 in real estate, $4,200 in United States Government Bonds of various kinds, and $6,000 in cash, have recently become free from encumbrances; and that all acts and things done by the administrator d. b. n., c. t. a., have been in good faith, and with consent and at request of beneficiaries, who thereby have benefited and profited.</p> <p>IX. That in view of the foregoing facts, these questions have arisen relative to the construction and legal effect of certain of the provisions, devises and trusts contained in item four of the will:</p> <p>“(a) Whether under the intent and meaning of said will the legal effect of the removal of the surviving executor named in said will, George T. Penny, was equivalent to the natural death of the said George T. Penny, and, therefore, whether the first of the trusts, which is mentioned in Items Third and Fourth of said will, is presently terminable, and whether the shares of said Lena Welch Penny, Elizabeth Welch Burchfield and J. 0. Welch, Jr., are now vested in them free of said trusts.</p> <p>“(b) Whether the death of said Ruth Welch had the effect of terminating the said trust of Items Third and Fourth as to her share and interest.</p> <p>“(c) Whether the share of Ruth Welch, deceased, upon the termination of the first trust (either as to her share by her death or as to the whole trust estate by the removal of said George T. Penny, as Executor) should be divided equally among her brother and sisters, to wit, the said Lena Welch Penny, Elizabeth Welch Burchfield, J. 0. Welch, Jr., and Allie Welch Foister, or whether the portion of Allie Welch Foister of said Ruth Welch’s share should be added to the one-fifth (%) of said estate directed to be paid over to Wachovia Bank & Trust Company, as Trustee under the last section of Item Fourth of said will of J. C. Welch, Sr., deceased.”</p> <p>In respect of the foregoing questions the court concluded as matters of law:</p> <p>“1. Under the intent and meaning of said will of J. 0. Welch, Sr., deceased, the trust vested therein in the said surviving executor, George T. Penny, was personal to said George T. Penny; that the legal effect of the removal of the said surviving executor, George T. Penny, is equivalent to the natural death of said George T. Penny under the intent and meaning of said will; and that the first of the trusts set up in said will, which is mentioned in Items Third and Fourth of said will, is presently terminable, and the shares of Lena Welch Penny, Elizabeth Welch Burchfield and J. 0. Welch, Jr., are now available to them upon demand upon said Wachovia Bank & Trust Company, Administrator d. b. n., c. t. a,.</p> <p>“2. That the death of said Ruth Welch, one of the devisees and beneficiaries under said will, as well as the removal of said George T. Penny as surviving executor, had the effect of terminating the said trust in Items Third and Fourth as to her share and interest; that the share and interest of said Ruth Welch, deceased, in said estate now vests in her surviving brother and sisters, to wit, J. C. Welch, Jr., Lena Welch Penny, Elizabeth Welch Burchfield and Allie Welch Foister, share and share alike under the pertinent statutes governing the estates of persons dying intestate in North Carolina.</p> <p>“3. That the portion of Allie Welch Foister derived as aforesaid of said Ruth Welch’s the decedent’s, share under said testator’s will is not affected by the trust set up in the said will for the original share of said Allie Welch Foister in the will of said J. C. Welch, Sr., deceased, and the said Allie Welch Foister is entitled to have her proper and equal portion of the share of Ruth Welch, deceased, under said will paid and delivered to ber absolutely, free and discharged of the said trust provided in said will for ber original one-fifth (%) share of said estate of J. C. Welch, Sr., deceased.</p> <p>“4. That the Wachovia Bank & Trust Company, as Trustee under the last section of Item Fourth of said will of J. C. Welch, Sr., deceased, is authorized to hold and retain the original one-fifth (%) share of Allie Welch Eoister to be held in trust in accordance with the terms of the last portion of Item Fourth of said will.”</p> <p>5. That all parties are bound and concluded by the acts and things done by defendant Wachovia Bank and Trust Company, as administrator d. b. n., c. t. a., in the administration of the provisions of the will of J. C. Welch, Sr., and that upon accounting and distribution of the property -and funds of the trust estate as above authorized, it shall be discharged and acquitted of any and all further liability in connection with the administration of said trust estate, except as to the remaining trust for the benefit of Allie Welch Foister, as above set forth.</p> <p>Judgment was thereupon entered in accordance with the above conclusions of law.</p> <p>Defendant Wachovia Bank and Trust Company, administrator d. b. n., c. t. a., of the estate of J. 0. Welch, Sr., excepts to conclusions of law I, 2 and 3, and to the signing of the judgment, and appeals to the Supreme Court.</p>

Appeal by defendants from Hamilton, Special Judge, at Extra February Term, 1946, of Meciclenbubg. Tbe corporate executor of the will of Albert B. Clark brought this action to enforce a contract for the purchase of the stock of its testate in the defendant corporation, made by said corporation and individual stockholders.

Appeal by plaintiff from Williams, J., at September Term, 1945, of AlamaNce. Affirmed. Civil action to recover damages for wrongful death. One phase of the controversy involved on this appeal was here on a former appeal. Hayes v. Elon College, 224 N. C., 11. Many of the facts are there stated.

<p>Stacy, C. J., and Winborne, J., took no part in the consideration or decision of this case.</p> <p>Appeal by defendant from Alley, J., at 3 December, 1945, Term, of GruiLFORD (Greensboro Division).</p> <p>This case was here on appeal at the Spring Term, 1945, of the Court, and the result is reported in 225 N. 0., at page 293, 34 S. E. (2d), 430. The statement of the case in that report covers the essential - facts involved in the present appeal, and the full opinion of the Court is so related to the subsequent procedure and the scope of this review that both the statement of the case and the full opinion are referred to as a part of this statement. Matters occurring since the opinion was handed down are further noted.</p> <p>On the former trial the plaintiff, amongst other demands, sought relief on equitable grounds, asking that it be recompensed or that restitution be made to it with respect to money used by the defendant on an attempted assumption of debt thereafter declared to be void. In reviewing the judgment this Court, speaking through Mr. Justice Winborne, said:</p> <p>“It is apparent from the language of the judgment below that the court, in arriving at the decision made, applied the equitable principle of restitution. However, upon the face of the factual situation in hand, we are of opinion and hold that plaintiff may not, at this time, invoke the aid of a court of equity for application of that principle, since it appears that plaintiff is not without an adequate remedy at law. Equity will not lend its aid in any case where, the party seeking it has a full and complete remedy at law. Town of Zebulon v. Dawson, 216 N. C., 520, 5 S. E. (2d), 535; In re Estate of Daniel, ante (225 N. C.), 18.”</p> <p>The remedy at law pointed out by the Court was the enforcement of the 0. Clair Conner note and deed of trust securing it as the individual act of Conner. The opinion proceeds :</p> <p>“. . . Moreover, the deed, the note and the deed of trust are clear and unambiguous, and there is in neither any expression tending to show agency or from which agency may be inferred. Under such circumstances, so long as the deed, the note and the deed of trust remain as they now are, a trusteeship may not be read into the note and into the deed of trust.</p> <p>“See Restatement of the Law of Agency, section 325, 1 Mechem on Agency (2 Ed.), section 1405, et seq., particularly sections 1420 and 1425. Also, Bryson v. Lucas, 84 N. C., 680; Hides v. Kenan, 139 N. C., 337, 51 S. E., 941; Basnight v. JoVbing Go., 148 N. 0., 350, 62 S. E., 420.</p> <p>“Thus, until or unless there be a reformation of the deed, the note and the deed of trust, the legal remedy of foreclosure under the terms of the deed of trust or by civil action would seem to be available to plaintiff.</p> <p>“And so far as the rights of Guilford County in and to the Bradshaw property are concerned, it holds a deed from C. Clair Conner which is made expressly subject to the deed of trust securing the note which plaintiff holds.”</p> <p>The Court held that the provision in the deed of Conner to Guilford County, in which the county undertook to assume and pay the indebtedness to plaintiff, secured by the deed of trust, was not enforceable as an express contract, referring to Article VII, sec. 7, and Article V, sec. 4, of the Constitution. Article VII, sec. 7, of the Constitution forbids the creation of debt other than for a necessary purpose without authorization by popular vote; Article V, sec. 4, prohibits counties from contracting debt during any fiscal year to an amount exceeding two-thirds of the amount by which the outstanding indebtedness of the county shall have been reduced during the preceding fiscal year, without an approving vote of the people. The project had not been declared a necessary purpose; and the debt of Guilford County had not been reduced at all during the preceding fiscal year.</p> <p>After the opinion and decision in Insurance Go. v. Guilford Gounty, supra, were filed in the lower court, the case was formally reconstituted in so far as became necessary to meet the suggestion of the appellate Court respecting the remedy and the defense, and readied for trial. The plaintiff brought in as defendants C. Clair Conner, grantee in the Bradshaw deed and subsequent encumbrancer in the trust deed, and Julian Price, Trustee therein. Appropriate amendments were made to the pleadings, the plaintiff seeking its remedy of foreclosure against Conner under the trust deed, the defendant Guilford County opposing, and seeking to have the Bradshaw deed to Conner, the trust deed of Conner to Price, and the deed of Conner and wife to Guilford County, each reformed in the particulars stated infra. The defendant county sought to reform the Bradshaw deed to Conner by striking out in the premises “C. Clair Conner, unmarried,” and inserting in lieu thereof, “to Guilford County, party of the second part”; to have the deed of trust executed to Julian Price and the note purporting to be secured thereby reformed so as to read “0. Clair Conner, Agent for Guilford County” wherever the signature appears in said deed of trust and note, and thereupon to have the deed of trust and note canceled and annulled; to have the deed of Conner and wife to Guilford County reformed by striking out the clause making it subject to the Jefferson Standard Life Insurance Company debt and deed of trust. The right to reformation in all these respects is grounded upon the allegation of fraud and conspiracy of former members of the County Board of Commissioners, C. Clair Conner and representatives of the plaintiff to cause a debt to be created against Guilford County in violation of the constitutional prohibitions recited and in contravention of public policy. The allegations of fraud are based on the agreement evidenced by resolution of the Board of County Commissioners on 16 November, 1936 (appearing in full in Ins. Co. v. Guilford County, supra, on page 297), and upon the acts of the several parties named in pursuance thereof, culminating in the execution of the above instruments, all of which are included in the stipulations of fact in the case now under review.</p> <p>As on the former trial, the controversy was submitted to the trial judge by consent without the intervention of a jury, on a stipulation of fact as above noted.</p> <p>Upon the stipulated facts, the appellant asked the court below to find that the whole plan set forth in the stipulation of fact had for its end and purpose the nullification of the statutes and Constitution of North Carolina relative to the incurrence of debt by counties; that it was an attempt to create' a debt by Guilford County on property acquired by it for governmental purposes, and that the deed of trust and note executed in connection with it were against public policy, and that the plaintiff seeks the aid of equity in defeating constitutional and statutory provisions, and therefore has no standing in a court of equity; that the erection of the county building in'High Point was not a necessary expense within the meaning of the North Carolina Constitution, Article VII, sec. 7; that at the time the loan was attempted to be made Guilford County was prohibited by the Constitution, Article V, sec. 4, from incurring any debt. “That the substance and object of the plan and scheme shown in said Stipulation of Facts, being contrary to public policy, the form of said plan and scheme should be disregarded and the matter treated as it really was, i.e., the purported or attempted loan of money by the plaintiff to Guilford County; and the purchase of the Bradshaw property therewith, the county using moneys from its general funds-to contribute thereto; and an attempt by the then Commissioners of Guil-ford County to execute a note and a deed of trust upon said property, through an agent, C. Clair Conner.” Further conclusions of law asked for by the defendant county are: “That the plaintiff is not entitled to recover upon a quantum meruit or implied contract.” “Tbat tbe defendant is not estopped to deny tbat it owes tbe alleged debt.” Defendant tben tendered a judgment providing for tbe reformation of tbe instruments in tbe respects requested and denying foreclosure, wbicb tbe court declined to render.</p> <p>At tbe conclusion of tbe bearing and argument tbe trial judge found tbe facts to be as stipulated, and further tbat in all tbe transactions involved tbe parties thereto bad acted in good faith.</p> <p>Among pertinent conclusions of law are tbe following:</p> <p>“Tbe note dated December 1, 1936, in tbe original amount of $100,000, executed by O. Clair Conner and payable to tbe order of Jefferson Standard Life Insurance Company is valid, and in all respects a legal, binding and enforceable obligation; tbat there is now justly due, owing and unpaid, upon said note tbe sum of $79,614.45 witb interest thereon at tbe rate of 4% per annum, payable semi-annually from and after June 1, 1941; and tbat tbe Jefferson Standard Life Insurance Company is tbe lawful owner and bolder of said note.</p> <p>“Tbe deed of trust dated December 1, 1936, from C. Clair Conner to Julian Price, Trustee, given as security for tbe payment of tbe aforesaid note, and recorded in tbe Office of tbe Register of Deeds of Guilford County in Book 797, at page 211, is, in all respects, legal and valid, and is a first and prior lien upon tbe property therein described.</p> <p>“Tbe defendant, Guilford County is not entitled to have said note and deed of trust, or tbe deed from Mrs. Sallie Bradshaw to C. Clair Conner, reformed as alleged in said defendant’s answer.</p> <p>“Tbe Board of County Commissioners of Guilford County, in meeting duly assembled on July 23, 1945, having adopted a resolution declaring tbat tbe acquisition of tbe Bradshaw land and tbe Public County Building erected thereon in tbe City of High Point, described in tbe aforesaid deed of trust to Julian Price, Trustee, a necessary governmental expense of Guilford County, and tbat it is necessary to have said County Building in tbe City of High Point, tbe Court is of tbe opinion and so bolds, tbat tbe purchase of tbe Bradshaw property and tbe erection of tbe County Public Building thereon in tbe City of High Point were and are necessary expenses of Guilford County.”</p> <p>In conformity witb these conclusions, tbe court entered judgment for the amount due on Conner’s note, decreed foreclosure, and adjudged tbat any surplus arising from tbe sale be paid to tbe County of Guilford.</p> <p>Tbe defendant county appealed.</p>

Appeal by plaintiffs from Pless, J., at March Term, 1946, of Forsyth. Civil action beard on motion under Gr. S., 1-220, to sét aside final judgment entered at a former term. Plaintiffs instituted this action on three alleged causes of action: (1) for personal services to the defendant’s intestate, (2) for the value of .certain securities delivered to defendant, and (3) for services rendered defendant.

Appeal by petitioner from Harms, J., at May Term, 1946, of Wake. Petition for writ of mandamus to require respondents to proceed in lawful manner to cause petitioner’s name to be placed on tbe official ballot as candidate or nominee of tbe Eepublican Party for tbe office of Associate Justice of tbe Supreme Court of North Carolina to be voted on in tbe general election to be beld 5 November, 1946.

<p>Appeal by defendant from Carr, J., at November Term, 1945, of HARNETT.</p> <p>Criminal prosecution tried upon an indictment charging the defendant with rape.</p> <p>The evidence tends to show that the prosecuting witness, a 13-year-old girl, left her home on Sunday morning, 22 July, 1945, with her father and brother. She carried a small pail with her so she could pick some grapes. After picking the grapes, her father and brother went for a walk, and she started to return home. Before she reached home, the defendant stopped her and forced her to accompany him in the woods. There the defendant, by the use of force and by threatening to kill the prosecutrix, had sexual intercourse with her.</p> <p>The prosecutrix identified the defendant as the man who raped her. The pail and spilled grapes were found by the officers near the place where the crime is alleged to have been committed. The officers also found part of the clothing of the child, which she testified the defendant removed forcibly from her. Shoe tracks of a peculiar character led from the place where the crime is alleged to have been committed, into and across a creek to the barn and home of the defendant, and corresponded with tracks around his home which he admitted were his. Shoes which fit the footprints leading from the scene of the alleged crime, together with a shirt and pair of pants, were found on the floor of his home at the time of his arrest. The -shoes were wet and shirt was damp. The defendant testified that he had removed them earlier in the morning because he got them wet while hauling wood and looking for something in the field. A physical examination of the prosecutrix by a physician disclosed that she had been criminally assaulted.</p> <p>Verdict: “Guilty of rape as charged in the bill of indictment.” Judgment: Death by asphyxiation.</p> <p>The defendant appeals, assigning errors.</p>

<p>1. Larceny § 7—</p> <p>Evidence tending to show that title to the automobile in question was taken in the name of prosecuting witness, that defendant was allowed by her to drive it at times with the understanding that he would not take it out of town, that defendant borrowed the car, took it out of town and refused to bring it back or surrender its possession, with sharp conflict in the evidence as to whether defendant or prosecuting witness paid for the car, is held sufficient to take the case to the jury, the 6ona fldes of defendant’s asserted belief of ownership being for the jury.</p> <p>a. Criminal Law §§ 30, 42e—</p> <p>Permitting the solicitor to cross-examine defendant in regard to an allegation made by defendant in his complaint in a prior civil action for the purpose of impeaching defendant’s testimony during the prosecution, by showing that defendant had made two contradictory statements about the matter, both of which the solicitor contended were incorrect, does not impinge 6. S., 1-149, since the purpose and effect is not to prove the fact alleged in the pleading, but to the contrary.</p> <p>3. Criminal Law § 78e—</p> <p>An error in stating the contentions of a party, or in recapitulating the evidence, should be called to the court’s attention in time to afford an opportunity of correction, otherwise it may be regarded as waived or as a harmless inadvertence. Usually the most convenient time for correctional requests is just before the jury retires to make up its verdict.</p>

Appeal by plaintiff from Bobbitt, J., 6 April, 1946. From Meck-leNbueg. Affirmed. Petition for mandamus to require defendant to accept and enroll plaintiff as a member of its retirement system. Judgment was rendered on the pleadings for defendant and the plaintiff appealed.

Appeal by plaintiff from Hamilton, Special Judge, at October Term, 1946, of DterhaM. Tbe plaintiff, Lindsay, brought this suit against the defendants, Rrawley and Gantt, to recover a sum alleged to be due by them upon various transactions had between the parties lasting over a period of many years.

<p>Appeal by plaintiff from Stevens, J., at December Term, 1945, of ORANGE.</p> <p>Civil action for absolute divorce on ground of two years separation.</p> <p>The record on this appeal consists of :</p> <p>(1) Notice of defendant’s motion in the cause served upon plaintiff.</p> <p>(2) Defendant’s verified petition and motion in the cause for order adjudging plaintiff in contempt of court for willful disobedience of an order requiring him to pay to defendant $100 per month for her support and maintenance so long as she remains unmarried, in accordance with provisions of a consent judgment dated 10 June, 1940, entered upon ber cross complaint in this action at June Term, 1940, of Superior Court of Orange County, North Carolina — copy of tbe consent judgment and copy of judgment of absolute divorce declared to be concurrent with the consent judgment and also entered at said June Term, 1940, of said court, being attached as exhibits.</p> <p>(3) Verified answer of plaintiff to defendant’s petition and motion in the cause, in which he denies material allegations thereof and prays “that ruling requiring him to show cause be discharged, and that the allowance of $100 per month to be paid to the defendant by the terms of the consent judgment above referred to be stricken out or that it be reduced to an amount commensurate with his financial condition and ability to pay.”</p> <p>(4) Statement of evidence offered by plaintiff and by defendant upon hearing on defendant’s said petition and motion in the cause.</p> <p>(5) Judgment and order upon the motion in which the court found as facts, among others, that plaintiff “has wilfully failed and refused to comply with the provisions of said judgment of June 10th, 1940, with respect to payments due . . .,” and that “his disobedience to the terms thereof was willful and contumacious, constituting an intentional resistance to a lawful order of the court . . .,” and ordered “that plaintiff be confined to the common jail of Orange County until he has made all payments required of him under the judgment of June 10, 1940, and until he complies with the orders of the court or is otherwise discharged according to law.”</p> <p>Plaintiff excepted to the action of the court in refusing to modify consent judgment as a matter of law and to the judgment as signed by the court, and assigns same as errors, and appeals to the Supreme Court.</p>

Appeal by plaintiff from Frizzélle, J., at Chambers in Durham, N. 0., 1 May, 1946. Prom DubhaM. Civil action instituted by the plaintiff on behalf of himself and all other interested taxpayers of the City and County of Durham, to restrain the defendant from erecting a building in and across a portion of Fuller Street in the City of Durham.

Appeal by defendant from Frizzelle, J., at March Term, 1946, of ORANGE. Criminal prosecution upon warrant issued out of the recorder’s court of Chapel Hill, North Carolina, charging defendant with unlawful possession of “non tax paid liquor” “for the purpose of sale,” etc. Upon trial defendant was found guilty and sentenced to jail for specified term — the judgment being suspended upon conditions stated.