Volume 236 — North Carolina Reports

Appeal by defendant from Carr, J., March Term, 1952, Wake. Criminal prosecution under warrant issued out of the City Court of the City of Raleigh in which it is charged that defendant violated a city parking ordinance by (1) leaving his automobile standing in a meter-controlled parking space without setting said meter in operation by depositing “a coin of any sort” therein, and (2) parking overtime.

Appeal by defendant from Carr, J., March Term, 1952, of T¥ai The defendant was tried upon a warrant charging him with parking-overtime in a parking meter zone on Fayetteville Street in the City of Ealeigh, between Morgan Street and Cabarrus Street, in violation of the City’s traffic ordinance limiting the time for parking motor vehicles. The defendant was tried and found guilty in the Municipal Court of the City of Ealeigh. He appealed to the Superior Court.

<p>1. Appeal and Error § 1—</p> <p>As a general rule, an appellate court will not grant relief to a party wlio has not appealed or complained of the judgment.</p> <p>2. Courts § 12—</p> <p>Constitutionally enacted Federal statutes take precedence over State laws. U. S. Constitution, Art. VI, sec. 2.</p> <p>3. Receivers § 12c—</p> <p>Receivership of an insolvent is an act of bankruptcy which puts into operation 31 U.S.C.A. 191, which stipulates that debts due the United States shall have priority, but does not create a lien upon the debtor’s property in favor of the United States, and therefore does not give the United States priority over a bona fide conveyance made by the debtor before receivership or over a prior specific lien embracing specific property of the debtor as contradistinguished from a general lien covering all his property.</p> <p>4. Same—</p> <p>26 U.S.C.A. 3670 and 3671 give the United States a lien for taxes as of the date notice of lien is filed in the office of the register of deeds of the county in which the property is situate, but such lien is subordinate to the lien of a duly registered chattel mortgage, G.S. 47-20, or real estate mortgage, or judgment lien, G.S. 1-234, including the special lien of a contractor perfected by judgment, G.S. 44-1, when such liens are duly acquired before the filing of the notice of the Federal tax lien, though superior to such liens acquired after the filing of the notice.</p> <p>5. Receivers § 7—</p> <p>G.S. 55-147 to G.S. 55-160. inclusive, are applicable as near as may be to a receivership under G.S. 1-502.</p> <p>6. Receivers § 9—</p> <p>A receiver takes the property of the insolvent debtor subject to the mortgages, judgments and other liens existing at the time of his appointment, and upon the sale of encumbered property by the receiver free of such liens, the liens are transferred to the proceeds of sale. G.S. 55-149, G.S. 55-154.</p> <p>7. Receivers § 12c—</p> <p>Indebtedness incurred by a receiver in operating the business of a private concern owing no duty to the public cannot be given priority over the claims of non-consenting lienholders. The distinction between such operating expenses and costs of administration is pointed out.</p> <p>8. Same—</p> <p>Costs of administration may be charged against the interests of prior lienholders, since such expenses are incurred in the preservation and liquidation of the assets of the insolvent for their benefit, and such costs of administration include court costs in proceedings relating to the receivership, compensation to the receiver and to the receiver’s attorney, G.S. 56-155, bookkeeping and clerical expense, auditing expense, premiums on fire insurance on property in receivership, compensation for watchman, and costs of sale of property in receivership.</p> <p>9. Sainé—</p> <p>Indebtedness incurred by a receiver in operating the business of a private concern owing no duty to the public is entitled to preference over the claims of general creditors arising before the receivership, and constitute a charge first upon income, and when that is insufficient, against the property of the insolvent.</p> <p>10. Same—</p> <p>When the receiver has funds remaining after satisfying liens antedating the receivership he should apply such funds upon claims in the following order of preference: (1) costs of administration; (2) claims of the ü. S. for Federal employment and social security taxes accruing during the operation of the business by the receiver; (3) claims of the city and county for property taxes assessed during the receivership, G.S. 55-160; 105-340: 105-376; 105-412; (4) claim of the State for contributions under the State Employment Law, G.S. 96-10 (c), arising during receivership; (5) claims for labor, materials and services incurred in the operation of the business by the receiver; (6) general unsecured claims.</p> <p>11. Receivers § 12d—</p> <p>The United States filed claim against the receiver for damages for breach of contract by receiver in failing to deliver goods in accordance with contract executed with the receiver in the operation of the business. The claim was challenged, but the other claimants failed to demand jury trial on their exceptions. G.S. 55-153. Held: It was incumbent on the United States to establish its claim before the judge in conformity with the practice where jury trial is waived, and when it presents no evidence thereon it fails to establish the claim in fact, and the order of the judge allowing same without evidence and finding by the court thereon is ineffective.</p> <p>12. Receivers § 12c—</p> <p>Preferences are not favored and can only arise by reason of some definite statutory provision or some fixed principle of common law.</p> <p>13. Same—</p> <p>An item of operating expense, even though it is incurred by the receiver in conformity with an order of the court for the operation of the business by the receiver, is not entitled to priority over non-consenting lienholders who were given no notice.</p> <p>14. Same—</p> <p>G.S. 55-136 gives priority to laborers for wages due for work performed during the period of the two months prior to the date proceedings in insolvency were instituted, and does not apply to wages during the period the business is operated by the receiver.</p> <p>15. Same—</p> <p>The contract price for repairing machinery of the concern on a single occasion is not a claim for “wages” within the purview of G.S. 55-136, and cannot be entitled to preference under that statute regardless of whether the contract was executed prior to, or subsequent to the operation of the business by the receiver.</p> <p>16. Same—</p> <p>A judgment rendered in favor of a claimant after the appointment of a receiver for the debtor cannot create a lien against the debtor’s property because such property is vested in the receiver at the time of the rendition of the judgment.</p> <p>17. Same—</p> <p>Indebtedness incurred by a receiver in operating the business of a private concern owing no duty to the public has priority over the claim of a lienholder when such lienholder expressly or impliedly consents to such operations by the receiver.</p> <p>18. Same—</p> <p>The courts will not direct a receiver as to the distribution of a fund before the receiver has such fund in hand.</p>

<p>1. Carriers § 5—</p> <p>The approval of the Interstate Commerce Commission is prerequisite to the transfer by a common carrier of a certificate of convenience and necessity or the operating rights evidenced thereby, 49 USCA S12 (b) and 5 (2), and where a carrier has executed a contract to convey or a bill of sale, the purchaser’s contention that he acquired thereby a vested property interest in the operating rights evidenced by the certificate separate and apart from operating authority thereunder, notwithstanding the want of approval of the transfer by the Interstate Commerce Commission, is held, untenable.</p> <p>2. Same—</p> <p>Where a common carrier in Interstate Commerce executes a contract to convey or bill of sale of its rights under its certificate of convenience and necessity, the proposed purchaser has the right to apply to the Interstate Commerce Commission for approval and to have the seller join in such application, and a court of equity will decree specific performance to the extent of compelling the parties to take steps necessary to effectuate the transfer in accordance with the manner and form agreed upon by them.</p> <p>3. Same—</p> <p>Where a franchise carrier in interstate commerce executes a contract to convey or bill of sale of his rights under his certificate, but the contract expressly stipulates that the transfer should be under the short form procedure set up under section 212 (b) of 49 USOA 312 (b), time being of the essence, held: upon compliance by the seller in duly joining in application for approval under the short form, the purchaser, upon the ultimate disapproval of the transfer by the Interstate Commerce Commission upon this application, is not entitled to specific performance to compel the seller to join in application for approval of the transfer under the long form prescribed by 49 USCA 5 (2) (a).</p> <p>4. Specific Performance § lb—</p> <p>The remedy of specific performance is available only to compel a party to do precisely what he is obligated to do under the terms of the contract, and it cannot be used to make a new or different contract for the parties simply because the one made by them proves ineffectual.</p> <p>5. Same: Contracts § 8—</p> <p>Where the parties expressly agreed as to the procedure to be followed to effectuate a contract, it cannot be held, upon such procedure proving ineffectual, that the parties are under obligation to follow another procedure under the implication that they should do all things necessary to effectuate their agreement, since it is only when the parties do not expressly agree that the law may raise an implied promise.</p>

Appeal by defendant from Gwyn, J., and a jury, at November Term, 1951, of YadkiN. Two consolidated civil actions arising out of a collision between two motor vehicles at a street intersection, where traffic was regulated by automatic traffic control signals. These are the facts : 1.

Appeal by plaintiff from Pless'J., I January Term, 1952, of Guileoed (Greensboro Division). Reversed. Civil action to recover damages for personal injuries sustained by plaintiff as a result of slipping and falling on the floor of defendant’s store. The plaintiff, a housewife about 53 years of age, after purchasing some articles on the first floor of the defendant’s store in Greensboro, went down the stairway to the basement to make other purchases.

<p>Carriers § 11%—</p> <p>A lease of intrastate motor vehicle common-carrier operating rights, approved by the Utilities Commission, does not release lessor, the holder of the certificate of convenience and necessity, from liability for nonperformance of franchise duties or torts incident to operation, and a shipper may hold lessor liable for lessee’s failure to make prompt remittance of C.O.D. collections as required by G.S. 62-121.37. In the instant case the Utilities Commission, in approving the lease, did not attempt to relieve lessors of such obligations, nor would it have the power to do so. G.S. 62-121.26.</p>

<p>Appeal by plaintiff from Parker, J., March-April Term, 1952, of AlamaNce. Reversed.</p> <p>Petition in tbe cause by plaintiff, who prosecuted this action on behalf of tbe taxpayers of tbe City of Burlington and recovered for tbe City certain funds paid by it, without sanction of law, to tbe defendant Chamber of Commerce, beard below on motion of tbe plaintiff for an allowance, from tbe funds collected, to be used in defraying tbe fees of bis attorney.</p> <p>Tbe City of Burlington donated $2,000 of tax money to tbe defendant Chamber of Commerce. Tbe City refused to take steps to recover it. Thereupon tbe plaintiff instituted this action against the Chamber of Commerce to recover the money and joined the City as a nominal party to accept it. The action was resisted both by the Chamber of Commerce and the City. In the progress of the litig'ation the case was twice here on appeal. The decisions are reported in 231 N.C. 440, 57 S.E. 2d 789, and 235 N.C. 77, 68 S.E. 2d 660, where the background facts may be found. The latter appeal was from a judgment of the Superior Court decreeing that the tax money paid to the Chamber of Commerce, not being authorized by law, amounted to an illegal use of tax money, and it was decreed that the City recover from the Chamber of Commerce the amount so paid. The judgment was affirmed by this Court.</p> <p>When the case went back to the Superior Court the plaintiff moved, on petition previously filed, for an award, from the proceeds of the recovery, of “a sum equal to the reasonable value of his attorney’s services, to be used in defraying the fees of said attorney.” The court was of the opinion that the plaintiff was not entitled to an allowance as a matter of law, and so ruled.</p> <p>From judgment entered in accordance with the foregoing ruling, the plaintiff appealed, assigning error.</p>

Appeal, by defendant from Burgwyn, Special Judge, and a jury, at February Term, 1952, of PeesoN. Statutory action to quiet title to realty against an adverse claim. Tbe complaint makes out tbis case in detail : The plaintiff, Nora Clayton Wells, was divorced from her former husband, the defendant, Bennehan Clayton, before the commencement of this action.

<p>1. Appeal and Error § 51a—</p> <p>Where the Supreme Court holds on appeal that the evidence was sufficient to overrule defendant’s motions to nonsuit, in the subsequent trial upon substantially the same evidence the question of the sufficiency of the evidence is foreclosed.</p> <p>2. Evidence § 46e—</p> <p>In describing a spiral stairway, a witness’ statement that it went up “as a corkscrew would” is held competent as a shorthand statement of a composite fact.</p> <p>3. Evidence § 26—</p> <p>Testimony of a witness as to the condition of a spiral stairway almost two years prior to the time in question cannot be held incompetent as too remote when other witnesses have testified in substance that the condition of the stairway remained unchanged from that time down to the moment of plaintiff’s injury.</p> <p>4. Trial § 16—</p> <p>Where, upon objection, the court withdraws an unresponsive answer of a witness and categorically instructs the jury not to consider it, the action of the court in striking out the answer and withdrawing it from the jury precludes prejudicial error.</p> <p>5. Evidence §26% —</p> <p>Defendant introduced in evidence photographs of the stairway in question, taken some two and one-half years after the accident in suit. The plaintiff later introduced testimony to the effect that defendant changed or repaired the steps after the accident. Held: While plaintiff’s evidence was not competent to show negligence on the part of defendant it was competent for the limited purpose of disproving the correctness of the photographs and to contradict defendant’s witnesses who identified the photographs as true representations of the steps at the time of the accident.</p> <p>6. Evidence § 46g—</p> <p>Where plaintiff introduces evidence that her physical condition was a direct result of her fall, it is competent for medical expert witnesses to testify, upon personal knowledge based upon their examination and treatment of plaintiff subsequent to the accident, as to the nature and extent of her injuries, the effect of such injuries upon plaintiff’s capacity to work, and the probable result of future medical or surgical treatment of plaintiff.</p> <p>7. Evidence § 26—</p> <p>In order to be competent in evidence, an experiment must be made under conditions substantially similar to those prevailing at tbe time and place of tbe occurrence in suit, and the result of tbe experiment must have a legitimate tendency to prove or disprove an issue arising out of such occurrence, and the competency of experiment evidence is a preliminary question for the court to determine in the exercise of its discretion.</p> <p>8. Same—</p> <p>Where there is no evidence of probative force tending to show that the conditions under which an experiment was made were substantially the same as those existing at the time of the occurrence in suit, the record indicates that the court’s ruling in excluding the experiment evidence was proper as a strictly legal question, and certainly does not support the view that the ruling rejecting the proffered evidence constitutes abuse of discretion.</p>

<p>Appeal by plaintiff from Williams, J., September Term, 1951, Ala-MANOB.</p> <p>Civil action to recover damages for alleged injury caused by the negligence of the defendants.</p> <p>For convenience in narration, the defendant, Marc J. Reardon, will be referred to in the statement of facts and in the opinion as Dr. Reardon, and the term, Duke Hospital, will be used to designate the hospital service of the defendant, Duke University, Inc., and will include within its scope said corporate defendant.</p> <p>On 18 August, 1947, plaintiff, suffering with fallen arches and pain in his feet, entered the orthopedic clinic of Duke Hospital, where he received shoe supports and instructions to use specified borne treatments. He was requested to return for further observation and accordingly returned to the clinic on 3 September, 1947. At that time all significant symptoms were restricted to bis left foot. Upon further examination, plaintiff was referred to the surgical department, where an operation was suggested. He had never undergone surgery and greatly feared an operation. No hospital bed was then available and plaintiff returned to his home. He was notified of the availability of a bed and on 8 September, 1947, entered Duke Hospital as a patient and was assigned to a bed in Halstead Ward. At this time, the plaintiff was able to perform his usual work and to walk without apparent distress.</p> <p>At the time plaintiff became a patient in Duke Hospital, Drs. Marc J. Reardon, S. S. Ambrose and J. W. Helley were not engaged in private practice, but were pursuing post-graduate training at Duke Hospital and their duties in this capacity included the care and treatment of patients assigned to Halstead Ward. Dr. Reardon was classified as Assistant Resident in Surgery and in addition to his maintenance was paid a salary of $41.67 per month. Drs. Ambrose and Kelley were internes and aides or assistants to Dr. Reardon. The operative procedure at Duke Hospital was carried out by what is known as operating teams consisting of the doctor who actually uses the surgical tools and two or more assistants or helpers who aid him in the operation. Plaintiff, as a patient on Halstead Ward, had no choice of doctors.</p> <p>The diagnostic considerations of plaintiff’s condition ranged all the way from Buerger’s disease to arteriosclerosis. No definite diagnosis was ever reached. It was, however, concluded that plaintiff had some type of occlusive vascular or peripheral vascular disease. One of the accepted forms of treatment for such a condition is a lumbar sympathectomy. This involves the removal by surgery of nerve tissue and ganglia which control the muscles of the blood vessels, thereby reducing the spasms of the blood vessels by paralyzing the muscles. This allows the vessels to open up and increases the flow of blood. The blood supply is controlled largely by the sympathetic nervous system. Whatever may have been the cause of plaintiff’s trouble, his disease appeared to have been in the early stages. Of the non-operative treatments developed for plaintiff’s condition, only pavorin was used.</p> <p>Without a complete and satisfactory diagnosis, plaintiff was persuaded by agents of Duke Hospital to submit to what was described to him as a minor or simple operation requiring only a small incision in his back and the clipping of a nerve, which operation would necessitate his being in the operating room only 40 to 45 minutes. Instead, an incision, 8 inches in length, extending from the 9th rib to the rectus sheath was made in the body cavity through which all internal organs were lifted out of the way for tbe purpose of exposing the left lumbar sympathetic nerve and ganglia. These are located along and in front of the backbone or spinal column. The operation proceeded without apparent difficulty and as the nerve and three ganglia were being removed, the nerve chain snapped and the fourth ganglion disappeared behind a mass of tissue. While exploring for the fourth ganglion, Dr. Beardon discovered that the two large vessels which control the flow of blood to and from the left lower extremities were bound together by a mass of fibrous tissue and he inadvertently punctured one of these large vessels. Profuse, massive and uncontrolled bleeding followed. The mass of fibrous tissue made these large vessels easy to tear and more difficult to separate and repair, and in his effort to part this mass of fibrous tissue, Dr. Beardon perforated or produced fissures in the vessels in a number of other places. The bleeding became more profuse and plaintiff’s condition became precarious. Dr. Beardon then made an incision in plaintiff’s left thigh, up near the groin, and from that point followed a blood vessel as close as possible to the point of bleeding and there tied off and ligated that vessel. This procedure failed to control the bleeding and it was discovered that both the big artery and the big vein had been damaged by several punctures or tears. Due to the protracted operative procedure and the great loss of blood, plaintiff was in a critical condition and in a state of shock. Dr. Beardon had undertaken this difficult operation when there was no supervisory surgeon available in the hospital for consultation, advice and aid. Dr. K. S. Grimson, who developed the most extensive operation which might be performed upon the sympathetic nervous system and who was the head of that branch of the surgical service of Duke Hospital, was not available. Dr. Deryl Hart, Chief of the Surgical Service of the hospital, was called from his home in an effort to save the patient’s life. Dr. Hart had not undertaken a lumbar sympathectomy in five years.</p> <p>When Dr. Hart arrived at the hospital, all operative procedure was at a standstill and the bleeding was temporarily controlled by means of a pack. Upon discovering the condition of the patient, Dr. Hart abandoned all efforts to repair the damaged blood vessels and directed all his attention toward saving the patient’s life. In this emergency, Dr. Hart, with the aid of Dr. Beardon and his associates, tied off the fibrous tissue which included the torn blood vessels and clipped them en masse. With these main vessels severed, the blood supply to that area of patient’s body was greatly diminished, and upon reacting from the anesthetic about 9 o’clock that night, plaintiff discovered he was paralyzed from his hips down. The only hope of an adequate blood supply to his lower left leg and thigh was the development of a collateral circulation by means of smaller blood vessels. This collateral circulation did not materialize and as a result, gangrene developed and Dr. Beardon amputated plaintiff’s left leg below tbe knee. Because of defects in this amputation, plaintiff suffered and sustained another operation by Dr. Reardon whereby his left leg stump was debrided. Later, it was necessary fox Dr. Hart to reamputate plaintiff’s left leg, removing the knee joint. Plaintiff next developed a myocardial infraction of the heart. Then, a blood clot in his right leg resulted in gangrene and plaintiff’s right leg was amputated by Dr. Hart. Prom these operations and the suffering incident thereto, plaintiff acquired a drug habituation.</p> <p>Excerpts from the pleadings received in evidence tend to show that the plaintiff neither authorized nor consented to the operations performed on him on 13 September, 1947, and that he “did not need or require any operation” at that time.</p> <p>Plaintiff, for the first operations, was taken to the operating room before 9 o’clock in the morning and remained there until about 4:30 in the afternoon, during which time he was given by transfusions from 14 to 17 pints of blood. When pressed by plaintiff for an explanation of what happened during the operation, Dr. Reardon gave as his only comment, “I played hell; that is what happened.”</p> <p>Upon admission to the hospital, plaintiff weighed between 180 and 185 pounds. When discharged on 15 January, 1948, he weighed 94 pounds. Plaintiff was not a charity patient and all expenses of his hospitalization were fully paid.</p> <p>At the close of plaintiff’s evidence, the court overruled the motions of the defendants for judgment as of nonsuit, but such motions at the close of all the evidence were allowed as to both defendants. Prom the judgment entered, plaintiff excepted and appealed, assigning errors.</p>

Appeal by defendant from Moore, J., and a jury, November-December 1951 Term, Sootland. New trial. Criminal prosecution upon an indictment charging the defendant with the murder of one Raymond Hall. The incidents leading up to the killing of Raymond Hall transpired at his home on 21 October, 1951. Present at the time were Hall, his wife, Amelia, their 11-year-old son, and Mary Alice Boyd, a blind sister of Amelia.

Appeal by defendant from Rousseau, J., and a jury, September 1951 Term, Dukham. No error.

<p>Appeal by defendant from Rousseau, J., and a jury, February Term, 1952, Eoesyth.</p> <p>Criminal prosecution upon a bill of indictment charging tbat tbe defendant did transport, deliver, furnish, sell, possess and possess for tbe purpose of sale intoxicating liquor in violation of tbe Prohibition Law.</p> <p>On or about 10 October, 1951, two undercover investigators of tbe State Aleobolie Beverage Control Board were assigned to tbe area including tbe city of 'W’inston-Salem. Shortly after 9 o’clock on tbe evening of 6 December, 1951, while these officers were staying at a motor court in tbe western part of tbe city, one of them called a telephone number and requested that a fifth of whiskey be delivered to tbe motor court. At tbe conclusion of this conversation, both agents went out from tbe motor court to a point on Grove Park Street, where tbe defendant, with another man, drove up in a 1951 black Plymouth automobile. Tbe right front door of tbe automobile was opened and tbe defendant sold one of tbe agents a fifth of tax-paid whiskey at tbe price of $6.00. One agent made tbe purchase while tbe other looked on and both returned to tbe motor court. After tbe liquor was sold, the defendant drove off in tbe direction be was beaded.</p> <p>Later, on tbe same night, tbe other undercover agent called tbe same telephone number and requested that another fifth of liquor be delivered to Room 505 at tbe motor court. This agent was told to come to tbe same spot where tbe first liquor was purchased and that bis order would be filled in ten minutes. In exactly ten minutes, this agent was at tbe designated point when tbe defendant again drove up, this time alone, in tbe same automobile bearing tbe same license number. Tbe defendant then sold to this agent another fifth of tbe same brand of tax-paid liquor at tbe same price.. Only one of tbe undercover agents was present at tbe last sale. ; .</p> <p>Of tbe two undercover investigators, only tbe one who made tbe last purchase and who was also present when tbe first purchase was made testified. Both bottles of liquor bore tbe same, brand label and were, without objection, received in evidence. Tbe bottles were not examined by tbe investigators for fingerprints. Tbe car from which tbe liquor was delivered on both occasions bore North Carolina license number R-71721.</p> <p>A local enforcement officer testified that on tbe day tbe case was tried in tbe Municipal Court in Winston-Salem, tbe defendant gave him an automobile key and be thereupon went to some point in tbe city and obtained a 1951 black 4-door Plymouth automobile bearing 1951 North Carolina license number R-71721.</p> <p>At tbe close of tbe State’s evidence the defendant demurred and moved for judgment as in case of nonsuit. This motion was denied. Tbe defendant offered no evidence, but renewed bis motion for judgment of dismissal.</p> <p>There was a verdict of guilty as charged in tbe bill. Judgment was pronounced upon tbe verdict and defendant appealed, assigning errors.</p>

<p>1. Boundaries § 6—</p> <p>The fact that the clerk in a processioning proceeding erroneously concludes that the answers converted the proceeding into an action to try title to realty, and thereupon transfers the cause to the civil issue docket for trial, does not deprive the Superior Court of jurisdiction to determine the processioning proceeding.</p> <p>2. Same—</p> <p>What is the true dividing line between two contiguous tracts of land is a question of law for the court; where such line is actually located on the premises is an issue of fact for the jury.</p> <p>8. Boundaries § 3b—</p> <p>A call in a 'deed for a natural boundary, such as the meandering of a particular creek, controls a call for course and distance “with the meanderings of said creek,” and when the verdict of the jury, interpreted in the light of the evidence and the charge, constitutes a finding in effect that the meanderings of the creek was the true dividing line, it supports judgment in conformity therewith.</p> <p>4. Deeds § 8</p> <p>The public record of a registered and probated deed raises a rebuttable presumption that the original was duly executed and delivered, but the charge of the court in this case that the record constituted prima facie evidence that the deeds were actually executed and delivered but that the burden rests upon those claiming thereunder to prove that the originals were actually executed and delivered, even though the record was unassailed by the adverse party, is held not prejudicial in view of the theory of trial, the verdict and judgment.</p>

Appeal by defendant from Sharp, Special Judge, and a jury, December 1951 Criminal Term, JohNstoN. Criminal prosecution upon an indictment charging defendant with the unlawful possession and possession for the purpose of sale of one-half gallon of nontax-paid whiskey. On 7 October, 1951, at about 11:30 a.m., two officers of the State Alcoholic Beverage Control Board went to the defendant’s place of business and called for the defendant.

Appeal by petitioner from Carr, J., and a jury, November Term, 1951, Onslow. No error. This proceeding was commenced by a petition filed under G.S. 35-2 by J. D. Heath, a nephew of the respondent.

Appeal by plaintiffs from Williams, J., and a jury, October Term, 1951, of ObaNGe. Civil action to recover damages for injury to real property, due to tbe alleged negligence of the defendant contractor while conducting blasting-operations in connection with a highway construction project near plaintiffs’ property. The plaintiffs own certain real estate located on State Highway No. TO in Orange County. The defendant company, under contract with the N. 0.

PbtitioN by defendants to rehear this case reported in 235 N.O. 749. The Justices to whom the petition was referred filed the following memorandum in passing upon the petition.