HARMLESS ERROR-Continued.

the wife of defendant on trial for his life, stating that he
would not tender her if defendant did not wish to examine
her, the error is cured by a clear instruction that this should
not prejudice defendant or in any manner influence the jury
in their verdict against him. State v. Spivey, 676.

13. Unlawful Killing-Self-Defense-Instructions-Without Preju-
dice. When the killing with a deadly weapon is shown, and
the plea is self-defense, it is not error to defendant's preju-
dice for the court to refuse to charge that there was no
evidence to warrant a verdict of manslaughter, the jury
having rejected defendant's evidence of self-defense and
found him guilty of manslaughter, as otherwise it would have
been their duty to convict of murder in the second degree.
State v. Fowler, 731.

HAZARDOUS OCCUPATION. See Master and Servant, 19.

HEALTH. See Cities and Towns, 18.

HEARING. See Taxation, 1.

HEARSAY. See Evidence, 80, 81.

HEIRS. See Evidence, 28.

HOMESTEAD.

1. Rights of Widow — Children — Constitution-Interpretation.—
The widow by a second marriage of one who died seized and
possessed of land leaving no children by her, is not entitled
to the benefit of a homestead therein, when he has left chil-
dren by his first marriage, though they are adult. The mean-
ing of the language of the Constitution is too plain for con-
struction, that in speaking of children the instrument refers
to children of the deceased owner. Constitution, Art. X, secs.
2, 3, 5. Simmons v. Respass, 5.

2. Executors and Administrators-Debts-Sales-Assets-Dower.
--When the widow's claim of homestead is rightfully denied
in proceedings by the administrator on partition to sell lands
to make assets to pay her deceased husband's debts, an order
directing that her dower be assigned, and subject thereto,
the land be sold for assets, is the proper one. Ibid.

3. Judgments-Executions-Lands-Purchase Price-Exemption.
A judgment debtor cannot claim his homestead exemption
in lands upon which execution has been issued under a valid
judgment on his note given for their purchase price and so
certified in the transcript docketed in the Superior Court.
Billings v. Joines, 363.

HOSPITALS. See Asylums, 1, 2.

HOURS OF SERVICE. See Railroads, 31.

HUSBAND. See Parties, 3.

HUSBAND AND WIFE. See Witnesses, 6, 7.

1. Deeds and Conveyances - Married Women — Principal and
Agent-Fraud-Reformation of Deed.-In an action to re-

HUSBAND AND WIFE-Continued.

form a deed of a married woman, evidence is sufficient which
tends to show that defendant, acting through her husband as
her agent, bargained to sell the whole of her certain lot,
which was not measured at the time but afterwards ascer-
tained to have a frontage of sixty-five feet, and that her hus-
band, thereafter, induced, by fraudulent act and representa-
tions, the plaintiff to accept a deed conveying only a frontage
of fifty feet, leaving out a large portion of a house which was
to have been included in the conveyance, and that she re-
ceived the purchase price for the sixty-five foot lot; and an
instruction is correct, that the jury should find for plaintiff
if defendant knew the whole lot was not conveyed and that
plaintiff was deceived thereby and induced to accept the deed
thinking it conveyed the whole lot bargained for. Bell v.
McJones, 85.

2. Same-Equitable Relief.-When a feme covert admits a con-
tract for the sale of a certain lot of her land by her agent,
and has received the purchase money, she cannot profit by
his fraud in inducing her grantor to accept a deed for a
smaller lot, and thus profit by his fraud; but she will be held
as trustee of the unconveyed property to the end that the
agreement may be executed; and equity will decree correc-
tion of the deed, and if such is not done, the registration of
the decree as a conveyance. Revisal, 567. Ibid.

3. Tort-Husband's Liability.-The husband living with his wife
is jointly liable with her for damages resulting from an in-
jury received by a customer through the negligence of a clerk
in her store, if she is liable therefor. Revisal, 2105. Brit-
tainham v. Stadiem, 299.

4. Deeds and Conveyances-Existing Debts-Fraudulent Convey-
ances-Principal and Agent.-A deed made by defendant to
his wife without a valuable consideration and for the pur-
pose of avoiding the obligations incurred to the Government
under the distiller's bond, which plaintiff has signed as surety
prior to the execution of the deed, the property conveyed be-
ing practically the entire estate of the defendant, the princi-
pal of the bond, is fraudulent and void as against the surety
having been compelled to pay the bond. Graeber v. Sides,
596.

5. Same-Procedure.-One who has signed as surety on a dis-
tiller's bond and who has been compelled to pay to the Gov-
ernment his principal's default thereon, may now proceed in
an action to set aside his principal's deed subsequently made
to the wife for the purpose of avoiding his obligations there-
under. The former method to test the validity of the deed
was to sell the property under execution and then sue for its
recovery. Ibid.

ILLEGAL ACTS. See Railroads, 30.

ILLEGAL TRUSTS. See Trusts, 1, 2, 3.

IMPEACHMENT. See Evidence, 87, 89.

IMPLIED AGREEMENT. See Deeds and Conveyances, 9.

IMPROPER CONDUCT. See Jurors, 1, 2.

IMPROVEMENTS. See Marriage and Divorce, 1.

INCOMPETENCY. See Admissions, 1.

INDEPENDENT AGREEMENT. See Contracts, 5.

INDICTMENT.

Evidential Matters

-

1. Bill Offense Charged ·
Surplusage -
Motion to Quash.-The use of superfluous words in a bill of
indictment should be disregarded, and it is error to dismiss
a bill on motion to quash which sufficiently charges an “un-
lawful sale of liquor by the small measure," because of other
matters therein found by the grand jury which are only
evidential. Revisal, sec. 3254. State v. Wynne, 644.

2. Bill of Offense Charged-Special Verdict.-The grand jury
cannot find a special verdict by adding evidential matters in
a bill of indictment which otherwise sufficiently charges the
offense. Ibid.

3. Same-Questions for Jury.-Evidential matters contained in a
bill of indictment can furnish no ground for the trial judge
to consider quashing the bill, when otherwise it is sufficient,
as such would be an invasion of the province of the petty
jury. Ibid.

4. Superior Court-Quashing Bill.-An indictment for an assault
with a deadly weapon is a misdemeanor and cognizable by
the Recorder's Court of Nash County (Laws 1909, chap. 633),
and the Superior Court of that county properly quashed the
bill for want of original jurisdiction, the indictment having
been found after the law creating the recorder's court had
been enacted. State v. Collins, 648.

5. Proof-Evidence-Variance.-There is no fatal variance be-
tween the allegation of a bill of indictment and the proof,
the former charging the burning of "a certain shop and store-
house," giving its ownership and its occupancy as "used in
the trade of woodworking by H.." and the latter tending to
show that defendant was seen to set fire to the "H. work-
shop." State v. Arthur, 653.

6. Presentment-Limitation of Actions.-An indictment or pre-
sentment marks the beginning of the prosecution and arrests
the running of the statute of limitations. Revisal, 3147.
State v. Williams, 660.

7. Divine Worship-Evidence-Picnics.-A meeting of the kind
described is fully protected from wrongful and willful inter-
ruption by sec. 3704 of the Revisal, but the charge is made
under sec. 3406, and, on the facts presented, the defendant
was entitled to the instruction, that if the jury should find
the facts to be as testified, they would render a verdict of not
guilty. State v. Starnes, 724.

8. Definiteness-Failure to Work Road-Proof-Motion in Arrest.
-In this case the motion in arrest of judgment should have
been allowed, the warrant being fatally defective in failing

INDICTMENT--Continued.

to allege that defendant was assigned to work the road, for
the failure of which he was tried and convicted, and the
prosecution failing to negative the payment of one dollar
allowed by law in lieu of service. State v. Lunsford, 150
N. C., 862; State v. Neal, 109 N. C., 858, cited and approved.
State v. Green, 729.

INDUSTRIAL SCHOOL. See Habeas Corpus, 2.

INEXPERIENCED EMPLOYEE. See Master and Servant, 13.
INFANTS. See Sales, 8; Parties, 7.

INFERIOR COURT. See Statutes, 23.

INHERITANCE, WORDS OF. See Deeds and Conveyances, 14, 15.
INJUNCTIONS.

1. Appeal and Error-Completed Acts-Appeal Dismissed.-An
appeal from the refusal of the lower court to continue an
injunction to the hearing will be dismissed when it appears
that the acts apprehended as a threatened injury and invas-
ion of plaintiff's rights have become accomplished and com-
pleted and that the injury may now be measured by actual
results and effects. Little v. Lenoir, 415.

2. Contracts-Restraint of Trade, Reasonable-Damages.

When

it appears by affidavits, or otherwise, that one who has
entered into a valid contract in restraint of his trade or busi-
ness is acting in violation of it, upon proper application of
the other party in interest, a restraining order should be
continued to the hearing, especially when it appears that
resulting damages would be difficult to measure. Anders v.
Gardner, 604.

3. Courts Jurisdiction-In Personam.-An injunction can only
operate in personam, and unless jurisdiction of the party can
be acquired, the attempted procedure is a nullity, and on
motion properly made it should be dismissed. Warlick v.
Reynolds, 606.

4. Substantial Right-Procedure-Appeal and Error.-An order
continuing an injunction to restrain the holder from negoti-
ating a promissory note affects a substantial right, and an
appeal therefrom presently lies.

5. Temporary

-

Ibid.

Order Dismissed - Appeal and Error - Acts
Accomplished-Abstract Propositions.-An appeal from the
dissolution of a restraining order will not be considered, when
it appears that acts sought to be restrained have been com-
mitted, the appeal thus presenting merely an abstract propo-
sition. Wallace v. Wilkesboro, 614.

6. Appeal and Error-Interlocutory Orders-Appeal Dismissed-
Procedure. The dismissal of an appeal from an interlocutory
order dissolving an injunction does not necessarily dismiss
the action, but leaves it pending in the Superior Court. Ibid.
7. Judgments-Lands-Levy-Quieting Title.-The plaintiff show-
ing title to lands by deed expressing a valuable consideration,

INJUNCTIONS—Continued.

made and recorded prior to an attachment levied thereon by
a judgment debtor of his grantor, may maintain his action
to quiet title under the provisions of chap. 763, Public Laws
of 1903, amending chap. 6. sec. 1, Public Laws 1893, now
Revisal (Pell's), sec. 1589; and when defendant has answered
alleging fraud of plaintiff in the procurement of his deed, an
injunction will lie restraining the sale under the levy until
the issue of title can be determined. Crockett v. Bray, 615.
8. Injunctions Dissolved-Appeal and Error-Continued-Bond-
Procedure. The Supreme Court in this case having over-
ruled the judgment of the lower court in dissolving the plain-
tiff's injunction, requires the plaintiff to give a bond in a
certain named sum, payable to defendant, with sureties
approved by the Superior Court Clerk, with order that de-
fendants be notified of its tender that they may object to its
sufficiency; the bond to be filed within fifteen days from the
filing with said clerk of a certified copy of this opinion, and
conditioned to pay cost of the action and the principle and
interest of the debt, if defendant's right of attachment and
execution on the lands in question be finally upheld. Ibid.

INJURY TO REALTY. See Venue, 2.

INNOCENT PURCHASER. See Sales, 8; Notes, 5; Partnerships, 14.
INNOCENT THIRD PERSONS. See Partnerships, 5.

IN PARI DELICTO. See Insurance, 15, 16; Statutes, 13.

IN PERSONAM. See Injunctions, 3.

INQUIRY, TIME OF. See Insurance, 4.

INSANE PERSONS.

1. Hospitals-Directors and Superintendent - Discharge - Negli-
gence-Interpretation of Statutes.-The directors and super-
intendent of a hospital for the insane acting under the pro-
visions of Revisal, 4596, in discharging or releasing a patient
therefrom, cannot be held responsible in damages by the sub-
sequent killing by such patient of another under a charge of
negligence. Revisal, 4560. Bollinger v. Rader, 383.

2. Same-Proximate Cause.-The act of an insane person in kill-
ing another about six months after his discharge or release
by three directors and the superintendent of a hospital for
the insane under authority conferred by Revisal, 4596, was a
mere condition arising from the discharge or release, which
the directors and superintendent by the exercise of ordinary
care and caution, could not have anticipated, foreseen or
expected, and for which they could not be held responsible in
damages as arising from negligence on their part. Ibid.
3. Burden of Proof-Verdict-Recommendation for Mercy-Some
Doubt-Proof Required.-Upon the trial of a criminal offense
in which the plea of intermittent insanity at the time charged
is set up as a defense, a verdict rendered that "we return a
verdict of guilty; we ask the mercy of the court for the