VENDOR AND VENDEE-Continued.
equities and defenses existent between the vendor and vendee
of which he had no knowledge or notice, and when he was
not interested in the goods or the transaction concerning
them, otherwise than as such endorsee. Bank v. Hatcher,
359.
16. Same-Infirmities-Interpretation of Statutes.-An endorsee
will not be affected with notice of an infirmity in a negotiable
instrument taken from the payee without recourse and aris-
ing from a breach of warranty in an executory contract be-
tween the original parties, when it does not appear that he
was aware of its terms, or there was nothing in the contract
restricting the negotiability of the note or indicating fraud
or imposition or an existent breach; and this is true though
the note or instrument may contain on its face an express
statement of the transaction which gives rise to the instru-
ment. Revisal, 1905, sec. 2153. Case of Howard v. Kimball,
65 N. C., 175, cited and commented on. Ibid.
1. Legislative Regulation.-The venue for civil actions is a mat-
ter for legislative regulation and is not governed by the rules
of the common law. Cooperage Co. v. Lumber Co., 455.
2. Injury to Realty-Contiguous Tracts-Separate Counties.-
There is a distinction drawn by the Revisal, sec. 419, as to
the venue of an action “for injury to real property" and that
of an ejectment brought to recover possession of land; and
when it appears that, in an action of trespass for damages
claimed by reason of defendant's cutting timber on certain
contiguous tracts of land claimed by plaintiff and situated in
two counties, the trespass complained of was entirely situate
in an adjoining county to the one in which the action was
brought, and the defendant having disclaimed title to all
land in the county where action commenced, upon motion
made in apt time the cause should be removed to the adjoin-
ing county in which the alleged injury was caused. Ibid.
3. Bigamy. The provisions of Revisal, sec. 3361, relating to the
offense of bigamy and its punishment, "that any such offense
may be dealt with, tried, determined and punished in the
county where the offender shall be apprehended," etc., refers
only to the venue of the crime defined in the first clause-
i. e., "such offense" being "the second marriage, the former
husband and wife still living." State v. Ray, 710.
1. Motions-Set Aside-Additional Eridence-Court's Discretion.
-When the trial judge has heard the evidence adduced upon
a motion to set aside a verdict because of the improper con-
duct of a party in talking to a juror in his cause, it is within
his discretion to refuse additional evidence, and his decision
is not reviewable. Baker v. Brown, 12.
2. Instruction Entire - Directing Evidence Conflicting.-A re-
quested instruction directing the jury to answer each of sev-
eral issues in a certain manner, if they believed the evidence,
is not correct when there is conflicting evidence as to one or
more of them. The instruction being asked in its entirety
every substantial and integral part must be correct in law.
Savings Bank v. Chase, 108.
Technical Error-Harmless Error.—This case was prop-
erly submitted to the jury upon conflicting evidence and under
proper instructions; and while there was technical error com-
mitted as to one issue, it was cured in the manner in which
the jury answered it. Young v. Manufacturing Co., 272.
4. Discretion of Trial Court-Weight of Evidence-Testimony of
Witnesses.-Motion for new trial upon affidavit in respect to
the testimony of a witness, and for that the verdict is con-
trary to the weight of the evidence, are matters strictly with-
in the discretion of the lower court. Bouldin v. Daniel, 283.
5. Non obstante-Pleadings.-While the common law rule has
been relaxed so that a judgment non obstante veredicto may
sometimes be granted the defendant, it is only when the
pleadings entitle him to it irrespective of the verdict. Shives
v. Cotton Mills, 290.
6. Non obstante - Discretionary Power — Appeal and Error —
Judgment. When the trial judge has erroneously held that
the defendant is entitled to judgment non obstante veredicto,
he has exercised no discretionary power, and judgment upon
the verdict in plaintiff's favor will be rendered in the Supreme
Court. Ibid.
7. Cities and Towns-Condemnation Proceedings-Easements—
Streets Abutting Owners - Issues Damages-Evidence—
Title. When the only question presented in the action is the
measure of damages to abutting owners for the widening of
a street by a city for public use under proceedings in con-
demnation in accordance with its charter provisions, it is
error to admit evidence for the purpose of affecting adversely
defendants' title as abutting owners, and for the court to so
regard it as shown in his charge to the jury, though it was
otherwise competent on the question of the measure of dam-
ages; and this is not cured by the verdict awarding defend-
ants damages only for the moving of houses from the ease-
ment, it appearing that in thus finding they must necessarily
have considered the question of title. New Bern v. Wads-
worth, 309.
8. Issues, Inconsistent―Judgment.-The exception by appellant
to a judgment rendered on the verdict in favor of appellee,
on the ground of inconsistent issues, cannot be sustained
when it appears that appellee was entitled to his verdict on
the answer of the jury as to each. Stern v. Benbow, 460.
9. Indictment. Bill of Offense Charged - Special. The grand
jury cannot find a special verdict by adding evidential mat-
ters in a bill of indictment which otherwise sufficiently
charges the offense. State v. Wynne, 644.
10. Indictment-Offense Charged 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.
11. Set Aside-Discretion-Appeal and Error.-The refusal of the
trial judge to set aside a verdict as being against the weight
of the evidence is discretionary with him and not reviewable
on appeal. State v. Hancock, 699.
12. Insanity-Burden of Proof - 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 reason that some of the jurors have some doubt as to the
sanity of the defendant," is sufficient for conviction, the first
sentence being a complete verdict, and the balance surplus-
age, merely recommendatory, showing that some doubt ex-
isted in the minds of some of the jurors, but not sufficient to
overcome the requirement that the burden was on defendant
to prove insanity to their satisfaction. Ibid.
13. False Pretense
Special — Intent-Verdict Defective-Appeal
and Error-New Trial.-Defendant being indicted under
Revisal, 3432, the jury found, by special verdict, that a cer-
tain mercantile company issued aluminum checks, redeem-
able in merchandise, to the laborers of a certain lumber com-
pany whose names were furnished it by the latter company,
and that defendant obtained one of these checks upon his
false statement that he was one B., a laborer whose name
had thus been furnished, and that he obtained no goods on
the check. Held, no judgment on the verdict can be ren-
dered, and a new trial ordered; the court is confined to the
facts found, and there was a failure of the jury to find
defendant's intent to defraud, and also to find the facts of
the agreement or arrangements existing between the mercan-
tile and lumber companies respecting the issuance by the
former of these checks. State v. McCloud, 730.
VOTERS. See Taxation, 10.
WAIVER. See Insurance, 5, 7, 8, 10, 20, 27; Evidence, 11; Procedure,
19, 20; Jurisdiction, 6.
WAREHOUSEMEN. See Carriers of Passengers, 7, 8.
WARRANT. See Process, 14.
WARRANTY. See Partnerships, 4, 5.
WATER AND WATER COURSES.
1. Surface Waters-Diverting Natural Flow-Damages.-One is
liable for damages caused to the lands of another by his
diverting the natural flow of surface water thereto. Roberts
v. Baldwin, 407.
2. Same-Limitation of Actions - Permanent Damages — Ease-
ment. The damage caused to the lands of another by the
unlawful diverting of surface water thereon by means of a
ditch is not barred by the three-year statute of limitation
from the time the ditch was dug. The trespass is not contin-
uing, but the irregular downpouring of the water upon the
WATER AND WATER COURSES-Continued.
land in varying quantities, to the injury of the land, and the
recovery of damages, is limited to those accruing within three
years prior to the commencement of the suit, both as to
annual or permanent damages, unless by acquiescence for
twenty years the presumption of a grant or easement arises.
Ibid.
1. Minimum Charge-Charge for Each House-Tenement Houses
-One Supply-Pipe.-Under a minimum charge of sixty cents
a month for water for each house furnished therewith by the
city of Goldsboro, the owner of three tenement houses on the
same property is chargeable with the minimum amount for
each house at least; and the abrogation of an ordinance
requiring a separate water pipe and meter to each house in
this and similar instances, so as to permit of only one pipe
and one meter for the supply of water to the three houses,
is for the convenience and advantage of the owner, and does
not affect the clear import of the regulations as to the mini-
mum amount chargeable for each house. Thompson v. Golds-
boro, 189.
WATER SUPPLY. See Cities and Towns, 1, 2, 3, 4, 5, 6.
WEIGHT OF EVIDENCE. See Courts, 14.
WIDOWS. See Homestead, 1.
WIFE'S SEPARATE PROPERTY. See Marriage and Divorce, 1, 2.
WILLFULLY AND WANTONLY. See Instructions, 13.
1. Probate Court-Deeds-Fraud-Jurisdiction-Equity — Relief.
-A court of equity has jurisdiction of an action brought by
the next of kin and heirs at law to set aside a will for undue
influence, when it appears that to afford the relief demanded
it is necessary to cancel previous deeds for alleged fraud
appearing to convey the same property to the executor and
devisee under the will; and the Superior Court, in which the
suit was brought, may proceed to hear and determine the
case and administer all the rights and equities between the
parties, as no adequate or complete remedy at law is given
in proceedings before the clerk or probate court. Sumner v.
Staton, 198.
2. Same-Trustee Ex Maleficio.-And if it should be established
that the executor acquired the property by the deeds and
under the will by fraud, the Court, in administering the
equities and doing substantial justice between the parties,
will decree the executor a trustee ex maleficio for plaintiff's
benefit and prohibit him and those claiming under him from
setting up title; may require the executor to give bond pen-
dente lite, and make such further interlocutory orders as
may be expedient and right to preserve the rights of the
parties. Ibid.
3. Same-Remedy at Law.-When it appears that a suit has been
properly brought against one of the defendants in the Supe-
rior Court to set aside a will, for the reason of certain
equities arising in setting aside a deed upon the ground of
fraud, and necessary to be administered in order to give
adequate and complete relief, it should be dismissed as to
another defendant when relief can be had as to her in pro-
ceedings to caveat the will before the clerk (probate court)
and concerning whose rights it is not necessary for the courts
of equity to interfere. Ibid.
4. Requisites.—A paper writing drafted by an attorney from
stenographer's notes taken from dictation of deceased as to
the disposition of her property after death, unsigned and
unwitnessed, is not admissible as a last will and testament.
Revisal, 3113. Kennedy v. Douglas, 336.
5. Nuncupative-Witnesses-Requisites.—It is necessary to the
validity of a nuncupative will that the testator state her
wishes in the presence of two witnesses and "specially re-
quire them to bear witness thereto." Ibid.
6. Same-Two Present-One Witness.-The declaration of a tes-
tator made in the presence of two witnesses that a paper
writing contained the disposition he desired made of his prop-
erty and that he desired its provisions carried out, without
reading or having the paper read at the time, but relying
upon the assertion of a person then present that it contained
his wishes as dictated by him several months before, is in-
valid as a nuncupative will: (1) the dictation was made to
one witness alone; (2) there was no sufficient declaration
then and there of the testator's wishes in the presence of
two witnesses from which they could induce their recollec-
tion to writing within ten days. Revisal, 3127 (3). Ibid.
7. Nuncupative — Writing — Intent-"Last Sickness."-A paper
writing which the deceased had theretofore dictated, but
postponed executing from time to time, and which he finally
declared to be his will without reading it, at a time he was
in his last sickness not expecting to recover and physically
unable to execute it, is invalid as a nuncupative will: (1) his
intent that it should be a written will is evidenced by his
conduct; (2) the dictation was not in law "during his last
sickness." Ibid.
8. Nuncupative-Validity-Interpretation of Laws.-The position
cannot be maintained that nuncupative wills are not now
legal in North Carolina because of the exception in regard
to them in Revisal, 3113. The whole Revisal should be con-
strued together. and sec. 3127 (3) expressly provides for
their probate. Ibid.
9. Estates for Life-Remainder-Living Issue--Limitations Over
Title- Contract to Convey- Specific Performance.- An
estate was devised to S. for life, and after her death and the
death of the devisor, to M., and should M. die without issue,
to F., said M. being now alive with no living issue, but the
mother of a child long since dead. The plaintiff having
acquired and holding the estate and interest of M., and hav-
ing bargained the same to defendant at a certain contract
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