"The court held that the time limit of the guaranty was not the life of the corporation, but until the stock had been retired."

the meaning of these plain English words. A guarantor on a note, bond, or other obligation is not released because the promisor or obligor becomes insolvent, bankrupt, or dies. His guaranty is to provide against the risk of those very contingencies. It can make no difference that the promisor, or obligor, and the guarantor are corporations. The original obligation of the American Warehouse Company is to pay 6 per cent., preferred, accumulative dividends on its certificates during the life of the obligor company, which was chartered for 30 years. When that com

The company had ceased to do business, but this did not "retire" its stock, and there fore the "time limit" had not been reached. The court, in that case, stated that the principle we have applied to this case had been recognized and established in several decisions. It is to be noticed that Kernochan v. Murray is a New York case, and the Court of Appeals of that state, as we have seen, sustains our view, but neither of the two cases cited by the plaintiff conflicts with any-pany fails to pay, whether because it does thing we have said, but both are in entire harmony therewith.

As the warehouse company was a bankrupt when this action was commended, and Its business was suspended, so that it could not earn dividends, our conclusion is that the plaintiff had no cause of action on the guaranty at that time. Whether the guaranty has ceased for all time to be operative because it has reached the limit of its duration by the dissolution of the corporation we are not required to declare.

We have not, for the reasons already stated, considered the reasonableness of the contract of guaranty, if it bears the construction which the plaintiff insists that it should have, nor the other objections to its validity, which the defendant has discussed in its brief.

There was error in the judgment of the court. It will be reversed and the demurrer sustained.

Reversed.

CLARK, C. J. (dissenting). The guaranty given by the defendant, upon which this action is brought is as follows:

"In each and every consecutive year from and after this date, should the dividends or any part thereof, called for upon the face of the within certificate not be paid on its due date, for value received the Spray Water Power and Land Co. guarantees and binds itself to pay in cash, 10 days after notice of such default, to the holder of the within certificate, any such deficiency in the dividend as may arise from the failure of the American Warehouse Co. to pay its annual dividend as stated in said certificate. This agreement is binding during the life of the Spray Water Power and Land Company."

The

not earn dividends or dies by legal dissolution or bankruptcy, the guarantor faces the very contingency provided for by the guaranty, and for which it was exacted. guarantor company is specially authorized by its charter to make this guaranty. The guaranty specifies that it "is binding during the life of the Spray Water Power and Land Co." This leaves no doubt as to the duration of the guaranty. Whether this duration would be restricted to the 30 years chartered life of the American Warehouse Company should its life not be extended by a renewal of the charter of that company is a question not presented. The guaranty cannot be for less than 30 years in any event, and it was given to secure the payment of the accumulative 6 per cent, dividends should the American Warehouse Company fail to pay such dividends regardless of the cause of the default-whether such default is caused by the failure to earn dividends or by legal dissolution or bankruptcy or any other cause. This is the plain language of the guaranty. If it was not given for that purpose, and the guarantor is absolved, either by failure to earn dividends, or by the legal dissolution or bankruptcy of the warehouse company, it is difficult to conceive for what purpose the guaranty was required. It was intended to add something to the security afforded by the obligation of the original obligor, insuring against the contingencies by reason of which said company might fail, or be unable, to pay its dividends, as stipulated. BROWN, J., concurs in this opinion.

WATTS v. SPRAY WATER POWER &
LAND CO. (No. 331.)

1916.)

Appeal from Superior Court, Rockingham County; Justice, Judge.

The sole question presented is the meaning of the above guaranty. Probably there is no other case in the books which presents a guaranty in exactly the same words, and it would be small, if any, aid to consider the (Supreme Court of North Carolina. May 31, constructions placed by other courts upon guaranties more or less dissimilar. Even if there had been presented to other courts a guaranty in these identical words, there has been none in our court. The construction of this guaranty should not be complicated by the view taken of more or less dissimilar guaranties by other courts. The sole question is the construction of the words, and their intent as derived from the four corners

Action by George W. Watts against the Spray Water Power & Land Company. From a judg ment overruling demurrer to the complaint, defendant appeals. Reversed.

A. D. Ivie, of Spray, C. O. McMichael, of Reidsville, and E. S. Parker, Jr., Brooks, Sapp & Williams, and King & Kimball, all of Greensboro, for appellant. Fuller & Reade, of Durham, and Manly, Hendren & Womble, of Win

PER CURIAM. The question raised in this [3. HOMICIDE 178(1) - EVIDENCE-COMMISappeal is governed by the opinion of the court in SION OF CRIME BY OTHER THAN DEFENDANT. J. E. Stagg v. Spray Water Power & Land In a prosecution for murder, testimony that Company, 89 S. E. 47, filed at this term, and two other men were seen the evening before the same judgment as therein rendered will be the killing near where deceased was shot, tendentered in this case, the two cases being sub-ing to show that others than defendant commitstantially alike. ted the crime, was inadmissible in the absence Reversed. of direct evidence connecting the others with the corpus delicti.

[Ed. Note. For other cases, see Homicide, DUKE v. SPRAY WATER POWER & LAND Cent. Dig. § 307; Dec. Dig. 178(1).]

CO. (No. 353.) (Supreme Court of North Carolina. May 31, 1916.)

Appeal from Superior Court, Rockingham County; Justice, Judge.

Action by B. N. Duke against the Spray Water Power & Land Company. From a judgment overruling demurrer to the complaint, defendant appeals. Reversed.

A. D. Ivie, of Spray, C. O. McMichael, of Reidsville, and E. S. Parker, Jr., Brooks, Sapps & Williams and King & Kimball, all of Greensboro, for appellant. Manly, Hendren & Womble, of Winston-Salem, and Fuller & Reade, of Durham, for appellee.

PER CURIAM. The question raised in this appeal is governed by the opinion of the court in J. E. Stagg v. Spray Water Power & Land Company, 89 S. E. 47, filed at this term, and the same judgment as therein rendered will be entered in this case, the two cases being substantially alike.

Reversed.

4. WITNESSES 350-IMPEACHMENT.

In a prosecution for murder, a question to a state's witness, on cross-examination, to impeach him, whether he had not been accused of stealing hogs, was properly excluded, it not being competent to ask a question foreign to the issue in order to impugn the credit of the witness.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. 350.] 5. CRIMINAL LAW 386-EVIDENCE-TRAILING BY BLOODHOUNDS.

In a prosecution for murder by lying in ambush, testimony of the trailing of defendants by bloodhounds from a log behind which deceased said he had been shot, was admissible where the testimony of the owner and trainer of the dogs showed that they were of pure blood, of a stock characterized by acuteness of sense and power of discrimination, possessed of such qualifications, and trained in their exercise of tracking human beings.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 768, 875; Dec. Dig. 386.]

COBB v. SPRAY WATER POWER & LAND 6. CRIMINAL LAW 741(1) EVIDENCE

CO. (No. 333.)

(Supreme Court of North Carolina. May 31, 1916.)

Appeal from Superior Court, Rockingham County; Justice, Judge.

Action by J. B. Cobb, trustee for M. H. Cobb, against the Spray Water Power & Land Company. From a judgment overruling demurrer to the complaint, defendant appeals. Reversed.

A. D. Ivie, of Spray, C. O. McMichael, of Reidsville, and E. S. Parker, Jr., Brooks, Sapp & Williams and King & Kimball, all of Greensboro, for appellant. Justice & Broadhurst and R. C. Strudwick, all of Greensboro, and Jones Fuller, of Durham, for appellee.

PER CURIAM. The question raised in this appeal is governed by the opinion of the court in J. E. Stagg v. Spray Water Power & Land Company, 89 S. E. 47, filed at this term, and the same judgment as therein rendered will be entered in this case, the two cases being substantially alike.

Reversed.

(171 N. C. 813)

STATE v. WIGGINS et al. (No. 572.) (Supreme Court of North Carolina. May 31, 1916.)

1. HOMICIDE 22(2)-MURDER IN FIRST DEGREE KILLING BY LYING IN AMBUSH. Defendants who lay in wait and killed deceased from ambush are guilty of murder in the first degree.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 37; Dec. Dig. 22(2).]

2. CRIMINAL LAW 1178-APPEAL-WAIVER OF EXCEPTIONS.

Exceptions not mentioned in the brief are

waived.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3011-3013; Dec. Dig. 1178.]

WEIGHT-QUESTION FOR JURY.

In a prosecution for murder, where bloodhounds were put on the trail behind the log from behind which deceased stated he had been shot, whether they properly tracked defendants and identified them was for the jury, unless the evidence was insufficient to go to the jury at all.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1705, 1713, 1727, 1728; Dec. Dig. 741(1).] 7. HOMICIDE

313(3)-VERDICT-SPECIFYING

DEGREE OF CRIME-STATUTE.

Under Revisal 1905, § 3271, providing that the jury shall determine in their verdict whether the crime is murder in the first or second degree, in a prosecution for murder, where, under the evidence, only a verdict of murder in the first degree or of not guilty was possible, and the court charged the jury should find the prisoners "either guilty of murder in the first degree or not guilty," their verdict that they found "the prisoners at the bar and both of them guilty of the murder and felony of which they stand indicted," was sufficient to convict of murder in the first degree.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 674; Dec. Dig. 313(3).]

Appeal from Superior Court, Graham County; Ferguson, Judge,

Hardy Wiggins and Merritt Miller were convicted of murder, and they appeal. No

error.

Alley & Leatherwood and Sherrill & Harwood, all of Bryson City, and Dillard & Hill, of Murphy, for appellants. The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

CLARK, C. J. The prisoners were indicted for murder, the bill charging that they

"willfully, premeditatedly, deliberately, and feloniously, and of their malice aforethought, did kill and murder Phillip L. Phillips." There was evidence, which the jury believed, that the prisoners lay in wait and killed the deceased from ambush. There was no evidence tending to show any other state of facts, and the sole issue of fact was as to the identity of the prisoners; that is, whether they were the persons who slew the deceased. The jury returned for their verdict that they found "the prisoners at the bar and both of them guilty of the murder and felony whereof they stand indicted." [1] The court had refused to charge the the home of the prisoner Wiggins and markjury, as prayed by the prisoners, that:

the jury to render a verdict of guilty of mur. der in the first degree or not guilty."

Under this charge, and upon this evidence, the jury had no alternative but to find the prisoner guilty of murder in the first degree or not guilty. If there had been the slightest doubt possible the prisoners' counsel should, and certainly would, have asked for the jury to be polled and to indicate in what degree of murder each juror found the prisoners, and each of them, guilty. It would

E. 917, the court held that in order to render such testimony competent it must not only be shown that the dog is of pure blood and of a stock characterized by acuteness of sense and power of discrimination, but must also be itself possessed of these qualities and have been trained or tested in their exercise in the tracking of human beings. The testimony of the owner and trainer of the dogs fully measured up to these requirements, and need not be discussed. [6] This having been shown to the satis-be a trifling with the most solemn adminisfaction of the court the evidence of their action in trailing was properly submitted to the jury. Whether they properly tracked the prisoners and identified them was for the jury, unless the evidence was manifestly insufficient to be submitted to them. State v. Moore, 129 N. C. 494, 39 S. E. 626, 55 L. R. A. 96, relied upon by the prisoners, the dog failed to follow any track. The evidence of the trailing in this case is very full and the jury found it sufficient. It was used in corroboration of the dying declarations of the deceased. The criticisms of the counsel for prisoners here were directed to the weight to be given this testimony, but that was a matter for the jury, and not a question of law for this court.

In

[7] The last exception is to the form of the verdict rendered, upon the ground that the statute requires the jury to say in what degree of murder the prisoners were convicted. The statute (Revisal, § 3271) provides:

"Nothing contained in the statute dividing murder into degrees shall be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.

tration of justice to hold that on a trial, especially of this kind, in which every point had been defended, that there was any doubt on this charge and evidence as to the finding of the jury.

In State v. Gilchrist, 113 N. C. 673, 18 S. E. 319, where the indictment was in the saine form as this, and the court charged that the crime was murder or nothing (as it did in this case), and the jury found the accused guilty of the felony of murder in the manner and form as charged in the bill of indictment (as it did here), the court held that upon the evidence only a verdict in the first degree was warranted, and that the general verdict was in response to the charge of murder in the first degree and a full compliance with the above statute, the court saying (citing several cases): "The verdict should be tak en in connection with the charge of his honor and the evidence in the case." This has been cited repeatedly since. See Anno. Ed., especially State v. May, 132 N. C. 1021, 43 S. E. 819, and the very recent case of State v. Walker, 170 N. C. 716, 86 S. E. 1055. In this last case, the foreman responded, "Guilty of murder in the first degree," and, the prisoners having called for a poll of the jury, each juror responded simply, "Guilty.” The court held that in that case, as in this, the question being solely as to the identity of the prisoners, and the judge having properly charged the jury upon the evidence to return a verdict of guilty in the first degree or not guilty, the verdict must be construed in connection with the charge and the eviIn this case, the court instructed the jury dence, and there could be no reasonable inthat they should find the prisoners "either guilty of murder in the first degree, or not tendment that the verdict could have meant guilty." The testimony was that the prison- anything else than murder in the first deers waylaid the deceased and the only degree, for "there was no evidence, either of fense was an alibi. Upon the evidence for the state, and that for the defense, and the charge, the jury had no alternative but to return a verdict of guilty of murder in the first degree, as charged, or not guilty. Under these circumstances this court has sustained always a verdict like this.

. The object of this statute is of course to place it beyond doubt in what degree of murder the prisoner was convicted. The verdict must be construed according to the charge and the evidence, and when these make it certain beyond question, the law has been complied with. State v. Gilchrist, 113 N. C.

673, 18 S. E. 319.

In State v. Spivey, 151 N. C. 676, 65 S. E. 995, the court held:

murder in the second degree or of man

slaughter, as indeed the court had told them," adding, "Any other interpretation would be a 'refinement' and a miscarriage of justice."

The prisoners rely upon State v. Truesdale, 125 N. C. 696, 34 S. E. 646, and State v. Jefferson, 125 N. C. 712, 34 S. E. 648. In the former case the record shows that there was question on the trial upon the evidence, as to the degree of murder, of which the prisoner was guilty, and the jury should have specified the degree. In the latter case

"When the entire evidence shows, and no other reasonable inference can be fairly drawn therefrom, that the murder was committed either by lying in wait or in an attempt to perpetrate a felony, and the controverted question is the identity of prisoner as the murderer, the a new trial was granted upon the incom

tions and of other evidence; the court add- | convey one-half to said Lynch. He further ing that the verdict should have specified al- testified: so of what degree of murder the prisoner was guilty.

"Shortly after I purchased this land in 1895, and within four or five years thereafter, I made, executed, and acknowledged a deed conveying a half interest in the same to the plaintiff, Lynch. I placed this deed in a stamped envelope with my return address on it in the post office, directing the same to the plaintiff. Mr. Lynch told me afterwards that he did not receive this deed. I was adjudged a bankrupt in the District Court of Virginia in 1911. The property described in this action was sold on May 4, 1914. I did not tell Mr. Davis (the trustee in bankruptcy) or any one else that Mr. Lynch claimed an interest in the same. After the sale was made I asserted a right of dower in the entire tract in behalf of my wife, and I executed with her a deed to the Juniper Corporation (the purchaser) releasing her right of dower in the same. deed which I mailed to Lynch bore my return address. The deed was never returned to me. I have not seen the same since I mailed it."

The plaintiff, Lynch, also testified: "Johnson told me some time ago that he had executed a deed to me for a half interest in this land; that the same had been mailed to me. I never received this deed. I have never listed the property for taxation since it was purchased in 1895."

It is sufficient that we rest the decision

Appeal from Superior Court, Tyrrell on the uncontradicted testimony of the plain

opinion, see 170 N. C. 110, 86 S. E. 995. Re- the post office postpaid, directed to Lynch, hearing denied.