#### CORNELIA T. JESSUP et al. v. THOMAS NIXON.

(Filed 23 February, 1927.)

Appeal by defendant from Grady, J., at August Special Term, 1926, of Perquimans.

Motion by defendant for judgment dismissing the action at the cost of the plaintiffs, in accordance, as he contends, with the opinion of the Supreme Court, rendered 19 September, 1923, and duly certified to the Superior Court of Perquimans County. .Erom an order denying this motion and leaving the cause on the docket for trial, the defendant appeals, assigning error.

McMullan & Leroy and Ehringhaus & Hall for plaintiffs.

Whedbee '& Whedbee, H. S. Ward, S. C. Bragaw and Thompson & Wilson for defendant.

*831Per Curiam.

.This case was before us at the Fall Term, 1923, and is reported in 186 N. C., 100. The defendant’s exception to the refusal of the trial court to grant his motion for judgment as of nonsuit was duly presented on the original hearing, but-was not sustained. Certain peremptory instructions were held to be erroneous. Hence, the necessary effect of the rulings was to remand the cause for a new trial, the appeal being from a judgment rendered on a verdict of the jury, and the demurrer to the evidence not being sustained.

Affirmed.

Connor, J., did not sit.