
    E. R. DANIELS v. JOHN Q. HOMER.
    (Filed 11 December, 1907).
    Civil actioN, tried before Alim, J., at Spring Term, 1907, of the Superior Court of Dake County.
    It was admitted that the plaintiff was the owner and entitled to the possession of the net in controversy, unless the defendant had the right to seize the same under the provisions of section 2440, Revisal.
    It was also admitted that defendant was an assistant oyster commissioner, regularly appointed, and that, upon affidavit filed, and acting under instructions from the Oyster Commissioner, he seized said net and intended to sell the same.
    The defendant claimed that said net was being fished in waters prohibited by statute. The plaintiff admitted said net was set in the water and was being fished when seized, but denied that it was set in prohibited waters.
    Judgment for defendant. Plaintiff appealed.
    
      B. 0. Crisp and Aydlett & Ehringhaus for plaintiff.
    TP. M. Bond and Ward & Crimes for defendant.
   Pee. OueiaM

This appeal presents substantially the same questions considered by this Court in the case of Daniels v. Homer, 139 N. C., 230, and is governed by that case. The judgment is

Affirmed.

Walker and CoNNOR, JJ., dissent.  