In this court the defendants moved to dismiss for the further reason that the petition does not state facts sufficient to constitute a cause of action. It is contended that, the petitioner having already constructed its road to one of its termini, the town of Durham, its power to condemn land in that locality is exhausted. This involves a very serious question, and one which we do not feel warranted in determining, upon the face of the petition. It is true that the resolutions of the town of Durham, which are embodied in the complaint, in describing the alleged easement granted by the said town to the petitioner, speak of "the electric light house [as the point] where the present right of way stops," and a similar expression occurs in the ninth section of the petition; but this language was used, apparently, for the purpose of description, merely, and we cannot attach to it the important legal effects which follow direct and solemn admissions in pleadings. We will not, therefore, consider this phase of the case, but will assume, for the purpose of the discussion, that the power to condemn has not been exhausted, and that the petitioner has the right to condemn the land in question.

This introduces us to the other ground assigned by the defendant, that the petitioner does not allege that it has "surveyed the line or route of its proposed road, and made a map or survey thereof, by which such route or line is designated, and that they have located their said road according to such survey, and filed such certificates of such location, signed by a majority of the directors of the company, in the clerk's office," (Code, § 1944,) and given notice, etc., (Id. § 1952.) These conditions are required to be complied with before any company can construct any part of its road; and Code, § 1944, requires that their performance shall be alleged in the petition in all proceedings to condemn land. This legislation was taken from the general railroad law of New York, where, as with us, experience had shown the necessity of more particular and uniform regulations upon the subject. Before the enactment of these laws, railroads were entitled, under the ordinary provisions of their charters, to locate their roads between the termini according to their discretion, and this discretion could not be controlled by the courts except in cases where it was abused. The remedy was usually by injunction; and this often occasioned much vexatious litigation and delay, both to the railroad company and the land-owner. Besides, much needless injury to property might be inflicted, undue advantages taken, and even the peace of the state disturbed, before this remedy could be obtained. It was therefore deemed necessary to require the filing of maps, etc., as above provided, so that the land-owner might know what

particular land was intended to be appropriated, in order that, if he felt aggrieved, he could apply to the court within 15 days after written notice of such location, and have his grievances passed upon. Code, §§ 1944, 1952. “A fair construction of these laws, says the supreme court of New York in Re New York & B. R. Co., 62 Barb. 85, "requires a chronological fulfillment of these provisions." "By doing this," continues the court, "the company, in the first instance, has the right to arbitrarily locate the route; but the statute then gives the right to the property owner to secure a change of that location, if he can show cause for changing it to the satisfaction of the three persons to be appointed by the court to determine the question. This right of the property owner may be material and valuable, in view of the manner in which the railroad may cut his property, and affect the highways and other objects in the neighborhood. At any rate, it is a right given to him by the statute; and it is not for a corporation, nor for the court, to deprive him of it." The purpose of these laws is also stated in Mills, Em. Dom. § 62: "In order to obviate complaints of abuse of discretion, the legislature of New York passed an act requiring the filing of a map of the proposed road, and that parties aggrieved may apply for the appointment of commissioners to have the road altered. * * * The remedy cannot be applied to force the road from the land of one owner upon another, nor can the continuity of the route be broken." In Norton v. Railroad Co., 61 Barb. 476, LEARNED, J., says: "It was suggested that if commissioners were to be appointed in such cases, great delay might ensue. But the statute gives power to the company to limit the time within which this application can be made. All they have to do is to notify the property holders. After such notice, the persons aggrieved have but a limited and short time within which to make this application. There need be no delay. And, whenever there is reasonable ground of complaint as to the route,-a route established merely by the will of the company,-I think that the person feeling aggrieved should have a fair hearing be. fore persons competent to settle the question." The foregoing references are made for the purpose of showing the true spirit and purpose of these laws, and that the performance of the preliminaries required is indispensably necessary before proceedings to condemn can be instituted. It is said that, although the petition in this case fails to allege the performance of these conditions, the omission is not fatal, and that it is but a defective statement of a good cause of action. We do not concur in this view. The exercise of the power of eminent domain is in derogation of common right, and all laws conferring such power must be strictly construed. By the very terms of the law under consideration, these allegations must be made in the petition; and we think that they are as much jurisdictional in their character as is the fact that the land-owner and the railroad company have failed to agree. "If the petition does not state the facts required by the statute to be stated, an objection in

that regard can be raised preliminarily, in effect, by way of demurrer, and should be disposed of before proceeding to the merits. If such objection is well taken, the proceeding is dismissed, unless a proper case for amendment is shown." In Re New York, etc., Ry. Co., 64 How. Pr. 216; Fiero, Spec. Act. 623. So far from any amendment being suggested in the particulars mentioned, the counsel were candid enough to admit that maps of the route, etc., had not, in fact, been filed.

It only remains, then, for us to consider whether the above-mentioned provisions of the general railroad act (Code, c. 49) are applicable to the petitioner. The petitioner was incorporated under chapter 140, Acts 1887. Its charter provides, as we have said, that it should have the power to condemn land under the "same rules and terms as are prescribed for the North Carolina Railroad Company." The charter of the latter company does not make the filing of a map of the route, and the giving of notice, etc., a prerequisite to the institution of proceedings to condemn; and it is insisted that our case is governed by the provisions of this charter, and not by those of the general railroad act. It is also urged that the legislature has no power to change the charter of the North Carolina Railroad Company in the particulars mentioned, and that, if it has attempted to do so, such legislation would be unconstitution-❘ al, because it would impair vested rights. It is well settled that a mere change in the remedy does not fall within the inhibitory provisions of the constitution. Cooley, Const. Lim. 287; Railway Co. v. Kinner, 14 Amer. & Eng. R. Cas. 30; Hinton v. Hinton, Phil. (N. C.) 415; Railroad Co. v. McDonald, 12 Heisk. 54; New Jersey v. Weldon, 23 Amer. & Eng. R. Cas. 134. But this question does not arise here, as the point is not whether the general act applies to the charter of the North Carolina Railroad Company, but whether it is applicable to the charter of the petitioner. This latter charter was granted in 1887, (chapter 140, Acts 1887,) and must be construed with reference to existing laws. In 1883, (see section 701, Code,) it was provided that "this chapter [on "Corporations"] and the chapter on railroads and telegraphs, so far as the same are applicable to railroad corporations, shall govern and control, any. thing in the special act of assembly to the contrary notwithstanding, unless, in the act of the general assembly creating the corporation, the section or sections of this chapter, and the chapter entitled 'Railroad and Telegraph Companies,' intended to be repealed, shall be specially referred to by number, and as such specially repealed. This provision very plainly shows that it was the intention of the legislature that the general railroad act should apply, and that its important provisions should not be repealed either by implication or by hasty legislation. It is but an affirmance of the principle that the repeal by implication of a general law by a private statute is not favored. 7 Myers, Fed. Dec. § 2981 et seq. But the statute goes a step further, and prescribes a rule of construction under which the private act, even if it be inconsistent with the provisions of the gen

eral law, shall not repeal them, "unless they are specially referred to by number, and as such specially repealed. It is unnecessary to determine in this action whether this section of the Code applies to charters in existence prior to 1883; but it is, we think, too plain for argument that it does govern and control all charters granted after its enactment. The reference in the petitioner's charter to the charter of the North Carolina Railroad Company can have no greater effect than if the "terms and rules" referred to had been expressly set forth in the act of incorporation; and these, as we have seen, must give way to the general law. It may be further remarked that there is no real conflict, in any material particular, between the two remedies. The general law only superadds certain requirements as to which the private act is silent. They may well be construed in pari materia.

Holding, as we do, that the general law applies, and that under this law the petitioner has failed to set forth in his petition such facts as constitute a cause of action, we must conclude that his honor committed no error when he allowed the motion of the defendant, and dismissed the proceeding. No error.

WALLACE et al. v. DOUGLAS. (Supreme Court of North Carolina. March 31, 1890.)

REPORT OF REFEREE-EXCEPTIONS-APPEAL.

An appeal from an order sustaining an exception to a referee's report, and recommitting the case to the referee to take further evidence, is premature, and will be dismissed.

(Syllabus by the Court.)

Appeal from superior court, Iredell county; CONNOR, Judge.

C. H. Armfield, for appellants. W. M. Robbins, for appellee.

CLARK, J. The defendant, among other exceptions, excepted to certain evidence admitted by the referee. The court sustained the exception. The case, on appeal, then states: "This testimony being excluded for the foregoing reasons, the plaintiffs insisting that there is other testimony tending to sustain the findings of the referee, it is considered that the said report be recommitted to said referee, to the end that he may pass upon said testimony; and, if in his discretion he deems it in furtherance of justice, permit the plaintiffs to introduce other competent testimony. From this judgment the plaintiffs apealed to the supreme court." The appeal was premature and improvidently taken, and must be dismissed. The plaintiffs should have had their exception noted in the record, and if on the coming in of the amended report, and a final judgment thereon, they find it necessary to appeal, the exception will then be reviewed. It may be that, as they themselves suggest, other evidence may be found to supply the place of that excluded, or when the final judgment is rendered they may not desire to appeal. The court will not take “two bites at a cherry." The rule of practice is settled by so many decisions that we

GODWIN et al. v. MONDS et al. (Supreme Court of North Carolina. March 31, 1890.)

DEFECTIVE SERVICE OF PROCESS.

1. When the summons was served on defendants by the sheriff, they were outside his jurisdiction. He told them this, and said he would send it to the proper sheriff to serve. They told him not to do that, but to mark it "Served," and they would accept service in that way. Held, that this was not a "written admission of" service, within Code N. C. § 228.

2. The judgment was properly set aside, as the return of the sheriff that he had served the summons was not conclusive.

Appeal from superior court, Cumberland county; MAC RAE, Judge.

Sutton & Cook, F. P. Jones, N. W. Ray, and W. C. Murchison, for appellants. R. P. Buxton and H. McD. Robinson, for appellees.

MERRIMON, C. J. The following is so much of the case settled on appeal as need be repeated: "This motion to set aside judgment rendered herein at May term, 1888, coming on to be heard, and being heard, the court finds the following facts: That the summons herein was returnable to May term, 1888, and was served on the defendants M. W. and K. E. Barefoot by the deputy-sheriff of Cumberland county; that when said service was made these defendants were in the county of Harnett; that the said deputy told them of this, and stated that he would send the summons back, and that the sheriff of Harnett county would serve it on them; that the said defendants said that it was not necessary, and told the deputy to mark it 'Served,' and that they would accept service in that way; that they would be at Cumberland court, and that they were looking for this suit, and would be there; that said deputy returned the summons as duly served; there was no written acceptance of service; and this was all that passed between the said defendants and the deputy; that thereafter the said defendants employed counsel to defend their interests in this case, and paid him a fee, and that said counsel promised to keep them informed in all respects, and to defend their interests; that thereupon they left this matter entirely in the hands of their counsel, who was a non-resident of Cumberland county; that defendant M. W. Barefoot and the said attorney were present at May term, 1888, of said court, and left before the judgment was taken; that a verified complaint was filed on the second day of said term; that the defendants were ignorant men, not versed in the law, and gave themselves no further concern about the case, because said attorney had

promised to keep them fully informed on all necessary points; that no answer or bond was filed, nor does it appear that the attorney entered any appearance whatever; that defendants had no notice of the judgment until August, 1888; that, upon an examination of the affidavits and exhibits, the defendants have apparently a meritorious defense. The court adjudged that no proper service was made on the said defendants, and that the service does not appear to have been waived by the appearance of defendants or their counsel; that the neglect of said defendants, if there was any neglect, was excusable, and the judgment a surprise to them; that the judgment, as to M. W. Barefoot and K. E. Barefoot, be set aside,-a sufficient bond, in the sum of five hundred dollars, having been given in October, 1888, conditioned upon payment to plaintiffs of any sum which they may recover of said defendants for rents, future or past, damages, or costs in this action. The restraining order, heretofore granted, shall be continued, and the plaintiffs, their agents or attorneys, are forbidden to do any act in connection with the land, the subject of the controversy in this action, that will injure or annoy the defendants during the pendency of this suit. The defendants M. W. Barefoot and K. E. Barefoot are allowed until Monday, the first day of the January term, 1890, to file their answer and defense bond, after which the action will stand for trial upon the docket of this court.' From the judgment of the court the plaintiffs, having excepted, appealed to this court.

To say the least, the judgment set aside in this action was irregular and voidable. The summons therein was not served upon the defendant by an officer in a way required, authorized, or recognized by law, nor did the defendants voluntarily go into court and subject themselves to its jurisdiction. The sheriff of the county of Cumberland had no authority, in cases like this, to serve process outside of that county. Hence what his deputy said to the defendants in the county of Harnett, and they said to him as to the summons, went for naught. This did not make service of the summons at all, in contemplation of law, and the defendants were not bound to take notice of any act upon it, as defendants in the action. Their merely verbal "acceptance" of service was too uncertain, indefinite, and imperfect to serve the purposes of the law. Parties can be compelled to come into court only in the way prescribed by law. They might have "accepted" service in writing, and this would have been treated as "the written admission of" service, as contemplated by the statute. Code, § 228, subd. 3; Bank v. Wilson, 80 N. C. 200; Nicholson v. Cox, 83 N. C. 44. Service admitted in writing is sufficient. The defendant in that case will not be allowed to deny that he has been served with process, and the writing makes a permanent memorial of the fact as part of the record. It is necessary that the evidence of the service of process shall be stable and permanent. The return of the sheriff by his deputy that he had served the summons was not conclusive. It was

competent for the defendants to show, as they did, that there had not been lawful service; and when the court found the fact it not only had authority to do so, but it was its duty to set the judgment aside because of irregularity, as it did do. It might have been questioned whether the court could detain the defendants in court, but they did not except and appeal, and no question in that respect is before us. There is no error. The judgment was proper. To the end that further proceedings may be had in the action according to law, let this opinion be certified to the superior court. It is so ordered.

SEAWELL V. RALEIGH & A. A. L. R. Co. (Supreme Court of North Carolina. March 31, 1890.)

RAILROAD COMPANIES-STOCK KILLING.

In an action against a railroad company for killing stock, it is error to instruct that, "if the train was run faster than schedule time, and was running at the time at so rapid a rate that it could not be controlled or stopped within the distance where the object was discovered, it would have been negligence," since, where a train is running within the speed it is permitted to run, it is a good defense that everything that could be safely and reasonably done to avoid the accident was done, as soon as the stock might, with proper care, have been seen on the track.

J. C. Black, for appellant. R. P. Buxton, for appellee.

DAVIS, J. This was a civil action, originally commenced before a justice of the peace, and, on appeal, tried before SHIPP, J., at August term, 1889, of the superior court of Moore county. The action is brought to recover damages of the defendant for killing plaintiff's bull by the negligent running of defendant's train. The killing was admitted, and there was evidence as to the value of the animal. It was also in evidence that "the bull was one and one-half miles from the house of the plaintiff when killed." The defendart introduced as a witness its engineer, B. R. Lacy, who testified: "I was engineer in charge of the defendant's freight train on the night of the 13th of September, 1887, and remember killing the plaintiff's stock. It was not raining, but a dark, murky night, and after 8 o'clock. I left Sanford about one-half hour behind time, and was running a shade over schedule time to make it up. The schedule time was sixteen miles an hour. We are permitted to run thirty miles an hour. I was running about twenty or twenty-five miles an hour. It was a straight stretch for two or three miles in front, and was slightly up grade. I discovered the dim outlines of the cattle some 150 feet in front, but so indistinctly that I got within fifty or seventy-five feet before I could distinguish the objects. I then blew the cattle alarm, and attempted to reverse the engine, and to blow on the brakes. I do not know whether the brakes were put on or not. The speed was not checked, and I do not believe could have been checked before knocking the animals off. I could not stop the train, going at its speed, within the distance. By the head-light, which was the usual one, I

could see fifty or seventy-five feet ahead. I was at my post and looking forward on the track at the time of the killing. I had good brakesmen, and my engine was provided with all the modern appliances for stopping the train in such emergencies. I did all in my power to prevent the accident. I have been an engineer about fifteen years. A witness, Mr. Guess, testified that B. R. Lacy was a man of good character, and a prudent and skillful engineer. Upon the foregoing evidence the plaintiff insisted that the statutory presumption of negligence, the action having been brought within six months, (Code, § 2326,) was not repealed. On the other side, the defendant insisted that there was no negligence, and that, if there was, the plaintiff was guilty of contributory negligence, and that, in either event, he was not entitled to recover damages. The court told the jury that, according to the statute in such cases, the action having been brought within six months, the law presumes negligence, and it was the duty of defendants to remove that presumption; that if the facts showed that there was, in truth, no negligence, it was their duty so to find; that negligence was a mixed question of law and fact; that in this case, if the train was run faster than schedule time, and was running at the time at so rapid a rate that it could not be controlled or stopped within the distance where the object was discovered, it would have been negligence; that there was no evidence of contributory negligence. Defendants excepted. There was a verdict and judgment for the plaintiff, and defendant excepted, and appealed.

We think his honor erred in charging the jury "that in this case, if the train was run faster than schedule time, and was running at the time at so rapid a rate that it could not be controlled or stopped within the distance where the object was discovered, it would have been negligence." The defendant can be held to no such rigid rule of accountability as this. According to the only testimony upon the question, the engineer was permitted to run 30 miles an hour. He was running 20 or 25 miles an hour, and if, as soon as he saw, or with proper care might have seen, the animal on the track, he did everything that could be safely and reasonably done to avoid the accident, it would be a full defense to plaintiff's claim to damages. Winston v. Railroad Co., 90 N. C. 66, and cases there cited. If the facts testified to by the engineer be accepted by the jury as true, there was no negligence on the part of defendant. There was error, and the defendant is entitled to a new trial.

BETHEA V. RALEIGH & A. A. L. R. Co. (Supreme Court of North Carolina. March 31, 1890.)

RAILROAD COMPANIES-STOCK KILLING - INSTRUC

TIONS.

1. Instructions need not be given in the language of the request, but it is sufficient if they are given in substance.

2. The fact that plaintiff allowed his animal to stray from home, and upon defendant's track, was not such negligence as will bar recovery.