1. Rev. St. U. S. § 3296, which makes it indict-
able to remove distilled spirits from a government
warehouse before the lien for taxes is satisfied,
has no application to the larceny of such spirits,
and the latter offense is triable in the state courts.
-State v. Harmon, (N. C.) 10 S. E. 474.
Indictment.
2. An indictment for larceny from a corpora-
tion need not allege the fact of incorporation,
where the corporate name is correctly set out.-
State v. Grant, (N. C.) 10 S. E. 554.
3. In an indictment for the larceny of whisky
stored in a government warehouse, the ownership
is properly laid in him who has the right to take
it away on the payment of the tax.-State v. Har-
mon, (N. C.) 10 S. E. 474.
4. An indictment for the larceny of a watch,
which charges that the watch was intrusted to the
accused for the purpose of applying the same for
the benefit of the owner, and to have the same
mended, and to be returned to the owner in a few
days, is sufficiently specific as to the object of the
bailment and the benefit contemplated.-Williams
v. State, (Ga.) 10 S. E. 208.
Evidence.
5. The indictment being for the larceny of mon-
ey from a house, the bills stolen being two 20's and
one 10, evidence that accused, when arrested, had
in his possession a small sum in change, and cer-
tain articles of property, was of slight relevancy,
but its admission was not substantial error.-Carr
v. State, (Ga.) 10 S. E. 626.
6. In a prosecution for larceny from a corpo-
ration, the charter of the corporation need not be
produced, in order to prove its incorporation. This
is sufficiently proved by evidence that it carries on
business as such.-State v. Grant, (N. C.) 10 S. E.
cutor testified that, three months after the cow
was killed, he went to the place, and found noth-
ing there. Held, that it was error to tell the
jury that, if the only evidence had been that the
cow was shot by one of the defendants, they
would have been instructed to find the defendants
not guilty, but since it had been shown that the
cow was not found where she was killed, they might
infer an asportation; such instruction stating, in
effect, that, if the cow was removed after being
shot by one of the defendants, she must have been
removed by the defendants.-State v. Perkins, (N.
C.) 10 S. E. 175.
Lease.
See Landlord and Tenant, 9, 10; Railroad Com-
panies, 11, 12.
of execution, see Execution, 6-9.
taxes, see Taxation, 2.
LIBEL AND SLANDER.
Privileged communications.
1. Where the agent of a corporation which is
party to a suit, and is represented by counsel,
remarks, during the trial, in reference to testimony
given against the corporation, that "it is a lie," he
does not thereby render himself liable for slander,
unless malice is shown; such agent being entitled
to the privilege of a party.-Nissen v. Cramer, (N.
C.) 10 S. E. 676.
Action for Evidence.
2. In an action for slander against the agent of
relation to the testimony of plaintiff, "It is a lie,
a corporation for remarking in a trial in court in
a letter written by him to a third person, saying
him by such third person out of what he expects
that plaintiff hopes to settle a claim held against
to beat defendant's company, but that the com-
7. On trial for larceny the state may show that
other articles lost at the time of the alleged theft pany does not propose to be swindled, etc., is in-
were found in defendant's possession, together-Nissen v. Cramer, (N. C.) 10 S. E. 676.
competent to show malice on the part of defendant.
with those mentioned in the indictment.-State v.
Weaver, (N. C.) 10 S. E. 486.
8. A declaration made by defendant, during the
searching of his house, as to where he got some of
the articles, may be shown by the state.-State v.
Weaver, (N. C.) 10 S. E. 486.
9. Evidence that defendant was one of several
who were found carrying the stolen goods at night
along the road, a few days after the larceny; that
the party, when stopped, dropped the goods, and
ran; that defendant, after arrest, forfeited his
bond, and evaded rearrest, till one of those who
were with him, carrying the goods, had been killed,
and then surrendered himself; that he was a broth-
er of two of the party seen with the goods, and a
neighbor of the other.-is sufficient to submit to the
jury.-State v. Eller, (N. C.) 10 S. E. 313.
10. On an indictment for larceny and receiving
stolen goods, testimony of a witness that, two or
three years before, defendant had joined in an
agreement to rob the same store which lost the
stolen goods, together with evidence that he for-
feited his bond in the present case, and evaded re-
arrest, is insufficient to entitle the state to have the
case submitted to the jury.-State v. Eller, (N. C.)
10 S. E. 313.
11. On a trial for larceny of a cow, a witness
testified that he saw the two defendants together,
and that one of them shot a cow, and afterwards
threatened to shoot the witness if he spoke of it.
Another witness testified that the other defendant,
in company with another man, sold him a butch-
ered cow whose hide resembled that described by
the first witness, and the prosecutor testified that
he had lost a cow resembling that described. Held,
that it was a question for the jury whether there
was an asportation.-State v. Perkins, (N. C.) 10
12. On a trial for the larceny of a cow there was
evidence that a cow, resembling the prosecutor's,
was shot by one of the defendants. The prose-
Criminal proceedings.
3. On indictment under Code N. C. § 1113, for
slandering an "innocent woman, " though the wo-
man at the time the words were used may have
been exemplary, evidence that she had once
had illicit intercourse is competent as tending to
shake the testimony as to her subsequent good
character.-State v. Grigg, (N. C.) 10 S. E. 684.
4. A woman who has had illicit intercourse
with a man, but has since repented and become
virtuous, is an "innocent woman within Code N.
C. 1113, which provides that any person who
shall attempt, in a wanton and malicious manner,
to destroy the reputation of an innocent woman,
by words amounting to a charge of incontinency,
shall be guilty of a misdemeanor.-State v. Grigg,
(N. C.) 10 S. E. 684.
See Municipal Corporations, 7.
To sell liquor, see Intoxicating Liquors, 4-6.
See, also, Mechanics' Liens.
Of judgment, see Judgment, 17-21.
landlord, see Landlord and Tenant, 13-2
mortgages, see Mortgages, 5, 6.
taxes, see Taxation, 7-9.
vendor, see Vendor and Vendee, 12-16.
Priorities.
1. Where one loans another money to take up
notes given for a balance of purchase money of land,
and the deed is made to the lender, who gives a
bond for title to the borrower, and the land is sold
under execution against the borrower, the lender
is entitled to be paid out of the proceeds of the
sale, in preference to general creditors.-Hill v.
Cole, (Ga.) 10 S. E. 739.
2. Unless one making advances and giving date of the last item of account proved on either.
credit upon the faith and belief that he has a lien side. In an action on a sealed note defendant set up
for the price really has it, mere notice to others as a counter-claim an account running back nine
that he is so acting, or has so acted, will not viti-years, on which only one item was credited to plain-
ate or postpone an otherwise valid mortgage taken tiff, and that was without his knowledge. The court
by them after receiving such notice.-Baker v. charged that the counter-claim must be proved,
Massengale, (Ga.) 10 S. E. 347.
and that it was limited by law to six years before
commencement of the action. Held, that there was
no error in the instruction, as defendant's counter-
claim did not bring the action within the statute re
lating to cases of "mutual, open, and current ae-
count."-Chapman v. Chapman, (S. C.) 10 S. E
3. Under Code N. C. § 1754, classing a cropper
with lessors and tenants; and section 1755, provid-
ing a remedy whereby he may compel the landlord
or his assigns to divide the crop, and turn over to
him his share,-a person having an agricultural
lien on a crop for advances made to the landlord,
the lien having been acquired after the making of
a contract by the landlord with a cropper, under
which the latter is to receive a share of the crop
for working it, holds the lien subject to the right
of the cropper to his share.-Rouse v. Wooten, (N.
C.) 10 S. E. 190.
4. Pending a real action, a receiver of the
rents and profits was appointed. Up to the time of
such appointment plaintiffs were in possession un-
der claim of title, and had executed an agricultural
lien to A. & M. for advances. Held, that A. & M.
were entitled to recover for advances made to plain-
tiffs up to the time the receiver entered, but the ad-
vances made after such entry would depend upon
the circumstances under which they were made.-
McNair v. Pope, (N. C.) 10 S. E. 252.
5. The fact that a tenant pays for a mule sold
to him by his landlord out of crops on which he
had previously executed agricultural liens to plain-
tiffs, does not operate to pass title to the mule to
plaintiffs, though the landlord had no lien on the
crops for the price of the mule.-Branch v. Gallo-
way, (N C.) 10 S. E. 911.
6. The general laborer's lien, given by Code
Ga. § 1974, cannot be foreclosed upon realty by affi-
davit, but only by action, after properly recording
the claim of lien, as provided by section 1990.-All-
red v. Hale, (Ga.) 10 S. E. 1095.
7. The general laborer's lien upon personalty,
given by Code Ga. § 1974, may be foreclosed by af
davit, under section 1991, and in so doing it is not
necessary to specify any particular items or ar-
ticles of property.-Allred v. Hale, (Ga.) 10 S. E.
8. The general laborer's lien on personalty, as
provided by Code Ga. § 1974, takes precedence over
ordinary mortgages, even those created prior to the
contract for labor, unless they also antedate the
statute providing for laborers' liens.-Allred v.
Hale, (Ga.) 10 S. E. 1095.
9. The special lien of a laborer, given by Code
Ga. § 1975, applies only to the products of his la
bor, and the foreclosure of such lien will not entitle
him to participate in the proceeds of other personal
the affidavit of foreclosure, and the fi. fa. issued
thereon, embrace such other property.-Boyce v.
Poor, (Ga.) 10 S. E. 1094.
Actions on judgments.
4. Under Code N. C. § 153, subd. 1, which pr
vides that an action on a judgment rendered fys
justice of the peace must be brought within sever
years next after the date thereof, else it will be
barred, and section 839, which provides that a
justice's judgment may be docketed in the offi
the clerk of the superior court of the county where
the judgment was rendered, and from the time
such docketing it "shall be a judgment of the
perior court in all respects," a judgment rende
by a justice, and docketed as prescribed, is ban
after seven years; it being a judgment of the
perior court only for the purpose of creating a
on the real estate of the debtor.-Adams .
(N. C.) 10 S. E. 1102.
5. Code W. Va. c. 139, § 10, providing th
action may be brought upon a judgment, on
no execution has issued within two years,
time within 10 years next after the date
judgment, applies to judgments rendered b
tice.-Livesay v. Dunn, (W. Va.) 10 S. E.
Running of statute.
6. Code N. C. §§ 151, 155, limit actions
tracts, expressed or implied, to three year
actions on judgments, sealed instrume
Section 160 provides that in an action
account, where there have been rec
mands, the cause of action accrues fro
of the last item proved on either sider
count. Suit was brought more than
after the termination of plaintiff's servic
for defendant, but there was evidence
that time plaintiff purchased mercha
fendant to be applied to his claim
Held, that the court properly refuse
that plaintiff's cause of action was
itation.-Stokes v. Taylor, (N. C.) 10
7. The limitation does not begin ben
the right of the heirs to sue the ads be
the price of land sold by him until th
tor actually receives the money, the ber
himself with the price as cash rece shop
of the sale.-Rudolph v. Underwoo S
8. Code Va. 1887, § 2929, limitsm,
property before the court for distribution, although conveyances because voluntary ember
the right accrued. Lien credit ace
in a marriage settlement sued that
liens, recognizing in their bill shall
settlement. After the five year not
beneficiaries under the settlem as 1
to rehear the lien creditors' sus in a
secured creditors of the grandmin
answer to such petition, attadrm a
LIMITATION OF ACTIONS.
Law governing, see Conflict of Laws.
When statute is applicable.
the ground that it was volunt
tees v. Harris, (Va.) 10 S. E
1. An action by an administrator de bonis non 9. Under Code N. C. § of st
against the administrator, who merely filed an ex action by a creditor of a decof the
parte final account, is within Code N. C. § 158, his personal or real representa whic
which bars all actions in 10 years which are not within seven years next aff litiga
specially provided for.-Wyrick v. Cable, (N. C.) such personal representativon, to
advertisement required by levied.
deceased to present their cla
service of such notice" upin 12 t
2. Code N. C. § 152, limiting proceedings to
foreclose or redeem mortgages and deeds of trust
to 10 years, does not apply to an action by a vendee action in the nature of a crae stati
to redeem land which has been sold for the pur- executor is not barred untily, for
chase money by the vendor under an executory notice is published or serih in co
contract of sale.-Overman v. Jackson, (N. C.) 10 that period has elapsed sine to pla
fication.-Love v. Ingram, § 166, pr
10. Where distributees the wif
there have been reciprocal demands, the cause of them on payment of a less stine v.
an action on a mutual, open, current account, where administrator receipts in flons bei
action shall be deemed to have accrued from the gins to run against their
3. Code Civil Proc. S. C. § 118, provides that in
balance from the giving of such receipts.-Copper-
smith v. Wilson, (N. C.) 10 S. E. 134.
11. Since, under Code N. C. § 516, an action can
be brought on a sheriff's bond for an illegal sale of
a homestead under an execution in his hands, and
no previous recovery against the sheriff personally
is essential to an action on the bond, tr. statute of
limitations begins to run in favor of the sureties
when the sale is made.-State v. Barefoot, (N. C.)
10 S. E. 170.
12. The plaintiff, an action against a sheriff
and his sureties to recover a penalty adjudged
gainst the sheriff for making a false return more
han six years before, cannot recover unless he
10ws that the action in which the penalty was im-
sed was brought within six years after the false
turn was made.-State v. Barefoot, (N. C.) 10 S.
13. The commencement of proceedings by an
cutor for leave to sell testator's land for the
ment of debts is, as regards the statute of lim-
ons, the commencement of an action against
testator's estate by the creditors, especially
a claim which the executor acknowledges,
isks leave to pay.-Wyrick v. Cable, (N. C.)
bilities and exceptions.
Under Code Ga. § 2922, providing that ac-
gainst executors must be brought within
rs after the right accrues, an action by the
a legatee, to recover a legacy, brought more
a years after the collection of all the assets,
within five years after they attained their
7, is barred; section 2607, giving an heir,
ee, or legatee, who is a minor at the time
scharge of the executor, five years after
his majority in which to sue, not apply-
e heirs of a legatee.-Hines v. Weaver,
E. 741.
ere, after the dissolution of a partner-
en W. and P., the former holds posses-
firm assets as trustee, the filing by the
tor of W., in the proper office, of an in-
he property of his intestate, which in-
he assets of such firm, is a repudiation
so as to set the statute of limitations
nst P.; the latter being charged with
contents of the inventory.-Boyd v.
) 10 S. E. 963.
a trust has been repudiated to the
the beneficiary, and the statute of
s thus been set in operation against
ing of the statute is not suspended
f the beneficiary, although his ad-
no knowledge of the trust.-Boyd
2) 10 S. E. 963.
gexecuted by a partner, after the
e firm, whereby he acknowledges
member of the firm, owns an in-
tes, accounts, and judgments of
ees that any part thereof collect-
im shall bear interest from date
es not constitute the maker a
so as to defeat the plea of the
ons in an action against his ad-
administrator of P. to recover
firm assets. -Boyd v. Munro,
of the statute of limitations
on which execution has issued,
litigation over a claim, inter-
on, to the land on which the
evied.-Fulcher v. Mandell,
20. A bill to enforce a contract of sale of land is
not such "legal process" as suspends the right of
liens on the land to sue out executions on the judg-
non-resident owners of judgments claimed to be
ments, within Code Va. 1873, c. 182, § 13, which pro-
vides that, in computing the time within which
execution may issue or action be brought on a
judgment, the "time during which the right to sue
out execution on the judgment is suspended * * *
by legal process shall be omitted, " where the non-
resident owners of the judgments are notified by
publication, and no order is made to suspend the
right to sue out executions.-Straus v. Bodeker's
Ex'x, (Va.) 10 S. E. 570.
Absence from state.
that when any right of action shall accrue against
21. Code W. Va. 1887, c. 104, § 18, which provides
such person shall, by departing from the state,
a person who had before resided in the state, and
obstruct the prosecution of such right, the time
that such obstruction may have continued shall
not be computed as any part of the time within
which the said right might or ought to have been
prosecuted, does not apply when the defendant,
although once a resident of the state, removed
therefrom before any right of action accrued
against him, and before the transaction occurred
out of which the plaintiff's cause of action arose.
-Walsh v. Schilling, (W. Va.) 10 S. E. 54.
New promise.
22. Where a note in suit is barred on its face by
be implied from unsigned credits entered upon a
the statute of limitations, a new promise will not
separate paper sewed to the note, and, according
that condition by the administratrix of the maker;
to the evidence of the creditor, handed to him in
it not appearing that any of the credits are in her
handwriting. Nor will it vary the matter that
some corresponding credits, not specially pointed
out, were previously entered upon another paper-
by the daughter, and some by the granddaughter,
not now produced, but then attached to the note-
of the administratrix, under her orders or direc
tion.-Watkins v. Harris, (Ga.) 10 S. E. 447.*
23. A writing signed by a debtor, as follows:
"Samuel Reed, Dr., to G. W. Long, by book-ac-
count, for goods bought in 1859 up to the present
date, amounting to two hundred and fifty dollars
($250) or upwards. I do this day acknowledge the
debt, and will pay the same.
tember, 1876, "is a new promise, sufficient to re-
This 5th day of Sep-
move the bar of the statute of limitations.-Long
V. Oxford, (N. C.) 10 S. E. 525.*
Pleading.
tion is a complete answer to the plea of the statute
24. In the absence of proof, a general replica-
S. E. 529.
of limitations.-Lewis v. Mason's Adm'r, (Va.) 10
Criminal prosecution.
grand jury, at a term before the prosecution was
25. The sending of another indictment to the
barred, for the same offense, does not prevent the
after the lapse of sufficient time to bar the prose-
bar of the statute as to one sent subsequently, and
cution.-State v. Morris, (N. C.) 10 S. E. 454.
in actions affecting the title to land a notice of the
1. Under Code N. C. § 229, which provides that
pendency of the action may be filed with the clerk
person "whose conveyance or incumbrance is sub-
of the county where the land lies, and that every
sequently executed or subsequently registered
after the filing of such notice," the holder of an
shall be bound by all proceedings taken
unrecorded deed is bound by the result of an action
serh in consideration thereof a against his grantor brought in the county where
where the pleadings filed contain all the elements
the land lies, though no formal notice is filed,
Collingwood v. Brown, (N. C.) 10 S. E. 868.
required to be inserted in the statutory notice.-
in 12 months in a previous
he statutory period, by plain-
attly, for their services under
se to plaintiff certain lands,
§ 166, prevent the bar of the
the wife not being a neces-
tions being for substantially
etstine v. Wilson, (N. C.) 10
2. The fact that such deed was recorded before
the complaint was amended, so as to involve the
question of title, does not alter the case, where an
answer putting the title in issue was filed before
the deed was recorded.-Collingwood v. Brown,
(N. C.) 10 S. E. 868.
Local Option.
See Intoxicating Liquors, 3.
Magistrate.
See Justices of the Peace.
MANDAMUS.
To school superintendent.
1. Gen. St. S. C. § 1051, which requires the state
superintendent of education to prescribe rules for
ascertaining the average school attendance, accord-
ing to which the school fund is to be apportioned,
imposes a judicial duty, and mandamus will not
lie for the correction of an alleged error in the rules
prescribed by the superintendent.-State v. Rice,
(S. C.) 10 S. E. 833.
2. Mandamus will lie to compel a board of
county commissioners to examine plaintiff's claim
for commissions as county treasurer, and report
what, if anything, he is entitled to, where, under
Code N. C. 770, the compensation of the treas-
urer is to be fixed by such board.-Koonce v.
Commissioners of Jones County, (N. C.) 10 S. E.
See Municipal Corporations, 2.
See, also, Bigamy; Divorce; Husband and Wife.
Negligence in issuing license.
In an action for unlawfully issuing a mar-
riage license to plaintiff's daughter, it appeared
that the license was granted by defendant's deputy
on the application of an old man not residing in
the same county with plaintiff, and misrepresent-
ing the residence of his daughter; that the deputy
personally knew applicant, but not his character;
that he did not inquire into applicant's sources of
information, reasons for making the application,
his relation to the parties, and the girl's parentage.
Applicant represented the girl's age as 22 years,
though it was 14 years. Held, that the deputy did
not make such reasonable inquiry as would relieve
defendant from liability.-Cole v. Laws, (N. C.) 10
serve for a year for the specified sum, giving 26
days in each month, does not sufficiently set forth
the time when the amount is to be paid.-State v.
Williams, (S. C.) 10 S. E. 876.
4. On indictment under Gen. St. S. C. § 2084,
for the breach of a written contract to serve as a
laborer, a request to charge "that, if the jury
should find that the contract does not state the
time when the laborer was to be paid, the con-
tract is void, and the defendant should be ac-
quitted," is properly refused, as it is the province
of the court to construe the contract.-State v.
Williams, (S. C.) 10 S. E. 876.
Enticing servant away.
5. Code N. C. §§ 3119, 3120, making it a misde-
meanor for any person to entice any servant, who
shall have contracted in writing or orally to serve
his master, to unlawfully leave the service of his
master, protects against such interference with in-
fant servants; their contracts being void only at
their election.-State v. Harwood, (N. C.) 10 S. E.
171.
6. An indictment under such statute need not
specify whether the contract was written or oral,
or what were the acts or words by which the en-
ticement was effected.-State v. Harwood, (N. C.)
10 S. E. 171.
7. Code N. C. & 3119, provides that if any per-
son shall entice any servant to unlawfully leave
the service of his master, the offender shall be
guilty of a misdemeanor. Held, that it was not
within the inhibition of this statute for defendant,
who had hired to the prosecutor his minor son to
work for him for a stated period, to order him to
quit work for the prosecutor, before the expiration
of such period.-State v. Anderson, (N. C.) 10 S.
Master's liability for servant's negli-
gence.
8. Under Code Ga. § 4294, declaring that a
person not an idiot shall be considered of sound
mind who has arrived at the age of 14 years,
or before that age, if he knows the distinction
between good and evil; and section 4295, declar-
ing that an infant under 10 years of age shall
not be considered guilty of any crime or misde-
meanor, it is a question for the jury whether
a boy 13 years old has sufficient discretion to
relieve from liability a master at the request of
whose servants the boy assists in doing danger-
ous work, while employed in which he is killed.
-Rhodes v. Georgia Railroad & Banking Co.,
(Ga.) 10 S. E. 922.
Negligence of master.
for 30 years without any difficulty occurring at
that point, gave away after a sudden and unprec-
edented rain-fall, causing injuries to plaintiff.
The road-master had sent men to a point two
9. A railroad embankment, which had stood
See Divorce; Dower; Homestead; Husband and miles off, where trouble might be apprehended.
Wife.
MASTER AND SERVANT.
Contract of hiring.
1. A contract that plaintiff's "salary from Nov.
1st will be per month, at the rate of $500 a year,
makes the employment by the month.-Pinckney
v. Talmage, (S. C.) 10 S. È. 1083.
2. Evidence that a hiring was for a certain
sum per month, nothing being said as to length of
time the service should continue, and no other cir-
cumstances being shown, indicates that the hiring
was for one month.-Magarahan v. Wright, (Ga.)
10 S. E. 584.
3. Gen. St. S. C. § 2081, provides that con-
tracts between land-owners and laborers "shall
clearly set forth the conditions upon which the
laborer or laborers engage to work, embracing
the length of time, the amount to be paid, and
when." Held, that a contract by which the em-
ployer agrees to pay the laborer a certain sum for
his services for a vear, and the laborer agrees to
The rain-fall occurred within two hours before the
accident. Held, that it was a question of fact for
the jury whether or not the company was negli
gent in not knowing of the washout in time to have
warned plaintiff.-Central Railroad & Banking Co.
v. Kent, (Ga.) 10 S. E. 965.
10. In an action by a fireman employed by de-
fendant, to recover for injuries alleged to have
been caused by a defective water-tank on defend-
ant's road, the declaration alleged the failure of
defendant to provide and keep in good order a
water-tank at a certain station where the accident
occurred. Held, that the complaint was not de-
murrable as alleging by implication merely the
failure of defendant to keep the tank in good re-
pair. Humphreys v. Newport News & M. V. Co.,
(W. Va.) 10 S. E. 39.
11. A complaint states a cause of action which
alleges that plaintiff's husband was in defend-
ant's employ as yard-master, under the orders of
its superintendent; that it was part of his duty to
obey the orders of the superintendent in trying to
save defendant's property in case of fire; that in
the execution of an order to break down the door of
the gas-room, which was on fire, the walls fell upon
and killed him; that he was not employed in said
gas-room; that he was ignorant of the causes and dangers of fire in the gas-room, and of the defects and weak construction of its roof and walls, and of the liability of the walls to fall, in case of fire, by reason of the defects, all of which were known to the superintendent; and that his death was caused by reason of these defects, without any fault or negligence of his own.-Augusta Factory v. Hill, (Ga.) 10 S. E. 450.
12. It being alleged, in an action against a railroad company by an employe, that the giving away of the embankment, which caused the accident by which plaintiff was injured, was owing to defendant's failure to keep its road-bed in good condition, and that sufficient time had elapsed for defendant to have ascertained the danger and to notify plaintiff, it is error to exclude testimony that a point in the road, at which trouble had previously been experienced, had been carefully examined, and found in good condition, and that no further danger was apprehended.-Central Railroad & Banking Co. v. Kent, (Ga.) 10 S. E. 965.
13. The testimony of the road-master that it was his duty to examine the road, and to go or send to any point where he might apprehend danger; that three hours before the accident he had made an examination of the culvert, where the embankment gave away, and apprehended no danger there, but had sent men to another point, where he apprehended that there might be danger,-is improperly excluded.-Central Railroad & Banking Co. v. Kent, (Ga.) 10 S. E. 965.
14. But testimony as to his custom in making examinations of the road-bed is not admissible.Central Railroad & Banking Co. v. Kent, (Ga.) 10 S. E. 965.
15. In an action by a servant against his master, for injuries caused by defective machinery, defendant is not bound to show that its condition was not, and could not, by the exercise of reasonable care, have been, known to defendant.-Hudson v. Charleston, C. & C. R. Co., (N. C.) 10 S. E.
16. Where plaintiff was injured by using a ladder made by a workman under him, whom he knew to be inefficient, evidence of promises made by a person representing defendant that such workman should be discharged as soon as possible, by which promises plaintiff alleges he was induced to remain in defendant's service, is irrelevant.-Bolton v. Georgia Pac. R. Co., (Ga.) 10 S. E. 352.
17. In an action against a railroad company for injuries to a brakeman, the evidence being sufficient that a rule-book offered contained the rules of the company of force when the employe was injured, the book was admissible, without first proving that the employe had knowledge of the rules it contained.-Parker v. Georgia Pac. Ry. Co., (Ga.) 10 S. E 233.
Negligence of fellow-servants.
18. In an action against a railroad company for personal injury to an employe, caused by the negligence of a co-employe, the court instructed that to make a prima facie case plaintiff "must prove either that he was not to blame or that the com. pany was. The company, in replying, may defend successfully by disproving either proposition; that is, by showing either that the plaintiff was to blame or that the company was not. By 'blame,' I mean the 'want of due diligence.' The measure of diligence which the law imposes on railroad companies in reference to employes, and on the conduct of employes in reference to their companies, is ordinary diligence, or common prudence." Held, that there was no error in the instruction, under Code Ga. § 3036, authorizing an employe to recover from a railroad company for injuries he sustains by reason of the negligence of other employes, when he is "without fault or negligence. "-Central R. Co. v. Lanier, (Ga.) 10 S. E. 279.
19. Nor was it error to charge that "if you find defendant was not negligent, or, if it was, that the plaintiff was also negligent, or could have avoided the injury by the exercise of ordinary care and diligence, your verdict will be for the defendant."-Čentral R. Co. v. Lanier, (Ga.) 10 S. E. 279.
20. An instruction is also proper which charges: "If you believe from the evidence that it was the plaintiff's duty to go between the cars and make a coupling; and that before going in he gave the proper signal, to the engineer, to stop; and that the engine stopped when the cars were close to gether; and that the plaintiff went in there, while the cars were stationary, to adjust pin or link, with a view to make a coupling; and that, while thus employed, the engineer caused the cars to come together without any notice to the plaintiff, and without the plaintiff's giving him any notice or signal to do so; and that this was negligence on the part of the defendant's servants, thus to cause or suffer the cars to come together; and that the plaintiff was injured thereby, -he would be entitled to recover in this action: provided he could not, by the exercise of ordinary care, have avoided the consequences to himself of this negligence, and provided he was not himself guilty of any contrib utory fault in the act resulting in his injury.". Central R. Co. v. Lanier, (Ga.) 10 S. E. 279.
21. Plaintiff, employed by defendant as switchman, was charged with the duty of giving signals to the engineer as to slackening speed. While standing on top of a moving car, the engineer suddenly slackened speed without any signal having been given by plaintiff, and the latter was thrown to the ground. Plaintiff testified that he had never known the engine to stop without signals. Held, that the refusal to grant a nonsuit was proper.-Central Railroad & Banking Co. v. Dickson, (Ga.) 10 S. E. 203.
Assumption of risks.
22. A machinist employed by a corporation in its factory, not to use machinery, but to keep it in good order, and having knowledge that some of it is imperfect, and that employes cannot be relied upon to prevent it from becoming dangerous for lack of oil, takes the risk of discovering the condition of the machinery at the time he attempts to repair it, such risk being incident to his vocation. Dartmouth Spinning Co. v. Achard, (Ga.) 10 S. E. 449.*
23. Plaintiff, 17 years of age, while loading an open flat-car of defendant with lumber, was injured by some of the lumber falling upon him. There was no evidence that the doing of such work properly was dangerous, or that he did not know how to do it properly, or that he was wanting in capacity to know, and nothing was alleged in the declaration as to any defect in the car or any of the appliances. Held, that the granting of a nonsuit was proper.-Sims v. East & West R. Co., (Ga.) 10 S. E. 543.
24. The measure of risk which a fireman ought to incur by remaining upon a locomotive, and assisting a sleeping engineer to run the train, is that only which his duty and obligations to the company, under all the circumstances, impose upon him. If he subjects himself to any greater risk, and is thereby injured, he is not without fault, and cannot recover.-Carroll v. East Tennessee, V. & G. Ry. Co., (Ga.) 10 S. E. 163.
25. It appeared that plaintiff, a fireman on defendant's road, after having let the spout down conveying the water from a water-tank to his engine, walked out upon the spout several feet and pulled the chain by means of which the water was turned on, and immediately thereafter the spout broke loose from the tank, causing injuries for which plaintiff brought suit. There was some evidence that the chain was too short, but otherwise there was no evidence of any defect about the tank. Held, that a demurrer to plaintiff's evidence should have been sustained.-Humphreys v. Newport News & M. V. Co., (W. Va.) 10 S. E. 39. 26. Where the injury to a railroad employe is the result of the negligent moving of a train while he is engaged, in the line of his duty, in lifting or adjusting a bumper, the fact that the bumper was defective will not bar recovery.-Central R. Co. v. Lanier, (Ga.) 10 S. E. 279.
27. An employe of a corporation, though obligated in writing, as terms of his employment, to study the rules governing employes, carefully keep posted, and obey orders," is not bound by rules as such, of which he is ignorant, and which
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