a lien on the land of the surety, without showing
the liabilities and assets of the principal.-Dillard
v. Krise, (Va.) 10 S. E. 430.
Rights of sureties.
7. One to whom the owner of land conveyed
it, or caused it to be conveyed, as security or in-
demnity for a liability incurred for the owner,
though entitled to the possession as part of his se-
curity or indemnity, would, after recovering the
possession in ejectment, hold the land merely as
security; and, whenever the rents and profits
amounted to enough to discharge the liability, he
should be compelled to reconvey. Polhill v.
Brown, (Ga.) 10 S. E. 921.
| poses. The corporators named in the act were not
entirely the same as those to whom the original
charter was granted, and the act stated that "they
are hereby created a body politic and corporate,
and gave them all powers necessary to any railroad
company, appointed directors, etc. Subsequently
an amendment to this act was passed, entitled "An
act to amend the charter of the A. & H. R. Co., to
change the name thereof, * *to authorize
the extension thereof, * and for other pur-
poses. "This amendment changed the name of the
company, and gave it, in the construction of the
extension, all the powers granted by the amended
act. Held, that these acts constituted a separate
and distinct charter, creating a new corporation,
S. In ejectment for land which defendant con- and were not amendments to the original charter.
veyed to plaintiff as security for a liability in--Youngblood v. Georgia Imp. Co., (Ga.) 10 S. E.
curred by the latter for the former, plaintiff can- 124.
not recover mesne profits, except pending the ac-
tion, and to be applied to the payment of the debt.
-Polhill v. Brown, (Ga.) 10 S. E. 921.
9. A surety who pays a debt without notice
from the principal not to pay it, has a right to
make the payment notwithstanding usury in the
debt, and the principal is bound to repay the
money.-Polhill v. Brown, (Ga.) 10 S. E. 921.
Privileged Communication.
See Libel and Slander, 1.
Of wills, see Wills, 3-6.
PROHIBITION, WRIT OF.
Where a claim for an amount exceeding the
limit of a justice's jurisdiction, due to two or more
persons jointly, upon a single contract, is by the
creditors, without the consent of the debtor, divid-
ed and apportioned among the creditors so that
the amount assigned to each is within the jurisdic-
tion of a justice, and one or more of the creditors
brings suit on his portion before a justice, and ob-
tains judgment thereon, prohibition will lie, after
judgment and before satisfaction, to prevent the
justice and the creditor from enforcing such judg-
ment.-Bodley v. Archibald, (W. Va.) 10 S. E. 392.
Promissory Notes.
See Negotiable Instruments.
QUIETING TITLE.
Who may maintain suit.
2. The authority given a railroad company by
its charter to construct branch or lateral roads,
gives it power to construct a branch line running
in the same general direction as the main line.
Blanton v. Richmond, F. & P. R. Co., (Va.) 10
3. The fact that the line to be constructed will
connect the main line with another road does not
deprive it of its character of a branch road.—
Blanton v. Richmond, F. & P. R. Co., (Va.) 10
S. E. 925.
Amendment of charter-Subscriptions.
4. Where a railroad company obtains author-
ity from the legislature to change one of its
termini and to increase its capital stock without
the consent of a subscriber to stock under the
original charter, the latter is released from his
subscription, though at the time thereof the gen-
eral law, under which the first charter was ob-
tained, authorized amendments increasing the cap-
ital stock, and changing the route, as such law did
not authorize a change in the termini.-Young-
blood v. Georgia Imp. Co., (Ga.) 10 S. E. 124.
Construction of road.
5. Code W. Va. 1887, c. 54, § 50, provides that
railroad companies may, for the purpose of exca-
vations and embankments, take such land as may
be necessary for the proper construction, repair,
and security of the railroad; and that they may
construct railroads along or upon any stream,
street, highway, etc., which the route of such rail-
roads shall touch; but that such stream, street,
etc., shall be restored to its former state, or to
such state as not unnecessarily to have impaired
its usefulness. Held, that a railroad company was
authorized to construct its road in a cut or excava-
tion in a public street of a city, the graded portion
of which was 24 feet wide, where 22 feet of such
graded portion were left unobstructed.-Arbens
A complaint to enforce a paroi trust alleged. Wheeling & H. R. Co., (W. Va.) 10 S. E. 14.
that the trustee, who held the land in trust to con-
vey the same to the cestui que trust on payment
of a certain sum, conveyed it to defendant, with
notice of the equities, to "prevent his creditors
from reaching his land." Judgment was recov-
red against the trustee, and the land sold under
execution, and acquired by the cestui que trust
from the purchaser. Held, that the equitable was
merged in and extinguished by the legal title; and
that plaintiff, who had purchased the land at a fore-
closure sale under a mortgage of the cestui que
trust, could not sue to remove the cloud from his
title, as ne had failed to put in issue defendant's
allegation that he was in rightful possession, and
did not definitely allege that the conveyance of the
trustee was void as in fraud of his creditors.-Pea-
cock v. Stott, (N. C.) 10 S. E. 456.
RAILROAD COMPANIES.
See, also, Carriers; Horse and Street Railroads.
Charter and franchises.
1. After the incorporation of the A. & H. R. Co.,
under the general railroad law of Georgia, the leg-
islature passed an act entitled "An act to incorpo-
rate the A. & H. R. Co., to confer certain powers
and privileges on said company, and for other pur-
6. Under Gen. St. S. C. § 1535, providing that
the county commissioners may lay out a highway
across a railroad previously constructed, after due
notice to the railroad, when the county commis-
sioners, without such notice, change a highway so
as to run it under a narrow span of a trestle, the
railroad is not liable for damages received from the
narrowness of the span.-Hill v. Port Royal & W.
C. Ry. Co. (S. C.) 10 S. E. 91.
Connecting with other roads.
7. Under Code N. C. § 1957, providing that rail-
roads shall unite in forming connections, and, if
they cannot agree, commissioners are to be ap
pointed to determine the "points and manner" of
making the same, one road cannot enter on the
right of way of another for the mere purpose of
connecting therewith, without previous agreement
or condemnation proceedings; and a provision in
its charter allowing entry on land for the purpose
of "constructing" a road, and barring recovery
after two years, would not apply.-Richmond &
D. R. Co. v. Durham & N. R. Co., (N. C.) 10 S. E.
659; Durham & N. R. Co. v. Richmond & D. R
Co., Id. 664.
8. A paroi permission to extend the track of
one railroad upon the right of way of another, for
the purpose of connecting therewith, is a mere
license, revocable at the will of the licensor, though
valuable improvements have been made.-Rich
mond & D. R. Co. v. Durham & N. R. Co., (N. C.)
20 S. E. 659; Durham & N. R. Co. v. Richmond &
D. R. Co., Id. 664.
Municipal aid.
9. Where the charter of a railroad company
authorizes the counties through which it is to pass
to subscribe to its capital stock "according to the
forms prescribed by the Code of Virginia of 1873,"
and "to an amount not exceeding $3,500 per mile
for each and every mile of railroad the com-
pany might build within the county," an order of
a county court for an election to determine the
sense of the voters as to whether the supervisors
of the county shall subscribe to the capital stock
of the company the sum of $3,500 per mile, without
stating the maximum amount, or the number of
miles, is sufficiently specific, as it is not within
the purview of Code Va. 1873, c. 61, § 62, which re-
quires that an order of election for a county sub-
scription to works of internal improvement shall
state the maximum amount proposed to be sub-
scribed, and as the forms prescribed by the Code
of 1873 (chapter 61, §§ 65, 66) apply merely to the
mode of procedure after the subscription has been
determined upon by an election.-Taylor v. Board
of Sup'rs, (Va.) 10 S. E. 433.
10. Amendments to the charter, which have
not been acted upon by the company, do not release
the county from its subscription.-Taylor v. Board
of Sup'rs, (Va.) 10 S. E. 433.
Lease-Negligence of lessee.
11. A railroad company which has, under au-
thority of the legislature, leased its road, and
transferred the exclusive possession and control
thereof to another company, cannot be held liable
for injuries thereon, sustained by a servant of the
lessee, by reason of the lessee's negligence.-Vir-
ginia M. Ry. Co. v. Washington, (Va.) 10 S. E.
12. A railroad company chartered by a state
cannot, without distinct legislative authority, by
lease, or any other contract or arrangement, turn
over to another company its road, and the use of its
franchises, and thereby exempt itself from respon-
sibility for the conduct and management of the
road.-Ricketts v. Chesapeake & Ŏ. Ry. Co., (W.
Va.) 10 S. E. 801.
Liability for negligence-Failure to give
warning.
13. In an action for personal injury, against a
railroad company, the court, after charging that
warnings should not only be given in the usual
and customary manner, but also in such manner
as ordinary care and diligence required, further
instructed that if the warnings were given in the
customary manner alone, defendant would be re-
lieved from liability. Held not error.-Georgia
Pac. R. Co. v. Freeman, (Ga.) 10 S. E. 277.
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was stalled. -Bullock v. Wilmington & W. R. Co.,
(N. C.) 10 S. E. 988.
16. Where it appears, in an action for the de-
struction of a portable steam-engine which had
become stalled at a railroad crossing, that plain-
tiff's driver went on the track to see whether any
train was approaching before he attempted to cross,
the fact that he did not inspect the crossing to see
whether defendant had discharged its duty of
keeping it in repair, and that he did not look at
his watch to see whether it was about train-time,
is not such contributory negligence as will de-
feat plaintiff's right to recover; it appearing that
the engine would not have been stalled had the
crossing been in good condition.-Bullock v. Wil-
mington & W. R. Co., (N. C.) 10 S. E. 988.
- Injuries to persons on track.
17. Code Ga. § 2972, relating to personal injuries
due to the negligence of railroad companies, pro-
vides that, if plaintiff, by ordinary care, could
have avoided the consequences to himself caused
by defendant's negligence, he is not entitled to re-
Section 3034 provides that no person shall
recover damages from a railroad company for in-
jury to himself or his property when the same is
done by his consent, or is caused by his own negli-
gence. In an action by a wife for the killing of
her husband, it appeared that deceased was walk
ing on defendant's track, though there was a pub-
lic road along-side, upon which he could have
walked; that the train, going in the same direc-
tion, being 10 or 15 minutes behind its schedule
time, was running 25 or 30 miles an hour; that the
engineer, who could have seen deceased some 400
yards, gave the danger signal, though it did not
appear at what time before the killing; and that
there were two girls on the track, between de-
ceased and the train, who left it when they heard
the train, and hallooed to deceased that the train
was coming, but he, failing to leave the track, was
run over and killed. Held, that deceased was
guilty of gross negligence, though it may have
been the custom for people to walk on the track,
and a nonsuit was properly granted. -White v.
Central Railroad, (Ga.) 10 S. E. 273.
18. The owner of cattle which were killed in a
pasture by a train is not guilty of contributory
closes the railroad track was made alter the
negligence simply because the pasture which in-
building of the road, and it is error to charge that
the jury may infer negligence from that fact.-
Harmon v. Columbia & G. R. Co., (S. C.) 10 S. E.
877.
19. In an action against a railroad company for
killing stock, a witness may state facts which he
has observed in regard to the distance within which
a train may be stopped, though he is not an en-
gineer or expert, and it is error to charge that
his evidence has nothing to do with the case.--
Harmon v. Columbia & G. R. Co., (S. C.) 10 S.
E. 877.
20. Code N. C. § 2326, providing that the killing,
etc., of cattle "by the engines or cars running up-
on any railroad shall be prima facie evidence of
negligence on the part of the company," applies
where the cattle are yoked to a cart, and in charge
of a driver, as well as where they are running at
large.-Randall v. Richmond & D. R. Co., (N. C.)
10 S. E. 691.
21. An instruction that, if defendant used every
effort to stop the train and avoid the accident after
15. In an action against a railroad company for the mare was discovered, there was no negligence,
the destruction of a portable steam-engine which was properly so modified as to make the test of
had become stalled at a crossing on defendant's negligence, not whether defendant used proper
road, it appeared that plaintiff's driver, on seeing effort after the mare was discovered, but whether
a train turn a curve about 1,000 yards distant, ran
he did so after she could have been discovered by
up the track, waving a handkerchief; that the en- the exercise of a proper outlook.-Carlton v Wil-
gineer made no effort to stop the train until with-mington & W. R. Co.. (N. C.) 10 S. E. 516.
in 200 or 350 yards of the crossing, though he no-
ticed the signal as soon as he turned the curve,
and though his fireman called his attention to the
obstruction when the train was 600 yards from the
crossing; and that the engine could be stopped in
350 yards. Held, that defendant could not com-
plain of an instruction that plaintiff could recover
if the engineer actually saw that plaintiff's engine
22. In an action against a railroad company for
the negligent killing of plaintiff's mare, the court
did not err in refusing to charge that it was not
required of the engineer, in running his train, to
stop when stock were on the ground near his track,
and in charging instead that it was his duty to
keep a lookout for stock on the track in daylight,
and, when discovered, to use all the means he
could, consistent with the safety of the passengers,
to avoid injuring or killing it.-Carlton v. Wil-
mington & W. R. Co., (N. Č.) 10 S. E. 516.*
23. In an action against a railroad company for
killing plaintiff's cow, defendant's witnesses, who
were not contradicted, testified that while the train
was running rapidly, down grade, they saw the
cow near the track; that she turned, and came on
the track; and that it was impossible to stop the
train in time to prevent the accident, though every
effort was made to that end. Held, that the evi-
dence did not support a verdict for plaintiff. -
Western & A. R. Co. v. Trimmier, (Ga.) 10 S. E.
24. Plaintiff's horse, which was hitched at the
station, broke loose, and ran down the track in
front of the engine. The engineer gave the cattle
signal, applied the brakes, and had brought the
train nearly to a stop, when the horse disappeared
in the darkness. The engineer then started the
train again, at the rate of about five miles an
hour, keeping a lookout for the horse, and after a
while he saw it on the track in front of him; but
it was then too late to stop the train, though the
engineer made every effort to do so. Held, that
defendant was not guilty of negligence, whether
the horse was standing still on the track or had
been caught in the trestle.-Moye v. Wrightsville
& T. R. Co., (Ga.) 10 S. E. 441.
25. The court having charged that, if the rail-
road company had used all reasonable and ordi-
nary care and diligence to prevent the injury to
plaintiff's animals, plaintiff could not recover, it
is not error to instruct the jury to find out "who
was upon the train; what they did; what kind
of lookout they kept; and whether the servants
of the company were doing all they could have
done."-Central R. Co. v. Warren, (Ga.) 10 S. E.
26. It is not error to instruct the jury to see
whether the company's servants were keeping a
proper lookout, and to inquire where plaintiff's
animals came from, if they came on the track, the
rate of speed at which they were traveling, and
whether they came to a point where they were, or
ought to have been, seen by the trainmen.-Cen-
tral R. Co. v. Warren, (Ga.) 10 S. E. 918.
27. The fact that plaintiff allowed a steer to
stray from home, and upon defendant's track, was
not such negligence as will bar recovery.-Bethea
v. Raleigh & A. A. L. R. Co., (N. C.) 10 S. E.
formal, and the undisputed proposition having
been stated in the presence of the jury, it was suf
ficient that the court call the attention of the jury
to the stock law, and their duty to consider it in
connection with the question of negligence.-Mo-
lair v. Port Royal & A. Ry. Co., (S. Č.) 10 S. E. 243.
1. On an indictment for rape there was evi-
dence that defendant offered an apple to prose-
cutrix, a girl under 12 years, if she would go into
the stable with him; that he led her into the stable,
where he laid her down, pulled up her clothes, and
got on her, and a short while afterwards they were
seen, the prosecutrix lying down, and the prisoner
on her, with the private parts of both exposed; but
it was proved that there was no penetration, or at-
tempt to penetrate, and that defendant volun-
tarily abandoned any attempt he had made to com-
mit rape. Held, that the evidence justified a ver-
dict of guilty of attempt to commit rape.-Glover
V. Commonwealth, (Va.) 10 S. E. 420.
2. Where the state introduces evidence of an
assault with intent to commit rape, but afterwards
elects to rely for a conviction on an occasion when
defendant accomplished his purpose, if the state's
evidence is believed, it is proper to refuse an in-
struction that the jury may find defendant guilty
of an assault with intent to commit rape.-State
v. Parish, (N. C.) 10 S. E. 457.
Evidence.
evidence that defendant had committed the crime
3. On a trial for rape the state may introduce
and it is in the discretion of the trial court to com-
on the same person at other times than that charged,
pel the state to elect on which specific act it will
rely for a conviction, which election should gen-
erally be made at the close of the state's evidence.
State v. Parish, (N. C.) 10 S. E. 457.
from their minds all of the testimony touching any
4. On a trial for rape, the jury need not discard
act except the one finally relied on to secure a
conviction, as the state has a right to show repeat-
ed acts, and that all were committed against the
her conduct at the time of the specific act relied
will of the complaining witness, in explanation of
on.-State v. Parish, (N. C.) 10 S. E. 457.
5. The defense having on cross-examination
28. It is error to instruct that, "if the training witness, a daughter of defendant, as to declara
sought to impeach the testimony of the complain-
was run faster than schedule time, and was run-
ning 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.-Seawell v. Raleigh
& A. A. L. R. Co., (N. C.) 10 S. E. 1045.
29. In an action against a railroad company for
the negligent killing of plaintiff's mules, a prima
facie case of negligence having been shown by
proof of the killing, and it being relied on in part
as a defense that the train was running at the rate
of 18 miles an hour under a regulation of the com-
pany, an instruction that "if the rule was not rea-
sonable, or if it was not being carried out in the
same way that a reasonable and prudent man
would have taken the train in order to prevent an
accident, then you ought to find a verdict for the
plaintiff, was proper, as its true intent was that
the effect the regulation would have in removing
the prima facie case would depend on whether it
was a reasonable one, and was carried out as a rea-
sonable and prudent man should carry it out.
Molair v. Port Royal & A. Ry. Co., (S. Č.) 10 S. E.
30. Defendant read the syllabus of a case in
point, and, handing it to the court, asked that he
instruct that much less care is required by a rail-
road company in providing against stock on its
track since the passage of the stock law than be
fore its passage. Held that, the request being in- |
tions made to her mother, defendant's wife, it is
not a violation of the rule that a wife's evidence is
not competent against her husband for the state
to introduce, in corroboration of the complaining
witness, a third person, who overheard the con-
versation; it appearing that the corroborating wit-
ness mentioned only one declaration by the wife,
which was part of the res gesta of the crime.-
State v. Parish, (N. C.) 10 S. E. 457.
6. Evidence that defendant and his wife lived
together amicably and peaceably is not admissible,
having no tendency to prove defendant's guilt or
innocence of the crime charged.-State v. Parish,
(N. C.) 10 S. E. 457.
Instructions.
7. Under Code Va. 1887, § 4044, providing that,
on an indictment for felony, the jury may find ac
cused not guilty of the felony, but guilty of an at-
tempt to commit it, the court properly refused to
charge, on an indictment for rape, that if defend-
ant intended to commit a rape, but before the act
was executed voluntarily abandoned it, the jury
should find him not guilty, and properly charged
them instead that, on an indictment for rape, they
might find an attempt to commit rape.-Glover v.
Commonwealth, (Va.) 10 S. E. 420.
1. A father and daughter agreed to exchange
lands. That of the daughter was incumbered. A
firm paid the incumbrances, and the father con-
veyed to it the land to which the daughter was en-
titled, to be conveyed to her when she paid the
debt. The firm conveyed to one of its members,
who mortgaged the land for nearly its full value.
Held, that the daughter, on petition alleging in-
solvency of the firm and her father, and payment
of the debt, was not entitled to the appointment of
a receiver in a foreclosure suit, brought by her
father against a third party, to hold the money ob-
tained by such foreclosure pending any litigation
that might arise concerning the exchange.-Gar-
rard v. Amoss, (Ga.) 10 S. E. 587.
Power to receive assets.
5. An order of reference stating that "by con-
sent of parties it is ordered that the above action
be referred * under the Code," though in-
definite as to the scope of the reference, will be
treated on appeal as embracing all issues of law
and fact raised by the pleadings, where it has been
so treated on trial by the parties.-Morisey v.
Swinson, (N. C.) 10 S. E. 754.
6. Where, on appeal, the action of the trial
court in overruling exceptions to the report of a
referee is affirmed, such exceptions cannot be again
reviewed, nor the matters to which they refer be
further contested, on a second reference.-Burwell
v. Burgwyn, (N. C.) 10 S. E. 1100.
Reformation of Contracts.
2. There is no privilege exempting a person
from surrendering assets to a receiver in obedi-
ence to the legal order of a court commanding him
to do so, though he be under prosecution, or sub-
ject to prosecution, for stealing or embezzling the See Equity, 2-7.
same.-Tolleson v. Greene, (Ga) 10 S. E. 120.
Funds in receiver's hands.
3. While a widow's share of a fund, decreed to
be paid to her in lieu of dower, is held by the court
in the hands of its receiver, or is being brought in
by the receiver, it bears no interest unless it makes
interest. If the receiver is derelict in not paying
out money when he ought, he is personally charge-
able with interest for withholding it, but not other-
wise.-Johnson v. Moon, (Ga.) 10 S. E. 193.
4. Though a decree fixing the rights of attach-
ing creditors and the liability of a garnishee, and
requiring payment to and disbursement of the fund
by a receiver, be final, the court is not precluded
from requiring the receiver to obey its order as to
the fund.-Baltimore & O. R. Co. v. Vanderwerker,
(W. Va.) 10 S. E. 289.
REGISTER OF DEEDS.
Liability for negligence.
Code N. C. § 1883, provides that official bonds
may be sued by, and every officer and his sure-
ties shall be liable to a person injured by acts
done by said officer by virtue of his office. Sec-
tion 3654 makes it the duty of the register of deeds
"to register all instruments in writing delivered
to him for registration." Held, that a register
of deeds is liable on his official bond, conditioned,
as required by section 3648, upon his safely keep-
ing the records and books of his office, and faith-
fully discharging its duties, for damages arising
from the incorrect registry of a mortgage.-State
▼. Cheatham, (N. C.) 10 Š. E. 1019.
5. In a suit in chancery by a receiver to en-
force the lien of a judgment against the lands of Of voters, see Elections and Voters, 1.
the debtor, he need not allege or prove that he is
proceeding by the direction of the court, in the ab-
sence of any denial of his authority.-Howard v.
Stephenson, (W. Va.) 10 S. E. 66.
RELEASE AND DISCHARGE.
See, also, Compromise; Payment.
1. Plaintiffs sued for failure to deliver a portion
of certain personal property bought of defendants,
and the latter filed a counter-claim for unpaid pur-
chase money on the same property. Plaintiffs re-
plied that the property delivered had been sold
under mortgage to secure the purchase money, and
purchased by defendants at a less sum than was due
them, under the agreement that they would cancel
the purchase-money notes if plaintiffs would not
have any one bid against them. Held, that plain-
tiffs' promise to refrain from bidding was a suffi-
cient consideration for defendants' agreement to
cancel the notes, as the case did not come within the
rule holding an agreement by a creditor to receive a
less sum than the whole debt to be nudum pac
tum.-Jones v. Wilson, (N. C.) 10 S. E. 79.
the acceptance by a creditor of a less sum than
2. Under Code N. C. § 574, which provides that
the whole debt shall be a discharge of the whole,
the agreement alleged by plaintiffs would prevent
a recovery of the residue of the purchase money.-
Jones v. Wilson, (N. C.) 10 S. E. 79.
RELIGIOUS SOCIETIES.
Devise to, see Charities.
Incorporation.
1. The creation by an act of North Carolina of
a corporation under the name of the "Trustees of
the General Assembly of the Presbyterian Church
in the United States" was not the incorporation of
a church, so as to render a bequest to the corpora-
tion void under Const. Va. art. 5, § 17, which for-
bids the incorporation of any church or religious
denomination, but provides that the legislature
"may secure the title to church property."-Trus
tees of the General Assembly of the Presbyterian
Church v. Guthrie, (Va.) 10 S. E. 318.
2. A residuary bequest to "the Trustees of the
General Assembly of the Presbyterian Church in
the United States, commonly known as the 'South-
ern Presbyterian Church,' the same being a body
corporate, as I am advised," the beneficiary being
a corporation created by the laws of North Caro-
lina for the purpose of carrying on the work of
Christian education and missions, publishing and
diffusing religious literature, and building and
supporting Presbyterian churches, is not rendered
invalid by Const. Va. art. 5. § 17, which forbids
the incorporation of any church, as the beneficiary
is not an incorporated church.-Guthrie v. Guth-
rie's Ex'r, (Va.) 10 S. E. 327.
1. Act Cong. March 3, 1887, § 3, providing that
on filing in the state court, within the proper
time, the requisite petition and bond for the re-
moval to the United States circuit court of any
suit mentioned in section 2, "except in such cases
as are provided for in the last clause of that
section," the state court shall proceed no further
in the suit, and that clause providing for the re-
moval of certain suits when it shall appear to
the circuit court that defendant cannot have a
fair trial in the courts of the state by reason of
prejudice and local influence, the application for
removal on that ground should be made to the cir-
cuit court, and the state court is not divested of
jurisdiction by filing with it the petition, etc.-
Rome & C. Const. Co. v. Stansberry, (Ga.) 10 S. E.
court before the case was docketed. -Jones v.
Findley, (Ga.) 10 S. E. 541.
3. Where attorney's fees are improperly in-
cluded in a judgment against a surety on a replevin
bond, the judgment will not be set aside for that
reason, the attorney's fees being separable from
the balance of the judgment.-Jones v. Findley,
(Ga.) 10 S. E. 541.
for the counsel of his principal to forbear urging a
4. It is no wrong to the surety on a replevy bond
defense which is not available, or to admit the
truth as, to the genuineness of notes, and the con-
sideration for which they were given.-Jones v.
Findley, (Ga.) 10 S. E. 541.
Rescission of Contracts.
See Contracts, 14; Equity, 8, 9; Vendor and
Vendee, 2.
It is a criminal offense to take by force from
the custody of an officer a prisoner legally commit-
ted to his charge, to convey to jail; and it is no de-
fense that the mittimus does not comply in all re-
spects with the requirements of Code N. C. § 1238.
-State v. Armistead, (N. C.) 10 S. E. 872.
2. Plaintiffs were citizens of North Carolina,
and stockholders in the defendant the N. Rail- See Trusts, 1, 2.
pany issued to the R. Company a majority of its
stock, and certain bonds as security for work to
be performed by the R. Company; that the R. Com- See Judgment, 29-33.
pany had not performed its agreement, and that its
debt had been paid; that the R. Company elects
the officers and controls all the actions of the N.
Company. Plaintiffs sought to have defendants
account for the N. Company's property, and to have
the stock and bonds held by the R. Company sur-
rendered. Both companies denied the rights and
allegations of plaintiffs. Held, that the N. Com
pany was a necessary party defendant, and that
it was not a "controversy wholly between citizens
of states," or one which could be fully determined
between them, if it should be divided between
the state and federal courts, within 24 U. S. St.
at Large, p. 552, § 2, providing for removal to a
federal court in such case.-Douglas v. Richmond
& D. R. Co., (N. C.) 10 S. E. 1048.
See Landlord and Tenant, 12.
1. Property levied upon under a distress war-
rant was delivered to a claimant upon the execu-
tion of a forthcoming bond. J., who was surety
upon such bond, and who had knowledge of the de-
livery of the property to the claimant, subse-
quently became surety on the replevin bond of de-
fendant. Held, that J. could not claim that the
latter bond was invalid because of the non-deliv-
ery of the property to the defendant.-Jones v.
Findley, (Ga.) 10 S. E. 541.
2. Where the result has been reached which
was designed and intended by the surety in exe-
cuting a replevy bond, the judgment thereon will
not be set aside for irregularity in treating the
bond as accepted, and returning the papers into
1. Defendant and another enticed prosecutor
into the woods near the highway, knocked him
down, and took his money. After a dispute over
the spoils, defendant proposed to kill the prose-
cutor, and put him on the railroad track, for the
purpose of concealing the crime. Held, that these
facts constituted robbery.-State v. Bradburn, (N.
C.) 10 S. E. 526.
2. Proof that defendant and another assaulted
a person on a certain night, and that while his
companion held the assaulted person defendant
took from him a pocket-book of the value of 50
cents, containing $15 in currency, is sufficient to
convict of robbery.-Wheeler v. Commonwealth,
(Va.) 10 S. E. 924.
See, also, Judicial Sales; Vendor and Vendee.
Illegal liquor sales, see Intoxicating Liquors, 7-
13.
Of decedent's lands, see Executors and Adminis-
trators, 25-34.
unbranded fertilizers, see Contracts, 5.
What constitutes, see Bailment.
What constitutes.
1. A receipt given by defendants to plaintiff's
intestate for wheat delivered was ambiguous as to
whether a sale or a bailment was intended by the
parties. Held, in an action for the price of the
wheat, that it was error for the court to limit the
jury to the terms of the receipt for its interpreta-
tion, and to refuse a charge, there being evidence
to support the hypothetical case, that if plaintiff's
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