To the same effect, Harris v. State (Tex. Cr.
App.) 30 S. W. 221. In Commonwealth v.
McManiman, 15 Pa. Co. Ct. R. 495, the
charge that defendant robbed the prosecutor
of a promissory note was held not sustained
by proof that he robbed him of "money" or
"so many dollars." That is our case with
the terms reversed, and the rule should ap-
ply conversely. Where the defendant was
charged with obtaining a clay-bank mare by
a false pretense as to the qualities of a “sor-
rel horse," and the proof was that he got a
"saddle horse," we held it to be a material
variance; Justice Hoke saying that:
"Under the authorities
there would
seem to be a clear case of variance between the
allegation and the proof, and the jury should

*

have been so instructed.' State v. Davis, 150
N. C. 851, 64 N. E. 498, citing State v. Me-
Whirter, 141 N. C. 809, 53 S. E. 734; State v.
Corbett, 46 N. C. 264.

So it was held in State v. Hill, 79 N. C. 656, that a charge that defendant had injured a "cow" was not proved by showing an injury to an "ox." See, also, State v. Ray, 92 N. C. 810; State v. Miller, 93 N. C.

State v. Reese, 83 N. C. 637. A promissory | legal tender notes" and "national bank note must be described as such, and not as notes." People v. Jones, 5 Lans. (N. Y.) 340. money. 3 Bish. New Cr. Proc. p. 1691, § 732(3). We never properly speak of such a note as "money" or as "so many dollars." Money is any lawful currency, whether coin or paper, issued by the government as a • medium of exchange, and does not embrace, within its meaning, a note given by one individual to another or otherwise put in circulation. Our statute in regard to larceny, embezzlement, and false pretenses makes the distinction clearly and unmistakably. It makes indictable the obtaining, by a false token or other false pretense, “any money, goods, property, or other thing of value, or any bank note, check, or order for the payment of money, issued by, or drawn on, any bank or other society or corporation within this state, or any of the United States, or on any treasury warrant, debenture, certificate of stock, or public security, or any order, bill of exchange, bond, promissory note, or other obligation, either for the payment of money or for the delivery of specific articles, with intent to cheat or defraud any person or corporation." Revisal, § 3432. It will be seen from this provision of the statute 511, 53 Am. Rep. 469. that it classifies those things, the obtaining The differences in the above cases between of which by a false pretense is made crim-“allegata and probata" were not as marked inal, and carefully distinguishes between or as substantial as is the difference in this them, and assigns to each its own proper case between "money" and "a promissory name and designation, as something separate and distinct from the others. It was held in Commonwealth v. Howe, 132 Mass. 250, 258, that an averment of obtaining a sum of money by false pretenses is not supported by proof of obtaining a certificate of deposit of a bank, as the property should have been more accurately described and by its usual name, and that variance was not cured by their statute of jeofails and amendments. And to like effect it was held in Carr v. State, 104 Ala. 43, 16 South. 155, that, to warrant a conviction under an indictment which charges the defendant with having embezzled or fraudulently converted to his own use money, the evidence must show that the money came into the possession of the defendant; and the proof that the defendant received only a check, and not money, will not sustain a verdict of guilty.

Illustrations of the strictness of the rule may be found in many of the cases on the subject. Berrien v. State, 83 Ga. 381, 9 S. E. 609, where it was held that an indictment for falsely and fraudulently mortgaging a "dark bay mare mule" was not supported by proof that the defendant mortgaged a "mouse-colored mare mule named Mag," as he would not be protected by an acquittal or conviction in a future indictment for having fraudulently mortgaged a mule of the latter description. Barclay v. State, 55 Ga. 179. Also as to a like variance in the description of a note. Wallace v. State, 79 Tenn. (11 Lea) 542. And as to a fatal vari

note." They are two distinct things, each having its well-know meaning and name in the parlance of the people, as well as in the law. An action for "money" would not permit of a recovery for a note, without amendment. You cannot amend an indictment, at least against the will of the defendant. You must abide by its terms, and prove the charge as it is laid in the bill.

[3-5] A variance cannot be taken advantage of by motion in arrest of judgment. State v. Foushee, 117 N. C. 766, 23 S. E. 247; State v. Ashford, 120 N. C. 588, 26 N. E. 915; State v. Jarvis, 129 N. C. 698, 40 S. E. 220. It is waived if there is no objection to it before the verdict is rendered, as those cases show. But a motion to nonsuit is a proper method of raising the question as to a variance. It is based on the assertion, not that there is no proof of a crime having been committed, but that there is none which tends to prove that the particular offense charged in the bill has been committed. In other words, the proof does not fit the allegation, and therefore leaves the latter without any evidence to sustain it. It challenges the right of the state to a verdict upon its own showing, and asks that the court, without submitting the case to the jury, decide, as matter of law, that the state has failed in its proof.

[6] The judge should have sustained the motion and dismissed the indictment, but this will not prevent a conviction upon another indictment for obtaining the notes by a false

said. A party is indictable under Revisal, ["The court erred in rendering judgment as 3433, for obtaining a signature to any writ- set out in the record." We must assume, in ten instrument, the false making of which the absence of any exceptions to the eviwould be punishable as forgery. The evidence, or to the charge of the judge, that the dence offered at the trial proved an indictable findings of the jury are correct. That being offense, but not the one alleged in the bill. so, we are of opinion that such findings fully We presume the solicitor will send a bill warrant the judgment rendered. with averments agreeing with the proof he No error. can make, and the court may hold the defendant to answer another indictment.

The judgment is reversed, the verdict set aside, and the bill of indictment dismissed as of nonsuit. Reversed.

BURRIS v. BURRIS. (No. 407.)

LLOYD v. SOUTHERN RY. (No. 320.)
(Supreme Court of North Carolina. April 22,
1915.)

MASTER AND SERVANT 97-ACCIDENTAL IN-
JURIES.

Where an employé's hand was on top of a tie to depress it so that the end might pass under the rail, and the tie was shoved with such

(Supreme Court of North Carolina. April 28, force by the men at the end that his hand was

1915.)

APPEAL AND ERROR 264-ABSENCE OF EX-
PRESUMPTIONS FINDINGS OF

CEPTIONS

JURY.

In the absence of exceptions to the evidence or the charge, it must be assumed on appeal that special findings of the jury are cor

rect.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1533-1535; Dec. Dig. 264.]

caught and injured, the injury was the result of an accident, relieving the employer from liability.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. 97.] Clark, C. J., dissenting.

Appeal from Superior Court, Orange County; Rountree, Judge.

Action by James M. Lloyd against the Southern Railway. From a judgment for

Appeal from Superior Court, Anson Coun- plaintiff, defendant appeals. Reversed. ty; Lane, Judge.

Action of claim and delivery by W. A. Burris against J. N. Burris, wherein J. A. Parker interpleaded and after a new trial ordered Ilarrell Bros. Company were made parties. From judgment against him, the interpleader, J. A. Parker, appeals. Affirmed. There was a judgment against the interpleader, J. A. Parker, for the sum of $208.34, from which he appeals.

This is a civil action, tried at December term, 1914, superior court of Orange county, his Honor Judge Rountree presiding, upon these issues:

(1) Was the plaintiff injured by the negligence of the defendant company, as alleged in the complaint? Answer: Yes.

(2) Did the plaintiff, by his own negligence, contribute to his injury? Answer: Yes.

(3) What damages, if any, is the plaintiff entitled to recover? Answer: $500.

In apt time the defendant moved to nonThe following are the issues and findings suit, which motion was overruled. From the of the jury: judgment rendered, the defendant appealed.

(1) Was the note and mortgage transferred by Harrell Bros. Company to J. A. Parker, as alleged? Answer: Yes.

(2) What amount, if anything, is the defendant J. N. Burris due J. A. Parker? An

swer: $15.83 and interest from January 27,

1912.

(3) What was the value of the property

sold under mortgage by J. A. Parker? swer: $300.

An

(4) What amount, if any, is due plaintiff on his note and mortgage given by J. N. Burris? Answer: $194.36 with interest from December 28, 1910.

John W. Graham and A. H. Graham, both E. S. Parker, Jr., of Graham, for appellant. of Hillsboro, for appellee.

dence tending to prove that on the 26th day BROWN, J. The plaintiff introduced eviof September, 1913, he had been in the em

ploy of the railway company about 19 months, doing work of the kind he was engaged in on that day; that he and four other men were engaged in the work of taking out old ties and putting in new ones under the rails on the trestle across Haw river; that the ties were about 11 feet long, and that they were thrown down across both rails. There were two men on the scaffold Walter E. Brock and Robinson, Caudle & on the west side of the rails and two men on Pruette, all of Wadesboro, for appellant. H. the east side, and that plaintiff was in the H. McLendon, of Wadesboro, and I. R. Bur-center of the track. The tie was first pulled leson, of Albemarle, for appellee.

(5) Was the property bought by J. A. Parker at the said sale? Answer: Yes.

PER CURIAM. In the brief of the appellant, the several exceptions relating to the admissibility of evidence are withdrawn. The only assignment of error is as follows:

back west until the east end dropped down just inside the east rail. Then the plaintiff, putting his hands on the tie, and the two men west, joined together in pushing the tie east under the east rail until the western end of the tie would drop down just inside the west

the jury found, as authorized by the act of 1913 and the charge of the court, that the greater negligence was on the part of his coemployés.

On the motion of nonsuit, the evidence must be taken more strongly in favor of the plaintiff. But in any aspect of the evidence, if there is any to make it an accident, this was a matter for the jury, and they have found by the preponderance of the evidence, and under a correct charge by the judge, that the injury was not an accident, but that it was due to the negligence of plaintiff and his fellow servants, but in the larger degree to

the latter.

In Rushing v. Railroad, 149 N. C. 160, 62 S. E. 892, this court held: "Motion for nonsuit was properly denied. The case was properly one for the jury." And added: "The court *

We are of opinion that the injury received by the plaintiff was the result of an accident, pure and simple. It was an unusual effect correctly charged, though of a known cause, and therefore not expect-greater weight of the evidence, that while the excepted to: 'If the jury should find, by the ed, and almost impossible to guard against. plaintiff was carrying the log he stumbled and In work of that kind the amount of human fell, and, while down, his fellow servants, when strength expended in pushing the ties can- they could have prevented the injury by holding the log, negligently and carelessly threw not be regulated with mathematical accuracy. down their end of the log, when, by the exerThe work was simple and required no more cise of ordinary prudence, they could have held than ordinary skill and experience. It is it and prevented the injury, then it would be such an accident as might happen to one en- employés; and, if this negligence of fellow chargeable to the negligence of the defendant's gaged in many different kinds of labor. It servants was the proximate cause of the injury, may happen to the farm laborer, to the house the jury would answer the first issue, "Yes.""" builder, as well as to the railroad employé.

The present case is stronger for the plainThis case is governed by the principles laid tiff, because he did not fall, but was in his down in Brookshire v. Electric Co., 152 N. C. proper place with his hand on top of the 6€9, 68 S. E. 215; Simpson v. Railroad Co., tie in the discharge of the duty assigned him 154 N. C. 51, 69 S. E. 683. It is very much to depress it so that the tie might pass unlike Lassiter v. Railroad Co., 150 N. C. der the rail, and he was injured by the sud483, 64 S. E. 202, in which the plaintiff in den, unexpected, and unnecessary exertion of that case was injured while unloading rails too much strength by his coemployés in pushfrom a flat car, caused by a rail bounding ing the tie in a manner to prevent his takback in an unusual and unexplained way and ing his hand out of the way, which assuredstriking him. As said by Mr. Justice Dougly he would have done if notified. Otherlas in Bryan v. Railroad, 128 N. C. 387, 38

S. E. 914:

"The employer is not responsible for an accident simply because it happens, but only when he has contributed to it by some act or omission of duty."

We see nothing in this case upon which to base the charge of negligence. The motion to nonsuit is allowed, Reversed.

wise he would have been injured solely by his own negligence, which the jury negatived. In Buchanan v. Railroad, 84 S. E. 52, at this term, Hoke, J., says:

"In Russell v. Railroad, 118 N. C. 1098 [24 S. E. 512], and in cases before that time, it if, on a given state of facts, two men of fair was declared to be the correct principle that minds could come to different conclusions as to the existence of negligence, the question must be determined by the jury."

In Forsyth v. Oil Mill, 167 N. C. 180, 83 S. E. 320, Brown, J., says:

"It is well settled that the court cannot direct a nonsuit and give judgment in favor of a defendant, on whom no burden rests, when there is more than a scintilla of evidence tending to prove plaintiff's contention, or when there is evidence from which a reasonable person might draw a deduction sustaining the plaintiff's contention."

CLARK, C. J. (dissenting). The plaintiff was not intentionally injured, of course, by his fellow servants, but there is evidence that his injury was not "purely an accident." The evidence shows that he was not injured by any unforeseen circumstance, but because his coemployés, though looking at him and knowing that his hand was on the top of the tie to depress it so that the end might go under the rail, negligently and carelessly In the case at bar a jury of 12 impartial shoved the tie with unnecessary and sud- men found not only a scintilla but by the den force, so that he did not take his hand preponderance of evidence that this was not out in time to prevent the injury. The jury an accident, and that the injury was due found that he was guilty of contributory neg- to the negligence of the defendant; and the figence doubtless because he might have been learned judge who tried the case drew the

there was evidence of negligence, submitted, the violation by such common carrier of any the case to the jury on the issue of negli- statute enacted for the safety of employés gence, and refused to set aside the verdict contributed to the injury or death of such on an allegation that it was against the employé, or the death or injury was caused weight of the evidence. The 13 men who by negligence." heard this cause and saw the bearing of the This action is not brought under the fedwitnesses on the stand, and who were charg-eral act but under the above state statute. ed with the duty of passing upon the weight | The plaintiff put his hand on the cross-tie in to be given their testimony, must be presum- the regular course of his employment, and as ed to be "reasonable persons." he was instructed to do, to bear it down and In Hodges v. Wilson, 165 N. C. 323, 81 S. guide it so that the end would go under the E. 340, Walker, J., says:

"Such business is a distinct, well-known business, with many risks peculiar to itself, and all the employés in such business, whether running trains, building or repairing bridges, laying tracks, working in the shops, or doing any other work in the service of an 'operating rail- the evidence. road,' are classified and exempted from the rule which requires employés to assume the risk of all injuries which may be caused by the negligence of a fellow servant."

The doctrine of assumption of risk has been eliminated by the fellow-servant act (Coley v. Railroad, 128 N. C. 534, 39 S. E. 43, 57 L. R. A. 817; Cogdell v. Railroad, 129 N. C. 398, 40 S. E. 202; Mott v. Railroad, 131 N. C. 237, 42 S. E. 601), in which it is held that it is "error to submit an issue as to assumption of risk when the cause of action is injury to railroad employés."

Laws 1913, c. 6, § 3, provides that in actions for damages against the "common carrier to recover damages for injuries to, or the death of, any of its employés, such employé shall not be held to have assumed the risk of his employment in any case where

character of the use and their ownership of the dominant estate, be held that the reclaimed lands were not subject to entry.

[Ed. Note.-For other cases, see Public Lands, Cent. Dig. §§ 466-476; Dec. Dig. 164.] Appeal from Superior Court, Carteret County; Peebles, Judge.

| 10, 8 and 6 and 7 were exposed, except a small part at the lower end of lots 6 and 7. In 1902 lot No. 8 was filled in with oyster

Action by the Atlantic & North Carolina Railroad Company against B. P. Way and, and who held a deed for said lot and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

This is a proceeding to protest entry No. 4463 of a piece of land described as follows: "All that certain part of reclaimed land filled in to the sea wall of Morehead City, lying in the town of Morehead City east of Seventh street and south of Arendell street, beginning on Seventh street at the southwest corner of lot No. 8 in square No. 7, and running thence south along what is called Seventh street on the land of the town of Morehead City to deep water or harbor line of Bogue Sound, thence east 100 feet, thence north parallel with Seventh street to the southeast corner of said lot 8 in square No. 7, thence west along the line of said lot No. 8 one hundred feet to the beginning, being the reclaimed land of the former water front of lot No. 8 in square No. 7, in the plan of the town of Morehead City, and the water front thereof to deep water or harbor line."

The court submitted this issue to the jury: "Is the land described in the entry filed in this case vacant land and subject to entry thereof and grant from the state?"

Lot

shells, which caused an accretion of the land
to form, and a fish and oyster house were
built thereon. This was done by A. T. Laval-
ette, under whom the enterer claimed lot No.
wharf was constructed from these buildings
claimed under the land company, and a
across lots 6 and 7 and far enough out for
boats to reach the wharf at low tide.
No. 8, after it was filled in as described, was
above high-water mark with ordinary tides,
but would be covered by "an extremely high
tide." In 1913, a concrete sea wall was
built in front of these lots and of the town,
and the space between it and high land was
filled in with dirt and silt from dredgings
made by the United States government in
Bogue Sound channel. The land is now
above water and is dry land. This sea wall,
built for the purpose of filling in the space
back of it to high land, "was paid for by
Morehead City and individual owners of
property." It is stated in the case that the
protestant-

"bought some parts of block 7 from the Shep-
herd's Point Land Company and has been in pos-
session of it for 10 years, and that all property
in Morehead City and adjacent thereto, not
otherwise occupied, has been in the possession
of the said land company for a great many

years."

The entry of the defendants embraced lots 6 and 7 in square No. 7, as shown on the map of Morehead City. It was admitted that It also appears that after the space beon May 24, 1856, a grant was issued by the state to John M. Morehead and Wm. H. Aren-tween the sea wall and high land had been dell for "the land lying around Shepherd's Point between high-water mark and the deep water of Bogue Sound, Newport river and Calico creek," which covered the land in dispute. This land, covered at that time by the waters of Bogue Sound, was conveyed by John M. Morehead and others, on July 2, 1857, to the Shepherd's Point Land Company, and the enterer claims to have acquired title by mesne conveyances from that company to

The

filled in, a street was opened, presumably by
the city, along and by the side of the wall,
known as Evans street, and lots 6 and 7
now face on that street. There are 16 lots
in block 7. It is also stated that a grant was
issued by the state for "all of this land,"
covering lots 6 and 7, to the Shepherd's Point
Land Company in 1857.
Bogue Sound are navigable.
that, it having been admitted that the grant

The waters of

The court held

to Morehead and Arendell covered lots 6 and

7, which defendants had entered, a second
grant of the same land would be void, and
the land was not therefore the subject of
entry, and, this being so, he would instruct
fendants, in deference to this ruling of the
the jury to answer the issue, "No." The de-
court, refrained from offering any further
The court then in-
testimony or defense.
structed the jury to answer the issue, "No,"
if they believed the evidence, and defendants
excepted. The jury answered the issue,
"No."

lot No. 8, which lies in square No. 7, between lots 6 and 7 and lots 9 and 10, the last two lots (9 and 10), which are now claimed by the protestant, being, at the time the deed of Morehead and others to the land company was executed, partly covered by the waters of said sound and partly dry land. tracks of the protestant are laid in Arendell street, immediately back and north of lots 9 and 10, with a sidewalk intervening. Arendell street is one of the public streets of Morehead City, and protestant has its right of way thereon for its full width. Lots 9 and 10 and lot 8 and lots 6 and 7, in the order named, lie south of Arendell street and the sidewalk, in the direction of Bogue Sound, and at the time of the grant to Morehead and Arendell, and the deed of Morehead and others to the land company, they were cov- WALKER, J. (after stating the facts as ered by its waters at high tide, except a above). The instruction of the court, to small part of lots Nos. 9 and 10 on their which the enterer deferentially submitted northern side. At low tide, all of lots 9 andand refrained from further developing his

Guion & Guion, of New Bern, and E. H. Gorham, of Morehead City, for appellants. Moore & Dunn, of New Bern, and J. F. Duncan, of Beaufort, for appellee.