all clearly distinguishable in their facts from the case at bar, which, among other things, is not, like them, a case of a limitation over, but of a substitution, pure and simple, to take effect, if at all, at the life tenant's death. In Broadhurst v. Morris the remainder was to B. and his lawfully begotten children forever, and in default of such issue at his decease to C. The contention was that the limitation over should be construed as if a comma had been placed after "issue," and therefore as upon an indefinite failure of issue. The clause is so construed by Judge Story in Parkman v. Bowdoin, 1 Sumn. 369, Fed. Cas. No. 10,763. And this court construed the clause to mean an indefinite failure of issue in Wiley v. Smith, 3 Ga. 565. The English court, without apparently considering the principle as to what persons would be entitled at the time for the remainder to vest in possession, and there being nothing to show that the dying of B., the remainderman, was referable to a dying within the lifetime of the life tenant, simply delivered a four-line opinion that B. took an estate tail. In Wood v. Baron the remainder was to B., to hold as a place of inheritance, to her and her children or her issue, and, if she died leaving no child or children, or if the latter should die without issue, then to C. Lord Kenyon thought the words in the limitation over meant upon an indefinite failure of issue, and distinguished it from several cases he cited in which the words are different and upon a definite failure of issue, but said the court would consider it. Afterwards the court certified, in less than four lines, that B. took an estate tail, manifestly because, as Lord Kenyon had intimated, the words in the limitation over imported an indefinite failure of issue under the common-law rule of construction, and this was no doubt the reason, inasmuch as B. had a child in life when the will was made and when the testator died. In Moore v. Gary the remainder was to B. and his issue, being his own children lawfully begotten, forever, and, upon his dying without issue-that is, without heirs, being his own children lawfully begotten, living at his death-to C. The court held that both the antecedent and superadded clause meant an indefinite failure of issue, and therefore that B. took an estate tail. In Parkman v. Bowdoin the remainder was to B. and to his lawful begotten children in fee simple forever, but, in case he should die without children lawfully begotten, to C. The opinion was rendered by Justice Story, and is by far the best of its kind of which we have knowledge. Like the other cases here distinguished, there was nothing in that case confining the death of B. within the lifetime of the life tenant. Justice Story spoke of a remainder being an immediate estate, but he overlooked the wide distinction and consequent results between a remainder vested in interest and a remainder vested in possession. And he finally held that the limitation over meant an indefinite failure of issue, which

made the word "children" in the preceding clause, "and his children," retain its original sense as a word of limitation, and gave B. an estate tail. This construction, which was based on the common-law rule existing prior to the English wills act that went into effect on January 1, 1838, is contrary to what would be decided in this state since our act of 1854, which changed the meaning of all such phrases into a definite failure of issue, and therefore Parkman v. Bowdoin, as well as the preceding cases distinguished, would be no authority in this state as to a will made since said act, even on an identically phrased or worded will. There are other cases where estates were given to B. and his children to vest in B. at 21 years of age, and, if he died before 21, to C., in which it was held that B. took an estate tail, as in Davie v. Stevens, 1 Doug. 321. Besides being wholly unlike the case at bar, a reading of that case will show that B. was never even married when the estate vested in him in possession at the age of twenty-one. From what we have said about these cases it is seen of what little value precedents are in construing a will, unless the facts are precisely or substantially alike, and the cases decided do not omit the consideration of well-established and apposite rules of construction.

It follows that in the case now in hand a deed executed by a daughter of the testator, which conveyed to another all her interest in described realty which belonged to the testator at his death, did not affect the interest therein of her children who were in life when the life tenant died. From the foregoing it follows that the trial judge correctly held that the petition set forth no cause of action in behalf of the plaintiffs who are the children of the testator's son, but that he erred in ruling that the other plaintiffs, who are the children of the daughters of the testator, were not entitled to recover, under the allegations of the petition.

Judgment reversed. All the justices concurring, except LITTLE and LEWIS, JJ., absent.

(131 N. C. 6) ALLEGHANY CO. v. EAST COAST LUMBER CO. et al.

(Supreme Court of North Carolina. Sept. 9, 1902.)

INJUNCTION REAL ACTIONS RESTRAINING CUTTING OF TIMBER.

1. Where, in an action to try title to timber land, there was a bona fide contention, based on evidence, as to the location of the head of a river on which rested plaintiff's grant, and plaintiff showed a prima facie case, such issue should be submitted to a jury, and could not be determined on a motion to continue an order restraining the cutting of timber.

2. An order restraining trespass on timber was properly continued until trial, under Acts 1901, c. 666, § 1, providing that when, in such actions, there is a bona fide contention on both sides, based on evidence constituting a prima facie title, no order shall be made, pending the action, permitting the cutting of timber, except by consent, until the title is determined.

Appeal from superior court, Beaufort county; Brown, Judge.

Action by the Alleghany Company against the East Coast Lumber Company and others. From an order continuing a preliminary injunction restraining the cutting of timber on certain land, defendants appeal. No error.

E. F. Aydlett and F. H. Busbee, for appellants. Rodman & Rodman and Small & McLean, for appellee.

CLARK, J. It is admitted that the defendants are cutting timber around the southern side of Endless Bay; and, if the head of the northeast prong of Long Shoal river is located as contended by plaintiff, then (for the purposes of this motion only) it is further admitted that said cutting is being done upon the lands described in the complaint, and covered by the John Hall grant. There is a bona fide and serious contention as to the true location of the head of the northeast prong of Long Shoal river, upon the determination of which rests the location of the John Hall grant, under which plaintiff claims, and defendants do not, and which grant, if located by plaintiff's contention, covers the locus in quo. This contention, which is supported by affidavits of each party in favor of its own view, cannot be decided upon this motion, but must be submitted to a jury. His honor, having correctly found as a fact that "there is a bona fide contention on both sides, based upon evidence," and that the plaintiff has made out a prima facie case, could not, under chapter 666, Acts 1901, do otherwise than continue the restraining order to the hearing.

No error.

(131 N. C. 3)

GOODYEAR v. COOK. (Supreme Court of North Carolina. Sept. 9, 1902.)

TRUSTEE-LIABILITY-NOTICE.

1. A trustee in a deed of trust, having sold the property, and applied the proceeds to the payment of the note of R., as required by the recorded deed, will not be charged with notice that the deed was improperly registered, and so be liable to B., because as attorney he had 12 years before drawn a deed of trust, taken away before it was signed, which required payment of the note of B., as well as that of R., out of the proceeds; at least where it is admitted he had no knowledge or information whatever, or any reason to suspect or believe, that there was any defect or error in the registration.

Appeal from superior court, Warren county; Winston, Judge.

Action by J. M. Goodyear against Charles A. Cook. Judgment for plaintiff. Defendant appeals. Reversed.

B. G. Green and F. H. Busbee, for appellant.

CLARK, J. Upon the facts agreed, it appears that the defendant, as attorney at law, on April 1, 1886, drew a deed in trust, which

was not then signed nor delivered, to secure two notes, one for $175 to Benjamin Goodyear, and the other for $370, payable to Rebecca Goodyear. The party for whom the paper was drawn took it away, and on June 10, 1886, it was recorded, without any knowledge or agency on the part of the defendant. The matter passed out of the mind of the defendant till about the month of February, 1898, when said Rebecca demanded that the defendant, as trustee, should sell the land. The defendant asked for the trust deed, and was referred to the registry of the same, and directed to sell by that. As recorded, the trust deed named the defendant as trustee, and required him "to pay in full the note to Rebecca Goodyear, and the surplus, if any," to the grantor. The property was duly advertised and sold March 21, 1898, when it was bought by said Rebecca at the price of $310, which being less than her debt, the amount of her bid was credited on her note, and the land was conveyed to her. The plaintiff did not become holder or owner of the $175 note till 1901, and neither Benjamin Goodyear nor any one else prior to that time gave the trustee notice of the $175 claim. The following averment of the defendant is admitted by the plaintiff, i. e.: "The defendant had no knowledge or information whatsoever, nor any reasons to suspect or believe, that there was any defect or error in the registration of said deed, and in executing said powers he was acting as agent for the parties to said deed, and used due care and caution in the discharge of said trust."

Upon the facts admitted, judgment should have been entered for the defendant. The mere fact that the defendant had once drawn a trust deed for the grantor, requiring payment of the $175 note out of proceeds of sale, as well as payment of the $370 note, which alone is required by the deed as recorded, was ro notice to him that the deed was improperly registered; certainly not after the admission that he did not have any "information or knowledge whatsoever, nor any reasons to suspect or believe, that there was any defect or error in the registration of said deed of trust." Besides, the laches of the plaintiff, and those under whom he claims, has been so gross as to deprive them of any standing in a court of equity, if there had been at any time any merit in his contention. Reversed.

(131 N. C. 5)

WOLFE et al. v. HAMPTON. (Supreme Court of North Carolina. Sept. 9, 1902.)

TESTIMONY MADE COMPETENT BY THAT OF OTHER PARTY.

1. Plaintiff having first testified to what passed between defendant and deceased, defendant may give his version of the same transaction.

Appeal from superior court, Washington county; Starbuck, Judge.

Action by T. B. Wolfe and others against W. H. Hampton. Judgment for defendant. Plaintiffs appeal. Affirmed.

W. M. Bond, for appellants. A. O. Gaylord, for appellee.

CLARK, J. The plaintiffs, children of H. E. Wolfe, bring this action as the beneficiaries named in a life insurance policy. They allege that the defendant in 1885 contracted with their father for a consideration to keep up the policy by paying the premiums thereon, but that in December, 1888, the defendant defaulted in such payment, whereby the policy became forfeited. H. E. Wolfe died in 1897. This action was instituted in November, 1900. T. B. Wolfe, one of the plaintiffs, testified that the defendant agreed with his father and himself, for the consideration named, to keep the premiums on said policy paid up, and that after his father's death he saw the defendant, who admitted said agreement, and that he had allowed the policy to lapse in 1888. The defendant testified that his agreement with H. E. Wolfe was that he (witness) would pay the premiums only so long as they did not exceed the then rate of $3.40 per month, and that any excess above $3.40 should be paid by Wolfe; that no one was present besides H. E. Wolfe and himself; that when the excess became heavy, Wolfe stopped paying; and that this was the sole cause of the forfeiture. The exception to this evidence of the conversation and contract between the witness and the deceased is the only point presented, as the other exception is as to evidence admitted upon another issue, which became immaterial, in view of the finding upon this issue, and which consequently the jury did not pass upon. As the plaintiff T. B. Wolfe first gave his version as to what passed between his father and the defendant, it could not be error to permit the defendant to give his account of the same transaction.

No error.

(131 N. C. 1)

MEEKINS v. NORFOLK & S. R. CO. (Supreme Court of North Carolina. Sept. 9, 1902.)

LIMITATIONS-ACTION AFTER NONSUIT-DEATH BY WRONGFUL ACT-REFUSAL TO DISMISS ACTION-APPEAL.

1. Even if Code, § 1498, prescribing a year from the death as the time within which action may be brought for death by wrongful act or negligence, is not strictly a statute of limitations, such an action is within section 166, providing if any action be commenced within the time prescribed therefor, and plaintiff be nonsuited, he may commence a new action within one year after such nonsuit.

2. Refusal to dismiss action is not appealable. Appeal from superior court, Tyrrell county; Geo. A. Jones, Judge.

Action by J. C. Meekins, administrator, against the Norfolk & Southern Railroad

12. See. Appeal and Error, vol. 2, Cent. Dig. § 720.

Company. From a refusal to dismiss the action, defendant appeals. Appeal dismissed.

Pruden & Pruden and Shepherd & Shepherd, for appellant. E. F. Aydlett, for appellee.

CLARK, J. This was an action under Code, § 1498, for damages for the death of plaintiff's intestate, caused by the wrongful act or neglect of the defendant. The original action was brought within one year from the death of the plaintiff's intestate, and a nonsuit was taken. Within one year after such nonsuit, but more than a year after the death of intestate, this action was begun. The defendant demurred ore tenus, and moved to dismiss the action, and appealed from a refusal of its motion. Code, § 166, provides: "If any action shall be commenced within the time prescribed therefor, and the plaintiff be non-suited the plaintiff

may commence a new action within one year after such non-suit." The defendant contends that this provision is under the title in the Code applying to limitations, and that the time prescribed under section 1498 is not strictly a statute of Hmitations. Best v. Town of Kinston, 106 N. C. 205, 10 N. E. 997. But the original action was brought within the time prescribed in section 1498, and therefore it does not here matter what the nature of that prescription is. On the other hand, the time within which a new action may be commenced after a nonsuit, etc., is a statute of limitation, and applies to all cases where a nonsuit, etc., has been sustained. This statute (Code, § 166) contains no exception of cases under section 1498, or of any other cases, where the time prescribed for bringing the original action might not be strictly a statute of limitation. We know no cause why the privilege to commence a new action within a year after nonsuit should not apply equally to all cases of nonsuit. The statute makes no distinction, and there is certainly none in the reason of the thing, which is the same as to that class of cases as in any others. No appeal lies from a refusal to dismiss an action (Clark's Code [3d Ed.] p. 738, and numerous cases there quoted; Clinard v. White, 129 N. C. 250, 39 S. E. 960), but we have, notwithstanding, discussed the merits of the motion, as was done in the last named case, and in State v. Wylde, 110 N. C. 500.

Appeal dismissed.

(131 N. C. 17)

WALKER et al. v. BRINKLEY et al. (Supreme Court of North Carolina. Sept. 16, 1902.)

BONDS-PRIMARY LIABILITY-LACHES.

1. A bond required by an employer before he would appoint an employé, and conditioned to be void if the employé performed his serv

ices competently and honestly, is a primary liability, so that the doctrine of laches does not apply.

Appeal from superior court, Washington county; Starbuck, Judge.

Action by Walker & Myers against D. O. Brinkley and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

W. M. Bond, for appellants. A. O. Gaylord, for appellees.

FURCHES, C. J. The plaintiffs, being residents of the city of Baltimore, Md., and the owners of a saw mill in Plymouth, N. C., in December, 1898, employed one C. L. Morton as their general manager and agent of said mill and milling business, taking the bond sued on for their protection and indemnity against the default and misconduct of the said C. L. Morton, which is in the following words and figures: "North Carolina, Washington County. We, D. O. Brinkley, L. S. Landing, Louis P. Hornthall, and Warren Ambrose, of the county and state above named, acknowledge ourselves bound unto A. M. Walker and James R. Myers, trading as merchants in Baltimore, Md., under the firm name of Walker & Myers, in the sum of fifteen hundred dollars. The conditions of the foregoing obligation are such that whereas, one C. L. Morton, of said county and state, has contracted with the said Walker and Myers as employé of said Walker and Myers, to operate and superintend the saw mill owned by Walker and Myers at Plymouth, North Carolina, and to act as general business manager thereof in the manufacture of pine, ash, cypress, and juniper timber, subject to the orders and control of said Walker and Myers: Now, therefore, if the said C. L. Morton shall faithfully act as such manager as aforesaid, and perform the services required in that capacity in a reasonably safe, competent, and honest manner during the time in which he shall hold the same, this obligation to be void. Witness our hands and seals. D. O. Brinkley. [Seal.] L. S. Landing. [Seal.] Louis P. Hornthall. [Seal.] Warren Ambrose. [Seal.] Signed December 5, 1898, and forwarded to W. & M. by H. S. Ward." While this bond was required by the plaintiffs before they appointed C. L. Morton their agent and superintendent of their mill, and was intended to protect them against the misconduct and defalcations of said Morton, it was an original primary liability, and not secondary. It is a penal bond, in which the defendants acknowledge themselves bound to the plaintiffs in the sum of $1,500, to be void upon the said C. L. Morton performing the conditions therein contained. Of course, if he has performed the conditions, the plaintiffs have no right of action. But the action is brought upon this bond, and breaches of its condition are specifically set out and assigned. The answer of the defendants is what is known as a statutory denial of the complaint, -that they "had no knowledge of the facts alleged, nor sufficient information to form a

belief as to their truth, and they are therefore denied." There was but one witness introduced, the plaintiff, James R. Myers,-who testified that he met the defendants in Mr. Ward's office; they talked the matter over, and he employed the said C. L. Morton upon the terms stated in the bond; that soon after that he received the bond inclosed in a letter from Mr. Ward, stating that it was good for $4,000; that he at once wrote Mr. Ward and C. L. Morton that the bond had been received and accepted, and C. L. Morton took possession of the mill, and assumed its control and management; that the defendants all had admitted to him that they signed the bond, and that the defendants and their attorney, Ward, all lived in the town of Plymouth, Washington county. Upon this uncontradicted evidence the following issues were submitted to the jury (and found as stated), with an agreement of counsel that the case should be referred to ascertain the damages, if the jury should find for the plaintiffs: “(1) Did defendants Brinkley, Hornthall, Landing, and Ambrose execute the bond set out in the complaint? Yes. (2) Were said defendants discharged from said bond by the negligence of the plaintiffs, as alleged? No."

There are but two exceptions set out in the record. One is to dismiss the action for the reason that the evidence showed that the defendants had no notice of the acceptance of the bond. This was overruled, and the court charged the jury, if they believed the evidence, they should find the first issue "Yes" and the second issue "No," and the defendants again excepted. Neither of these exceptions can be sustained. Instead of the evidence showing that the defendants did not have notice of the acceptance of the bond, it strongly tended to prove that they did have such notice, if it was necessary to give them any such notice. Straus v. Beardsley, 79 N. C. 59. And it be ing a primary, and not a secondary, liability, the doctrine of laches does not apply, if there had been such. The court gave judgment for the plaintiffs, and made the order referring the case to ascertain the damages, as it had been agreed by counsel he should do, and the defendants appealed.

As we see no error, the judgment is affirmed.

(131 N. C. 20) MONDS v. ELIZABETH CITY LUMBER CO.

(Supreme Court of North Carolina. Sept. 16, 1902.)

TRESPASS-TITLE-ESTOPPEL-COUNTER-
CLAIM.

1. Defendant in trespass, claiming right to cut timber under a void contract from one who afterwards deeded the land to plaintiff, is estopped to deny plaintiff's title.

2. Defendant in trespass for cutting timber has not, because he paid plaintiff's grantor money for a void contract for the timber, any equity against plaintiff for the money.

Appeal from superior court, Chowan county; Jones, Judge.

Action by Charles Monds against the Elizabeth City Lumber Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Pruden & Pruden and Shepherd & Shepherd, for appellant. W. M. Bond, for appellee.

It

FURCHES, C. J. This is stated to be an action to remove a cloud upon the title of plaintiff's land, but the pleadings and trial of the case resolve it substantially into an action of trespass upon the plaintiff's land, and cutting and removing timber therefrom. appears that on the 20th March, 1888, R. E. Parris and wife sold and undertook to convey the timber on this land to the Gay Manufacturing Company, for which it paid Parris $130. On the 5th of March, 1892, said Parris and wife sold and conveyed said land to the plaintiff by deed in fee simple. The plaintiff at once entered and took possession, and has held the actual possession of said land under said deed ever since. On the 28th of June, 1900, the Gay Manufacturing Company sold and assigned all its interest in said timber to the defendant company, and this is the only claim the defendant has to said timber. In October, 1900, the defendant entered upon said land, and cut and carried away the timber therefrom, and this action is for trespass and the value of the timber so cut and carried away. The contract of Parris and wife with the Gay Manufacturing Company and the deed from Parris and wife to the plaintiff were offered in evidence, and the trespass In cutting and taking away the timber was admitted, its value was found by the jury, and, judgment being rendered for the plaintiff, the defendant appealed.

It was admitted by counsel for the defendant that the contract between Parris and the Gay Manufacturing Company was the same in terms as the one declared on in Rumbo v. Manufacturing Co., 129 N. C. 9, 39 S. E. 581, and was absolutely void. This, it seems to us, puts an end to the case, but the defendant did not think so, and filed the following exceptions. At the close of the testimony the defendant asked the court to charge as follows: (1) There is no evidence for the consideration of the jury that the plaintiff owned the land described in the complaint at the time the trespass was committed." Refused, and defendant excepted. "(2) There is no evidence for the consideration of the jury that the plaintiff owned the timber described in the complaint at the time the trespass was committed." Refused, and defendant excepted. The court charged the jury that, inasmuch as the plaintiff claimed the title under R. E. Parris and wife, under whom the defendant also claimed the right to cut the timber by virtue of the said timber contract, the defendant was estopped to deny the plaintiff's title to said land, and if they believe the evidence in the case, they should answer

the first issue "Yes." To this charge the defendant excepted.

None of these exceptions can be sustained, and in our opinion do not call for a discussion at our hands. In the argument before us the learned counsel contended that the defendant had an equity upon the plaintiff for the $130 the Gay Manufacturing Company paid Parris, which the plaintiff should pay, and that he must do that, or offer to do so, before he had any right of action; that it was an equitable action, and he must do equity. No such ground as this was taken in the pleadings, nor on the trial below, so far as we are informed, nor do we see any ground to rest such a defense upon. This question was expressly decided in Rumbo v. Manufacturing Co., supra, argued by the same attorneys, and which would have to be overruled if we were to sustain this contention. But the defendant has never paid the plaintiff anything, nor has the plaintiff ever recovered anything from the defendant, and we see no privity between them or equity in the case. As the plaintiff never received anything from the defendant, we fail to see any right of action against the plaintiff, if it had been set up in the answer. Davison v. Land Co., 126 N. C. 704, 36 S. E. 162. Affirmed.

(131 N. C. 12) PHELPS et ux. v. WINDSOR STEAMBOAT CO. et al. (Supreme Court of North Carolina. Sept. 16, 1902.)

STEAMBOAT CARRIERS-INJURY TO PASSENGER-LIABILITY OF LESSOR.

1. The lessor of a steamboat, not being a quasi public corporation, having received no special privileges or benefits from the state, is not liable for injury to a passenger from negligence of the lessee.

Appeal from superior court, Bertie county; Brown, Judge.

Action by J. T. Phelps and wife against the Windsor Steamboat Company and another. From judgment dismissing the action as to defendant Elizabeth Branning, administratrix, plaintiffs appeal. Affirmed.

St. Leon Scull, for appellants. Pruden & Pruden and Shepherd & Shepherd, for appellee.

CLARK, J. This is an action against the defendant steamboat company, alleging that, while plaintiff was a passenger on one of its boats, by negligence in the loading and operation thereof the boat was capsized, and the plaintiff was thrown into the water and injured, and her baggage was also damaged. The plaintiff joins in the action the administratrix of one John W. Branning, upon the ground that said Branning was the owner of said vessel, and had leased it to the said steamboat company. It does not appear, nor is it alleged, that he had any connection with 1. See Carriers, vol. 9, Cent. Dig. § 1249.