COURTS-Continued.

peace and additional jurisdiction of offenses below a felony,
declaring such to be petty misdemeanors, and providing for
and appeal to the Superior Court, does not contravene the
State Constitution. Constitution, Art. IV, secs. 2, 12, and
14. The court follows former precedents. State v. Collins,
648.

31. Same-Superior Court-Quashing Bill.-An indictment for an
assault with a deadly weapon is a misdemeanor and cog-
nizable by the Recorder's Court of Nash County (Laws 1909,
chap. 633), and the Superior Court of that county properly
quashed the bill for want of original jurisdiction, the indict-
ment having been found after the law creating the Recorder's
Court had been enacted. Ibid.

COURTS, FEDERAL. See Removal of Causes, 1; Corporation Com-
missioners, 6, 7, 8.

COVENANT. See Contracts, 64; Principal and Surety, 4.

CREDITORS. See Executors and Administrators, 2.

CRIMINAL CASES. See New Trials, 1; Appeal and Error, 40, 42;
Instructions, 19.

Suit.-An unreasonable delay in transporting and delivering
a shipment of goods renders the carrier liable to at least
nominal damages, and when there is evidence thereof a
motion to nonsuit should not be granted. Lumber Co. v.
Railroad, 23.

2. Carriers of Freight-Unreasonable Delay-Special-Notice.-
A verdict of special damages awarded against a common
carrier, arising from its unreasonable delay in transporting
and delivering goods to the consignee, will be sustained upon
the question of knowledge, when from the evidence it ap-
pears that the shipment was a saw-mill edger, weighing
about one thousand pounds, shipped “open," to a consignee
whose business was known to the carrier to be that of
running saw mills, the character and manner of the ship-
ment being such that the jury could fairly presume that the
carrier knew it was for a special purpose or present use.
Ibid.

3. Witnesses-False Testimony.-A witness is not liable for dam-
ages for alleged willful and false testimony given by him in a
former case, upon the ground that by reason thereof the
plaintiff had lost his suit in the former action. Such action

DAMAGES--Continued.

would not lie at common law, and there is no statute author-
izing it. Godette v. Gaskins, 52.

4. Mortgagor and Mortgagee-Sale, Defect in-Resale-Breach
of Trust.-Ordinarily a junior mortgagee with power of sale
can only sell and convey the property subject to prior exist
ing liens, and a plaintiff mortgagor, claiming a homestead,
and certain judgment creditors with junior liens on the land,
cannot recover damages of the trustee and cestui que trust
holding a lien by their deed subsequent to that of a prior
mortgage, for an alleged breach of trust in failing to collect,
or make any endeavor to collect, bids obtained at a sale there-
under, and afterwards reselling at a less price, when at the
first sale a trustee, in effect, offered an unencumbered title
and there was a prior registered mortgage on the property,
the holder of which had not been notified or given his con-
sent to such a sale. Brett v. Davenport, 56.

5. Same. When the trustee, at a sale under a deed of trust,
announced that all prior liens on the mortgaged premises
would be paid out of the proceeds of the sale of the land, such
liens consisting of those of a prior mortgage and judgments,
and subsequently resells at a lower price without attempting
to collect the bids made at the first sale, the mortgagor, by
claiming a homestead, and the judgment creditors, by assert-
ing a demand for the entire proceeds of sale, make it impos-
sible for the trustee to comply with his proposition thereat
and render the obligation of the bidders unenforceable. Ibid.
6. Standing Timber Contract to Convey — Specific Perform-
ance-Title Defective-Rights of Purchaser.—A purchaser,
under a binding option on standing timber, may elect to take
such title as the vendor may have, and recover damages to
the extent that the vendor may be unable to make good title
contracted for. Timber Co. v. Wilson, 154.

7. Election. When a cause of action for specific performance is
shown, the plaintiff is not held to an election for damages
merely by reason of his having claimed them in his suit,
especially when it appears that he has subsequently waived
all demand therefor. Ibid.

8. Telegraphs-Message—Cipher-Notice of Importance.—A tele-
gram reading, "Sold Tootle Mottar ninty cases twenty-eight
inch six and three-quarters," is not a cipher message, and
the use of the initial capital letters to the words Tootle
Mottar indicates the name of a firm to whom the goods are
sold, and the rest of the message the quantity, kind and price
thereof; and, from the nature of the business, a telegraph
company receiving the message for transmission has implied
knowledge of the importance of accuracy in transmission
and promptness of delivery. Williams v. Telegraph Co., 223.
9. Issues Unnecessary-Negligence-One Damage.-When there
is allegation and evidence that defendant negligently injured
plaintiff by the derailment of its passenger train and the
immediate running into of another passenger train, the plain-
tiff can only recover one damage caused by the negligence of
the defendant, and two issues as to damages are unneces-
sary. West v. Railroad, 231.

DAMAGES-Continued.

10. Contracts Voidable-Insanity-Release.-Where the plaintiff
is found by the jury to have executed a release to defendant,
when the former was non compos mentis, for damages
arising from an injury negligently inflicted by the latter, the
courts will not set it aside in the absence of a finding that
the defendant was aware of his incapacity at the time of
the release, or that its execution was induced by its fraud
or misrepresentations. Ibid.

11. Negligence-Permanent.-In this case the court properly per-
mitted the jury to assess permanent damages to plaintiff,
under the evidence, for injury received by reason of her
horse stepping into a hole left by defendant upon its streets.
Tise v. Thomasville, 281.

12. Master and Servant-Safe Place to Work-Negligence-It is
the duty of the employer to provide on his premises a safe
way for his employees to go to and from their work; and
when a dangerous aperture in the floor of a cotton mill has
been left over night by one in charge of making repairs, who
would not have left it had he known that the employees
would return that night to their work, the negligence of the
foreman directly in charge in not informing the one doing
the repairs of the fact is attributable to the principal, and
the latter is liable for an injury to an employee directly and
proximately caused by the negligent act. Shives v. Cotton
Mills, 290.

13. Cities and Towns-Condemnation Proceedings-Streets-Ease-
ments-Abutting Owners-Title-Issues.-When a city under
and in accordance with the provisions of its charter has
widened certain of its streets and appealed to the Superior
Court from the award of commissioners upon claims made
for damages on that account by abutting owners, all the
proof showing that claimants were occupying the property
and claiming it as such owners, which position had been
recognized by both sides, the issue of title is not raised.
New Bern v. Wadsworth, 309.

14. Citics and Towns-Condemnation Proceedings-Easements-
Streets- Abutting Owners-Issues— Evidence-Title- Ver-
dict. When the only question presented in the action is the
measure of damages to abutting owners for the widening of
a street by a city for public use under proceedings in con-
demnation in accordance with its charter provisions, it is
error to admit evidence for the purpose of affecting adversely
defendants' title as abutting owners, and for the court to so
regard it as shown in his charge to the jury, though it was
otherwise competent on the question of the measure of dam-
ages; and this is not cured by the verdict awarding defend-
ants damages only for the moving of houses from the ease-
ment, it appearing that in thus finding they must necessarily
have considered the question of title. Ibid.

15. Carriers of Passengers-Ticket Stipulations-Shortest Route-
Incorrect Information-Ejection of Passenger-Negligence.—
A plaintiff may recover of the defendant railroad company
such actual damages as he may have sustained by being put

DAMAGES-Continued.

off the latter's train, when he was traveling a longer route
to his destination than that stipulated for in his ticket, the
stipulation calling for the shortest one, when it appears he
was acting upon erroneous advice as to the shortest distance
given by defendant's station agent; that he did not know
which was the shortest route and reasonably relied upon the
information given him. Mace v. Railroad, 404.

16. Same-Conductor.-The fact that a conductor acted within his
duty, and without insult, violence or rudeness, in putting a
passenger off his train who was traveling on a ticket to his
destination stipulating for another route thereto, does not
exculpate the defendant railroad company for liability for
the negligence of its station agent in causing the passenger.
without his fault, to take this route as the one called for
in his ticket. Ibid.

17. Surface Waters-Diverting Natural Flow.-One is liable for
damages caused to the lands of another by his diverting the
natural flow of surface water thereto. Roberts v. Baldwin,
407.

18. Same- Limitation of Actions-Permanent—Easement.— The
damage caused to the lands of another by the unlawful
diverting of surface water thereon by means of a ditch is
not barred by the three-year statute of limitation from the
time the ditch was dug. The trespass is not continuing, but
the irregular downpouring of the water upon the land, in
varying quantities, to the injury of the land, and the re-
covery of damages is limited to those accruing within three
years prior to the commencement of the suit, both as to
annual or permanent damages, unless by acquiescence for
twenty years the presumption of a grant or easement arises.
Ibid.

19. Injunction-Sewerage-Doubtful-Court's Non-Interference.—
In this case an injunction is sought against the action of the
city in emptying its sewer into a stream by certain of the
landowners along its course where the sewer empties. The
court affirming the doctrine of the city's liability for dam-
ages as laid down in Metz v Asheville, 150 N. C., 748, and
other cases cited, will not interfere by injunction, it being
doubtful, from the record, as to the character and extent of
the damage. Cherry v. Williams, 14 N. C., 452; Vickers v.
Durham, 132, N. C., 880, cited and approved. Little v.
Lenoir, 415.

20. Private Nuisance-Light and Air-"Spite Fence”—Motive.—
Ordinarily the owner of lands may erect such improvements
thereon as he sees fit, and any resultant injury to the adjoin-
ing owner is damnum absque injuria; but he may not, with-
out liability as for a private nuisance, erect an unsightly
"spite fence" on his own land for the sole malicious purpose
and effect and without benefit to himself, of shutting out
the light and air from his neighbor's windows. Barger v.
Barringer, 433.

21. Same-Prescriptive Rights.-Plaintiff and defendant had
erected a wire divisional fence between their adjoining
lands whereon they resided, and thereafter the plaintiff, as

DAMAGES-Continued.

chief of police of the town, reported, in accordance with his
official duty, the filthy condition of defendant's stable. From
vengeance and malice, and without benefit to himself, the
defendant then erected a very rude and unsightly board
fence eight feet, six inches high on his own side of the
division fence, within four feet of plaintiff's window, so as to
shut out his view, light and air therefrom. Held, that
though a prescriptive right in light and air cannot be
acquired, the defendant's motive in constructing the fence
in the manner indicated can be considered, and he will be
liable for damages as for maintaining a private nuisance.
Ibid.

22. Railroads-Illegal Conduct-Master and Servant-Orders of
Master-An action will not lie when a plaintiff must base
his claim, in whole or in part, on a violation by himself of
the criminal or penal laws of the State, nor is this principle
impaired by reason of the fact that plaintiff was acting
under the orders of the defendant, his principal, for an agent
cannot justify such conduct by showing he was so acting.
Lloyd v. Railroad, 536.

-

23. Counties · · Courthouse- Acceptance- Latent Defects Con-
tracts, Breach of-Mala Fides.-After the owner has ac-
cepted a building from his contractor, he must show mala
fides upon the part of the contractor in inducing his accept-
ance, in order to recover damages for latent defects alleged
not to have been discoverable at the time. Burgin v. Smith,
561.

24. Contracts Restraint of Trade, Reasonable — Injunction.—
When it appears by affidavit, or otherwise, that one who has
entered into a valid contract in restraint of his trade or
business is acting in violation of it, upon proper application
of the other party in interest, a restraining order should be
continued to the hearing, especially when it appears that
resulting damages would be difficult to measure. Anders v.
Gardner, 604.

DAMAGES, REMOTE. See Measure of Damages, 15.

DANGEROUS INSTRUMENTALITIES. See Negligence, 22.
DEADLY WEAPON. See Murder, 3; Manslaughter, 1.

DEATH BY WRONGFUL ACT. See Railroads, 32.

DEATH OF PARTY. See Abatement, 2.

DEBT OF ANOTHER. See Contracts, 5.

DECEASED. See Contracts, 6, 7.

DECEIT. See Fraud, 1.

DECLARATION. See Principal and Agent, 5; Evidence, 28, 50, 52,

53, 54, 67, 84.