of said tract 86 poles to two white oaks on the east side of a hill, then east 167 poles to a stake in the line of a 50-acre tract, thence south with line 96 poles to a stake in a line running east from the beginning, then with that line west to the beginning. Entered 6th day of November, 1854." It was admitted that the beginning corner of the grant No. 566, as marked on the map at the point 1, is the true beginning, and that the second corner is at the point marked W. P. on the map 10 poles north of 1, and that such point is the corner of the 150acre tract. It was further admitted that the third corner of grant 566 is at the point marked 2 W. O., and that such point is 86 poles north of the white pine and 96 poles north of the beginning corner, the white pine and two chestnuts by the falls of "Pounding Mill branch," and that the two white oaks at the figure 2 are on the east side of a hill. There was no difficulty whatever in iocating the grant according to course and distance, especially with these points admitted. The court properly charged that under these circumstances "course and distance control, and that the defendant's title to the 100-acre grant would stop wherever the distance gave out and would go where the course carried it, regardless of the additional call 'to the line of a 50-acre tract,' the court holding that that addition to the call was too indefinite, and the jury should find as a fact on the evidence that the corner was where the distance gave out and where the course went to." Surely this cannot be error, when to consider the additional call "to the line of a 50-acre tract" would make the call indefinite and uncertain and indeed render uncertain that which before was certain. It has been universally held by this court in a line of decisions beginning as far back as Harry v. Graham, 18 N. C. 76, 27 Am. Dec. 226, and continuing to the present, that "the course and distance called for must control unless there is another call more definite and certain than course and distance." that in fact it had not been, but that merely the east line thereof had been laid down on a plot. As the first line of said grant was on the east side of it, the west line of that tract, which would be the line in which the "stake" would necessarily be, could not be designated, and there was nothing to show the shape of said tract or where the west line would be found. It is impossible to find a more uncertain call than for a stake, in the unsurveyed west line, of a 50acre tract, which is not identified, whose owner is not even known, and the shape of which was not indicated. The west line, when finally surveyed, might be nearer or farther from the east line of said tract. The owner of the tract is not named, the west line is not located, and "a 50-acre tract" is common in that section, and three of them are shown in this evidence to be somewhere more or less east of grant No. 566. It is true that in Cherry v. Slade, 7 N. C. 82, the court held that, when the boundary of another tract is called for, it would be considered a natural boundary and more certain than course and distance, "provided it be sufficiently established." In Lumber Co. v. Hutton, 152 N. C. 537, 68 S. E. 2, the court held that when the course, distance, number of acres, and plat are more definite, and the application of the call for the boundary of another tract was inconsistent, the latter must give place to the former for "the reason for the rule had ceased." The rule in Cherry v. Slade is not a statute; neither is there any sacredness attaching to it. It was simply a judicial expression of the opinion that, when under the circumstances the boundary of another tract offered more certainty than the other descriptions, the call for the boundary should govern. In Lumber Co. v. Hutton, 159 N. C. 445, 74 S. E. 1056, it was held that the call for the boundary should govern because additional evidence had been offered on the second trial which showed that the boundary of another tract was "a well-recognized and established line," and was so found to be by the jury. But even then there were two dissenting opinions, for the result had been to give the grantee 14 times the acreage named in his grant and plat. That surely should have been the ultima thule of the doctrine; but if we are now to hold that, notwithstanding definite courses and distances and admitted corners, the call for a stake in the unmarked boundary of an unlocated tract of an indefinite owner is to govern by the force of attraction, then indeed we are on a boundless and uncharted sea, without course and distance, and with the compass diverted from its direction by a power without limit and an attraction be The additional call here is "to a stake in a 50-acre tract." This could not possibly be made more indefinite nor uncertain. It is a call for an unfixed and unmarked point and in no particular grant. The grant is not even designated by the name of a grantee. There is evidence that there are three 50acre tracts near this grant. One is east, though it is marked 25 acres. Another a little south of east, which the defendant wishes the jury to guess is the one intended, and another nearly southeast. Indeed, "50acre" tracts in that section are known to be as thick as the traditional blackberry. Be sides, there is no evidence whatever that the lines of the 50-acre tract which the defend-yond calculation. ant "guesses" is the correct one had been The general rule has always been that surveyed at the time that grant No. 566 was land must be located according to the pri others more certain, and that an uncertain description should yield to one which is certain and less liable to disappoint the intention of the parties. In the case at bar the call for a stake unmarked in the line of "a 50-acre tract" is not a more certain call and does not bring this case within the exception to the well-known general rule that course and distance will govern, unless the line of another tract, which is "known and established," is called for. To grant the defendant's contention gives him 200 acres instead of the 100 acres which the state granted him and which he paid for. Cherry v. Slade is not a general rule, but it is an exception to the general rule and is only to be applied in those cases in which such exception is called for by reason of its furnishing greater certainty. The exception should not destroy and swallow up the rule. The description about which there is the least liability of error should be adopted to the exclusion of the other. Campbell v. Branch, 49 N. C. 313. There was no evidence by which the jury could locate "a" 50-acre tract called for in the defendant's grant, nor any evidence that the west line of such tract, nor any line thereof, had been run and marked. course and distance in grant No. 566 were The not only the most certain means, but indeed the only means by which said grant could be located, and his honor properly told the jury to follow the definite courses and distances therein given. BROWN, J., concurs in dissent. (162 N. C. 485) LLOYD v. NORTH CAROLINA R. CO. et al. (Supreme Court of North Carolina. May 28, 1913.) 1. REMOVAL OF CAUSES (§ 3*)-RIGHT OF REMOVAL-STATUTORY PROVISIONS. The purpose and effect of the amendment of 1910 (Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1325]) to the federal Employer's Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), providing that no case arising thereunder and brought in any state court of competent jurisdiction shall be removed to any court of the United States, was to withdraw the right of removal in cases arising under that statute when the action has been instituted in the state court and to require litigants desiring to have the results of the trial reviewed by reason the presence of a federal question to proceed of by writ of error to the state court making final disposition of the cause in its jurisdic tion. [Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*] 2. REMOVAL OF CAUSES (§ 86*)-PETITION SHOWING FRAUDULENT ATTEMPT TO PREVENT REMOVAL. On an application to remove a cause to a federal court, plaintiff is entitled to have his cause of action considered as presented by him in his complaint, and, while a case may in proper instances be removed on the ground dictional facts, the petitioner must not only of false and fraudulent allegations of jurisallege bad faith and fraud but such facts and circumstances as are sufficient, if true, to demonstrate that plaintiff is making a frauddeprive the petitioner of his right of removal, ulent attempt to impose upon the court and notwithstanding the rule that, where the petition for removal contains sufficient facts to upon or decide the issues of fact so raised, require a removal, the state court cannot pass this applying only to such issues as control and determine the right of removal. [Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. §§ 132, 166-179; Dec. Dig. § 86.*] 3. REMOVAL OF CAUSES (§ 86*) railroad corporation to remove to a federal [Ed. Note.-For other cases, see Removal of Dig. § 86.*] Causes, Cent. Dig. §§ 132, 166-179; Dec. 4. COMMERCE (8 3*)-POWER TO REGULATE"INTERSTATE COMMERCE.' "" instrumentalities and agencies by which it is The term "interstate commerce" includes conducted and the power of Congress extends including the right to legislate for the welfare to the regulation of such instrumentalities, of persons operating them. [Ed. Note.-For other cases, see Commerce, Cent. Dig. § 3; Dec. Dig. & 3.* es, vol. 4, pp. 3724-3731.] 5. APPEAL AND ERROR (§ 927*)-REVIEW-AP- where it appeared that plaintiff submitted to In reviewing a judgment of nonsuit, a nonsuit in deference to the trial court's intimation that he had not made a case, the case would be considered as presented by evidence would be interpreted in the light plaintiff's allegations and evidence, and the most favorable to him. Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, [Ed. Note. For other cases, see Appeal and 4024; Dec. Dig. § 927.*] 6. MASTER AND SERVANT (§ 284*)-ACTIONS-its successors, assigns, employés, agents or SUFFICIENCY OF EVIDENCE. In a railway engineer's action for in- servants for which the party of the first juries against his employer and another rail- part shall be adjudged liable whether the road corporation whose road it leased, where party of the first part is sued jointly with it appeared that he was assigned for duty, or separately from the party of the second and had for some time been engaged in haul-part." The complaint alleged, and there was ing trains over that part of the lessee's system which included a portion of the lessor's road, that this was being done by the lessee with the consent of the lessor and while operating under the lessor's franchise, that at the time of the injury the engine defects in which caused the injury sued for was siding connected at both ends with the main line of the lessor's road where it was being oiled and inspected by plaintiff for the purpose of making a trial trip which could only be done by passing over a portion of the lessor's road a nonsuit as against the lessor was improperly granted, it being a permissible inference from the facts that cause of action against it was well laid. on a the [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. § 284.*] 7. REMOVAL OF CAUSES (8 79*)-TIME FOR APPLICATION-EFFECT OF NONSUIT AS TO ONE DEFENDANT. While in an action against a resident and a nonresident defendant, if pending the cause plaintiff elects to discontinue as to the resident party, the nonresident's right of removal by reason of diverse citizenship then arises, the discontinuance must be voluntary, and this rule did not apply where the nonsuit was taken by plaintiff in deference to the trial court's intimation that he had not made a case, plaintiff was insisting on his right to have the nonsuit reviewed on appeal, and was in a position to assert it. [Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. §§ 135, 136, 139-160; Dec. Dig. $ 79.*] evidence on part of plaintiff tending to show, that a portion of the North Carolina Railroad included in the lease, to wit, from Greensboro through Spencer to Salisbury, N. C., was a part of the trunk line of the Southern Railroad from north to south "along and over which it was and is engaged by and with the consent of the North Carolina Company in transporting interstate commerce from Virginia and all points of North to South Carolina, Georgia, and other points south," etc.; that plaintiff at the time was a locomotive engineer in the employment of the Southern Railroad for the purpose of transporting freight trains containing interstate commerce from, to, and between "Spencer, N. C., and Monroe, Va., and along the main line of the Southern Railroad, a part of which said line included that portion of the North Carolina Railroad from Greensboro to Spencer," and had been for some time prior to the occurrence engaged on this run with an engine, No. 579; that the engine had been taken to the shops of the Southern at Spencer, and, having been overhauled and repaired, it was on a side track near the shops of the company, steamed up and ready, and plaintiff was engaged in oiling and inspecting the same for the purpose of presently making a trial trip to Barber's Appeal from Superior Court, Guilford Coun- Junction, a point in North Carolina on the ty; Peebles, Judge. Action by W. L. Lloyd against the North Carolina Railroad Company and the Southern Railroad. From a judgment of nonsuit as to the North Carolina Railroad and a judgment removing the cause to the United States court as to the Southern Railroad, plaintiff appeals. Reversed. Civil action, heard before Hon. R. B. Peebles, judge, and a jury, at February term, 1913. The suit originally instituted against the North Carolina Railroad, a corporation of this state, having its franchise and owning a railroad property here, and the Southern Railroad, a corporation of the state of Virginia, operating the road of its codefendant under a 99-year lease, and which, among other things, provides: "For the liability of the Southern Railway Company for all of its acts and defaults in the operation of said road" and for a deposit of "not less than $175,000 in cash, or its equivalent, to be applied" to the performance of the stipulations in the contract of lease to be performed by the lessee, and among them "to pay any judgments recovered in any court of the state or of the United States when finally adjudicated for any tort, wrong, injury, negligence, default or contract, done, made or permitted by the parties of the second part, Western North Carolina Railroad, some distance beyond Salisbury, and thus to test the engine with a view of further service; that while so engaged he received serious physical injuries by reason of some defects in the structure or adjustments of the engine, the same being attributed to the negligence of the defendant the Southern Railroad, the facts as to negligence and the nature and extent of the injury being given; that this particular engine had been for some time engaged in the through freight service from Spencer, N. C., to Monroe, Va., and since plaintiff was injured it had been doing the same work; that plaintiff was assigned to the work, and had been engaged in it till his engine was taken to the shop for repairs and during that time the plaintiff had no regular run. On his cross-examination and speaking to the circumstances of his employment and duties, the witness, in answer to questions, said: "Q. Where you were going or whether you were to do work running inside or outside of the state you did not know? A. I was marked on the division from Spencer to Monroe. I knew I was to do any kind of work that I stood for, relief work for other men running on this line I was assigned to. I was not supposed to run to Barber's June ton. My assignment was not that way. If I had been called to go to Statesville under the supervision of a competent man, I would have gone, or to Wilkesboro. I would have gone anywhere in the state if they had sent a competent man to carry me there and bring me back. I didn't know the road. I went to Selma occasionally. I think I went to Goldsboro one trip and carried a switch engine; that is in North Carolina. Q. I ask you if it was not your habit to go anywhere your call was indicated by the company as an extra engineer? A. I didn't belong to go there. It was left discretionary whether I did go. Q. Wasn't it your habit to go wherever they called you to go as an extra engineer? A. No, sir. Q. Did you ever refuse to go? A. Yes, sir. Q. Where? A. A good many different places. I refused to go on the branch road. I refused to go to the western part of North Carolina, Asheville, and I refused to go to Charlotte. I have run on the road from Selma to Monroe. That is on this division. I run between Selma and Norfolk when the division extended there. All the men had to run into Virginia out of Selma. At the time I was hurt I was not a regular engineer with a regular run." And, speaking of the place of the injury, the witness said: "The engine was standing on a side track at or near the cinder pit of the company about half way between the shops and the main line of the North Carolina Railroad and more than a hundred feet from said main line and the side track connected with the North Carolina Railroad at the north end of the Spencer yards and with the doubletrack part of the North Carolina Railroad on the south part of the Spencer yard leading to Salisbury, and there was no way of getting off that side track and onto the main line except over the North Carolina Railroad." | In apt time, and accompanied by a proper bond, the defendant the Southern Railway Company filed its petition for removal, duly verified, setting forth its position as to the exact nature and proper place of the occurrence and containing averment that plaintiff was an employé of the Southern Railroad, and not otherwise, as locomotive engineer, his duty being to engage in his work as directed and at any place on the lines of the company; that the exact place of the occurrence was on the yards of the company near its shops, the same having been purchased and owned by the company and the shops built and used for repair and other work for engines and cars used on all portions of the company's system; that it was entirely off the right of way of the North Carolina Railroad and formed no part of that company's property; that the engine in question was subject to be used on any of the roads of the Southern and at the time of the injury it was on this company's property preparatory to taking a trial trip by Salisbury and on to Barber's Junction points entirely within the was to be handled by said engine at said trip, and no cars of any kind were to be attached thereto; that all these facts were well known to plaintiff when he instituted his suit and filed his complaint, and that said North Carolina Railroad Company had been fraudulently joined in said suit, and the allegation that plaintiff was at the time engaged in interstate commerce had been falsely and fraudulently made with the sole purpose of preventing a removal of the case to the federal courts and with no bona fide purpose of obtaining the relief against said North Carolina Company as stated in the complaint. On this matter the express averments of the petition were as follows: "Your petitioner says that the plaintiff at the time he received the injuries complained of was an employé of your petitioner, and not an employé of its codefendant, the North Carolina Railroad Company, and was not, and never had been, an employé of the said North Carolina Railroad Company, and that all the said facts herein set forth, with reference to the lease, the location and situation of the cinder pit and side track, and the duties which plaintiff was to perform on the day in question, were well known to plaintiff when this action was brought and complaint filed. Your petitioner further says that to avoid the removal of this case by it to the federal court the plaintiff joined the North Carolina Railroad Company, a North Carolina corporation, and falsely and fraudulently alleged in his complaint that the side track upon which the engine was located at the time he was injured was 'one of the side tracks of the North Carolina Railroad Company's main line at Spencer,' and falsely and likewise fraudulently alleged in his complaint that he suffered injury while employed by your petitioner in interstate commerce, and falsely. and fraudulently alleges that he was engaged in interstate commerce at the time of his injury, and that said engine was likewise so engaged, when, at the time said allegations were made, plaintiff well knew that they were untrue, or could, by the exercise of the slightest diligence, have ascertained the true facts in connection therewith, and your petitioner further states that plaintiff did not and does not expect to establish said allegations, and did not make them for the purpose of proving them at the trial or substantiating his cause of action therewith, but made them solely for the purpose of setting up a joint cause of action against the defendants as lessor and lessee, and to state a cause under the Employer's Federal Liability Act in order to make a case which would not be removable to the federal court." The petition for removal having been denied at December term, 1911, the petitioner excepted and appealed, but without prosecuting its appeal, and, reserving any and all exceptions to the rulings of the court, the defendants and place of the occurrence as claimed by | preme Court of the United States in several them, and denied any and all liability on the cases reported in 223 U. S. 1, 32 Sup. Ct. 169, part of the North Carolina Railroad Company, and for both companies denied any and all negligence and setting up the defense of contributory negligence, etc. The cause coming on for trial on the issues so raised at February term, as stated, at the close of plaintiff's evidence and by reason chiefly of the place of the occurrence as described by plaintiff, the court having intimated "that there was no case made out against the North Carolina Railroad Company, the plaintiff takes a nonsuit as to said North Carolina Railroad Company." See judgment. Thereupon defendant the Southern Railroad filed its second petition for removal accompanied by proper bond on the ground of diversity of citizenship, and renewing its alle gation of fraud in general terms, and chiefly by reference to the former petition. The court entered judgment removing the case, and plaintiff excepted and appealed, assigning errors as follows: "Plaintiff's exception No. 1. For that the court permitted the defendant Southern Railway Company to file a new petition and bond for the removal to the federal court. "Plaintiff's exception No. 2. For that the court entered an order removing the cause to the federal court for trial. 56 L. Ed. 327, 38 L R. A. (N. S.) 44, styled the "Second Employers' Liability Cases," and it was there held among other things that the same is constitutional, that its provisions and regulations have superseded the laws of the several states in so far as the latter cover the same field, and that rights arising under the regulations prescribed by the act may be enforced as of right in the courts of the states, where their jurisdiction as fixed by local laws is adequate. And the amendment of 1910 contains provision that: "The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states," and "no case arising under this act and brought in any state court of competent jurisdiction" shall be removed to any court of the United States. Act April 5, 1910, c. 143, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1325). It was no doubt the purpose and effect of this amendment as its terms clearly import to withdraw the statute when the action has been instithe right of removal in cases arising under tuted in the state court, and to require that litigants desiring to have the results of the trial reviewed by reason of the presence of a federal question, etc., shall proceed by writ of error to the state court making final disposition of the cause in its jurisdiction. All the decisions to which we were referred upholding the right of removal in such cases "Plaintiff's exception No. 3. For that the court held that there was no sufficient evidence against the North Carolina Railroad Company to entitle the plaintiff to recover as against it, and for that the court dismissed the action as to the North Carolina Rail--Lemon, Adm'r, v. L. & N. R. R., 137 Ky. road Company and removed the cause to the federal court for trial as against the other defendant the Southern Railway Company." A. L. Brooks and Sapp & Hall, all of Greensboro, for appellant. Manly, Hendren & Womble, of Winston-Salem, and Wilson & Ferguson, of Greensboro, for appellees. 276, 125 S. W. 701; Calhoun v. Central of Georgia, 7 Ga. App. 528, 67 S. E. 274, and others-were causes disposed of prior to the amendment, and which no doubt gave rise to its enactment. [2] And if, as defendants contend, the same right of removal exists as in cases of fraudulent joinder of a resident with a nonresident defendant, the application should be denied HOKE, J. (after stating the facts as in this instance. On this question the auabove). [1] The plaintiff in express terms thorities are to the effect that, when viewed bases his cause of action on the federal Em- as a legal proposition, the plaintiff is entitled ployer's Liability Act April 22, 1908, c. 149, to have his cause of action considered as he 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. has presented it in his complaint (Railroad 1322), as amended by Act April 5, 1910, c. v. Miller, 217 U. S. 209, 30 Sup. Ct. 450, 54 143, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, L. Ed. 732; Alabama v. Thompson, 200 U. S. p. 1325), and in his complaint makes allega- 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. tion sufficient to establish liability on the Cas. 1147; Dougherty v. Railroad [C. C.] part of both of defendant companies. The 126 Fed. 239), and while a case may in propstatute in question confers a right of action er instances be removed on the ground of against all common carriers by railroad en- false and fraudulent allegation of jurisdicgaged in interstate commerce and in favor tional facts, the right does not exist, nor is of all employés while engaged in such com- the question raised by general allegation of merce, or their representatives, when injur- bad faith, but only when, in addition to the ed or killed by reason of the "negligence of positive allegation of fraud, there is full any officers, agents, or employés of such car- and direct statement of the facts and cirrier, or by reason of any defect or insuffi- cumstances of the transaction sufficient, if ciency, due to its negligence, in its cars, en- true, to demonstrate “that the adverse party gines, appliances, machinery, track, roadbed," is making a fraudulent attempt to impose ways or works. The law in question has upon the court and so deprive the applicant |