NEGOTIABLE INSTRUMENTS—Continued.
ticular case, where a party obtained a cashier's check for
$1,824 from a bank in the State and negotiated the same to
a party residing in Virginia in five days thereafter, such
negotiation was within a reasonable time. Ibid.
Under Revisal, sec. 2173, which enacts "that an antecedent or pre-
existing debt constitutes value, and is deemed such whether
the instrument is payable on demand or at a future time,"
such an indebtedness is sufficient consideration to constitute
one a holder for value within the meaning of the law mer-
chant. Ibid.
Where the evidence and verdict established that the title of the
party who negotiated the check to defendant was defective,
the burden under Revisal, sec. 2208, was on the defendant
claiming to be a purchaser in good faith for value and without
notice, to make this claim good by the greater weight of the
evidence; and the Court erred in charging that the burden
was upon the plaintiff to prove that the defendant was not
a holder in due course. Ibid.
The authority to draw, accept or endorse bills, notes and checks
will not readily be implied as an incident to the express
authority of an agent. It must ordinarily be conferred ex-
pressly, but it may be implied if the execution of the paper
is a necessary incident to the business, that is, if the purpose
of the agency cannot otherwise be accomplished. Bank v.
Hay, 320.
A letter written within a reasonable time before or after the date
of a bill of exchange, describing it in terms not to be mistaken,
and promising to accept it, is, if shown to the person who
afterwards takes the bill on the credit of the letter, a virtual
acceptance, binding the person who makes the promise. Ibid.
Where the letters, upon which the plaintiff bank relied as authority
to an agent to make the draft which it cashed, show that the
alleged authority to draw was nothing more than private
instructions by the principal to his agent as to how he should
conduct this part of the business, and were not to be used as
a basis of credit to the agent, the Court properly nonsuited
the plaintiff. Ibid.
NEW TRIALS. See "Trials."
NEWLY DISCOVERED EVIDENCE. See "Evidence."
In an action by an employee to recover damages for injuries sus-
tained in endeavoring to clean out a machine, where he testi-
fied that he was injured by reason of a defective machine of
which he had no notice, and that if the machine had been in
proper condition there was no danger to be reasonably appre-
hended from cleaning it in the manner testified to, the Court
committed no error in refusing to nonsuit plaintiff. Hicks v.
Manufacturing Co., 73.
On a motion for nonsuit, or its counterpart, the direction of a
verdict, the evidence of the plaintiff must be accepted as true,
and construed in the light most favorable to him. Biles v.
Railroad, 78.
In an action for damages for personal injuries, where defendant
alleged that for a stipulated amount which had been paid,
plaintiff executed a full release, and plaintiff in reply admit-
ted the receipt of the money, but denied that the alleged release
contained the terms of the settlement, averring that the pro-
vision that he was to have a lifetime job was omitted by
fraud in the factum of defendant's agent, and there was evi-
dence of the alleged negligence and fraud, the Court erred in
nonsuiting plaintiff. Hayes v. Railroad, 125.
Where the plaintiff went into the train at a station for the sole
purpose of purchasing fruit without invitation or inducement,
but simply by the silent acquiesence of defendant's agents, he
was a mere permissive licensee, and took the risk incident to
the movement of the train, and, in the absence of any wanton
injury, the motion for nonsuit should have been allowed.
Peterson v. Railroad, 260.
Where the letters, upon which the plaintiff bank relied as authority
to an agent to make the draft which it cashed, show that the
alleged authority to draw was nothing more than private
instructions by the principal to his agent as to how he should
conduct this part of the business, and were not to be used as
a basis of credit to the agent, the Court properly nonsuited the
plaintiff. Bank v. Hay, 326.
Under Revisal, sec. 4809, which provides that no insurance com-
pany shall limit the time within which an action may be com-
menced to less than one year after the accrual of the cause of
action, or to less than six months from the time a nonsuit is
taken in an action brought upon the policy within the time
originally prescribed, where a suit was commenced upon the
policy in controversy within twelve months after the accrual
of the cause of action, and a nonsuit was taken, but the record
in that case, which was put in evidence, does not show when
the nonsuit was entered, it will be presumed, in favor of the
Court's ruling, to have appeared that it was done within six
months prior to the date on which this action was commenced.
Parker v. Insurance Co., 339.
NOTICE OF ASSESSMENT OF DAMAGES. See "Limitation of
Actions"; "Eminent Domain.”
NOTICE TO PRODUCE COPIES OR PAPERS. See "Evidence."
An injunction will be denied in advance of the creation of an
alleged nuisance when the act complained of may or may not
become a nuisance according to circumstances, or when the
injury apprehended is doubtful, contingent or eventful merely.
Hickory v. Railroad, 451.
A decree of the Superior Court enjoining defendant from enlarging
its freight depot upon a finding by a jury that such enlarge-
ment will constitute a public nuisance, will be modified so as
to permit defendant to remedy and guard against any possible
danger to persons crossing its tracks by erecting suitable
gates across the street and by providing a gateman. Ibid.
In an action begun before a justice of the peace in which the
plaintiff made demand in the sum of $50 for damages done
to his property and premises by defendant in depositing the
carcass of a dead horse near the lands of the plaintiff, whereby
the comfort and enjoyment of his home were impaired and a
nuisance committed to his premises, the Superior Court, on
appeal, erred in dismissing the action for want of jurisdiction
in the justice. Duckworth v. Mull, 461.
The courts in certain cases will act with great caution in interfer-
ing at the suit of private citizens. The State is the proper
party to complain of wrong done to its citizens by a public
nuisance. Pedrick v. Railroad, 485.
A drawbridge over a navigable water, although it unavoidably
occasions some delay in passing it, is not necessarily such an
obstruction to the navigation as to amount to a nuisance.
To constitute nuisance, the obstruction must materially in-
terrupt general navigation. Ibid.
Where a railroad had authority by charter to construct a draw-
bridge over a navigable river, and the evidence was conflicting
as to whether the proposed bridge would constitute a nuis-
ance by reason of its location below a certain town instead of
above said town, and it appears that about-one-fourth of the
work had been done before any application was made for an
injunction, a judgment of the lower Court denying a tempo-
rary injunction restraining the construction of the bridge will
be affirmed. Ibid.
OFFICER. See "Attachment."
OPINIONS. See "Evidence."
ORDINANCES. See "Municipal Corporations."
PAROL EVIDENCE. See "Evidence."
It is competent to show, by oral evidence, a collateral agreement
as to how an instrument for the payment of money should in
fact be paid, though the instrument is in writing and the
promise it contains is to pay in so many dollars. Typewriter
Co. v. Hardware Co., 97.
In an action on a written contract, where the defendant set up as
a defense certain verbal stipulations, and the jury by their
verdict have accepted the existence of the verbal stipulations,
the fact that the Court annexed to it a qualification not
required by the law to make it a valid defense is not error of
which plaintiff can complain. Ibid.
Where, in an action to recover a contract for services, plaintiff
introduced a letter from defendant which fixes the compensa-
tion, but does not set forth the terms of the employment nor
the nature of the services expected of plaintiff, and it shows
that the entire contract was not reduced to writing, it was
competent to resort to parol evidence to explain the ambigu-
ous terms and to fill out the terms of the contract and to show
that the plaintiff represented himself competent to superin-
tend the work he was about to undertake. Ivey v. Cotton
Mills, 189.
Where a complaint alleges that two railroad corporations jointly
operating their properties through the agency of a lessee be-
tween two points connected by their road-beds and tracks, in
the discharge of their duty as common carriers undertook to
carry a passenger over their tracks, a demurrer for misjoinder
was properly overruled, as they are jointly liable for a failure
to discharge the duty undertaken in a joint operation and use
of their property in the exercise of their franchise. Carleton
v. Railroad, 43.
Where a proceeding for partition was brought in 1881 and upon
issues raised was transferred for trial to the Superior Court
and a consent decree was entered at June Term, 1887, appoint-
ing commissioners for partition, who filed their report with
the Clerk in 1887, and no exceptions in any form were ever
filed to its confirmation and a decree confirming the report was
procured at the April Term, 1906, without giving special
notice to the defendant or his counsel: Held, that the de-
fendant's motion to set aside the decree of confirmation was
properly denied. Roberts v. Roberts, 309.
Where a complaint alleges that two railroad corporations jointly
operating their properties through the agency of a lessee be-
tween two points connected by their road-beds and tracks, in
the discharge of their duty as common carriers undertook to
carry a passenger over their tracks, a demurrer for misjoinder
was properly overruled, as they are jointly liable for a
failure to discharge the duty undertaken in a joint operation
and use of their property in the exercise of their franchise.
Carlton v. Railroad, 43.
In an action for damages for personal injuries, where the defend-
ant set up a release as an accord and satisfaction, the plaintiff
is not required to return the money received before setting up
the plea that the release was procured by fraud in the factum;
but if he recovers damages the amount paid him will be
deducted. Hayes v. Railroad, 125.
Matters in mitigation of damages may be shown under an answer
containing a general denial only, and need not be specially
pleaded. Creighton v. Water Commissioners, 171.
Where an action for services rendered was brought by attachment
and without personal service against parties who owned no
interest in the land attached, but the real owners at their own
request upon their verified petition were made parties defend-
ant, the Court properly denied their motion, made at a subse-
quent term, to be allowed to withdraw from the case, especially
as an allegation in the petition which constituted the basis
of plaintiff's cause of action had been admitted by plaintiff
in his reply. Morrison v. Mining Co., 250.
In an action to recover the value of services rendered, where it was
admitted that plaintiff was defendant's agent in caring for his
property, and there being proof of services performed and
knowingly received, and of their value, the law implies a
promise by defendant to pay a fair and reasonable compensa-
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