WORTH V. TRUST COMPANY.

sible for breaches of contract involving the recovery of liquidated damages, or damages which could be limited and defined by some standard or data contained in the contract itself. See Price v. Cox, 83 N. C., 261; Wilson v. Mfg. Co., 88 N. C., 85. Shortly after these decisions were announced, the statute was amended so as to provide the remedy "for breach of contract (express or implied), wrongful conversion of personal property, any other injury to personal property in consequence of negligence, fraud or other wrongful act." Code 1883, sec. 347. The Legislature of 1893 (chapter 77) added "injuries to real property" to the section, and in 1901 there was another amendment, adding "or any injury to the person, caused by negligence or other wrongful act," making the law on the subject, as it now appears in the Revisal of 1905 (section 758), and allowing the remedy in"1. Breach of contract, express or implied.

"2. Wrongful conversion of personal property.

"3. Any other injury to real or personal property in consequence of negligence, fraud or other wrongful act.

"4. Any injury to the person, caused by negligence or wrongful act."

Under this law, as amended, various decisions from time to time have sanctioned the use of the writ in actions to recover unliquidated damages, when the demand otherwise complied with the statutory requirements, and the present claim comes clearly within the terms of the third clause of section 758: "An injury to the personal property of another, in consequence of fraud or other wrongful act.'

Some of the older cases are to the effect that this word, "property," both in public statutes and transactions and business affairs, inter partes, applies only to tangible property and would not include choses in actions or an interest or investment of the kind involved in this litigation, unless such signification was clearly required by the context or by the facts and circumstances of the special case. One of them (Webb v. Bowler, 50 N. C., 362) was an action where the validity of an attachment was in question, and it was held that the term "property" should be confined to tangible property, and that a false warranty or deceit in the sale of personal property was not an injury to the property of another, within the meaning of the statute.

Since these decisions were rendered, however, and probably in consequence of them, this restricted significance of the word "property," when used in statutes or the rule of interpretation on the question presented, has been altered by express enactment, and our chapter on the construction of statutes, as contained in the old Revised Code, ch. 108, sec. 2, subsec. 6, has been changed to read as follows:

WORTH V. TRUST COMPANY.

"The word 'person' shall extend and be applied to bodies politic and corporate, as well as to individuals, unless the context clearly shows to the contrary. The words 'real property' shall be coextensive with lands, tenements and hereditaments. The words 'personal property' shall include moneys, goods, chattels, choses in action and evidences of debt, including all things capable of ownership, not descendible to the heirs at law. The word 'property' shall include all property, both real and personal." A change which seems to have been made by the Code of 1883 and now appearing in Revisal 1905, sec. 2831, subsec. 6.

And in Duckworth v. Mull, 143 N. C., 461, a decision involving the meaning of this word, "property," as affecting the jurisdiction of justices of the peace in matters of tort, the Court, among other things, said: "In the business affairs and transactions of individuals and the construction of instruments which concern the devolution and transfer of property between them, this term, 'property,' has usually received a more restricted construction. It has been so in the decisions of our own Court; but in constitutions and public statutes, where the words permit and the spirit and intent of the law require, the word 'property' has frequently and more usually been accorded the broader significance which we have given it."

Construing the law, therefore, in the light of the present statute and the more recent and approved decisions, this action is clearly one in which the writ of attachment is allowed, the wrong alleged being an injury by which the plaintiff's interest and investment in the power company has been wrongfully destroyed or very greatly impaired. This view of a similar law has prevailed in other jurisdictions (Paper Co. v. Scaring, 54 Supreme Court N. Y., 237; Weiler v. Schreeber, 63 How. Pr., 491), and is clearly the proper construction of our statute on the subject.

There is no such disproportion between the reasonable estimate of plaintiff's demand and the amount of property retained or bond required as to justify or permit that the action of the lower court in reference to these matters should be disturbed; nor is there such repugnancy in the claim, as stated by plaintiff, as to seriously affect the validity of the attachment; and we are of opinion, on the controlling questions presented, that the plaintiff has stated a cause of action against the four principal defendants in which the writ of attachment lies, and that the judgment of his Honor below, denying defendants' motion to vacate the writ, should be

Affirmed.

CHAMPION v. RAILROAD.

ROSA CHAMPION, Administratrix of Sandy Champion, v. SEABOARD AIR LINE RAILWAY et als.

(Filed 27 October, 1909.)

1. Railroads-Lights and Signals-Negligence.

When it is alleged and proven to the jury under conflicting evidence, that plaintiff's intestate was run over and killed by defendant's work train, without lights or signals, when he was endeavoring to go over the railroad at a public crossing, the defendant is liable in damages for its negligent act, in the absence of evidence of contributory negligence of plaintiff.

2. Same-Contributory Negligence-Nonsuit.

In an action to recover damages from a railroad company for the alleged negligent killing of plaintiff's intestate by running a train, without lights or signals, over him at a public crossing at night, the contributory negligence of intestate will bar recovery when it appears that he both saw and heard the engine coming and attempted to run across the track in front of it, and thus received the fatal injury.

APPEAL from O. H. Allen, J., March Term, 1909, of EDGE

COMBE.

Civil action, to recover damages for the alleged negligent killing of Sandy Champion by defendant's train, after dark.

At the conclusion of the evidence a motion to nonsuit was sustained. From the ruling and judgment of the court the plaintiff appealed.

The facts are stated in the opinion of the Court.

G. M. T. Fountain and R. T. Fountain for plaintiff.
Murray Allen for defendant.

BROWN, J. The allegations of the complaint, as well as the theory of the evidence advanced by plaintiff, are that the intestate was run over and killed at a public crossing near the station of Wise, in Warren County, N. C., by a work train, while the intestate was endeavoring to cross the track at the crossing; that the work train was composed of several flat cars, pushed by the engine; that there was no light on the end of the front car or on the engine, and that no signals were given for the crossing.

If these facts are true, as contended, they constitute negligence; and if the intestate was killed by such a train, under such circumstances, without being guilty of contributory negligence himself, the defendant would be liable. Gerringer v. Railroad, 146 N. C., 32; Purnell v. Railroad, 122 N. C., 832.

The theory and contention of defendant is that, according to the testimony of Sam Baskerville, who testifies he was with deceased at the time he was killed, Sandy Champion was killed

SUMNER V. STATON.

by an engine pulling a train and not pushing it, and that they both saw and heard the engine coming and attempted to run across the track in front of it, and that Sandy got caught by the engine and killed.

If these facts be true, they constitute such contributory negligence as will bar a recovery. Royster v. Railroad, 147 N. C., 347; Cooper v. Railroad, 140 N. C., 213; Strickland v. Railroad, 150 N. C., 4.

Upon a careful examination of the evidence, we think his Honor should have submitted the issue of negligence and contributory negligence to the jury, with proper instructions. New trial.

L. E. SUMNER and Wife et als. v. L. L. STATON, Individually, and as Executor of Charlotte A. Knight, and SALLIE

A court of equity has jurisdiction of an action brought by the next of kin and heirs at law to set aside a will for undue influence, when it appears that to afford the relief demanded it is necessary to cancel previous deeds for alleged fraud appearing to convey the same property to the executor and devisee under the will; and the Superior Court, in which the suit was brought, may proceed to hear and determine the case and administer all the rights and equities between the parties, as no adequate or complete remedy at law is given in proceedings before the clerk or probate court.

2. Same-Trustee Ex Maleficio.

And if it should be established that the executor acquired the property by the deeds and under the will by fraud, the court, in administering the equities and doing substantial justice between the parties, will decree the executor a trustee ex maleficio for plaintiff's benefit and prohibit him and those claiming under him from setting up title; may require the executor to give bond pendente lite, and make such further interlocutory orders as may be expedient and right to preserve the rights of the parties.

3. Same-Remedy at Law.

When it appears that a suit has been properly brought against one of the defendants in the Superior Court to set aside a will, for the reason of certain equities arising in setting aside a deed upon the ground of fraud, and necessary to be administered in order to give adequate and complete relief, it should be dismissed as to another defendant when relief can be had as to her in pro

SUMNER V. STATON.

ceedings to caveat the will before the clerk (probate court) and concerning whose rights it is not necessary for the courts of equity to interfere.

WALKER, J., concurring, arguendo.

APPEAL by plaintiffs from the refusal of O. H. Allen, J., to grant their motion for an injunction and receiver, in an action. pending in EDGECOMBE and heard during the March Term, 1909, of the court.

The court, being of opinion "that it had no jurisdiction of that part of said action, in which it is sought to set aside the will of Mrs. Charlotte A. Knight for alleged fraud," etc., denied the motion for injunction and receiver. The plaintiff excepted and appealed.

The facts are stated in the opinion of the Court.

F. S. Spruill for plaintiff.

Aycock & Winston and G. M. T. Fountain for defendants.

BROWN, J. On the argument, and in appellant's brief, exception is particularly taken to the opinion of his Honor that the fact that the defendant L. L. Staton being sole residuary legatee under the will of Charlotte A. Knight will in a measure affect the original equitable jurisdiction of the Superior Court to declare said Staton a trustee ex maleficio in respect to the property conveyed to him by certain deeds executed by Mrs. Knight, and deprives the court of jurisdiction to make such interlocutory orders as are necessary to preserve the property during the pendency of the action. This feature of the case is the only matter presented for our consideration.

It appears that Mrs. Knight was the absolute owner of a considerable estate, consisting of valuable real and personal property, which she conveyed to the defendant L. L. Staton by two deeds-one dated 2 May, 1900, and the other 4 May, 1906. On 16 March, 1904, Mrs. Knight executed a will, in which she made a few insignificant bequests of spoons and other articles of personalty of small value, and then devised the "Bennett Jenkins place" to Bettie L. Sumner, and all the residue of her estate (real and personal) to Dr. L. L. Staton and Henry Johnson as residuary legatees, and appointed Dr. Staton executor to her will. No specific bequest or devise is made to him or to Johnson. On 25 September, 1906, Mrs. Knight, by a codicil to her will, revoked the devise to Bettie S. Sumner and devised the "Bennett Jenkins place" to Sallie Baker Staton, daughter of Dr. Staton, and at the same time revoked the devise to Henry Johnson and made Dr. Staton her sole residuary legatee. It is contended