TELEGRAPHS-Continued.

each other and conversations between them tending to show
such feelings at the last time they had met, when the son
was leaving her on her sick bed about a week before her
death, the circumstances being such as to exclude any reason-
able suspicion of their sincerity. Ibid.

11. Messages Announcing Sickness—“Morning Train” — Negli-
gence-Evidence-Quickest Way "Walked.”—When it is ad-
mitted that the first train a father could have taken to reach
the bedside of his sick child would have been too late for
him to have seen his child alive, had the message sued on,
reading, “Your baby very sick; come on morning train," been
promptly transmitted and delivered, yet it is competent for
him to show that had the message been promptly delivered,
and not negligently delayed in the delivery from 9 p. m. to
the next day at 11 a. m., he could and would have walked
the distance of thirty-five miles and have seen his child
alive, thus avoiding the injury from which the damages
demanded in his action arose. Battle v. Telegraph Co., 629.
12. Same-Notice to Company.-In an action for damages arising
from the negligence of defendant telegraph company in the
delivery of a message to a father reading, "Your baby very
sick; come on morning train," the importance of the message
is shown by that part of the message relating to the sick-
ness, and the latter part, "come on morning train." gives
indication of the intent for him to come quickly; the com-
pany is put upon notice that the father may use the quickest
way to get to the bedside of the child, and evidence that he
could and would have accomplished this result in time by
walking, as in this case, is competent, though it be admitted
that it would have been too late if he had taken the train
indicated in the message. Ibid.

13. Negligence Delivery - Evidence of Affection-Measure of
Damages. In an action for damages alleged to have been
caused a father by the negligent delay in the delivery of a
message announcing the sickness of his child, with a request
to come at once, by which he was prevented from seeing his
child alive, evidence was competent, upon the measure of
damages, that the child was a boy seventeen months old,
could walk and talk, and could have recognized plaintiff,
as he called him "papa." Ibid.

14. Nondelivery — Address—Negligence-Evidence—Questions for
Jury. Evidence is sufficient of the negligence of a telegraph
company in failing to deliver a message addressed to "No.
419 South street,' in a city, to take the case to the jury.
which tends to show that there were two houses with this
number about a block apart, one of them occupied by the
sendee, who had been living and receiving mail there for
two years preceding the time in question; that the messenger
boy unsuccessfully attempted a delivery at the wrong num-
ber; a service for better address was sent; a postal card
notice was mailed and received by the occupant of the wrong
number (“419"); that information given on inquiry at the
postoffice coincided with the address on the message; that in
response to the service message the sender reiterated the
address given on the message and that this was not com-

TELEGRAPHS-Continued.

municated to the office of the destination, and no further
service message was sent by him. Shaw v. Telegraph Co.,
638.

16. Damages-Evidence-Mental Anguish-Measure of Damages—
Instructions.-In an action to recover damages arising from
the nondelivery of a telegram sent by a brother of the
sendee, reading, "Come at once; Ida and I are sick with
malarial fever," it is competent for the plaintiff, the sender
of the message, to testify, in answer to a question as to the
effect his sister's failure to come had upon him, "It just
killed me. I couldn't hardly tell what effect it had on me;
it affected me pretty badly; caused me mental distress, be-
cause I didn't know what was the matter with her”; and
from the face of the message and the extraneous facts and
circumstances in this case the defendant had implied notice
of the character of the resultant damages, as testified to,
arising from its negligent failure to deliver the message.
Ibid.

TENDER. See Vendor and Vendee, 1; Deeds and Conveyances, 8;
Witnesses, 8.

THIRD PERSONS. See Partnerships, 5, 14.

THREAT. See Evidence, 89.

TICKET STIPULATIONS.

See Carriers of Passengers, 9, 10, 11.

TIMBER CONTRACTS. See Contracts, 15, 16, 17, 18, 19, 20.

TIME. See Equity, 5.

TIME COMPUTED. See Appeal and Error, 9.

TITLE. See Carriers of Freight, 1; Deeds and Conveyances, 18;
Partition, 2; Bankruptcy, 1, 2, 3, 4; Ejectment, 1, 2, 3; Tres-
pass, 4; Estates, 1; Equity, 7; Insurance, 2, 3, 4, 5, 21, 22;
Sales, 17; Issues, 16, 17, 18.

TITLE, BILL OF. See Constitutional Law, 11.

TORTS.
1. Deeds and Conveyances-Breach of Contract-Action-Plead-
ings-Proof.-An action cannot in general be maintained for
inducing a third person to break his contract with the plain-
tiff, the consequence being only a broken contract, for which
the party to the contract may have his remedy by suing
upon it. To this rule there are two generally recognized
exceptions discussed by BROWN, J. Swain v. Johnson, 93.
2. Independent Contractors-Joint-Partition-Master and Serv
ant.-A railroad company cannot be held liable as a joint
tort feasor with its independent contractor for an injury to
an employee of the latter when there is no evidence or sug-

See Husband and Wife, 3; Parent and Child, 1.

TORTS-Continued.

gestion that the former assumed an active part by encourage-
ment, direction or control of the work wherein the injury
complained of was received. Smith v. Railroad, 479.

3. Same-Release of Liability-Effect. The plaintiff received
the injury complained of while engaged in the employment
of an independent contractor of a railroad company in build-
ing the latter's roadbed, and brought suit against the rail-
road and the contractor, alleging that they were joint tort
feasors. He introduced the contract between the defendants
wherein it appeared that the contractor had agreed to in-
demnify the railroad from liability of the character de-
manded by plaintiff. Held, a release in full given by the
plaintiff to the independent contractor in consideration of a
compromise likewise released the liability of the railroad,
in the absence of evidence tending to show that the latter
actively participated in the alleged wrong. The principles
of law applicable to the master's liability for the wrongful
acts of the servants discussed by MANNING, J. Ibid.

TRESPASS.

1. Carriers of Goods

Rights-of-way-Invitation Implied.-A
railroad company by customarily allowing passengers to get
off and on a train stopping at a coal chute, collecting their
fares therefrom, etc., impliedly invites them to do so, and
one acting accordingly is not a trespasser on the lands of
the defendant there. Credle v. Railroad, 50.

2. Boundaries -

-

Reputation - Declarations-Definiteness.-In an
action of trespass on land it was admitted that the answer
to an issue as to the beginning corner of a grant at a black-
gum tree would control in the locating the land in dispute.
Evidence was offered by a witness of the declarations of
one L which did not speak of the beginning corner in express
words as a "gum," but that it was "right at the intersection
of" certain definite trails and a ridge, and the marked gum
was subsequently found where he had stated. The witness
had the calls of the tract of land read to declarant, and in
the calls was "the character of the tree." Held, evidence of
declarations sufficiently definite to designate the tree as the
beginning corner of the grant. Lumber Co. v. Triplett, 409.
3. Railroad Crossing-Employer and Employee-Custom.-Em-
ployees who are accustomed in large numbers to cross de-
fendant's railroad yards and a large number of its tracks in
going to and from their dinner at the noon hour, with the
knowledge and acquiescence of the defendant, cannot be
regarded as trespassers in so doing. Farris v. Railroad, 483.
4. Issues-Necessary Findings-Title-Fraud.-In an action for
trespass upon land involving the questions of title, fraud and
damages, the court submitted only one issue, to-wit, "What
damages, if any, are the plaintiffs entitled to recover?" The
Supreme Court disapproved of submitting the case to the

TRESPASS-Continued.

jury upon this single issue, though it seemed the cause was
tried upon its merits, and Held, that issues should be so
framed as to present for the consideration of the jury every
material controverted fact necessary to be found in order to
constitute a good cause of action or defense, so that the
appellate court can intelligently pass upon the questions of
law presented. Hatcher v. Dabbs, 133 N. C., 239, cited and
approved. Busbee v. Land Co., 513.

TRIAL JUDGE. See Courts, 3.

TRIALS. See New Trials.

TRUSTEE EX MALEFICIO. See Trusts and Trustees, 11.

TRUSTEES. See Bankruptcy, 1, 2, 3, 4.

TRUSTS.

1. Attachment-Illegal-Actionable Wrong-Procedure.-On mo-
tion to discharge an attachment where it appeared in the
affidavits filed that by flattering and deceptive statements
on the part of the principal defendants, the plaintiff had
been induced to subscribe and partly pay for certain shares
of corporate stock in a company formed to develop a certain
water power; that before said subscription was obtained and
without the knowledge of plaintiff said defendants had
formed a voting trust forbidden by the law, with the intent
to dominate and control the management and business affairs
of the company; and having thereby succeeded in obtaining
such management and control the said principal defendants
wrongfully formed a combination and conspiracy by means
of said illegal trust to exploit the enterprise for their own
personal advantage and profit and to plaintiff's injury; that
pursuant to such unlawful scheme, and with a view of ac-
quiring the company's assets, said defendants in the man-
agement of said company designedly and systematically
entered on a course of conduct by means of which said com-
pany was rendered insolvent and the value of plaintiff's
stock and holdings therein was destroyed. Held, that an ac-
tionable wrong was stated against defendants and of a kind
to uphold the validity of the order of attachment. Worth v.
Trust Company, 191.

2. Same. In attachment proceedings it is not now necessary
that the damages sought should only be for a wrongful con-
version of personal property or liquidated damages arising
under a contract or limited or defined by some standard or
data contained in the contract itself, but by the amendments
of the Code of 1883 and subsequent statutes, as shown in
Revisal, sec. 758, the remedy is also provided in actions for;
subdiv. 3: "Any injury to real or personal property in con-
sequence of negligence, fraud or other wrongful act"; sub-
div. 4: "Any injury to the person by negligence or wrong-
ful act." Ibid.

3. Same-Interpretation of Statutes.-Revisal, ch. 68, sec. 2831,
and subsec. 6, provides: That in the construction of all
statutes, unless a contrary intent is manifest, the term "per-

TRUSTS-Continued.

sonal property" shall include moneys, goods, chattels, choses
in action and evidence of debt, including all things capable
of ownership not descendable to the heirs at law, and apply-
ing such construction, sec. 758, subdiv. 3, Revisal, above
stated, authorizes the process of attachment in an action
for an unlawful combination and conspiracy to injure plain-
tiff, and by means of which plaintiff's subscription and hold-
ings in the corporation above indicated were rendered value-
less. Ibid.

TRUSTS AND TRUSTEES.

1. Partnership.-Partners stand in a fiduciary relationship to
each other, and ordinarily the rules and tests applicable to
trustees are applicable to their conduct towards each other.
Baker v. Brown, 12.

2. Limitations of Actions.-When one partner receives the assets
of the firm for the purpose of paying its debts and settling
its affairs he acts as a trustee or agent for his co-partner,
and when such relationship is shown to exist without evi-
dence that it had been terminated, it is not error to refuse
a motion to nonsuit under the plea of the statute of limi-
tions. Ibid.

-

3. Insurance - Title - Deeds · Beneficial Owner-Evidence.—A
deed from the insured to the property embraced in a policy
of fire insurance, the subject of the suit, having been put in
evidence by the defendant insurance company as a matter of
defense to show that the insured had concealed a material
matter concerning his title to the subject of the insurance,
it was competent for the insured to show that the grantee
agreed to take title and hold it solely in trust for the benefit
of the insured, and thus explain the quantity and quality
of his title and estate in the property. Modlin v. Insurance
Co., 35.

4. Parol Sole Beneficial Interests-Equitable Owner.-One who
is entitled under a parol trust to the entire beneficial interest
is the sole equitable owner of the property affected by the
trust. Ibid.

5. Superior Courts―Jurisdiction-Parol-Equity.-When it is al-
leged that plaintiff's deceased father had created a parol
trust under a deed in her favor in certain of his real and
personal property, and that he had subsequently executed
a paper-writing declaring the trusts, which defendants had
destroyed, the action is properly cognizable in the Superior
Court to enforce the trusts declared, whether the writing
be a deed or a will, and it can give relief in its equity juris-
diction; and leave given the plaintiff to probate the paper as
a deed or will, under penalty of dismissal, is erroneous. Ricks
r. Wilson, 46.

6. Mortgagor and Mortgagee-Sale, Defect in-Resale-Breach-
Damages.--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