CLAIM AND DELIVERY-Continued.

the penalty for any other default of his principal in the
payment of costs and damages. Hendley v. McIntyre, 276.

In replevin by a mortgagee for a safe, where defendant did not
allege that he was the owner of the safe, or a purchaser
for value from the mortgagor, he cannot avail himself, in
defense, of the action of the mortgagee in partially releas-
ing, to defendant's prejudice, a judgment obtained by the
mortgagee against the mortgagor, sufficient to pay the claim
for which the mortgage was given. Graves v. Currie, 307.
CLERKS OF COURTS.

Where a clerk of the superior court refuses to issue an execu-
tion against the person of a judgment debtor, an appeal
therefrom may properly be taken to the resident judge of
the district. Huntley v. Hasty, 279.

Where an appellant pays the fees for the return and docketing
of an appeal from a justice of the peace, the appeal will not
be dismissed for the failure of the clerk of the superior
court to docket the same under The Code, Secs. 878--880.
Johnson v. Andrews, 376.

COLLATERAL ATTACK.

In an indictment against a person for failure to work a public
road the order of the county commissioners laying out said
road is competent evidence to show the establishment of
suuch road and such judgment cannot be collaterally at-
tacked. State v. Yoder, 1111.

COLOR OF TITLE. See "Ejectment."

An unregistered deed is not color of title. Collins r. Davis, 106.
COMMERCIAL PAPER. See "Negotiable Instruments."

COMMISSIONS.

When a trustee in a deed of trust sells property, the fees of an
auctioneer must be paid by the trustee out of his own com-
missions. Duffy r. Smith, 38.

A statement by a trustee in a deed of trust that the amount
due thereunder is the principal and interest does not estop
him from afterwards receiving the commissions stipulated in
the deed of trust. Duffy v. Smith, 38.

COMPLAINT. See "Pleadings."

The complaint for an injunction must set out such specific facts
as will enable the court to see that the apprehended dam-
ages will be irreparable. Porter v. Armstrong, 66.
CONCEALED WEAPONS. See "Carrying Concealed Weapons."
Vol. 132-74

CONFESSIONS. "See Evidence."

Any admission or confession made by a prisoner while under
oath before a committing magistrate, whether reduced to
writing or not, or made in the presence of witnesses, should
not be received in evidence. State v. Parker, 1014.

CONSIGNMENT. See "Agency."

CONSTITUTION OF NORTH CAROLINA.

Art. 1, Sec. 11. Indictment. State v. Cole, 1073.

An appeal in a criminal action wil not be continued in the
supreme court for the reason that a civil action for the same
offense is pending in the superior court. State v. Mehaffey,
1062.

CONTRACTS. See "Carriers"; "Indemnity Contracts."

The parol authority to negotiate a sale of real estate does not
imply authority to receive payment therefor. Smith t.
Browne, 365.

The authority of an agent to sell real estate need not be in
writing. Smith v. Browne, 365.

Where a carrier contracts to transport a circus and is indem-
nified by the circus company against any loss sustained by
injury to the employees of the circus, the carrier is not
thereby relieved of its liability for negligent injuries to such
employees. Railroad v. Main, 445.

Where it appears from the evidence of the plaintiff that he
when an orphan child had lived with his uncle as a mem-
ber of his family and had grown up in this relationship, he
is not entitled to recover compensation for services per-
formed for his uncle. Hicks v. Barnes, 146.

A contract allowing a timber company to construct and use a
tramway on land of plaintiff for carrying away timber from
land of plaintiff and any other timber that they may find
convenient to move for five years does not authorize the
use of the tramway for carrying other timber after the
expiration of the five years. Leigh v. Mfg. Co., 167.

The findings of fact by the referee in this case, sustain the
conclusions of law, that the time for the completion of the

work was impliedly and necessarily enlarged, that plain-
tiffs are guilty of no unnecessary delay, that defendant can
not recover damages for failure to complete the work at
the time specified, and that the defendant is indebted to
plaintiffs in the sum found due by the referee, for work
and labor in excavating and lowering the bed of a tail
race. Malloy r. Cotton Mills, 432.

Where a writing is attached to a contract and is referred to
in the contract, it thereby becomes a part of the contract.
Fire Extinguisher Co. v. Cotton Mills, 424.

Where a party has a copy of a contract, with a written agree-
ment thereto, and allows certain work to be performed
under the attached agreement, he thereby recognizes the
attached writing as a part of the contract. Fire Extinguisher
Co. v. Cotton Mills, 424.

A contract between two legatees whereby one of them agrees
to pay a bequest to the other is void. Mitchell v. Mitchell,
350.

Mutual promises of several subscribers to contribute to a fund
to be raised for a specified object in which all feel an inter-
est are a sufficient consideration to make such subscription a
valid contract. Baptist University v. Borden, 477.
Where the minds of two contracting parties do not come to-
gether, there is no special contract. Burton v. Mfg. Co., 17.
A plaintiff may declare on a special contract and join there-
with a cause of action as on a quantum meruit. Burton v.
Mfg. Co., 17.

A contract for the sale of brick, two-thirds hard and one-third
soft kiln run, does not require the purchaser to take the
brick if the proportion is more than one soft for two hard
brick, and if the proportion of soft brick delivered is great-
er he is entitled to an abatement from the price. Shute v.
Cotton Mills, 271.

Where a contract for the sale of lumber provides that it shall
be graded according to the rules of a certain association,
a witness who states that he is not familiar with such
rules should not be allowed to testify as to the grade of
the lumber. Bray v. Lumber Co., 695.

In an action to recover salvage for saving a vessel, a defense
that a contract is ultre vires is in the nature of a plea of
confession and avoidance and must be specially pleaded.
Lewis v. Steamship Co., 904.

When the complaint alleges a contract to superintend certain

CONTRACTS-Continued.

work for a certain per cent. of the cost thereof and the
answer denies the allegations of the complaint and sets
up a special contract, the burden is on the defendant to
prove the contract as alleged by him. Burton v. Mfg. Co., 17.
The rule that parol agreements are merged in a written con-
tract is not applicable where a written contract was by
fraud or mistake executed differently from the terms of
agreement. Gwaltney v. Ins. Co., 925.

A deed conveyed standing timber to a trustee, who was to
permit defendant, on payment of a certain sum, to cut the
timber, and afterwards, on measurement of the wood, and
payments by defendant of a certain price per cord, to
convey the wood to him. The trustee agreed to allow
defendant to remove the wood as fast as cut without pre-
payment-it to be paid for as soon as measured by the
person to whom defendant sold. The title to the wood
did not pass to defendant until it was removed by him, so
that he was not liable for wood burned while awaiting
shipment. Porter v. Bridgers, 92.

CONTRIBUTORY NEGLIGENCE. See "Negligence"; "Railroads";
"Damages".

Where an employee undertakes to do something which it is
not his duty to do, he thereby assumes the risk. Hamrick
v. Quarry Co., 282.

In an action for damages for personal injuries, it is not neces
sary for the jury to pass on the issue as to the last clear
chance where they find the defendant was negligent and
the plaintiff was not guilty of contributory negligence.
Harris v. Railroad, 160.

It is not negligence per se for a person to go upon a railroad
bridge, but it is some evidence of contributory negligence.
Harris v. Railroad Co., 160.

A passenger who voluntarily goes upon the platform of a mov-
ing train for the purpose of alighting at the station and
is injured by reason of a jerk in the train is not entitled
to recover therefor. Denny v. Railway Co., 340.

In this action for personal injuries, the evidence is sufficient
to justify the finding by the jury that the defendant is
guilty of negligence and the plaintiff not guilty of contrib-
utory negligence. Pharr v. Railroad Co., 418.

In an action for personal injuries, evidence being offered by
the defendant to show contributory negligence and no evi-

DIWONTRIBUTORY NEGLIGENCE-Continued.

dence being offered by the plaintiff on that issue, such
question is for the jury. Pharr v. Railroad Co., 418.

In this action to recover damages for a failure to deliver a
telegram, the evidence does not show contributory negli-
gence on the part of the plaintiff. Meadows v. Telegraph
Co., 40.

The plaintiff's intestate was walking along a railroad track
with a companion in the day time, which was commonly
used by the people in that vicinity as a footpath, was
warned of a train approaching from the rear, which she
Icould have seen and heard, and answered the warning in-
dicating that she knew of its approach. The whistle was
blown and the bell rung, but intestate failed to leave the
track, whereupon she was struck and killed. Upon which
testimony a nonsuit was properly granted. Bessent v. Rail-
road, 434.

The fact that an employee remains in the service of a railroad
company, knowing that its cars are not equipped with self-
couplers, does not excuse the railroad from liability to such
employee, if injured while coupling its cars by hand. El-
more v. Railroad, 865.

The failure of a railroad company to have self-coupling devices
on their cars is a continuing negligence; and, to an action
for an injury resulting therefrom, contributory negligence
is not a defense. Elmore v. Railroad, 865.

In an action by a brakeman for damages for personal injuries,
there can be no recovery where the injury was caused, not
by a defective coupler, but because plaintiff negligently
used his foot to push the bumper in place. Elmore v. Rail-
road, 865.

Where an answer alleges that the death of the intestate was
caused by his own negligence and not by any negligence
of the defendant, such allegation is not a sufficient plea
of contributory negligence. Cogdell v. Railroad, 852.
Where an employee of a railroad company rides on the steps
of a shanty car against the rules of the company, which
rules he had seen, and is injured, the company is not liable,
there being room for him inside the car and his duty not
requiring him to be on the steps. Howard v. Railroad, 709.
The evidence in this case is sufficient to be submitted to the
jury upon the issues of negligence of defendant, contribu-
tory negligence of plaintiff and the proximate cause of the
injury. Smith v. Railroad, 816.