CONTRIBUTORY NEGLIGENCE-Continued.
An employee will not be held to have assumed the risk in un-
dertaking to perform a dangerous work unless the act itself
is obviously so dangerous that in its careful performance
the inherent probabilities of injury are greater than those
of safety. Orr v. Telegraph Co., 691.
That certain parts of an instruction given on the issue of negli-
gence pertains more properly to the issue of contributory
negligence is not prejudicial to the defendant, if it oper-
ates, as in this case, more strongly against the plaintiff if
given on the nrst issue than on the second. Gordon v. Rail-
way Co., 565.
Where a person is injured as here, in attempting to extinguish
a fire negligently set to her premises by a railroad com-
pany, the company is liable. Burnett v. Railroad Co., 261.
In an action against a telegraph company for delay in delivering
a message, where the court charged that defendant would
have discharged its duty "if it tendered the telegram at
the mills where plaintiff was employed, and to which the
telegram was addressed, to an employee thereof having
access to the pay rolls, and who refused to receive the
same, telling defendant that plaintiff was not employed
there, and defendant then inquired of a boy in the millyard,
at the post office, at the city directory, and also sent a
service message," it was error to add, "and used the dili-
gence that one of ordinary prudence would have exercised
under the circumstances." Hinson v. Telegrah Co., 460.
Where the wife delivers to a telegraph company a message for
her husband to come home as "Ira" was sick, but in trans-
mission the name was changed to "Car.," and on receipt
of the message the husband requests the agent of the
company to ascertain from the relay office whether the
message was correct, and was informed that it was correct,
the plaintiff husband having a child named Ira and a
nephew named Carl, and thinking that it was his nephew
that was sick did not return home until after receiving a
message the next day of the death of his child, under these
facts is not guilty of contributory negligence. Efird v. Tele-
graph Co., 267.
In an action against a telegraph company to recover damages
for a delay in delivering a message, where the plaintiff,
on receiving the delayed message announcing the death of
his mother, at a time when the only train by which he
could have reached his mother's residence and attended
the funeral was scheduled to leave immediately, telephoned
DIW TRIBUTORY NEGLIGENCE-Continued.
to the railroad station and, on being erroneously informed
that the train was on time, made no effort to take it, which
he could have done if he had been correctly informed that
it was two hours and a half late, the telegraph company, in
an action for negligence in delivering the message, was en-
titled to an instruction that, if plaintiff was misinformed as
to the time when the train left, then the negligence of the
defendant, if any, was not the proximate cause of plaintiff's
injury, and no damage could be assessed on account of
plaintiff's failure to reach the funeral. Higdon v. Telegraph
Co., 726.
CORPORATIONS. See "Banks and Banking;" "Eminent Domain;"
"Stock;" "Subscriptions."
Where plaintiff alleged that defendant was a corporation, duly
incorporated, and defendant alleged that such allegation
was untrue, and that the defendant was also incorporated
under the laws of this State, but failed to plead any statute
of incorpation, its allegation was insufficient to raise the
issue of its corporate capacity. Norris v. Water Co., 182.
A judgment against an insolvent corporation for money had and
received merely establishes the debt and does not give
the judgment creditor preference over other crditors.
Lacy v. Asso., 131.
An action brought by creditors of a bank within 60 days of
the filing of an assignment for the benefit of creditors, to
recover their debt avoids such an assignment. Fisher v.
Bank, 769.
The filing and recording by the secretary of state of articles of
association of a proposed railroad company, if not such
as required by law, is a nullity. Railroad Co. v. Stroud, 413.
A corporation cannot justify an unwarranted act by a reference
to a charter granted to its predecessor, irrevocable without
the consent of the State, where the record does not show
that the State has ever consented to a transfer from such
an alleged predecessor. Pinnix v. Canal Co., 124.
CORROBORATIVE EVIDENCE. See "Evidence."
Where witnesses give testimony corroborative of another wit-
ness, such testimony also being itself substantive evidence,
an instruction that this evidence can be considered only
as corroborative or contradictory of such other witness is
erroneous. Edwards v. Railroad Co., 99.
COSTS.
When an appellee directs a clerk to send up certain evidence,
not included in the case on appeal, and not necessary for
the determination of the appeal, the costs thereof will.
taxed against him. Harris v. Davenport, 697.
Where a clerk of a superior court fails to send up a judgment in
the transcript on appeal, the Supreme Court may refuse
to allow him the costs for making and sending up the same.
State v. Crook, 1053.
COUNTER CLAIM.
In an action for damages to land a proceeding for the condem-
nation of an easement cannot be set up as a counter claim.
Leigh r. Garysburg Mfg. Co., 167.
COUNTIES.
A county cannot be sued for trespass upon land or for any other
tort in the absence of statutory authority. Hitch v. Com'rs,
573.
A board of county commissioners may employ an attorney for
the term for which it is elected. Hancock v. Com'rs, 209.
COUNTY COMMISSIONERS.
A board of county commissioners may employ an attorney for
the term for which it is elected. Hancock v. Com'rs, 209.
If the commissioners of a county take land for a highway with-
out authority of law they are liable therefor individually.
Hitch v. Com'rs, 573.
A board of county commissioners cannot release a surety from
the official bond of a sheriff, and any other bond they may
take will be cumulative during any one term of office.
Fidelity Co. v. Fleming, 332.
COURTS.
The power is inherent in every court to correct its record so as
to speak the truth. Ricaud v. Alderman, 62.
COVENANTS. See "Assignments."
A covenant of warranty in a void deed is of no avail to a remote
grantee, there being no assignment thereof to him. Smith
v. Ingram, 956.
An action by the assignor of the owner of an easement, who
held the easement on the condition that he would keep up
a dam, for the purpose of restraining a servient landowner
from using more water than he was entitled to, does not
establish the liability of the assignor of party owning the
easement to keep up the dam. Barringer v. Trust Co., 409.
The reconveyance of land by a mortgage by the grantee to
grantor does not extinguish the covenant of warranty in the
deed, and a purchaser at a sale under the mortgage is pro-
tected by the covenant in the original deed. Wiggins v.
Pender, 628.
A covenant of warranty in a deed inures to the benefit of the
assignee of the grantee, though the word assign is not used
in the warranty. Wiggins v. Pender, 628.
In an action by the assignee of a grantee in a warranty deed
against the administrator of the grantor, the assignee may
recover though no real assets descended to the heirs of the
grantor. Wiggins v. Pender, 628.
Where a covenant for title is regarded as an estoppel affecting
the title, it must be governed by the law of the State in
which the property is situated. Smith v. Ingram, 956.
A judgment for possession and profits in favor of a prior grantee
from the common source of title is a sufficient eviction to
entitle a person to sue for breach of a warranty of title in
the common grantor's deed, under which plaintiff claimed.
Wiggins v. Pender, 628.
The statute of limitations does not begin to run on a breach of
covenant of warranty in a deed for land until after eviction.
Wiggins v. Pender, 628.
Where a grantee in a warranty deed is evicted, and did not give
the grantor notice of the suit, he cannot in an action on the
breach of warranty recover of the grantor counsel fees
necessary for defending the title. Wiggins v. Pender, 628.
CRIMINAL LAW. See "Abandonment;" "Appeal;" "Arguments of
Counsel;" "Assault and Battery:" "Declarations"; "Excep-
tions and Objections;" "Expert Evidence;" "Highways;” “In-
dictment:" "Insanity;" "Harmless Error:" "Intent;" "Im-
peachment of Witness;" "Instructions;" "Intoxicating Li-
quors; "Jury;" "Malicious Prosecution:" "Landlord and
Tenant;" "olle Prosequi;” "License;" "Peddlers;" "Perjury;"
"Rape;" "Seduction;" "Slander;" "Verdict."
CROPS.
If a tenant aids and abets a subtenant in removing a crop,
before paying the lien of the landlord, he is guilty of a
misdemeanor. State v. Crook, 1053.
Hay is ordinarily embraced in the word "crop" as used in Sec.
1754 of The Code. But not, it seems, when it is merely a
spontaneous growth as crab grass, sprung up after another
crop is housed. State v. Crook, 1053.
CROSSINGS. See "Negligence;" "Railroads."
CURTESY.
Since the Constitution of 1868 a married woman may by will
deprive her husband of curtesy in her separate estate.
Hallyburton v. Slagle, 947.
Ꭰ
DAMAGES. See "Contributory Negligence;" "Negligence.”
The fact that the method prescribed for assessing the damage
caused by taking land for the construction of a sewage plant
was illegal is not ground for restraining the construction of
the plant. Vickers v. Durham, 880.
In an action for damages for trespass on realty, a lessee is en-
titled to damages accruing up to the trial. Dall v. Rail-
road, 705.
The editor of a newspaper riding on a pass issued contrary to
the law cannot recover for injuries received through the
negligence of the carrier. He can recover only for in-
juries which are inflicted wilfully and wantonly.
v. Railroad, 510.
McNeill
A private corporation is not entitled to condemn land for a
tramway solely for its own use and have permanent dam-
ages assessed therefor, except to obtain a temporary ease-
ment ex necessitate. Leigh v. Garysburg Mfg. Co., 167.
A canal is liable for unlawfully damaging the lands of an ad-
jacent landowner, even though such work is not negligently
done. Pinnix v. Canal Co., 124.
No act or omission, though resulting in damage, can be deemed
actionable negligence unless the one responsible could, by
the exercise of ordinary care, under all the circumstances,
have foreseen that it might result in damage to some one.
Frazier v. Wilkes, 437.
The findings of fact by the referee in this case, sustain the con-
clusions of law, that the time for the completion of work
was impliedly and necessarily enlarged, that plaintiffs are
guilty of no unnecessary delay, that defendant cannot re-
cover 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 v.
Cotton Mills, 432.
An administrator whose sale of realty is set aside by an heir
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