II. DOCKETS, LISTS, AND CALENDARS.

§ 11 (S.C.) The order in which legal and equitable issues in the same cause shall be tried is discretionary; and, where the issues are partly legal and partly equitable, it is not error to deny a motion to send the case to a master, although the legal questions must be determined on the law side of the court.-Beal v. Divine, 76 S. E. 987.

V. ARGUMENTS AND CONDUCT OF COUNSEL.

$127 (N.C.) In a personal injury action against a master, where the complaint charged a casualty company's liability to plaintiff, held, that it was not error for the court to permit the reading of plaintiff's complaint charging such company with liability, even though the action as to such company was subsequently dismissed on defendant's motion. Menefee V. Riverside & Dan River Cotton Mills, 76 S. E. 741.

VI. TAKING CASE OR QUESTION FROM JURY.

(A) Questions of Law or of Fact in General.

(D) Direction of Verdict. § 178 (S.C.) It is the policy of the law to hear causes fully on their merits and not to dismiss them unheard, and he who claims that a cause cannot be heard must show the facts upon which he would send a claimant out of court unheard.-North River Ins. Co. v. Southern Ry. Co., 76 S. E. 1095.

VII. INSTRUCTIONS TO JURY. (A) Province of Court and Jury in General.

$194 (Ga.App.) An instruction that a street railway is bound to stop its cars at points of destination a reasonable time to enable passengers to get off in safety held not objectionable negligence.-Augusta-Aiken Ry. & Electric Corporation v. Sibert, 76 S. E. 1044.

as an instruction that certain facts constitute

that plaintiff could not by ordinary care and An instruction that, if the jury were satisfied diligence have avoided the injury to herself, she would be entitled to a verdict, was not objectionable as stating what facts constituted negligence.-Id.

S. E. 553.

$194 (N.C.) Mathematical computations in a charge on the measure of damages was not a usurpation of the powers of the jury, where the court charged that his figures should not be accepted as they might be incorrect, but were used merely as an example.-Speight v. Seaboard Air Line Ry., 76 S. E. 684.

$194 (S.C.) A charge that a failure to de

$143 (N.C.) On motion for nonsuit, a conflict of evidence requires submission to the jury, however favorable the evidence may be to defendant's view of the case.-Osborne v. Southern Ry. Co., 76 S. E. 16.

(B) Demurrer to Evidence. $156 (Va.) Where the evidence of plaintiff's alleged contributory negligence is conflicting, and defendant, by demurring to the evidence withdraws that question from the jury, the court must find plaintiff not guilty of contributory negligence if the jury might have so found.-Southern Ry. Co. v. Darnell's Adm'x, 76 S. E. 291.

$156 (Va.) Where the jury may find defendant guilty of negligence and decedent free from contributory negligence, the court must so find on demurrer to the evidence.-Southern Ry. Co. v. Tyree's Adm'r, 76 S. E. 341.

(C) Dismissal or Nonsuit.

$ 165 (N.C.) The court, on motion to nonsuit, must view the evidence in the light most favorable to plaintiff, and cannot act on the portions of the testimony of a witness sustaining the contention of defendant, though it may impair the force of other statements made by him.-Poe v. Western Union Telegraph Co., 76 S. E. 81.

$165 (N.C.) Where a nonsuit is directed, the evidence must be considered in the light most favorable to the plaintiff and with the most favorable inference that the jury could reasonably draw therefrom.-Kelly v. Yadkin River Power Co., 76 S. E. 261.

$165 (N.C.) A defendant may avail himself of his plea of contributory negligence on motion to nonsuit, where the facts are undisputed and arise on plaintiff's evidence.-Thompson v. Pur

explanation is some evidence upon which the jury may base a verdict for punitive damages is only a statement of a proposition of law, and is not objectionable as a charge on the facts.-Bush v. Western Union Telegraph Co., 76 S. E. 197.

$194 (S.C.) In an action for damages from mental anguish from delay of a telegram, a charge that it did not relate to sickness was a charge on the facts.-Graham v. Western Union Telegraph Co., 76 S. E. 200.

$194 (S.C.) An instruction, stating in a concrete way that if the proof showed due care in the particulars mentioned therein, and due care generally by defendant's motorman, plaintiff could not recover, held not a charge on the facts.-Berger v. Charleston Consol. Ry., Gas & Electric Co., 76 S. E. 1096.

(B) Necessity and Subject-Matter. $203 (Ga.App.) It is the duty of the trial judge to submit to the jury all the issues raised by pleadings and the evidence.-Savannah Electric Co. v. Johnson, 76 S. E. 1059.

$203 (N.C.) Defendant cannot complain that the trial court, after instructing on plaintiff's theory, failed to state with sufficient fullness the correlative position tending to sustain the defense, where there were very few facts tending to excuse defendant, and they were properly covered by the instructions.-Ward v. North Carolina R. Co., 76 S. E. 717.

(C) Form, Requisites, and Sufficiency. § 232 (N.C.) Where plaintiff alleged an unconditional contract, while defendant averred that the contract contained conditions which had not been met, it was not error to instruct the jury to answer "No" to the issue presented by plaintiff, if it found that the contract was conditional as claimed by defendant.-Todd v. Mackie, 76 S. E. 245.

§ 234 (Ga.) A charge that the jury could

closed by the evidence in determining whether defendant's agents were negligent was not error.-Central of Georgia Ry. Co. v. Stiles, 76 S. E. 570.

§ 236 (Ga.) It is error to instruct that the jury may believe witnesses having the best means of knowing the facts and the least inducement to swear falsely, without the qualification that the witness in all other respects is equally credible.-Nashville, C. & St. L. Ry. v. Paris, 76 S. E. 357; Same v. Hubble, Id.

1009.

§ 252 (S.C.) In an action against a telegraph company for a failure to deliver a message, in which the plaintiff testified that she suffered mental anguish, a charge that no mental an guish could be presumed held properly refused. -Bush v. Western Union Telegraph Co., 76 S. E. 197.

§ 253 (Ga.App.) The contention that the defense that injury to a passenger was due to accident was not presented cannot be sustained where the judge referred to it three times, though he told the jury that if plaintiff was injured while a passenger, and could not by ordinary care have avoided the injury, she would be entitled to recover, unless the carrier rebutted the presumption of negligence.-AugustaAiken Ry. & Electric Corporation v. Sibert, 76 S. E. 1044.

(E) Requests or Prayers.

$ 255 (N.C.) In an action for breach of defendant's contract to sell plaintiff land involved in a pending suit between defendant and another, provided defendant could get it by compromise in such suit, held that, if plaintiff desired a specific charge on whether defendant's compromise with the other party by which defendant surrendered the land was a fraud for the purpose of evading his contract with plaintiff, he should have asked for it. Todd v. Mackie, 76 S. E. 245.

$256 (S.C.) A party who desires more specific instruction on a point than that given must request it.-Osteen v. Atlantic Coast Line R. Co., 76 S. E. 25.

§ 257 (N.C.) Requests cannot be filed after argument commences without leave of court.Holder v. Giant Lumber Co., 76 S. E. 485.

§ 260 (Ga.App.) Where the judge has fully instructed the jury that, if they believe the parties did not, at the time the contract was executed, contemplate actual delivery, but that the contract was a mere speculation on chances, it would be void, it was not error requiring a new trial to refuse a charge simply elaborating the principle, and which was argumentative.-Luke v. Batts, 76 S. E. 165.

(G) Construction and Operation. § 285 (N.C.) Instructions must be read in view of the facts.-Penn v. Standard Life Ins. Co., 76 S. E. 262.

$295 (N.C.) Instructions must be construed a whole.-Penn v. Standard Life Ins. Co., 76 S. E. 262.

as

$295 (N.C.) Each portion of the court's charge must be construed with reference to what precedes and follows it.-Burroughs v. Burroughs, 76 S. E. 478.

$295 (N.C.) In determining whether there was error in a charge, it should be considered as a whole, instead of considering the portions excepted to alone.-Speight v. Seaboard Air Line Ry., 76 S. E. 684.

§ 295 (N.C.) An erroneous instruction as to the measure of damages in condemnation proceedings held not prejudicial when construed with the charge as a whole.-Madison County Ry. Co. v. Gahagen, 76 S. E. 696.

if the instructions, when read as a whole, could $295 (Va.) A verdict will not be disturbed not have misled the jury, though one or more Co. v. McCarthy, 76 S. E. 319. of them were defective.-Chesapeake & O. Ry.

$296 (Ga.) An instruction that mere weakness of mind, if a person be legally compos mentis, is no ground for setting aside a contract, is not cause for new trial, in view of a charge that, if the mortgagor had strength of mind sufficient to clearly understand the nature of her act, the jury might find she had sufficient capacity to make a binding contract.Bryan v. Bryan, 76 S. E. 563.

jury were satisfied that plaintiff could not by $ 296 (Ga.App.) An instruction that, if the ordinary care have avoided the injury to herself, she would be entitled to recover, was not objectionable as excluding other defenses set up by defendant, where those defenses were fully dealt with in other instructions.-Augusta-Aiken Ry. & Electric Corporation v. Sibert, 76 S. E. 1044.

§ 296 (Va.) A misleading instruction as to contributory negligence of a fireman held_cured by another instruction.-Chesapeake & O. Ry. Co. v. McCarthy, 76 S. E. 319.

IX. VERDICT.

(A) General Verdict.

§ 328 (Ga.App.) When suit is brought against two or more as joint tort-feasors, a verdict may be returned against one only.-Southern Bell Telephone & Telegraph Co. v. Davis, 76 S. E. 786.

$336 (Ga.App.) One who exchanged a mule and his note for a horse on false representations may recover the value of the mule and have restitution of the note; and a recital in the verdict that the note be canceled may be treated as surplusage.-Davis & Co. v. Preston, 76 S. E. 766.

XI. WAIVER AND CORRECTION OF IRREGULARITIES AND ERRORS.

§ 417 (W.Va.) The defendant cannot take advantage of a motion to exclude plaintiff's evidence, if he introduces evidence after the motion is overruled.-Robinson v. City & E. G. R. Co., 76 S. E. 851.

(C) Evidence.

OF TRUST PROPERTY. $191 (N.C.) Where a testamentary trust provided that if the trustee deemed best it should sell the property and convert it into money and receive the proceeds to invest and reinvest, as often as, and in the manner, it saw fit, the trustee had power to dispose of any part of the trust fund to pay the inheritance tax.-Shaw v. Bridgers, 76 S. E. 827. UNITED STATES.

See Public Lands, § 61.

USURY.

(D) Damages.

TRUST DEEDS.

See Mortgages.

TRUSTS.

See Adverse Possession, $$ 4, 55; Criminal Law, $ 406; Execution, § 41: Specific Performance, § 86: Taxation, §§ 8862, 896; Wills, $$ 629, 674.

Voting trust, see Banks and Banking, § 246.

I. CREATION, EXISTENCE, AND VALIDITY.

(A) Express Trusts.

§ 12 (W.Va.) "Spendthrift trusts" are trusts created to provide a fund for the maintenance of another, and to secure the fund against the cestui que trust's improvidence or incapacity, for self-protection.-Hoffman v. Beltzhoover, 76 S. E. 96S.

$$ 17, 18 (W.Va.) A parol trust cannot be asserted by a grantor against the letter of his deed.-Neill v. McClung, 76 S. E. 878.

$ 28 (W.Va.) To create a spendthrift trust. it is not essential that the instrument denominate the beneficiary a spendthrift, or give reasons for creating the trust, or contain all restrictions incident thereto, or an express declaration that the interest of the beneficiary shall be beyond the reach of creditors.-Hoffman v. Beltzhoover, 76 S. E. 968.

and

I. USURIOUS CONTRACTS AND

TRANSACTIONS.

(A) Nature and Validity.

§ 68 (N.C.) A settlement of a prior usurious agreement is lawful, and the debtor is entitled to the amount he so receives.-H. L. Beck & Co. v. Bank of Thomasville, 76 S. E. 722.

(B) Rights and Remedies of Parties. $95 (N.C.) Equity will eliminate usury only upon the debtor's paying the principal and legal interest; the rule applying to all classes of persons, and Pub. Laws 1907, c. 110 (Revisal 1908, § 3712a), making one who loans terest, etc., guilty of a misdemeanor, etc., not money upon household furniture at illegal inchanging such rule.-Owens v. Wright, 76 S. E. 735.

$1 (N.C.) Complaint in an action to recover usury held not to show that a specified payment was usurious, and plaintiff was only entitled to have such payment credited on the principal sum due.-Ervin v. First Nat. Bank, 76 S. E. 529; Williams v. Same, Id. 531. II. PENALTIES AND FORFEITURES.

$146 (N.C.) A bank requiring a debtor to renew indebtedness from time to time, and to pay interest thereon in advance at 8 per cent., guilty of usury, and the indebtedness bears no or at times a little more than 7 per cent., is interest.-Ervin v. First Nat. Bank, 76 S. E 529; Williams v. Same, Id. 531.

VACATION.

See Executors and Administrators, § 32; Highways, § 75; Judgment, § 90.

VALUE.

(B) Estate or Interest of Trustee and of Cestui Que Trust.

§ 134 (Ga.) A deed of trust held to vest the legal title in the fee in the designated trustee, so that the trustee represented every possible life estate, as well as the estate in remainder. -Jones v. Rountree, 76 S. E. 55.

$135 (N.C.) Devise in trust to collect rents and pay to beneficiary after deducting taxes and repairs held to constitute an active trust. -Lummus v. Davidson, 76 S. E. 474.

§ 140 (Ga.) A deed of trust held to create a life estate for the first beneficiary during the joint lives of himself and grantor.-Jones v. Rountree, 76 S. E. 55.

A deed of trust held to create several contingent estates.-Id.

Surviving children of a beneficiary in a trust deed held to have acquired on her death an equitable estate in remainder.-Id.

VARIANCE.

See Pleading, § 399.

VENDOR AND PURCHASER.

See Assignments, § 19; Dedication, $$ 19, 51; Ejectment, $$ 74, SS; Estoppel, § 118: Evidence, § 183; Fraud, § 9; Husband and Wife, § 14; Judicial Sales; Partnership, 327; Sales; Specific Performance; Wills, 674.

II. CONSTRUCTION AND OPERATION OF CONTRACT.

$ 79 (N.C.) Where plaintiff's contract to pur chase land from defendant imposed the condition that defendant recover it in a pending suit, but provided that defendant might surrender the land in settlement of the suit, plaintiff cannot claim a breach if defendant surrendered the land as contemplated.-Todd v. Mackie, 76 S. E. 245.

III. MODIFICATION OR RESCISSION OF CONTRACT.

(B) Rescission by Vendor.

§ 97 (Ga.App.) There can be no rescission of a contract for the sale of land, unless the vendors notified the holder of the bond for title of their purpose to rescind and tendered the amount previously paid.-Buck v. Duvall, 76 S. E. 1053.

IV. PERFORMANCE OF CONTRACT. (D) Payment of Purchase Money.

§ 170 (Ga.) Tender of the balance of the price is excused, if the vendor indicates by conduct or declaration that the tender, if made, will be refused.-Miller v. Watson, 76 S. E. 585.

§ 185 (W.Va.) Where, the vendor being unable to convey a good title to part of the land, the vendee failed to elect to take such title with an abatement of the price, and refused to pay the price in default of a perfect title, after a reasonable time and an application for specific performance, the vendor was entitled to sell to another who would take a good title though with notice of the prior contract.-Neill v. MeClung, 76 S. E. 878.

V. RIGHTS AND LIABILITIES OF PARTIES.

(A) As to Each Other.

§ 189 (W.Va.) The rule that a vendee of land under executory contract cannot deny his vendor's title does not apply, where the vendee was already in possession and his subsequent contract was made to perfect his title with one who had in fact no title.-Buffalo Coal & Coke Co. v. Vance, 76 S. E. 177.

$ 190 (W.Va.) The rule that the purchase of an outstanding title will inure to the benefit of the vendor does not apply, where the vendee was already in possession and his subsequent contract was made to perfect his title with one who had in fact no title.-Buffalo Coal & Coke Co. v. Vance, 76 S. E. 177.

$193 (Ga.App.) A vendee in possession under a bond for title may cut and sell timber. Buck v. Duvall, 76 S. E. 1053.

$ 203 (S.C.) Where the buildings on land burned before the first payment under a contract of sale, and before the execution of a deed, and while the purchaser was in possession merely as a member of a firm paying rent, without the right to exercise ownership, the loss of the property fell upon the vendor.-Good v. Jarrard, 76 S. E. 698.

(B) As to Third Persons in General.

§ 219 (Ga.) A complaint by the assignor against the assignee of an option contract to purchase land, for breach of the contract of assignment by payment of a sum to the vendor which the assignor claimed should have been paid to him, held subject to general demurrer. Dickey v. Comer, 76 S. E. 1017.

(C) Bona Fide Purchasers. $229 (N.C.) A purchaser of land is bound to take notice of an apparent dedication of a

street across the land.-Green v. Miller, 76 S.

E. 505.

$231 (N.C.) A docketed judgment is notice to a purchaser from the judgment debtor that all his land is subject to the lien of the judgment.-Crouch v. Crouch, 76 S. E. 482.

$239 (N.C.) Bona fide purchaser for value and without notice of a dedication to individuals or to the public take it free from such rights.-Green v. Miller, 76 S. E. 505.

$240 (S.C.) A plea of bona fide purchaser when relied on as a defense must be pleaded.Carr v. Mouzon, 76 S. E. 201.

$242 (S.C.) In a railroad's action to enjoin alleged occupation of its right of way, acquired by misrepresentation of the agent of its predecessor in title, plaintiff had the burden of proving that it was a bona fide purchaser for value without notice.-Atlanta & C. A. Ry. Co. v. Victor Mfg. Co., 76 S. E. 1091.

$ 244 (N.C.) Evidence held to show that neither defendant nor his grantor was chargeable with notice that a former owner had sold lots to plaintiffs with reference to a plan showing a street.-Green v. Miller, 76 S. E. 505.

VI. REMEDIES OF VENDOR.

(A) Lien and Recovery of Land. $253 (S.C.) Covenants to convey land and to pay the purchase money are mutual, and the agreement is an "executory contract," conferring on the vendor a lien by contract or reservation, but not a vendor's lien, to support which title must pass to the purchaser.-Good v. Jarrard, 76 S. E. 698.

$279 (Ga.) In an equitable proceeding by the holder of purchase-money notes, the petition alleging that the original vendee was insolvent, it was proper to join as defendants the original vendee and subsequent purchasers, who assumed payment of the purchase money.-J. P. Williams Co. v. American Tie & Timber Co., 76 S. E. 675.

In an equitable proceeding by the holder of purchase-money notes against the original vendee and subsequent purchasers, the petition, showing that the last purchaser made a defendble for failure to join the latter, where there ant had conveyed to another, was not demurrawas no allegation that he assumed the indebtedness.-Id.

(B) Actions for Purchase Money.

§301 (Ga.App.) A vendor may proceed against the vendee to recover the unpaid purchase price by a sale of the premises under a judgment therefor, or may recover possession by buying in the land at a sale under the levy of a fi. fa. for the unpaid portion of the price.-Buck v. Duvall, 76 S. E. 1053.

$310 (W.Va.) One who pays off a prior lien on land purchased by him to protect his title may set off the amount so paid as against his purchase-money notes in the hands of the vendor, and then against those assigned in the inverse order of assignment.-Digman v. West, 76 S. E. 561.

Where a purchaser pays off prior liens to protect his title, neither failure to claim the right of set-off in response to notice of assignment of purchase money notes, nor payment after notice of assignment, nor insolvency of the assignor, would bar the purchaser's right of set-off.-Id.

Where a purchaser paid a prior lien with costs of suit brought to enforce it, he is not entitled to set off the costs against his purchase-money notes, in the absence of evidence that he could not safely pay off the lien without an adjudication.-Id.

§316 (Ga.App.) Where the vendors terminate price at law or selling the land under a fi. fa., the contract by recovering the unpaid purchase the vendors would not be bound to repay the portion of the price they had received from the below its value.-Buck v. Duvall, 76 S. E. 1053. vendee, though they bought the property far

(C) Actions for Damages.

§ 321 (Ga.) Where a vendor agrees to accept as part consideration the erection by the vendee of certain walls at a named valuation, which agreement the vendee fails to perform, the vendor cannot sue to recover the balance