WHAT AMOUNTS TO NEGLIGENCE IS A QUESTION OF LAW: Biles v. Holmes, 11 Ired. L. 16; Brock v. King, 3 Jones, 47, both citing the principal case.

CONTRIBUTORY NEGLIGENCE, WHEN BAR TO ACTION: See Irwin v. Sprigg, 46 Am. Dec. 667, note 671, where other cases are collected; Kennard v. Burton, 43 Id. 249, note 255; Johnson v. Whitefield, 36 Id. 721; Fleytas v. Pontchartrain R. R. Co., Id. 658, note 659; Simpson v. Hand, Id. 231, note 236, where other cases are collected and cited. The principal case is cited in H. & T. C. R'y Co. v. Sympkins, 54 Tex. 623, to the point that an intoxicated person who goes on a railroad track and is injured is guilty of contributory negligence. THE PRINCIPAL CASE IS CITED in Couch v. Jones, 4 Jones, 408, in Woodhouse v. McRae, 5 Id. 2, and in Poole v. Railroad Co., 8 Id. 341, to the point that reasonable beings, endowed with intelligence, may be naturally presumed and expected to get out of the way of an approaching train. It is also cited, in Scott v. Wilmington & R. R. R. Co., 4 Id. 433, to the point that the killing of a slave by a railroad train does not necessarily show negligence on the part of the engineer. And in Jones v. North Carolina R. R. Co., 67 N. C. 125, it is cited to the point that it is not the duty of an engineer to stop or slacken the speed of his train when he sees a human being on the track, unless he knows that he is asleep or drunk.

MERE FACT OF INJURY IS NOT PROOF OF NEGLIGENCE: Bryan v. Fowler, 70 N. C. 598; Manly v. Wilmington & W. R. R. Co., 74 Id. 658, both citing the principal case.

DOE EX DEM. BRANNOCK v. BRANNOCK.

[10 IREDELL'S LAW, 428.]

DEED OF TRUST Made to SECURE SEVERAL DEBTS due to different individ. uals, some of which are usurious and some bona fide, is not void, but is a security for the debts not tainted with usury, where these debts are distinct from and independent of the usurious debts.

EJECTMENT. Both parties claimed under one Thompson. The defendant claimed under the deed of trust referred to in the opinion. The plaintiff claimed under a sheriff's deed, founded on judgments and executions, and levies and sales duly made. The deed of trust was prior in date to the judgments and executions. Judgment was given for the defendant. The other facts are stated in the opinion.

Morehead, for the plaintiff.

Iredell, for the defendant.

By Court, PEARSON, J. The only question is, whether a deed of trust is void, which was made to secure several debts due to different individuals, some of which debts are usurious. It is not void. The estate passed, and is a security for the debts not tainted with usury. The declarations of trust, only in reference to the usurious debts, are void.

In Den ex dem. Shober v. Hauser, 4 Dev. & B. L. 91, it is held that a deed of trust, made to secure a usurious debt, is void; in that case there was but one debt secured, which debt being usurious, the deed could only operate as an assurance for a usurious debt," and was properly held to be void.

But, in this case, there are several debts due to different individuals; some of which are not tainted with usury, and are in no wise connected with those that are. The operation of the deed was to pass the legal estate, with a separate declaration of trust, for each of the debts therein enumerated. There can be

no reason, why the declaration of trust, in reference to one debt, may not stand, and the declaration of trust in reference to another be held void. So if a deed contains a declaration of trust, in favor of several debts, one of which is feigned, and there can be no connection or combination between the creditors, to whom the true debts are due, and the grantor or person for whose benefit the feigned debt is inserted, there can be no reason why the declarations of trust, in favor of the true debts, may not stand and the feigned debt treated as a nullity.

If a bond secures the performance of several covenants on conditions, some of which are legal and the others void, it is valid, so far as respects 'the conditions that are legal, provided they be separated from and are not dependent on the illegal. But if a contract be made on several considerations, one of which is illegal, the whole contract will be void. The difference is, that every part of the contract is induced and affected by the illegal consideration; whereas in cases where the consideration is tainted by no illegality, but some of the debts are illegal, the illegality of such as are bad, does not communicate itself to, or contaminate, those which are good, except where from some peculiarity in the contract its parts are inseparable, or dependent upon one another: 1 Sm. L. Cas. 284, note to Collins v. Blanton, and the cases cited.

Here the consideration which raised the use for the purpose of the conveyance is merely nominal. The debts secured are distinct, due to different individuals, and in no way connected with or dependent on one another-the deed is valid so far as respects the good debts. It would be unreasonable and defeat the object of deeds of trust if they are to be declared void, and honest creditors deprived of their security for debts, because the debtor, without their knowledge or concurrence, may insert a usurious or feigned debt. No one would bid at a trustee's sale if he could be deprived of his title by showing that one of

many enumerated debts was tainted with usury. The case of Harrison v. Hannel, 5 Taunt. 780, was relied on for the plaintiff. That case is not an authority against the conclusion above announced, but tends, we think, greatly to confirm its correctness. The son of the defendant owed several debts to the plaintiffs, some of which were usurious; and wishing to get a further advance, agreed to draw three bills upon his father as a security for the whole. The bills were accepted and the first paid; but, in a suit on the second, it was held to be void, because it was a security for an amount in which were included some usurious debts. Although it was urged that the amount of the first and second bills would not exceed the amount of the good debts, the reply was, that, if the plaintiff was allowed to recover, he could apply the amount to the bad debts and sue the son on the good debts; that it was the same as if the son had given his note, with his father as security, for the whole debt. The contract was entire. The security was given as well for the illegal as the legal part; they are connected together and can not be separated, which distinguishes it from this case. Here the debts are not connected; one may be paid and another rejected. It is the duty of the trustee to pay the good and reject the bad ones. It is the same as if a separate deed of trust for each of the creditors had been executed.

Judgment affirmed.

DEED OF TRUST TO SECURE PAYMENT OF BONA FIDE DEBTS: See Dunlap v. Burnett, 45 Am. Dec. 269; Dubose v. Dubose, 42 Id. 588. The principal case is cited to the point, that where a deed of trust is given to secure several debts, some of which are usurious and some bona fide, the deed will be good as to the bona fide debts, provided they are separate and distinct from the 118urious ones, in the following cases: Palmer v. Giles, 5 Jones' Eq. 78; McCorkle v. Earnhardt, Phill. L. 300; Carter v. Cocke, 64 N. C. 242; McNeill v. Kiddle, 66 Id. 294. It is also distinguished in Stone v. Marshall, 7 Jones, 304

BROTHERS v. HURDLE.

[10 IREDELL'S LAW, 490.]

PARTY WHO HAS RECOVERED IN EJECTMENT CAN NOT SUE IN TROVER OF detinue for the produce of the land, which has been severed therefrom before the writ of possession was executed. His remedy is an action for damages by way of mesne profits.

IN ACTION FOR MESNE PROFITS, THE JUDGMENT IN EJECTMENT IS CONCLUSIVE as to the title.

TROVER for a quantity of corn, fodder, pease, and beans. The defendant admitted the conversion, and proved that he had re

covered in ejectment the land on which the articles were grown, and was put in possession by the sheriff. At the time the writ was executed the corn and some part of the pease and beans were growing, the fodder had been pulled and stacked, and the balance of the pease and beans had been gathered and put into a crib on the premises. The plaintiff offered to prove that the land was his, but the court rejected the evidence, being of opinion that the recovery in the ejectment was conclusive as to the title. The jury, under the instructions of the court, found for the plaintiff as to the value of the fodder, pease, and beans that had been gathered, and the defendant appealed.

Jordan and A. Moore, for the plaintiff.

Heath and W. N. H. Smith, for the defendant.

By Court, PEARSON, J. There is no error in the instructions. The corn, etc., which was attached to the land at the time the defendant was put in possession, passed with it, and belonged to him. But the fodder, etc., which had been severed, although on the premises, did not pass with the land; for it had ceased to be a part thereof, and the defendant had no right to take it. His remedy was an action, not for the specific articles, but for damages, by way of mesne profits. If the defendant had a right to take the specific articles, he would for the same reason be entitled to recover their value in trover against the plaintiff, or any one to whom he might have sold them. The amount of which would be, when one, who has been evicted, regains possession, he may maintain trover against every one who has bought a bushel of corn or a load of wood from the trespasser at any time while he was in possession. This, especially in a country where there are no markets overt, would be inconvenient, and no person could safely buy of one whose title admitted of question. The mere statement of the proposition shocks our notions of common sense, and calls for an overpowering weight of authority to sustain it. There is no authority for it in our reports, the invariable practice having been to bring trespass for mesne profits and for damages, if there has been any destruction or injury to the freehold.

Trover for the specific articles, either against a trespasser or a third person, has never been attempted. Upon examination, it is found that there is no authority for it anywhere.

Our attention has been called to a passage in the New York edition, 1846, of Adams on Ejectment, page 347, where it is said: " Crops will pass to the lessor, although severed at the

AM. DEO. VOL. LI-26

time the writ of possession is executed, provided, the severance was after the date of the demise." This is an interpolation, and is not in any of the former editions. Doe ex dem. Upton v. Witherwick, 3 Bing. 11, is cited. We have examined that case— it does not sustain the position. That was a motion by a tenant, who held over after his term and was turned out by a writ of possession, for a rule that the lessor pay over to him the value of some grass and oats, which he had severed recently before the writ was executed, alleging that he was entitled to them as a way-going crop, and which the lessor had taken into possession. The court was clearly of opinion, that the motion was of the first impression; that to entertain it would offer inducements to tenants to hold over, and if the defendant had any claim to a way-growing crop, he might bring his action. The inference from this case, that crops would pass to the lessor after he regains possession, although severed at any time between the date of the demise and the execution of the writ of possession, was hastily drawn, and is not warranted by it.

The only other case cited, which has any bearing, is Morgan v. Varick, 8 Wend. 587. That was an action of trespass for mesne profits and de bonis asportatis. The plaintiff, having been let into possession after a recovery in ejectment, brought the action against the defendant in ejectment, for mesne profits and for damages, for removing certain boilers of a steam-engine which had been used in a corn-mill on the premises. The judge below held, that the plaintiff could recover mesne profits, but was not entitled to recover damages for removing the boilers. Savage, C. J., delivers the opinion of the court. It is not at all satisfactory upon the point of the case. The stress of the argument is spent upon a collateral question. The learned judge enters into a long discussion of the doctrine in one of the resolutions, in Lifford's Case, 11 Co. 51, and succeeds in proving by argument and authority, that after the owner regains possession, he may maintain trespass for mesne profits and for damages for any injury to the freehold as well against third persons and strangers, who had come into possession, as against the original trespasser-against such occupant for the time he was in. The relevancy of this discussion is not clearly perceived the defendant was the original trespasser, and not a stranger. The case turned upon the statute of limitations (six years). The boilers were severed more than six years before the commencement of the action. They were removed from the