ing upon the parties, and that this stipulation entered into all subsequent proceedings. It is certain that this is the construction placed upon the stipulations by the court and by all the parties, as otherwise the exception of the state board of education and other petitioners to the estimates of the cost of construction would not have been allowed. The case of McCracken v. Railroad, 168 N. C. 62, 84 S. E. 30, is, I think, a controlling authority. In that case an election was to be held on the question of voting bonds in aid of a railroad, and it was held that an agreement between the railroad company and a trust company as to the conditions upon which the bonds were to be delivered was binding, although there was no provision in the statute authorizing the holding of the election and the issuing of the bonds permitting such an agreement. The judgment organizing the district has nothing to rest on except the petition which contains the limitations of 15 cents per acre, and, instead of assuming that the court disregarded this important provision, it should be presumed that it acted upon it. The limitation was doubtless omitted from the judgment because the petitioners relied on mutual good faith, and if the state board of education, then a party to the petition, had retained its interest in the land instead of selling to the Southern Land Reclamation Company, the agreement of the parties would have been observed, and this controversy would not have arisen. the invalidity of the Georgia divorce decree by showing that defendant was never a bona fide resident of that state, so that the divorce set up was invalid as a defense. 3. BIGAMY 13-DIVORCE AS DEFENSEOFFERING OF DECREE AS PROOF OF ValidITY. fering by defendant of decree of divorce from In a prosecution for bigamy, the mere ofhis first wife in another state does not prove the divorce was valid, and its validity is for the jury. 4. BIGAMY 7-DIVORCE AS DEFENSE-DEGREE OF PROOF. The fact of defendant's former marriage and of his cohabitation in North Carolina with a second woman whom he married in Georgia violating Revisal 1905, § 3361, as amended by being admitted by him, defendant was guilty of Laws 1913, c. 26, providing that, if any married person shall contract outside the state a marriage bigamous if contracted within it, and shall be guilty of felony, unless he showed to shall cohabit with the person in the state, he the satisfaction of the jury that he had a valid divorce from his first wife as he alleged. 5. DIVORCE 64-ACQUISITION. Carolina, could not leave North Carolina, go Defendant, charged with bigamy in North to Georgia, and by remaining there a few months or weeks at a time, but spending prac tically all of his time in North Carolina, obtain could there obtain decree of divorce from his a bona fide domicile in Georgia, so that he first wife valid in North Carolina as a defense. 6. CRIMINAL LAW 844(1)—APPEAL-REVIEW-BROADSIDE ATTACK ON CHARGE. charge, relating to more than 20 separate and An exception to 32 pages of the printed distinct subjects, is a broadside attack on the charge, and cannot be considered. Appeal from Superior Court, Buncombe County; Lane, Judge. John R. Herren was convicted of contract It is probable the increased assessment ing a marriage outside of the state, bigamous is necessary to the success of the drainage if contracted within it, and thereafter cohabdistrict, although this is denied by the plain-iting with the person in the state, and he aptiffs, but, however this may be, it furnishes no sufficient reason for disregarding an agreement, which was the inducement to the plaintiffs to join in the petition. 1. DIVORCE 329-RIGHT OF STATE TO ATTACK FOREIGN DIVORCE. In North Carolina, in a prosecution for bigamy, decree of divorce secured by defendant from his first wife in Georgia can be attacked by the state by alleging and proving defendant's bad faith and fraud in attempting to acquire domicile in Georgia, since, when a divorce is set up as the sole defense to an indictment, the invalidity of the defense is not a collateral matter, but a legitimate reply by the state directly impeaching the defense set up. 2. DIVORCE 329-FOREIGN DIVORCE-ESTOPPEL ON STATE BY FINDING TO SHOW IN VALIDITY. Where defendant, prosecuted for bigamy in North Carolina, before his alleged bigamous marriage sued for divorce from his first wife in Georgia, and the jury in the case found that sufficient proof had been submitted to authorize total divorce, the finding was not an estoppel on the state of North Carolina to prove peals. No error. See, also, 92 S. E. 596. J. W. Haynes and Mark W. Brown, both of Asheville, for appellant. The Attorney General and R. H. Sykes, Asst. Atty. Gen., for the State. CLARK, C. J. The defendant was convicted for the violation of the following paragraph which was inserted as an amendment in Revisal, § 3361, by chapter 26, Laws 1913: "If any person, being married, shall contract a marriage with any other person outside of this state, which marriage would be punishable as bigamous if contracted within this state, and shall thereafter cohabit with such person in this state, he shall be guilty of a felony and punishable as in cases of bigamy." On the trial the defendant admitted that he was first married to Lizzie V. Hunsucker in this state, who is still living, and that he afterwards obtained a divorce in Georgia and was married to Stella Taylor. The court ruled that the admission in regard to the divorce was a matter of defense to be proven by the defendant. He then put in evidence the transcript of a record from the superior court of Georgia purporting to be the record of the divorce proceedings of John R. Herren v. Lizzie V. Herren, and also certain sections of the laws of Georgia in regard to divorce, and rested. The state offered evidence that the defend fraud or violation of some law of a former domicile, a divorce of this kind should be recin the jurisdiction of the United States or ognized as binding everywhere, certainly withany one of them." the contention of the state in this case that But that suggestion does not conflict with the domicile in Georgia set up by the defendant was not a bona fide domicile, but was faith, as the defendant's wife was only conobtained by fraud, and not acquired in good structively served with process by publication. In the Bidwell Case it is laid down that the domicile must have been acquired ant had never been a resident of Georgia, but had maintained his residence in this state; that he had married said Stella in Georgia, and afterwards removed to this state, and they had lived as man and wife in Asheville. The defendant then offered depositions that he was a resident of Georgia for 12 months preceding the beginning of divorce proceedings as required by the laws of that "in good faith, and not in fraud or violation state. [1] Exceptions 1, 2, and 3 raise the question whether, a decree of divorce can be attacked in a criminal action for bigamy in a state other than that in which the divorce was secured. In Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867. 5 Ann. Cas. 1, after an exhaustive review of the law in the several states as to the faith and credit to be given to a decree of divorce in another state. Chief Justice White said: "The mere domicile within the state of one party to the marriage does not give the courts of that state jurisdiction to render a decree of divorce enforceable in all the states by virtue of the full faith and credit clause of the federal Constitution against a nonresident who did not appear and was only constructively served with notice of the pendency of the action." * of some law of a former domicile." the defendant set up the defense of the diIt necessarily follows, therefore, that when vorce in Georgia, the state could allege and prove bad faith and fraud of the defendant in In Andrews v. Andrews, 188 U. S. 14, 23 attempting to acquire a domicile in Georgia. Sup. Ct. 237, 47 L. Ed. 366, it is said that a state may hold invalid "a decree of divorce procured by its own citizens who, whilst retaining their domicile in the prohibiting state, have gone into another state to procure a divorce in fraud of the laws of the domicile." The defendant stresses the decision of State V. Schlachter, 61 N. C. 520, which is not in point; for in that case the marriage was in New York, and in that state the divorce was obtained and the second marriage was also in that state; that is, "the marriage, the divorce, and the second marriage were all effected in the same state and in conformity with the laws of that state," as stated in State v. Schlachter, supra. In this case the first marriage took place in this state. The attempted divorce and the second marriage occurred in the state of Georgia, and the parties thereafter lived together in this state in violation of the amendment to Revisal, § 3361, above set out, so that the validity of the defense depends upon the bona fides of the alleged domicile in Georgia. Chief Justice White, in classifying the states in respect to the degree of credit which they accord to decrees of divorce in other states, said that he would classify North Carolina among the states "which decline, even upon principles of comity, to recognize and enforce as to their own citizens, within their own borders, decrees of divorce rendered in other states, when the court rendering the same had jurisdiction over only one of the parties," but for a doubt derived from a suggestion in Bidwell v. Bidwell, 139 N. C. 402, 52 S. E. 55, 2 L. R. A. (N. S.) 324, 111 Am. St. Rep. 797. An examination of that case does not show that North Carolina should be taken out of the class of states In Harris v. Harris, 115 N. C. 587, 20 S. which decline to recognize the validity of a E. 187, 44 Am. St. Rep. 471, it is held: divorce rendered in a court which had juris- "A decree of divorce obtained by a wife, res* * * without perdiction over only one of the parties. In that ident in another state, case the decree was rendered in North Dako-sonal service of summons upon the husband, is a nullity in this state." ta, where both parties appeared personally and by counsel. In the Bidwell Case our court said: "Where neither party has a domicile in the state of the forum, such court ha ing no jurisdiction of the subject-matter of the controversy, a decree of divorce is void, though both parties may have appeared, and voluntarily submitted themselves to the jurisdiction of the court." The suggestion referred to by Chief Justice White as having created a doubt in his mind is the following paragraph in Bidwell v. Bidwell: "The better doctrine, however, now seems to be that, where the domicile of the defendant To same effect is Bell v. Bell, 181 U. S. 175, 21 Sup. Ct. 551, 45 L. Ed. 804, which held that: "The court in Pennsylvania had no jurisdiction of the husband's suit for divorce, because neither party had a domicile in Pennsylvania, and the decree of divorce was entitled to no faith and credit in New York or in any other state." that the domicile of the husband in PennThat decision is based upon the evidence sylvania was not bona fide and could be inquired into in a subsequent action. In Streitwolf v. Streitwolf. 181 U. S. 179, "A judgment of divorce rendered in another [2] In this case the judgment does not so state may be collaterally attacked by showing recite, and while the petition does state that chat the court was without jurisdiction either the petitioner (the defendant herein) had of the subject-matter of the suit or of the person of the defendant. Thus the validity of the been a citizen of Georgia for 12 months, it decree may be overcome by proof that the par- is not even verified by his oath. The jury ties were not domiciled, within the territorial find "that sufficient proof has been submitted jurisdiction of the foreign court." to our consideration to authorize a total divorce"; but this may have been an erroneous conclusion of law or an erroneous finding of fact by the jury. Certainly it is not an estoppel upon the state in this proceeding to prove the invalidity of the decree by showing, as the jury in this case have found, that in fact the defendant was never a bona fide citizen of Georgia, and therefore the divorce set up was invalid as a defense. In Haddock v. Haddock, 201 U. S. 573, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas, 1, it is said: "It is elementary that, where the full faith and credit clause of the Constitution is invoked to compel the enforcement in one state of a decree rendered in another, the question of the jurisdiction of the court by which the decree was rendered is open to inquiry. And if there was no jurisdiction, either of the subject-matter, or of the person of the defendant. the courts of another state are not required, by virtue of the full faith and credit clause of the Constitution, to enforce such decree." The court has held in Arrington v. Arrington, 127 N. C. 197, 37 S. E. 212, 52 L. R. A. 201, 80 Am. St. Rep. 791: "In all cases where the defendant is not served with legal notice, and not present in person or by attorney, the original judgment in another state is a nullity." And in Miller v. Leach, 95 N. C. 229: "By virtue of the Constitution of the United States, and acts of Congress in pursuance thereof, the judgments of other states are put upon the same footing as domestic judgments. They are conclusive of all questions involved in them, except fraud in their procurement, and whether the parties were properly brought before the court." 14 Cyc. 816, states: "If a foreign divorce is void because the court was without jurisdiction of the subject matter or of the parties, the decree is given no effect whatever in the courts of another state." And it cites to sustain the proposition Thompson v. State, 28 Ala. 12, which held that a void divorce obtained in another state was no defense to a prosecution for subsequent adultery, and Com. v. Bolich, 18 Pa. Co. Ct. R. 401, which held that a foreign divorce is no defense to a prosecution for desertion. When a divorce is set up as the sole defense to an indictment, as in this case, the invalidity of such defense is not a collateral matter, but a legitimate reply by the state directly impeaching the defense set up. "The courts of one state cannot determine the status of the citizens of another state. To give validity to a decree of divorce therefore at least one of the parties must be a resident of the state of the forum, otherwise the courts of that state have no jurisdiction, and the decree will not be given extraterritorial effect." 14 Cyc. 816. Indeed, the defendant in his brief frankly says: "The Supreme Court of the United States has held that the full faith and credit clause does not apply to actions for divorce, and that the states alone have the right to determine what effect shall be given to the decrees of other states in this class of cases. Atherton v. Atherton, 181 U. S. 170, 21 Sup. Ct. 544, 45 L. Ed. 794; Haddock v. Haddock, 201 U. S. 604, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1." [3] As to exceptions 4, 9, 11, and 13 the charge was proper, as otherwise a decree of divorce could have been alleged which was entirely fraudulent, and the jury, though knowing this, would have been compelled to accept it. The mere offering of a decree of divorce does not prove it was valid. The court properly submitted this to the jury under the instructions given. [4] It was not error for the court to charge that the defendant must prove "to the satisfaction of the jury, but not beyond a reasonable doubt," that he obtained a divorce after residence for the statutory period of 12 months in Georgia. The defendant especially stresses the concluding paragraph of the charge as follows: "If a reasonable doubt remains in your mind isfied you, in other words, that he had obtained as to the guilt of the defendant, or he has sat a bona fide divorce after he had been a bona fide resident of that state for 12 months, why, then, you will return a verdict of not guilty." The fact of the former marriage and of the cohabitation in this state under the second marriage both being admitted, the defendant was guilty unless he showed to the satisfaction of the jury that he had a valid divorce as alleged. The court told the jury that "the burden is upon the defendant to prove to the satisfaction of the jury, not beyond a reasonable doubt, but to the satisfaction of the jury, that he obtained such divorce while a resident of the state of Geor In Thompson v. Whitman, 18 Wall. (85 U. gia for 12 months before bringing the suit S.) 457, 21 L. Ed. 897, it is held that: "The constitutional provision does not prevent "inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered. The record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity notwithstand there, provided the jury find that was the law of the state of Georgia at the time," and added further at the conclusion, “if a reasonable doubt remains in your mind as to the guilt of the defendant," to "return a verdict of not guilty." The first marriage and the second cohabitation with another woman ted, the only way to raise a reasonable doubt authorities in England and in this country in the minds of the jury is, as the court charged, for the defendant to prove "to the satisfaction of the jury, but not beyond a reasonable doubt," that the defendant had obtained a valid divorce; that is, he must satisfy the jury of such fact. Otherwise he was guilty beyond a reasonable doubt. [5] Exceptions 6, 7, 8, and 12 in regard to domicile cannot be sustained. The defendant could not leave this state, go to Georgia, remaining there a few days or weeks at a time, but spending practically all of his time in this state, and thereby obtain a bona fide domicile in Georgia. [6] Exception 8 is to 32 pages of the printed charge relating to more than 20 separate and distinct subjects. This is a "broadside attack" upon the charge, and cannot be considered. McKinnon v. Morrison, 104 N. C. 354, 10 S. E. 513, and cases cited thereto in Anno. Ed.; State v. Cameron, 166 N. C. 379, 81 S. E. 748; State v. Wade, 169 N. C. 306, 84 S. E. 768. The defendant further cites State v. Cutshall, 110 N. C. 538, 15 S. E. 261, 16 L. R. A. 130, and State v. Ray, 151 N. C. 710, 66 S. E. 204, 134 Am. St. Rep. 1005, 19 Ann. Cas. 566, as authority, but it was to change the statute in that respect so as to embrace cases of this kind that the amendment was made to Revisal, 3361, by chapter 26, Laws 1913. The undisputed evidence shows that the defendant and Stella Taylor after the second marriage did cohabit and live together as man and wife, which was in violation of the statute, unless it was shown to the satisfaction of the jury, but not beyond a reasonable doubt, that the divorce set up as a defense was valid. This case was here before upon from the conviction of the defendant. v. Herren, 173 N. C. 801, 92 S. E. 596. for a second time the defendant has found guilty by the jury. No error. appeal State And been ALLEN, J. (concurring). In divorce proceedings the marriage relation is the thing in litigation, the res, and each state has exclusive jurisdiction over the marriage status of its citizens. If the parties are not residents of the state where the decree is entered, the court has no jurisdiction of the subject-matter, and the decree is void, notwithstanding the due service of process, and the question of jurisdiction may be inquired into in the courts of the state of the residence without doing violence to the full faith and credit clause of the Constitution. The question is discussed and the authorities collected in 9 R. C. L. 508 et seq., and in the note to Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1. A doubt is expressed in State v. Schlachter, 61 N. C. 520, as to whether this inquiry may hold that it can be done. Rex v. Lolley, R. & R. C. C. 237; Rex v. Brinkley, 14 Ont. L. R. 434; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260; People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274; Van Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507; State v. Westmoreland, 76 S. C. 145, 56 S. E. 673, 8 L. R. A. (N. S.) 842. If the record in the divorce proceeding shows that the question of residence was passed on, or it is recited in the decree, the presumption is in favor of jurisdiction, and the burden is on the party attacking the decree to prove that the plaintiff was not a resident when it was granted, but if there is no recital and no finding, and the record shows that the question of residence was not considered, the burden is on him who relies on the decree to prove residence, as otherwise it would not appear that the court had jurisdiction. The record relied on by the defendant in this prosecution not only does not show that the question of residence was passed on, but the clear inference is that it was not considered. It is stated in the petition, which is not verified, that the petitioner has been a resident of Georgia for 12 months, and the question of residence is not again referred to in the proceeding. No issue as to residence was submitted to the jury, nor is there any recital or adjudication in the decree, and, on the contrary, the language of the verdict and of the decree show that the cause for divorce was alone considered. I therefore think, in this condition of the record, and when it was admitted that the defendant married the first time in this state, and had been a resident here, that there was no error in imposing the burden on the defendant to prove residence in Georgia. Again, while there is a conflict of authority (see note 5 Anno. Cas. 28 and 29), North Carolina is in line with the courts holding that a decree for divorce rendered in another state on substituted process is invalid. Irby v. Wilson, 21 N. C. 568; Harris v. Harris, 115 N. C. 588, 20 S. E. 187, 44 Am. St. Rep. 471. The court says in the last case: "The decree of divorce obtained by the wife, resident in Colorado, against the husband, domiciled in this state, without personal service Irby v. upon him, is a nullity in this state. Wilson, 21 N. C. 568." The decision in Bidwell v. Bidwell, 139 N. C. 402, 52 S. E. 55, 2 L. R. A. (N. S.) 324, 111 Am. St. Rep. 797, is not in conflict with the earlier decisions. In the Bidwell Case the wife brought her action for support and maintenance, and the defendant, the husband, set up as a defense a decree of absolute divorce granted by the courts of North Dakota, and also a decree of the courts of Massachusetts in an action instituted by the which the North Dakota decree was adjudg-| ed to be valid. The wife appeared and answered in the North Dakota action, and was awarded $10,000 for the care and custody of her minor child, and in the Massachusetts action both parties appeared, so that the question of the effect of a decree rendered upon substituted process could not be raised as to either action, as the husband and wife appeared in both. The expression in the opinion relied on by the defendant is based on two decisions of the Supreme Court of the United States, which were either misunderstood, or they have been since modified by the case of Haddock v. Haddock. 246(2)-CONTRIB 1. MASTER AND SERVANT UTORY NEGLIGENCE-EMERGENCIES. Where a blacksmith, working with his helper on a mountain side, was suddenly called to by his helper to "look out," and heard a tree which had been felled by his employer's servants further up the mountain side coming down on the forge and but 20 feet away, and, being frightened, ran and jumped over a bank, sustaining injuries, he would not be held to the degree of responsibility of one who has time for reflection. 2. TRIAL 295(7) — INSTRUCTIONS-CHARGE AS WHOLE. In servant's action for injuries, a portion of the court's charge on contributory negligence was not erroneous as omitting to instruct that the plaintiff must have exercised ordinary care and prudence under the circumstances, and that this was for the jury, where immediately preceding and connected with this portion of the charge the court did so instruct; it not being permissible to take one excerpt from the charge and condemn the whole charge accordingly. 3. DAMAGES 161- ISSUES - MENTAL SUF FERING. As all pain is mental and centers in the brain, it follows that as an element of damage for personal injury the injured party may recover for actual suffering of mind and body when they are the immediate and necessary consequences of the negligent injury, although mental anguish is not pleaded as an element of damage distinct from physical suffering. Appeal from Superior Court, Jackson County; Webb, Judge. Action by Ira Hargis against the Knoxville Power Company. From judgment for plaintiff, defendant appeals. No error. Civil action, tried at May term, 1917, upon these issues: First. Was the plaintiff, Ira Hargis, injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes. Second. Did the plaintiff by his own negligence contribute to his injury? Answer: No. Third. What damage, if any, is the plaintiff entitled to recover? Answer: Twelve hundred and fifty dollars. "You can consider any suffering he underwent by reason of this fall, any physical or mental fall up to the present time. You have a right to suffering that he underwent by reason of this consider the character of the hurt and the character of the wound, and whether or not there was a sprain, and how long it lasted, and if any, and whether or not he is or was incahow much he suffered physically and mentally. pacitated, and give him such compensation as he is entitled to receive, if any." Bryson & Black and Sherrill & Harwood, all of Bryson City, for appellant. Walter E. Moore and J. J. Hooker, both of Sylva, and Alley & Leatherwood, of Waynesville, for appellee. BROWN, J. There are no exceptions to the evidence, and the exceptions to the charge on the first issue have been abandoned, and on the argument in this court the evidence of negligence of defendant admitted. directed to the charge on the second and The assignments of error relied upon are third issues. The testimony tends to prove that plaintiff was a blacksmith in the employ of defendant, and at time of the injury at work with one Norton at his forge in a tent on a mountain side. The woods force of defendant were cutting down timber trees just above the tent. A tree was cut down and rolled down the mountain side on the tent, and smashed it, and broke the anvil. The plaintiff testified: "On the 19th day of May, 1916, I was workThis shop was located on the grade of the railing on the railroad grade in a temporary shop. road that comes up the Tennessee river about 100 feet over the river. The shop in which I ed there by Mr. Ashworth, the superintendent was at work was a tent. I suppose I was placon the job. I was engaged in doing the work, and the negroes were upon the cliff, and cut a hollered to me to look out or to get out, and I tree into the shop. Mr. Norton, my helper, heard the tree coming, and I jumped off over the dump where they had bridged the road. When I ran out of the shop to this corner, Norton was near this end and ran down the grade. I was back in the back end near the vise. The tree struck on the right-hand side, and a limb about 6 inches through_broke in two and ran into the ground near where I was standing, and a limb hit the anvil and broke it. I had no time to consider what to do. The tree was within 20 feet of the shop when the boy hollered, and by the time I hit the ground when I made the first jump, the tree hit the ground where I had been standing. I first received warning from Norton, my helper. I ran and jumped off the dump. The tree was within 20 feet of the shop when Norton hollered to me." Norton testified that there was a hole in the tent, and he looked out and saw the tree coming about 20 feet above. He was near the door, and plaintiff was on other side of forge. Norton ran out and down the grade, and was unhurt. He says that: "If Mr. Hargis had followed me and went the way I did he would not have been hurt, but he could not go that way because the anvil and forge were between us. He came out the door The portion of the charge relative to meas- the grade as I went he went over the bank. He the same way I did, but instead of going down ure of damages was as follows: was running so fast he could not turn. The |