PENALTY STATUTES-Continued.
defense to an action to recover a penalty, under Revisal,
sec. 2633, for refusing to deliver an interstate shipment
upon tender of freight charges by the consignee, for the
defendant company to show its agent did not know the cor-
rect amount of the charges because of the defendant's fail-
ure to file its schedule of rates, under the requirement of
the interstate commerce act, or that the bill of lading show-
ing such charges had not been received with the goods at
their destination, in the usual course of its business. Har-
rill v. Railroad, 532.
10. Same-Delivery of Freight-Common-law Duty—Statutory
Requirement-Constitutional Law.-A railroad company
owes it as a common-law duty to deliver freight upon tender
of lawful charges by the consignee and, in the absence of a
conflicting regulation by Congress, Revisal, sec. 2633, impos-
ing a penalty upon default of the railroad company therein,
is constitutional and valid, and is an aid to, rather than a
burden upon, interstate commerce. Ibid.
11. Same-Penalties Not Cumulative.-Revisal, sec. 2633, imposes
only one penalty for the refusal of the railroad company to
deliver freight upon demand and tender of charges, and it is
not cumulative upon more than one demand for the same
offense. Ibid.
PENALTY STATUTES, CONSTRUCTION OF. See Contracts, 34.
PERISHABLE PROPERTY. See Wills, 13; Railroads, 10.
PERMISSIVE USE. See Deeds and Conveyances, 41; Evidence, 44.
PETITION. See Processioning, 1; Removal of Causes, 13.
PLACE OF CONTRACT. See Contracts, 26.
1. Processioning-Controversy Real—Title Involved―Ejectment—
Sufficiency of Petition.-When the petition and answer in
a proceeding for processioning show that the controversy is
real and that the parties are in possession of the lands,
claiming them as their own, concerning which the boundary-
line is in dispute, it is error for the Court below to dismiss
the proceeding for want of sufficient allegation in the peti-
tion, and to try the case as an action of ejectment merely,
although the title to land may have become involved inci-
dentally. Green v. Williams, 60.
2. Processioning a Matter of Right.-Where there is a dispute
between adjoining proprietors in possession of land as to
the true dividing boundary-line, either of them, under a
proper petition and by regular proceedings, may have, as a
matter of right, such line processioned under sections 325
and 326 of Revisal 1905. Ibid.
3. Answer Sufficient.-An answer alleging that the defendant
"is advised, informed and believes that the first article of
the complaint is not true, and therefore denies the same," is
sufficient to raise the issue. Gordner v. Lumber Co., 110.
4. Removal of Cause-Joint Defendants—Several Liability—Sin-
gle Action-Federal Court.-Two defendants participating
in the commission of a tort to the injury of the plaintiff
are jointly and severally liable, and when the plaintiff has
proceeded against them in a single action, the cause is not
separable, and cannot be removed by a foreign defendant to
the Federal Court, though different answers may be made
and different defenses relied upon. Staton v. Railroad, 135.
5. Complaint-Domicile-Descriptive Words.-In the petition for
the removal of a cause to the Federal Court, the defendant
describes itself as a certain railroad company, and the com-
plaint alleges that it is a certain "railroad company, of
Virginia"; the punctuation, by comma, being, as shown, be-
tween the word "company" and the words "of Virginia,"
the latter words are construed merely as descriptive of the
domicile. Ibid.
6. Evidence-Corporation Commission Reports-Public Records-
Judicial Notice.-Reports of the Corporation Commission of
North Carolina are matters of public record, of which the
courts therein will take judicial notice. Staton v. Railroad,
135.
7. Severable Cause-Demurrer, When Made—Principal—Surety.
When the chief ground of demurrer to the complaint in
an action for summary ejectment covers only the cause
of action upon the stay bond, the demurrer is to that
extent severable, though containing objections to other mat-
ters of the complaint; and it may be sustained as to the
sureties and disallowed as to the principals upon grounds
distinctly specified and separately assigned; and, being thus
special or severable and denying the plaintiffs' right to
recover at all, the objection can be raised ore tenus in the
Supreme Court, or the Court may notice it ex mero motu.
Blackmore v. Winders, 212.
8. Sufficiency. Every reasonable intendment and presumption
must now be indulged in favor of the pleader, and plead-
ings inartificially drawn are sufficient if from any portion
or to any extent it can be gathered that facts which consti-
tute a cause of action have been alleged; though a motion
to make the pleading more definite or certain, or even a
demurrer, would have been good to formal defects render-
ing the pleading unintelligible or uncertain, or arising from
the omission of allegations which can be cured by amend-
ment. Ibid.
9. Demurrer-Answer-Waiver.-When a defendant interposes a
demurrer to the complaint, which does not appear to have
been acted upon, all rights thereto are waived by the subse-
quent filing of an answer. Moseley v. Johnson, 257.
10. Admitted Facts-Issues-Verdict
ad-
mitted by the pleadings are not issuable, and when the ver-
diet of the jury finds there has been no damage to the prop-
erty on account of detention without otherwise varying the
admitted facts, such finding does not stand in the way of
the relief to be administered herein and should be consid-
ered with the admitted facts. Hamilton v. Highlands, 279.
11. Proper Judgment.-A judgment containing a mandate that
the defendant shall "provide sufficient gutters or pipes or
drains for his large wall adjoining plaintiff's, to prevent
the water falling from the roof thereof from flowing against
plaintiff's building and lot," is proper if it is an appropriate
relief and in accordance with the allegations, and the ver-
dict of the jury, though not named in the relief prayed for
in the complaint. Davis v. Smith, 297.
12. Answer-Issues Sufficient. While the material matter of
fact, alleged on one side and denied on the other, applying
as well to such as are raised by the answer and not alleged
in the complaint, should be submitted to the jury as issues,
yet when each party had the opportunity to offer evidence
bearing upon every phase of the controversy under the issues
submitted, it is not reversible error for the trial Judge to
refuse to submit an issue tendered upon a particular phase.
Main v. Field, 307.
13. Admitted Facts. It is unnecessary to submit to the jury an
issue in regard to, or offer evidence on, an admitted fact
under the pleading, which would have been issuable if
denied; when it can be seen from such facts that the plain-
tiff was under the age of twelve years when injured, it is
not error for the trial Judge to give instructions to the jury
based upon the assumption that they should find the plain-
tiff was then under such age, leaving the question of age
to them under proper instructions. Leathers v. Tobacco
Co., 330.
14. Form Under Statute-Sufficient Evidence.-It is not necessary
for the plaintiff to declare upon the statute prohibiting his
employment under a certain age, when he sets out facts
which bring his cause of action within its meaning. Leath-
ers v. Tobacco Co., 330.
15. Removal of Cause-Foreign Defendant-Diversity of Citizen-
ship-Officers-Tort-Resident Defendants-Single Action.
While upon a petition to remove a cause to the Federal
Court on the ground of diversity of citizenship by virtue
of the statute, resident officers and directors of a foreign
corporation, as such, may not be made co-defendants for
the purpose of preventing the operation of the statute, yet
when the complaint alleges that they are joint tort-feasors
and the plaintiff therein elects to unite them in a single
action, the controversy is not separable at the election of
the defendants; when a cause of action sounding in tort
is alleged against the corporation, with the further allega-
tion that the resident defendants "are actively engaged and
personally aiding, assisting, and co-operating with their
co-defendant in carrying on the business in violation of the
plaintiff's right," a cause of action is alleged against the
resident defendants, and the prayer of the petition for re-
moval should not be granted. Tobacco Co. v. Tobacco Co.,
352.
16. Same-Matters of Record at Time-Allegations of Petition.-
When a cause is sought to be removed to the Federal Court
by reason of diversity of citizenship under the statute, an
allegation of the petition that defendants believe the joinder
of resident defendants was for the purpose of defeating
Federal jurisdiction, and not in good faith, will not, in
the absence of any finding of the fact, be considered. Ibid.
17. Issues Submitted—Issues Tendered.-When upon the complaint
and answer, specifying upon the one side and denying upon
the other, there are different phases of negligence claimed
by the plaintiff as arising on the facts, it is not error of the
Court below to refuse to submit separate issues addressed
to the different allegations, if those submitted are germane
and give to each party a fair opportunity to present his ver-
sion on the facts and his view of the law, so that the case
may be tried on its merits. Horne v. Power Co., 375.
18. Demurrer-Cause of Action-Damages Incident.-It is not
error in the Court below to overrule a demurrer to a com-
plaint demanding damages for mental suffering caused plain-
tiff by defendant's alleged negligence, not as a separate
cause of action, but as incident to a cause of action for
failure on defendant's part to deliver certain whiskey which
defendant, upon demand, wrongfully refused to deliver, and
which was alleged to be for the purpose of relieving from
pain and suffering plaintiff's dying mother. Thompson c.
Express Co., 389.
19. Same―Jurisdiction.—When from the allegations of a com-
plaint, to which a demurrer had been interposed, it appears
that the action may be sustained as a demand in tort in
the Superior Court in a sum sufficient to give jurisdiction,
and it is contended by the defendant that the action is for
a breach of contract, involving a breach of public duty, and
that therein it appeared that, the only sum recoverable
would be but a few dollars and could only originate in the
court of a justice of the peace, it is the amount demanded
in good faith and on facts alleged in the complaint as a
whole which reasonably tend to support it, that fixes the
jurisdiction of the court; and such cannot be restricted by
defendant to his own point of view by irregular and defect-
ive pleading. Ibid.
20. Demurrer-Cause of Action.-A demurrer can never be aided
by separate averments of facts therein, but must be ad-
dressed solely to those alleged in the pleading attacked.
Wood v. Kincaid, 393.
21. Complaint-Demurrer.-When it can be seen by liberal con-
struction that a complaint states a good cause of action, a
demurrer will not be sustained. Ibid.
22. Same-Contract-Admission.-When the complaint substan-
tially alleges a contract, based upon a sufficient considera-
tion and showing the liability of the defendant to the plain-
tiff upon an employee's indemnity bond executed for the
plaintiff's benefit, and a demurrer is made thereto, it is an
admission that the contract is correctly set out in the com-
plaint, though the contract may not be fully stated. Ibid.
23. Same-Procedure.-When the complaint substantially alleges
facts showing that the defendant is liable under a contract,
without clearly or definitely setting out the terms of the
contract, the proper remedy is a motion to make the plead-
ings more definite and certain, or, where permissible, a de-
murrer to its form and not to its substance. Ibid.
24. Complaint-Motion to Dismiss.-An answer filed to the com-
plaint, containing nothing to aid the allegations thereof,
does not preclude a motion to dismiss. Painter v. Rail-
road, 436.
25. Judgment-Specific Performance-Estoppel.-A judgment is
decisive of the points raised by the pleadings, or which
might properly be predicated upon them, and does not em-
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