tination could have been ascertained by the other agent on July 2d.

The defendant, contends, however, that Revisal 1905, § 2631, giving a penalty for refusing to accept freight for shipment, is unconstitutional when the freight is to be shipped into another state. But "refusing to receive for shipment" is an act done wholly within this state. It is not part of the act of transportation, and our penalty statute applies. This was held by Avery, J., in Bagg v. Railroad, 109 N. C. 279, 14 S. E. 79, 14 L. R. A. 596, 26 Am. St. Rep. 569, where the railroad company received the freight for shipment to a point in another state, but negligently detained it for five days before shipping. The precise point herein was raised in Currie v. Railroad, 135 N. C. 536, 47 S. E. 654, and it was held that this section, giving a penalty for failing and refusing to accept for shipment a car load of lumber, was not unconstitutional as an interference with interstate commerce, when the lumber was offered for shipment to a point in another state. Both these cases were cited and reaffirmed by Walker, J., in Walker v. Railroad, 137 N. C. 168, 49 S. E. 84. In Twitty v. Railroad, 141 N. C. 355, 53 S. E. 957, it was held (Brown, J.) that, where the agent held the freight in storage, but refused to give a bill of lading because he did not know the freight rates, this was "a refusal to receive for transportation, and the railroad company is liable to a penalty under Revisal 1905, § 2631." The court said: "The fact that the agent did not know the freight rates is no excuse. It is his duty to know them. At least he could readily have telegraphed and ascertained, and need not have refused to give a bill of lading on that account." In Harrill Bros. v. Railroad, 144 N. C. 532, 57 S. E. 383 (Walker, J.), it was held that Revisal 1905, § 2633, imposing a penalty for failure to deliver freight was valid, though the freight was interstate. There the penalty was incurred after the transportation had ceased. Here the penalty accrued before the transportation had begun, and before the freight was even received and accepted for transportation. The owner of the shingles is the proper party plaintiff. There was no consignee till after the bill of lading was given. That the state court has authority in such cases is now well settled. Cooke, Commerce, cl. 233, citing Railroad v. Jacobson, 179 U. S. 287, 21 Sup. Ot. 115, 45 L. Ed. 194, and many other cases.

The fact that Scottville was not a regular station at which was kept an agent is no valid excuse for not receiving the shingles. When goods are shipped to a place where there is a side track, but no depot platform or agent of the carrier, and this is known to the parties, it has been held that, leaving the car of goods upon the side track is a good delivery, and relieves the company from

further responsibility. 4 Elliott, Railroads, 1521. That a depot was or was not maintained at Scottville in no way affected the right of the plaintiffs to have their goods received at Rutherfordton when tendered. Normile v. Railroad, 36 Wash. 21, 77 Pac. 1087, 67 L. R. A. 271; Alexander v. Railroad, 144 N. C. 93, 56 S. E. 697.

The judgment of nonsuit is reversed.

BROWN, J. (concurring). I concur in sending this case back for trial in order that the facts may be found. I reserve the right to determine for myself whether the penalty, in case one should be imposed, is a burden upon interstate commerce, in case the cause shall come back upon a final judgment against the defendant. As I read the record, the defendant would be liable, if at all, for only $50, the penalty imposed for one day only, as there is proof of only one distinct tender and refusal. That matter, however, will be made clearer on another trial. As the plaintiffs admit that they lost nothing by the delay in shipping the shingles, if they are permitted to recover $750 as penalties under the statute, I should be inclined to hold that such an excessive impost could not be sustained, under the decisions of the Supreme Court of the United States in Houston & T. C. Railroad v. Mayes, 201 U. S. 321, 26 Sup. Ct. 491, 50 L. Ed. 772, and McNeill v. Railroad, 202 U. S. 543, 26 Sup. Ct. 722, 50 L. Ed. 1142.

MITCHELL v. WELBORN.

(Supreme Court of North Carolina. Dec. 9, 1908.)

1. BOUNDARIES (§ 3*) - DESCRIPTION RELATIVE IMPORTANCE OF CONFLICTING ELEMENTS CALLS CONTROL COURSE AND DISTANCE.

Where there is a definite call in a deed or grant for a corner or line of another tract which is established, the call will control course and distance, unless it appears that with a view of making the deed or grant, and by physical survey, a different corner was established or a different line was actually run and marked, and the instrument was executed by the grantor with the intent at the time to convey the land according to the actual survey.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 26, 32; Dec. Dig. § 3.*] 2. TRIAL (§ 256*)-INSTRUCTIONS-REQUESTSMORE SPECIFIC INSTRUCTIONS.

In an action involving disputed boundaries to two tracts, where plaintiff's grant coincided with a former established grant as to one corner and at least two of the lines of that grant, the jury were charged that they might take into consideration the boundary of the former grant, if they could locate it by the evidence, and use it in locating plaintiff's grant, but the charge omitted to state that. if the corner and lines of the former grant called for in plaintiff's grant were located and established, they should prevail over the courses and distances in plaintiff's grant to that extent. Held, that the charge, in effect, told the jury that all the effect they need give to the location of the former

grant was to use it to assist in determining the location of plaintiff's grant, and the omission to charge as to its full force was not waived by failure to request a specific instruction thereon. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 628-641; Dec. Dig. § 256.*]

Appeal from Superior Court, Wilkes County; Ferguson, Judge.

Action in ejectment by J. M. Mitchell against W. S. Welborn. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.

Plaintiff showed title having its origin in a grant of 600 acres from the state to James Welborn, bearing date November 14, 1808,

line at this point from 4 to 5, would include the locus in quo, and the plaintiff would prevail. The portion of the plat considered necessary to an understanding of the case is hereto annexed, showing also the location of a grant to Benjamin Johnston, bearing date 1779, called for and referred to in the James Welborn grant, and indicated in the map, according to plaintiff's contention, by the letters A, B, C, 4.

(1) Location of James Welborn 600-acre grant, November 14, 1808, as claimed by plaintiff, beginning at 1, white oak and gum, runs to 2, then to 3, then to 4, then east to 5, and, if correct, includes the locus in quo.

defendant, under a grant, conveying the land in controversy to E. M. Welborn, bearing date October 12, 1890; and the matters at issue were made to depend chiefly on the proper location of the 600-acre grant to James Welborn. The plaintiff claimed, and offered evidence tending to show, that the correct location of this older grant was as indicated on the plat by the figures 1, 2, 3, 4, then east to 5, and then around, according to the course and calls of the grant, to 7, etc. The defendant claimed that the correct location began at A, and, as indicated in the plat, by the letters A, B, C, D, and then east to E, and so around the course and calls to F, and G, etc. The locus in quo was between the lines 4 and 5, and the lines D and E, so that, if plaintiff's claim was established, the James Welborn grant, having its northern

(2) Location of James Welborn grant, as claimed by defendant, A, B, C, D, then east to E, and, if correct, excludes locus in quo, making defendant's grant good.

(3) Location of Benjamin Johnston grant, as claimed by defendant, A, B, C, 4.

On issues submitted, there was verdict for plaintiff, judgment on verdict, and defendant excepted and appealed.

Finley & Hendren and Manly & Hendren, for appellant. R. Z. Linney and L. M. Lyon, for appellee.

HOKE, J. (after stating the facts as above). We have given this case most careful consideration, and are of opinion that there should be a new trial of the issues. The decisions of this court are to the effect that, when there is a definite call in a grant

or deed for a corner or line of another tract of land which is known and established, such call will control the course and distance. Whitaker v. Cover, 140 N. C. 280, 52 S. E. 581; Dickson v. Wilson, 82 N. C. 487; Corn v. McCrary, 48 N. C. 496. This is certainly true, unless it is made to appear that with a view of making the deed, and by physical survey, a different corner was established, or a different line was actually run and marked, and the instrument was executed by the grantor with the intent at the time to convey the land according to this actual survey. Elliott v. Jefferson, 133 N. C. 207, 45 S. E. 558, 64 L. R. A. 135; Baxter v. Wilson, 95 N. C. 137. And we are of opinion that defendant has not had the benefit of this principle in the trial of the cause, and that reversible error, in this respect, was committed to his prejudice. As heretofore stated, the plaintiff derived title from the 600-acre grant to James Welborn, and his right to recover was made to depend largely on its correct location. The calls of this grant relevant to the exception we are now considering are as follows: "In consideration of money paid into our treasury by James Welborn, we hereby give and grant to him a tract of land containing 600 acres, beginning on the corner of a tract of land he bought of Ben. Johnston, a gum and white oak on the bank of the creek, runs south with said line 100 poles to a W. O.; then east with said line 160 poles to a pine and B. O.; thence N. 46 poles to four oaks and a pine, Ben. Johnston's corner; thence S. 29 to," etc. It seems to have been admitted on the trial, and was assumed in the charge of the court, that this land "he bought of Ben. Johnston" referred to a tract of land granted to one Benjamin Johnston in 1785, and coincided with it in description set forth in that grant, as follows: "Beginning at a W. O. and gum on the east side of the creek below the falls, runs thence east 160 poles to a Spanish oak and gum; thence S. 100 poles to a pine and B. O. on a ridge, near Suirlook's path; thence W. 160 poles to a white oak on the hillside; thence N. 100 poles, crossing the creek, and including the falls, as by the plat hereinto annexed doth appear." Here is a definite call of a corner of the Benjamin Johnston grant as the beginning corner of the Welborn grant, under which plaintiff claims, and an examination and comparison of the two descriptions give indication that this latter grant also calls for at least two of the lines of the Johnston grant, and all or a portion of a third line, and there was evidence offered on the part of the defendant tending to fix the corner of the Johnston grant, which was called for as the beginning corner of the Welborn 600-acre grant at the point on the map indicated by the letter "A," some 35 poles south and several poles west of the beginning corner as claimed by plaintiff and

jury on this question, the court told them: "It is competent for you to take into consideration the boundary of the grant to Ben. Johnston, the tract called for in the grant to James Welborn, and, if you can do so from the evidence, locate the Ben. Johnston grant, and use to assist you in locating the true line and corners of the James Welborn 600-acre grant, the evidence which you get in regard to the location of the Ben. Johnston grant." So far as we discover, this is all the effect given in the charge to the calls and location of the Benjamin Johnston grant, whereas the beginning corner of the plaintiff's grant, being definitely described as "a corner of the Benjamin Johnston grant, a gum and white oak on the bank of the creek," coinciding with the Johnston grant in two, at least, of the lines of that grant and perhaps more, a correct application of the authorities cited requires that the jury should have been told that, if the corner and lines of the Johnston grant called for in plaintiff's grant were located and established, they would control the location of plaintiff's grant to that extent, and the issues between them should be considered and determined on that principle. This, we think, was not merely an omission waived by failure to make a specific request for instructions, but on the facts presented it was, in effect, a direction to the jury to locate the Johnston grant if they could, and use it, or the evidence bearing on it, to assist them in determining the true location of plaintiff's grant, and the jury were thus improperly given the impression that this was all the effect they were required to give the location or the evidence bearing upon it. It may be that if the beginning corner of plaintiff's grant should be fixed, as defendant contends, the correct location of the subsequent courses and calls of the plaintiff's grant would place the boundary so as to include the locus in quo. There is certainly evidence in the record tending to support such a position, but the location of the beginning corner is directly relevant to the inquiry, and so much so that we think the defendant is entitled to have the question of location submitted to the jury with a correct charge concerning it.

The decision of this court in Moore v. McClain, 141 N. C. 473, 54 S. E. 382, in no way conflicts with the disposition we make of the present appeal. That case dealt chiefly with the proper methods and burden imposed upon the claimant in the location of a deed, containing descriptions both by course and distance, and also by call for natural objects, and on that question it was held as follows: "(2) When, in addition to course and distance, natural objects, marked trees, or lines of other tracts are called for in a grant or deed, these when shown will control course and distance, but the duty is not imposed upon those claiming under such a

search for, the natural objects before they can rely upon the calls for course and distance." And on the question discussed here, to wit, the effect of the location of natural objects, and the lines of other tracts, when properly established, the opinion quotes with approval from that of Smith, C. J., in Redmond v. Stepp, 100 N. C. 217, 6 S. E. 729, as follows: "If only course and distance are given, and the beginning is found, the line will run by course and distance. But when, in addition to course and distance, natural objects, marked trees, or lines of other tracts are called for, these, when shown, will control course and distance, and must be reached by a further extension, or shortening of the line, so as to reach such objects, trees, or adjoining tracts. If none such can be found, then the course and distance must be the guide in fixing the boundary."

For the error indicated, the defendant is entitled to a new trial of the cause, and it is so ordered.

1. STATUTES (§ 206*)-CONSTRUCTION-ENTIRE STATUTE.

The court, in construing a statute, must first resort to the language used to ascertain the legislative intent, and it must consider the entire statute, and give effect to every word thereof; and, where the Legislature has used language of clear import, the court cannot strike the words out, or construe them away, or indulge in conjecture as to the meaning.

[Ed. Note.--For other cases, see Statutes, Cent. Dig. § 283; Dec. Dig. § 206.*]

2. STATUTES (§ 212*)-CONSTRUCTION-LEGISLATIVE INTENT.

Courts in construing a statute are not permitted to assume that the Legislature used words ignorantly or without meaning, unless compelled to do so to prevent a manifestly absurd result.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 289; Dec. Dig. § 212.*]

3. STATUTES (§ 194*)-CONSTRUCTION-LEGISLATIVE INTENT.

Words of a general import in a statute are limited by words of restricted import immediately following and relating to the same subject.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 272; Dec. Dig. § 194.*] 4. STATUTES (§ 194*)-CONSTRUCTION-LEGISLATIVE INTENT.

One provision of a statute may be qualified by another, though it does not profess to have that effect, and words expressive of a particular intent, incompatible with other words expressive of a general intent, will be construed to make an exception, so that all parts of the statute may have effect.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 272; Dec. Dig. § 194.*]

5. STATUTES (8 184*)-CONSTRUCTION-LEGISLATIVE INTENT.

The court in construing a statute must adopt that sense which harmonizes best with the context, and which permits in the fullest

manner the apparent policy and objects of the Legislature.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 262; Dec. Dig. § 184.*]

6. STATUTES (§ 241*)-CONSTRUCTION-LEGISLATIVE INTENT.

Where the penal clause of a statute is less comprehensive than the body of the act, the courts will neither extend the penalties provided for to a class of persons not within the clause, though there is a manifest oversight of the Legislature, nor strike words from the clause to reach a class of persons excluded therefrom. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 322; Dec. Dig. § 241.*]

7. STATUTES (§ 225*)-CONSTRUCTION-LEGISLATIVE INTENT.

Where the words of a statute are of doubtful meaning, the court in seeking the legislative intent may resort to the history of legislation on the subject to ascertain the legislative policy. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 303; Dec. Dig. § 225.*]

8. STATUTES (§ 181*)-CONSTRUCTION-LEGISLATIVE INTENT.

Where the court, after exhausting all primary rules for the purpose of construing a statute, is in doubt as to its meaning, it will consider the results likely to flow from a proposed construction; and, where such results are oppressive or inequitable, it should, if possible, without doing violence to the words of the statute, reject such construction.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 263; Dec. Dig. § 181.*]

9. STATUTES (§ 239*)-CONSTRUCTION-LEGISLATIVE INTENT.

A statute which restricts private rights of persons, or of the use of property in which the public has no concern, should be strictly construed in favor of the citizen, and it will not be presumed that the Legislature intends to impose burdens on the citizens further than is demanded by the general welfare.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 320; Dec. Dig. § 239.*]

10. WEIGHTS AND MEASURES (§ 7*)-STATUTES -CONSTRUCTION.

Revisal 1905, §§ 3063, 3067, 3073, relating to weights and measures, requiring every person using weights and measures to permit the standard keeper to adjust the same, and providing that every person, "using, buying, or selling by weights and measures," who shall neglect to comply with the act, shall forfeit a specified sum, do not, when considered in the light of the history of legislation on the subject, impose a penalty for the refusal to permit the standard keeper to adjust scales used by a railroad company in weighing freight for shipment; the words "buying or selling" limiting the word "using."

[Ed. Note.-For other cases, see Weights and Measures, Dec. Dig. § 7.*]

Clark, C. J., and Hoke, J., dissenting.

Appeal from Superior Court, Surry County; Justice, J.

Action by J. F. Nance against the Southern Railway Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

This was an action to recover a penalty alleged to have accrued against defendant for refusing to permit plaintiff, standard keeper of Surry county, to examine and adjust defendant's scales used by it at Pilot Mountain, N. C. There was no evidence that

in "weighing freight for shipment." His honor, being of the opinion that plaintiff could not recover, rendered judgment of nonsuit. Plaintiff appealed.

W. L. Reese, for appellant. Manly & Hendren and W. F. Carter, for appellee.

CONNOR, J. The right of the plaintiff to maintain this action depends upon the construction of chapter 77, § 3073, Revisal 1905. The defendant insists that, correctly construed, the penalty is incurred only by a person "buying and selling" by weights and measures, and that, as it does neither, it is not within the language or spirit of the statute.

* *

* *

Section 3063, c. 77, provides that no trader, or other person, shall buy or sell, or otherwise use in trading any other, etc. Section 3067: "If any person, after demand by the standard keeper for permission to examine and adjust the same, shall buy, sell or barter, by any weight or measure which shall not be tried by the standard keeper, etc., he shall forfeit and pay $40, etc." Section 3073 provides: "Every person using weights and measures and steelyards shall allow and permit the standard keeper of the county to try, examine and adjust by the standard, at least once every two years all the said weights and measures used in weighing; and every trader or dealer by profession and every miller, at least once in every two years thereafter, shall permit their weights, measures, etc., used in weighing, to be examined and adjusted by the standard keeper of the county in which such weights, etc., are used and every person using, buying or selling by weights and measures who shall neglect to comply with the requisites of this section shall forfeit $50 to be recovered at the instance of the standard keeper, one half to his use and the other half to the use of the county wherein the offense is committed."

*

**

Before proceeding to discuss the principal question presented upon the appeal, we desire to call attention to the italicized sentence found in section 3073 and the history of the legislation upon the subject. The first statute relating to weights and measures in this state was enacted in 1741 (chapter 32). See Laws N. C. 1715-96, p. 146. It will be well to note the provisions of this statute, and the amendments made to it, for the purpose of aiding in the construction of Revisal 1905, § 3073. The act of 1741, § 1, provides: "That no inhabitant or trader shall buy or sell or otherwise make use of in trading" any other than standard weights and measures. Section 3 makes it the duty of the justices to provide standard weights and measures and appoint a standard keeper. Section 4: "That any person whatsoever using weights or measures shall bring all their

trade, to be there tried by the standard, sealed and stamped; and if any person or persons shall buy, sell or barter by any weights or measures which shall not be stamped" a penalty of £10 is imposed. Section 5: "And whereas steelyards, by use are subject to alteration," it is enacted "that all persons who shall use, buy or sell by steelyards shall once in every year try the same with the standard and take a certificate from the keeper, upon pain of twenty shillings, proclamation money." By chapter 965, Laws 1818, the act was again amended, "providing that every trader, buying or selling by weights and measures, shall before the first day of May next, and at least once every two years thereafter, cause their weights and measures to be examined, etc. And every trader buying or selling by weights and measures, neglecting to comply with the requisites of this act, shall forfeit the sum of fifty dollars," etc. Some doubt having arisen as to the proper construction of the statute as amended, the Legislature of 1823 (Laws 1823, c. 48) enacted: "That no person except traders and dealers by profession, and millers, shall be required to restamp their weights and measures; any law to the contrary notwithstanding." This statute removed any

possible doubt as to the state of the law, and no further amendment was made to it, when, in 1834, the commission, composed of Judges Iredell, Nash, and Battle, revised the statute law of the state. In chapter 120, Rev. St. 1837, they incorporated into section 4 the original statute as amended, in these words: "Every person whatsoever using weights and measures shall bring them to the keeper of the standard where such person shall reside, to be there tried by the standard; and every trader or dealer by profession and every miller, shall at least once in every two years thereafter cause their weights and measures to be tried and adjusted." There can be no doubt that the careful and learned commissioners so construed the original statute and the amendments made previous to that time. No change was made by the several revisals of our statute law, as will be seen by reference to Rev. Code 1854, c. 117, § 5, Battle's Rev. (1873) c. 116, § 5, and Code 18S3, c. 65, § 3841, until 1893 (Laws 1893, p. 85, c. 100), when an act was passed making it the duty of every person using weights and measures to allow and permit the standard keeper to examine and adjust by the standard, once in every two years, their weights and measures used in weighing. This review of the Legislature upon the subject throws lights upon the construction of the words used in the clause of section 3073 upon which plaintiff's alleged cause of action is founded. It will be conceded that, as the statute stood from 1823 until 1893, no duty was imposed upon any other persons than "traders or deal