resorting to legal process or otherwise, to protect his possession of it, in order that the mortgagee may have it when he demands it. Whether, then, the mortgagor is regarded in respect of his special property in the chattel, and his right to the possession thereof as against all persons save the mortgagee, or whether he is regarded as a trustee of an express trust in respect of the chattel for the mortgagee, it clearly appears that he may maintain an action for damages for its conversion against any other person than the mortgagee": Buddington v. Mastbrook, 17 Mo. App. 577.

In Golden v. Moore, 126 Mo. App. 518, 104 S. W. 481, which was an action in the nature of trover for the conversion of mortgaged personalty, it was said that "the rule of the common law still obtains that, where the mortgagor is suffered to retain possession of the mortgaged property after condition broken, his special interest therein will support a cause of action in his favor against a wrongdoer, who seizes it. 'Possession is sufficient to enable the possessor to maintain trespass. Proof of actual possession by the plaintiff at the time of the trespass in all cases suffices to maintain an action against a mere wrongdoer': Buddington v. Mastbrook, 17 Mo. App. 577; Bigler v. Leonori, 103 Mo. App. 131, 77 S. W. 324."

In Axford v. Matthews, 43 Mich. 327, 38 Am. Rep. 185, 5 N. W. 377, where the question of possession became involved upon a somewhat equivocal state of facts, it was left to the jury, and decided against the mortgagor, but the principle was recognized by the court in the following language: "By necessary construction the possession and right of possession, as against the plaintiff, were in the mortgagees, and, of course, the implication is unavoidable, on the facts, that the plaintiff was not in actual possession. His position did not bring him within the law of trover, and the remedy was not applicable."

In Swank v. Elwert (Or.), 105 Pac. 901, it was held that a mortgagor might maintain trover for conversion of chattels mortgaged by him, against purchasers thereof at an irregular foreclosure sale, although he had lost possession. The decision was placed upon the ground that the general title of the mortgagor was not extinguished until the mortgage was regularly foreclosed: Backhaus v. Buells, 43 Or. 558, 72 Pac. 976, 73 Pac. 342.

In Bigler v. Leonori, 103 Mo. App. 131, 77 S. W. 324, it was held that after condition broken, but prior to demand for possession by the mortgagee, the mortgagor might maintain trover against a warehouseman for conversion for refusal to deliver the goods upon demand. In Stossel v. Van De Vanter, 16 Wash. 9, 47 Pac. 221, it was held that a mortgagor might sue for conversion though the mortgage purports to be an absolute conveyance.

It is a familiar dictum that either title or possession is sufficient to maintain this action. Language which may be fairly said to convey this meaning is to be found in Groover v. Iler, 1 Ga. App. 77, 57 S. E. 906; Painter v. McGaha, 6 Ga. App. 54, 64 S. E. 129; Parker v. Rodes, 79 Mo. 88; Myers v. Hale, 17 Mo. App. 204; Johnson v. Blaney, 198 N. Y. 312, 91 N. E. 721; Simmons v. McConville (N. D.), 125 N. W. 304; Pacific Livestock Co. v. Isaacs, 52 Or. 54, 96 Pac. 460. As between the owner of the legal title, or of the right of possession, and a mere tort-feasor, who seizes the chattel wrongfully, and converts it to his own use, either of the former would unquestionably prevail: Swank v. Elwert (Or.), 105 Pac. 901. But in a controversy between.

the legal owner and the possessor with right, he who seeks wrongly to exercise exclusive dominion over the chattel in question is himself a tort-feasor, and neither his legal title nor his right of possession, as the case may be, will enable him to escape the consequences of an act of conversion. It has been held that a foreclosure sale by the mortgagee to himself, in gross, in contravention of the terms of the mortgage, which provided for a sale in lots, constituted, as to the mortgagor, an act of conversion, for which he might maintain trover: Kellogg v. Malick, 125 Wis. 239, 103 N. W. 116, 4 Ann. Cas. 893. A sale by the mortgagee, of the mortgaged property, before foreclosure, has been held to be an act of conversion for which he is liable in trover to the mortgagor: Mathews v. Fisk, 64 Me. 101; Spaulding v. Barnes, 4 Gray, 330. A refusal on the part of the mortgagor to relinquish possession of the mortgaged chattels upon demand after condition broken has been held to be an act of conversion, for which he would be liable to his mortgagee: Roach v. St. Louis Type etc. Co., 21 Mo. App. 118; and St. Mary's M. Co. v. National etc. Co., 68 Ohio St. 535, 96 Am. St. Rep. 689, 67 N. E. 1055, 64 L. R. A. 845.

In Axford v. Matthews, 43 Mich. 327, 38 Am. St. Rep. 185, 5 N. W. 377, it was held that the assignees of a mortgagor, having neither possession nor right thereto, could not maintain trover.

c. Rcplevin-Claim and Delivery.-Investigation discloses the application of similar principles with reference to other forms of action. The companion action of replevin, which corresponds closely in some jurisdictions to the statutory action of claim and delivery (Freeman v. Trummer, 50 Or. 287, 91 Pac. 1077), may be maintained by the mortgagor, even after condition broken, against third persons, practically without limitation by reason of the mortgage, or breach of condition. Replevin is essentially a possessory action: Roach v. Curtis, 191 N. Y. 387, 84 N. E. 283. The present right of possession is the sole issue: McWhirter v. Penny, 82 Ark. 244, 101 S. W. 742; Liver v. Mills, 155 Cal. 459, 101 Pac. 299; Reardon v. Higgins, 39 Ind. App. 363, 79 N. E. 208; Walker v. Appleman, 44 Ind. App. 699, 90 N. E. 35; Weber Imp. Co. v. Dunard, 140 Mo. App. 476, 120 S. W. 608; Robinson & Co. v. Stine, 26 Okl. 272, 109 Pac. 238; hence, it has been said that right of possession is all that is required to support the action: Me Whirter v. Penny, 82 Ark. 244, 101 S. W. 742; Ely v. Williams, 6 Cal. App. 455, 92 Pac. 393; Richbourg v. Rose, 53 Fla. 173, 125 Am. St. Rep. 1061, 44 South. 69, 12 Ann. Cas. 274. As to whether mere title without possession, or the right to the immediate possession, would be sufficient to maintain the action, it is believed that the same principle controls as in trover. A title which carries with it the right to the immediate possession of the chattel, whether coupled with the actual possession or not, is sufficient; and actual possession, even without supporting ownership, other than a special or qualified interest which carries with it the right to the possession as against all the world except the title owner, is sufficient: Taylor v. Brown, 49 Or. 423, 90 Pac. 673; and that sole ownership is not essential, as against a mere stranger, if the plaintiff has any interest whatever, however qualified, and is entitled to possession: Swenson v. Wells, 140 Wis. 316, 122 N. W. 724. As a rule, one having a general or a special interest, and a right to the immediate and exclusive possession may maintain the action: Stafford v. Williams (Del.), 76 Atl. 626; McDonald v. Daniels, 76 Kan. 388, 92 Pac. 51; Indiana U. T. Co.

v. Bick, 40 Ind. App. 451, 81 N. E. 617; O'Brien v. Purry & Whyte, 110 Minn. 533, 137 Am. St. Rep. 563, 127 N. W. 411; American Metal Co. v. Dougherty, 204 Mo. 71, 102 S. W. 538; Moriund v. Johnson, 140 Mo. App. 345, 124 S. W. 80; Meeks v. Clear Jack etc. Co., 141 Mo. App. 648, 124 S. W. 1084; Sullivan v. Girson, 39 Mont. 274, 102 Pac. 320; Boswell v. First Nat. Bank, 16 Wyo. 161, 92 Pac. 624, 93 Pac. 661; but one having neither title nor right of possession cannot maintain it: La Salle etc. Co. v. Coe, 126 Ill. App. 308; Clark v. Anderson, 103 Me. 134, 68 Atl. 633.

d. Detinue. As with trover and replevin, so with the almost obsolete action of detinue. Where it is an existing form of action there can be no question of the same application of principle. "A person who has a right of property in goods, and also the right of immediate possession, may support this action, although he has never had the actual possession. But if the plaintiff's interest be only in reversion, and he have not the right of immediate possession, he cannot sustain the action. One who has only a special property, as a bailee, may also support the action, where he delivered the goods to the defendant, or where they were taken out of his custody. Detinue lies wherever a specific chattel is unlawfully withheld by a wrongdoer, whether it were originally taken lawfully or unlawfully": Perry on Common-law Pleading, p. 57.

e. Trespass and Case.-The courts have consistently recognized the right of the mortgagor to maintain both trespass and case, even though the law day of the mortgage has passed. In Vaughan v. Thompson, 17 Ill. 78, it was held that a mortgagor in possession might maintain trespass against the officer who wrongfully seized the mortgaged chattel. In Tallman v. Jones, 13 Kan. 438, which was also a case of seizure under execution, the court said: "The mere fact that Mrs. Jones mortgaged said goods does not authorize any person except her mortgagee, or some person claiming under him, to take the property from her; and if such person other than the mortgagee, or some person claiming under him, does so take said property, he is liable for more than mere nominal damages." A stranger or mere trespasser sued in trespass by the mortgagor cannot set up the mortgage and default: Frankenthal v. Mayer, 54 Ill. App. 160; Adams v. Hessian, 11 Ind. App. 598, 39 N. E. 530; Evans v. St. Paul H. Works, 63 Iowa, 204, 18 N. W. 881; Collett v. Jones, 2 B. Mon. 19, 36 Am. Dec. 536; Copp v. Williams, 135 Mass. 401; Parkhurst v. Jacobs, 17 Mich. 302; Vandiver v. O'Gorman, 57 Minn. 64, 58 N. W. 831; Weir Plow Co. v. Armentrout, 9 Tex. Civ. App. 117, 28 S. W. 1045, 29 S. W. 405.

The particular adaptability of case as a remedy available by a mortgagor for injury to his reversionary interest or right of redemption was clearly outlined in the case of Frankenthal v. Mayer, 54 Ill. App. 160: "The action of case is a proper proceeding for an injury to property when the interest in it is in reversion. Such action is an appropriate remedy for a mortgagor when property has been injured while in the possession of the mortgagee: Woodside v. Adams, 40 N. J. L. 417; Turrell v. Jackson, 39 N. J. L. 329; Jones on Chattel Mortgages, sec. 683; Leach v. Kimball, 34 N. H. 568; Russell v. Butterfield, 21 Wend. 300; Schalk v. Kinsley, 42 N. J. L. 32. It is urged that after default the mortgagor has no legal estate whatever, and that the law knows no such thing as the remainder or reversion of a chattel. Doubtless this was once the rule. It is unnecessary to discuss whether

a right of reversion may or may not exist in a chattel, or whether any legal estate remains in the mortgagor after condition broken. In this action we are not called upon to consider where the legal estate in the mortgaged goods is, but, a valuable pecuniary interest in them existing in the mortgagor, the question is, Can he maintain an action upon the case against one who willfully destroys them? Actions upon

the case do not depend upon the holding by the plaintiff of a legal estate in the thing, for an injury to which the action is brought: Chitty's Pleading, tit. Actions on the Case; Yates v. Joyce, 11 John. 136; Schalk v. Kingsley, 42 N. J. L. 32; Newman v. Tynieson, 3 Wis. 191."

A mortgagor's right to maintain suit for injury or destruction of the mortgaged chattel due to negligence of the defendant has never been seriously denied. The principal case, Wilkes v. Southern Ry. Co., 85 S. C. 436; ante, p. 890, 67 S. E. 292, illustrates its application, and the reasons therefor. In City of Topeka v. Tuttle, 5 Kan. 311, it was held that a mortgagor in possession might maintain action for injury to chattels, though the mortgage was past due, and was. for a sum in excess of the value of the property. In Logan v. Wabash Ry. Co., 43 Mo. App. 71, it was held that possession by the mortgagor, coupled with the beneficial interest, was sufficient to enable him to maintain the action. In Huss v. Wabash Ry. Co., 84 Mo. App. 111, it was held that inasmuch as the mortgagee did not take any action, the mortgagor might do so. In Gallatin & N. Turnpike Co. v. Fry, 88 Tenn. 296, 12 S. W. 720, the mortgagor's right to maintain the action was upheld.

LOWE v. SOUTHERN RAILWAY.

[85 S. C. 363, 67 S. E. 460.]

EVIDENCE-Written Admission-Signature.

Where a plaintiff has admitted his signature to a paper, and afterward questions but does not completely withdraw his admission, the writing should be submitted to the jury with an instruction to determine upon the evidence whether he actually signed it, and the evidence of his genuine signature is admissible for comparison. (p. 907.)

EMPLOYERS' LIABILITY-Insufficient Number of Men.Under the North Carolina statute providing that an employé of a railroad company who suffers injury by the negligence of another employé or by defects in the machinery or appliances, shall be entitled to maintain an action against the company, a member of a bridge gang injured while obeying the foreman's orders, and while the number of hands furnished is insufficient to do the work with safety, may recover from the company. Assumption of risk is not a defense. (p. 908.)

EMPLOYERS' LIABILITY-Contributory Negligence. The North Carolina statute providing that an employé of a railroad company who suffers injury by the negligence of another employé or by defects in the machinery or appliances, may maintain an action against the company, does not render the defense of contributory negligence inapplicable to an action by an injured employé. (p. 908.)

TRIAL.-On Motion for Nonsuit or Its Counterpart, the direction of a verdict, the evidence for the plaintiff must be accepted as true and construed in the light most favorable for him. (p. 909.)

NEGLIGENCE-When a Question for Jury.-Where more than one inference may be drawn from testimony by fair-minded men, the court may submit issues of negligence with an instruction that it is the province of the jury to say whether the party whose conduct is in question has met the test rule of the prudent man. (p. 909.)

EMPLOYERS' LIABILITY.-The Youth and Inexperience of an employé should be considered in determining whether he should have declined to obey a foreman's order to handle heavy timbers, on account of the risk in so doing. (p. 910.)

EMPLOYERS' LIABILITY-Contributory Negligence of Boy. Where an inexperienced youth of nineteen years was ordered by his foreman to hand up a block of timber which it is usual for two men to handle, and the timber crushes him down to his injury, the issue of contributory negligence is properly submitted to the jury. (p. 910.) EMPLOYERS' LIABILITY-Obeying Dangerous Orders.-An instruction is erroneous which in effect authorizes the jury to acquit an employé of contributory negligence, even though they should conclude that in obedience to an order of his superior he exposed himself to a danger so obvious that no reasonably prudent man would have done it. (p. 911.)

EMPLOYERS' LIABILITY-Obeying Dangerous Orders.-If there is ground for reasonable difference of opinion as to the danger, an employé is not bound to set up his judgment against that of his superior whose orders he is required to obey, and he may rely on the judgment of his superior, but he cannot recklessly or carelessly obey orders requiring him to do an obviously dangerous act. (p. 911.)

Sanders & De Pass, for the appellant.

Blackwood & Harmon and Wilson & Osborne, contra.

364 JONES, C. J. On May 6, 1907, while in the employment of the defendant company and engaged in doing carpenter work with a bridge force in repairing a chute for supplying coal to the Cannon Manufacturing Company, at Concord, North Carolina, plaintiff was directed by the defendant's foreman to hand up a piece of timber to a man on the chute.

The complaint alleged that while carrying out the orders of his superior he fell under the weight of the timber, the same breaking his left arm and otherwise bruising and injuring him. It was alleged that the injury was the result of 365 defendant's negligence, "(1) in ordering plaintiff, a lad, young and inexperienced, alone and unaided, to handle such heavy timber, weighing more than one hundred and fifty pounds; (2) in not furnishing a safe and suitable place to work, the ground where he was being rough and rugged and impeded with obstacles dangerous to the safety of plaintiff working and bearing a load as he was; (3) in failing to furnish suitable and sufficient help to aid in carrying out the orders of his superiors; (4) in ordering plaintiff, a youth inexperienced, to do that which the captain knew or ought to have known would be attended with great danger, and without instructing him concerning the same."