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pointed counted them. In this way it came to be called a division. In more modern assemblies, it is more usually effected by a call of the house, a yea or nay vote when each member's name is called: Cushing's Law of Legislative Assemblies, sec. 1615. This mode is used for two purposes, one to determine on which side the majority voted, and also for the purpose of determining whether there is a quorum present: United States v. Ballin, 144 U. S. 4. In this case, there was no viva voce vote, preceding the rollcall. With this exception, there seems to have been all done that is usually done before a division, which is now usually had by a call of the roll: Cushing's Law of Legislative Assemblies, sec. 1615. Why this was not done, we do not know. Article 2, section 9, requires that in all elections under this constitution the vote shall be viva voce. And if this section applies to this election, it does not mean a rollcall, but a vote by voice, and not by ballot. And if the vote had been taken that way, and 162 announced by the presiding officers in favor of plaintiff and no division called for, the presumption contended for by plaintiff would have availed him. But when the roll was called, the name of each member voting recorded, and the tellers appointed report the number voting for plaintiff and the number voting against him-a modern division-we have the facts, and they must prevail over the presumption which existed in favor of a quorum before that time: Cooley's Constitutional Limitations, 168; United States v. Ballin, 144 U. S. 1. It may be there was a quorum present when this vote was taken. But if there was, it does not appear to us, and we have no means of finding out whether there was or not, and no authority to do so if we had the means. And if they were present, whether they could have been compelled to vote is not before us, as there was no such proposition made, so far as we know.
But it seems to be conceded that the speaker of the house of representatives of the United States could not compel a member to vote. Nor had he any right to count members present and not voting to make a quorum, until the house adopted a rule to that effect. He then counted nonvoting members present to make up a quorum, and the supreme court of the United States sustained his action: United States v. Ballin, 144 U. S. 1. So may the legislature of North Carolina adopt a similar rule as there is nothing in the constitution to prevent its doing so. But it has not adopted such a rule, and under the authority of United States v. Ballin, 144 U. S. 1, we suppose the presiding officers were powerless, if a quorum was actually present, either to make them vote or to count them to make up a quorum. This brings us to the consideration of what is a quorum. They are of two kinds, one fixed by the constitution or power creating the body or assembly. In this way a majority of a majority may constitute a quorum and do business.
163 But where the quorum is not fixed by the constitution or the power that creates the body, the general rule is, that a quorum is a majority of all the members (Cleveland Cotton Mills v. Commissioners, 108 N. C. 678; Cushing's Law of Legislative Assemblies, sec. 247; United States v. Ballin, 144 U. S. 1), and a majority of this majority may legislate and do the work of the whole. There is no constitutional quorum, that is, a number prescribed by our constitution that shall constitute a quorum. We therefore fall under the general rule applying to legislative bodies: United States v. Ballin, 144 U. S. 1.
The legislature of North Carolina consists of one hundred and seventy members, fifty in the senate and one hundred and twenty in the house. Therefore it takes the presence of twenty-six senators to constitute a quorum in the senate and sixty-one members of the house. In this election twenty-six senators voted, which was a majority of that body, and a quorum. But in the house there were but forty-eight members who voted. This we see was less than a quorum. For this reason, plaintiff has failed to establish his right to the office.
There were various questions presented as to the defendant's rights. But the view we have taken of the case makes it unnecessary for us to consider them, and we do not. The judgment of the court below is affirmed.
QUO WARRANTO-BURDEN OF PROOF.-In a quo warranto proceeding, the initial burden of proof rests upon the defendant, and he must disclose and prove his title to the office in controversy. In fine, the law imposes upon him the burden of proving such election or appointment as invests him with the legal right to the office in controversy: Extended note to State v. Kupferle, 100 Am. Dec. 268.
LEGISLATIVE JOURNALS AS EVIDENCE is discussed in the aote to Spangler v. Jacob, 58 Am. Dec. 574, 575.
GATES v. Latta.
(17 NORTH CAROLINA, 189.) MASTER AND SERVANT-NEGLIGENCE-BLASTING.-11 a servant, about to blast rock when it is almost dark, fails to cover the blast, or to give notice sufficient in time for those near by to make their retreat to a safe place, he is guilty of negligence, and, if a third person is injured thereby, both the servant and his master are liable iu damages for such injury.
Shepherd, Manning & Foushee, for the appellants.
190 FAIRCLOTH, C. J. The defendant Latta, as the employé of the defendant Geer, was engaged in blasting rock in his millrace near the public county road, where it crosses the river Eno, and the plaintiff was walking along said road when the injury occurred, about dusk, about one hundred or one hundred and fifty yards from the dam. When the blast went off, a fivepound piece of rock struck the plaintiff and broke her arm. They were each engaged in a lawful business, and the question of negligence depends upon the manner or method in which they exercised their rights. The burden was upon the plaintiff to prove to the satisfaction of the jury that she was injured, and that she was injured by the negligence of the defendant. And, if contributory negligence is relied upon as a defense in the answer, the burden of proving it to the satisfaction of the jury is upon the party pleading it: Acts 1887, c. 33. The issues submitted were: “1. Was the plaintiff injured by the negligence of the defendants or either of them? A. Yes. 3. Did the plaintiff by her own negligence contribute to her injury? A. No."
His honor instructed the jury that if the defendant set off the blast when it was dusky dark without giving any warning, this would be such negligence on his part as would make the defendants liable. There was conflicting evidence as to whether the defendants did give an alarm, but, from the verdict on the first issue under the above instruction, we are to take it that no danger notice was given, and that was assumed as a fact on the argument before us. Under the facts and circumstances of this case, we think it was the duty of the defendant to give notice, and that his failure to do so was negligence. Sometimes the blast is covered, or by other means the flight of the dangerous parts is restricted within safe limits, and notice is not necessary, but, in the absence of such precautions 191 a notice, sufficient
, in time for those near by to make their retreat to a safe place, is a reasonable requirement. It was so held in Blackwell v.
Lynchburg etc. R. R. Co., 111 N. C. 151, 32 Am. St. Rep. 786, a case similar to the present, where there is a full discussion of the subject, and we refer to it without repeating it. It was conceded on the argument that if the facts and circumstances of this case made it the duty of the defendant to give notice of the blast, then he was liable, and, having held that such was his duty, we need not further examine the instructions, unless we could find some manifest error calculated to mislead the jury in a material manner, which we do not. The duty of giving the danger notice in similar cases has been held in other states: Wright v. Compton, 53 Ind. 337; St. Peter v. Denison, 58 N. Y. 416; 17 Am. Rep. 258; Hay v. Cohoes Co., 51 Am. Dec. 279, note. No error.
NEGLIGENCE-BLASTING.-The privilege of throwing stones or other material beyond the right of way by means of blasting in constructing a railway, so as to endanger the lives of owners of adjacent lands and of members of their families when engaged in domestic duties on their premises, does not pass with the right of way, as an incident thereto, and if such persons are thus injured through the negligence of the parties engaged in the work of construction, the latter are liable: Blackwell v. Lynchburg etc. R. R. Co., 111 N. C. 151; 32 Am. St. Rep. 786, and note. See, especially, on this subject the extended notes to St. Pete: v. Denison, 17 Am. Rep. 263, 264, and Hay v. Cohoes Co., 51 Am. Dec. 283.
STRAUSS V. CAROLINA INTERSTATE BUILDING AND
(117 NORTH CAROLINA, 808.) BUILDING AND LOAN ASSOCIATIONS/INSOLVENCY.Every person having stock in an insolvent building and loan society, whether as creditor or debtor, must be considered as a corporator, and each member indebted to the concern must be considered as a debtor, for the purpose of winding up its affairs.
BUILDING AND LOAN ASSOCIATIONS-INSOLVENCYRIGHTS OF MEMBERS.-In a settlement of the affairs of an insolvent building and loan society, each borrowing member indebted to it must be charged with the amount received by him, with legal interest from the time of the loan, and must be credited with all payments made by him, whether as fines, penalties, dues, or otherwise; and each nonborrowing member must be credited with the sums paid in by him, with legal interest from the date of payment.
BUILDING AND LOAN ASSOCIATIONS-INSOLVENCY.THE APPOINTMENT OF A RECEIVER for an insolvent building and loan society causes the debts and mortgages due the concern to mature, and they may be collected at once.
BUILDING AND LOAN ASSOCIATIONS - RECEIVER MORTGAGES-POWER OF SALE.-A receiver appointed for an insolvent building and loan society cannot enforce a power of sale contained in mortgages made to the association, except by order of court.
BUILDING AND LOAN ASSOCIATIONS/INSOLVENCYDISTRIBUTION OF ASSETS.-A court cannot instruct the receiver for an insolvent building and loan society how to distribute its funds until they are in court.
E. S. Martin, and Ricaud & Weill, for the appellants.
809 FURCHES, J. The defendant is what is called a building and loan association, organized as a corporation under 310 the laws of North Carolina. Defendant becoming insolvent, the plaintiff brought an action in the superior court of New Hanover county to close out and wind up the concern. The petitioners Iredell Meares and P. B. Manning were appointed receivers, and filed their petition and asked instructions from the court, in which they say: “Your receivers respectfully report to the court that, in the attempt to collect the debts due to the defendant association by its members, they are met with the difficulty of how to adjust the balances that may be due the association, between the amount of the debt and the amount which may have been paid in by the borrowing members on their shares of stock. The complication arises from the fact that the bor. rowers, who are indebted to the association, are likewise stockholders therein, and, as stockholders, liable for their pro rata share of whatever losses that may have been incurred in the failure of the association. If the relationship between the borrower and the association was simply that of debtor and creditor, the balance could be easily ascertained. The association, however, under its plan, loaned money only to its members, and these members made monthly payments on their stock, which, when amounting, with accruing profits, to the par value of their stock, were expected to be applied to the extinguishment of their loan, the stock being then canceled. The failure of the association, however, eliminates the possibility of maturing the stock, and necessitates an equitable adjustment between its members for the collection and distribution of the assets."
Upon the hearing Judge Graham made the following order:
“This action coming on to be heard before his honor, A. W. Graham, judge, presiding in the sixth judicial district, at chambers, at Clinton, North Carolina, on the eleventh day 311 of October, 1895, by consent of all parties thereto, upon the petition of Iredell Meares and P. B. Manning, receivers of the defendant the Carolina Interstate Building and Loan Association, praying the court for direction and instruction as to the winding up and