The Charlotte Democrat., 1889-03-22
Digest of N. G. Supreme Court Decisions,
Spring Term, 1889.

Powell vs.. Allen.-Courts will not allow
an improper and illegal use of their process
to prejudice party, nor will they allow
the moving party to gain advantage by
such an abuse of their power.
When one brought claim and delivery
before justice OF ths peace and, giving
the bond, obtained possession of the prop
erty, and the magistrate having no juris
diction dismissed the action, giving q
Judgment against the plaintiff tor resti
tuition OF the property or for the recovery
Of $3.50, it's value, if it should not be forth
coming, and execution issuing for the
$3.50, plaintiff applied for an injunction to
restrain the collection.
Held, That he was not entitled to in.
Ijunctive relief.
Held, That after payment of the execu.
tion it was not competent for plaintiff to
amend his complaint and demand the re.
storation of the money so paid by him, the
Superior Court not having Jurisdiction of
the sum demanded, and the cause OF action
accruing after the institution of the action.
Gully VS.. Copeland. Where there has
been an adjudication iu an action that one
of the parties owes the other certain sum
i fs
certain mortgages and the judgment is to
the effect that on the payment OF the debt
the mortgaged property shall be free from
lien, but does not direct tie sale of the
mortgaged property. IL is competent for
the creditor, the debt remaining unpaid,
| to bring an action to recover possession of
the mortgaged property and have it sold
for the payment of the debt.
Emry vs. r. & G. r. R.-The Supreme
Court on appeal will impose no limit to
the exercise of discretion by the Judge
below in<set,ling pricss, except that the
facts established by the response to them
shall constitute lawful basis to the judg.
ment and that the law applicable to any
material portion of the testimony shall be
fairly presented through the medium of
| some issue.
| Where the main question was one of
negligence in not providing a culvert un.
der the defendants roadway sufficiently
large to carry off rainfall.
Held, 1t was not competent to show that
the engineer who constructed the culvert
was n experienced engineer.
Where a witness for defendant had tes.
titled that the culvert was the largest he
had ever built, it ives competent for plain
tiff to show that not far below on the same
stream a culvert much larger had been
constructed. Where land and brick-yard
we're overaowed by back-water from a
stream, because a culvert was insufficient,
in 1885, it was not contributory negligence
in the owner TO cultivate the land and
work the brick-Yard in 1887. Where the
facts are ascertained the question of negli-
gence or of contributory negligence is for
| the court, but where there is any conflict
of testimony the court will state the rule
OF law and leave the jury TO pass on the
Iquestion of negligence.
| A grant for the user of an insufficient
culvert cannot be presumed merely from a
lapse of time.
The user in order to raise presump ptiou
of q grant must have been such as to give
| a right of action to plaintiff at any time
within twenty years; and must be sub
stantially the same during the period. TIC
estab blish it, defendant must show that at
regular or irregular intervals for twenty
years the water has overfowed the very
land and to the same extent as claimed ir
the action. Proof as to four years will not
raise presumption of like circumstances
for the period Of twenty years.
Winfree vs.. Bsgley.-A chose in action
is property within the meaning of section
2ls, Code, allowing service of sumnont
by publication. But unless the property
of the defendant has been attached or hat
otherwise been brought within the control
OF the court, the summons must be served
personally, not by publication. The juris
diction Of the court is only over the prop
erty and the service by publication is only
incidental to the Jurisdiction over the
property. An attachment will not be
granted in an action for unliquida ed
damages, and as the property of a non
resident cannot thus be brought within the
control OF the court, in such an action per
sonal service is necessary.
Warlick vs.. Plock-The statute allow,
three years after the removal of the dis
ability of insanity, in which actions may
be brought. Adverse possession for sever
years during the period of insanity viii
ripen title, and q recovery can be had -only
if action is brought within three years
next alter the disability ceases. The Issue
submitted to the jury as to the period o.
mental incapacity should be whether j,
extended to within three years next before
the bringing OF the action when the issue
is not so found new trial will be awarded
Ryan vs. McGehee and Martin.-Whert
husband and wife make valid mortgage
of the wife's land, there being unpaid
taxes on the same for which part of the
land is sold and bought by the wife who
takes a sheritf's deed therefor, such pro
ceeding is not in derogation OF the title
acquired by the mortgage. Nor is the
case different where the taxes accrued
subsequently, to the mortgage. The pur
chase OF ones own land sold for taxes by
himself is nugatory.
Hall vs.. Tilman. claim and de-
livery is instituted TO recover possession OF
personal property aud the defendant en-.
ters into bond with securities for the forth
coming of the property the liability of the
sureties extends only to the forthcoming
of the property and damages for its deten-
tion, and not to any debt the defendant
may owe the plaintiff touching the prop.
erty, where the property is surrendered to
the use OF the plaintiff Until an issue is
passed on by the jury as to the damages
of the detention no Judgment for the re.