The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-12-06
Supreme Court Decisions.

Reported by Perrin Busbee, Esq, OF the
Raleigh Bar.
A. w. Smith, Admir-, vs.. r. p. L. Smith
ct al (appellants) from Davidson
county. Opinion by Clark, j.
The Code. 81 and 572 require lin or
der to confer jurisdiction) that in
confessions of Judgment" it must APP
pear by the affidavit that the amount
for which Judgment is confessed is
Justly due" and failure to do this
renders such Judgment fatally defec-
tive.
No error.
Powers, Gibbs & Co. VS.. j. c. Wall ct
al. appeal by Durham Fertilizer
COL from Stokes county. Opinion
by Montgomery, j.
The tax books of a sheriff are not
the subject of levy by attachment.
No error.
Corneiia l.. Wilson VS.. Sally /. Wilson
(appellant) from iredell county D.
pinion by Faircloth, c. j.
Where in an action for the posses
sion OF land, the defendant offered to
show seven years possession under an
unregistered and lost deed, which evil
dence was excluded; Held, that in or
der to make such evidence competent,
III WAS HtCtSEdIN Iol lDc w
have set up such facts in her answer as
defence in court of equity, so as to
give notice, to the plaintiff.
Affirmed.
j. c. Maroon. Admir-, vs.. f. I. Wyatt
ct al. (appeai by Bledsoe) from
Wake county. Opinion by Mont
gomery, j.
/. In special proceeding by an adj
sctr a f.t fa coll lnnI 70 TO assets
it was not error for the Clerk to refuse
TO permit the adult defendants to try
to prove title to the land in strangers;
especially as they had had their day
in court and had failed to make an
swer; neither was there error in con-
firming the sale against the objection
of persons not parties to the proceed
ing.
2. But the drawing by the plaintiffs
attorney of an answer for the guar
dian ad Item of the infant defendant,
though without fee and where no inn
proper influence was intended or ex-
erted, was an appearance on both sides.
and, being irregular and void, vitiates
such sale.
Error.
w. L. Grubbs (appeliant) rs. Charles
Stephenson, from Northampton
county. Opinion by Clark, j.
/. In an action under the landlord
and tenant act to obtain possession Of
certain crops alleged TO have been
raised on the land rented to satisfy
advances made TO defendant by plain
tiff, where the first and second issues
submitted to the jury presented the
questions whether the defendant had
rented the land from the plaintiff, and
sf ~.
said land; Held. that it was not contra
dictory for the jury to answer the first
and second issues in the negative and
to find the third issue, IF so, did said
Grubbs make advancements in sup
plies and money, as alleged, to said
Stephenson" in the affirmative. The
Jury simply found that defendant had
rented no land from Grubbs but had
received adyancements from him. To
give the words IF so" any other effect
would be sticking in the bark.
q Where there was evidence tending
to show that plaintiffs name was in
serted in the alleged lease after it was
signed by the defendant, il was compe-
tent for him to testify that as matter
of fact he had rented no land of the
plaintiff, not to contradict said paper
writing, but if the jury should find
that plaintiffs name was not in the
paper when so signed, to negative any
verbal contract of renting.
3. As defendant testified that he had
rented the land in question from one
Stancill, it was competent TO corrobo-
rate him by producing the lease from
the latter
L. 1t is immaterial to the plaintiff
whether the Judgment against his
In ratsHafaH in favor. nf the de-
PENDANT or the landlord, who inter
plead. But such judgment should be
i'm the alternative; either the return of
the property or its value.
Modified and affirmed.
State vs.. VIII Bynum and Baxter Kelly
(appellants), from Moore county
Opinion by Faircloth. G.. j.
l. Where defendants stole money
from the person of two men who We're
asleep by a campfire: Held, that the
Act of 1895, ch. 2s5. limiting the pun
ishment in cases OF larceny of prop
erty not exceeding the value of twenty
dollars 10 one years imprisonment
does not apply. as in cases of larceny
from the person or from the dwelling
by breaking and entering in the day
time, the said provision does not APP
ply.
2 II was rot necessary To allege
in the indictment that the taking was
from the person That was matter
of proof
3. 4 conviction as to the theft from
one of the men does not preclude q
conviction for the larceny from the
other man, though committed at the
same time. To sustain the plea of au-
trefois convict, the offence must be
the same in law and in fact,-an ex-
act and complete identity of the two
offenSes charged.
M error