The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-12-13

equitable interest in the property as
to enable him to bring this action.
Error.
c. A. Baugert (appellant) VS.. William
b. Blades ct al, from Jones county.
Opinion by Faircloth, c. j.
Where in an action to recover tract
of land, the defendants alleged title in
themselves, and it was adjudged that
one of the defendants was the owner
of certain portion of said land and
that the other defendant was the own
er of the remaining portion; Held. that
such Judgment is res adjudicata as be-
tween the said defendants and those
claiming under them.
No error. Affirmed.
Raleigh & Western Railway Company
appellants VS.. Glendon d Gulf Min
ing Il Manufacturing Company, from
Chatham county. Opinion by Mont
gomery, j.
An appeal, when perfected, suspends
the Judgment of the lower court, and
keeps the action in fieri until the final
judgment on appeal is pronounced.
Hence, where the plaintiff had n re-
straining order issued and upon the i'm
timation of the court that he could not
Held. that the damages resulting from
the issuance of the restraining order
were properly assessed after affirm
ance of the judgment.
No error.
w. +. Patton VS.. J. s. Carr (appellant,
from Durham county. Opinion by
Furches, j.
/. Where a note was executed by the
deceased partner of the plaintiff to the
defendant, who endorsed it for the ac
commodation of the maker; Held, that
the defendants liability is merely that |
of surety, and the surviving partner
has no action at law against him as the
endorser of the note, which was dis
counted by the firm.
3. In order for such surviving part
ner to recover of the accommodation
endorser. either as a partner or as n re-
ceiver of the firm, he must first show
that he has not sufficient assets of the |
firm in his hands, after paying the
firm debts, as would leave enough sur
plus to which deceased partners es-
tate would be entitled as to pay the
note.
Affirmed.
William Matthews (appellant) vs.. At |
lantic and n. c. Il. II. Co, from
Lenoir county Opinion by Fair |
cloth, e.. j.
The engineer OF train may reason |
ably suppose that a person walking in
q pathway by the side of the track in
the daytime will either stay in the |
path or move further from the track
upon the near approach of the train; |
and where such person, on account Of
his confusion in attempting TO avoid !
the train, moved so near the track, in
stead of in the opposite direction, as to
be struck by the engine; Held, that. |
the failure of the en-
gineer to blow the whistle, etc, such |
negligence on the part of the defend |
ant was the proximate cause of the i'm
jury, and precludes any recovery.
Affirmed.
Commissioners OF Chatham lapel |
lants VS.. Thorne ct al, from Chat
ham county. Opinion by Faircloth,
G. j.
/. In an action by the Commission
ers of Chatham county to restrain the
commissioners, appointed by the Leg
islature (Acts 1895, Oh. 3o3) to locate
the county line according TO the ORR
ginal survey of 177o, establishing the
county of Chatham" from locating
said boundary line on the ground of
noncompliance with such prior sur
vey; Held, that Alamance county is a
necessary party.
2. As the Legislature has the power
to change the boundaries of counties
at pleasure, an injunction against such
commissioners will not lie.
A