The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-10-22
SUPREME COURT DECISIONS.
Opinions Handed Down Daring the
Past Week.

Opinion by Faircl0th, O. J.
Where each party claimed title to, and
the plaintiff recovered part of the land
in controversy, the jury having failed to
answer the issue as to the damages on a
part of the land, which was left over by
the court to be decided hereafter; Held,
that in view of this fragmentary c0ndi-
ton, the judgment in respect TO costs
will not be disturbed
Judgment affirmed.
Aaron Marcus VS. Bernstein, Cohen "
Co., appellants from Tyrrell county.
Opinion by Faircl0th, G. J,
Where the plaintiff was arrested on a
charge of embezzlement preferred
against him by the defendant and was
brought before a justice of the peace
for trial, when the plaintiff, though he
denied any cmbezzlement, "acAnoWl
edged the claim and arranged with the
prosecutor that if he would withdraw
the suit or take a mol. pros, he would
settle the claim, which was agreed to, +"
the prosecutor paying the costs; Held,
1. Where a mol. pos. is obtained by the
procument or consent of the party
prosecuted, he cannot have an action
for malicious prosecution.
2. But where it dies not appear at
whose instance or request the dismissal
was entered as in this case the general
rule prevails, l. e. that the entry Ut mol
pros. is a sufficient termination of the
action for the purpose of bringing mali
cious prosecution.
3. Tne criminal law cannot be set in
motion for the purpose of enforcing the
payment of debt
No error.
W. W. Midget (sppellanD VS.. John D.
Nugget ct al 4, from DAVE county.
Opinion by Farohes, j.
Where ii a devise to his four sons, the
testator by his will provided: II request
that the upland b examined by good
punct al men and as fax N. W as con
sidered 10 be lit for cultivation. | want
10 begin at Joseph Caroon'S n ". line
and be equal y divided unto four parts
share and share alike by running straight
lines across the land from the water to
the pack lines"; Held,
1. The requirement that the land be
examined by good men" is inconsistent
with the idea that quantity alone was to
b considered in making the divi3ion.
2. A fortiori, where the land is TO be
divided into tour parts share and
share alike. This provision itself, tx
Vi terminl used IN Wllis constitutes the
devisees tenants III common Error.
CLARK Bros vs.. David Hill, Jr. (appei
lant), from Beaufort county. OpiDlcn
by Clark, J.
/. Where contract provided that
wncn The yendea should pay $l0G
cash the machine should Le shipped TO
him ;snd leased upon payments OF rent,
the title remaining IN tue vendors until
toe monthly rents should amount 70 the
prlce of the machine, when title should
De executed to the vendee; Held, that
such contract was III effect Conditional
sale.
2. The agreement not being registered,
the stipulation for retention of the title
by the vendors is invalid as to third
parties.
3. The machine "a steam feed to a saw
mlliy being attached to the sills OF the
mill by iron bolts ard the slils resting On
piling driven in the ground, became
fixture as between inc yendee ana his
morfg 4gee, and inures TO the latter's
Deneut. Error.
George Z. Faukard vs.. Roanoke Rail
road and Lumoer Company (appellant)
from Beaufort county. Opinion by
Avery, j.
Where it a appeared that the plaintiff
servant with mule and cart attempted
10 cross the defendants railroad; that
the csosslI z was partially blocked By a
Ii am; that oef, ndant's agent in charge
oil tt tram sad Hold On old man,
tbs boys will have on this log In MIL
ute and we VII move on" That The drl-
vers son, who Was on the cart said to
his father "You mad better not drive
on, the mule is scafry," that notwith-
standing the driver attempted TO c oss
and the mules foot we@G through
hole in the planks and broke s leg,
Held,
/. That the driver was warranted in
interpret & the warning OF the train
man that there was not enough room
between the end Of the rear car and the
edge Of the bridge, and it appearing to
him that there was enough room to pass,
he had the right to assume that the
road was safe and free from dangerous
holes
Q. Where testimony.is admitted for
purpose for which it is competent, but
which, without explanation might mis-
lead the jury, a caution from the judge
in his charge that it is to be cOnsid red
only in the view in which it was adj
mitted, removes all ground foI exception.
3. l. was competent ror ne Court TO
allow a witness a. nse q diagram OF the
crossing, &C., hich ne tes led a
torfec, representation OF i. his is u t