The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-10-30
SUPREME COURT DECISION.
Digest of the Opinions Handed DOwf
During the Past Week.

AI0emarle ana Ralelgn II. II. W. \dPP0'-
lant), from Edgecombe Co. Opinion bJ
Avery, J.
1. Navigable waters include all those
which afford a channel for useful COM
merce, aud such waters as are public high
WAYS of COMMON right. tits not necessary
that such waters should be fit for navi
cation at all times, but their capacity
therefor II ust recur with regularity. ~
Q. In order for an individual to main
tain civil action founded upon the ob
struction OF a public highway, it is o
incumbent on him to show an injury
from which he is the sole or even pc
culiar sufferer; but the damage must be
such as is not common to every one who
actually does pass over the highway;
and while the wrong must be
special, as contradistinguished from a
grievance common to the whole public,
il NAV n vertheless be the common mis-
fortune of q number or even a class OF
persons, and give to each right of re-
dress.
8. Where the defendants bridge across
q navigabe stream prevented the plain
tiff's boat from delivering its cargo at a
mill ab the bridge, the plaintiff is en-
titled, as damages, TO the reasonable
worth of the boat for such time as it was
detained, and To he cost OF transporting
the cargo by other means around the
bridge to the mill above.
4. In determining the worth of the boat,
the reasonable wages paid the hands is
material and competent.
T. IN alInxv bn
jury TO consider the loading aud unload
ing of the cargo and the damage to it by
exposure after being nnloaded, as such
damage was caused directly by the
plaintiffs negligence and not by the OBJ
stractlon.
6 II the plaintiff suffered damage
common to class whose business re
CURED the transportation of material
from poiut below the obstruction to the
mill above. bur not common to the whole
public, his right of action is not i'm
paired by the fact that the boat was au-
therizsd TO do business as common car
rier as well as for the manufacturers
who owned it.
New trial as to damages.
Frank g. adler VS.. J Heiner & Son
ct al, (appellants) from Edgecombe
county Opinion by Furches, ].
Where it appeared that Heiner & Son
made an assignment for the benefit or
creditors naming one T., as assignee,
who, when asked If he would accept the
trust, replied THAT he would like to do
30, but could not answer until he saw
Thomas Fl Baltle;" whereupon Heiner IL
Son had the deed of assignment regis
tered, and T. being again called upon TO
accept tn trust. positively declined to do
30; that Heiaer & Son then executed an
other deed Of assignment, naming an
ether assignee, but before the same could
be registered, the plaintiffs levied on all
the property described in the deed of
assignm Mt; Held,
1. And that the registration
sfthe deed of assignment was in law
delivery, and such presumption is not
rebuted by the fact that 7 said to
Heiner before The registration THAT he
would lise 10 do so, &C."
g. Equity will noG allow trust to fail
for want of a trustee, and If necessary
will appoint one TO execute the trust;
therefore the above assignment should
be enforced by the court under its equit-
able Jurisdiction
There Is nothing in the case agreed to
indic4te whether or not the assignor
complied the statute of 1893
Judgment reversed.
harrington and Baxter (appellants) vs.
WR. Skinner e. al, from Craven coun
ty. Opinion by CLARK, J.
l. Where Il o terms of sale OF piano
to the defendant by Moses 81 Co. pro
vided for the execution of notes for the
iastalments of rent and that when all the
rent notes were paid, title should pass TO
said defendant, title being retained by
vendors until such final payment; Held,
10 be conditional sale.
3 The registration of such instrument
was properly made ia the county where
the purchaser resided and the property
was situated; and upon the removal of
psrch r Nith said property to another
county, it was not required that the in
sTument should be re registered there.
:. Where it was expressly stated that
the new notes were given Tin renewal
aad in lieu Of the former notes." and
that when the old notes were surrendered
they wee marked surrendered for
renewal note' across the face; Held, tnat
there WIS 10 noyation and the new notes
retained The same security &s the old
ezes
4. Toe plaintiff, upon his bond for the
RETURN of he property to the defendant,
If so sdjudged, or its value. was properly
adiudged to deliver the same TO the
interpleaders, Moses Il Co, but in the
absence of any finding or aQreeme ut that
the value Of piano v as $3.50. it was error
60 render judgment for that sum against
the plaintiff AID sureties if said piano
we're nor delivered to said interpeader
The value OF the piano should be ascer-
tanned aud the plaintiffs should be ad
iudged TO pay only such value, which
must not exceed the balance due on
purchase money
III ndlfed and affirmed.
Cssrse R Dixon VS. J. 0. W. Grayely
(appellaDD from Edgecombe county.
Opinion b. Faircloth, O. j.
In al action TO recover the amount Of