The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1896-01-28
SUPREME COURT DECISIONS.


court and was aware that his attorney
was dead and that no answer had been
filed; that the case was placed on the
next January calendar and set for trial
i'm February: that said calendar was
published in two weekly newspapers
for a month"; and that defendant lived
on a railroad only 10 miles from the
courthouse; Held, to be proper to re-
fuse to set aside a judgment by de-
fault.
Affirmed.
j. s. Fleming ct al VS.. 7. II. Stroheck-
CT ct al (appellanD from iredell
county. Opinion by Montgomery, J
Where land was sold under order OF
court and the purchaser died before
the sale was confirmed, and the owner
i'll open court agreed that the deed be
made to the heirs of the purchaser;
Held, that such owner is estopped to
claim afterwards that the purchaser
bought under an agreement to recon
vey to him upon the payment of the
amount bid.
New trial.
c. Is. Townsend vs.. Geo. w. Williams
(appellant) from Robertson county.
Opinion by Clark, !
I. Where the plaintiff, a deposition IN
Il bank fearing that the bank would
shortly become insolyent, welt. to
Withdraw his money from the bank.
but refrained from doing SO upon be-
inc informed by the defendant, who
was the vice-president and Il director
of the bank, that the bank was PEI
fectly safe and that I'VE have got ali
the money you want You need not
have any fears of the bank as long
as | am in it," Held, that the defen-
dant is personally liable to the plain
tiff for his loss occasioned by the fail
ure of the bank.
2. A motion for bill of particulars,
under Code section 259, rests in the
discretion of the court and its grant
or refusal is not renewable. Such
motions. however, should be literally
allowed, when made in time to avoid
delay, unless clearly useless or mere
~ for the purpose Of annoyance
No error.
VIM. III. Strauss ct al VS.. Carolina |
building and Loan Association, |
fAppealed by Iredell Mears ct all |
Opinion by Furches. J.
/. In the event of insolvency Of % |
building and loan association, borrow
ing members should be charged with |
the actual amounts borrowed plus 6 |
per cent interest. and be credited |
with the amounts paid in by them, |
whether the same be paid as dues, |
fines or penalties.
2. The receiver of such association |
has no power to foreclose the mort |
cage securities executed by the Dor |
&x~Ea h.. |
ton alone is authorized to foreelose Dy |
sale, although the appointment OF such |
receiver causes such mortgage debts |
TO mature.
3. The court will not instruct such |
receiver as TO the distribution of funds |
until he has them Ia court.
Modified.
W. A. Blackburn rs. St. Paul Fire and |
Marine Insurance Company (appell-
ant) from Buncombe county. Opln-
ion by FaircIoth, G. J.
Where, in an action by husband
and wife on a fire policy, ii was ad-
mitted in the pleadings that the wife
owned the property and that her hus-
band was the assignee of the policy ~
the defendants consent. The only IS
sues were. Did plaintiffs conspire to
burn the property And did the hus-
band wilfully burn it? Held, that u
was not error to exclude the assign
ment of the policy when offered by
the defendant, and there being no
other evidence offered by II, the jury
were properly instructed to answer the
issue NO
Affirmed.
Daniel Blue appellant vs.. Aberdeen
and West End Railroad Co; from
Moore county.
L. a witness who testifes that he IS
a professor of civil engineering; that
he has made the laws of moving bodies
a study and profession for several years
and that he can calculate how far 4
train will move of its own momentum,
will not be allowed to testify as ex-
pert TO contradict the evidence OF wit
nesses who testify as to the result OF
their practical experience as locomo-
tive engineers.
2. In an action against railroad for
damages from fire alleged TO have been
caused by the escape of sparks from de-
fendants engine; Held, that the in
struction that it was the duty OF de-
fendant 10 equip its road with modern
apparatus Sufficient TO guard against
the escape of fire. and TO have its en-
gines manned by competent men, anu
that if the jury were satisfied that
the engine had modern appliances to
guard against fire, and was manned
by competent men, and was carefully
operated, the defendant would not be
liable, sufficiently shows the duty OF
the defendant, and places the burden OF
proof on the defendant to satisfy the
Jury that its engine was properly man
aged.
3. 1t is the duty of railroad com
pany to keep it's track clear OF combus-
tible material liable to be ignited by
sparks, as far as may be necessary to
prevent fire, even to the full width
of the right-of-way.
Affirmed.
Sadler Gillespie al. vs.. y. W. Allen
ct al appeal by Alice j. Owens);
from. Mecklenbug county. Opinion
by Faircloth, G. j.
The act of 1887, CHI. PA, permitting
remaindermen to have partition while
a life estate is outstanding, by allow
II In 1;fa aGfatp tn mo