The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-06-03

mcnt against a trm, and the referee ilndS
that he paid no money to the plaintiff in
the Judgment, and the finding was APP
proved by the judge below; Held there
being evidence to support the finding, it
was conclusive on appeal and it fr-
lows as matter of law that the defend
ants claim was properly disallowed
COWELL VS.. PHOENIX INSURANCE
Co. Affirmed
Action to recover amount of fire in
surancc policy: The defence is that the
plaintiff is not the sole and unconditional
owner of the house and that he failed
to disclose the true ownership; but it
was admitted that at the time the policy
was issued the defendant had notice that
plaintiff claimed the building was on
! leased ground; Held that the policy here
is not nvalidated by clause in the
| policy rendering it void if the subject
| thereof is on ground not owned by the
assured in fee simple" as defendant had
notice that the building insured was on
| leased ground.
land owner can sell the house there
on by parol and convert it into per-
| sona property by consent Of the contract
ing parties.
WITTKOWSKY VS.. BARUCH. Reversed
Taking the allegations in complaint as
to defendant to be true, the deed is
| fraudulent as to creditors of defendant
! husband; but under the general assing
ment by defendant of his property to
! plaintiff, all creditors stand on equal
footing-no preference can be given to
plaintin even under the agreement made
| that the assets were to be used by l.. in
! compromising the debts, and it is held
/ that plaintiff has no cause of action on
| the $4,000 notes surrendered to L., under
| the agreement with defendant to do so,
and the contention that this being
composition of the debts of the as
signor the new promise on which plaintiff
relies is in fraud of the other creditors,
| is supported by authority. This ele-
ment of fraud however, the court say
is not sufficiently apparent on the face
| OF the complaint to justify a holding
| that the new promise is in fraud of the
rights of the other creditors. The
cause must go back for trial that the
facts may he developed and found by the
court or jury, as the case may be.
FRANK SMITH VS.. w AND w. r. r. CO.
New trial.
| Plaintiff sues to recover for personal
| injury sustained in performance of work
for defendant upon the allegation that
the work was dangerous and its character
unknown to him at the time of the in
jury; Held that, as the evidence shows
| no loss of time, no money paid out, and
no mental anguish endured by plaintiff,
it was errCr in the judge below to tell
| the jury that the plaintiff was entitled
to recover compensation for the same.
| The new trial is restricted to the issue
| of damages.
| MCMILLAN VS. w. AND w. r. r. co.
Affirmed.
! Action for damages in which it was al
legged that defendant negligenuy set fire
| to rubbish on its land and caused injury
| to plaintiff, and at the close of plain
| tins evidence the defendant moved to
non sut. Evidence of plaintiff is that
the right of way was grassy and had not
+, been burnt off for year-the fire oc-
Cured On the right Of way-grass set
on fire by sparks emitted from engine,
! etc. Motion to non-suit properly refused
| The negligence complained of was a de-
J fective engine and defendants testimony
4 tended to show that some tramps' in
the neghborhood negligeutly caused the
! fire. The court charged the jury, among
/ other things, that the burden was on
! the plaintiff to satisfy them by pre-
| pondrance of evidence that the company
permitted rubbish or combustible matter
to remain on its right Of way so near
the track as to become ignited from
! sparks and extend to plaintiffs land
and that they must be satisfied that the
/ fire was occasioncd by sparks emitted
| from the engine, but if the sparks fell
! beyond the right of way the company
HN IiahI Hold
BOARD or EDUCATION vs. TOWN OF
HENDERSON. Decided against the de-
PENDANT
All fines" collected by a municipal
| corporation for violations of the criminal
laws of the State. including misdemeanors
under $500 of The Code, for violations
of town ordinances, belong to the COM
mon school fund of the county. Consti-
tuition Article TX, Section g. But all
! penalties" collected by a municipal cor
poration for violations of its ordinances
are subject to municipal purposes. Fine"
! and penalty" distinguished.
Chapter 1913 of the Acts Of 1899. amend
ing Section 1896 of The Code and provid-
ing that said fines and penalties shall
be paid into the treasures of said towns.
| etc" and that no action shall be
! brought against any town IOr the re-
covery of fines and penalties heretofore
collected" etc, is unconstitutional. SUIT
ton VS.. Philips, lie N c., distinguished.
DUNN VS.. BEAMAN. Error.
A creditor, after iDstituting a credi-
tors bill, may by collateral proceedings
contest the claim of another creditor of
| the same debtor
The proceedings authorized by Section
1926 Of The Code are between a creditor
and the personal representative in the
ordinary course of administration. and
have no application where an action has
been begun under Section 144S of The
| Code.
The wards of a deceased guardian (who
are his children) in attempting to prove
| their claims against his estate arc in
| competent under $50 of The Code to
| prove nom payment by their father, or
that he never informed them of the
Indebtedness due them. In such case,
the chldrens' averment or their igno-
rance of their claim against the father
is not sufficient to predicate a finding OF
fraud, and their claims are barred by the
ten years statute after the children ar
rive nj