The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-06-24
SUPREME COURT DECISIONS.
(Reported by Jos. L. Seawell.)

STATE VS.. HILL. Error.
city ordinance under which one con-
tracts to do the public scavenger work,
the effect of such ordinance being to pre-
vent the owner of premises from re-
moving refuse matter therefrom, is not a
reasonable one. and is an Interference
with natural right, so far as it involves
the right of the owner to clean up.
STATE VS.. MEDLIN. No error
The killing with a deadly weapon i'm
plies malice, and when the use of such
weapon is proved, the burden is upon the
defendant to show facts in mitigation.
Where one having made an assault with
deadly weapon is assaulted in turn and
continues the fight, he can not, however
sorely pressed, be excused upon the
ground of self defense for killing the
person assaulted, unless, prior to the kill
ing, he wholly withdrew from the fight
and honestly sought to avoid further con-
flct..
HERRING VS.. PUGH. Modified
After appeal to the Supreme court, the
Superior court judge retains jurisdiction
to hear motions and grant orders which
do not concern the subject matter of the
suit. Code Section 55S.
restraining order compelling the re-
stitution of property incident to a public
office is not in violation of Article l. sec
tion II of the Constitution of the State,
or of article IA of the United States Con-
stitution, as depriving one of private
property without due process of law.
In contempt proceedings, where respon
dents appear and answer the order to
CHI ct he T,,If ;aI VII
where the alleged contempt was commit
ted and outside the district where they
reside, their failure to object to the time
and place constitutes consent thereto.
The question is one of venue and not of
jurisdiction.
PRITCHARD VS.. COMMISSIONERS
/ Affirmed.
Action for damages against the town of
Morganton and county of Burke for burn
ing the plaintiffs dwelling to prevent the
spread Of small pox. a
The town demurred because the COM
plant failed to allege that the tortious
acts complained of were within the scope
Of the powers conferred by it's charter,
and if done they were ultra wires. The
county demurred because the acts alleged
were not within the corporate duties con
ferred or in pursuance of any order or
resolution. Held that the demurrers
should have been sustained. There is
no statute under which these defendants
could have been held liable. Distinction
between the liability of a county and
city for failure to discharge corporate
duties, discussed.
CHAMPION VS.. IVEY. New trial
The decision in 124 N. c. sol is not
sustained, and on petition to rehear a
new trial is awarded. The negligence of
a driver of public conveyance is not inn
putable to passenger therein unless the
passenger has assumed such control of
the vehicle as to be considered practically
in exclusive possession thereof. The
court lays down the principles which
should govern in such cases, though the
testimony to be adduced on the new trial
of this action may materially alter their
application.
DEBNAM VS.. TELEPHONE COMPANY
Affirmed.
Action for damages for alleged negli-
gence of defendants.
Without filing answer, and in apt time,
the defendant asked for a removal of the
case TO the United States court, which was
refused. The complaint alleged that the
defendant has become and is a domestic
corporation. Held there is no element
of Federal question in the case, and that
the Act of 1899, Chapter 62, has the
effect of making the defendant domestic
corporation. The contention of defendant
that no matter what may be the nature
of the action, all further proceedings can
be absolutely stopped in the State court
by mere petition for removal. cannot be
sustained. Nor do the questions of di-
verse citizenship and supposed existence
of such a Federal question, prevent this
court from passing upon the legality of
removal
When a petition taken in connection
with tho complaint shows prIma facie
right Of removal. it is the duty of the
State court to order the removal aud stay
further proceedings,
Held further that as defendant has be-
come domestic corporation and is in
contemplation of law a citizen of the
State, and as plaintiff sues defendant as
| domestic corporation upon cause of
action which discloses no Federal ques-
tion the cause cannot be removed to the
United States court.
AUSTIN VS.. STATEN New trial.
|
The Act of 1885 which provides that no
deed shall be valid but from it's registra-
ton, and section 1916 of the Code which
provides that where one sells land with
actual intent to defraud the purchaser
the deed shall be void as against one pur-
chsing the same land for full value and
without notice of the fraudulent sale,
while seemingly in conflict, are construed
together to effectute the purpose of their
enactment, both being passed to prevent
fraud. knowledge of the former convey
ance under the Code Section is now mani
tested by registration under the Act of
1885, but carries with it no faint or
knowledge of actual intent to defraud.
The second purchaser must now, as be-
fore the Act of 1885, be a bona 1de pur-
chaser for full value.
If plaintaf's deed in this case is void