The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-12-01
UPSREME COURT DECISIONS.
(Reported by JOS. F. seaweIl.)


Where an Indictment charges murder
in the first degree the grand jury have
no power to return it "a true bill for
murder in the second degree"
COOPER VS.. ABEL SECURITY co. At
frmed.
The liability of subscribers for stock in
a corporations is several and judgment
creditor of an insolvent corporation, seek
ing satisfaction of his judgment from the
assets of the corporation, may proceed
against the unpaid subscription stock of
one stakeholder without the joinder of
other stockholders. This case is distin-
guished from proceeding to wind up
the affairs of a corporation and equaliZe
the burdens Of stockholders.
BANK VS.. IRELAND. No error.
Except in a mortgage or deed of trust,
the word charge when used in connec-
tion with a married woman's attempt to
affect her property by contract with the
written consent of her husband is con-
strued to mean that the property is made
liable for her debts under execution, as
if she were a feme sole.
In such case the word charge" is not
construed as implying that she has Gre
ated lien upon her property which will
prevent her from afterwards transferring
the same, and she is still entitled to her
homestead therein.
An instrument signed by married wo-
man, with the written consent of her hus-
band which provides that she docs here
by charge and specifically bind her fol-
lowing separate estate for the payment
of all her Aforesaid obligations, and any
and all renewals thereof" Held, not to
be mortgage.
FLEMING VS.. harden. Petition to re-
hear dismissed.
The decision in this case reported in
126 N c., $50, is adhered. to. A motion
for new trial for newly discovered evil
dence will not be entertained upon pc
tition to rehear, even if due diligence
has been shown.
FINLAYSON VS.. KIRBY. Dismissed.
Where an appeal comes to this court
and an opinion is delivered remanding
it to the court below that necessary and
proper parties may be brought in, and
the same is by inadvertence kept upon
the current docket here, and other or
ders subsequently made, it was held that
the same are utilities, as the case, in law,
is not here The court therefore di-
rected that it be discontinued as case
in this court, and that the court below
will proceed with the cause as directed
in the opinion.
STATE VS.. TORRENCE. No error
Indictment in substance charged de-
PENDANT with obtaining goods of j. NJ S.
asserting that he was owner of a chose
in action against railroad company and
agreeing in writing to apply his wages
(from the company to the discharge of
the debt; whereas he refused to apply
said wages but disposed of the same in
some other manner than agreed in said
representation; Held, that the indictment
is good under section 1927 of The Code.
1t is on the same footing as section 1889
for disposing of mortgaged property; and
under the evidence the court below COM
mitted no error in instructing the jury
to find the defendant guilty. State VS..
Whedbee, 124 N. c., 796, cited and dis
tinguished.
TAYLOR VS.. VANN. Appeal dismissed
Where, in an action to determine the
title to a public office, the term of office
expires pending the appeal of the defend
ant this court will not undertake to de-
termine the merits of the action but
will dismiss the appeal.
In such case, as the judgment below
must be presumed to be correct until re-
versed, it is not proper to dismiss the
action, the result of which would be to
tax the plaintiff appellee with the costs of
an action in which he has recovered
judgment. Coward VS.. Commissioners, 80
N. c., SIS, distinguished.
REIGER vs. WORTH. Error.
Defendant sold plaintiff a quantity of
seed rice representing it to be good, but
it proved worthless, and this fact was not
discovered by plaintiff until it was too
late to plant another crop; Held, in an
action by plaintiff to recover damages
of defendant that the trial judge COM
mitted error in instructing the jury to
''allow plaintiff such sum as they would
find from the evidence that his net profit
on the crop would have been, if there
had been no breach of the warranty; that
this is the sum left after deducting ex-
penses of preparing for, and working the
| crop and housing and marketing it,
The damage which plaintiff is entitled
| to recover is the amount which he paid
| defendant for the rice, the amount which
| he expended in preparing the soil for
the crop and in sowing the seed and, as
! it was too late to plant another crop,
| the plaintiff is entitled to recover rea-
| sonable rent for the land, subject to be
reduced By such amount as defendant
may be able to show that the plaintiff
/ could have rented the land for, after it
/ was too late to sow rice. Discussion
| by Montgomery, j.. of authorities relat-
| ing to remote and coniectural dam
| ages.
| WAINWRIGHT VS.. BOBBTTT. Affirmed.
The recital of execution and sale in a
| sheriff's deed is prima facie evidence
| thereof subject to be rebutted by proof
| to the contrary The court reviews the
| earlier decisions in this State to the con-
/ .trary but adhere to the more recent de-
| cisions, which sustain the above ruling
| HALTOM VS.. RAILROAD. Ma error.
1 Where a conductor ordered the plaintiff
| employee to get a rock and scotch" a
| rolling car in the night time it was
held to be negligence on the part of de-
PENDANT acting through it's conductor; and
defendant is liable in damages for the in
jury to plaintiff.
The plaintiff being in the discharge OF
his duty under the order of the conductor
who had power to discharge him if he
disobeyed, the burden is on defendant tc
show contributory negligence-and none
on N