The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-12-30
SUPREME COURT DECISIONS
(Reported by Jos. l. seawelID


frmed.
Where a cause has been referred to
referee, the trial judge has power, upon
the coming in of the referees report, TO
permit an amendment of the pleadings
TO conform to the facts found by the ref
erence. The Code, 273.
IN RE VENABLE'S WILL. Reversed.
Parol evidence of the revocation of a
will. even when there are two will offered,
is inadmissible.
Without express words of revocation a
later will does not revoke a former will
unless the two dispositions are so incon
sistent as to be incapable of standing to-
gether.
Where there are two wills of different
dates, each declaring the instrument to
be the last will'' of the testator, but
neither containing words of revocation
and the instruments are not inconsistent,
they will be construed together as the
will of the testator.
FAISON VS.. HICKS. Modified and af-
frmed.
A second or third mortgage, by obtain
ing the appointment of a receiver of the
rents from the mortgaged land, acquires
a specific lien upon such rents as against
q prior mortgage who has been less
dilgent
There was also error in the trial
judges order directing that the check
deposited by one of the defendants with
the clerk as an advance bid upon the land
be applied in payment of the costs.
HOFFMAN VS.. ACCIDENT co. New
trial.
A railroad hagman insured in an acct
dent company as freight fagman, not
coupling or switching and was killed
while placing a slack-pin between two
cars. The accident insurance policy pro-
vided that IF the insured is injured by
any occupation or exposure classed by
this company as more hazardous than
that given in the policy as the occupa-
ton of the insured the company's liza
bility shall be for such principal sum or
weekly indemnity as the premium paid
by him will purchase at the rate fixed
for such increased hazard" Held that
the single act of the insured which re-
suited in his death, did not vitiate the
policy or change his occupation to one
more hazardous than that named in the
policy, the classification of the company
being solely of occupations. Fox VS.. Ac-
cident Asso., Wis, 800.
GEER VS.. DURHAM WATER co. New
trial.
All evidence tending merely to prove a
cause of action not stated in the COM
plant is immaterial and exceptions there |
TO should be sustained.
Where the complaint OF lower ripa-
rian owner alleges in substance that the |
upper riparian owner has unlawfully di- |
verted water and thus damaged the
plaintiff in the running of his mill, the
complaint alleges no cause of action for
the defendants improper use of the wa
ter in running machinery too great for
the power of the stream nor can the |
cause stated in the complaint be regard
ed as "trespass upon real property"
under 155 of The Code.
Although the taking of water is not, in
its strictest sense, an easement, which
implies rather the use than the total
conversion of thing, it is so nearly in
the nature of an easement as to be gov
erned by the same general principles.
1t requires the continuous and adverse
use of an easement for 20 years to raise
the presumption of a grant, and the pre-
sumption extends only to the state and
extent of the user during that period.
ence to the Statute of Limitation as to
suits against railroad company for
damages caused by its construction, does
not affect the law of easements in refer
ence to other parties.
water company is quasi public cor
poration and the public interest and safe
ty will not permit its abatement as |
nuisance.
HOWE VS.. HARPER ct ais. Reversed
Objection for defect Of parties must be |
made by answer or demurrer, otherwise |
it will be deemed to have been waived.
BY virtue of section 1855 of The Code |
the mortgage of a railroad company con-
veys nothing as against the claim Of one |
for personal injuries sustained either pri- |
or or subsequent to the mortgage, and |
in an action against the receiver of a |
mortgagor company and the purchasing |
company under foreclosure of the mort
gage to recover damages for injuries |
sustained before the mortgage, the mort |
gagor company is not necessary party. |
and in such case judgment for damages |
upon the verdict should be rendered |
against the company purchasing under
foreclosure of the mortgage or any funds
of the mortgaging company in the hands !
of its receiver may be applied to the
judgment.
DAVIS VS.. YELTON. Affirmed.
The plaintiff contracted in writing to
sell and convey a tract of land to the
defendant who agreed verbally to pay
$4O0 for the land upon day agreed. Be-
fore the day the defendant notified plain
tiff that he declined to perform his prom |
Use. Plaintiff sues for specific perform
ance, rendered his deed and demands
that defendant pay the purchase money
The defendant pleads the Statute of
Frauds. The trial judge refused to admit |
parol evidence and held that the plaintiff
could not recover; Held no error.
MILLIONS GIVEN AWAY.