The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-03-17

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IFS Tor the price OF the corn and sold the draft
TO the Seymour Dame Company who attached the
draft to the bill of lading which also as
signed to the Seymour Dame Company. The
plaintiffs paid the dralt, but it was found that
the corn had been injured. In May 1899 the de-
PENDANT Gregg sold another car load of corn to
the plaintiffs and also a car load to another
firm in Springhope. The drafts upon the pur-
chasers of this shipment were also sold to said
company and were attached to the bills of lading
as before, and the bills of ladng assigned to said
company Upon the arrival of the corn al
springhope, both car loads were attached by the
plaintiffs before a justice of the peace for the
damage sustained in the January shipment-the
amount claimed being less than 5000. To that
proceeding Gregg alone was defendant but the
said company was allowed to become party de-
PENDANT and defended the action, and in the SUI
perior court the defendants allowed to
amend the attachment proceeding by making
the said company party thereto, and judgment
was awarded against the defendants for the
amount of damage claimed.
Held % That when the drafts had been cash.
of lading assigned to them, they thereby became
the owners of the corn and assumed the con
tract of shipment and the defendant Gregg had
then no interest in the which could be at
tached, and the action as to Gregg must be dis
missed.
(2.) The rights of the plaintiff purchasers were
not impaired or disturbed by the change of own.
ership in the corn, but they have the same right
81 on+;o @ha ~ fba nf Tod
ing as against the original shipper.
(3) The amendment in the Superior court
making the said company a defendant in the
attachment proceeding properly allowed, as
it had already become party voluntarily and was
claiming an interest in the action; but if it had
made an appearance in the attachment proceed.
ing merely as an intervenor to contest the title
to the property, it would then have been COM
petent for the judge to have permitted the
plaintiff to amend their attachment so as to en-
brace the same cause OF action against the in
tervenor, as they had alleged against the original
defendants.
JORDAN VS.. FURNACE CO.
New trial.
Where the plaintiff declares upon a contract
void under the Statute of Frauds the statute
to be enforced, need not be specially pleaded by
the defendant If his answer denies the facts
alleged in the complaint. 81 N. C. 434.
An action for damages for the non-perform-
ance OF a contract void under the Statute Of
Frauds, will not lie; and in such case although
the statute is not pleaded, if the answer denies
the oral contract set up in the complaint, parol
evidence in support thereof is not admissible
102 N. c., 545; n N. c. 400.
Exceptions to evidence noted in the case need
not be reproduced and specially assigned as error
sTANCTLL VS.. JAMES.
Affirmed.
In action Of trespass where there is an
arswtr of gem raj denial and no special plea,
the rlartlf may, for the purpose of an estoppel,
irlrtduce rs evidence, the record and Judgment
in former trial between the same parties in
volving the subject matter and containing
similar pleadings, without pleading the estoppel.
STATE VS.. CoNDER EFT AL.
Affirmed.
Indictment for forcible trespass. The prcsecu-
tor rented livery stable from one Bivens for the
year ending December s, 1898, and was in I'M
disputed possession. He again rented it foi
1899. On January 4, 1899, Bvens informed
prosecutor that Heath owned third interest
4
prosecutor declined to surrender possession. The
prosecutor afterwards received Heath's stoc
at the stable from the defendant Gender, Gender
saying that he wished the stock to be kept only
a few days Subsequently Gender claimed pos
session of the stable, but the prosecutor denie
that he had surrendered possession and turned
ont the horses brought by Gender and locked the
door. During the prosecutors temporary alb
sence the defendant Gender broke open the sta
BILE and put his horses back. The prosecutor
demanded possession and was refused and the
defendants removed all the prosecutors stock
and other property from the stables.
Held that the prosecutor, by receiving the de-
PENDANTS stock, did not surrender possession an
was justified in peaceably putting out the de-
PENDANTS stock when defendants claimed posses
sion. The breaking of the lock during the pros
ecutor's temporary absence, considered in connec-
ton with the subsequent conduct of defendants
vas sufficient to justify the verdict of guilty.
Forcible trespass is offence against the pos
session and although may have a lawful right
of possession he must enforce it in a lawful
manner.
OWENS VS.. W. & W. R. R. co.
Affirmed
While it is the duty of railroad company
"a common carrier. to afford its passengers
safety and protection against assaults, insults and
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