The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-04-12
y ybEsEs9Ya,tsY FOR KIDNEY OR LIVER DISEASES

reference cannot be ordered until such
pleas are decided.
In such case where the complaint fails
to allege specifically the contract a
suTetyship, the defect is cured by the de-
PENDANTS making such contract part of
its answer.
Where the object of the contract sued
upon was to secure the plaintiff against
the fraudulent acts of it's cashier, and
defendant relies upon breaches of the
contract by plaintiff to defeat recovery
such breaches must be specifically plead
ed by defendant and the burden is on
defendant to prove the same. Britt VS..
Insurance Company. 105 n. c., 175.
Ordered that the reference be set
aside and the case heard upon the pleas
in bar.
STATE VS.. DREW BATTLE. New trial.
On trial Of an Indictment for burning
barn, evidence Of the defendants i'll will
towards the agent who had charge of the
property, as tending to prove defendants
motive in committing the crime, is not
admissible. State vs. Rhodes III N. c.,
647 and State VS. Thompson 81 ~ c.,
1876, cited and distinguished.
Section 10 of Chapter All, Acts 1899,
providing for sthe retention of the grand
jury from one term to another is not
unconstitutional
Defendant was indicted under sub sec
ton 6, of Section 9S5 of the Code, which,
IS amended by Chapter &C. Acts 1885, pro-
vides that whoever shall wantonly ard
wilfully set fire to any stable
shall be guilty of a felony and inn
priGOnpd than five nor
more than forty years" Sub section >,
Of Section 9S5 of the Code, provides that
Every person convicted of any wilful
burning in the night time of any
stable containing a horse or a
mule shall be imprisoned not.
less than five nor more than ten years.
In addition TO the words ''wantonly and
wilfully." the Indictment also contained
the words "unlawfully. maliciously and
felonicusly," and upon the trial the
States evidence (unobjected to- showed
that the stable was burned during the
night and that it contained mules; Held,
that there was no fatal variance be-
tween the charge in the indictment and
the evidence, and that the words ''unlaw
fully, maliciously and feloniously," were
mere surplusage.
BAZEMQRE VS.. MOUNTAIN, Affirmed,
The ruling in this case reafhrms the
former decision in the same case re-
ported in III n. c. So
The description of wifes separate per-
sonal estate-"mules and horses and
farming implements. all of which she
uses in the cultivation of her land for the
use of herself and the support of her
family, is held to be sufficient
a married womans separate real es-
tate cannot be cahrged except by deed.
III n. C. 613: 115 n. C. III n. C. "a.
TURNER VS.. BOGER. Reversed.
The provision in a trust deed that in
the event of sale under the trust, the
proceeds Of sale should, in addition to
the debt interest, legal cost and rea-
sCnabe charges in executing the trust,
be subject to IAN attorneys fee of five
per cent" is void, and such charge can
not be made against the debtor.
STATE VS.. HARRISON. Affirmed
Section Is, Chapter Is, Acts 1899, pro-
vides that ANY person, corporation, ETC.,
who fails to list the poll taxes and prop
erty takes required of them by law
shall be guilty of a misdemeanor" AND
Section % of the same chapter provides
that ''All persons who are liable for poll
tax and shall wilfully fail to give them
selves in, and all persons who own prop
erty and wilfully fail to list it within
the time allowed" etc, shall be guilty
of a misdemeanor and fined not
more than fifty dollars; Held that the
two sections must be construed together
and. being thus construed, the failure to
list taxes is rendered a misdemeanor
within the jurisdiction of justice of the
peace.
HAUSER VS.. HARDING. Modified and
affirmed.
A contract between two physicians
whereby one agrees, in consideration of
$1,000, to sell the other his house and
lot in Yadkinville ito turn over and de-
liver to him his location, good will and
practice in Yadkinvlle and 1.-The terri
tory surrounding Yadldnvile," and never
again to practice as a physician at any
time in said territory, is not void as in
restraint of trade" (Cowan VS.. Fair
brother. 118 n. c. 406; Kramer vs.. Old,
115 n. c. u, and will continue during the
life OF the grantor. But the words in
the contract Territory surrounding Yad-