The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-06-13
SUPREME COURT DECISIONS.
(Reported by Joseph l.. Seawell.)
Wilson VS.. Neal; affirmed.

! The decision in this case is governed
by that in White vs.. Murray, at this term
where it was decided that 'the fact that
the Legislature did not create the office
| of clerk of the Criminal court, but per-
mitted the clerk of the Superior court to
discharge the duties and receive the emo
| luments of the clerk of the Criminal
| court does not give the clerk of the
| Superior court vested right to continue
to perform the duties, etc. as clerk of
the Criminal court, after a separate office
| of clerk of the Criminal court has been
| created; and that it is within the power
of the Legislature to authorize the judge
of the Criminal court to fill vacancies ex-
listing in such clerkships until the next
election, ETC..
Mott VS.. Griffith; affirmed.
The ruling in this case is governed by
Ithat in White VS.. Murray at this term.
I See ruling in preceding case.
Boone VS.. PEBBLES; affirmed.
Action for money had and and received
by defendants interstate from rent OF
land belonging to plaintiff and alleged to
have been wrongfully appropriated to his
use. Plaintiff was allowed to testify as
to his own, and the ages of the other
plaintiffs which knowledge he got from
the family Bible in the possession OF his
sister; held competent. Adverse poses
sion cannot be presumed against a tenant
in common under twenty years. The de-
tense set up here of the Statute of Pre-
sumptions in bar of the action cannot be
sustained
State VS.. Chestnut; no error.
Defendant was convicted of an assault,
verdict was set aside and a new trial or
dered and at the same term the order
setting aside the verdict was stricken
out. and the verdict left as found by the
Jury. Defendant excepted and again
moved to set aside the verdict which
motion was continued to the following
term when it was refused; held no error.
The court has power during the term to
correct or modify or recall uneXecuted
judgments in both civil and criminal
cases.
Brown vs.. Nimocks; appeal dismissed
The appeal in this case was dismissed
as premature. The fact that the pres
ent defendant admitted the correctness
of plaintiffs claim in the settlement
under the trust deed, does not operate to
shut out other preferred creditors who
will have the right to litigate inter Sc and
to prorate in case of a deficiency of as
sets.
Dyer VS.. Ellington; reversed.
statute providing a penalty to one
suing for the same creates no contract
between the State and the common in
former, and one suing to recover the
penalty has no vested right therein until
Judgment has been rendered awarding
him the amount of the penalty; and his
inchoate right prior to judgment, may be
destroyed by special act of the Legis-
lature remitting the penalty in the par
ticular case.
Lenoir VS.. Improvement Company;
. affirmed.
Where a receiver for a corporation is
, given control, by order of court, of all the
property of the corporation apd the en-
tire management of it's affairs and the
offices of secretary and treasurer of the
corporation are thereafter practically in
; abeyance the prior incumbents of such
offices are not entitled to their salaries
after the receiver has assumed control
of the affairs of the corporation, although
they should be paid for any services rem
dered the receiver.
This court cannot review a finding that
there was no evidence tending to prove
an allegation.
|
This case is reported in 124 N. C. 292,
and upon plaintiffs petition to rehear,
the ruling is now reversed-givng the
; widow dover.
Russell VS.. Steamboat Company;
affirmed.
, Action by an administrator of child
five months old to recover damages for
the death of the child resulting from the
alleged ne. -igence of defendant. The
jury assessed the damage at 81 ,O00 De-
PENDANT insisted that plaintiff was EMIT
led to recover only nominal damages; but
the court holds upon the greater and
better weight of authority, that the
plaintiff is entitled to recover substan-
tial damages. Code sections 1899, 1900
and 147S. The amount recovered here
being subject to disposal to next of kin
under the Statute of Distributions.
Faison VS.. Grandy; error.
Action heard exceptions to referees
report. Judgment below was for about
$4,000 in favor of defendant, and that
plaintiff was the owner in fee of the land
subject to the lien. What are termed
improper charges" in the referees re-
port Of the transactions between the
plaintiff and the trust company, the court
.
the plaintiff is entitled to set up the
plea of usury as against the $4,000 note
mentioned and that the plaintiff should
also be credited with the difference in
the trust company matters as shown in
the referees report, with interest, etc.
McManus VS.. Tarleton; affirmed.
Observation-Disclosures for plaintiff. Be-
fore the case was opened in the court
below, the defendant moved to dismiss
the action on the ground that plaintiff
had alleged in the pleadings that a
certain deed Corning a part of plain
tiff's chain of title) was made to de-
fraud creditors. The motion was refused
below and renewed in the Supreme court;
held that the motion was properly re-
fused, and cannot be entertained here.
The verdict was that said deed was not
made to fraud creditors. Moreover this
deed was an executed contract; and the
Statute of Frauds as between parties and
| privies applies only to eXecutory con-