The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-06-03
SUPREME COURT DECISIONS
(Rcported by Joseph L. ScawcllD

trial.
Where one leaves an unguarded OK
cayation upon the sidewalk without the
| knowledge or consent of the town au-
thorties, the person making such cX-
| cavation and the town are not joint tort
| feasors in an injury resulting to one
who falls into the excavation, but the in
| jured party may sue either the town or
| The person who caused the obstruction;
and where the injured party elects to sue
both the town and the person causing
! the obstruction but enters non-suit as
| TO the latter upon the payment of GER
| tain amount, the town is thereby re-
| leased from its liability.
| In such case the ultimate liability is
upon the person who made the excavation
and the town is also liable for negligently
! permitting the excavation, to remain,
and if made to respond in damages there
for it has an action against the person
making the obstruction for such recovery
| against it.
YANDYKE VS. FARRIS. Error.
| In proceedings for provisioning land
| the court holds that the Act of 1898.
| Chapter %, provides that a line or lines
may be established, according To the
mode therein specified. if the parties de-
sire to do so, but does not prohibit either
party from asserting his rights as to
the title to the same land. Whether
the Act confcrs any substantial benefit to
the citizen, it is not the province of the
court to say. Hoylc VS.. Wilson. % n. C.,
466, and Canser VS.. Hoke, II n. c., 26S,
cited and commented on.
| LITTLE VS.. BROWN. Affirmed.
Devise to wife for life Of child's part
Of the balance of my estate, real and
personal: remainder to be divided be-
tween all my children equally
to include any child born after this date;
| Held that the last clause is a devise in
fee 10 all the children, made defeasible
| (but docs not tie up the estate) by add
ing the following limitation-"sh should any
one of them die without issue living at
his or her death then the estate of the
one so dying to go to the surviving chill
dren or their represent atives.' And this
| is operative at the death of all the
children.
| The words cor their representatives
are words of limitation and mean heirs,
and gives no estate to the representative
by way of substitution; hence, all the sur
| viving children (and children of those de-
| ceased). as eXecutory devisees. may now
| bind their heirs and convey absolutely
| their contingent interests. Overman VS..
/ Sims. 90 N c., 45l, and Overman vs.
! Tate. ia n. c., 81. cited and distin-
guished.
The devisor gives to his children equal
| " the remainder in fec after the wife S
life estate in one equal share-thus MAX
| ing their estate a vested remainder. The
deed tenderd in this case conveys a valid
title in fec.
MILLS VS.. CALLAHAN. Affirmed
| The power of a Judge to make addi-
| tioDaI parties to an action. where the
amendment does not change the cause OF
action or work injustice to the opposing
party. is settled law in this state. Code
section 273; Billiard VS.. Johnson, 65 n.
1 c., 1896 cited and approved.
/ SMATHERS VS.. GILMER. Affirmed.
Il Action for damages for shortage in
i land Deed to plaintiff with definite de-
description by course and distance contain
/ ing 500 acres more or less; no represen-
/ iation made at time Of sale to num-
her of acres; plaintiff believed he was
buying about 800 acres. but afterwards
caused survey to he made which showed
only 2G2 acres; Held that where each
party has equal means of information,
! as here, the doctrine of caveat emptor
applies. and the aggrieved party has no
remcdy.
STATE VS.. KEITH. Error.
| Indictment for cmbezZlcmcnt under
Section 101t Of The Code: the evidence is
that Young, the prosecuting witness, cul-
tivated defendants land and was to pay
one half Of the crop; defendant took pos
! session Of the crop and sold it; the crop
| and proceeds of sale belonged to de-
PENDANT and Young. and defendant has
never paid Young his share of the pro-
! cccds Held not to constitute the crime
Of embcZzlement Defendant under this
evidence cannot be treated as an off
Ger, agent clerk, employee or servant. y
They are joint owners of the crop-the
possession deemed to be vesed in defend
ant landlord. whose failure to pay the
tenant his share is breach of trust, and
The Indictment charges no criminal of
fence. Barton's case, 125 n c., 702, cited
and approved.
GLENN VS.. WRAY. Affirmed
1t is competent for the Legislature. by
provision in the charter of railroad
company, to authorize town to hold an
! election upon the question of issuing
bonds to build the road without in terms
amending the town charter Claybrook
VS.. Commissioners, 1T ~ c.. 456, distin-
guishcd.
The Act in this case authorizing the
election is not obnoxious to the require
mcnts of the Constitution Article III, Sec
ton Ii. as it appears that the bill passed
the several readings, etc. and that the
yeas and nays were entered on the jour
| nails.
On the third reading in the Senate the
bill was amended by inserting the words
"a majority of" and the House CON
cured Held not necessary for it to be
read over again in each House etc,
as the amendment is not a material mat
! ter; but, if it had been substantial mat
ter. the passage of the amended bill must
be in the manner prescribed by the above
! section Of the constitution. de novo.
The requirement "by all the qualified
voters" means 'by majority of the
qualified voters" j. e. of the registered
waters. The restraining order here was
properly dissolved.
! STATE VS.. SMITH. No error
There is moro than scintiIla Of evil
F, dence Of reconciliation and deliberation