The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-12-07
SUPREME COURT DECISIONS
Reported by Jos. L, seawell.)

Reported by Jos. L. Seawell)
GRAY v. LITTLE. New trial
In an action by the husband of de-
ceased wife, as her administrator, to re-
cover damages by reason of the wife's
death caused by the malpractice of the
attending physician, the recovery is re-
stricted to compensatory damages. Code
Section 1893, 1899. This case reportd in
126 N. c., 3S5, commented on and ex-
planned.
The appellant, upon reversal of judg-
ment below, cannot recover of appellee
the cost of printing unnecessary matter
included in the transcript.
WISEMAN vi GREEN. Affirmed
Parol evidence is admissible to correct
a mistake in a deed which plainly APP
pears from the deed itself &c N. c., Sc;
119 N. c., 1922, but where the calls in a
deed are west, north, east, south and
to the beginning, SO as to include the
mill site and two acres the deed cannot
be altered by reversing the calls, when
such alteration will not include 1.-THE
mill site" mentioned in the deed. As n.
C. 3S9; rs N. C. $40; 76 n. c. 469.
STATE v. EVERETT BROWN. Affirmed
Chapter 593 of the Acts of 1899, provid-
ing an extra term of court for Catawba
county without a grand ury, is construed
to mean that the cases to be tried al
such extra term are cases in which nc
grand jury is required and said Act is
not in violation of the Constitution, as a
grand jury is provided for the regular
terms of courts of the county. Mott VS.
Commissioners, 12S n. c.. S66 distin-
guished
The indictment found against defendant
by a grand jury for the extra term pro-
vided by Chapter 500 of the Acts of 1895
was properly squashed for want of juris-
diction.
SHOAF V. FROST. No error.
The former ruling of this court in this
case, 123 N. c. 343, the jury having fixed
the value of the whole tract in a home
stead proceeding at $4,000, the land
should be divided into two tracts of equal
value in the opinion of the appraisers
with election to the homesteader to take
his choice, is res judicata as to this
case.
The finding of fact by the judge be-
low upon the affidavits filed in reference
to this matter is conclusive on appeal
11S n. c. GOA and cases cited.
. W OOS aim iAASd'
On trial of an indictment for burglary
evidence as to the identity of defendant
is admissible when more than a mere
| scintilla and its weight is to be determ-
| ined by the jury. The judge below prop
| erly received the evidence that 1.-THE mar
who entered the room was small OF
stature, without coat or hat" that the
witness knew the figure, but could moi
icf; oh hn m M 4
darkness; that the figure in the room
that night compared more favorably with
the defendant than any one lse.' State
" Lyle, III N c. 799.
The solicitors comments upon the fac
that defendant had subpoeaned witnes:
and failed to examine him were not i'm
proper Estate V. Jones, II N. c. $40; Stat,
" Kiger, rs N. c. 1850 nor the remark:
| of the solicitor that the defendant haC
failed to prove his whereabouts upon tn,
night in question, as such criticism wa!
| justified by the evidence. State V. John
son, So N. c. G23.
GARDNER v. SOUTHERN R. R. co. At
| firmed
A common carrier is not permitted
| even by express stipulation, to exempt it.
| self from loss occasioned by its own neg.
| ligence.
Where a car load of stone Is wrecked
| and destroyed by the negligence of com
mon carrier, the measure OF It's liability
i is not to be determined by the value o.
| the stone as named by the shipper il
| the bill of lading under the instruction
of the carriers agent, when it appears
| that the actual value far exceeds thai
| named. and that no special advantage was
| to accrue to the shipper by reason of sucf
| low valuation.
common carrier may make valiC
| agreement as to the value of the article
| shipped, but such agreement must be rea.
| sonable and based upon valuable con
| sideration; and the agreement will be
| strictly construed. Hart " Railroad, II.
| u. S. S31, cited and distinguished.
| SMITH v. TEW No error.
The record of a partition proceeding
| is color of title. which may be perfected
| by possession Hereunder for thirty years
| Bynum V. Thompson, Ired. Law SIS.
| LOVEN " PARSON Error
/ The collector of an estate took posses
| sion of personal property under claim ant
| delivery and after delivering the same t
| the administrator, judgment by defaul
| final was rendered against the defendant
reciting that the defendant was invol
| vent and decreeing that the collector re
cover the costs against the estate in the
/ hands of the administrator and also an al
| lowance of ten dollars counsel fees; Held
| error The administrator having been ap
| pointed before final judgment he shout,
| have been substituted as party plaintiff
/ but, as he was not made party to tn
i RI We r1 tho
| and allowance of counsel fees agains
/ him. In such case it is admissible for tn
/ administrator to enter a special appear