The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-12-01

son of plaintiffs error in calculating the
interest due upon the principal named
in the judgment admitted to be correct.
is mistake of fact which the law viii
correct. Reade VS.. Street, 122 n. c., sol.
The Judgment in such case being against
a county and the incorrect amount hav-
ing been paid thereon by the county
treasurer. the treasurer is not neces-
sary party in an action by the county TO
recover the amount over-paid
WRIGHT VS.. RAILROAD. Error.
Action for damages: Plaintiff asked the
court to charge upon the evidence that
the jury are the judges as to the dis
lance within which the train might have
been stopped with such appliances as
the law requires a railroad company to
furnish, and whether it might have been
stopped in time to prevent the injury
complained of; and instead thereof the
charges was that ''all the evidence tend
ing to show that the engine and four
cars had air brakes and Janney couperS,
and this number was sufficient to control
the train, you will not, find defendant
guilty of negligence in its failure to have
air brakes; Held, error, as it was d
rectng the verdict. 107 N. c., at p. 693;
lis n c., 1913.
The question whether or not the ma
chinery was defective should also have
been left to the jury The court con-
dennis the growing tendency to take caus-
es from the jury where disputed issues
OF fact are to be passed upon.
The presumtion of negligence arises
when there is a collision or derailment
and equally so whether the injured party
is an employe or passenger.
SCHOOL DIRECTORS VS.. COMMITS
SIONERS of FORSYTH. Affirmed
Complaint alleges that defendant for
certain years devied capitation tax of
81 and refused to allot and pay aver
to the school fund 70 per cent of said
tax so levied but paid a less amount;
and that there was larger amount in
their hands than will be sufficient to
pay plaintiffs the amount due them. The
alleged facts are not denied by defendant
and the court ordered that they be re-
strained until the final hearing from ex-
pending or using, other than for the pur-
poses of education, the poll taxes for the
year 1899 that may be in their hands
or that may hereafter be collected by the
sheriff-up to an amount which, together
cation, shall be equal to $3.50 on the to-
tai number of polls then collected, and if
after reaching that amount there shall
remain uncollected other taxable polls,
then defendants are likewise enjoined
from expanding the sum of $3.50 on each
poll that may be collected; Held, no err
ror Board of Education VS.. Commission
ers, 113 n. c., 379 cited and distinguished,
SHEEK VS.. sam Error
Action for SANDER in which plaintiff
alleged among other things that defend
ant maliciously spoke of him in presence
of j. M. C. and divers other good citi-
zens, the follows -. G.. (plaintiff) forged
my name to a check intending thereby
to impute to plaintiff the crime of for.
gerry, ETC., etc. Defendant filed affidavit
stating among other things that it was
important to have check in court for
inspection and asked that it be i'm
pounded and placed in the custody of,
the clerk, thereupon the court below orr,
dered that defendant his attorneys and.
witnesses have inspection OF the check
upon ten days notice to plaintiff to pro-
duce the same, and the time to file an
swer is extended until after such inspec-
ton, etc.
Held, that this order cannot be SuS-
tanned under section 1873 of The Code,
as that statute is for production of "evi
dence pertinent to the issue. No an
swer had been filed and hence no issue
was made. But section SIS applies to
this case-''the court before which an ac-
ton is pending" etc, and it's object is
to enable party to get information he
did not have, or give him more definite
information; Held that the exhibition of
the check would give no more informa-
tion than defendant already had, as ev-
idenced by his statement in his own affi-
davit; and the production of the check
could give no information of the words
alleged to have been spoken as they APP
pear in the complaint. The order ex-
ceeds the power given in section SIS.
If the order of the judge had gone
no further than to require plaintiff to ex-
hibit the check it could have been sus-
tanned.
Extension of time to plead cannot go
beyond the next term of court unless by
consent of parties.
DT