The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-05-04
Supreme Court Decisions.
reported BY Jos. 1. seawell.)

reported by Jos. l. Seawell)
! STATE VS.. sHuFoRD. Judgment arrest
ed.
Public Offices.
A de faeto officer presupposes a de iure
office.
There can be no judge of Superior
Court unless there is a district TO which
he belongs.
Section 10 of the Act of 1901 ITO pro-
vide for the division of the State into
judicial districts, ETC., is void. being con-
trary to Article w, Section II of the
Constitution of this State.
BANK VS.. LUMBER co. Affirmed.
Promissory s-Penalty-Jurisdic
ton.
The provision In a promissory note for
q penalty in the event of failure to pay
without suit is no part Of the principal
debt, and where the amount of the note
and interest is less than 5000. a Justice
CT the peace has jurisdiction. The col
lateral agreement in this case for the adj
dition of ten per cent attorneys fee in
case suit is necessary for collection" is
no part of the Indebtedness, as the note
could have been discharged before suit
was brought.
HARDY VS.. HARDY. Affirmed
Appeal
Where motion to set aside verdict
and Judgment does not allege excusable
negligence, but the facts stated therein
are urged only as an appeal to the disere-
ton of the trial judge, who, in granting
the motion, does not find that there was
excusable neglect, but grants the mo-
lion Gin the exercise Of the discretion
reposed in the court no appeal lies.
GLENN VS.. NORFOLK & WESTERN
RAILROAD co. Affirmed.
Trespassers upon railroad tracks.
ii is not the duty OF railroad companies
to furnish trespassers upon their tracks
with personal guides to protect them
while experimenting with themselves
around trains and engines or walking upon
the track.
Here the party injured, being in pos
session OF his faculties. was walking upon
the track and after hearing the sound
of the whistle turned and looked at the
train. but failed to get off the track
and the court held that he was not enti-
tied to recover damages.
NORTH VS.. BUM. Judgment modified.
Betterments.
Where, upon the issue OF betterments
put upOn the ny III an
action to recover land. the jury found
that the value OF the improvements to
plaintiffs land by defendant was $40.
but that s25 thereof was put on plain
.tifr's land before the parol contract OF
plaintiff to sell to defendant, IL was err
ror in the trial Judge to award defendant
$50 for betterments Defendant is not
entitled to recover for that part OF the
improvements which was not induced by
the parol contract of plaintiff to convey
the land, and which was placed upon the
land prior to such contract.
LINDSAY VS. BEAMAN. No error.
Partition-Section 500 of The Code.
The Code of Civil Procedure does not
require pleadings in special proceedings
&c be verified, but when one plea is veri-
ned all subsequent pleas. except demur-
rers, must be verified Code Sections
20, 27S 1928
The Judgment of clerk of the Superior
Court in partition proceeding confirming
the report OF commissioners appointed to
make Partition, cannot be colaterally i'm
peaehed, and although not approved by
the judge, Is binding upon the parties
thereto, who are not under disability, and
as 10 an infant petitioner is invalid only
IN 50 far as it may be prejudicial to his
INTERESTS.
Failure to register partition proceed
ings as required by Section 1897 of The
Code, does not affect the authenticity OF
such proceedings or preclude one claiming
title Hereunder from Offering such pro-
ceedings in evidence as color OF title.
Where land is Incorporated and assign
ed il a decree in partition proceedings
with the knowledge and consent of the
parties thereto, the administrator of one
OF the parties is estopped from denying
that the land was not originally included
in the petition.
A record in partition proceedings is col
or OF title and ripens by seven years adj
verse possession.
The evidence by a witness. not inter-
ested in the result of the action, that the
intestate bought the Nancy Doring
Land" with debt due his estate and
that 1t was agreed between intestate and
defendant that intestate was TO have
portion of the land and defendant the res
idue. is admissible under Section 500 of
HnNa