The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1901-01-01
SUPREME COURT DECISIONS

tRopOlIGG Dy JOS. Il. ScdWeiI-)
MINIS MFG. CO. VS. BLYTHE. At
frmed.
Where a cause has been referred to a
referee the trial judge has power, upon
the coming in of the referees report, to
permit an amendment of the pleadings
to conform to the facts found by the ref
erence. The Code, 273
IN RE VENABLE'S WILL. Reversed.
Parol evidence of the revocation of
will, even when there are two Will offered
is inadmiSsible.
Without express words Of revocation, q
later Will does not revoke a former Will
unless the two dispositions incon
SisteEt as to be incapable of standing to-
gether.
Where there are two wills of different
dates, each declaring the instrument TO
be the last Will of the testator, but
neither containing words CT revocation
and the instruments are not inconsistent
they will be construed together as the
will of the testator.
FAIsON vs. HICKS. Modified and at
tirmed.
A second or third mortgage, by obtain
ing the apDOin tment Of a receiver Of the
rents from the mortgaged land acquires
-
q prior mortgage who has been less
diligent.
There was also error in the trial
judges order directing that the check
deposited by one of the defendants with
the clerk as an advance bid upon the land
be applied in payment OF the costs.
HOFFMAN vs.. ACCIDENT co. New
trial.
A railroad fagman insured in an acct
dent company as freight hagman, not
coupling or switching and was killed
while placing 4 slackpin between two
cars. The accident insurance policy pro-
vided that IF the insured is injured by
any occupation or exposure ciaSsed by
this company as more hazardous than"
that given in the policy as the occupa-
ton of the insured 1.-The company's liza
bilty shall be for such principal sum or
| weekly indemnity the premium paid
| by him Will purchase at the rate fixed
| for such increased hazard" Held that
| the single acc Of the insured which re-
| suited in his DEATH did not vitiate the
| policy or change his occupation to one
| more hazardous than that named in the
| policy, the classification of the company
| being solely of occupations. Fox vs.. Ac-
| cident AssO. G Wis., 800.
| GEER vs.. DURHAM WATER CO. New
trial
! All evidence tending merely to prove a
| cause Of action not stated in the com
| plant is imma terial and exceptions there
| to should be sustained
: Where the complaint OF a lower ripa-
! rian owner alleges in substance that the
| upper riparian owner has unlawfully d-
| verted water and thus damaged the
| plaintiff in the running of his mill, the
| complaint alleges no cause of action for
/ the defendants improper use of the wa
/ ter in running machinery too great for
| the power of the stream nor can; the
| cause stated in the complaint be regard
ed as 'trespass upon real property
| under 155 of The Code
Although the taking of water is not, in
! Its strlcteSt sense, an easement, which
| implies rather the use than the total
| conversion of thing, it is so nearly in
| the nature Of an easement as to be gov
| erned by the same general principles.
1t requires the continuous and adverse
use of an easement for 20 years to raise
! the presumption Of a grant, and the pre-
sumption extends only to the state and
extent Of the user during that period.
The act Of 1895, chapter 224, in refer
| ence to the Statute of Limitation as to
|
| damages caused by its construction does
| not affect the law of easements in refer
| ence to other parties.
water company is a quasi public cor
! pOration and the public interest and safe
ty will not permit its abatement as a
nuisance
| HOWE VS.. HARPER ct ais. Reversed.
Objection for defect of parties must be
| made by answer or demurrer, otherwise
| Is will be deemed to have been waived.
BY virtue of section 1855 of The Code
| the mortgage of a railroad company con
| veys nothing as against the claim Of one
| for personal injuries sustained either pr
| or or subsequent to the mortgage, and
| in an action against the receiver Of a
| mortgagor company and the purchasing
j company under foreclosure of the mort
| gage, to recover damages for injuries
| sustained before the mortgage, the mort
| gagor company is not q necessary party,
| and in such case judgment for damages