The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-05-10
Supreme Court Decisions.
(Reported by Jos. L. seawell..

JENNINGS VS.. HINTON. Affirmed.
Presumption of Fraud-Burden of Proof
-FiduciaTy relations-Harmless error
Where a married woman assigned to
her husbands mortagagee an insurance
policy upon the life of the husband as col
;ateral security for the mortgage debt
the mortgages agreeing in writing to re
turn the nolieT when. the debt was paid
the law presumes fraud in a subsequent
absolute sale CT the policy to the mort
gage a1d the burden is upon him to
show that the purchase was bona fide
and for a fair consideration.
In such case the fiduciary relations be-
tween the wife and mortgage having
been established. and the wife having
testified that the policy was never re-
turned to her after she assigned it as
collateral security and that the MORTGAGE
paid nothing for the assignment of the
policy evidence of declarations of the
husband as to his agency for the mort
gagee when the sale was made, was
harmless error
DURHAM vs. ANDERS. Reversed
Penalty, Justices judgment-Vested
right.
Under Justices judgment, unreyersed,
in an action to recover a penalty under
Article XIV Section of the Constitution
and Section 1870 of The Code, the plain
tiff acquires such vested right in the
penalty as cannot be taken from him by
subsequent Act of Assembly, passed while
the action is pending on appeal in the
Superior Court. Dyer VS.. Ellington, 126
n cifad and dic+iOg,,icbad
A judgment Of Justice of the peace
is final judgment when it fully disposes
of the subject matter of the action.
While the trial on appeal in the SUI
perior Court is de novo. yet the judgment
appealed from remains in force until re-
versed or modified by judgment of the
Superior Court.
SUNMERROW VS.. BARUCI. Error.
Agency, evidence of Res Gestae.
The general rule is that the declara-
tions and admissions of an agent are not
competent to prove the agency, and the
exception to the rule is where the words
spoken are part of the res gestae.
In this case it vas alleged that i coEl-
| mitted an assault upon plaintiff. and his
agency was denied by defendant; Held
that what f said to the general manager
of defendant is incompetent to prove the
| agency or bind the principal, as the de-
claration was made after the occurrence
and therefore not part o. the res gcstac
| THE case falls directly within the rule
announced in WilaG.s VS. Telephone 20.
116 N. C. $3.50
POST GLOVER ELECTRIC CO. vs.. Nc
ENTEE- PETERSON ENGINEERING
co. No error.
Attachment, execution.
Plaintiff sued to recover an alleged debt
due by defendant, and attached certain
of its property and garnisheed a certain
debt alleged to be due the defendant by
the town of Gastonia. There was judg-
ment by default final. And in addition
to this judgment, the plaintiff prayed for
judgment subjeeting the property at
tached refused by the court below; Held
no error. Plaintiffs remedy was to pro-
ceed under section $40 of The Code Davis
VS. Garrett, % n. G. 459
The attachment is upon the interest OF
defendant in the attached property and
plantff asks that said property be adj
Judged subject to sale in this action SO
as to give the purchaser title thereto;
Held that this cannot be done. The town
has not interpleaded so as to raise an is
sue as to the title; it only answered to
the fund garnisheed and has not made
itself party to the attached property.
PEBBLES VS.. GRAHAM. Both appeals
decided in favor of defendant.
Eiectment, devise, description.
In locating land it is the duty of the
court to instruct the jury as to the boun-
daries. and 1T is the duty of the jury to
locate them. Qualifying words of de-
scripticn in n devise of land must pre-
vail over a general designation.
Where a testator devised to P "All the
lands included under the name of the
Arnold, the Geer and the Jones lands
all east of the Raleigh and Roxboro road
and South of Neuse River" it was held
that the devisee had no title to por-
ton of the arnold land lying west of
the ''RaIeigh and Roxboro road" and the
devisee, being the plaintiff in such case,
cannot recover upon the weakness of de-
fenGant's title, but, if at all, upon the
strength of his own.
If one description in devise designates
the land with certainty, evidence is adj
1issible to show that a general designa-
ton of the land is false, and the false
designation may be disregarded.