The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-05-30
Supreme Court Decisions.
lReported by Jos. L. seawelIl
FIN Y. BUFFALO. ERROR.


Assignment vdence-Tort.
Where sheriff commits trespass In
Selling property not subject to his pro-
cess, the claimant may elect to sue
either his official bond or the bond of
indemnity if one is taken.
The liability of the indemnity bond to
the sheriff is by virtue of the contract
OF indemnity, but the liability to the
claimant is in tort by reason of the obli-
gors in the indemnity bond being CO.
trespassers with the sheriff
The sheriff cannot be covenant not to
sue, exempt any one of the sureties on
the indemnity bond from liability to claim
ant.
The notice required by Section 297 of
The Code does not apply to the notifica-
tion given by sheriff to the surety on
an indemnity bond that the sheriff has
been sued
A judgment, unsatisfed, against one
trespasser is no bar to suit against
another for the. same trespass
Where the schedule of preferred debts
is affirmed to before q justice of the
peace who is one of the trustees in the
deed of assignment, it is invalid and the
assignment void. The schedule is an, es-
sential and indispensable part Of such
deed.
Where the action is in tort, the rule
that the judgment against the principal
in bond is presumptive evidence against
the surety does not apply.
ROWE v. LUMBER co. New trial.
Trespass on Land-Deed--Str and
Swamps.
The calls in a deed to and along the
banks of a non navigable river or creek
takes the title to the middle of the
stream; this is where the creek or stream
of water is called for But this rule
does not apply where the call is to
swamp and thence along the swamp.
(Th4 swamp lands of the State discuss
ed
In this case the defendant has no color
of title, and possession under the deed
can avail nothing. The occasional getting
Of shingles in tho swamp does not amount
to possession; it is no more than
mere trespass,
WISE V. LEoNHARDT. Error.
Wills.
81 give and devise to my son LIS chill
dren the halt Of the tract of land where
be now lives to be equally divided among
them after the death of my son l. to have
end to hold to them and their heirs in
fee simnla for ever" Held that l., the
son, took no interest under the will, but
that the title and right of possession to
the land devised nassed to the devisees
as a class Immediately upon the death
OF the testator and that those children
OF L'who were living at the death of the
testator alone answered the description.
Held further that the rrincinle of adopt
ing the future period hevcnd the death
Of the testator, in ascertaining the bene-
ficiaries and including all in the desig-
mated class, does not apply as TO real es
tate. unless there be an intermediate
estate for life or years intervening be-
tween the death Of the testator and the
time in the future when the devisees in
remainder come into possession It an
plies in beuuests Of personally where its
possession is to be held by trustees or
executors to be delivered to legatees
at future period
BANK v. BRIDGERS. Affirmed
Deed of Observation-Disclosures of
Fraud.
In an action to set aside a deed of as
signment on the ground of fraud it was
held that the declarations and admissions
of assignor and assignee made at the
time of the execution of the deed are COM
petent as part of the res gestae.
But the declarations of the assgnor,
. subsequently made are not competent,
unless it appears at least prima facie that
a conspiracy or combination has been
entered into between assignor and assig-
nee to defraud creditors. And as there
is no such ground for admitting the
declarations of the assignor in this case,
the trial judge committed no error in
excluding them
WILLIAMS V. SOUTHERN r. R. CO.
Fellow Observation-Disclosures
Affirmed
Plaintiff, an employee of defendant,
sues to recover damages caused by al
lege negligence of defendant. At the close
of the evidence the defendant moved to
non-suit plaintiff on the ground that it
appeared he was injured in the State
Of Tennessee by the negligence of fell
low servant and that at common law he
could not recover-defendan contending
that the burden was on plaintiff to show
that the common law rule, applicable to
injuries at the hands of fellow servants,
had been abrogated in Tennessee; Held
that the case does not depend upon the
presumption that the common law pre-
walls in Tennessee, but that the Fellow
Servant Act of 1897 of this State APP
plies That statute is not limited to
injuries received in this State, but APP
plies to "any railroad operating" here.
The plaintiffs action is not in tort,
but is based on contract, and the courts
of this State have jurisdiction.
TAYLOR V. CAPEHART. Error.
Contract-Judgmen Lien-Priority.
Registered contract of conditional sale
of land by A to B in 1884 provided that
title was to be reserved by A until the
full payment by B of ten promissory notes
for the purchase money.
b took possession under the contract
and held until 1888 (having paid two of
the notes. when he executed to A a paper
surrendering possession of the land and
pesonalty upon consideration of AS sur
rendering to him the notes for the pur-
chase money of the property (Which pa
per was not registered until 1886 and A
again took possession Of the property. In
1894 under power of sale in the con-
tract of 1884 sold said land and personal
property, and the purchaser conveyed the
same back to A.
In 1888 the plaintiff recovered judgment
against B and this action against the
executors of A is to have said judgment