The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-05-22
Supreme Court Decisions.
(Reported by Jos. L. seawellQ
HEYER V. RIVENBARK. Error.
Statute of IiroitationS-Plead

HEYER v. RIVENBARK. Error.
Statute of MISUNDERSTANDING.
The defence of the Statute of Limita
lions can be taken only by answer lCode
1881, and plea of the statute which con-
tains no facts as it's basis and which does
not mention the statute relied upon, is
a nullity.
WOODCOCK v. BOSTIC. Affirmed.
Pleading-Ds Limitations
rtgages-Evidence
When a demurrer is sustained II is
within the discretion of the court TO elth-
er dismiss the action or retain the case
and allow an amendment or the COM
plant upon payment of all costs by plain
tiff.
When an action is brought within the
statutory period it is not afterwards
barred by the lapse of three years from
the time action accrued and the filing OF
the amended complaint if the amended
complaint alleges no new cause OF ac-
ton, where the case was appealed upon
the overruling of defendants demurrer
and after certificate of Supreme court
opinion sustaining demurrer, there was
judgment by default as to two OF defend
ants and the case was retained upon the
! docket of Superior court from term to
term until the filing of amended COM
plant under order of court Webb v.
Hicks, 125 N. c.. POI; Strauss V. Boards
ley, 70 N. c. SO; Wharton V. Commission
ers, so N. G. H.
Where the purchaser of mortgaged
property entered into a written contract
to indemnify the mortgagor and the mort
gage against loss (the MORTGAGE having
assigned the notes and mortgage for
value) evidence of a subsequent parol con-
dition to the contract of indemnity be-
tween purchaser and one of the parties
Unidentified, is not admissible Quin V.
Sexton, 125 N. G. 447.
KRAMER Y. SOUTHERN RAILWAY co.
Affirmed.
Notwithstanding.
In appellants brief it is admitted that
1.-The charge of the court below was cor
rect under the decision in this case az
N. C. 323), but it is respectfully submitted
there was error in that decision, and this
| case is brought back on appeal for the
purpose of reviewing it,; Held, that the
remedy was by petition to rehear under
Rule SO, and not in applying to the lower
court to disregard and overrule the de-
cision of the Supreme court. Shear V.
| Frost t27 N. c. $685. Pretzfelder V. Insur-
ance Company, 123 N. c. 104 cited and
approved.
CARROLL V. MONTGOMERY. No error
T'leadng-Guardian- Limitation
Arrest and Bail.
The objection that plaintiffs next friend
had not been regularly appointed must
be taken by plea in abatement, and not
| on motion to non-suit at close OF evil
| dence Hicks v. Beam, 112 N. c. 643.
Here, defendant answered and thus
waived objection.
The order of the judge appointed next
friend at this juncture was in his dis
erection, and there was no error in direGt7
| ing payment of the money into court TO
await the appointment of a guardian to
receive it.
1t appearing that feme plaintiff had
taken dover in the entire estate OF her
husband in another State, it was properly
| held by the trial judge that she had no
| interest in the rents sued for in this ac-
ton.
Defendant having collected the rents
as agent for the owner, the statute of
| limitations does not run against the
trust
The court below properly found that
cause of arrest is set forth in the
verified complaint and the defendant can
| be discharged in only one Of the methods
pointed out in Fertilizer Co. V. Grubbs,
ia N. c. 47O-that is under the section
applicable to his case in chapter n,
vol. 2 of the Code.
| STATE v McCOURRY. Affirmed.
Observation-Disclosures Gestae.
The prisoner was convicted of murder
in the second degree and the charge or
the court below is sustained.
l. The declarations of a witness made in
l. the presence of the prisoner charging
| him with the homicide at the time of the
occurrence, ARE competent evidence as
h part of the res gestae.
L In this case, the witness could not
state positively that the prisoner heard
the charge made against him at the
| time of the homicide, but did testify to
| the circumstances under which it was
made, to-wit, that prisoner was in two
| feet of him. and other witnesses in about
six feet of him-the latter testifying that
they heard the charge made; Held no
| error to allow this to go to the jury for
| what it is worth, and for them to draw
| the inference that he heard the charge
| and. if so, to give the effect of quasi
| admission of guilt from his failure to de-
ny it.