The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-04-14
Supreme Court Decisions.
CReported by JOS. L. seawell.

HoDGIN VS.. BANK. Affirmed.
Partnership. Rights of surviving part
ner.
1t is the right and duty of surviving
partner to close up the affairs of the
firm-to collect debts due the partnership
and apply the proceeds to the payment
of the liabilities Of the firm He is not
compelled to pay the debts pro rata or in
any prescribed order. but holds the funds
as the firm would have done before its
dissolution by the death of one of the
partners. And it was not error in this
case for the court below to refuse the
motion for a receiver and an order of re-
ference.
FAIR VS.. SHELTON. No error.
Contracts. Failure of consideration.
To render contract void upon entire
failure of consideration, it must appear
that the consideration did not in fact
exist and it's nonexistence was unknown
to the parties. In tho absence of fraud,
this defence cannot be maintained where
the consideration is the exclusive right
to sell an article within certain terri
tory, and the purchaser finds the invest
ment profitless.
missed.
Divorce.
The requirements of Section 1887 Of
The Code in reference to actions for
divorce are mandatory; and a failure TO
aver in the affidavit accompanying the
complaint that the grounds of divorce
existed to plaintiffs knowledge six
months prior to the filing of the com
~ I1 Of rfc
diction Of the action.
BENNETT vs. TELEGRAPH co. New
trial.
Judges charge-Mental anguish.
To sustain an action for mental an
guish. it is not necessary that the tele
gram should disclose the relation of the
parties where the telegram relates to
sickness or death. Lines case, 1913 N.
c.. 1919; Cashions case 124 N. c., 459;
Kennon's case, 126 N. c., 232.
1t is the duty of the trial judge to
set out specifically in the ease" his
charge given in lieu of an instruction re-
quested by appellant.
WILKIE VS.. c. r. & r. RAILROAD CO.
New trial
Mental Anguish-Damages
Where damages are sought to be re-
covered for mental anguish, there must
be evidence of such suffering introduced
on the trial
Upon petition to rehear this case, re-
ported 127 N. c.. 205, a new trial is
granted as to the damages the plaintiff
may be entitled 20 recover.
WEEKS VS.. McPHAIL. plaintiffs APP
peal). Modified and affirmed.
-suit-Ejectment, misjoinder.
In Difference to an intimation of the
court, plaintiff may at any time be-
fore verdict submit to non-suit either
as TO all or part of the defendants, or
as to one or more causes of action, or
as to one of two tracts of land sued for
and appeal.
1t is not misjoinder to unite two tracts
in one action TO recover land, if The
tracts are continuous and form parts
of one large body. But where there is a
misjoinder by reason of such fact, the
objection is waived by failure to demur
though the court may in its discretion
divide the acton. Clarks Code (3rd Ed
Sec. 239, 2G7; Code section 272, 407; 116
n. c.. 1876
ICE SHOWS WILL CASE. Affirmed
ls-Testamentary apacity-Appeal
Bond.
Upon trial of an issue devisavit vel non
1t appeared that, at the time of the exc
cution Of the will and the attestation Of
the witnesses. the testaor was very sick
man and had to be propped up in bed to
sign the paper; and it was held that the
court below properly instructed the jury
as follows: In order that the will should
have been duly executed, the decedent
must be in such a position as will enable
him, IL he will look, to see the paper
writing which he has signed as il is be-
ing subscribed by the witnesses-must
see the attestation of the paper from the
position or situation in which he is if he
will look, and thus exclude the possibility
of the substitution of another paper and
Gas bearing upon the testamentary capa-
city, that the testator must have known
at the time of signing the paper, the
nature of his business and the property
he was disposing of and to whom he was
giving it.
No appeal shall be dismissed in the
Supreme Court on the ground that the
undertaking on appeal was not filed ear
lier or the deposit made earlier; provid-
ed the bond be given or deposit made
before the record is transmitted to the
Supreme Court. Acts 1899 oh. 1876.
WooTEN VS.. w. & w. RAILROAD co.
Affirmed.
Corporations, transfer of stock Execu-
tors.
Where a transfer of stock of cor
poration is made on its books by an ex-
ecutor, the corporation is fixed with
knowledge that there is a will, and is
chargeable with a knowledge of its con-
tents to the same extent as if it's officers
had actually read the will
notwithstanding the corporation is fix
ed with a knowledge of the contents of
the will, where the stock has been trans
ferred under the supervision of the cor
poration and sold by the executor and
the proceeds misapplied by him, the cor
poration ncurs no liability therefor, even
though the stock be specifically bequeath-
ed, unless the corporation has reasonable
ground to believe that the executor in
tends to misapply the proceeds, or is by
the very transaction misapplying them.
Where the transfer of stock is made
by an executor to a legatee named in the
will, the provisions of the will in refer
ence to the stock must be observed at
the merrill of the corDoratiOn