The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-11-19

w. l.. PARRISH AND WIFE VS.. p c..
GRAHAM, receiver, ct al, appellants,
(From Durham).
Observation-Disclosures
Under The Code Practice, judgment rem
dered against several defendants may de-
termne the ultimate rights of the parties
as between thems1 ives and, where, in an
action upon promissory note, one of the
defendants, who was a co-obligor ten
dered an issue (which was raised by the
pleadings) as to whether he was supple
mental surety, it was error to refuse to
submit said issue and to render judg-
ment against both defendants for the
amount of the note
MARTIN JFRMAN VS.. ]. w. GULLEDGE.
appellant. From Anson)
Practice-Appeal.
The appellees motion in the Superior
Court to dismiss an appeal from justice
of the peace, for failure of the justice to
make return to the appellate court within
ten days as required by Section S7S of The
Code, will not be allowed where it APP
pears that the delay was due to the fail
ure of appellee's counsel to prepare trans
script with the justice as agreed be-
guilty of no laches.
T. H. VANDERFORD ct al. VS.. ]. @.
FOREMAN EFT AL appellants. (From
Rowan.
Tender Under Section 1878 of The Code,
Where, in an action by the purchaser
of leased promises to recover possession
thereof after expiration of the lease, the
lessee rendered the purchaser under Sec
tion 1873 of The Code. an amount 'as rent
for the premises since the expiration
of the lease, the purchasers acceptance
of said tender merely concludes his de-
mand as TO tho amount of rent due but
does not render the tenancy one from
year to year preclude the purchaser from
prosecuting his action to recover possess
sion.
]. S. CARR VS.. w. SMITH, appellant.
From Durham).
Evidence--Co-sureti es-Counterclaim.
Where witness has been questioned
concerning a matter collateral to the issue
evidence cannot be introduced to contra
dict his answer. The exception to the
rule where the Collateral matter tends to
show the temper, disposition or bias of
the witness, does not apply where the
witness is party to the action.
Where, upon the trial of an action to
recover amount paid by plaintiff as, CO.
surety with defendant, defendant, set up
a counterclaim fer an amount paid to
the plaintiff by third party in which
amount defendant had an interest and
plaintiffs reply admitted said payment
bet o''oeod that action had been brought
90 CT nj nj if for &c hnt in
troduced no evidence in support thereof,
it was error to refuse the instruction
that if the jury believed all the evidence
they should allow the defendants coun-
terclaim.
w r. CLEMENT ct al appellants, VS.. H.
B. IRELAND ct al. (From Davie).
Judgment Judicial Salcs-Excusable
Neglect.
A final judgment obtained by mistake,
inadvertence, surprise or excusable neg
lect may be set aside by motion in the
cause within one year.,
II the absence of cohsent of parties,
it is contrary to the regular course of the
courts to confirm judicial sale at the
same term at which the sale is made.
The purchaser at judicial sale has
nv ihuCPNhOC1t il5llS bSIOlC ooiS - vi
firmed.
The judge was authorized to set aside
judgment of confirmation upon the ground
of irregularity, surprise and excusable
neglect and his ruling is not renewable,
where It was found that the court had
given notice that no civil cases would be
tried at the term at which the sale and
confirmation were made; that the sale
was made at the noon recess and imme-
diately reported and confirmed; that the
price bid was inadequate; that defendant
was precluded from filing affidavits to OPP
pose confirmation or securing an in
creased bid and has since deposited an
amount ten per cent in excess Of the bid
and gave notice at the confirmation that
he would move at the next term to set
aside judgment of confirmation.
CARRIE JEFFRIES, by next friend, VS..
S. A. l.. R. r. CO., appellant. From
Franklin.)
Harmless Error-Damage s-Evidence-
Duty OF Engineer to Keep Proper Look
out.
The admission of irrelevant testimony
will be treated as harmless error unless
injurious to The party excepting.
III dn dCIIOH against a railroad company
to recover damages for disabling a child,
it is competent to show what the child S
labor later in life would have been worth
to herself If she had not been injured.
In such case the question proposed to
the engineer in charge of the train, After
you saw the child was anything not done
that could have been done to save the
child" was properly ruled out (RaynoI
VS.. Railroad, ante) and was also objec-
tionable for that the proof should be az
rected to the inquiry whether the injury
might have been avoided if the engineer
by keeping proper outlook could have
seen the child in time TO avoid the acci
dent.
A railroad company is not relieved from
it's duty TO keep proper lookout from the
engine, although it is shown that the en-
gineer and fireman were prevented from
performing that duty by attention to othei
lut',s. proper lookout is not sucf
lookout as the engineer may be incident
ally able to give.
ese.4 as&4ss s7S7 4 > - 1850
Everything good to eat7-Soft- shel
Crabs, Oysters. finest Steaks in the
world can be had at Dorsetts Cafe al
all hours. and served in any way thai
will rloaSp Won