The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-11-10
Supreme Court Decisions.
cReported by Jos, L. seawell.)


STATE Ey REL L. w. CARTER VS.. w.
& w. RAILROAD EFT AL, appellants.
tFrom Columbus.)
Penalty for refusal to receive freight
evidence.
Where a railroad company refuses to
receive a drove of cattle for shipment
a separate penalty of $50 for each head
may be recovered under Section 1864 of
TIE Code.
In the trial of an action to recover
such penalty letter in reference to the
tender of the cattle from the railroad
agent, who refused to receive the ship
ment, to a superior official, was properly
excluded
CHARLES CARTER VS.. CAPE FEAR
LUMER CO., appellant. (F'rom New
Hanover.)
Negligence-ordinary care.
An act or omission resulting in damage
is not actionable negligence unless the
person responsible therefor could have
foreseen and provided against the result
by exercising ordinary care and pru-
dence.
Ordinary care" is the reasonable care
ordinary prudence and intelligence.
STATE, APPELLANT VS.. ANDERSON.
(From Randolph.)
Concealed weapons.
An indictment under Section 1905 OF
The Code, for carrying a concealed weap-
on, does not lie against a night watch
man, who carries a pistol while on duty
upon the premises he is employed to
watch.
e. MDOUGALD, APPELLANT VS.. TOWN
OF LUMBERTON.
Assumption of evidence-issues-
nom sui.
Where it does not appear that the
danger in the work was so obvious as to
put the plaintiff on his guard, he will
not be held to have assumed the risk.
Where evidence is offered upon pleas
of contributory negligence and assump-
ton of risk, separate issues should be
submitted upon those questions. Rule in
Rittenhouse VS.. Railroad, 120 N. C.. 544,
modified
In cases of non-suit or where demur-
rer to the evidence is sustained, the ap-
pellant will be required to indicate, eth
err in the case on appeal, oral argument
or brief, the particular parts of the evil
dence upon which he bases his cause of
action
p. C. CHEEK vs.. SUPREME LODGE
KNIGHTS OF HONOR. APPELLANT.
(From Alamance.)
Benevolent societies-insurance-d
murre-.
Where, in an action upon a certificate
Of insurance of benevolent society, the
complaint alleged that the plaintiffs
husband was a member of a local lodge
of the society in good standing, etc. at
his death; that the local lodge forfeit
ed it's charter three years before the
death of the insured and the insured was
not officially informed thereof until after
the lapse Of time allowed insured to join
another local lodge, without undergoing
physical examination and that prior to
the suspension Of the local lodge the in
sured became utiinsurable; Held not de-
murrable upon the ground that the in
sured forfeited his insurance by failing
to join another local lodge of the defend
ant after the suspension of the lodge of
which he was a member.
A. F. BROOKS VS.. ]. H. SULLIVAN
(From Guilford)
Before CHI. 1888. Acts 1899. the assignee
of a negotiable note before maturity as
collateral security for pre-existing
debt, took subject to equities of which he
had no notice. Sections 1927 of said Act
provide that to the extent of the debt
secured such assignee takes free from
equities of which he had no notice.
T. B. HOLT, EX'R. VS.. BARNEY JOHN
SON. APPELLANT. (From Wake)
Parol evidence is not admissible to
vary a written contract.
Findings of fact by referee under
a consent reference, are conclusive If
there is evidence upon which to base
them.
An agent cannot prove his agency, the
principal being dead; nor is he allowed
to prove the scope of his agency.
Conversation between an agent and
third person in reference to matters out
side the scope of his agency are res inter
altos acta, and not admissible; and the
testimony of the agent concerning such
matters, is also inadmissible under 500
of The Code, where the principal is dead
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