The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-12-07


mony of a witness that he did not know
the handwriting of Fl in 1869 but was
familiar with it in 1878 and up to Fl s
death, was competent-the lapse OF tune
and the possibility of change in the Sig
nature being matters for the jury.
The testimony of witness that he
made statements to others of the same
matters testified to by him on the trial
was competent to corroborate him, l2o
n c., SIT.
SMITH VS.. PATTON, appellant. From
Burke. Affirmed.
Action upon a clerks bond to recover
moneys, proceeds of sale of lands for
partition. paid into his office. The clerk
deposited the funds in a bank which
afterwards failed; Held, that a public
officer is liable as an insurer, for money
that comes into his hands. Bonds of
administrators, etc, only guarantee good
faith.)
Defendant contends that there was no
law authorizing the clerk to receive
these funds. but, here, he appointed the
commissioner to make sale of the land,
without bond approved his report and
reccipted for the proceeds as clerk took
out his costs and entered the amount due
each heir on his docket and disbursed
part of the fund; Held, that this is
receipt of the fund by the clerk by virtue
of his office.
The charter of the bank authorized
public officers to deposit money in it, but
that it should be subject to chapter 40,
Laws 1899, prescribing that no provision
in any corporation charter shall relieve
public officers or their sureties from Of
fetal responsibility.
BELDING, appellant, VS.. ARCHER ct al.
From Clay. Affirmed.
Where a motion is made by defendant
to remove a case to an adjoining county
for the convenience of witness and such
removal is allowed and upon objection
by PLAINTIFF to the county designated, the
judge, in order that a speedy trial may
be had, announces that he will remove
the case to one of three counties, and
that plaintiff might select either of those
three, and plaintiffs counsel chose one
of the counties named, stating that he
would choose that county 'if he was COM
PEELED to choose" Held that whatever
Irregularities there may have been in
the proceeding they were cured by the
action of plaintiffs counsel and he can
not complain.
Letters and communication made by
trustee to the owners of the property
without the knowledge of a CO. trustee,
are not admissible in evidence against
the CO. trustee.
In undertaking to prove the value of
lands which are the subject of litigation
it is competent to show the value OF
other lands similarly situated, in the
same county and of similar character
Warren vs.. Makely, IS N. c., y, distin-
guished.
1t is competent for a witness to give
an opinion, based upon facts, within his
own knowledge as to the practicability
to have timber manufactured and sell it
profitably, the circumstances from which
| that opinion is deduced being such that
cannot be made palpable to others al
though such witness may not be treated
as an expert.
Where a paper writing introduced as
evidence is collateral to the issues. its
contents are provable without producing
the paper. Garden VS.. Mcconnell, 116 N
c.. STE approved.
Where trustees are given the power.
in making provision for the payment of
an Indebtedness. to make a sale of the
, land itself for that purpose or to under
take the cutting and manufacturing of
the timber and lumber separate from the
land, they are not required to test the
experiment of the latter PLAN if they
| honestly believed that it ought not to be
tried;if they thought the best plan was to
relieve the Indebtedness by a sale Of the
land itself it was their duty to make
such sale.
1.EFLER VS.. w. U. TELEGRAPH CO.,
appellant. From Rowan. New trial
Action for damages for alleged negli-
gence in delivering a message received
( at Moresvillc and directed to plaintiff,
Care Southern Railway Co., Salisbury.
n. c." Being unable to find the sendee
after diligent search. the messenger boy
delivered the message to the ticket
agent of said railway company at Sails
bury; Held, that the court below properly
! instructed the jury that the ticket agent
was the proper agent of the railway COM
pany to whom the delivery might be
made, and the delivery was therefore q
delivery to said company
Held further, the message being direct
ed to the plaintiff in care of the railway
company. the latter became the plaintiffs
agent, and delivery to it's agent dis
charged the defendant from liabi1ity-the
delivery to the railway company being q
compliance with the contract
But it was error to tell the jury that
a prudent man would have informed the
ticket agent, when the message was de-
livered to him, that it was every i'm
portant message" and failure to i'm
part this information was negligence in
the defendant.
Held further, that it was no part Of the
defendants duty to inform any one of the
contents of the message
FAY, appellant, VS.. CAUSEY From
Guilford. Error
Action to recover amount of two notes,
the execution Of which was admitted
and payment sent up as a defense. De-
PENDANT undertook to prove that payment
was made in lumber. 1t appeared that
the notes given for the machinery and
paid in lumber were turned over to de-
PENDANT by an agent, and the notes sued
on were never in the hands of defendant
but in the plaintiffs possession. The
sale of the machinery for which the notes
were given in part, was made by an
lot 81 1Itp no.. chit 10