The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-11-30
Supreme Court Digest.
(Reported by JOS. l.. seawena

The capacity of one of tender years
90 testify is matter for the court be-
| low, and where it is found that the wit
ness rendered has sufficient intelligence.
| the ruling is not the subject of review
| in this court. Ga n C. sol; 10 n. C. $50
| On trial of an indictment for assault
with intent, evidence as to the associa-
/ tion between the family of the girl as
saulted and the negro race, offered by
defendant, was properly rejected; and the
| instructions. prayed by defendant, based
upon the same matter, were properly re-
| fused
STATE, appellant, V. WIsEMAN. From
! Mitchell. Affirmed.
| Criminal action before a justice of the
peace under Chapter 1872, Acts 1901. charg-
! ing that defendant allowed hogs to run
/ at large. Defendant was found guilty by
| the justice and a fine of $500 for each
hog imposed On trial of the same war;
rant, on appeal, the court below dismissed
| the case for want of jurisdiction and the
State appealed.
Held that the statute makes Violate
of section | a misdemeanor, but does not
prescribe the punishment, except as to
| each hog, and there was no error in dis
missing the action.
The Superior Court could not take ju-
lriediction of the warrant by appeal, but
if a true bill of Indictment had been
found in that court. it could then of
course have proceeded to trial and judy
mont.
LANE V. RANEY. appellant. From Crav-
en-. New trial.
1
alleged to be due plaintiff for obtaining
a policy of insurance. Defendant was
State agent end employed plaintiff as
local agent but did not give plaintiff ex-
elusive control of the business in that
locality, and this application was wit
messed and forwarded by Martin without
any notice to defendant that plaintiff had
any connection with the application. Ii
was Martins application, and if defend
ant in good faith paid Martin fun com
missions, without notice of plaintiffs
claim. the defendant fulfilled his obliga
ton.
Under the circumstances Of this case
the defendant was entitled to notice ir-
respective Of any private rule he might
have made in reference to the business
and his liability should not be made to
|
that was immaterial According to the
testimony of defendant and Martin. the
commissions on the policy were only
$3.50 one half of which only belongs
TO plaintiff if he is entitled to recove,
anything al all.
DAVIS v SUMMERFIELD ct al. appel
lants. From Durham. no error.
| The rule as to the right Of lateral sup
port is that while an adjacent proprietor
cannot impair the lateral support of the
soil in its natural condition but is not
required to give support to the artificial
burden Of wall or building supcrimposet
upon the soil, yet he must not dig in g
negligent manner, and it is negligence
to cxcavate by the side Of a neighbor'
: wall and especially to cycavate deeper
than tho foundation of that wall with
: out giving the owner of the wall notice
CT that intention, that he may underpir
and shore up his wall or relicve il O
extra weights on the floors. and the OK
cavating party should dig cut the sol
in sections at time so as to give The
) owner of the building opportunity to pro
tect II and not expose the whole wal
to pressure at once.
Unless IT appears that substantial error
has been committed on the trial below
the judgment will be affirmed
> MOORE. appellant, v MOORE From
Alexander. Motion dismissed
No judge has Jurisdiction in a distric
as to civil matters other than the judg.
; assigned to the district Cor holding by ex
: change or order of the Governor specia
terms thereinl except as TO restrainin:
orders and injunctons. Code Section,
S37-33S, and receivers, Code Section $40
9 motion for the reduction o
alimony pendente lite when once denied
should not be renewed unless there is
change in the defendants condition O
evidence showing a different state o
facts, and even then the motion shout,
be accompanied by receipt for the pay
ment of such proportion of the alimon,
as the alleged reduction in the amour
OF the defendants property bears to tn
amount of his property as shown on tn
former hearing.
TOWN OF GASTONIA v AMERICA
SURETY CO., appellant From Cast on
Affirmed.
Where town provides in its contrac
with the contractor of municipal worl
that such contractor shall pay in full
! Tor all labor and material used on sal,
work and deliver receipts therefor to tn
town. and the contractor gave suret,
for the performance of all conditions il
its contract; Held that such stipulation
are valid, and that the laborers and ma
: terial mon being the benefciaries of sucl
contract, can maintain an action Thereon
against the contractor and its surety
/ citing Corrcll V. Water Works 124 ~ c
92S: Shoaf V. ms. Co., 127 n. C. sos, am
T Lacy V. Webb, 100 n. C. 546
2. Where the town was sued by creditors
, of the contractor, seeking to garnishe,
| the balance due; Held that the tow
, cannot deduct counsel fees in such action
J from the balance due the contractor.
, TOWN OF GASTONIA V. ELECTRIC CO
, ct al. appellants. No error.
) No attachment can be levied upon III
Water Works or Electric Light plant be
longing to a municipality. If a balance
due by town TO q contractor on sucI
work can be garnsheed at all, this can
be done when there is provision l.
II tho contract that all laborers and mate
NJ cho1 bn before ho