The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-12-21
Supreme Court Digest.
(Reported by Jos. l.. Seawell)

STEWART, appellant, vs.. KEENER
From Macon. Affirmed.
Plaintiff derived title from a grant of
the State and mesne conveyances and
alleged that defendant was his tenant
and estopped to deny his title. Defend
ant denied the tenancy and showed in
evidence a prior grant from the State
covering the land in controversy; Held,
that plaintiff cannot recover. The ques-
ton of fact about the tenancy, etc, was
properly left to the jury who found for
the defendant.
BIRD vs.. BRADBURN, appellant. From
Jackson. Appeal dismissed
On motion of plaintiff the court set aside
the verdict and ordered a new trial in
the exercise of its discretion. Defend
ant asked the court to find the facts
and state its reasons, upon the record.
for setting aside the verdict; Held that
the power of the court to set aside a
verdict IS a matter Of discretion is in
herent and not limited in securing a
proper administration of justice. Such
action of the court is not renewable. No
good purpose could have been subserved
in finding the facts, as a new trivial was
ordered and it was important that facts
found by the Judge should not go upon
the record 1t is only when a trial is
granted. as a matter of law. that the
action is renewable, and then the facts
should be found
WORTH, appellant VS.. WILMINGTON.
Motion TO rcinstate appeal denied.
Where appellant fails to docket his
appeal seven days before the call of the
district, the appellee can then, or at any
time during the term, move to docket
and dismiss under Rule II, provided his
motion is made before the appellant
dockets his appeal-just as the appellant
can docket at any time during the term.
provided he does so before the appellee
moves under Rule II.
If for any cause the case is not set
tied it is the duty of the appellant to
move for writ of certiorari or docket
the rest of the transcript or all he can
obtain.
COMMISSIONERS v NICHOLS ct al. Gap
peal by Conley). From Mcdowell.
Error >
Contribution between co-securities does
not arise out of contract, but grows out
OF the equitable principle that equality
is equity among persons standing in the
same situation.
One about to become a surety with 9TH
ers has the right to stipulate, without the
knowledge Of the other sureties, for q
separate indemnity for his own benefit,
unless of course the same is procured by
fraud or can be shown that it was in
tended for the benefit of all. Hall V.
Robinson. 80 y. c. IS, cited, approved
and MISUNDERSTANDING indemnity there
being procured subsequent to the signing
! of the bond
Before the relation Of co-surety exists,
that is, before signing the obligation, one
about to sign can look out for his own
indemnity. SO \. C. 63t.
MCCLURE VS.. FELLOWS, appellant. From
Mitchell Error. z
In attachment proceedings, the publica-
tion for nonresident does not do away
with the necessity of having a summons
regularly issued and placed in the hands
of the sheriff for service. The action
does not commence until the summons
is issued. Code Sec. 161; Marsh V. Will
liams, So y. C. at y. 1913.
SHELTON V WILSON, appellant. From
Pennsylvania. Error.
The deeds in this case from j. W. to
of title, and there being evidence that
the grantee had been in possession of
the land ever since the execution of the
deed in 1884, and the suit being brought
i'll January 1889 and new action brought
with a year after non-suit, but the
grantee was not made a party thereto
until 1897; 1t was held that the title had
then riDened.
Held further that the deed from NJ. w.
under which plaintiff claims under
years possession, containing no warran-
ty, is not an cstoppel. Defendant was not
required to plead the seven years statute
(Code Sec 14D but the defence can be
shown under the general denial of the
plaintiffs title. Cheatham " Young, 113
n. C. 161 Mfg. Co. V. Brooks. 106 ~
C. 107.
BOND V. WILSON. Both parties appeal
ID. From Burke. Affirmed in both APP
peals
In plaintiffs appeal: Where a jury
verdict allows credits on claims and
omits to state the dates the credits
should bear, it is not reversible error for
the judge TO direct the jury to supply the
commission
in evidence letter written by defendant
to I. after suit brought, relating to the
alleged payments made by defendant on
certain notes Held that the letter was
some evidence TO be submitted to the
jury Of the payments, and the instruc-
ton prayed for by the defendant that the
notes were barred by the statute on the
evidence was properly refused.
STATE V. FOY, appellant. From New
Hanover. Error
Indictment for larceny: The only evil
delce was that of clerk of candy MAX
er's establihmen whoe testimony in sub
stance shows that a box Of candy was
lying under table in a room into which
the defendant had been sent by the wit
ness to get some sugar, and defendant
returned with the sugar and also the
box Of candy bringing both of them to
The witness. Being asked what he had,
the defendant said nothing and was
forthwith arrested: Held that the court
below should have sustained the defend
ants demurrer TO the evidence.