The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1902-05-27

Fl ba4n read three times III t1NA iot9 -
conclusive evidence OF such fact. but
the ratification of an Act neither proves
nor tends TO prove a compliance with
Section II of Article III of the ConstltQ-
ZION providing that no law shall be
nassnd TO raise money on the credit OF
The state. or pledge the faith OF the
State directly or indirectly for the pay
ment of any debt, etc, unless the Dill
fcr the purpose shall have been read
three several times in each House ana
passed three several readings on three
different days. and the yeas and nays on
such readings recorded, etc.
Section Il, Article II of the Constitu-
ton is mandatory and a failure to COM
ply with its provisions is fatal to any
statutory authority to levy Il tax or
create a debt.
The charter of the town of WaXhaw,
not having been passed in conformity
to Article II, section IA Of the Constltu-
ton, confers no power of taxation, but
as the power of taxation may be elimin-
ated from an Act without destroying It's
validity as a charter, the town of Wax
haw is by virtue of its Incorporation, en-
dowed with powers conferred generally
upon towns and cities by Chapter 81 of
the second volume of The Code and has,
" III P"l poDN VI - -
the power of taxation set out in Section
$500 of The Code.
HUTCHINS v. BANK, appellant. From
Durham. Affirmed.
Whether an action will lie against a
| guarantor Immediately upon default of
the promissor or obligor, or after fail
/ ure to recover against him, depends en-
! tirely upon the terms of the contract of
guaranty.
The guarantor is not bound with his
principal as an original obligor; he
makes his own separate contract, and is
not a joint obligor or contractor with
his principal-the original contract is
not his contract unless he assumes it
and makes it so by his separate contract.
The contract of guaranty in this case
being hat draft drawn by ]. w. H. on
B. D. c.. for green sailed hides at 81
cents, hides to be thoroughly cured and
swept clean Of salt and water before be-
ing weighed, no green or half cured
hides to be shipped, amount not to ex-
coed three hundred dollars, Will be
paid held that plaintiffs action ac-
crued against the guarantor imme-
diately upon the delivery and acceptance
of the hides by the principal, B. d. c.,
and the refusal of drawee to pay the
draft.
COGDELL, appellant v. w. & w. RAIL
ROAD COMPANY. From Beaufort.
Affirmed.
The issue Of contributors negligence is
raised by the allegation in the answer
that the death of intestate was not
caused by any negligence of defendant,
but was caused by the negligence and
fault Of plaintiffs intestate himself"
But upon application the court may order
n hi1 90
Clark's Code, Section 25O and cases there
cited.
The opinion of a witness whether the
plank in this case. if it had been sound
and not cedar-hearted OR rotten. would
have held a man of intestate's weight
and size to stand upon with safety. or
fallen on it from the top of the ear
without its breaking, is incompetent
for that it is the conclusion which the
jury should draw for themselves from
the evidence.
Memoranda of a statement by a Wit
ness, shortly after the accident occurred
and read over to him and said BY him 10
be correct, are not competent as prim-
airy evidence to contradict the witness'
testimony on the stand; but are com
petent Tor the purpose Of refreshing the
memory OF the party, also a witness to
"ho" nc statement was made as To |
what was stated to him at the time in
contradiction or impeachment of his tes-
timOnv.
Inc plea of contributory negligence is
an affirmative defence and the burden of
proving such negligence is fixed nnon |
defendant. Acts 1887, Chapter 90. Tho
court having charged the Jury that tho |
burden Oh such proof was upon defend
AM, II was not error to refuse ia in |
struct them that the law presnmac that
a person found dead and killed nv the
alleged negligence of another has ovor
clsed due care himself"
where interstate went upon the coal
car of defendant in an intoxicated con
oltlon ana by reason thereof fell off and
was drowned the doctrine of the cast
clear chance' does not apply, and the
lntesta1e S condition and his fall were
the proximate cause of his death and
not the unsoundness of the plank unon
which he fell.