The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-07-22
Supreme Court Decisions.
(Reported by Jos. L. Seawell.)

STATE VS.. NEW, appellant. From
Sampson. Error
A road overseer cannot exercise an
| unbridled discretion in cutting bitches
through private property to drain mud
holes in the public road which he may
| easily fill up.
STATE VS.. WISEMAN, appellant. From
Mitchell. No error.
Where, in an indictment for fOrnica-
ton and adultery, mol pros. was en-
tered as to the feme defendant Ia mar
ried woman) her husband was compe-
tent witness against the male defend
ant to prove the adultery of male de-
PENDANT with Witnesses wife prior to
their marriage.
MOORE VS.. MOORE, appellant. From
Alexander. No error.
A wife may maintain an action for
divorce in this State where it appeared
that she came to this State in 1898 with
her husband and acquired residence here
and in 1899 left the State temporarily
with the intention of returning and be-
gan the action two years after acquiring
residence and it was found as a fact that
she had not acquired residence elsewhere
and did not intend to abandon her resi-
dence here.
The amount of alimOny pendente lite
is discretionary with the trial judge,
and is not renewable unless there has
been an abuse of discretion.
After complaint filed there is no rea-
son why, upon notice, the motion should
not be made for alimony pendente lite
! before the return term
FAULKNER, appellant, VS.. KING, ct al.
From Wake. Error.
Action to recover a horse Defendant
brought former action against plain
tin for the horse on the ground that $50
paid plaintiff for another horse had
been lost by reason of defective title and
the horse was surrendered to defend
ant. Plaintiff claimed that the surrender
was under coercion of the magistrate and
defendant claimed plaintiff had admitted
buying the horse in dispute with $40 of
that money. In charging the jury the
court stated that in passing on plain
tiff's credibility the jury should consider
the cact that he had $50 of defendant S
money in his pocket and refused to give
it up and that he was insolvent Held,
error under Alb of The Code.
Held further. that it was error not to
admit in evidence the record in the
former action.
HARPER ct al. VS.. ANDERSON, appel
liant. From Edgecombe Error.
Where testator owning two adjoin-
ing tracts of land which he had pur-
| chased at different times and which
| were known by distinct names, devised
them to his children, designating the
tracts by the names by which they were
hot ral
years before his death he had put each
child in possession of the tract after
| wards devised to him and had establish
ed a canal as a boundary between the
two tracts and treated the same as a
boundary between their possessions and
that the boundary established by the
testator differed from the original boun-
dairy called for in the deeds conveying
The land to the testator, it was held,
that the question whether the testator
| intended the devisees to take according
/ to the boundaries of the tracts called
! for in the deeds under which he held or
, according to the boundaries he had es-
| tablished must be determined by the
jury.
In such case a survey and plat made
under partition proceedings showing a
division of one of the tracts between
two of the devisees (plaintiffs) was in
admissible, as defendant was not a
party to the partition proceeding.
| HOOKER ct al, appellant VS.. TOWN
OF GREENVILLE. From Pitt. Error.
| Section of chapter 497 of the Public
Laws of 1901, "to establish graded
schools in the town of Greenville." pro-
viding that eff there shall be so few
children of either race in any of the
school districts Crowded by said act)
that the board of trustees shall deem it
inadvisable to organize a school for that
race, then they snail have power to ar
range for the children of the race which
, shall be so represented to receive their
pro rata proportion of the funds raised
by the special tax provided for in some
other manner, or they may give such
pro rata proportion to the public schools
! for that race adjoining the district
herein described" etc, is held to be an
unjust discrimination and in violation
of Article TX, section of the Constitu-
tion of North Carolina.
Chapter 497 of the Public Laws of 1901
and chapter 121 of the Private Laws of
1901 are held to be unconstitutional in
that they were not read three several
times on three different days" in each
House of the General Assembly, and
the yeas and nays on each reading re-
corded in the journals