The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-05-18
Suprme Court Decisions.
(Reported by JOS. L. Seawell.)

ter brought out in the answer.
Fellow servant includes all who serve
the same master, work under the same
control, derive authority and compensa-
ton from the same source and are en-
gagged in the same general business,
ments.
STATE v. HOWE. appellant. From
| Union. Judgment arrested.
plea of guilty in Justices court to
a warrant which fails to charge an Of
fence, does not prevent defendant from
pleading not guilty to the warrant when
amended by the solicitor upon appeal to
| the Superior Court.
BAILEY and JOHNSON & BARBOUR v.
| CITY OF RALEIGH, appellant. Re-
| versed
| The Legislature cannot compel pay
| ment by a municipal corporation of
| claim which it is under no moral or legal
obligation to pay.
( The Legislature has power to authorize
a city to levy a license tax upon the sale
| of spirituous liquors within one mile of
| the corporate limits and where such tax
has been collected under legislative au-
| thOrity, the legislature cannot compel
| its repayment by the city to the dealer
| from whom it was collected.
| HYBART, appellant V. JONES ct al.
From Cumberland. Error
Sound public policy forbids any claim
/ for waste by the heirs at-law against
| the widow to be made except in proceed
| ings instituted for that purpose under
section 629 of the Code. 1t cannot be en-
tertained as a counter claim in an action
| by the widow to subject the eality in
the hmands of the heis-at-law to the
payment of her dover, portion of which
was decreed to be charge upon rents
derived from said realty.
EXPARTE WATTS. From Wayne Error
Where testatrix devised a house and
| lot to her four children to be used by
| them as "a common home with equal
rights to the same until 81 years after
the death of both their parents" and
| that then they and their heirs to own
| said house and lot in fee simple" it was
error to decree a sale by the devises
during the life time of one of their pa
rents, it appearing that a compliance
with the intention of the testatrix will
MOORE v. GUANO COMPANY, appellant.
From Brunswick. Error.
Section 1927 of the Code providing for
drawing juries is directory, and more ir-
Irregularities in complying with it's terms
which do not work an injustice are not
sufficient ground for discharging the
panel But officious, unauthorized acts
by the commissioners in drawing the Jury
will, If objected to in time, vitiate the
panel.
Where it was found by the court that
the commissioners in drawing the Jury
discussed the names as they were drawn
from box No. /, by the boy and that
number of names drawn were rejected
and returned to the box; that the OBJ
Ject appeared to be to distribute the iur-
ors to the different townships: that when
the name of one Juror was drawn some
one remarked ''he is right there among
the rest, whereupon one of the commits
sloners remarked Il want him." and his
name was placedon the list: that when
son OF one of the commissioners was
drawn the commissioner remarked that
his son wished Ito come to Southport so
bad we had better take him." and his
name was placed on the list, it was
held that challenge to the array should
have been sustained. .
STATE VS.. HOLLEMAN, Appellant
From Wake. Affirmed.
:, lndiGtment for obstructing a public
hign@Ay, where the defence was that the
Nay was not public one; but it ap-
pfarRd4 that it had been kept up bv the
ENhlic flor forty years. and that in 1888
theXtcwns, of Apex was incorporated and
said@roadawas within its corporate limits
and 5kept%up the town as 3, public
highway; 3.Held N that the tact that : the
duty Eof ;wetking sit,was transferred Ito{an25
other Jurisdiction did not cause dis
CONTINUANCE of the way; nor does the fac;
that it was worked by taxation instead
flabor make any difference.
SHELL. Appellant, VS.. WEST From
Harnett. Error.
Action to recover rent of land belong
ing to intestate of plaintiff The estate
was largely involved and the rents were
necessary to be applied to save the credi-
tors harmless. A devisee of the land
was made a party after non-suit taken
in Superior Court, on motion of defend
ant on an allegation that such devsee
was the landlord, but the devisee did
not interplead and the court below init
mated that plaintiff could not recover;
Held, error Making new party of the
deVisee had the effect to change the &C
ton by a landlord against a tenant for
recovery of rent into q totally different
controversy. to-wit: whether rents upon
devised land should be applied to debt of
an insolvent testator, and of such action
the Justices court, where this proceeding
began, had no jurisdiction.
Defendant in such case being estopped
| to- deny lessons title, the plaintiff was
entitled, to Judgment and it was then
open to; devisee to bring suit to hold the
| executor responsible: for the rent. 81 Rents
on devised land can be subjected by per-
sonal representative when required for
| payment of*decendent's debts.
WILMINGTON Z UNDERWRITERS IN
| : SURANCE CO., Appellant VS.. STED-
| / MAN. From New Hanover. No. error.
Action to have certain tax declared in
valid and Efor injunction. Plaintiff cor
p :. -