The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-10-26

/. the court and not a right of the party,
| 125 N. c. 80; 11S N. c.
] An appeal lies from the refusal of a
/ judgment to which party is entitled
| Ill N. C. 434; 123 N. c. 16.
| In civil cases, a verdict returned by
| eleven jurors. by consent, is allowable;
| but not in criminal cases. lis n. c. sos.
In an action of divorce, being a civil
| action, the validity of such consent arises
| upon Section 1888 of The Code which pro-
vides that The material fact in the COM
plant shall be deemed to be denied by
/ the defendant and no judgment shall
| be given in favor of the plaintiff. until
| the facts are found by a jury"
Here, the consent verdict is against the
plaintiff, and against the divorce. and is
not prohibited. But if such verdict had
turned out the other way, it would have
been invalid
Being in the discretion of the Judge to
| have refused partial new trial. but hav-
ing granted that, without setting aside
the verdict on the first three issues in
this case, it was error to refuse judgment
for defendant as to plaintiffs cause of &C
ton upon those issues as found. The
judgment rendered was erroneous, how
ever, in asking Judgment for costs against
the wife.
COOK V. AM. Elk BANK, petitioner.
From Dare. Petition allowed
The ruling in this case as reported in
129 n. c. 149. on the first appeal is af-
firmed. But in the ruling on the second
appeal in 100 N. c. 1873, there is error and
defendants petition to rehear is allowed.
Where plaintiff puts in a verified COM
plant and defendant fails to verify the
answer, the refusal of the judge to grant
motion of plaintiff for judgment is appeal
able error, though it is in the discretion
of the judge to permit verified answer
to be filed if defendant satisfies him that
he has meritorious defense. Griffin V.
Light Co.. Ill N. c. 434.
When, therefore. the plaintiff in this
case moved for judgment and defendant
asked leave to file answer. the judge be-
low, looking at the matter in all it's
aspects, allowed defendant to be heard
by an answer, it is now held that the
ruling was correct. The cases of Calvert
V. PEBBLES. 80 N. c. 1874; Dobson v. Sim
onton, 100 N. c. Sc, and Bank V. More
head, 126 n. C. 279 cited and distinguish
e..
The court say that Gin retracing our
steps to the path of former adjudications
We are glad we have corrected a mistake
of practice, and not one involving the
rights of property"
QUEEN CITY PRINTING co. v. Nc
ALDEN, appellant From Mecklenburg.
New trial.
1t is sufficient to invalidate a contract
of subscription to stock in a corporation
if the subscriber is induced to subscribe
by false representation of the agent of
the corporation that persons intimately
acquainted with the subscriber had taken
stock and would manage the corporation,
and that they had requested the agent to
see the subscriber and induce him to take
stock
Where, in an action by the corporation
to recover the amount of subscription,
the answer alleged the false representa-
ton but failed to allege that it was false
within the knowledge of the party MAX
ing it, the plaintiff cannot take advantage
of such failure except by demurrer to the
answer; and in failing to demur. the
plaintiff will be deemed to have waived
the defect IN the answer. as exceptions
to allegations in the answer are subject
to the same rules which apply to the
complaint. 105 N c.. 266; 90 NJ c. 252;
102 n. C. SO; 121 N C. 11S; 100 n. C. 81.