The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-12-14

purchase money and the plaintiffs nus
| band never paid them. Bunting v.'Johes'
| IS N. c. 242 cited and relied on Tor the
position that the plaintiff cannot re-
\ cover.
| SMITH ct al V. PARKER ct al. appel
| lants. From Buncombe. No error.
| An extension of time for payment Oh
bond, without consent of the suretles
| thereto, discharges the sureties and also
| any security given by them for the debt.
| Fleming V. Barden, 127 N. G. 214; jenkins
V. Davis. 125 N. C. 161: Smith v. b.
L. Asso., 119 N. c. 257; Hinton V. Green
| leaf, 112 N. C. G.
Receipt of interest in advance is prima
| facie evidence of a binding contract OF
| forbearance. Scott V. Fisher 10 N c.
81; Hollingsworth V. Tomlinson, los NJ
| G.. 245
Where, upon a motion to dissolve a
| restraining order. the affidavits filed raise
| serious contention, it is proper to con-
tinue the injunction to the hearing, when
the disputed matters of fact may be de-
| termined by jury
Harrington " Raw1s, at this term;
| Hutaff V. Adrian, 112 N. C. 259. cited
| and distinguished
i uCOALlL, appellant, V. LACf1Ah1. rum
Madison. Error.
Plaintiff was elected solicitor of Madi-
son criminal court, but defendant, under
an appointment of the judge of said
court, took possession of the office be-
fore the plaintiffs term expired In an
action of quo warranto the plaintiff re-
covered the office. 125 N. G. %. Upon
| the institution of the QUO warranto ac-
he Aafa
payable TO plaintiff and conditioned that
defendant would account for and pay over
to plaintiff the fees which defendant
might receive by virtue of his incumbency
| of the office, if plaintiff should win in the
action.
The present action was brought to
recover those fees. amounting to $500,
and the defendant demurred for that the
court had no jurisdiction as it appeared
that the action was, brought on the 5000
bond, and for that several causes of
action are improperly united-one on
| the 5000 bond ard one for the fees
| amounting to $500; Held that the de-
| murrer should not have been sustained.
The court had jurisdiction and there is
no objection to the courts giving plain
| tiff judgment for $500 and also against
The fees could not have been recov-
cred in the quo warranto action, but an
Independent action was necessary for
| that purpose.
! BENEDICT V. JONES, appellant. From
Buncombe. Motion of appellant to dis
miss denied.
An appeal must be docketed in the
Supreme Court at the next term after
the trial below and seven days before
| the call of the district from which it
comes, in order for it to stand for hear
ing at the term when docketed. Rule 5.
| After a case has been docketed in the
Supreme Court at the proper term, al
| though too late to be heard at that term,
! it cannot be dismissed under Rule II.
To avail himself of Rule II, the appel
lee must file his certificate and motion,
as acquired by said rule, before the ap-
pellant has actually docketed his APP
peal, and after the seven days have be-.
begun to run. ~.
II transcript fails to set out the Or
ganization of the court etc.. the defect
may be cured by writ of certiorari if
asked for in proper time, or a motion
to dismiss on that ground will be enter
| tanned
HOPKINS ct al, appellants. V. N S. &s
S. RAILROAD CO., ct al. From Tyr
rell. Error.
To sustain a motion for non suit =, the
| plaintiffs evidence must be accepted as
| true and construed in the light most
| favorable to him.
The right of navigation is paramount but
not exclusive; and in exercising such
right there must be no wantonness On
| malice or unnecessary damage, but a
| bona fde exercise of the right.
| Where, in an action to recover dam
| ages for destruction of fishing nets by
defendants boats in a navigable stream,
| the complaint alleged that the nets were
/ negllgently, Wilfully and wantonly de-
| stroyed, and plaintiffs evidence tended
| to show that the nets We're destroyed
| between sunset and dark when there was
| sufficient light to see the nets at dis
lance of 400 or 500 yards: that the river
| at that place was between 300 and 400
yards wide; that the nets did not ex-
tend into the regular channel of the
| stream where boats usually passed but
| left clear channel of 125 or $50 yards
wide, along which the boats could have
gone without Inconvenience or danger. it
was error to grant defendants motion to
] non suit.
THOMAS v GWYN ct al, appellants.
From Buncombe. No error.
The burden of proof is on defendants
| in an action wherein plaintiff alleged
| that defendants were her agents to col
lect rents, and had collected rents which
were due her, and which they refused to
pay her, and defendants admitted the re-
retention of the money but averred
that plaintiff owed them commissions
for which they retained the amount col
leeted
The plaintiff had terminated defend
ants agency and they sent plaintiff a
statement of account charging commits
sions on rents thereafter to fall due on
leases made by them and deducted the
amount thereafter, and sent plaintiff a
check for the difference stating in a let
ter sent Herewith that although they
world abide the law in the case a decis
ion adverse to their claim would
not change their belief in their right to
the money retained. Plaintiff
promptly notified defendants that she
accepted the check only ION account"
and reserved the right to collect the bal