The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-11-16
Supreme Court Digest.

Qseported by Jos. L. Seawell)
SINCLAIR, appellant. V. HUNTLEY.
From Arson. Affirmed
Action of ejectment where both parties
claim under the same person. Plaintiff
claims under the deed from r. in 1875,
Held that this deed conveyed not title
as r. had already conveyed the land to
another (under whom defendant derives
title) by deed of 1873, which operated as
an estoppel on plaintiff.
BELL v.sWYCOFF, appellant. From
Rockingham. Affirmed.
A sheriff is liable for the penalty i'm
posed under Section 2079 of The Code
where he fails to make return of sum-
mons until after the return day. The
facts in this case are not sufficient to re-
lieVe him from the penalty, for he should
have read the paper and learned it's con-
tents, which he was commanded to serve
and not hole it until after the return
day.
PALMER V. STREET RAILWAY co.
appellant. From Forsyth. New trial
Plaintiff, an intoxicated passenger on a
street car, used grossly insulting lam
guage to motorman. He got off at his
destination, deposited his bundles on the
sidewalk, returned to the car and again
got into an alteration with the motor
man, then left the car and the motor
man followed him about three steps from
the car and struck him, knocking him
down. Held that the fact that plaintiff
invited the assault by the insulting Ian
suage does not bar recovery in civil ac-
ton, not even when the parties fight
by consent. As n. C. 131: 122 N. c. 967
Held further that here the passage had
terminated, and this distinguishes the
case from Daniel V. r. Co., III n. c..
1922 and as the motorman was not actins
within the scope of his employment, the
Plaintiff cannot recover. Acting within
the general scopet of his employment
means While on duty.
MOTT. appellant V. so. RAILWAY co.
From Iredell. Reversed.
Chapter Sc, Private Laws 1897, abro-
gates the doctrine of assumption of risk
as applied TO all employees of railroad
company, Coley's Case, 1881 N. C. 534
and 129 n. c. 407
HOSIERY CO, appellant VS.. r. & G..
RAILROAD co. From Wake. New
trial.
Action for damages for loss of prop
erty by fire alleged to have occurred
through negligence of defendant in the
emission of sparks from it's engine; Held
that the presumption OF negligence arises
when it is found as fact that the fire
originated from sparks emitted from de-
fendant's engine, and the burden is on
the defendant to prove that it used APP
n
emission CT sparks. 122 n. G. 881.
In such case the trial judge properly
refused to charge the jury that if they
found that the use of hard coal in the
engine lessons the danger of throwing
sparks from the smoke stack it was
negligence not to use such coal.
The court say in reference to fuel: 1--WE
are not prepared to say as a matter of
law that a man of ordinary prudence
would, under present conditions, adopt
the use of anthracite coal if he could
conveniently burn any other kind of
fuel"
PARKER d HUNT, appellants, V.
BROWN From Granville. No error.
The bare representation or declaration
Of contractor is not sufficient proof
that he was the agent Of the owner OF
the building III purchasing lumber TO be
used therein.
The single fact that lumber ordered by
the contractor was used in repairing a
| building is no evidence of ratification Of
the contractors declaration that he
/ bought the lumber as agent of the owner
of the building.
| Where, in an action against the owner
of building to recover the value OF
lumber used therein, the plaintiff relied
on the agency of the contractor, the
question asked the contractor Were you
agent of defendant for the purchase OF
the lumber was properly excluded.
In such case, agency Is not shown by
the fact that the defendant asked the