The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-03-15
Supreme Court Digest.
Reported by Jos. l.. seawel)


MOREHEAD. ct al VS.. HALL ct al
from Carteret. No error.
The plaintiff in action TO recover land
must have title and right to possession
not only at the time Of the trial but at
the time the suit was instituted. and this
rule is not affected by Chapter 49, Acts
l9ol' extending the time Of registration
OF grants from the State
LAY, appellant VS.. LEWIS. From Pitt
Affirmed
When the terms ''heirs" and next Of
KIN are unexplained by the context, the
word heirs retains it's primitive and
technical meaning and next of kin" will
be held TO mean next Of kin to the sta
tute OF distributions.
Where there is devise to 3. NJ. "of
my entire estate in the land ........to
be his during his natural life, and at the
death give said land to his heirs, if any,
to be theirs in fee simple forever. and
ii he dies without heirs. said land to re-
vert back to his next Of kim; :" Held, that
the limitation to the next Of kim in
the event of the death of the devisee
without heirs, is valid as an executory
devise. that the rule in Shelley's case
does not apply and the devisee takes
for life.
EDWARDS VS.. A. c. L. RAILROAD
Co., appellant From Wilson. New
trial.
Where the trial judges gives conflict
ing instructions upon a material point
o new trial will be awarded
1t is not the duty of an engineer. as
general rule, to use both the bell and
the whistle in giving signals of the APP
proach of the train to a public crossing;
and where, in an action to recover for
the death of plaintiffs intestate resulting
from his collision with defendants train
at a public crossing, the trial judge in
structed the jury that defendant was re-
quired to give notice near a public
crossing, the trial judge instructed the
jury that defendant was required to give
notice near a public crossing of the com
ing of it's trains, either by ringing the
bell or sounding the whistle, or both, and
afterwards instructed them that it was
defendants duty at such times to ring
the bell and also sound the whistle, a new
trial viii be awarded.
Instructions which are subject even by
implication, to a construction involving
an erroneous principle, viii be regarded
as prejudicial.
GROCERY co. appellant VS.. DAVIS.
From Franklin No error.
Where consigned goods were to be ac-
Of dc
unsold to be returned to the consignor,
and no stipulation against consignee's
selling on credit, the consignee is liable
only civilly for the invoice price of the
goods and the consignor cannot hold him
in arrest and bail for deficiency not due
to misrepresentation or embezzlement
In such case it is competent for the
consignee to show that the deficiency was
due to theft of a third party failure to
collect on credit sales, and sales of goods
at under prices to induce the sale of
others
PORTER. appellant VS.. ARMSTRONG.
From Ponder. No error
An injunction will not lie when the
plaintiff has an adequate remedy at law,
nor when the complaint fails to allege
that defendant is insolvent and unable
to respond IN damages, or when it does
not contain specific allegations of tact
that the apprehended danger will be ire
parable
Where defendant threatens to block up
a natural depression into which the wa
ter from plaintiffs land drains which act
will have the effect of ponding water on
plaintiffs land, the plaintiffs remedy is
eithor. nv an action at law when the APP
pretended act has been committed or
proceeding under chapter 80 of The Code,
whereby be may clean out and deepen
the channel on defendants land.
PORTER VS.. BRIDGERS, appellant,
From Edgecombe New trial
Plaintiff conveyed the standing timber
upon his land to G. in trust that upon
certain part payments of the purchase
price by to the trustee G, the trustee
should permit j to commence cutting the
the timber for market. and when the en-
tire purchase price was paid and when
all the wood had been cut and measured
ready for shipment the trustee should
convey the same to ]. ]. conveyed his
interest to defendant, and, the part pay
ments having been made, the defendant
cut four thousand cords of wood and
piled it along the railroad for shipment
and over one thousand cords were de-
stroyed by fire. This action is to re-
cover Of defendant the value of the wood
which was destroyed. There was evil
dence that, to avoid danger of fire, the
trustee permitted defendant to ship par
cells of the wood without measuring it
and before defendant had paid for it,
the measurement for the purchaser to be
accepted and that the purchaser should
measure the wood and pay for it at once
Held that title to the wood destroyed
was in the plaintiff and the defendant
is not liable for its loss.
RIDDICK, appellant VS.. FARMERS
LIFE ASSOCIATION. From Pitt. At
firmed.
.I,rx !, 81,