The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-03-10
Supreme Court Decisions.
CReported bv Jos. l. seawelD

HUGHES vs.. GAY ct al. appellants.
From Northampton. Error.
Where a moTtgagee died after having
Instituted IN action of ejectmcnt against
one in possession of the m0rtgaged
premises and for foreclosure against the
mortgagor. such action cannot be main
tanned by the executor of the MORTGAGE
without making the heirs at law parties
DUFFY V. SMITH appellant From
Craven. Modified and affirmed.
The fees of an auctionecr in making
sale of land under a deed of trust should
be included in the comm MISSIONS of the
trustee. The law supposes that
the trustee will conduct his own sale.
and if he procures the services of an
other for that purpose he must bear the
expense
Where there is no evidence that the
services Of counsel were necessary to the
proper administration of the trust an
allowance of fees therefor is improper
LINDSAY V. N. & SO. r. co, appellant.
From Currituck Affirmed.
Where a brakeman. sitting on the box
car OF a moving train with his feet hang
by being caught around the neck by a
loop in a rope attached to the pipe from
4 water tank, the pipe having been negli-
gently left hanging over the track; it
was held, in an action to recover dam
ages for the injury that the defendant
motion for ncn-suit under the Act of
1897 was properly refused.
Negligence either of plaintiff or de-
PENDANT has no legal effect, unless, sep
aratlvely or concurrently, it is the proxi-
mate cause of the injury.
NORWOOD appellant V. LASSITER ct
al. From NORTHAMPTON Affirmed.
The receipt by the deyisee of mort
gagged land of the balance of the pur-
chase price, after satisfaction of the
mortgage, is ratification of the sale and
a complete waiver in law of all Irregular
ties in the sale.
When one has. the choice between Two
inconsistent benefits, the law imposes
upon him the duty of electing which he
viii take, and having made his election
it becomes irrevocable.
Where in such case the party put to
election, was advised by counsel that he
could receive the proceeds of sale with
out waving Irregularities in the sale, it
was held that his acting under such err
roneous advice viii not avail as an eX-
ception to the rule of law
MEADOWS V. w. L. TELEGRAPH
co, appellant. From Craven. No
error
The husband of plaintiffs sister. re-
siding in Newbern, delivered to defend
af,,% Al m,
the following message addressed to plain
tiff, 10 miles away: will Phillips wife
at point of death. Will Phillips"
The only rain for Newborn passed
Pollocksville at 5:04 p. m. and plaintiff
lived half mile from the station and was
at home that afternoon. The message was
not delivered until $3.50 that night and
plaintiff went to Newbern next day by
private conveyance and did not see his
sister until she had become unconscious,
Plaintiff testified that he could not walk
to Newsern. thai he had no horse and
could not hire a team that night; Held,
in an action to recover for mental an
guish. that there was no evidence of con-
tributory negligence on the part of plain
tiff.
To sustain an action for mental an
guish for negligent delay of a telegraph
company in delivering a message, an
nouncing the critical illness Of a sister
Of the person addressed it is not ncccs-
sary that the sender should have dis
closed to defendants agent the relation
ship OF the parties, or that the message
should upon its face. show such rola-
tionship.
rF inc
damages for mental anguish caused by
the negligent delay Of telegraph COM
pany in transmitting and delivering a
message, are reaffirmed.
ROCKWELL, appellant V HARRISON.
FROM Halifax Affirmed.
The effect of Section 10 of Chapter ESQ
Public Laws of 1901, providing that cleo
lions for all city and town officers shall
be held biennially Except as to Fay
ctteyille) was to repeal section 3 OF
Chapter III, Acts 1898, providing that the
mayor and commissioners of Littleton
shall be elected annually.
Chapter 1913. Private Laws 1901, pro
viding for the appointment of a board
of elections, judges of elections and poll
holders for the town of Littleton and pre-
scribfng the time and method of registra-
ton, etc. does not exclude the town of
I.ittleton from the effects of section -
Chapter $50, Public Laws, 1901, providing
that elections for all city and town Of
ncers shall be held biennially.
An Act of Assembly declaring the in
tent of a previous Act does not control
the judiciary in constituting the previous
Act. except in cases arising subsequent
to the declaratory Act. or in "-~-- where
e retrospective Act can properly be pass
cd.