The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-12-06
Supreme Court Digest.
Reported by JOS. L. sEAWELL..


COBLE V. HUFFINES, petitioner. From
Gullford. Petition dismissed
To show want of probable cause in
having two indictments against defend
ant (who is plaintiff in this action for
malicious prosecution,) it must appear
that the two indictments were for the
same offense, not merely for similar Of
lenses. Hinson v. Powell, 100 N. c. 534
distinguished. And in such case the order
of the judge making defendant prosecu
tor and taxing him with the costs was
properly excluded as evidence of malice
and want of probable cause.
The former ruling of this court is
modified as indicated above but as there
was evidence of malice the plaintiff is
still entitled to new trial as held in the
former decision, 1872 N. c. 399.
EVANS, appellant V. Alridge. From
Randolph. No error.
Failure to comply with chapter 435 laws
1895 which provides that where the sheriff
or other officer levies an attachment on
real estate he shall certify such levy to
the clerk of the Superior Court of the
county where the land lies; that the
clerk shall note the same, etc., and that
the levy shall be lien only from the
date of entry by the clerk, does not in
validate the levy as the basis of jurisdic-
ton against the defendant in the action.
Where land is sold under execution on
judgment which has never been docketed
in the county where the land lies, the
sale is valid, but the lien only relates to
the levy.
Where the purchaser at the execution
sale was plaintiff in the action In which
execution was issued, he must show that
judgment upon which the execution is
sued was valid, and his failure to show
due publication of summons and an at
tachment is fatal to an action by him to
recover the land purchased by INN at
execution sale under his judgment.
TURNER V. THRESHING MACHINE
Co., APPELLANT. From Iredell. No error.
Failure to find whether the defendant
had a meritorlous defence is not fatal
to the ruling refusing motion to set
aside judgment by default.
Where, upon appeal from the refusal
OF a justice of the eace to set aside a
judgment by default the Superior Court
judge heard the motion de novo and found
the facts himself, the findings of the JUS
tice are not renewable in the Sureme
Court.
Where, it such case it appeared from
the findings of ne judge that nearly
two weeks before the judgment OF the
justice, the defendant, a nonresident,
was notified of the claim by letter from
plaintiffs attorney and was furnished a
statement of the claim, and there was
demand for immediate payment and no.
At 4ho+ 4 l,n~ e &C., IL,
would be collected by law, and that ten
days before redition of Judgment the de-
PENDANTS agent received actual notice
of the suit and it did not appear that the
agent failed to notify defendant, AMI
there was no exception to the failure of
the judge to find whether the defendant
received notice from the agent; Held not
! to constitute a case of excusable neglect.
STATE V. NEAL, appellant From Ca
barrus. New trial
The rule in State " Kittelle, 10 NC
$50, to the effet that licensed retail
liquor dealer is criminally responsible for
| the unlawful sale by his clerk OF liquor
to minors. although such sale may have
been against the instructions of the dealer
and without his knowledge, does not ap-
ply to the proprietor of drug store who
has license to sell sirituous liquor as
druggist; and it is therefore held that
where a clerk of the proprietor of the
drug store (the clerk himself being a IL
censed druggisD made an unlawful sale
of liquor contrary to the order fthe
proprietor and without his kwnoledge, the
proprietor is not guilty, and the clerk
alone is indictable.
LEAGUE, appellant v. SCHAUB. From
Person. No error
Action by a physician upon the follow
ing contract to enjoin another physician
from practicing medicine in the town of
Roxboro and for damages for breach
hereof:
eve agree to continue the practice OF
medicine under the firm name of league
and Schaub until December L. 1901, DR..
league 20 receive 60 per cent and DR..
Schaub 40 per cent of collections for
work done in general practice, except