The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-05-24
Supreme Court Digest.
(Reported by JOS. L. seawell.)

(Reported by JOS. L. Seawell.)
STATE. appellant. v. BRADLEY. From
Polk. New Trial.
When a special verdict is defective q
Senire de noyo will be awarded. A spe
cial verdict is defective if it fails ia
find every fact existing by proof OF pre-
sumption essential to the defendant s
guilt.
Intimation by the court that sale of
less than five gallons of spirituous liquors
is a sale by small measure"
GROSS v. SMITH, appellant. From
Rutherford. No error.
Delivery is necessary to the validity OF
gift, but the fact of delivery may be
found by the jury from acts conduct and
declarations of the alleged donor
What constitutes a gift is a question
OF law. but the jury must decide whether
or not the acts which are necessary to
constitute the gift have been actually
performed
Declarations of the alleged donor that
he had made the gift are competent to
90 to the jury for their consideration in
connection with other evi1ence bearing
upon the question of delivery Davis v
Boyd. 81 N. C. 249. distinguished
PIPES. appellant, ". LUMBER CO. From
Mcdowell. No error.
The plea of the statute of limitations
And for further defense alleges .
that more than three years have eIapsed
since the date of the alleged promise be-
fore this action was brought and ser
vices rendered, as alleged''-is held TO be
sufficient. Pope V. Andrews, 80 N. C.
401; Turner V. Shuf1ler, 10S n. G. G42;
and Lassiter v. Roper, la N. G. Is, dis
tinguished.
McBRAYER v. HANES. appellant. From
Rutherford New trial.
The burden of establishing the plea OF
allegation of payment is always on him
who relies upon it; and where the plain
tiff sued to recover mules under a mort
ghge held by him, and the defendant al
legged possession under a prior mortgage
and the plaintiff alleged payment of de-
PENDANTS mortgage. it was error to in
struct the jury that the burden was upon
the defendant to prove non-payment OF
his mortgage. McIver V. Smith, lis n
c. IS.
ROBINETT. appellant, V. HANDY. From
Wilkes. No error.
parol waiver of q written contract
within the Statute of Frauds, which
amounts to a complete abandonment, will,
when clearly proved bar specific perform
ance of the contract. The acts and con.
duct constituting abandonment must be
positive, unequivocal and inconsistent
with the contract.
Evidence that the holder of a bond to
make title to land upon payment by him
of notes for the purchase money, as
signed the bond Ior a nominal considera-
ton after paying all the notes but one,
and said that the land was valueless and
he would pay no more on it, and that
the grantoE retook me land and made
improvements on it. justified the refusal
to charge the jury that there was no evil
dence of abandonment
GRIER V. MUTUAL LIFE INSURANCE
co. From Mecklenburg. No error.
The provision in an application for life
insurance that the contract shall not take
effect until the first premium shall be
paid during the applicants good health,
il only a provisional agreement authoriz-
ing the company to withhold the policy
until payment during the good health of
the assured: but when the policy is actu-
ally delivered the company is estopped in
the absence of fraud to assert that the
contract is void, either on account OF
temperament of premium or of i'll health.
Kendrick " ms. Co.. C124 N. C. 315. In
the absence of fraud the delivery of the
policy is conclusive of the fact that the