The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-03-01

In the light OF the evidence in this
case the doctrine of "eoolin time" does
not apply. The deceased did not offer
to strike the prisoner and gave him no
legal provocation for the deadly assault.
Words of reproach or of insult do not
make legal provocatiOn.
To justify the submission of the ques-
tion of insanity, it must appear that the
prisoners present insanity was alleged.
Here. there was no ayerment that the
prisoner was insane at the time of trial
state VS. Haywood, "a N. c. S47.
The court say that the exceptions in
this appeal in reference to self-defencs.
etc, have been often passed upon by this
court.
HOLLEY. appellant, VS.. SMITH. From
BERTHE. No error,
The matter presented in this case was
adjudcated upon the former appeal in
an action between the same parties. 1870
NJ c. So. The appellant cannot escape
the requirements of Rule So in reference
to rehearings by simply bringing up an
other appeal presenting the same propo-
siton of law. Perry VS.. Railroad 1873
n. c. 1884, But treating this as an orig-
nal appeal, there is no error in the iudg-
ment of the court below.
SEXTON, appellant V. PHOENIX IN
SURANCE co. From Washington.
No error.
An indebtedness cannot be. attached in
State other than that of the residence
Of the debtor Cor creditor) The situs of
plaintiffs debt from defendant, was in
New York and could have no situs in
any other State even though the debtor
The attachment in New York, subse-
quent to loss under the policy of insur-
ance, though prior to an adjustment, is
valid.
The plaintiff could not have set up his
claim of personal property exemption
in the New York action, and the defend
ant is protected by that judgment and
payment Hereunder Exemption laws
have no extra territorial effect; they
are not a part of the contract but are
a part of the remedy and subject to the
law of the forum.
STATE V. GOODE. From Northampton.
New trial
A failure to summon witnesses or to
examine them when summoned is prop
er subject of comment by counsel. But
in this case there was no evidence that
the persons referred to by the Solicitor
were present on the occasion mentioned,
or had been summoned by the defend
ant, and hence this case is distinguished
from State ". Thomas, n N. c. $40 and
State V. Kiger, 115 N. c. 740.
Defendants were charged with the
murder of an eight year old child and
the testimony showed that the defend
fp in
othe child Held that the judge prop
erIy told the jury that, if defendants
were so grossly careless and negligent in
their care of the child. as the result
of which the child suffered cruel and
unusual punishment, so that dts death
ensued, the defendants would be guilty
of criminal negligence and the jury
should convict them of manslaughter.
BURTON " MANUFACTURING CO,
appellant. From Halifax. Affirmed.
Where the complaint alleges first cause
of action upon special contract and sec
ond cause of. action upon quantum
meruit and the answer denied the, al
legation of complaint and set up spe-
cial contract different from that alleged
in complaint, in respect to amount to be
paid plaintiff, and averred payment in
accordance with contract alleged in the
answer, it was held that the trial judge
properly instructed the jury that the
burden was upon defendant to satisfy
them by the greater weight of the testi-
mony that the contract alleged in the
answer was the real contract between
the parties.
A plaintiff may declare upon a special
contract and join Herewith a cause of
action as upon a quantum meruit, and
he may recover upon the common counts
in general assumpsit provided he has set
forth facts sufficient to constitute
cause of action, although he has not
specifically declared upon a secon cause
of action. 50 N. C. 252.
The provisions of The Code in reference
to submitting issues arising upon the
pleadings are mandatory.
The court should not give instructions
to the jury based upon hypothesis not
arising from the evidence
BALK V. HARRIS, Petitioned. From
Beaufort. Petition dismissed.
After reviewing the opinions previously
delivered in this case in 122 N. c. GA and
124 N. c. 467 and 100 N c. 381, the court
held that it is well settled principle
that it will not review a ruling OF its
own or of the court below, which does
not injuriously affect the complaining
party. Nssen V. Mining Co, 104 N. G.
309; Butts V. Screws 90 N. c. zl5;
Clark's Code g Ed p. I'll.
1t is further held that the decision in
regard to the merits of the defendants
motion to plead his discharge in bank
ruptcy was correct. and that the court
was merely inadvertent to the fact that
the defendants counsel in his brief had
withdrawn the assignment of error re-
lating to that question.
And further that the defendant is not
prejudiced by the ruling as to his dis
charge in bankruptcy. His condition. in
respect of his right to review the judg-
ment of this court by writ of error, is no
worse by reason of the decision of that
question than it would have been if the
matter had not been passed upon. His
right to apply for writ of error is I'M
impaired by the judgment of this court
in reference to that matter. And as ne
has therefore shown no necessity for
granting the relief prayed for in this pc