The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-07-12
Supreme Court Digest.
(Reported by Jos. L. seawell)

1
| ERN CAR. BANK. From buncombe.
| Affirmed.
Action by creditors of a corporation
within sixty days after assignment by the
corporation vacates the assignment Code
Section $3.50, but where such action
by the creditors does not in any way
increase the assets of the corporation, the
suing creditors are not entitled to any
| lien or preference over the creditors who
did not sue. Hancock VS.. Wooten, LOT n.
C. 8, distinguished.
JOHNSTON ct al, petitioners vs.. CASE
ct all From Buncombe.
/ Upon petition to rehear thetormer rul-
/ ing OBJ N C. 491) is affirmed to the eff
feet that the want of a seal invalldates
deed, though the instrument was regis
tered as a deed and such instrument IS
not admissible as color of title.
/ Where a deed containing a detective de-
scription also contained statement that
| the land attempted to be conveyed was the
same land conveyed in certain other
deed, reference to such deed will not aid
in identifying the land unless it is shown
that the defective deed is of subsequent
date.
1
| HUSKE. From Forsyth. New trial.
In an action by trustee in bankruptcy
to set aside conveyance by the bankrupt
| of a stock of goods alleged to have been
made in violation of the bankrupt act, it
| is held that under the bankrupt act of
July, 1898, Sec go the trustee is entitled
to have the fraudulent conveyance set
aside if any creditor of the bankrupt
would be entitled to the same relief.
When grantee under fraudulent con-
veyance claims as bona fide purchaser
under Section 154S of The Code, the bur
den is on him to show that he bought for
valuable consideration and without
notice of the grantors fraud.
| VICKERS, appellant VS.. TOWN OF
! DURHAM. No error.
| Equity will grant injunctive relief as
| a matter of course to prevent a nuisance
per Sc.
Injunction viii be issued only in cases
where upon the evidence, there is prob
ability that the act complained of will be
a nuisance if permitted and not solely
upon the supposition of injury: and the
courts will refrain from interfering when
the public benefit predominates over pri-
/ vate inconvenience which is merely con-
| tingent.
Where the complaint in proceeding for
| injunction alleged that defendant intended
to discharge and deposit its sewage on
PLAINTIFFS premises near his residence and
there leave it, it is held that such al
legged threat, if carried out, would consti-
! tute a nuisance prima face but not a
nuisance per sc.
And where in such case, the answer al
/ legged the defendants purpose to discharge
the sewage in disposal plant on plain
tiff's land; that the plant
would be built according to
the most approved methods
to purify the sewage before discharging it
into the streams, and that plaintiff s
health would not. by such action, be en-
dangered or his health or comfort be inter-
rupted; and the allegation was verified by
affidavit of sanitary engineer of large
experience, who was employed by defend
ant to erect the disposal plant and also
| by an affidavit of physician experienced
/ in the science of sanitation. it was Held
| that the injunction was properly refused.
| An unconstitutional Act of Assembly is
not ground of equitable jurisdiction, and
equity will not interpose as a mere pro-
tective relief when there is an adequate
remedy at law.
| REVELL, appellant VS.. THRASH. From
| Runcombe. No error.
! Extension of time to the principal will
not operate as a discharge of the surety
unless made by agreement between the
/ creditor and principal without the knowl-
! edge or consent of the surety. An ex-
press agreement to extend time is not ne
| cessary, it is sufficient to prove a mutual
understanding and intention to that effect,
] or that the creditor and principal acted
upon an implied agreement to extend.
| The period of extension must be fixed
! and definite and can be determined upon
the principle OF I'D eertum est etc, from
the receipt of interest in advance without
the knowledge or consent of the surety,
| which is prima facie evidence of exten-
sion, subject to rebuttal.
The rule that the extension must be for
a period longer than that which would be
required by law for judgment to be OBJ
tanned, applies only where extension has
been granted after suit brought and does
not vary the rule that if the time of ex-
tension be definite its shortness is imma-
terial so that it be for day or more.
LAMB VS.. LITTMAN, appellant From
Rowan. Affirmed.
1t is not absolutely necessary to consti-
tute vice principal that he should have
the authority to hire and discharge hands
The mere absence of such authority does
not necessarily render one in charge Of
other servants fellow servant, but the
question whether he is vice principal de-
ponds upon whether those who act under
hlm have just reason to believe that fail
ure to obey his orders will result in their
discharge from employment.
The proprietor of mill is liable for in
juries resulting to a child from cruelty in.
ilicted by the superintendent of the mill
IT beng within opportunity of the pro
prletor to know that the superintendent
Is incompetent to supervise children bv