The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-04-26

worthless, IL was error 10 chdi@e tHc
jury that under the contract, if they
should find from the evidence that the
term "kiln-run" meant all the brick be-
tween the castings, that the defendant
was bound to take any pay for all be-
tween the castings. including bats and soft
brick but the defendant was not bound
to take soft brick that had never been
burned.
The instruction gave 20 the term
kiln run" a meaning that destroyed the
other words two thirds hard and one
third soft
DAVIS, receiver. V. LUMBER CO, pc
titioner. From New Hanover Petit
tion allowed and Judgment below af-
firmed.
The bank for which the plaintiff was
afterwards appeared receiver discounted
drafts for the defendant and placed the
same to the credit of defendants de-
post account. the bank being at the
time insolvent and such fact known by its
officers When the insolvency of the
bank was declared, the defendant sued
in another State to recover the amount
of the drafts as due for balance on de-
and garnisheed the drawee who accepted
the drafts.
Held that the defendant had elected
to affirm the discount and was not en-
titled to recover the drafts on the ground
that they had obtained by fraud on the
part of the bank.
The plaintiff receiver was entitled TO
anjoin defendants action, in another
State, which interfered in the collection
Of the assets of the bank by the re-
ceiver, and it was no defense that the
plaintiff received had an adequate rene
day at law
appellant V. ALBERT JONES.
From Wake. No error.
Where husband and wife We're residing
on the wife's land and the wife left her
husband because she had good reason to
believe that he was living in adultery
With a woman on the premises, and the
wife ordered the husband to leave her
land and not to enter thereon again, an
Indictment against the husband for en-
tering upon the wife's land after being
forbidden by her cannot be sustained.
Manning V. Manning, 70 N. C. 293 eX
planned and Taylor V, Taylor, 112 n. c.
1874, distinguished.
STATE V. PARKER, appellant From
Durham. New trial.
The proper method of taking advantage
Of irregularity in selecting jurors for
special venire is by challenge to the ar
ray or by motion to quash the panel be-
fore the jury are sworn and charged with
the case
Requirements concerning the drawing
Of a jury or of a special venire should be
strictly observed, but a failure to COM
ply Herewith will not invalidate the
panel, in the absence of bad faith, cor
ruption, or other adequate cause.
The examination of a prisoner before
the committing magistrate should not be
made under oath Code Sec 1145-1149)
and admissions or confessions of a pris-
oner before the committing magistrate,
made under the compulsion of an OATH
are inadmissible in evidence and should
not be referred to on the trial in the
Superior Court for the purpose of con-
tradicting him.
HAMRICK V. QUARRY CO., appellant
From Union. Error.
Where. in an action for damages, it
appeared that the plaintiff who was en-
ployed to drill holes in rocks for the
purpose of blasting had been instructed
by the employer not to scrape out a load
ed hole which had failed to explode (therc
being others employed specially for that
purpose) was injured by an explosion re-
sulting from his attempt to drill out a
hole which was loaded but had failed to
explode, there being no fuse in it to show
that the attempt had been made to fire
it, it was held error to instruct the jury
that the case depended upon whether the
plaintiff reasonably supposed the hole
was loaded and if he did not he could re-
cover. And it was error to refuse the
instruction tfF if the jury found that the
plaintiff undertook to do omething which
| it was not his duty to do, he assumed
all risk
! CLEGG, Admir-. V. SO. RAILWAY co.
appellant. From Iredell. Error
1t is not imperative that an appea
should be docketed in the Supreme Cour
until the term thereof succeeding thu
trial of the cause in the court below
put where an appeal in a cause tried il
the Superior Court during a term of tn,
supreme Court is doclleted at that tern
N time fo> trial, continuance en- tina
ground will not be granted.
Presumption of negligence against
railroad company does not arise upon
simple proof of injuries or death caused
by its train. Upton V. Railroad. 12S N. c.
173.
Where in an action against a railroa,
company for damages for killing the
plaintiffs intestate in the night time
the evidence offered to show negligence
of the defendant was that the intestate
was seen going in the direction of tn,
track and was afterwards found dead. "
ing beside the track where a dirt roa,
ran parallel with it, but not at cross
ing, there being bruises from which i
might reasonably be inferred that h
was knocked off the track and killed b,
the defendants engine; that the tract
was straight at that point and con
tinued so for half mile or more: tina
there was no sign that the intestate hat
been dragged or run over by the engine
and no blood on the cross ties:
Held that the defendants motion 70
uon-suit should have been sustained
Hord's case. 129 n C. 30S; McArver