The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-05-03

E OcsCllDc tIUuDt0, anu Tree IucQlcdl dQVlce
given until cured. AS Blood Balm mas
cured thousands On hopeless cases. suf-
fers are advised to give B. B. r. a trial
authorized the agent to do more than to
contract for the sale Of the land it was
error to refuse to dismiss the action
STATE V. BARRETT, appellant. From
Moore. New trial
| Where the court gives conflicting in
structions to the jury upon a material
point, a new trial will be awarded.
In passing upon plea Of self-defense
| to an Indictment for murder the pris-
oner's conduct must be judged by the
| facts and circumstances as they appeared
to him at the time of the homicide. and
the jury should ascertain from the evil
dence, and under proper instructions.
whether the prisoner had a reasonable
apprehension that he was about to lose
his life or receive enormous bodily harm
State v Nash. So N. C. 61S.
A charge that to establish the plea OF
lself-defense where the killing was with
a deadly weapon, the prisoner must salts
| fly the jury "by the stronger proof AMI
by the greater proof of facts and eircum-
stances which establish such plea, is
held not to accord with the suggestion
of the Supreme Court in State v Willis,
| SO n. C. 26 and later decisions to the
effect that 1T is incumbent upon the pris-
oner to establish such matter neither
beyond a reasonable doubt" nor FAC
cording to the preponderance of the tes-
timony," but to "the satisfaction of the
| jury.
STATE V. AUSTIN, appellant. From
Randolph. New trial.
When evidence not material to the mat
ter at issue is admitted under objection
on cross examination, it is the duty of
the court to explain to the jury the pur-
pose for which it was admitted.
Upon the trial of an Indictment for per-
jury charging defendant with having
falsely sworn that he had not been con-.
| fined IN the city prison Of Asheville for
| drunkenness, the defendant testified that
ne had never been confined in Asheville
prison or any other prison and that his
testimony in the trial at which the per-
jury was alleged to have been committed.
was true. and on cross examination he
was asked If certain preacher had not
charged him to his face with having had
delirium tremens and he replied, under
objection, that the preacher had 50
charged him. but that the charge was
untrue.
Held that the evidence being incompe-
tent as to the offense charged, because
Of its lack of particularly, the trial
Judge should have instructed the jury
that the evidence could be considered only
as affecting the credibility of the witness.
MAUNEY " HAMILTON. From Stanly
In plaintiffs appeal affirmed; In de-
PENDANTS appeal, new trial.
A motion for judgment against one Of
several defendants for want OF an an
swer was properly denied. where it ap-
peared from the nature of the action
that no judgment could be rendered
against such defendant until the prelim-
mary issues between the plaintiff and the
other defendants, had been settled.
Clark's Code 2SS.
Where the Judge in his charge ex-
pressly withdraws certain evidence from
the consideration of the jury, the error
in admitting such evidence is thereby
cured.
In an action to declare void deed
from husband to wife as given to defraud
creditors it was not error to instruct the
jury that the fact that no surplus had
been found upon allotment OF defendant S
homestead, was not conclusive evidence
of defendants insolvency, but was very
strong evidence tending to prove his in
solvency.
Defendant is not bound by plaintiffs re-
covery as to any set off or counter claim
which defendant did not plead; and
where. in an action to set aside a deed
from husband to wife as made in fraud
of creditors, and to subject the land to
a Judgment of the plaintiff, the defendant
alleged in his answer, by way of equitable
counterclaim, upon which he asked ar
| firmative relief, that plaintiffs judgment
was the balance of a note given to plain
| tiff by defendant which note was secured
by mortgage; that plaintiff pretended to
sell under the mortgage, but that the
sale was only colorado; that the plain
| tiff bid for and bought the land at his
own sale through his son-in-law; that the
land did not bring a fair price and was
worth more than plaintiffs note, and the
sale should be set aside and resale
ordered: that the entire amount of plain
tiff's debt be paid and plaintiff be made
| to account for rents, etc. that the land
| had since been conveyed by plaintiff with
knowledge by the purchaser of the mort
/ gage sale and an understanding between
/ plaintiff and the purchaser that If plain
tiff should be declared to be still the
mortgage, the deed from plaintiff should
be considered void; Held that the court
erred in holding that the Justices judg
ment for the balance of plaintiffs debt
was res judicata and estopped defendant
to plead that plaintiff purchased the
mortgaged property at his own sale.
TRUSTEES BAPTIST FEMALE UNI
| VERSITY v. BORDEN, Ex'r. From
Wayne. Both parties appealed.
In a gift to for life with a vested re-
mainder in fee to B "after the death Of
Az, the words latter the death Of Al" arc
equivalent to "after the determination Of
the estate of A." Therefore upon de-
wise to the widow for life, and latter her
death in remainder to B. the enjoyment
of BIS estate in remainder is accelerated
by the dissent of the widow. Adams v.
Gillespie So N C. PA: Holderby v.
Walker. Sc N. G. 46; and Wilson V. Stat
| fords so N c. SAT. affirmed, and the die
tum In Beddard v. Harrington 124 N. C. 81.
not approved. 20 Am. Eng. Enc. list
lEd.)tp 1885, Sec. 8.
ReAt follows the reversion, and rents of