The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-09-27
Supreme Court Digest.
(Reported by Jos. l.. Seawell.)

SMITH, appellant, VS.. PAUL. From Beau
fort. New trial
A party to a civil as we'll as 20 a crimi-
nal action, is entitled as a matter Of
right, to have the jury polled. when de-
handed by him.
CALVERT, appellant, VS.. CARSTARPEN.
From Northampton. Appeal dismissed.
The Rules of Practice prescribed by the
Supreme Court are mandatory and not
directory
An appeal Gf not informa pauperis)
will be dismissed for failure OF appellant
counsel to file printed brief seven days
| before the call of the district to which
the cause belongs Rule "a OBJ N. C.
S3D.
S1RAUSE, appellant, VS.. SAWYER. From
Pasquotank. No error.
1t is too late after verdict upon issues
| of TACT for plaintiff to take non-suit;
and where, In an action to recover upon
a contract, the jury after rendering
verdict were returned to the jury room
to correct a mere fomal defect in the
verdict, and just as they retired the plain
tiffs counsel informed the court that
plaintiff took a non suit, there was no
error in refusing judgment of non-suit.
CLARK VS.. CLARK, appellant. From
BERTHE. Action dismissed.
Application for almony and divorce
from bed and board. 1t is provided in
Section 1887 of The Code that in such ac-
ton the plaintiff shall file with the com
plant an affidavit setting forth teh facts
enumerated in that section; Held that
failure to comply with this provision of
the law will prevent the court from ac-
curing jurisdiction. Nichols VS.. Nichols
12S n. c. 10S; Hopkins VS.. Hopkins, 1872
N G. %. There was no complaint for d-
vorce filed In this action Moore vs.
Moore, 1870 N. c. 1884,
Nor can the order of The court below
for alimony be sustained under Section
1892 as the proceeding was not instituted
under that section.
STORY VS.. NO. &c so. RAILROAD, appel
liant. From Perquimans. No error.
A railroad company has the right to re-
fuse to admit person when drunk, on
the train, both on account of danger to
him and his liability to become a NUS
apce to other passengers.
Where one offering himself as a pas
senger has on other occasion been disor-
derby on the train, the conductor is JUS
tilted in scrutinizing his condition on his
entering the train, but he cannot refuse
him carriage when in a proper condition
and armed with ticket
Upon the conflicting testimony in this
case on the questions whether the plain
tiff was drunk on the particular occa-
sion and whether the conductor wrong
fully rejected him as a passenger, with
rudeness and insult, the jury found in IA
vor of the plaintiff, and the judgment
IN his favor is affirmed.
SMALLWOOD VS.. LIFE ms. co. VA,
appellant. From Craven. New trial
Where, by a clerical error notice was
sent by an insurance company to the as
sured demanding only SS.76 premium, the
company is not estopped, after the discov-
cry of the error, to demand succeeding 4
premiums at $1O.6S if that be the true
rate. The plaintiff however is entitled to
have tried MS charges of alleged fraudu-
lent Misrepresentation and if the plaintiff
was misled by the provision in the policy
that, at the end of each term of five
years, dividends should reduce premiums,
then his alleged delay in asserting his
rights was not unreasonable; and upon
his tender of the premiums due, the COM
pany had no right to cancel the policy,
and he should be reinstated without
further medical examination should such
facts be established upon another trial.
STATE VS.. CAMPBELL, appellant From
Pitt. No error
In an indictment under Section 1862
I'D nd
moving fence surrounding a cultiva-
ted field, it is not necessary, to sustain
conviction, that the land enclosed was
being actually cultivated at the time the
fence was removed or that crop was
growing thereon 1t is sufficient if it
appear that the land was enclosed for
the purposes of cultivation. Neither is
the area of the land enclosed essential; |
a very small lot enclosed for the purposes
OF cultivation may be described as a
field under the statute, unless the lot
is used as garden in which case it
should be so described
MARCUS VS.. LOANE, appellant From |
Washington. New trial.
Actionable negligence must not be con-
sidered by the jury in awarding damages
unless such negligence was the proximate
cause of the injury. Where, IN an action |
by a father to recover damages for the |
death of his 15-year-old son, resulting |
from the explosion of an engine in a saw
mill. there was evidence that the plain |
tiffs intestate turned the throttle with |
out first turning the relief valve, and that |
such act caused the explosion and there
was a contention between the parties |
whether the jntpState was acting within |
the sphere of his employment when he at
tempted to start the engine; Held that
the trial judge committed error IN charg |
ing the jury that 1T was the duty of
the defendant to exercise due care in
the employment of a boy to do such work
as that of managing dangerous machin
ery''-such language constitutes an ex-
preston of opinion OF TACT IN issue.