The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-05-24

agreement that the first premium must
be paid, during good health of the in
stlred, has been complied with.
GRAVES V. CURRIE. appellant. From
Montgomery. Affirmed.
mortgage on one thousand pound.
OF lint cotton, corn, fodder. shucks' etc.
which l may make on my own or any
land | shall cultivate conveys the
corn.
Where, in an action by a mortgage to
recover a safe conveyed by mortgage, the
defendant did not allege ownership nor
show that he had purchased it from the
mortgagor, judgment for the mort
gagor In a suit between him and the
mortgage, to recover the safe and other
mortgaged property, reciting that the
cause came on to be heard on the admis-
sions in the answer, is conclusive against
the defendants claim to the safe.
In such case the defendant cannot avail
himself of the defense that the mortgagor
recovered judgment against the mort
gagee Tor enough TO pay the total mort
gage Indebtedness, and released a portion
thereof to the defendants prejudice
DAVIS, appellant, V. MORRIS. From
CASTOR. No error.
Where, in selling town lots the owner
represented, in deeds therefor and by a
map, that he had laid OFF and reserved
certain portion as a street and persons
were induced to buy upon such represen-
tation, and the land was used continu-
ously thereafter as a street without OBJ
lection from the owner, he is held, as be
tween the parties, to have dedicated the
land represented as a street, though the
town has not accepted it for such pur-
pose. State " Fisher, III N C. 740;
Smith v Goldsboro, 121 N. C. 354; Conrad
V. Land CO., 12G N. C. TIC; Collins v.
Land Co., 128 n. G. 563.
In such case it was not material that
there was no plat representing the street
when the bond for title to one of the
purchasers was executed, as the street
had been marked off and named and was
called for as a boundary in the bond
PHARR, Admir-, V. A. & c. A. L. RAIL
ROAD, appellant. From Mecklenburg.
Affirmed
Contributory negligence, being an af-
firmative defense, the burden is always or
the defendant to establish it, and the
jury must pass upon the credibility OF
witnesses introduced TO sustain the plea
even though the plaintiff introduces no
evidence in reference thereto.
Where, in an action to recover damages
for killing the plaintiffs intestate, it APP
peared that the intestate who was en-
ployed by the defendant as brakeman,
uncoupled the rear section of a freight
train, and signalled the engineer to go
forward and then stepped between the
cars, TO put the air" on the rear section
which had started down grade, and was
caught between the cars and killed. the
engineer having moved the train back
ward instead Of forward; and the dis
puted question upon the issue of contri-
butory negligence was whether the rear
car of the first section was standing still
or moving, it was held that evidence as
to the distance between the cars un.
coupled when the intestate went between
them to arrest the movement of the see.
ond section, and the testimony of the
engineer that the brakes were stuck 10
or II cars from the engine; that he had
to go forward and take up the slack In
order to come back again and move the
cars so as to loosen the pin, was some
evidence from which it might be reason
ably argued, and from which the jury
might fairly conclude that the rear car
of the front section was standing still
when the intestate went between the
cars.
After a sutton has taken chances for
favorable verdict. the purposes of Justice
are not subserved by listening too read-
ly to objections not taken in apt time.