The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-05-03
Supreme Court Digest.
(Reported by JOS. L. seawell.)


STATE v. NINFSTEIN, appellant. Fror
Rowan. Reversed
Subsection l and IL of Section 54 OF
the charter of Salisbury providing a tax
on itinerant merchants and peddlers
does not authorize tax upon an agen.
OF nonresident firm who took orders
in said city for melons and had them
shipped to him and then delivered them
in wagon to the purchasers and receiy-
ed payment therefor Estate " Francis
100 Nc. 724) and such agent is expressly
excluded from the definition of a "sta-
tutory peddler' by Section a. Oh. o.
Laws 1901.
AUSTIN V. AUSTIN ct al. From Union
Error
A proceeding by an administrator q
sell land for assets to paw debts is not
conclusive against the heirs at Law as 60
the amount of the alleged de- az
though the heirs filed no answ said
proceeding Latta " Rus ltl
sustained.
Although in such pro ecdirg e-
tion is vested in another court slA le
adoption of the .lreaeht Constitution, no
same defenses are open 90 The heirs as
obtained unfer the former ystem.
STATE v. MITCHELL. appellant. From
Rockingham. Judgment arrested
An Indictment under section 1113 of The
Code for slanderiar ID innocent woman
is fatally defective I it fails to charge
that O. 'endant al smpted to destroy the
reputa 60 az innocent woman.
The oheusa efined by said statute con-
fists net the slander of an innocent
oman tu in the attempt to destroy her
reputation. 80 n. C. 1876, 50 N G. 695; lis
n 81.
~ heu an offense is statutory. it is best.
as a general rule, to follow the terms of
the statute and not experiment with new
forms.
Form of indictment under Section 1113
Of The Code prescribed by the court.
MURPHY, appellant V. MURPHY ct al
From Rowan. Affirmed.
Where the terms in a deed are clearly
contradictory the first in order will be
given effect to the exclusion of the last,
and deeds will be construed most strong
~ against the grantor
Where a deed contains in one part a
full and clear description of the thing
granted and in another part a descrip-
tion less clear and the descriptions car
not be reconciled, the description which is
less clear must give way to the other
and be entirely rejected il it cannot be
otherwise disposed of. Where there is a
general description in a deed of the
property conveyed, followed by a par
ticular description. the latter will con-
troll. Shepherd Y. Simpson, ~ ~ c. 2S7;
Cox V. MCGOWAN, 116 n. C. 131.
The plaintiff being possessed Of one
fifth Of certain lands, conveyed to S. W
NJ in fee 'an his interest in" said prop
erty, the deed reeiting that 1.-THE interest
of the party of the first part was one
undivided SIXTH therein" and conveying
"all of the estate, right, title interest,
claim or demand and right of dover il
law or equity, or otherwise howsoever. of
the. party of the first part, in and to
the same, and every part and parcel
thereon Held that the deed must be
construed as conveying the grantors en-
tire one-ffth interest in the property
KINSTON & CAR. RAILROAD Co, appel
liant. v. STROUD. From Lenoir No
error.
While the charter OF corporation can
not be collaterally attacked, yet the court
viii declare it imperative and void
where, in an action by a railroad cor
poration to condemn land, it appears from
the fact of the Articles OF Association
that there has been a non compliance
with Section 1888 of The Code providing
that said Articles shall not be filed aud
recorded in the office of the Secretary of
State until at least 81 900 of stock for
every mile of road has been subscribed
and FIVE per cent theron paid In good
faith. etc, and the corporation acquires
no existence until there has been a COM
pliance with said provisions. notwith-
standing the Articles of Association have
been filed and recorded.
COBLE, appellant v. HUFFINES. From
Guilford New trial
Where, in an action for malicious pro-
secution growing out of a horse trade, it
appeared that defendant procured a war
rant for plaintiffs arrest charging that
plaintiff had traded him baking horse
upon the assurance that horse had never
been known to balk; that plaintiff vas
bound to court and acquitted upon two
indictments based upon the horse trade,
it was error to exclude one of the in
dictments from the evidence.
While the adjudication in such case
that the prosecution on one of the in
dictments was frivolous and malicious is
not held to be conclusive evidence of
want of probable cause it was competent
TO be considered by the jury, and there
was error in excluding it, and also error
in the intimation of the court that the
plaintiff could not recover.
SMITH v. BROWNE, appellant. From
Guilford. New trial.
Where there is only parol authority to
an agent to contract for sale Of land, the
agent is not authorized to receive the
purchase money, and where in an action
against the principal for specific perform
ance of the contract of the agent to con-
vey to the plaintiff, it appeared from
written receipt of the agent to the plain
tiff that the agent had received the pur-
chase money. and that the plaintiff was
to pay an additional amount when
house was erected upon the land that
the principal had no knowledge of the
agents agreement to build the house and
had not received the purchase price, nor
Ennn EnD a VIZ p