The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-10-07
Supreme Court Digest,
(Reported by Jos. l.. Seawell.)

IN IIA 11ON W. V. WOhnELL, appel
liant. From Hartford. Appeal dis
missed.
The ruling of a Superior Court Judge
affirming the clerk in ordering actual
partition is not renewable.
An order appointing commissioners to
partition land is introductory and appeal
therefrom before report OF commissioners
is premature.
BAKER & BROWN, V. ROANOKE & TAR
RIVER RAILROAD CO., appellant.
From BERTHE No error.
In an action under 1926 of The Code to
recover damages of a railroad company
for killing a horse, the burden is on de-
PENDANT to rebuff the presumption OF neg
ligence raised by the statute, and the
trial judge cannot find affirmatively that
The Defendants evidence is sufficient TO
do this. Hardison's case, 100 n. c. 492
affirmed.
BUTTS v. A. G. N. C. RAILROAD CO.
appellant. From Craven. New trial.
In an action to recover damages for
injuries sustained by plaintiff in being
struck by defendants engine through its
negligence, as alleged by plaintiff, it was
error to charge upon the issue-'Dld de-
PENDANT negligently run its engine against
plaintiff and injure him as alleged?" that
1.-The evidence shows that plaintiff was
injured in collision with defendants To-
connective and If you find that defendant
did not give the signals or any OF them.
you should answer the Issue yes. Ed
wards case, 129 N. c. 70, 81.
HOLLY SHELTER RAILROAD co. V.
NEWTON, petitioner. From Fender
The Writ of Prohibition can issue only
from the Supreme Court land is author
lied by Article " Section 8 of the Con
stitution) and then only in cases where
it is necessary to restrain the action OF
TIE lower courts in proceeding outside of
their power.
II is not a Writ of Right, but it's is
suance is a matter of discretion and then
only in cases Of extreme necessity. Nor
viii it be issued where there is sufficient
remedy by injunction etc. State Y. Allen.
"a, N. C. 1873; State V. Whitaker, ia N
c. SIS; Perry V. Shepherd, Is n. G. SO.
Discussion OF the provisions of law APP
plcable to condemnation of land for rail
road purposes and the appointment OF
commissioners to assess damages, etc.
Code Section 1916.
PERKINS, appellant V. BRINKLEY. From
Halifax. Affirmed.
widow cannot dissent from the will
of her husband after six months from
the probate thereof, and a proceeding by
her for years provision cannot be main
tanned if begun before she has filed her
dissent.
An ante-nuptial contract which pro-
vided that the intended wife would mot
claim for herself or any other person any
right, title or interest, if any property
now owned or which may hereafter be
owned or become in possession" of the
intended husband and ''relinquishes all
right of dover, by virtue of said marriage,
to or in the estate Of the husband, is
held to bar claim for years allowance.
-
NEWBERRY, appellant y. NORFOLK G.
SOUTH soyTHERN {e- RAILRoP CO. From
In an action against a railroad com
pany to recover a consignment OF goods
alleged TO be unlawfully detained, it ap-
peared that the goods were billed to A.
Alexander and were received at the depot;
that plaintiff claimed the goods by virtue
of an order for the goods addressed to
defendants agent and signed by A. Alex
ander and also receipt from A. Aexan-
der to plaintiff reciting that plaintiff
had bought the goods from A. Alexander
that the person under whom plaintiff
claimed the goods was named Arthur
Alexander and defendant contended and
introduced evidence to show that the
goods shipped to A Alexander were IN
tended by the shipper (who was made de-
fendanD for Alfred Alexander and not for
Arthur, and there was evidence that the
till of lading was held by Alfred
Held that it was competent for the
shipper to prove which of the Alexauders
he supposed had ordered the goods, and
to which he intended to consign them.
and 1T was incumbent on plaintiff TO show
that title had passed from the shipper
to the person from whom the plaintiff
purchased
PASTERFIELD, appellant V. SAWYER.
From Pasquotank. New trial.
Where, in an action begun in Justices
court for the recovery OF deed to real
estate, the defendant contonded that the
deed was delivered to him as an escrow
and the condition had not been perform
cd, and the plaintiff contended that the
deed was merely left with the defendant.
free from condition. to be kept by him
until the plaintiff called for it;
Held error in the trial judge, on appeal
to the Superior Court, to dismiss the ac-
ton on the ground that it involved title
to land and the justice had no jurlsdlc-
ton, without first submitting to the jury
an issue involving the question whether
the deed was deposited with the defend
ant upon bailment.
deed once delivered to the grantee
cannot afterwards be turned INTO an
escrow by any subsequent conversation be-
tween the grantor and one with whom
the deed was left by the grantee.
Where the complaint in such action al
legged that the deed was worth from Sla
to S25 a simple denial ofsthe allegation
III the answer does not raise an issue as
to the value of the deed.
STANCILL, appellant V. SPAIN. From
Pitt. New trial.
In an action affecting the title to land
the holder of the equity of redemption
oh l. 49, 1nfD