The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-11-15


defendants employees in time TO avon!
the injury
The record shows that the plaintiff did
not offer, The whole of the paragraph but
only part of it as evidence; Held. that
the evidence is too vague for considerl-
ton, as the court cannot select what part
was intended to be offered. Upton V. r
Co.. 12S y. C. 173 cited and approved.
PEARCE V. FISHER and CLEGG, appel
lants. From Guilford. New trial.
In an action for damages TO his stock
Of goods the plaintiff alleged he leased
from FISHER Il store room, and afterwards
Fisher leased the rooms above the store
room to defendant Clegg as a hotel; that
the plumbing was defective ana water
escaped from pipes above and injured the
goods In the store.
The issue WAS plaintiff injured by de-
PENDANTS or either of them as alleged in
the complaint" was answered Eyes" Held
that no Judgment can be rendered on The
verdict, as it IS not certain whether the
jury intended to find that pEnintlii was
injured oy both or only one of the dc
PENDANTS The liability of ono Of the de-
fCndan;s nay depend on acts az legal
principles different from those winch
would determine the liability of the other
Separate issues should be submitted as TO
each defendant.
TRAVERS V. n. C. RAILROAD CO., ap-
pellant. From Alamance. No error
Action to compel defendant TO issue a
new certificate of stock fol one which was
lost. The court below gave Judgment Cor
plaintiff upon the verdict Of the jury, but
required the plaintiff to execute bond
Of indemnity to defendant company. Held
that the exception to the Judgment on the
ground that it did not contain a provision
requiring the treasurer of the defendant
company to hold the new certificate as an
escrow for five years before delivering it
to the plaintiff, cannot be sustained. The
Act % 1885 Oh. 265, and the Act of 1901,
Oh. 2, in reference TO this matter. are
inconsistent and the former is repealed
by the latter.
PERKINS V. BRINKLEY, appellant.
From Warren. Affirmed
70 show that only certain quantity
of land was conveyed in a deed the de
PENDANT offered in evidence a map found
among the papers of the deceased, repre-
senting tract of land and on the cen
ter were written in the hand writing Of
the deceased, the word, Containing 500
acres conveyed to A. b. as trustee. as
annuity of NJ. E. c. during her life" De
PENDANT testified he got this paper as
executor; Held, no error in excluding the
map, as there was no evidence showing
when it was made, or that 1t was known
either to the plaintiff or defendant, or
that it was in existence and referred to
by the parties at the time of the execu-
tion of the deed. Webb V Hall, IS N. c.
27S, cited and approved.
The general rule that declarations of
vendor in possession of land are compe
tent to explain or qualify his possession,
cannot be extended to declarations of an
agent in possession in disparagement of
the title on boundaries of his principal.
The husbands possession in this case
was his wifes possession, and he was
hown to be her agent in renting out the
land and his declarations to a stranger
ar, not cor:pct,nl Against her.
The g. fcadant hli.lE kca possession
aud rented the laI:d after the death of the
plaintiffs husband should account to the
plaintiff for the rents received by him.
THOMSON V. JULIAN, appellant. From
Rowan. No error.
Section 2145 of The Code provides that
Children born after the making of the
parents will and whose parent shall die
without making any provision for them,
shall be entitled to such share and proper
ton of said parents estate as If he or she
had died intestate, and the rights of such
after born child shall be a lien on every
part of the parents estate, until his
several share thereof is set apart in the
manner prescribed in this chapter"
The words without making any provi-
sion IN this section, are not construed to
mean that there must be a gift or devise
to such children, but that there must be
an absence of anything to show that the
testator had such children in mind wien
the will was made, iii which event the
law will presume that the failure to pro-
vide for children, born after the execution
of the will, was unintentional
A devise to the children of a first mar
rage and ''to the exclusion of any chill
dren now living or hereafter to be born
of my present marriage is not void I'M
der Section 2145 and will be enforced.
SOUTHPORT, WILMINGTON & DUR
HAM RAILROAD CO., appellant, ".
OWNERS OF THE PLATT LANDS.
From Brunswick. Affirmed.
Under the Act of 1891, chapter 176,
amending chapter 40 of The Code, the
owner of land condemned for purposes of
a railroad must be paid full. fair and
ample compensation therefor to be re-
duced only by such benefits as accrue spe
cially to his own land; and benefits which
are common 70 the owner and all other
persons in the vicinity are not to be con-
sidered in awarding damages to the per-
son whose land is condemned.