The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-05-10
THE SUPREME COURT
DIGEST
,Rerorted by Jos. L. seawell.)

D. Il
The surety on a claim and delivery
bond will be held liable to the full amount
of the penalty until all damages and costs
incurred by the principal have been paIa.
and such surety is not entitled to his dis
charge from the obligation merely because
the property has been returned
FRAZIER, appellant V. WILKES. From
Meckienburg Affirmed.
The facts in this case come within the
rule in Raiford V. Railroad, 129 N. c. 597
to the effect that no act or omission,
though resulting in damage, can be deemed
actionable negligence unless the one re-
sponsible could, by exercising ordinary
care under all the circumstances. have
foreseen that injury to some one might
result therefrom.
MITCHELL, appellant V. MITCHELL.
From Surry. Affirmed
An action to recover an unpaid legacy
cannot be maintained against the admins
traitor of the devisee who wrongfully took
charge of and used the entire estate from
which the unpaid legacy was bequeathed.
and the fact that no administration was
ever had upon such estate does not alter
the rule that the legatee's duty was to-
have the estate administered and thereby
seek to recover his legacy. Davidson V.
Potts, AZ N. C. 272; Martin V. McBryde,
90 n. C. 551.
MCNEIL V. DURHAM & CHARLOTTE
RAILROAD CO. appellant. From
Moore. Error.
Where one riding on railroad train has
no contract of passage with the company,
the only duty he can require of the COM
pany is that it shall not wilfuily and wan
tonly injure him. Cooks Case, 12S N. C.
S33; Pierce's Case. 124 N. c. SO.
An annual pass over all it's lines by a
railroad company to an editor in consid-
Grafton of his publishing the company's
schedules in his paper is in violation of
the law against free passes (Sec. Oh. 800,
Laws 1891, and in an action by the editor
to recover damages for personal injuries
sustained through the alleged negligence
OF the company while the plaintiff was a
passenger by virtue of such pass, IT. is
held that the plaintiff and defendant are
in pari delicto, and that the plaintiff can
not recover.
PATTERSON, appellant v. FREEMAN.
From Surry. New trial.
The judgment of a justice of the peace
cannot be introduced in evidence without
proof of the handwriting of the justice
Reeves v. Davis, SO N. c. 2O9.
While a justice of the peace is without
jurisdiction to administer a demand of spe-
cific performance of contract to convey
land, he has jurisdiction of an action in
personam upon a note for less than 5000
to secure the purchase price, to determine
whether payment has been made on the
same, and if defendant desires to make de-
Tense that the action involves title to land
he may do SO as provided by section S36
of The Code
DENNY, appellant v. N. c. RAILROAD
co. From Guilford. Affirmed.
No recovery can be han for damages
sustained while alighting from a train,
when its speed is such as to make it OBJ
viously dangerous to alight.
Where passenger had cautioned the
conductor to stop the train at his desti-
nation, and just before the train arrived
at the station the passenger went on the
platform to wait until the train slowed up
sufficiently for him to alight, and after the
train had passed the regular stopping
place and while the passenger was stand
ing on the steps of the platform. his hold
was broken by sudden jerk of the train
and he was forced to step from the train
and was injured Held that no recovery
can be had. Nances case. "a N. C. $50,
and Johnson's case, 100 N. C. ASS, dis
tinguished, and Tillett's case, 118 N. C.
1881, Browns case, 1OS N. C. "a, Lambeth's
case SIS n. C. 494 and Burgin's case, lis
N. c. approved.
FIDELITY & DEPOSIT CO. v. FLEM-
ING, appellant. From Granville. AT
firmed.
County commissioners have no power to
release sureties upon the public bond of a
county officer. Their sole power in re-
spect to such bonds is to approve them
and accept renewals thereof Code Sec.
702, 707 Commissioners " Clark, 70 N. c..
258; Beach on Public Corporations sec.
1893
Where the term of a public officer is
for more than one year, the bond given
at the time of his appointment for the
proper discharge of his duties and the new
bonds given from time to time thereafter
are cumulative, and the first bond con-
tinuous, as at first intended, and the new
bonds become additional security and are
not discharge of the first bonds. Pool
V. Cox, 81 N. C. II; Oates V. Bryan, ID N.
c. 451; Bell v. Jasper, 81 N. c. 597; Pick
ems v. Miller, SO N. C. SAB.
HINSON V. POSTAL TEL. CO.. appel
ant from Durham. New trial
me person or corporation in whose
care a telegram is sent becomes thereby
the agent of the sendee, and the negligence
of the corporation in stating to the mes
senger of the telegraph company that the
sendee is not in the employ of the cor
poration and in refusing to receive the
message, cannot be imputed to the tele-
graph company, though it is still the duty
Vi the telegraph company to make reas-
'iiapie effort to deliver the message.
"hefe IN such case it appeared that the
MESSENGER, after the corporation in whose
Tue message was sent refused to re-
-, inquired of body in the yard of
,ne corporation, and at the post office, and
looked IN the city directory, and failed to
Ind the sendee. and that the company then
sen' service message to the sender asking