The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-11-27

of such approval. Machine Co. V. Hill
and Cash Reg. Co. V. Hill, at this term,
distinguished.
BLAIR V. OAKLEY, appellant. From
Union No Error.
Under section 2 of Chapter %, Acts
1901, papers in civil cases required to
be returned to the next term of the
superior Court must be so returned
without regard to whether the sue
ceeding term is for civil or criminal
cases.
The rule governing appeals from
justices courts apply to an appeal
from an order in a proceeding to alter
pubic road, and an appeal in such
proceeding is within the provision of
said section 2.
An appeal is not perfected by appel
lant,s praying an appeal and fling
bond; ne must at least pay or tender
the lees for preparing the transcript.
LAfON, appellant V. CROWI1LI.
From Stanly. New Trial.
Where the grantee in a deed de-
livered in 1883 and recorded in 1901
held adverse, open and notorious pos
session hereunder for seventeen years
from the date of it's delivery, such
deed is within the provise to Chapter
147, Laws 1885, to the effect that a
registered deed, subsequent to an I'M
registered deed, made prior to Deem
Der /, 1885, shall not be effectual as
against such unregistered deed, if the
person holding under the unregistered
deed shall be in actual possession
hereunder at the date of the SUISSE
quent deed.
An unregistered deed within the
proviso TO Chapter LAT, Laws 1885 is
not color of title, but confers perfect
title after registration.
The right of a grantee in an unreg-
istered deed within the proviso to said
Chapter 147 is not affected by fore
closure proceeding under a subse-
quent mortgage duly recorded.
VOW Y. HAMILTON, appellant. From
Randolph. No Error.
Declarations of a deceased person
concerning boundaries of land are adj
missble in evidence, if the deceased
vas disnterested person and if the
declarations were made ante Item
mo-tam. This evidence is distinguish
ed from evidence by reputation, which
IS competent only as to ancient boun-
laries.
Evidence giving declarations of a
1iSintereSted deceased person to estab-
ish the location of a boundary line
should not be excluded, under the rule
rs to primary and secondary evidence,
because there is testimony of a living
witness concerning the same matter
cannot dDDlY
cept as a test whether the original
declarations themselves were second
airy evidence.
he evidence which should be ex-
cluded under the rule OF primary and
secondary evidence is that evidence
which its very self indicates that II is
not the original source of information
On trial of an action to recover land
a witness through whom one of the
no 1.ff lDi iy of tod 1xr
Section $50 of The Code from testi-
flying as TO declarations of a disnter-
ested deceased person concerning the
disputed boundary. 107 n. G.. 266; 81
n. c. 179; 50 n. c. Ali.
With certain exceptions, not appli-
cable to this case, a party who as
signs as error the failure of the judge
to give instructions upon : a certain
phase of the evidence, must show that
the judge was specially asked to give
such instructions. 121 n. c. 269.
party at whose instance unneces-
sarY matter is embodied in a trans
script on appeal will, on motion, be
taxed with the cost of the same; and it
is the desire of the court that such mat
ter should not incumber transcripts.
GROCERY co. V. SOUTHERN RAIL
WAY CO., appellant From David
son. No error.
shipper of two out of three packages
delivered at the same time to rail-
road company for transportation does
not excuse its failure TO ship the one
package correctly marked.
A repeating act cannot by implica-
ton affect pending suits brought un-
Ger the provisions of the act repealed.
one acquires an inchoate right by
instituting an action to recover a pen
"a nv n
right can be defeated only by express
legislative enactment and not by inn
plcatjon from a repeal of the statute.
judgment in favor of a plaintiff i'm an
action to recover a penalty provided
by statute, and obtained before the
repeal of the statute, confers a vested
right which cannot be defeated by the
Legislature.
1t is within the police power of the
State to impose penalt es against a
railroad company for refusal TO ship
freight rendered or for unreaSOna BILE
delay in making shipment and such
penalties are made cumulative that it
may be to the interest of the carrier
to perform its duty.
STEWART, appellant, ". n. C. RAIL
ROAD CO.. From Rowan. At
tirmed.
In an action to recover damages OF
a railroad company for alleged negli-
gence iii killing PLAINTIFFS intestate, IT
was error rot to permit plaintiff to in
troduce a part of a paragraph of de-
PENDANTS answer which constituted
an admission that the engineer did not
see iutestate until he was struck
without admitting the other part of
the paragraph, which alleged a proper
lookout on the part of the engineer;
but such error was rendered harmless
by an affirmative finding of the issue
as to defendants negligence.
In an action 70 recover damages
for alleged negligence of a railroad
company resulting in the death of
plaintiffs intestate while on defend
ants track, evidence as to the number
of public crossings near the place of
the accident, offered for the purpose
of showing that if defendant had OBJ
served the requirement to sound the
whistle at each crossing, it would have
been heard by some person, and fail
ure to sound the whistle at the cross
ings above where intestate was killed,
was some evidence of failure to sound
it at that crossing, was properly eX-
cluded.
(By reporter ad ibtum)
There is presumption OF negli
gence where one gets on a helpless
spree and a railroad track the same
night, and in such case the question