The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-12-11
Supreme Court Digests.
(Reported by JOS. L. Seawell.)
HutchinS, Appellant. v. School Com
MiftRR ErArn Ilurha firm q

E \heporteU by JOS. Il. SedWell.)
Hutchins, Appellant. v. School Com
mittee. From Durham. Affirmed
An order of a school committee ex-
Guiding pupils who do not have a
| physicians certificate that they have
been successfully vaccinated within
| three years, is held to be a reasonable
exercise of the committees authority.
Board of Education, Appellant. v.
Commissioners. From Iredell. AZ
| firmed.
Sheriffs are entitled to retain COM
missions from school taxes collected
by them.
Attention is called to the fact that
the Machinery Act of 1903, chapter
Isl, makes no provision for. commits
sions for collection of county taxes,
and such commissions can be paid
only under Section 1928 of The code.
Chaffin Manufacturing Co. From
Davie. On petition to rehear former
ruling affirmed.
recover nominal damages from one
who ponds water on his land to any
extent, it was error on trial of an ac-
ton to recover damages sustained
from water backed on plaintiffs land
by defendants dam, to instruct the
jury that plaintiff was entitled to NOM
inal damages if the dam caused water
probable extent"
Erwin, Appellant, V. Morris. From
Cabarrus. Error.
Where land was mortOaged to Sc
cure an uSuriOuS loan and the mort
gagor afterwards rendered the amount,
less the usury, which was refused
by the MORTGAGE. and the mortgagor
subsequently conveyed the mortgaged
land, under a contract that the pur-
n ho a oa a
amount actually due an order re-
straining foreclosure of the mortgage
an an affidavit of the mortgagor's
grantee, as to the usury was inn
properly vacated pending finla hear
| ing.
Station V. Webb. Appellant From
Edgecombe. Affirmed.
Since the adoption of the Constitu-
ton of 1868 it is useless to fudge on
the ancient distinctions in forms of
actions.
A mortgage who, after cancelling
his mortgage debt by selling the land
pays the surplus t. the mortgagOr.
is not liable for such surplus to sub
sequent mortgage or judgment cred
itor; but the rule does not entitle the
mortgage to apply the surplus to his
own unsecured debt due him by the
mOrtgagor, to the exclusion of sub
sequent judgment CREDITOR notwith
standing the mOrtgagor'S agreement
that the surplus should be applied in
consideration of the mortgages SER
vices in securing a purchaser for the
mortgaged land at price in excess Of
the mortgage.
Unles specially authorized by the
mortgage, the surplus proceeds of a
sale of mortgaged land, which surplus
belongs to subsequent judgment
creditor, is not subject to an attorneys
fee paid by the mortgage for drawing
the deed executed by the mortgagor
to the purchaser?
Smith, Appellant, V. johnson. From
Alexander. Error.
A proceeding under Chapter % Acts
1893 to establish boundary line be-
tween adjoining land owners. properly
involves questions only as to owner
ship and the location of the inc. The
Act did not intend that the proceeding
should determine title; and the oc-
cupancy by the plaintiff is sufficient
evidence of ownership. Williams ".
Hughes, 124 N. C. 3.
Therefore where, in such proceed
ing, the defendent denies that plain
tiff owns land adjoining defendant, it
Is error on appeal from the clerks
judgment granting plaintiffs petition
to non-suit platiff. If there is any
evidence to show that he occupies the
|adjoining land.
While non-suits are proper i'm many
cases, tits better practice to submit
the questions raised by the pleadings
to the jury under proper Instructions,
Plumbing Co., Appellant, v. Hall.
From Meckleburg. Affirmed.
In an action to recover balance due
on a contract to install a water SYSTEM
in defendants house and construct an
hydraulic ram i'm connection Herewith.
| hn loft "a Mt cot nm a apn q m
for damages by reason of incomplete
work by plaftiff. and ON cross examin-
ination of plaintiffs counsel (who was
it's agent) he stated that the dam
used in connection with the ram was
built of trees rock and dirt, and
plaitiff objectd to the evidence on the
ground of irrelevancy as to contract
| did not provide that plaintiff should
build the dam.
Held that the evidence, even il
irrelevant, was not Injurious to plai-
| tiff. as there was no evidence that the
failure of the water supply was due to
faulty construction of the dam.
Held further that evidence by a
physician, admitted as expert, that
persons living i'm the house with de-
fendant though not members of her
family. had suffered from malaria,
which the witness attributed to odors
arising from the bath room and a
dampness in the house, was competent
as substantive evidence to prove de-
feetive construction of the water sys-
Cannady. Appellant. v. City or Dur
ham. No error.
| Where, in an action against city
| for damages for personal injuries
sustained by plaintiffs falling into a
| branch, khich defendant permitted to
run across it's sidewalk. the alleged in
jury occurring on dark night and
there being no light at the place. de-
| PENDANTS answer denied that a 81 1e-
walk had been established at the
place of the accident or that defend
! ant had appropriated the land as a
street or sidewalk. the trial judge in
charging the jury properly made de-
PENDANTS liability depend on the. CUES.
ltion whether it had established s