The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-05-01

in Conrad's case, 1876 N. c., 766, than
upon an easement. Street and al
ley" distinguished.
state VS.. Clarence Potter, appellant.
| From Watauga. New trial
| Indictment for murder. Prisoner
was served with q warrant charging
him With a fOrcible treSpass, the war
rant being served while he was at
a saw mill engaged with his cousin,
| Boone Potter in hauling logs. An
other officer was also present with
Il warrant for Boone Potter, which
charged the same otfense and the OFF,
GERS also had three other men pres
ent TO assist in making the arrests.
IIhe warrant was served on the priS-
oner and he was told to consider him
sell under arrest, but before the war
rant was served on Boone Potter who
| was not immediately present. he came
10 where the prisoner and the posse
were standing and told the prisoner
To come on: Whereupon the prisoner
and Boone Potter mounted the wagon
and drove rapidly off. The wagon was
overtaken after the officers and posse
had given chase for about 800 yards,
and when the officer who had the
warrant for Boone Potter (Who was
driving) headed off the team and no.
titled Boone that he had a warrant
for his arrest and demanded his sur
render (the officer having pistol in
},
tOl to Boone who shot the officer. and
the prisoner struck the officer at the
same time with a large stone. and he
died three days afterwards from the
effects of the wound.
Held, that the trial Judge commit
ted error in assuming i'm his charge to
the jury that the circumstances con-
Inected with the attempted arrest at
the mill, was evidence of a conspiracy,
between the prisoner and his compan-
ion, to kill either of the officers or
members of the posse.
State OF \. {. and Commissioners of
| New Hanover vs.. Armour Packing
Co. appellant. No error.
Section 81 of the Revenue Act of
1901 (chapter g. Acts 190D, impos-
ing q franchise tax on "eVerv corpora
ton organized under the laws of this
State or doing business in this State, ="
is held to be valid, and, by the terms
of section 81 of said Act, to be also
privilege tax. and by section So to be
payable to the county as well as the
State, and properly assessed against a
packing company chartered by an
other State and doing business here,
and having one of its principal offices
! i'm this State.
The ratification of bill imports
that it has become law in due course
of procedure, and its authorization
unless there is q constitutional pro-
vision requiring the act to be passed
in a certain way which must appear
in the journals, i'm which case refer
ence may be had to the journals to
determine whether there has been
compliance with the constitutional re-
quirement. 81 n. c., 400; JIG n. c.,
223: 1873 n. c., 616.
| Evidence will not be received to
contradict the legislative journals i'm
reference to the passage of n bill, and
the journals or a certified copy of
them are the only evidence that can
be reSorted to in order to overcome
the presumption arisin" from the rat
ification of an act. Gatlin VS.. Tar
boro, rs y. c., 119.
In such case the burden is on the
party who alleges non compliance
with the constitutional requirement,
to overcome the presumption arising
from the ratification of the act.
Voorhees, Miller q Co.. appellants W.
Porter ct nj. From Buncombc.
New trial.
| A plaintiff will not be restricted to
the relief demanded in his complaint,
but the court will administer any re-
lief not inconsistent with facts alleged
i'm the complaint. Parties to an ac
ton are bound by admissions of fact
but not by arguments or admissions
as to the law.
a beneficiary Of contract, though
not a party or privy thereto, may
maintain an action for its breach.
Gorrel VS.. Water Co. 124 n. c., 32S:
Gastonia VS.. Engineering Co. 131 n.
G., 1863 and other cases. Morehead
VS.. Wriston, 73 n. c., 39S, distin
guished.
| Where executed bill of sale con-
Veying his stock of goods to G in con-
| sideration of C's agreement to apply
| . f,u l,
ment of q debt due to n and to 9TH
eli creditors of b, and C's perform
ance Of the contract was guaranteed
by p, and thereafter G, before COM
| plying with his agreement, assigned
to p all his property for the benefit of
creditors; Held
| Cd That while A. as the creditor
of B and under the agreement be-
tween b and G, has no priority over
the creditors of G, he has cause
of action against & under his agree
ment with to account for G"s debts
and may recover of C's assignee (P)
any assets which said assignee has
received by reason of said agreement
between G and b, or
| CD That A may recover his debt
of p as guarantor of G, and = may
absolve himself if he has sufficient
assets for that purpose or reduce the
amount of his liability as guarantor
by paying A whatever is due him I'M
der the assignment of G.
CD p, the assignee having cove
nanted that G would faithfully per-
form his contract with b and faith
fully pay the price of the goods sold
to him under said contract" is an alb
solute guarantor of payment as dis
tinguished from a guarantor of col
lection.
| (4) 1t is immaterial that the com
plant did not distinctly allege that
the contract between b and G was for
the benefit of the plaintiff (A) or
| that the plaintiff claimed that C held
the good in trust and makes no claim
against him individually. The com
plant prays for an accounting be-
tween G and for the assets received
under the contract and assignment
and for Judgment against p as guar
antor; and a good cause of action hav-
ing been alleged the judgment of non
suit is set aside
State vs.. Goulden. appellant. From
buckingham. No error.
In an indictment for bigamy when
| the State has proved both marriage
and that the first wife or husband woe