The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-04-24
Supreme Court Digests.


an. No error.
An executors account filed, either in
response to a citation or voluntarily.
and audited by the clerk of the court is
deemed rrima facie evidence Of correct
ness. Code. sec. 1892
Such auditing is an ex parte proceed
ing and does not work an estoppel upon
the parties. Allen VS.. Register. 107 N. c.,
2S2
q. v. CLEGG vs. So RAILWAY CO..
appellant. From Gulford Affirmed.
Defendant received a car load of ba-
ra 9as consigned to bank "to order. no
THY q. V. Clegg' (plaintiff). The plain
TIT was notified by the bank and several
times demanded delivery of the goods
TO MN, but a dispute arose about thu
amount OF freight, the fruit was not de.
llvored and was greatly injured by cold
Weather before the plaintiff got it. De-
PENDANT, after deducting the ~excess
charges. demanded $l4S, and plaintiff Of
Tered SlO6, which was afterwards found
to be- the amount due. Defendants agent
told plaintiff he would have to get an
order from the bank ~
Held. the defendant, wing at the
times of the several d lands of the
plaintiff. assigned no other reason for re-
fusing to deliver the goods than the re-
fusal of plaintiff to pay the excessive
freight charges. can not be- allowed to
defeat the plaintiffs right to recover the
amount OF his loss on the ground thai
he did not present the bill of lading or
an order from the bank.
STATE VS.. COOPER, appellant From
Washington. Reversed.
1t was found by the special verdict ].
among other things, that the town Of
Plymouth passed an ordinance imposing
tax on llverymen, which included those
making contracts for hire in town or
carrying any person with a vehicle out OF
town for hire Defendant lived in the
village OF Roper and was duly licensed
llveryman, and, in obedience to a letter
from travelling salesman, came to Ply
mouth and conveyed him to Roper and
other points; Held not guilty There
is no allegation that he was carrying on
the livery business III Plymouth. The
court say: 1T seems thare is no harm
In taking people into the town OF Ply
mouth in a vehicle provided you put
them out and leave them there"
BROWN VS.. HAMILTON. appellant From
Randolph. Error.
will speaks as of the data of the te-.
tatOr's death in the absence of a con-
trary intent clearly shown by the will
Itself. Code sec. 21f1. Hence n devise
of all that tract south of line dasig.
mated by description given, carries with
it adjoining land south of said line bought
by the testator subsequent to the date
Of the deed.
STATE vs. LIES, appellant. From
Union. Affirmed.
The paternity of a child born fv..
months after marriage is not conclusiveIy
to be in the husband but is a matter of
proof. Proceedings in bastardy are not
criminal but civil in their nature. IN
tended solely to protect the public from
the cost of maintaining thu child. the
criminal proceeding for punishment be-
ing by Indictment for fornication and
adultery. state vs. osWait. ils N. j.
1905 and cases based on it,are overruled,
and the court returns to the former rul-
ngs that bastardy Is a civil proceeding.
IN RE BRIGGS, appellant From Will
sen. Affirmed.
Section 1915 OF The Code provides that
mo person shall be excused on any pros
ocution from testifying touching any I'M
lawful gaming done by himself or 9th
ers: but no discovery made by the wiz;
ness upon such examination shall -
used against him in any penal or Grim
inal prosecution, and he shall be alto
gether pardoned of the offense so done
or participated in by him. Held, that
this act is constitutional and furnishes
fun protection as to such offense previ-
ously participated in by the witness, and
h nee he can not refuse to testify as to
reply will tend to criminate him. II such
witness refuses to testify when required
by the court he may be imprisoned for
contempt.
GUANO CO. VS. MARKS, appellant. From
Stanly. New trial.
Action upon notes executed by defend
ant to plaintiff. Defendant admitted ox>
ecution and hence burden was upon him
to prove payment. For this rutpo;e he
offered letters of plaintiff Acknowledging
receipts of checks enclosed, and Plaintiff
objected. The court then said that IL
would psrmit defendant to tender the
receipts and see if he could make them
competent by showing what debts the re-
mittances were applied to by agrc ment
of the PARTIES, and tod the jury . they
believed the evidence they should find
for the plaintiff allowing full amount d.
manded; Held, error. The receipts fur
nishcd some evidence of payment and
were competent for the jury % say
whether the amount had been applied 10
the payment of the notes.
BARNES VS.. COMMISSIONERS. sfIel-
lants. From Wilson Error.
The court, by mandamus, can compel
county commissioners to act in the mat
ter of granting license TO sell liquor, but
cannot control their discretion. Il was
therefore error to render judgment com.