The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-02-21
Supreme Court Digests.
(Reported by Jos. L. seawell.)

l
| finally resulted in death, does not pre-
ciude an action to recover for the negli,
gence which caused his death.
In such case it was error to instruct
the jury that damages could not be
recovered even though the accident ag-
gravated the disease and hasteLed intes-
tate's death Lewis V. Raleigh, n N. c.
229; Gray " Little, 126 n. C. 1856; Benton
V. Railroad, 122 N c. 1907.
| SUMENER ct at, appellants V. EARLY
ct al. From Hartford. Reversed.
Partition will not be decreed until the
equitable rights of the parties have been
de ermined and adjudged.
There is no defect of jurisdiction in the
Superior Court where plaintiffs, who were
tenants in common, demanded specific
Performance of a contract whereby defen-
dents, who were owners OF other lands,
agreed with plaintiffs that all of the land
owned by plaintiffs and defendants would
be partitioned and that they would Sc
let three dsnterested persons to make
partition, as il plaintiffs and defendants
We're tenants in common The plaintiffs
remedy in such case, is by specific per-
Torrance and not by special proceeding
before the clerk. SO N. c.. ass; 90 N. c.
~; 100 n. c. GA
STATE AND HEPTINSTALL, appellant V.
RUTTS. From Halifax. Appeal Dis
missed.
Heptinstall appealed to the Superior
Court from a judgment of justice OF the
peace taxing him as prosecutor with the
c. is, and adjudging the prosecution FRI
VIC Gus and malicious. In the Superior
Court the case was remanded TO the JUS
tice with direction to serve notice on
appellant and another to show cause why
enc of them should not be marked as
T.. osecutor and taxed with costs and that
the justice find the facts and reform
his Judgment accordingly. From this or
der Heptinstall appealed to the Supreme
Court.
Held premature.
Where a prosecution is adjudged fri
VICIOUS and malicious the costs. must be
taxed against the prosecutor or complain
ant Code Sec. 1856.
GREENSBORO ct al V. ASHEVILLE SAN
ATORIUM. From Buncombe.
Section 1855 of The Code originally
provided that the mortgage of corpora
ton would not exempt It's property from
c@t cUtion for labor performed and ma
tc1ial furnished; but since the enactment
of Chapter 1874 of the Public Laws of
1897, amending said section by elimna-
ting the words nor for material furn-
ishea," it is held that lien for labor
poriCrmed and material furnished takes
precedence over a subsequent mortgage
OF the corporation only to the extent of
'lator performed" and not for mater
ial furnished
Where, in such case, the trial judge
separated the items in the bill of parti-
cu!ars for work done from those for
ma ierials furnished" no question is pre-
scented concerning the rights of laborers
who use materials as an essential part of
tEei., work.
CHEEK, appellant V. OAK GROVE LUM-
FER CO., From Halifax. Affirmed
Exception by plaintiff to refusal to adj
nit IA portion OF paragraph of the
answer is deemed to have been waived
by the PLAINTIFFS reading the entire para
graph to the jury.
In an action for damages sustained Dy
destruction of plaintiffs property by fire
alleged to have originated from sparks
omitted from defendants engine, it was
proper to exclude evidence of defendants
pre- sident that one year after the fire the
same engine set fire to timber at an
other place.
Where, in such case, the plaintiff intro
duced evidence that defendants presi-
dent had said that defendants engine set
plaintiffs timber atire. but that fire had
been there before and no eye witness
testified to the fact, it was not error to
instruct tue jury that Notwithstanding
such statement defendant was not liable
urlsss the jury found that defendants
engine did actually set fire to plaintiffs
property and that the jury were at liberty
to consider all the evidence and find
whether the fire originated from defend
ants engine
The admission of defendants president
that its engine set fire to Plaintiffs tim
Der did not estop defendant from showing
that It's president was mistaken, and such
admission does not come within the rule
which binds a party to a solemn admis-
SION made in the pleadings.
right of action does not accrue from
negligence unless the negligence il shown
TO have been the proximate cause of in
jury
FIDELITY AND DEPOSIT CO, V. JOR.
Ian AND PARKER, appellants. From
Hartford. Error.
While the court of a justice of the peace
ray so Tar recognize an equity involved
IN any action pending before it, as to
permit the equity to be pleaded as a de
tense, 1t has no jurisdiction 10 affirm
aEIVely administer an equity.
The doctrine of subrogation is distinctly
Creature of equity and the right is no.
oere ndent upon contract, but applies
Were one has paid money for. another
u.cer compulsion or necessity or for the
protection of his own interest.
Where the surety to the bond of Su-
rt'or Court Clerk has paid a judgment
entered against the surety by reason OF
Gcauit OF his principal, equity will sub