The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-02-28
Supreme Court Digests.

(Reported by Jos. L. Seawell)
STATE V. POWER EFT AL, appellants
From Currituck New trial.
Where in an indictment charging q
nuisance at common law, for placing OBJ
structions in a navigable waterway and
continuing and maintaining same, 1t APP
peared that the defendants thirteen years
before the Indictment, erected the obstruc-
| tions as laborers of another and that de-
PENDANTS quit the service of their employ
er the year after the distractions were
placed and had not since been employed
| by him and had no further connection
! with the distractions. it was error not
to charge the jury, as requested that de-
| PENDANTS were not guilty of maintaining
| the nuisance.
WILLIAMS V. SMITH, appellant. From
Craven. Error.
Failure to allege in complaint in an &C
ton for libel that plaintiff gave days
notice in writing specifying the article
| and the statements therein, as required by
cnapter 557, Laws 1901, may be taken ad-
vantage of by demurrer, but the plalntltf
will be allowed to amend his complaint
and make it comply with the law.
An article signed merely by the authors
| last name is not an anonymous communl-
cation and does not come within Section
8 of the Act of 1901, providing that the
act shall not apply to anonymous COM
| municatioDs.
The notice required by Chapter 557,
Laws 1901, is a condition precedent to the
commencement of an action for libel.
IDIsOSWAY V. EDWARDS. appellant.
From Craven. Error.
In an action upon a bond conditioned
upon the obligor's engaging in certain
business within 20 years. the bond con-
| tanning no statement that it is intended
to cover liquidated damages, the full
amount of the bond cannot be recovered
| in the absence of allegation in the COM
plant that the penalty is in the nature OF
| liquidated damages.
AS the primary object of allowing dam
ages in such cases is to recompense plain
| tiff for the actual loss sustained, the
courts are always inclined to construe
bond as penal in its nature. even wnen it
| is expressly stated that the amount OF
| the bond is intended as stipulated dam
ages. Lindsay v. Anesley, % N. c. 1856;
Thoroughgood v Walker AZ N. c. Is;
Burrage " Crump, AZ N. G. $50; Wheedon
Bonding Co.. 12S N. c. 50; Tayloe "
Sandiford, Wheat. IT.
| DICKENS EFT Al, V. PERKINS EFT AL,
appellants. From Halifax. New trial.
Issues of fact arise upon the pleadfngs
when material facts are alleged by one
party and denied by the other. IssuesI do
not arise upon the evidence and they
should be so farmed as to require the jury
to find facts which are merely evldential.
Therefore, where complaint alleged
parol contract by defendants ancestor and
testator to purchase land upon payment
of 5000 to him by M. j. D. and convey to
| J. D. for life remainder to the children of
said NJ. j. D.; that the money was paid
and purchase made by defendants tesla
tor, but that he violated his agreement
| by devising the remainder in said land to
Others than the children of said NJ j. D.;
and the answer denied the parol agree
ment and alleged that their testator pur-
chased in his own name without any parol
trust and that the money alleged to have
| been advanced by plaintiff was merely
charge upon the land. it was error to
submit the issue whether defendants tes-
tator bought the land under the parol
agreement that he would convey as az
| legged. upon payment to him OF the money
he had advanced in purchasing the land