The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-10-30

indicate what amount of the compro-
mise sum, less advertising ALREADY luf-
niShed, would be taken IN advertising
and the amount of cash when would
be REQUIRED to settle the compromise
debt and plaintiff failed TO designate
the amounts and after the compromise
made no demand for settlement tlefe-
under, but sued to recover the entlfe
debt, contending that as the amount
agreed on under the compromise was
not paid by the intestate, the plalntlfl
is not bound thereby.
Held that the compromise agree
ment is valid and enforcible ana as
plaintiff did not comply with defend
ants request to designate the amounts
in cash and III advertising due under
the agreement he cannot take adVan-
tage of his own wrong by repudidtlng
the contract.
Fisher " Traders Mutual Life Insur-
ance Co, appellant. No error.
If the summons in an action against
q corporation designates it by it's prop
er name, it is unnecessary to show its
corporate character. Stanly " Rail-
road, 80 n. G.. 321 and other cases.
AS it is one of the offices of the
complaint to allege facts showing the
capacity of the defendant to sue and
be sued, objection to the want of such
capacity should be taken by demurrer
TO the complaint, or if the defect does
not appear therein, then by answer.
Failure to serve summons on the
Insurance Commissioner, in an action
against a nonresident insurance COM
pany does not exempt service on the
Secretary of the Corpora ton Com
mission under the Act of 1901, chapter
5.
Chapter of the Act of 1901 pro-
viding for service of process on nom
resident corporations through the
Corporation Commission is cumulative
TO Chapter "a, Section 62 of the Act
of 1899, and being a remedial statute
should be construed literally. The
constitutionality of the statute is sus-
tanned and it is held that its operation
should not be restricted to corporations
having property in this State, as sec
tons and 3 thereof are broad enough
to include all corporations doing bust
ness here.
An appellate court will not presume
error in the trial court, and it is there
fore incumbent on the appellant to
have the record state the facts on
which the alleged erroneous ruling
was based.
Where foreign insurance company
has been doing business in this State,
the operation of chapter ga, section
81 OF the Act of 1899, will not cease
until its debts due citizens Of this
State have been paid.
Morriset, appellant, V. Stevens. From
Camden. Affirmed.
Devise to G.. NJ. during his natural
life and after his death to his heirs in
fee simple forever; but should G.. M.
die without heirs of his body, then
give and devise said property to b. $.
i'm fee" @. NJ. conveyed the land by
deed and after his death his children
sued to recover it, claiming that G.. NJ.
took only a life estate under the viii.
Held that The deed of G. NJ. convey
&c an indefeasible title and as he died
leaving ''heirs of his body" the ute
rior devise by way of remainder is not
in issue.
State V. Morgan ct al, appellants. From
Union. New trial.
On trial of an indictment under Sec
ton 985 co of The Code for "wilfully,
wantonly and felOniously" burning q
barn, it was error TO charge the jury
that "While it is permissible to show
motive as a circumstance to be con-
Sidered upon the question of guilt, it is
not necessary that the State should
show a motive. All the State has to
do is TO satisfy the jury beyond a
reasonable doubt that the defendant
did the acts charged" State V. Whiten-
er. SO n. c. $50.
Beall V. ID. & c. Railroad CO.. appel
liant Modified and affirmed.
The purchaser of land on which q
railroad company has previously con-
structed its track, without condemna-
ton proceedings, is not precluded, by
reason of his purchase subsequent to
such entry, from maintaining an &C
ton against the company for pay
ment of the easement Livermon V.
Railroad, 100 n. c. So.
The judgment in an action against
railroad company awarding plaintiff
damages for the construction of de-
PENDANTS road on his land, should
kstate definitely the land and the guam
tity thereof to which defendant be-
comes entitled by payment of the dam
ages.
Joyner V. Futrell, appellant. From
Northampton. No error.
! The statute of limitations does not
, run against one until his right of ac-
I ton accrueS.
An executor or administrator, au-
thorized by order of court to sell land
OF the deceased to make assets, has
no power to convey title to the pur-
; chaser until the sale has been report
ed and confirmed by the court. A
formal direction of the court to make
title is not always necessary, but con-
firmation of the sale is indispensable
Although the grantee of the pur-
chaser at an unconfirmed sale by an
executor has no title as against one
claiming under the will of the tesla
tor, he may apply for stay of sugh
claimants writ of possession until the
matter in reference to the executors
sale has been determined
Parker V. Brown, appellant. From
HEREFORD. Affirmed.
The statute does not require that
the description of property, allotted
as the years support of a widow, shall
be more than reasonably certain. Kiff
V. Kiff, 95 N. c. II, explained.
1t is immaterial by what form of
action widow seeks to recover the
allotment of her years support which
has been made in the crops cultivated
by her husband, us the court will
grant any remedy which her COM
plant shows she is entitled to.
The rule in Thigpen V. Leigh, % N.
c. AZ that a contract to make and
harvest Il crop is entire and that if the
lessee abandons the same without le-
gal excuse he thereby forfeits his
share, does not apply where the lessee
was prevented by sickness or death
from complying fully with the con-