The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-01-22
Supreme Court Digests.
(Reported by JOS. l.. Seawel.)

(Reported by JOS. L. Seawell.)
Turner. appellant VS.. Mckee. From
Orange. Reversed.
An action begun before a justice
of the peace to recover the penalty
prescribed by Section 511 of the Code
for failure of a county commissioner
ito perform any duty required of him
|* as member Of the board"
and alleging a violation of Section I54
by failing to require an itemized ac-
count fully verified by the oath of j.
L. before he audited and approved
754," is not demurrable for failure
to show on what accounts the defend
ant is Liable for the penalty The
common sense rule provided by Sec
ton $40 in reference to pleadlngs III
justices courts applies.
Monk VS.. City of Wilmington, APP
pellant. New trial.
To perfect title by adverse possess
sion for twenty years, the possession
must not only be open, notorious and
exclusive, but continuous: any break
in the continuity of the disseisor' 8
possession restores possession by the
true owner and the statute takes a
fresh start Malloy VS.. Bruden. S6 \.
C. PSI; HoldfaSt VS.. Shepherd, % y.
C. SOL.
The burden is on one claiming title
under adverse possession for twenty
years to show that his possession was
continuous.
Adverse possession will not be pre-
sumed. Rufin VS.. OVERLY. IS n. c.,
369 is contrary to Section 146 of the
Code
Trotter VS.. Angel ct al, appellants.
From Macon. No error.
In an action on a bond to secure
the purchase price of a livery business,
one of the obligorS GAINED release by
reason of compliance with promise
of the obligee that he would not be
held liable if he would sell his interest
in the business to his co-oDngOr, out
testified that he had no talk with the
obligee in reference to the release I'M
til after he 1.-THE obligor) had sold his
interest to his co-obliSor. Held proper
to refuse his testimony in reference
to such promise from the obligee. And
where, in such case, the cOnsidera-
ton moving the co-obligor to sell his
| interest was eliminated at his request,
error, if any in refusing to permit
| him to testify that he sold his interest
| to his co-obligor because he was to
| be released from liability on the bond,
was harmless.
State VS.. Huff appellant. From
Wake. New trial.
| On trial of an indictment for assault
with intent to commit rape de-
PENDANT alleged rrosecutrix's consent;
| held error to refuse evidence of q
{! witness who was 65 feet away that he
| called proSecutri kin a loud voice to
| attract her attention. and also evidence
as to a conversation between witness
and his wife in reference to what they
saw and heard. Such evidence was
4
| cutrix and to corroborate defendant S
| testimony as to her consent.
Walker appellant, VS.. Southern Rail
| way Co. From Alamance. No error.
Section Chapter $50 Acts 1903,
which provides that any railroad COM
pany failing to transport goods receiV-
! ed for shipment within this State for
| a longer period than four days. shall
| pay q penalty to. the party aggrleVed,
| is not construed to mean that the COM
pany has only four days within which
| to deliver the goods at the termlna-
| point. but it is heid that the delay
provided against relates only TO the
| time or beginning to ship.
| The rule that in non-Suit the plain
| tiff is entitled to every fact which the
| evidence tends to prove and to every
| legitimate Inference from the facts as
prove, does not imply mat Dldlntlil
| may recover upon mere conjecture
| Therefore where, in an action to re-
cover the penalty under Chapter $50
Of the Acts of 1903 for delay in trans
porting freight, plaintiff claimed that
| the delay provided againSt related &c
| the time within which the sshipmen!
/ was completed, and there was no eVi-
dence as 10 when it left the receiving
| point or arrived at the point of de-
| livery. motion for judgment of non
| suit was properly allowed and it will
not b. presumed that the delay pSo-
vided against occurred in beginning
| the shipment.
Section of Chapter $40 Acts 1909
| does not contravene the commerce
clause of the Federal Constitution.
/ Holland VS.. S. A. l.. Railway. ap-
| pel.ant. From Moore. New trial.
In an action to recover damages ~
a railway company for alleged ncsli-
| gence resulting in death of plaintiff :
interstate while serving as flagman. the
1 evidence was that immediately after
| the iutestate's train took siding &c
/ await the passing of other .traiuS. IN
| testatc locked the switch. bat in Nlo'
| lation of the company'S rule, which
! required him to guard the switch