The news & observer., 1905-12-06
SUPRE NE COURT
| OPINIONS FILED
Diqests of Cases Decided
Yesterday.
CEEkiMC AN AIIRI
SEEKING AN ALIBI
II Crenshaw VS.. Railway TO be Argued
Today, Defense Claims That P ain
tif's Str Witness Was Not on
Scene of Accident. Full Term
Nearly Concluded.

In the Supreme Court today will be
argued an important damage suit
against the Street Railway Company
of Asheviiic, brought by one Crenshaw
who by reason CT an accident upon the
line of the defendant cost both of his
feet.
In the lower court the jury founf
with tho plaintiff on the question OF
the Defendants negligence and award
cd him damages in the sum of thjr-
teen thousand dollars.
The chief interest in the appeal lies
in the fact that an affidavit has been
made by the defendant that the most
important of the plaintiffs witnesses
was actually nowhere near the scene
Of the accioent the circumstances of
which he testified to. These affidavits
are from several parties and have
been served upon the plaintiff for the
purpose Of grounding an appeal for
newly discovered evidence. There Will
Of course, probably be counter affi-
davits on the part of the plaintiff.
only five opinions were filed yes
terday by the court.none of them deal
ing with cases of any particular pub
lie interest Two of the opinions filed
were elaborate discussions of the ca
mons of descent as complicated by the
reconstruction statutes dealing with
the valuation of slave marriages and
the law applicable to executed convey
anccs by persons of weak intellect and
constructive fraud arising from such
transactions.
Digests of the opinions follow:
T.. 4. Furr. appellant, vs.. w. Reece
johnson. From CabarruS. Affirmed.
Action against register of deeds to-
recover statutory penalty for issuing,
without plaintiffs consent, license
for the marriage of his daughter
under Is years of age and residing
within him.
Held: / Where there is a conflict
of evidence as to whether or not
there has been a reasonable IN
quiry," this question is for the deter
mination of the jury; where the facts
arc argued 1t is matter of law for the
court. e'Dtttss,
=. A charge to the jury that if
they found that the prospective groom
told the defendant that the girl was
49, for he had seen her name in the
Bible and she had told him she was
IS; that # they, found that the de-
fendant knew the witness to the
license well and that he was a man
Of good character and that the latter
stated (not under ,oath}- that he knew
the girl was 49,, and that defendant
believed these statements and acted
upon them, believing them to be true,
they should answer the issue as to
easonable inquiry IN favor of the
defendant was correct.
3. Act of 1887. Revised Statutes,
Section 2067. does not make it man
datory upon the register to examine
witnesses for license under oath, but
merely gives him the discretion to do
so. the degree of care required being
the rule that he shall act upon in
quiry made of or information furnish
cd by some person known to the.
register to be reliable or, if unknown,
identified and approved by some per-
son known to such register to be re-
liable, and his using or failing to use
such discretionary power is mere
" a circumstance to be considered
by the jury.
4. In the absence of legislative
provision the mere fact that a mega
tive is involved or some fact necu-
iiarly within the knowledge of the
adverse party is not sufficient to shift
t'Ae burden of proof from the plain
tiff to the defendant; however much
the failure to testify, may raise
presumption, it cannot affect the duty
of establishing the issue.
w. ID. Hamrick vs.. Western Union
Telegraph Company, appellant,
from Rutherford, New Trial.
PLAINTIFFS wife being very i'll, pro-
cured one Huntley, to send the fol-
lowing telegram from Forest City to
the plaintiff at Old Fort: bill, come
home at once, your wife is bad off,
The telegram was delayed at Old
Fort twenty-eight hours before de-
livery to the plaintiff, who was in
formed of the delay and at once
hastened to his wife who, after being
sick twelve weeks, recovered. Plain