The news & observer., 1905-12-16

tracts of sale of both real and per-
Sonal property.
2. In such case, the fact that de.
PENDANTS, having acted in recognition
of the contract are not in position
to rescind the trade and plead the
fraud in bar of recovery, does not pre-
clude them from setting up the fraud
by way of counter-claim and recover
ing for the damages incurred thereby.
j. III. Moore, Appellant, VS.. First Ma
tionul Bank OF Statcsvilie: From
Alexander. No Error
Attachment for damages alleged to
have been sustained through the suing
out of attachments against property
of the plaintiff during his temporary
absence from the State by the defend
ant bank and it's cashier, George H.
Brown, Wrongfully and maliciously
and without probable cause. The
plaintiff at the time of the attachment
was heavily in debt to the bank, had
ithdraWn his account and sold a con-
siderable amount of his property and
shut down a mill which he had been
operating. In addition. he was en-
gagged in litigation with his wife, who
had flied lis pendens in the county Of
Alexander and was claiming alimOny
The ~laintiff was a friend of the de-
fendant Brown, who had permitted
him to borrow of the bank on unse-
cured notes which had been several
times renewed. Plaintiff alleged that
by reason of his knowledge of his af-
fairs Brown knew that he was solvent
and acted without probable cause il
suing out the attachment, especially
since the plaintiff had written letter
to the bank and other creditors in
which he set out his business troubles,
stated his ability to pay his debts and
suggested the appointment of trustees
to sell his property for the satisfaction
of his creditors. and since defendant
Brown had been informed by defend
ants son that his father would return
on the Monday following the day when
he came to make INJURY as to the bus
mess affairs Of the p:aintiff. The
plaintiff returned to the State on Mon
day and paved the debt for which the
attachment had been levied. AT the
conclusion of the testimony the de-
fendant moved dismissal as of non
suit. Motion was allowed and plain
tiff appealed.
Held: /. When the facts are agreed
the question of probable cause is mat
ter of law for the determination Of the
Court.
9. In an action for damages for ma
licious prosecution probable cause is
Il belief b. the attaching creditor In
the existence Of the facts essential to
the prosecution of his attachment
founded upon such circumstances as
would be sufficient TO induce such BE-
lief m Il man of ordinar| caution
prudenSe and judgment. and such facts
only NAV be considered as exist at the
time the attachment is sued out.
3. a bank officer. faced with the
facts that his debtor is involved in a
harra ssing litigation. that his business
interests are involved, that he has sofa
a considerable norton of his property
and that other property is encumbered
by mortgages and lis pendenS in an
action 70" alimOnv ard that Sald
debtor has left the State has probable
cause sufficient to justify an aifdavll
on which to base an attachment with
out regard to statements made by tne
debtor or anyone in his behalf as to
his solvency, his intent with regard
to the debt or his return to the state
Mary Brown -S W. u We9ver Power
Company. Appellant: From Bun
combe. Affirmed
Action for permanent and annual
damages to plaintiffs land resulting
from overflow of defendants dam
Defendants charter gives it the right
of condemnation. Plaintiff alleged
that her home had been made un-
healthful, her orchard destroyed her
land ruined for agricultural purposes
and its rental value destoyed. There
was much conflicting testimony as TO
the value of the land and the water
power of the French Broad River
where it .skirted the land of plalntlf
The Jury found for the plaintiff dam
ages in the sum of $3.50. which the
Court reduced to $3.50. The defend
ant appealed.
Held: /. In the exercise OF the
right of condemnation of land. the
rule is that full compensation should
be paid taking as the measure of Value
of the property condemned the price
which it would bring when offered Tor
sale by one who desires but is not COM
PEELED to sell and purchased by one
who is under no necessity OF buying
estimating in such value not merely
the condition of the property and the
use to which it is then put by the
owner. but also it's capabilities and the
uses to which it may he applied or 1or
which it is adapted
2. The assessment of damages belnS
for the Jury this court has no power
to set their verdict aside except in
cases where there is no evidence which
could properly have been submitted
to them.
5. Where suit is for permanent
damages to land. judgment for plain
tiff confers upon the defendant per-
manent easement.
rur%DrIVn WITH TIIEEvr