The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-05-03
Review of Cases Decided
Yesterday.
TO TRY FISHER CASE
Court Holds That Demurrer For Mis-
joinder of Actions Was Properly
OverruIed. New Jersey Allowed
to File Claim Against Gold
Hill Copper Company.

down yesterday were IN cases init
went off upon simple principles of law
but some of them were of unique in
terest in one way or the other.
Foremost perhaps of these was the
case of Isabella Fisher, administra-
trix. ct al. VS.. the Southern Loan and
Trust Company, of Greensboro ct al,
in which in a Voluminous complaint
there are made wholesale charges OF
fraud practiced against the testator of
the plaintiff during his residence in
Greensboro, by h. p. Wharton and the
Southern Loan and Trust Company
and counsel for the decedent Fisher.
Among other things the complaint
alleges that b. j. Fisher was an
Englishman of large means and
man of conVivial habits and be-
came an easy victim to e. p. Whar-
ton who for q term of years, the
plaintiff alleges, procured b. j. Fish
er to make certain investments and
to place certain deeds of trust upon
his property and to borrow money
from the said Southern Loan and Trust
Company Chen the Wharton Worth
Real Estate Company, all for the
purpose of getting him in the power
of the defendant; that b. j. Fisher
of said Loan and Trust Company at
the price of sixty thousand dollars
on the representation that it was
worth seventy-fiVe thousand, when 1t
was i'm reality worth not more than
30,000, and to give deed of trust
on his property for the purchase price
at a rate of 4 IL per cent interest,
he being assured that the building
would return him a net income equal
th., Of nj
that Fishers attorney had been paid
a fee to pass a contract in this trans
action; that he was induced to part
with his hotel property at much less
than it's value and. to give an eX-
elusive power and agency to sell all
his property to Southern Loan and
Trust Company ana many other ale
cations OF like tenor.
The plaintiff seeks by her action to
Vitiate certain conVeyanceS of prop
erty made by Southern Loan and Trust
Company for fraud and to follow the
property.
In the court below defendant de-
INJURED for misjoinder of actions the
demurrer was overruled and the de-
PENDANT appealed
Held by the Supreme Court: That
the complaint was a continuing story
and that where several causes of ac-
ton are joined, either one or which
would support an action demurrer
for misjoinder could not be sustained;
hence the court below was sustained
and the case will go back for hearing
and investigation on. its merits.
Hester vs.. Traction Company. from
Durham, no error
Plaintiff sues the defendant street
car company for damages to his prop
erty by reason of the fact that the
cars of the defendant in going around
q curve on which the sidewalk in
front of said property abuts proJeC-
over said sidewalk for q space of two
or three inches. The property of the
plaintiff is situated at the acute angle
Of the streets of Main and Chapel Hill
in the city of Durham and the curve
in question was put in by the COM
pany with the permission of the city
in order to avoid changing the fend-
erS and seats at that point and re-
versing the cars and transferring pas
sengcrs. In making the curve The
track is some inches from the side
walk but the cars in passing at one
point extend slightly over the side
walk which is from ten to eight feet
wide.
Held. That the sidewalk is the
property of the city and not of the
plaintiff and that hence there can
be no recovery for damages TO prop
erty by use of the same when such
use is permitted by the owner, the
court intimatirg that ii personal in
jury should occur by reason of the
cars SO abutting on the side walk in
their passage around the curve, suit
would lie either against the traction
company or the city of Durham.
Hoishouscr vs.. Newman and Hol-
diOuScr VS.. New Jersey, from Rowan,
no error:
This was the case involving the re-
ownership Of the Gold Hill Copper
Company, q New Jersey corporation
doing business in North Carolina. The
State Of New Jersey filed a claim for
$4,000 franchise or license tax for
years 19O1-1903, the New Jersey
statute on which such claim was based
providing that "such tax. when de-
termined, shall be a debt due from
such company to the State, for which
an action at law may be maintained
after the same shall have been in
arrears for the period of one month,
such tax shall also be q preferred
debt in case of insolvency" The re-
ceiver refused to allow the claim upon
the ground that las a matter of law
the claim Of said State for $4,000,
and interest is not proVabie in
this jurisdiction" Judge Cooke al
lowed the State to prove for $4,000
| ($3,O00 barred BY statute or Hnllta-
tions) and adjudged that the claim
had no priority over others proved
against the corporation. Newman and
Phillips, cerditors, excepted and APP
pcaled on the ground that the claim
was not provable it being a claim OF
foreign creditor or nonresident
against a foreign or nonresident COR
poration and the State Of New Jersey
excepted and appealed on the ground
that Il was entitled to q priority, its
claim being by the terms of the
statute q preferred debt;
Held, That section 1914 of the Code
with reference to foreign corporations
applies only TO an ordinary action
| for the recovery of debt in which
the cause Of action is the default of
the debtor and the subject of the ac-
ton is the claim or debt for which
he sues. but in cases of insolvency a
receiver is a trustee for all creditors
who may impartially prove their
claims;
Second: That the New Jersey stat