ACCIDENT INSURANCE. See "Insurance."
In an action for an accounting where it is alleged that a certain
item of costs in another action was a proper charge against the
defendant, and was first allowed by the referee and afterwards
omitted from his account reported in obedience to an order
requiring a new account to be taken and stated, to which
omission plaintiff excepted and thereafter a final judgment was
rendered which did not in terms include this allowance, but
provided on the contrary that plaintiff should recover a certain
sum and the costs of action, which necessarily excluded from
the judgment the recovery of said certain item of costs, held,
that the court erred at a subsequent term in ordering the case
reinstated on the docket for further proceedings where there
was no exception to the judgment and no appeal taken there-
from. Bunker v. Bunker, 18.
Where in an action for an accounting by the terms of the judg
ment (which was final and to which there was no exception)
the account was closed to the day of its rendition, no other
or further accounting could be ordered in respect to matters not
included in that suit, but such relief must be sought in a new
and independent action. Bunker v. Bunker, 18.
Where the plaintiff asked for an accounting, averring that the de-
fendant was indebted to him and the defendant submitted to
an account, averring that the plaintiff owed him a balance, and
an account was taken and report made and exceptions filed by
plaintiff, the court committed no error in denying a motion for
nonsuit. Boyle v. Stallings, 524.
In cases purely equitable in their nature, if an account has been
taken and report made, the plaintiff will not be allowed to
suffer judgment of nonsuit. Boyle v. Stallings, 524.
ACCRUAL OF CAUSE OF ACTION.
Where a cause of action for damages to land accrued in the life-
time of the testator or intestate, or in other words, the injury
was committed during that time, it survives to his executor or
administrator; if it was committed after his death, the right
of action would belong to the heir or devisee. Mast v. Sapp, 533.
Where the wall of a city reservoir was undermined and fell, by
reason of its faulty construction, on the lot of defendant's
ACCRUAL OF CAUSE OF ACTION—Continued.
intestate and struck her house, the first injury was sustained
and the wrong was complete just as soon as the wall fell and
struck her house, and her cause of action immediately arose
for all ensuing, damage of which the injurious act was the
efficient cause. Mast v. Sapp, 533.
If the injury developed in the lifetime of defendant's intestate,
who was killed in the house and the damage followed in an
unbroken sequence as the direct and proximate result of it, the
defendant administrator is entitled to recover the fund paid by
the city for the property destroyed belonging to his intestate.
Mast v. Sapp, 533.
In a contest between the heir and the personal representative to
determine the rightful claimant to a fund paid by the city for
destroying the intestate's house by its reservoir falling and
crushing it, the question is not whether the intestate survived
the destruction of her property, but whether the injury was
committed before or after her death. Mast v. Sapp, 533.
If the destruction of the house and the death of the intestate
occurred at one and the same instant of time, the heir would
not be entitled to the fund in dispute. Mast v. Sapp, 533.
ACTS. See "Code, The;" "Revisal;" "Legislature."
1866, ch. 40.
1879, ch. 73.
Marriage of Slaves. Bettis v. Avery, 186.
Marriage of Slaves. Nelson v. Hunter, 598.
Children of Colored Parents. Nelson v. Hunter, 599.
Children of Colored Parents. Bettis v. Avery, 187.
Marriage Licenses. Furr v. Johnson, 159.
Processioning. Hill v. Dalton, 10.
Processioning. Stanaland v. Rabon, 202.
Permanent Damages. Cherry v. Canal Co, 426.
1899, (Pr.) ch. 82. Charter of New Bern. Fisher v. New Bern,
1899, ch. 164, sec. 2 (15). Industrial Sidings. Corp. Com. v.
R. R., 239.
1899, ch. 189. Jackson Dispensary. Crocker v. Moore, 431.
1899, ch. 78. Possession Against Married Women. Norcum v.
1901, ch. 72, sec. 4. School Tax Election. Hyatt v. DeHart, 271.
1901, ch. 617. Building on Wife's Land. Ball v. Paquin, 98.
1903, (Pr.) ch. 41. New Bern Light Commission. Fisher v.
Bern, 509.
1903, ch. 233. Petition for Election. Pace v. Raleigh, 66.
1903, ch. 435, sec. 24. School Tax Election. Hyatt v. DeHart, 271.
1903, ch. 444. Refusing to receive loaded cars. Corp. Com. v.
Northampton Road Law. Crocker v. Moore, 430.
Refusing to Receive Loaded Cars. Corp. Com. v.
Kernersville School District.
1905, ch. 590, sec. 74. Tax Lists. Fortune v. Com., 326.
1905, ch. 703. Auditor of Buncombe Co. Fortune v. Com., 326.
1905, ch. 773. Hertford County Act. Mitchell v. Garrett, 397.
ADMINISTRATION. See "Executors and Administrators."
ADVERSE POSSESSION. See "Possession;" "Deeds;" "Ejectment."
The repeal of the disability of coverture by the Act of 1899 (Rev.,
sec. 363,) was not retroactive-no adverse possession, prior to
February 13, 1899, being counted against a married woman.
Norcum v. Savage, 472.
Where there was execution against a life tenant in 1869 and sale
thereunder and a subsequent conveyance back by the pur-
chaser to him, the seven years' statute of adverse possession
would not begin to run against the remaindermen, till his
death. Norcum v. Savage, 472.
To raise a presumption of a grant it is not necessary that the
possession adverse to the State should be continuous or unceas-
ing. It is sufficient if it is any possession adverse to the State
and shown to exist the length of time prescribed by the statute
of limitation. Bullard v. Hollingsworth, 634.
A prayer to instruct the jury that from thirty years' adverse pos-
session against the State all that is necessary to show complete
title out of the State is presumed, was correctly modified by
adding after the word "possession" the following words: "Such
possession having been ascertained and identified under known
and visible lines or boundaries." Rev., sec. 380. Bullard v.
Hollingsworth, 634.
In an action to recover damages for an alleged trespass, where
plaintiff's title was in issue, a request to instruct the jury
"that if they find from the evidence that plaintiff has shown
title out of the State under either the thirty-year statute or the
twenty-one year statute, then the burden is upon the defendants
to establish their contentions that they were in continuous,
adverse possession by showing that the deeds upon which they
rely actually cover the land," was properly refused. Bullard
v. Hollingsworth, 634.
AGENCY. See "Principal and Agent."
AMENDMENTS. See "Pleadings."
Where an objection for defect of parties was made below and over-
ruled, this court will not exercise its discretionary power of
amendment to destroy an exception duly taken below. West
v. Railroad, 620.
ANNUAL ACCOUNT. See "Evidence."
An appeal from an order of re-reference of a case to the referee to
find a fact which the court deemed material, is premature and
will be dismissed. Chemical Co. v. Lackey, 32.
Plaintiff may submit to an involuntary nonsuit, which he is driven
or compelled to take, reserving leave to move afterwards to set
the same aside, with a view not to abandon the prosecution of
the suit, but to further prosecute it by appeal, in order to test
the correctness of a ruling of the court which may otherwise be
fatal to his case. Hayes v. Railroad, 131.
While in injunction cases, the findings of fact by the judge below
are not conclusive on appeal, still there is a presumption that
the judgment and proceedings below are correct and the burden
is upon the appellant to assign and show error. Hyatt v.
DeHart, 270.
Where there was evidence to sustain the findings of facts as to the
rescission and abandonment of a contract, the findings will
not be reviewed by this court. May v. Getty, 310.
An intimation of an opinion by the judge adverse to the plaintiff
upon some proposition of law, which does not "take the case
from the jury," and which leaves open essential matters of
fact still to be determined by them, will not justify the plain-
tiff in suffering a nonsuit and appealing. Such nonsuits are
premature and the appeals will be dismissed. Midgett v.
Manufacturing Co., 361.
Where a case was tried below in the fall and docketed in this court
three days before the district was called at the opening of the
spring term, a motion on the first day of the spring term to
dismiss the appeal because not docketed seven days before the
call of the district as required by rule 5, will be denied. Crad-
dock v. Barnes, 427.
The ruling, that though an appeal is not docketed seven days before
the call of the district to which it belongs, as required by rule
5, it will not be dismissed (when docketed at the next term here
after the trial below) if it is docketed before the motion is
APPEAL AND ERROR-Continued.
made to dismiss, applies to the first as well as the other dis-
tricts, as the appellee can file his motion to dismiss with the
clerk whether the court is in session or not. Craddock v.
Barnes, 427.
In order to constitute reversible error, it must appear that the
appellant's rights have in some way been prejudiced by the
action of the court below. Hosiery Co. v. Cotton Mills, 452.
Where the evidence, admitted over appellant's objection and after-
wards withdrawn from the jury, was so compact and brief and
the language of the judge so clear in withdrawing it, that
this court is satisfied the jury could not have been misled or
unduly influenced against appellant by it, a new trial will not
be ordered. Parrott v. Railroad, 546.
The tendering of witnesses by the defendant for the purpose of hav-
ing their fees taxed as costs does not amount to the introduc-
tion of evidence within the meaning of the Superior Court, rule
3, and does not take from the defendant the right to open and
conclude the argument. Brown v. Railroad, 154.
Where evidence was introduced for the consideration of the court
alone and this was fully explained to the jury, the fact that
counsel commented upon it, cannot be made the ground for ex-
ception now, where no objection was made at the time. Sprin-
kle v. Wellborn, 163.
Where an action at law will lie by one partner against another, if
the facts bring the claim within the provisions of our statutes
on arrest and bail, the plaintiff is entitled to this ancillary
remedy. Ledford v. Emerson, 288.
When the plaintiff sues to recover his share arising from a sale of
certain options on land, which the plaintiff took in the name
of the defendant under an agreement that the defendant was to
advance the incidental expenses, sell the options and divide the
profits equally, it was error to discharge an order of arrest of
the defendant allowed upon proof of fraud on his part in con-
nection with the sale of the options. Ledford v. Emerson, 288.
ASSUMPTION OF RISK. See "Negligence;" "Contributory Negli-
gence."
Where there was evidence tending to prove that one of the standards
used to hold the logs in place was gone, an instruction that
"when the plaintiff went on the log car for the purpose of rid-
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