Newspapers / The Charlotte Observer (Charlotte, … / May 24, 1909, edition 1 / Page 9
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1 1 .CIIAIILO TE, DAILY OBSERVER, SUNDAY, MAY, 24, 1909. sr"" ui -wiro'; f oi the Lt X"' ..-.,,res r -.f eacu l"r , than Li im this ' 1 tfr . 'has been mcii ?'J' and hort T 'nter.t. not ..l-ntf. I'Ul I" ie5? tiij?man '08. who few lit of W'ash- f' i briin attend graduating .erted in l.'.. he E -PXient stay for the tt r ,,en! A morc T' a few day. iSes lo l" tiulenis. 1 ... nrflU'TU- te a than DUO ,rii- at this fee11? Th- "Hadf trees :o'i f":. .. noted are very l"1 ...,, I :.o Rail- West J( , i.mniodate ,'r,,fiit a larg secured file' ru.ta. red TRINITY U, ir-- A it uier ...rim and , ..Miem i ment ,n, i lie barea !,... lei, t J"hn Vn M.,m-na nnieti' eiii'-nt Hall, eloses It the i 'ption to Ldnj claw Trinity i 'hron fiom rlllt ! L'MltCSt ,. , V. M ;n!. '.nj; men. r .lps. were k CKSITet. -eineni -; gir,;, ,;...,::.t.:. K;)ar t3U. GK M:n;s : .... .ifpurtment .h5 pfiinH fni.n uMls- Whf H:: 1 ' .'."MliT I IK' ail- fcrj- id.'.rrs.- 8'"- i t l ,' 1 1 " m ai mil ient a at Job i . a ,; S"Uth (.'aro- a Preft-.l' r.dr. illeRe for It I iter .us i.i ii, l:er at fcl John K hrf? rrturii ;ne where tniii' nee menl ..' .;j li.iro, .:i- v -miiK her irh.-"ii, "I tne iinl rai.ilyn i.i .n united M i n I , i and k Tiijrfi.. . Brni"i' n t e .i : I I tit ; .in. EaV.fi. 'Sam r nt. ! l,,i t et Mi ned I an eil niiii' iu e ;m huul in j-!:i DAVIDSON. Ifl.T ! T'. r.rr fr L 'Mai . .. - -The m'i enty lua! . tmn.rj, i nn n t fit the im to-mfirmw ni'irnlng, in illltt brxht ,.ni l.-ar. Du- tartlU nr.::. n 1 1 n - ruin- pirlotv s ktran.J lehi ,itum I It : imum-.l ihal the irt t dn k . w'll necessa nfi.i that i the race of a lull list .;!':.!, ti.ins t..l. The i ' s,it ist'y i- .i.-al lalile. fl for n .ms' pi Of th' .-!. wl'.rf ,ir I tk-T en.,..s of ,t : IM .r frirt. HO trrariuntca lth the,; fih. t j ,...!,. ll... I, - W an1 fr s in gener- P a fa,r s,.,i:,- pace ""5i"n and r.i' U"n (it ac- ( but a Ihrtm rr.a.io in Hllress e at Clin- f Mt Con'er. ."ume M.spinna,ry 1 fTOQtnt snith PWttfc'Tlt aHi- made HJ," ii"oi and also In M M.'on d at I'.ox- torliri 'T "net;. Slmm, tOirh tri V. ;M en in nii. v.isrt- , , 1 1 fr -re t?'1 tf ' 7Tn " V I tV L.ar fill'"' " 1 harlotte, : t t .n 1 1 here ttlCM - ' i Lie HI. l - "'ites- r.a . ' ''' rf' as bftirkr.."' ( t i-':'n Ititr n' I iZ!," t a u,riof aco H. S Mr lilenn priM IVC ui vn cnBwriniii ir tub nf Robeson rounty. Mr. D. J. Walk er and J.. B. PsHletleT. bain ctoss sec onds. - -. . Ths alumni address by H. P. Lane, nf ReidsvUle. was a gem of Its kind and ths annual address by Clarence H. Po ought to have been beard by ever citizen of the. Stats, In addi tion to being a pienaing ana grace ful speaker. Mr. Poe always goes to the heart of things and gives his hearers and readers something- wor thy of tnein attention and thought. The ball waa largely attended and crowned the' week's exercises as the Drlncloal social event. A large number of visitors from a distance attended the commencement and added to the pleasures of the oc casion. SOtrTHEJIN CO.VSERVATOKY OF MVSIU Cc-rrespondence of The Ctotrvr. Durham, May 22. The commence ment exercises of the Southern Con servatory of Music, the tenth scholas tic year finished, closed the Institu tion In a brilliant concert given by the pupils Friday night. This was the third of the series be ginning Wednesday night. It was the most successful, too, In that the chos en players and singers of the con servatory for the most part filled the programme. .The first of the nights. Wednesday, was given over to the children. Thursday night was the occasion of the annual address, which was delivered by ex-Senator H. A. Foushee, and the diplomas, certifi cates and medals were awarded. Mr. Foushee presented these and in the ceremony spoke handsomely of the institution. The conservatory has recently been visited by Dr. John A. Simpson and Mr. Mearea, of Raleigh, who are on the board of examiners. Last year when they vlBlted In professional ca pacity this place, they pronounced the work as thorough as is obtainable in any conservatory of the North. They passed upon the work of the pupils this year and their judgment Is re- nnnflthl tar thfl rllnlnnnnii anri rrtffl. Kxum:natl..ns. .aUfc :.,,t w ednes- Flve trraduates. the largest class In time j the conservatory's history, were given their diplomas. They were: Misses Felicia M. Kueffner. of Durham; Helena E. Morris, of Hendersonvllle; Minnie U. Patterson, of South Bos ton, Va. ; Fannie Rosier, of Durham, and Mr. James H. Umstead, Jr., of Durham, the first man to take a piano diploma. In the piano testimonial course Misses Bessie M. Baxter, Emma Eloise Bolton, Mabel McClalre McCotter, Pluma Owens, Alma Rlgsbee, Lottie Kiley and Olivia Thaner were given distinction. Misses McCotter and Elizabeth Lee Newbern received testi monials in voice; Miss Hattle Brln- son, the teacher s certificate in voice, and Miss Mary Wilson, of Thomai ville, took the first violin certificate ghen by the institution. Teachers' certificates In piano went to Misses J. Gertrude Bell, Mary Anne Burnett, Em Grace Cockerham, Lottie Eatelle Crltcher, Ormie Gibson Edwards, Sarah Jane Hoffman, Clyde Kearns, Lena Jane Kittrell, Cornelia D. Mc Laurin, Beulah Catherine Norment. Elizabeth Pauline Proctor, Mary Isa-tx-lle Tarkenton, Addie Ray Up church and Lydia Cynthia Wlnslow. The medals for improvement went to Miss Zalena Allen, of Miss Brln fon'B class; to Miss Thelma Cates, of Miss Morris' class, and to Miss Hlanche Steele, pupil in violin under Miss Klnne. The W. R. Murray medal for improvement in voice went to Miss Elizabeth Smith, of Golds horo; the D. W. Newsom medal In voice was won by Miss Hattle Brlnson, piano teacher; Miss Grace Beckwlth took the medal offered by Jones & Frasler to Prof. G. W. Bryant's class; the A. D. Zachary medal for ex cellency in playing went to Miss Fan nie Rosier, though the board of ex aminers awarded it to Miss Felicia M. Kueffner, who also won It last year and is debarred by the rules of the institution. Miss Carnelia. Mc Laurln was given the S. M. Snider medal for class-work excellency. The conservatory gives the world this spring a coterie of well-trained teachers and Its graduates gave re cently a series of brilliant recitals. The four young ladies, Misses Kueff ner, Morris, Patterson and Rozier. are dashing players and Mr. Umstead tiit deluxe iiiHi marked and,wl" aPeni anotner generation in the study of music. Young Miss Wilson in violin, is perhaps the best player that the institution has trained be ginning as a raw pupil. She Is an unusually attractive girl, uses a grace ful bow and plays with understand ing. Miss Klnne, the teacher, spent last summer In Germany, and came back additionally equipped for a tutorship that she has shown herself peculiarly adapted for. MTRDEHOl'S ASSAVLT. Negroes Attempt to Kill White Man Say were Hired by His Wife. N'ewbern Journal. The miscarriage of an attempt to commit murder has created a big sensation in Green county. John How ell, white, and Ben Palmer, colored, two young men made a deadly attack upon Mr. Tom Farmer, a well-known resident who lives about seven miles from Snow Hill, while he was in his room at night in the act of retiring. Mr. Farmer was severely wounded, but managed to make his escape. His as sailants have been captured and are now in Snow Hill Jail. They confess ed to the attack and assault that they were hired to kill Farmer by his wife. It is said that Farmer and his wife lived very unhappily together, were constantly at outs, which give the ftory more or less color. Positively Evil-Thinking. Anderson, S. C, Dally Mail.' "We understand now whv Charlotte "1 then lis making such a to-do over President iRf-rmn ,Taft. Charlotte wants an appropria - - .iri j tiorr of $100,009 for her poetofflce study I building." Anderson Daily Mall. 'ri- the I "For the information of our benight Jt ' 'h.ir- cd brother we will state that Federal hM on is appropriations for public buildings as w in I wen as for all other purposes are e made-by Congress and not by the resident." Charlotte- Observer. Oh, sure. But the hurrah over President Taft. who Is aulta nooular In Con- I gress, may impress the Congressmen ; w ith the idea that Charlotte Is a 1100.- torm ! town, ment i " iv" pt the! No Race Suicide ' I "d ' -x-1 Rockingham Anglo-Saxon, isT" hfr.' '"' ' r- i Col. Dan Morrison was sX f k '""- to '"umberland county last o Race suicide There. was down in week and he om- . came across a very Droliflc family. A x-r. 1 Mr. Jones, son of Mr. Reuben Jons, w ho j who once kept tha Purcell House In Wilmington, is the father or thirteen " eht on, living children. Mr. Jones has only Uii?' m tv .. " tt ,s i b'n married six years flve pair, and the last three were triplets. No won- ; er Cumberland is growing In popula. i tion. ; 1 Before Xoah. -vino- I Vnrtnli. tni.i.. nil.. .U,K ,iiginiu.ruvL orth Carolina paper proudly to tbs advertisement for rent COuntv tall tl that jttat a ntA. Ing that prohibition prevents crime. im., "'n the i v . iow. orotnsr; tjain kuicci adci "n ard" .h. i.fore " aietillallon of ardent spif. vk slow, brother; Cain killed Abel ever discovered. talking a.bout iue20te (Continued from Page Four). flowing out to the self-exiled editor, a reporter rushed into the office, and breathlessly announced. ""Hemphill is In town." There was little time for conjecture, before ordering out he reception committee, and gathering three chairs, but the explanation that the unfortunate protestor against the Myth had lost his paddle, been blown up Cooper river, through the "cut," into the Santee and ud the Congaree, did not satisfy. But what ever the calamity that brought bim within 80 miles of the horrid festival at Charlotte we were determined to do honor and reverence to the martyr to conviction. The staff of The State was beat to quarters and awaited the coming with duly sympathetic counte nances. A scout rushed la, reporting. "He cannot be found; nowhere in town." Before the young man could be re buked for superficial search, the tele phone bell tingled. "Tea, yes. what Is it?" "This is the city editor. We caught sight of the major in a passing cab; took auto and followed. Got to Union station as he stepped aboard train bound for Charlotte. Said he was going to the celebration; expected to nave a big time." It is not often a newspaper office is shocked, but it was fully thirty min utes before the even tenor waa re stored. ies. ii maae to bear witness we shall have to say that the logic of the altuation is that the Declaration of Independence of Mecklenburg has been libeled. A myth cannot be a magnet. A myth could not draw the editor-in-chief, aganst his principles, 210 miles. The only hope of the editor Is to prove that Taft. and not that which he has proclaimed a myth, was i.he North pole to which the needle of his spirit turned. Columbia State. "President Taft." remarks The Chattanooga Times, "is going to help the North Carolinians to celebrate the 134th anniversary of the adoption of the Mecklenburg Declaration of Inde pendence, claimed to have been ac complished in May the exact date be ing in question 1775. As many fero cious assaults have been made upon the historical accuracyy of the inci dent, what President Taft shall have to say about it will be a matter of editor-in-chief, against his principles, Una but all over the country. Presi dent Taft has a way of getting at the bedrock of things, especially those re quiring Judicial, as well as historical, accuracy, and he will doubtless sift all the evidence so as to put the case be fore the Jury the general public as that a verdict may be rendered with out the embarrassment of any rea sonable doubt either way. The Times, we fear, is entirely too optimistic in its forecast of the Presi dent's power and Influence in rhe premises. We freely admit the wide extent of his learning and lnfortia tion, and also his peculiar gifts In the way of lettllng things, but In the case referred to he has a Job that would give Solomon himself a case of i dodging and side-stepping. The chances are that he will please noboitv in this matter. The North Carolinians believe, as firmly as they believe in the value of peanuts, that a Declare tion of Independence was promulgated at Mecklenburg more than a year prior to the Philadelphia deliverance, and you couldn't get this belief out of them w ith a mallet and chisel.. It is part of their articles of faith, and any one who attempts to discredit the claim will be put down as a specimen of monumental Ignorance and obdura cy, as Mr. Toft himself will learn if he butts his head against that stone wall of North Carolina faith. Hut on the other hand he will be no better off if he falls In with the North Carolina Idea and adds the weight of his character and position to sustain the Mecklenburg claim. He fullmay not only assure them of his full belief in the soundness of their contention, but may produce facta, figures and historical data to place Mecklenburg In the forefront as the place where the Idea and plan of American Independence was conceived and delivered to the world. This, we say, would make him solid with the old North State and its In habitants, and bind them to him with hooks of steel that no human power: could loosen, but how about others? In South Carolina and Virginia they get their backs up whenever the Meck lenburg matter is mentioned and de clare that no such declaration wus ever conceived, executed or promul gated in North Carolina or any other part of the habitable globe, either in 1775, or at any other period of record ed history. If the President falls In with the North Carolina claim, and makes them believe that it is histor ically invulnerable, he may as well cut South Carolina and Virginia out of bis list of visiting acquaintances. They would never speak to him again. But if he tries to "split the differ ence," as we may sa and undertakes to hold with both sides, his condition will be still worse, for both will re pudiate him, and set him down as a trimmer who wants to hold with ;he hare and run with hounJs, and all the disputants will take sides against him. North Carolina believes in tne declaration, the others repudiate It. and hojw can he make himself solid with both? He can t ao it, ana our au vlce woulJ have been to plead sick ness, prior engagements or something else and stay away from the celebra tion. That way, and that way only, lay safety. Above all, he must watch out for Deacon Hemphill, or Tne Charleston News and Courier. Mont gomery Advedtiser. To-day the PresiJent will be at Charlotte. X. C helping the lar Heels celebrate the reckless disregard their forefathers had for their necks. About the time the Mecklenburgers were drafting their document of defi ance King George III had his hands full up around Lexington ana Bunker Hill, but could he have got Sir Henry Clinton to Cape Fear a little quick er doubtless most of the signers would have soon dangled from a gib bet, and been helped there by the hands of their neighbors, too, for at that time both of the Carollnas were full of Tories stuffed to the limits of their red Jackets with teal for the King. However, Sir Henry' was a little late and In the hubbub of -things the foolhardlness of the Mecklenburgers passed unnoticed. Historians long had their doubts about there ever having been any declaration of Independence at all. and It was the mistakes of one Jo on McN. Alexander who tried to write hiatorV from his memory, which most beclouded them. As it Is, they are stm dubious about the date, and It Is more than likely that in permitting President Taft and the burghers of Charlotte to carry on their celebra tion to-day history is Indulging Itself In oas of those ridiculous anachro nisms of which It Is so fond. This John McN. Alexander, who claimed to have been secretary of the Mecklenburgers meatiasr. swore In ltOf that "at. a meeting of the people of Mecklenburg couaty, la North Carolina, on May St. 1116, resolutions were passed declar ing their independence of Great Britain." Unfortunately, so cocksure f his memory was the secretary that e managea to stuff into his recollec tion of the resolutions some of the language of the Declaration of lnie pendence signed on July 4. 177C, mors than 'a year later, and it was this slip that has inclined history to be skepll caL However, 'the resolutions had been published In The Souta Carolina Oa sett at the time, and from an old newspaper Ole that dusty tomb of many a precious historical fragment George Bancroft managed jto dig out eviaence corroboratory of Alexander s ftory In all save the date and a portion of the language used. From this old paper and a copy of a letter sent to the home government by Governor Martin, of North Carolina, under date of June 30, 1775. it is made more than reasonably certain that the Mecklen burg Declaration of Independence was born out of freedom-loving breasts on the Slst of May, and not the 20th of May. of the year 1775. But local custom clings tenaciously to an Idea and concerns itself little with the accuracy of mere dates. What grandslr said is good enough for us, though the nine books writ by the Angel of Truth are gainst him. Old Mecklenburg isn't going back on John McN. Alexander, not if she can help it, and if that's an anachronism It isn't treason. Perbap It is just as well to let the date stand .fixed for all future time, whether history likes It or not. by the speech and attendance of President Taft. The date Isn't the thing anyhow. Mecklenburg, as a gal lant little colony, defied King George all by herself, and before any other colony did, and that'B cause enougn to give her sons pride. Washington Post. IN MEMORIAM. Mrs. Letltia Harper Walker Died January 1 190. at her residence, Spray. North Carolina. Mrs. LetlU Harper walker. Vice Regent Mount Vernon Ladles' As sociation for North Carolina 'He glveth His beloved sleep." Beloved she was of the Heavenly Father, otherwise would He have so richly endowed her with the heavenly gifts of sympathy, love, purity, pa tience and intellect, a winning grace, an unfailing judgment, with a sim plicity and Integrity of character as rare as they are beautiful? He gave her also the blessing of a long life whereby her example should elevate all who came within her influence, teaching and transmitting to each and all a portion of these God-bestowed virtues. And finally, without pain. In the fullness and ripeness of her faculties He called her away as she slept, on the New Tear's night, a call so quiet, so gentle, so secret. In the darkness of the night, that she alone heard and answered the call, to awake in the glorious dawn of an un ending day! It Is thus "He Glveth His Beloved Sleep!" Beloved site was to us all, and hard it Is to look upon the vacant chair and know her voice will be no more heard in Its accents of loving advice, encouragement or warning, words which were never without weight, never disregarded. We have, as It were, lost our beacon light which had so unerringly guided us through all thestt years, since 18SI, when Mrs. Walker became vice regent for North Carolina. May the after-glow of this light, undimmed still show us the way as years pass on. Mrs. Walker was the daughter of Governor Morehead, one of North Carolina's most distinguished sons, whose talents of Infinite variety seem to have centred In this rare woman. Artist and musician, as well as prac tical farmer and gardener, associated from childhood with all that was re fined, cultured and Intellectual, know ing as she reached womanhood and In after years those most prominent in public life, her social education was perfected which, with her adaptabil ity, ready sympathy-, and remarkable conversational powers, rendered her a charming companion, scion of a race passed and gone. Entering our association at its in ception she knew Its poverty, trials, discouragements; but, with other re markable women whom our first re gent so wisely appointed, Mrs. Wal ker labored with unfailing courage and hope that never flagged. She liv ed to see her wildest prophecies ful filled and to witness the success she had so helped to ensure. SUSAN. E. JOHNSON HUDSON. . Not Exactly Guilty. Richmond News Leader. "Some iconoclast has attacked the authenticity of the yarn about Ser geant Jaspeh Jumping over the para pet at Fort Moultrie long years ago and restoring the American flag to its place after it had been shot away by the enemy." Dollars to horsecakes the attack was Inspired by The Char lotte (N. C.) Observer In retaliation for the skeptical flings of The Charles ton News and Courier at the Meck lenburg Declaration of Independence. Troys Sanatorium. The Montgomerlan. Troy is to have a large sanatorium. Work is progressing nicely on the building, which will be one of ihe finest In this section of the State. The sanatorium -will be up-to-date In v ery respect and will be well equipped for all surgical work, diagnosis and treatment of all ordinary diseases. This Institution will be owned and operated by Dr. A. F. Thompson. For The Observer. FKED1NG OUR WILLIAM. Oh, what shall we feed to our William To keep him from fading away A week or so hence, on his visit To us, on our own gala day? We don't want to load him with 'possum. We're anxious to show something new A barbecued shoat Is suggested. With lashings of hot Brunswick stew. The canvas back's now out of season. The terrapin's hardly yet ripe, Tis a little bit late for hot sausage And William may not care for tripe. Wf heartily wish to indulge him And. truly, with this end in view. There's nothing beats barbecued piglet Topped off with some hot Brunswick stew. i i Some soup from a H at t eras turtle, A sheepehead from Shackleford's Point, Some clams from the Pamlico waters And rich Yancey beef, for the Joint; A trout from the streams above Ashe vllle, A frying sised chick on the side. A stewed Chatham rabbit, with gravy A dish that is trusted and tried. i Alt these we will have to fall back on Should anything happen to those Most tasty and spicy of dishes We hoo to place under his nose: Hell take with back to the White House A memory pleasant and new The taste of a barbecued piglet Warmed no 1st i hot Brunswick slew. H. H. BRIMLET. NTTPRKVE rhTTRT nPlVlMVC wswiM vvvm vitnvi'u Caarles Rodman, by next friend. ' Norfolk ft Western Railway Company. naiiroaoa, aaasier aaa Servant, Wars Inga, Negligence, Proximate Cause. A railroad company Is responsible for damages in the failure of Its engineer to give forewarning of a sudden unexpected and unusual movement of Its train, con sisting of an engine and flat ears equtp- pea tor aliening, when the proximate cause of an injury to an employe thereon wiuie engaged, in the course of his duties. t Railroads, Master and Servant. Sig nals, warnings. Negligence. When an employe on a ditching train is ujurea wiuie sitting on a nat car. where he should have been In the dis charge of his duties, aad It Is shown that. while actually engaged, his position should be standing, but. at the time, from the nature of his employment. It was sot then required, the mere fact of his sitting at the time of the Injury, when he was in position to promptly dis charge his duty when called upon, as re quired, does not relieve the defendant of the duty to signal or give forewarning of an unusual and unexpected jolting of us train caused oy trie sudden moving of the engine. 1 Same, Contributory Negligence. When an employer on a ditching train at a place where be should have been In the discharge of his duties. Is sudden ly and unexpectedly thrown by the negli gent act of the engineer of the employer upon a piece of machinery known by him to be dangerous, the fact that he threw his hand forward, and got it caught In the machinery to his Injury, is not evi dence of contributory negligence, when the act waa done to save further Injury, i. Railroads, Master and Servant. Place to Work. Duty to Employe, Contrib utory Negligence It is the duty of the employe to select such place to work as will be the leant dangerous when the circumstances admit of a choice, and when the evidence Is sufficient. It Is correct for the trial Judge to charge the Jury, that if plaintiff se lected a dangsrous place to perform his duties when there were other places, or positions that were available and safs, and that a man of ordinary prudence would have selected a different place than that occupied by plaintiff at the time of the injury, and the plaintiffs failure to do so waa the proximate causs. the plaintiff would be guilty of contrib utory negligence and his recovery bar red. V Instructions, Contentions 8tated. Prop er Charge. The contention of the parties stated by the trial Judge to the Jury Is not a basis for reversible' error when. In the In structions, the law applicable Is correct ly charod. Action tried before Jones. J , and a Jury, November. term. 1808, of Person. R N. Sykes vs. Western Union Tele graph Company. Telegraphs, Negligence. Message, Rea sonable Stipulations, Demand in Sixty Days. A stipulation written on the back of a telegraphic message requiring, in effect, that a claim for damages should be pre sented within sixty days or recovery thereon would be barred, will be upheld as a reasonable regulation when It ap pears that the party claiming damages knew of the company's default more than sixty days before the action was brought, and made no claim therefor In that time. Action tried before Long, J.. and a Jury. January term, 1J08, of Durham. Plaintiff appealed. Mollle C Parker vs. North Carolina Rsll- oad Company. 1. Railroads, Lessor and Lessee. Plead ings. Allegations of Lease. Demurrer. When It Is substantially alleged in the complaint in a suit for damages against a railroad company, that plaintiff's In testate was killed while in the course of Ins employment by defendant's lessee company operating the railroad of the defendant a Its lessee, the complaint Is not demurrable on the ground that It did not sufficiently appear that the lease was in force at the time of the Injury. ? Railroads, Lessor and Lessee, Negli gent Killing. Lessor. Damages. Defendant lessor railroad company I liable for the negligent killing of plain tiff's Intestate 'by its lessee railroad com pany. Logan vs. R. R. Co., 116 N. C, 940 and Brown vs. R K. Co., 131 N. C. 456. cited and approved. 3. Pleadings, Demurrer Frivolous, Appeal and ltrror, procedure. The Supreme Court holding a demurrer to a complaint frivolous, will not direct Judgment by default and Inquiry to be entered in the trial court, when no mo tion for such Judgment had been made Jn the lower court, and no exception to the Judge's order allowing an answer had been taken and appealed from. Revisal, Sees. 1M and 472. Pleadings, Demurrer. Frivolous, Dis cretionary Powers, Answers. It la in the discretion of the trial Judge to permit defendant to answer, after overruling a demurrer to the complaint, though the demurrer were frivolous. Cause heard on demurrer to complaint before Jones, J , August term, 1908, of Durham. Defendant appealed. Jacob Cook vs. Western Union Telegraph Company. 1. Power of Court. Pleadings.' Amend ments. Discretionary Power. Flndlne-a. Record. When It appears that a cause waa en tered as continued by consent for the term by the judge at a former term, In the absence of counsel in the case, by mistake of the judge, the court there after, st the same term, had the power and discretion to allow defendant to amend his answer and set up a further defense arising under the Contract sued on. The discretionary power of the court to allow amendments to pleadings in term, when matters are In fieri, dis cussed by Walker, J. Appeal from order of E. B. Jonea, J., entered September term, 1908, of Ala mance, by defendant. In re Will of James M Thorp. 1. Evidence, Statements, Silence, Admis sions. Statements made in the presence of one. who did not reply, to' become his Implied admissions, must have been made on an occasion when a reply would properly fee expected: and testimony as to statements made in a plea for mercy to the court by an attorney, In the hear ing of his client and not denied by him, as to his mental Incapacity, IS Inadmis sible upon an Issue of dlvlsavlt vel non attacking the probate of his will pn that ground. L Evidence. Wilis, Devlsavit Vel Non, Records. Books of Settlements, Orig inals, Copies. Upon an Issue of dlvlsavlt vel non upon the question of the mental capacity of the testator to make a will, the Book of Settlements kept In the clerk's office In accordance with the provisions of Section 21. Chapter 156. Laws of 1S83. re cording copies of original papers, is not competent evidence of the contents of such papers. The original papers on the records of the executive committee of the State hospital are competent. Quarre. t. Evidence, Wills, Devlsavit Ve Non, Mental Capacity, Book of Settlements. Harmless Error. Upon an issue of devlsavit vet non the testimony ef both sides showed that the testator had been confined in and dis charged from a State's hospital about twelve years previous to his death: and the conflicting evidence upon his mental capacity to make a will was directed al most exclusively to his mental condition during the last tew years of his life. Held! O) In the absn.es of an evidence t, the contrary, the law will pressmo the discparre was based upon the res itrauofl i in isolators soma; w inai the erroneous admission m evidence of the Book of Settlements, In the office of ft he . Superior Court clerk was harmless 1 EMdaace, Wills, Mental Capacity. Bur den of Proof, Instructions. After placing the burden of proof on the caveator to establish the Insanity of the testator st the time of making the will, by the preponderenee of the evi dence. It Is correct for the Judge to charge, in effect, that if the jury find from the evidence that the testator sign ed the writing offered In evidence as and for his last will, that at the time he had mental capacity to know and understand what bs was oolng. to know his property and Its disposition, his relationship to his property and the persons benefitted, the nature and effect of his act. he had mental capacity sufficient to make a will. Marler-Dalton-Otlmer CO. vs. Wadesboro Clothing and 8hoe Co. 1. Writs, Record rl. Purposes. New Trial. Erroneous Judgments.' A writ ( reoordart may Issue from the Superior Court to a Justice's court for the purposes of obtaining a new inai m the ease on Its merits or reversing an er- roueeua or false Judgment. 1 Justices of the Peace. Jurisdiction. Non Residents. Joinder of Parties, Summons. Service, Appeal and law. When a plaintiff has sued a resident and non resident of a county In a Jus tice's court. Issued the summonses under the nrovislons of RevtssJ, Sec. 17. and obtained Judgment thereon, and the Su perior Court has denied a petition of the non resident defendant for a writ of re oordart based upon the Jurisdictional round of lmwooerlT Joining the resi dent defendant, the Judgment of the Su perior Court will be upheld when it ap pears that the resident defendant was Joined In good faith aad not for the pur pose of conferring Jurisdiction. I. Proeess. Summons, Endorsements, Presumptions. The return upon a summons by the proper officer that he had served It is prima faole sufficient, as it Implies that It has been served as the statute directs, and the service will be upheld as valid In the absence of evidence to the con trary. Motion for writ of recordarl, heard ny Council!, J . September term, IVOs, or Forsyth. Motion denied and defendant appealed. Walter A. Sulphine et el va. James A. Sparger et a). Roads and Highways, County Com missioners, Appeal, When Taken. Exceptions to a report of road com missioners In proceedings to change the grade of and straighten a puMlo road, under Ch. 407. Lews of 1907. should be made at the confirmation of the report by the county commissioners and ap peal should then be taken, to be affective. County Commissioners. Appeal, When Docketed, Procedure Appeals from orders of the county com missioners are governed by the rules ap plying to appeals from a Justice of the peace, and to be effective must be docket ed at the first ensuing term of the Su perior Court, or the appeal will be dis missed. Same, Appeal Bond. In order to perfect an appeal from an order of the county commissioners It is necesary to give the appeal bond requir ed by Revisal. 2W0. 4. Roads and Highways. Injunction, Mo tion to Dissolve. Supreme Court. A motion to dissolve an order restrain ing the working of a public road ordered by the county commissioners, under the provisions of Ch. 407, Laws 1907, will be allowed In the Supreme Court, when It appears that the appeal from the order of the county commissioners wss neither properly taken nor perfected. Appeal from Surry, heard by Webb, J , upon motion to dissolve a restraining order. 29 February, 1909, at Wentworth. B. A. Price et al vs. O. O Orlffln and Witt. 1. Deeds and Conveyances, Interpreta tion, Words and phrases, "Surviving Hairs," Suipluaag. The word "surviving" In a conveyance of land ''to P. for life and at his death lo his surviving heirs," is surplusage, and cannot affect tha legal Interpretation of the words employed. 2. Same, Rule in Shelley's Case. A conveyance of an estate to "P. for life and at his death to his surviving heirs" conveys the fee simple to the grantee under the rule In Shelley's case. (May vs. Lewis, 132 N. C . 115, cited, ap proved and distinguished). t. Deeds and Conveyances, Interpreta tion. Context, Estates, "Living Heirs," Surplusage. In consuming the meaning of words contained In a deed tlie court may ex amine the context of the deed, and for the purpose of shedding light upon tha value or extent of tha estate drsorlbed In the conveyance clause, In this case "to P. for life and at his death to the sur viving heirs." the warranty and covenant clause may be resorted to, when the language Is applicable, as some evidence that the word "living," thus used, should be treated as surplussge. Action tried before Keel. J , upon de murrer to complaint, at November term, 1908, of Woke. Demurrer sustained; plaintiff appealed. The pertinent facts are stated in the opinion. State vs. Ephrtam Moody. 1. Procedure. Criminal, Demurrer to Evidence. Demurring to the evidence la new reg ulated by statute, is peculiar to elvil ac tions, has no place in criminal proceed ings and tends only to delay. 2. Procedure. Criminal, Demurrer to Evidence, "Demurrer" Defined, State's Appeal. In determining the right of the State to appeal in a criminal action upon de murrer, the word demurrer must be tak en In Its usual and ordinary significance as relating to a pleading and as under stood and defined In criminal proceed ings. The State may not appeal when the trial judge sustains defendant's de murrer to the State's evidence. J. Same, Questions for Jury, Verdict Directing. The Jury must pass upon the weight of the State's evidencs In criminal cases, instead of demurring to the evidence, the proper practice Is for the defendant to move the court to direct the Jury that the evidence is Insufficient to convict, and to enter a verdict of not guilty. If the trial judge so directs the verdict the State cannot appeal. 4. Procedure, Criminal, Demurrer to Evi dence. Sustained, Mistrial. In this criminal action the trial judge sustained the prisoner's demurrer to the State's evidence, the State appealed and no verdict was rendered. Held: The case Is stilt pending, snd the solicitor should proceed to try the defendant again under the Indictment, as upon a mistrial. Mrs. C. J. Quants vs. City of Concord. Municipal Corporations, Cities and Towns. Widening Streets, Damages. A city Is liable to the owner for taking his land tn widening Its streets In the full amount ef the damages, reduced by the value of the benefits conferred by the lmprovementa; and the owner may sue and recover therefor. In contradiction to those laid In tort, where recovery may not be had unless the work was dene In an unskillful manner. (The doctrine es tablished In Jones vs. Henderson, 147 N. C. t&. and that line of cases, distin guished by Walker, X). Action tried before Oouncill, J., aad a uar7 Jury, at Jan term, 1303, of Cabarrus. Defendant appealed." J. T. Bordeaux. Admr.. va '.Atlantis " Coast Line Railroad Company!,' 1. Evidencs, Nonsuit Waiver. J .' "V., , A motion as of nonaslt upon the vl-' , denes made at the close of plaintiffs rvi- . dance and not renewed at the close of all ' the evidence, is waived, aad will net be considered on appeal. I Master and Servant. Kaflroadsv Yards. Employes. Negligence, Rules of Em ployer, Enforcement. -:,' 1 The failure to enforce a reasonable . rule made for tha protection of employes , ef a railroad company, engaged in re pairing cars upon an extensive repair 7; and switching yard. Is evidence of ; a waiver or abrogation of the rule.. . " , 3. Master and Servant. Railroads, Rules ' of Employer, Habitual Violation, Knowledge, Waiver. ,'- A printed and bulletined rule mads) for -. the safety of employes engaged to re- t pairing cars on an extensive repairing' " -and switching yard of a railroad com- .'. pany, requiring that flags of warning 5 should be placed in a certain manner at ' s such times, will not relieve the company,.' ' of liability for Its negligence when the ' employes fall to observe the rule while engaged on "short Jobs," when It was actually or constructively known to the company that the rule was habitually and continually dlregarded in such In stance to such an extent as to amount to an abrogation. 4. Master and Servant. Railroads, "Kicking" Cars, Railroad Yards. Rules of Safety. Enforcement Employer. While the rules of liability of railroads in regard to "kicking" cars, or making "flying switches" at a public crossing, do not. apply to the constant changing or sIKbliig of cars on extensive repair ing and ' switching yards, it Is still the duty of the company to establish and enforce proper rules for the protection of , the employes In such yards from Injuries otherwise likely to occur to them when engaged in repairing cars therein. 5. Master and Servant. Railroads. Rules of Employer, Waiver, Contributory Negligence, Evidence. When there Is evidence of a waiver by a railroad company of Its rule that employes, at work on cars on Its ex tensive repairing and switching yard, must put out blue flags as warnings, and .. that plaintiff and two other employes agreed that the job would be a short one. from a half minute to two minutes, dis cussed the matter and decided not to put out the flags, but have one of their num ber keep a look out, and while thus en- ' gaged the plaintiff's intestate was killed '. by s shifting engine "kicking." at fast ' speed, cars onto the one where he wag : working, the question , of contributory" negligence Is one for the Jury. Carolina Alexander va. Metropolitan Life Insurance Company. 1. Life Insurance, Applications. Untrue Statements, False Representations. Statements made In an application for life Insurance upon which the policy waa Issued, that the applicant had never had any desease of the kidney or been under the csre of a physician within two years preceding the date of the application, are material as an Inducement for the Insur ance company to Issue the policy, and when untrue will Invalidate It. 2. Same, Judgment Upon Verdict. It waa established by the verdict. In a suit upon a Ufa Insurance policy matured by tha death of the Insured, that certain material statements In the application, upon which the policy waa issued, were untrue, though no false representations had been therein made by the applicant. Held: It appearing that the company had been Imposed upon from the very nature of tha representations, it was Immaterial whether the representations were fraud ulent or not. and the defendant's motion for Judgment upon the Issues should have been granted. John P. Natl vs. Brown snd Williamson. 1. Evidence Rejected, Subsequent Offer to Admit. Hsrmless Error. When the trial Judge has excluded cer tain evidence which he thereafter, at tha close of all the evidence, offered to ad mit, and there la no suggestion that the witnesses had been discharged, the error. If any, was cured. 2. Instructions. Special. Offered Too Late. Appeal and Error. It Is necessary to offer a prayer for special Instruction in apt time, aad tha refusal of the trial Judge to give a cor rect Instruction when tenderes) too late Is not reviewable on appeal. . Negligence, Safe Appliance, Selection, Rule of the Prudent Man. It is culpable negligence ud not a mere error In Judgment which renders an employer liable to tha employe In jured toy reason of the use of an ap pliance furnished with which to work; snd when the employer has selected one of several methods which are approved and In general use. with that degree of care that a person of ordinary prudence would have used, no liability will attach by reason of such selection. The Pilgrim Grand REFRIGERATOR Lined with pure whiU stone. The greatest cold retainer of modern re frigeration. Cleans as easily as a china plate. For sale only by J.N.McCausIandSCo. U S. Tron St. HOT WATER A PLENTY Is not difficult to obtain if we have the installation of your bath room ind kitchen plumbing. We'll esti mate If you only ask ua ' HACKNEY . BROS. CO. . Plnmblng. Heating. Gas Fitting and Supplies. . -: : Pbone 312. and S Xf. Fifth St' CHARLOTTE. X. C.w . ' . j - I- i j -i
The Charlotte Observer (Charlotte, N.C.)
Standardized title groups preceding, succeeding, and alternate titles together.
May 24, 1909, edition 1
9
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