22. Where, on the trial of a defendant for bigamy, one witness testi-
fied that the defendant had been married to his first wife thirty-
nine years and had admitted two years before the trial that he
had another wife living, and it appeared that the defendant had
testified on the preliminary examination before a justice of the
peace to such first marriage while he and she were slaves, it was
proper to refuse an instruction that, on the evidence, the jury
could not convict. Ibid.
23. When a person riding on a hand-car with a section-master is injured
by collision with a train, a conversation after the accident be-
tween the section-master and the conductor of the colliding train
is admissible as a part of res gestae. Willis v. Railroad, 508.
24. In the trial of an action for injuries to a person hurt while riding
on a hand car in use by the section-master of a railroad, it was
competent for the defendant company to show the limited
authority of a section-master under the printed rules of the com-
pany.
Ibid.
25. Where deceased made statements in contemplation of impending
death, such declarations did not subsequently become incompe-
tent because, contrary to his expectations, he lived five months
afterwards. State v. Craine, 601.
26. On the trial of a defendant for murder, an affidavit made by the
deceased before a magistrate immediately after receiving wounds
from which he subsequently died, was admissible as corrobora-
tive of declarations, made on the same afternoon, in contempla-
tion of death, although he expressed no expectation of death at
the time of making such affidavit. Ibid.
27. The presumption of guilt that the law raises from recent pos-
session of stolen property, is strong, slight or weak, according to
the particular facts surrounding a given case. State v. McRae,
608.
28. A charge of "needlessly acting in a cruel manner by killing'
chickens is a sufficient charge of cruelty and is sustained by un-
controverted proof of impaling one chicken on a sharp stick and
beating a hen to death. State v. Neal, 613.
EVIDENCE, Sufficiency of:
1. Where there is no evidence, or a mere scintilla of evidence, or
the evidence is not sufficient, in a just and reasonable view of it
to warrant an inference of any fact in issue, the Court should
direct a verdict against the party upon whom the onus of proof
rests. Spruill v. Life Insurance Co., 141.
2. An exception that there is not sufficient evidence to go to the
jury must be taken before verdict, in order that the defect can
be supplied if possible. State v. Harris, 577.
ISSUANCE BUT BEFORE SERVICE OF
Where, in an action to enjoin an execution sale on the ground of
fraud in the confession of the judgment, the judgment debtor
and creditor and the sheriff are parties, and the sheriff sells the
property to the judgment creditor after a restraining order is is-
sued, but before it is served, the purchaser acquires no title and
may be ordered to deliver the goods to a receiver pending the
action. Stern v. Austern, 107.
1. Contract for specific articles to be thereafter manufactured and de-
livered is executory, and no title to the articles passes until
finished and delivered, and the buyer has no title to or interest
in the material used. Heiser v. Mears, 443.
2. Where the buyer countermands his order for goods to be manu-
factured for him under an executory contract, before the goods
are finished, it is notice to the other party that he elects to re-
scind his contract and submit to the legal measure of damages
resulting from the breach. Ibid.
3. Where an executory contract for the manufacture of goods is re-
scinded by the buyer before the work is finished, the measure of
damages is the difference between the contract price and the
market value of the goods at the time of the breach. Ibid.
EXECUTOR NAMED AS TRUSTEE IN WILL:
1. Where an executor in a will is thereby also appointed a trustee
and renounces or dies, the administrator cum testamento annexo
appointed in his stead succeeds to the trusteeship, and hence an
appointment by the clerk of the court of a trustee in place of
the executor is void and clothes the appointee with no power.
Clark v. Peebles, 31.
2. In such case payments of the body of the trust fund made by the
administrator d. b. n. c. t. a. to the cestui que trust (who was to
receive the income only) and to the alleged trustee acting under
the clerk's appointment were not valid payments, and the ad-
ministrator c. t. a. is not entitled to credit therefor.
EXECUTORS, Purchase of Decedent's Land by:
1. Where executors, fully empowered by the will to make sales of
lands for division of the proceeds among the devisees, sold to
third persons, who purchased for the benefit of the executors,
and then instituted an action in the Superior Court against the
devisees to have such sales confirmed; Held, that the court will
not entertain jurisdiction of such action. Shute v. Austin, 440.
2. A purchase of testator's land by executors, at their own sale,
whether directly or indirectly, and however fair, is fraudulent
in law. Ibid.
1. A "broadside" exception to the charge, without pointing out
the error complained of, will not be considered. Hampton v.
Railroad Company, 534.
2. A "broadside" exception "to the charge as given" will not be
considered. State v. Moore (James), 570. Burnett v. Railroad
Company, 517.
3. An exception for omission to charge must be made before verdict;
otherwise as to exceptions for errors in the charge which, if
taken specifically, may be made within ten days after the ad-
journment of the court. State v. Harris, 577.
4. An assault made from behind and in such a manner as to prevent
the person assaulted from knowing who his assailant is, or that
the blow is about to be struck, is a secret assault. Ibid.
5. No appeal lies from an order passing on referee's report and re-
committing it for correction, but if an exception be noted to the
ruling, it can be heard on the appeal from the final judgment.
Alexander v. Alexander, 472.
6. An appeal taken from an interlocutory order, but abandoned be-
cause prematurely taken, will operate as an exception to such
order upon an appeal from the final judgment. Ibid.
EXCEPTION TO REFEREE'S REPORT, 446.
Where, on the trial of an action, there was no evidence to show any
impairment of plaintiff's hearing, it was error to admit a hypo-
thetical question to a physician as to the cause of an injury com-
plained of in the action, which question was based upon plain-
tiff's "sight and hearing being impaired." Burnett v. Railroad
Company, 517.
EXPRESS COMPANY, Liability of:
Where an express bill of lading contained a stipulation that the com-
pany should not be liable for loss or damage, unless demand
therefor should be made within thirty days from the date of the
bill of lading, and the company instructed its agents not to re-
turn undelivered packages until the expiration of thirty days
from their arrival at their destination; Held, that the stipula-
tion was unreasonable and void. Dixie Cigar Co. v. Express Co.,
348.
FALSE ARREST, Action for, 56.
1. A plaintiff in an action for injuries resulting from his false impri-
sonment must show that he has been injured, and can recover only
for actual damages, including injury to feelings and mental suffer-
ing, and is not entitled to punitive damages unless the arrest was
accompanied with malice, gross negligence, insult or other aggra-
vating circumstances. Lewis v. Clegg, 292.
2. In an action for damages for injuries caused by the defendant's
having plaintiff unlawfully arrested and imprisoned, on the
ground that he was about to dispose of his property fraudulently,
plaintiff alleged that after his arrest certain contracts of employ-
ment he had made were rescinded by the other parties, and that
a marriage engagement was cancelled. On the trial it appeared
that defendant knew that plaintiff had no property except $31.50
due from his employer for labor, and that the plaintiff had not
disposed of any property, and further, that defendant's purpose
in having plaintiff arrested was to enforce the payment of a debt
of $13.60 due to him from plaintiff, which was accomplished by
obtaining an order from plaintiff on his employer; Held, that
plaintiff was entitled to nominal damages only, in the absence of
evidence that the marriage was postponed by reason of the arrest,
or that plaintiff underwent any suffering, or that he lost employ-
ment or credit, or suffered any injury to his reputation in the
community. Ibid.
1. A motor-man and track-foreman of a street railway are fellow-ser-
Rittenhouse v. Street Railway Co., 544.
2. The "Fellow-Servant Act" (Ch. 57, Pr. Laws of 1897,) does not
apply to an action for injuries received before its passage,and in
such case a servant cannot recover for injuries where his violation
of his master's orders contributed to such injuries. Ibid.
FINDINGS OF SUPERIOR COURT:
1. While the findings of fact of a justice of the peace in taxing the
costs of a criminal action against the prosecutor are reviewable in
the Superior Court, the findings of the latter court are binding
and not reviewable here. State v. Morgan, 563.
2. An appeal does not lie in behalf of the State from the judgment
of the Superior Court declining to tax a prosecutor with costs in
a justice's court, nor from the finding of the Superior Court
that the person taxed by the justice with the costs as the prose-
cutor was not such. Ibid.
FINES, Delinquent Stockholders of Building and Loan Associations, 420.
FORFEITURE OF LAND BY TERMS OF DEVISE:
1. A devise of land to F was accompanied by the declaration that if
it "should at any time be subjected, by process of law, to the
debts of F, then his estate therein shall, eo instanti, cease,".
A judgment was obtained against F, on which an execution was
issued, and his homestead exemption of $1,000 laid off in other
lands. The execution was then returned with the endorsement,
"No property found after said homestead laid off;" Held, that
as there was no attempt or purpose shown to subject the devised
land, by process of law, to the satisfaction of the creditor's debt,
there was no forfeiture of the estate as provided for by the will.
Bryan v. Dunn, 36.
FRAUDULENT CONVEYANCE, 14.
1. Where, in the trial of an action to set aside a sale as fraudulent, it
appeared that the relation of the parties to the sale was not such
as to raise a presumption of fraud, the burden of proving frandu-
lent intent was properly put upon the plaintiff. Trust Company
v. Forbes, 355.
2. Where the burden of proving the bona fides of a transaction
is upon the defendant, he may, without introducing any evi-
dence, rely on evidence introduced by the plaintiff from which,
if sufficient, the jury may find the transaction to have been in
good faith. Ibid.
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