in the deed of the D. land, even if it was the senior deed, but
on whether, by the terms of the will. they were devised to
him; and the intention of the testator at the time of cutting
the canal would not determine the true boundary between
the tracts, but his intention at the time of making the will.
Harper v. Anderson, 89.
The evidence in this case to restrain a city from discharging
sewage on the premises of the plaintiff is not sufficient to
show a probability that a nuisance would result therefrom.
Vickers v. Durham, 880.
Where a husband and wife, suing in ejectment, claimed that
the land involved had been purchased jointly by them, each
furnishing a portion of the money, evidence to show the
purpose for which a certain sum of money was furnished
by the wife, and her accompanying directions, was properly
admitted, as tending to prove a material fact. Ray v.
Long, 891.
A person may use a map or drawing to demonstrate the relative
positions of places involved in the evidence given by him.
State v. Wilcor, 1120.
EXAMINATION OF PRISONERS.
Where the record of a committing magistrate merely states that
the prisoner was cautioned and the trial court holds such
admission competent, with no other evidence before him
except this statement, it is error, as the trial judge should
have found as a fact whether the proper caution was given
to the prisoner. State v. Parker, 1014.
EXAMINATION OF WITNESSES.
Objections to questions to a witness must be interposed when
the question is asked and before the answer, or the right to
have the testimony excluded is waived. Dobson v. Rail-
road, 900.
EXCEPTIONS AND OBJECTIONS. See "Appeal."
Objections to questions to a witness must be interposed when
the question is asked and before the answer, or the right
to have the testimony excluded is waived. Dobson v. Rail-
road, 900.
Exceptions to a charge must be stated separately, in articles
numbered, and no exception should contain more than one
proposition. Gwaltney v. Ins. Co., 925.
An objection to evidence interposed after its admission is not
in apt time and will not be considered on appeal. Beaman
v. Ward, 68.
EXCEPTIONS AND OBJECTIONS-Continued.
An appeal is itself a sufficient exception to the judgment. Rail-
road v. Stewart.
Where an instruction given at the request of a party contains
in substance an instruction objected to, an exception
thereto will not be sustained. Kelly v. Traction Co., 367.
Objections to irregularities in the taking of a deposition must
be made in writing and passed on before trial. Williford
r. Bailey, 402.
On the removal of a proceeding before the clerk of the superior
court to the superior court objections may be raised on
trial in the superior court that were not raised before the
clerk. Railroad Co. v. Stroud, 413.
Where there is no exception to the evidence or the charge of
the court, no part of them should be sent up on appeal.
Parker v. Express Co., 128.
A general objection to the entire charge, or any part thereof
which contains several distinct propositions, will not be
considered on appeal. State v. Hall, 1095.
Where no exception is taken in the trial court to findings of
fact as not being supported by any evidence, such objection
will not be considered on appeal. Riddick v. Asso., 118.
No part of land purchased jointly by husband and wife can be
sold under execution against the husband. Ray v. Long, 891.
Where a complaint in an action for assault and battery sets out
facts justifying an order of arrest, and such facts are essen-
tial to the claim of the plaintiff, the complaint being prop-
erly verified, the plaintiff is entitled to an execution against
the person, after an execution against the property has
been returned unsatisfied, though no affidavit or order of
arrest has been made. Huntley v. Hasty, 279.
EXECUTORS AND ADMINISTRATORS.
A legatee cannot maintain an action against the executor of
another legatee who has taken possession of the property
of the deceased devisor, but the action must be brought
by the personal representative of the devisor. Mitchell v.
Mitchell, 350.
Acts 1887, ch. 147, as amended by acts 1901, ch. 186, provides
that a personal representative can sell under a mortgage,
but does not confer any right to maintain an action of
ejectment nor for foreclosure. Hughes v. Gay, 50.
EXECUTORS AND ADMINISTRATORS-Continued.
A husband may receive and receipt for money due his deceased
wife, as her administrator, and such receipt is prima facie
evidence that he was such administrator. Murray v. Bar-
den, 136.
An executor may purchase claims against his testator for
monies received by his testator as guardian or agent, if no
money received by the testator as such guardian or agent
has come into his hands as executor and there is no fraud
or concealment on his part. Murray v. Barden, 136.
A proceeding by an administrator to sell land for assets to pay
debts is not conclusive against the heirs at law as to the
validity of the alleged debts. Austin v. Austin, 262.
A widow is entitled to receive securities representing advan-
tageous investments as a part of her distributive share of
the personalty if there is no necessity of converting such
investments into money. Baptist University v. Borden, 477.
In an action by the assignee of a grantee in a warranty deed
against the administrator of the grantor, the assignee may
recover though no real assets descended to the heirs of the
grantor. Wiggins v. Pender, 628.
In an action for land alleged to have been fraudulently sold
by an administrator, it is error for the trial court to instruct
that the title of a subsequent purchaser depended on wheth-
er he knew of the rights of an heir to the property, without
reference to the knowledge of the purchaser of the fraudu-
lent sale. Morrow v. Cole, 678.
The commencement of an action by an administrator for the
sale of the lands for assets with which to pay a debt to
himself is a sufficient filing and admitting of the claim so
as to prevent the running of the statute of limitation. Har-
ris v. Davenport, 697.
The administrator of a debtor on whose life a creditor has taken
insurance can not contest the validity of the policy or its
asignment by the creditors to a third party. Maynard v.
Ins. Co., 711.
The Code, Sec. 1126, authorizes the submission to arbitration
of a claim against an administrator. McLeod v. Graham,
473.
On a motion by an administrator to set aside a judgment by a
creditor of the estate upon an alleged irregularity of the
judgment, the distributees cannot intervene. McLeod v.
Graham, 473.
EXECUTORS AND ADMINISTRATORS—Continued.
An action brought against an administrator is a sufficient filing
of a claim against the estate. McLeod v. Graham, 473.
EXEMPLARY DAMAGES. See "Damages."
The exemption laws of this State are a protection only against
executions isued here, and have no extraterritorial effect.
Serton v. Ins. Co., 1
A deed in trust by the husband, in which the wife does not
join, reserving the homestead of the grantor therein con-
veys the entire land contained in the deed of trust, subject
only to the determinable exemption in $1,000 worth thereof
from the payment of the debts of the grantor during his
life. Joyner v. Sugg, 580.
The finding of a trial judge that a witness is an expert is final
if there is any evidence to sustain the finding. State v.
Wilcor, 1120.
EXPERT EVIDENCE. See "Evidence."
A physician may testify as an expert whether the absence of
water from the stomach or lungs of a person, taken from
water, indicated that such person was killed otherwise
than by drowning. State v. Wilcox, 1120.
A physician may testify as an expert as to the kind of weapon
that would produce a wound examined by him. State c.
Wilcor, 1120.
FALSE IMPRISONMENT. See "Malicious Prosecution."
In an action for false arrest the plaintiff may recover punitive
damages if the arrest is accompanied with gross negligence,
malice, insult, oppression, or other circumstances of legal
aggravation. Kelly v. Traction Co., 369.
When the decision of a federal question by a state Supreme
Court is necessary to sustain the judgment rendered, the
Supreme Court of the United States will review such judg-
ment, although another question, not federal, is decided.
Buik v. Harris, 10
When there was no evidence that counsel was necessary in a
sale under a trust deed no allowance therefor should be
made from the proceeds of such sale. Duffy v. Smith, 38.
FELLOW-SERVANT. See "Railroads."
A vice principal is one who has such a control over those who
act under him that they have a just reason to believe that
a failure or refusal to obey the superior will or may be
followed by a discharge. Lamb v. Littman, 978.
The findings of the trial judge before whom a motion is made
to correct a judgment are conclusive on appeal, provided
there is any evidence to sustain them. Ricaud v. Alder-
man, 62.
Where a judgment states that a summons had been served, but
the court records show that it had not been served, and
the trial judge so finds, the original judgment will be cor-
rected so as to show that the summons was not served.
Ricaud v. Alderman, 62.
The finding of a trial judge that a witness is an expert is final
if there is any evidence to sustain the finding. State v.
Wilcox, 1120
The findings of fact by a referee, supported by evidence and
sustained by the trial court, are not reviewable. Malloy v.
Cotton Mills, 432.
Where no exception is taken in the trial court to findings of
fact as not being supported by any evidence, such objection
will not be considered on appeal. Riddick v. Asso., 118.
It is not error for the trial court to refuse to charge that certain
facts in evidence are true. Harris v. Railroad Co., 160.
A refusal of a trial judge to set aside a verdict for the reason
that a juror was alleged to have been asleep during the
trial, will not be reviewed where the trial judge does not
find the facts and it will be presumed that the refusal was
warranted by the facts. Pharr v. Railroad Co., 418.
Where a railroad company negligently permits bales of cotton
to stand on its platform until the bagging comes off and the
lint bulges out and it is ignited by fire, the company is
liable for the destruction of property by fire communicated
by sparks from a passing engine to the cotton. Ins. Co.
v. Railroad Co., 75.
FIRE INSURANCE. See "Insurance."
FORECLOSURE OF MORTGAGES. See "Notice;" "Mortgages."
The commencement of foreclosure against insured property
terminates the policy, there being in the policy a provision
to that effect. Hayes v. Ins. Co., 702.
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