be heard on the admissions of the mortgagor, was conclu-
sive against defendant's rights in the safe. Graves v. Currie,
307.
Where iots are sold with reference to a street, it amounts to a
dedication, and the grantees have a right to have the street
kept open, although the town had never accepted the street
for public use. Davis v. Morris, 435.
The acknowledgement in a policy of insurance of the receipt
of a premium estops the company to test the validity of
the policy on the ground of the non-payment of the pre-
mium. Grier v. Ins. Co., 542.
Where, in an action to sell land for assets, the administrator
alleges that certain real property belonged to the deceased,
and a party having a deed to the same, being a party to
the action, fails to set up title thereto, he is estopped by
the order of sale and decree of confirmation. Smith v.
Huffman, 600.
The receipt of an insurance policy, under the circumstances in
this case, without reading it does not bind the assured so
as to prevent him from proving a parol agreement between
himself and the agent of the company relative to the policy.
Gwaltney v. Asso. Society, 925.
The defendant in ejectment is not estopped to dispute the title
of the plaintiff by having accepted a deed from mother
of plaintiff after the death of plaintiff's father, it not ap-
pearing that her dower had been assigned and the burden
of showing this being on plaintiff. Caudle v. Long, 675.
Where a person to defraud his creditors conveys land and after.
wards becomes a voluntary bankrupt and the trustee in
bankruptcy in behalf of the creditors sells the land and the
bankrupt through another becomes the purchaser, whatever
title he gets by the deed of the trustee accrues to the bene-
fit of the original grantee. Hallyburton v. Slagle, 947.
Where a covenant for title is regarded as an estoppel affecting
the title, it must be governed by the law of the State in
which the property is situated. Smith v. Ingram, 959.
EVIDENCE.
Where the evidence in a case is conflicting, the weight and
credibility thereof is for the jury, and the verdict thereon
is conclusive. Gordon v. Railroad Co., 565.
In an ejectment suit where the plaintiff offers no evidence ex-
cept a deed and possession thereunder for two years, a
judgment of non-suit should be granted. Caudle v. Long,
675.
A judgment for possession and profits in favor of a prior grantee
from the common source of title is a sufficient eviction to
entitle a person to sue for breach of a warranty of title in
the common grantor's deed, under which plaintiff claimed.
Wiggins v. Pender, 628.
In an action to recover for the death of an engineer while at-
tempting to cross a bridge, an exclamation by a by-stander
at the time of the accident tending to show the dangerous
condition of the bridge is competent as a part of the res
gesta. Harrill v. Railroad Co., 655.
A demurrer to the evidence of the plaintiff admits the truth
thereof and any reasonable inference that may be drawn
therefrom. Snider v. Newell, 614.
The declarations of an agent of a corporation are not competent
if made after the transactions and are not a part of the
res gestæ, and it makes no difference that the agent was
an officer of the corporation. McEntyre v. Cotton Mills, 598.
In an action against a warehouseman to recover damages for
the loss of goods by fire, a witness cannot testify, judging
from the condition of the warehouse, how long the fire had
been burning when the fire company arrived, the fire not
having originated in the warehouse. Lyman v. Railroad, 721.
In an action against a warehouseman to recover damages for
the loss of goods by fire, the declarations of an agent made
after the fire are not admissible. Lyman v. Railroad, 721.
In an action against a warehouseman to recover damages for
loss of goods by fire, the statement of persons some time
after the fire had started, as to its origin, is not competent,
it not being a part of the res gestæ. Lyman v. Railroad, 721.
Where a contract for the sale of lumber provides that it shall
be graded according to the rules of a certain association, a
witness who states that he is not familiar with such rules
should not be allowed to testify as to the grade of the
lumber. Bray v. Lumber Co., 695.
In this action against a railroad company to recover damages
for an assault by its agents and employees while the rela-
tions of passenger and carrier existed between the plain-
tiff and the railroad company, the evidence justifies the re-
fusal of a non-suit by the trial judge. Seawell v. Railroad,
EVIDENCE-Continued.
In an action to recover for personal injuries, it is not compe-
tent for a witness to testify that a plank, alleged to have
been rotten, would have, if sound, held the weight of the
intestate of the plaintiff. Cogdell v. Railroad, 852.
The evidence in this case is sufficiently clear, strong and con-
vincing to warrant the correction of the mistake in the
deed. Warehouse Co. v. Ozment, 839.
In an action to reform a deed for a mistake, it is competent for
a witness to testify as to the intention of the parties. Ware-
house Co. v. Ozment, 839.
The evidence in this case is sufficient to be submitted to the
jury upon the issues of negligence of defendant, contribu-
tory negligence of plaintiff and the proximate cause of the
injury. Smith v. Railroad, 819.
Where two persons are charged with being the cause of the
death of a person, but not with conspiracy, the jury should
acquit if they have a reasonable doubt as to which one in-
flicted the injury. State v. Goode, 982.
The evidence in this case is sufficient to be submitted to the
jury as to the guilt of the defendants of manslaughter. State
v. Goode, 982.
In this action to recover salvage for saving a vessel the evi-
dence is not sufficient to be submitted to the jury as to
whether the defendant contracted to pay salvage. Lewis
v. Steamship Co., 904.
The mere fact that a tract of land intended to be conveyed was
described in the deed as 50 by 150 feet, whereas it in fact
contained only 50 by 116 feet, was not evidence of negli-
gence on the part of the grantor, such as to deprive him
of the right to reformation. Warehouse Co. v. Ozment, 839.
Where a deed recites that it conveys the land sold by a certain
grantor to a certain grantee. the description of the land
given in the deed referred to cannot be considered without
proof that such deed was executed prior to the deed offered
in evidence. Johnson v. Case, 795.
Where the plaintiff in ejectment offers no evidence tending to
show that defendant was in possession at the time of the
commencement of the action, a judgment of non-suit should
be granted. Doggett v. Hardin, 690.
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.
EVIDENCE-Continued.
The reputation of a man may be proved only by those who know
it, and this applies equally whether it be his general repu-
tation for truth and honesty or any special fitness for any
employment for which he may be engaged. Lamb v. Litt
man 978.
The trial court is not required to give instructions in the lan-
guage of the prayers, here relative to circumstantial evi-
dence and reasonable doubt; provided the instructions
given are correct and cover the various phases of the tes-
timony. 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 v.
Wilcox, 1120.
In an indictment against a person for failure to work a public
road the order of the county commissioners laying out said
road is competent evidence to show the establishment of
such road and such judgment cannot be collaterally at-
tacked. State v. Yoder, 1011.
A witness may be asked on cross-examination whether many
things relative to the case are not slipping from his memory,
for the purpose of showing that his memory is weakening.
State v. Hall, 1094.
Where a person on trial for perjury for swearing that he had
never been indicted for being drunk, was asked on cross-
examination whether a certain person had not charged him
with having delirium tremens, his answer thereto is not
competent as substantive evidence. State v. Austin, 1037.
Where evidence introduced is competent only as impeaching
evidence and is not material as substantive evidence, the
trial judge should so instruct. State v. Austin, 1037.
A gift of personal property is not complete without delivery,
but declarations of an alleged donor that he had given cer-
tain property is competent evidence from which the jury
may infer and find whether there was a delivery. Gross v.
Smith, 604.
In an indictment for murder, evidence that the accused said
immediately after the shooting, "That was a good shot,
wasn't it, with my left hand?" is competent. State v. Utley,
1022.
In an indictment for murder a witness may state that the
prisoner shortly before the killing seemed mad at the de-
ceased. State v. Utley, 1022.
Where a will, having been in the possession of the testator, has
the signature of the testator erased, it is prima facie evi-
dence of its revocation. Cutler v. Cutler, 190.
Any admission or confession made by a prisoner while under
oath before a committing magistrate, whether reduced to
writing or not, or made in the presence of witnesses, should
not be received in evidence. State v. Parker, 1014.
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.
Where new evidence is discovered during the term at which a
case is tried, but too late for the trial court to hear a mo-
tion for a new trial at that term, such motion may be made
in the Supreme Court. Turner v. Davis, 187
A motion made in the superior court for a new trial for newly-
discovered evidence must be made and passed upon at the
same term at which the trial is had. Turner v. Davis, 187.
In an action for libel, evidence of a public rumor affecting the
character of plaintiff does not tend to disprove malice or
show good faith in the absence of evidence that the defend-
ant at the time he made the publication had knowledge of
the rumor and acted thereon. Harrison v. Garrett, 172.
In an action to recover damages for occupying land with a
tramway, the defendant is not entitled to show in mitiga-
tion of damages that he hauled freight free of charge for
the tenants of the plaintiff. Leigh v. Garysburg Mfg. Co., 167.
Under the evidence in this case the trial court properly in-
structed that if the jury believe the evidence they should
find that the defendant canal company negligently injured
the property of the plaintiff. Pinnix v. Canal Co., 124.
In an action to recover a balance due on consigned goods, with
ancillary proceedings in arrest and bail, it is competent for
the defendant to show that he had not embezzled any of the
goods and that the shortage was due to theft, failure to col-
lect and the sale of some of the goods at an underprice to
induce the sale of others. Grocery Co. v. Davis, 96.
Where a party has a copy of a contract, with a written agree-
ment thereto, and allows certain work to be performed un-
der the attached agreement, he thereby recognizes the at-
tached writing as a part of the contract. Fire Extinguisher
v. Cotton Mills, 424.
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