The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1896-01-26

State VS.. Thomas Covington appel
lant), from Catawba county Opin'
ion by Avery, j.
Where in a trial for murder the only
evidence as to the circumstances OF
the murder was the following alleged
confession of the prisoner, who, in an
attempt to rob the storsEs the de
ceased, was surprised blythe latter
who was Watching for the robber:
Il watched my chance and jumped on
the old man and wrenched his pistol
and the old man hollered Murder!
Then | shot him through the body
The old man said: You have got me
| aimed to shoot him, and this must
have been when / shot him in the neck
and | shot him again" Held, that the
firing of the second and the third
shots, which were fatal ones showed
such a deliberation and premeditation
as to warrant the instruction that the
defendant was guilty Of murder in the
first degree or nothing.
Affirmed.
John T. Whichard rs. Wilmington &
Weldon Railroad Company appel
lant), from Pitt county. Per Gu
Ram.
In this ease a new trial is ordered
because OF the unintelligible manner
i'm which the contentious of the par
ties are presented. Notice is given
that the following rule viii be adopted
at this term: Where an acton is
brought to recover for the diversion OF
surface water or Of natural streams,
either in the original construction or
subsequent improvement of railway
lines, fifteen maps OF the locality.
showing he drainage, etc, made by a
surveyor under order Of Court. must
be sent mp by the appellant with the
record.
New trial
Allen Warren (appelIan0 vs.. Stanciil
& Randolph, from Pitt county. Opin-
ion by Montgomery, j.
\ Judgment setting aside an award
made by referee appointed by the
consent OF the parties and ordering Il
re-reference to the same arbitrator, is
not appealable.
Dismissed.
Thomas A. Mcneil ct ri. (appellants)
vs.. j. ID. Currie ct al. from Robson
county. Opinion by Clark. j
During the tendency OF nh action
brought in one county 10 determine
the liability of a deceased surety on a
guardians bond, an action viii not lie
IN another county TO subject the estate
of the deceased surety to the payment
of such alleged Indebtedness.
No error.
Robert Doster vs.. Charlotte Street
Railway Company (appeiiant), from
MecklenhrFg county. Opinion by
Avery, J.
Where a horse became frightened ar
the usual noise made by an electric
car. and ran away and was injured:
Held. that IN the absence Of any col
liSion with the ear. the street car com
pany is not liable because of its failure
10 stop the ear.
Reversed.
Wiley ct al. appellants IS. Bessener
Mining Company ct al, from Castor
county. Clark, j. Per Curiam.
This case is dismissed because every
exception in it is based upon the judg-
meut. which does not appear in the
printed case on appeal. 1t is inmate
rial that such failure to properly print
the record was due to the negligence
Of appellants counsel.
(The court gives notice that the rule
will be amended at this term 10 re-
ouire that hereafter the whole of the
Judgment appealed from be printed in
all cases..
\. ". Duncan VS. John Hall ct al zap
pellants) from Wilkes Co. Opinion
by Avery, j.
/. The location of a tract OF land,
determined by running from an adj
mitted corner according to the calls as
originally run in the deed conveying
the same. should be accepted rather
than that ascertained by running the
calls according TO their reverse order
?. 1t was error in the Court below to
allow the plaintiff to use the simple
denial of the defndants in thir an
swers that they were wrongfuliy ami
unlawfully in possession of land con-
sisting of a virgin forest as evidence
that the defendants were exercising
such dominion as to subject them
selves to possessory action.
New trial as to Denny and CoWles.
james II. Sparger (appellant) vs.. W.
A. Moore, from Surry county Opin-
ION by Furehes, j.
]. In an action to enjoin the sale OF
lands subject to dover, because such
dover was estimated by taking into
consideration the deceased's interest
in an insolyent partnership; Held. /.
That the real estate Of an insolvent
firm is considered personally for the
payment of firm debts, and hence, the
widow of the deceased partner is not
entitled to dover in the partnership
realty, nor can she have the same
taken into consideration in estimating
her dover. 2. In such suit the court,
in its equitable jurisdiction, has the
power to adjust the rights OF the
widow and the firm creditors.
.. Where the surviving partner con-
veyed the partnership property TO
trustee should proceed under an order
rustee should proceed under an order
OF court to sell the property and dis
tribute the proceeds.
Error.
r. a. Havener VS. Western Union
Tel. Co. (appellanD, from Bun
combe county. Opinion by Fair
cloth, q. j.
Al. !,