The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-04-20
Supreme Court Decisions.
lReported By Jos. I. seawell.l


tReported by JOS. L. Seawell.)
NEAL VS. SOUTHERN RAILWAY CO
Armed.
Action for damages against defendant
company in which it was alleged that
plaintiff was injured by falling In a hole
washed out in street running parallel
to defendants track; Held that the rail-
road company is not required to keep
such street in repair, though leading TO
its deport 1t was not the owner of the
land upon which the street was located
and where the plaintiff was injured, but
only had an easement for the benefit OF
the road. And 1t further appeared in this
case that the town of Marion had erected
this way into a public street and had
been working and repairing it, as such,
for the last ten years
TERRY VS. ROBBINS. No Error
Common Law, Novation.
In the absence of proof to the contrary
it Will be presumed that the common law
still prevails in a State once under the
jurisdiction Of England
Whether a bond in payment Of an in
stalment upon mortgage is a novation
is question for the jury under proper
instructions from the court.
prior existing debt can be extinguish-
ed by the acceptance CT promissory note
or bond If it is so intended by the par
ties-th only question being as to the
proof Of such intention. But generally,
unless it is otherwise agreed if the
holder of a promissory note takes a new
note for the original debt, there is prima
facie conditional payment only, and the
original debt will be extinguished only
upon the payment of the substituted note.
BROWN VS.. MoRIsEY Affirmed.
Dover. Color of Title
Dover interest is not shown by the
Widows proving only deed to her hus-
band dated in 1854 without proving title
in the grantee Such deed was only color
of title which does not rpen into title
without possession and continuous occu-
patton. This case reported in 126 N. c.,
772. Overruled
WEEKS VS.. McPHAIL Defendants APP
peal. No Error.
Estoppel. Documentary Evidence
A decree of court, not appealed from,
is an estoppel upon the parties thereto
and those claiming under them, although
the decree contains an erroneous con-
Struction of a devise.
A copy of a petition in the Court of
Pleas and Quarter Sessions, duly certified
by the clerk of said court, is competent
to be offered in evidence upon proof of
the loss OF the original. And a judgment
Of the Superior court in the same cause
cannot be collaterally impeached upon the
ground that one named in the pleadings
and Judgment as party was not in fact
made party or that 1t does not appear
that the cause had been regularly taken
by appeal to the Superior court
Defendant cannot put an affidavit In
proof as substantive evidence on the
cross examination of plaintiffs witness.
STATE VS.. HUNT. No Error.
Murder. Indictment. Challenge to
Jurors. judges Charge
Where, upon the trial of an indictment
for murder, the solicitor stated that no
special yenire was necessary, as he should
/ ask only for a verdict of manslaughter
the prisoner is not entitled to more than
four peremptory challenges.
Under an indictment for murder the
prisoner may be convicted either of muir
der in the first degree, or murder in the
second degree, or of assault with deadly
weapon, or of a simple assault, if the
evidence shall warrant such finding. Laws
of 1885, chapter 68.
The declaration of one on trial fol-
manslaughter that he intended to "get
some whiskey and go down to the party
(where the homicide occurred) and raise
some hell is competent to show malice
and it is not necessary in such case t.
show special malice towards the de.
ceased, who was one of the persons al
the party.
The courts instruction that cit did no
| matter what had taken place between the
parties before the homicide-whether the
prisoner entered into the fight willingly oil
Motif at that time it was necessary fol
the prisoner to kill the deceased in order
to save himself from great bodily harm
or death, he would be excusable, wa.
more favorable to the prisoner in thf
| case than the law justified