8. Unless the defendants connect themselves with the elder grant, it
serves them no purpose, except to take title out of the State, and
in this it is of equal avail to the plaintiff also. Ibid
9. In an action for the recovery of land, the defendants set up a con-
tract to convey bona fide improvements, which improvements
the arbitrator, to whom this case was referred by consent, mak-
ing his award the judgment of the Court, found to be $75 in
excess of the rents and a lien on said land: Held, (1) that a writ
of possession was not proper until the terms of the agreement
were complied with, there being a stipulation in the consent
judgment to that effect; (2) that the $75 excess and costs were a
lien upon the land under said judgment, and under the stip-
ulations thereof, the defendants could hold possession until it was
discharged. Field v. Moody, 253.
10. In an action for the possession of land, it appeared that in 1867
the defendants' ancestor had executed a bond to the ancestor of
plaintiffs, and in 1868 had made deeds to her absolute upon their
face, but intended as security for a debt due by said bond, but
he, defendant's ancestor, had continued and remained in posses-
sion of the lands conveyed in said deed till the time of this action,
in 1890; and that in a former action between the parties hereto,
to which also the personal representatives of both their deceased
ancestors were also parties, pleaded by defendants as an estop-
pel, it had been adjudged that the debt was satisfied and the
land discharged of the lien of the trust raised by said deeds:
Held, (1) that the plaintiffs were barred of their recovery; (2) a
re-conveyance of the land or abandonment of the claim to the
lien was presumed; (3) the joinder of unnecessary parties did
not impair the estoppel. Fowler v. Osborne, 404.
11. In an action to recover land the purchaser, after the commence-
ment of the action, may be substituted as party. Talbert v.
Becton, 543.
12. The different descriptions of a boundary line should be, if possi-
ble, reconciled to give effect to the grantor's intent. Buckner v.
Anderson, 572.
13. When, in the original survey, a natural object or well known line
of another tract is called for, such call will control a description
of courses and distances inconsistent therewith. Ibid.
14. When there is a call in a deed "thence with that line to a stake
on the west bank of the branch," and to reach such "branch"
which is well known, the "line" must be extended some seven-
teen or eighteen poles: Held, it is proper to follow the line so
extended to the branch. Ibid.
15. The charge of the Court to the jury that the line must be deter-
mined by following the line to the "branch," was not error,
though there was some evidence that there was a nearer tribu-
tary of this branch. What branch was meant, was a question
for the jury. Ibid.
16. The parties were not estopped by a subsequent verbal agreement
fixing the line to such tributary of the branch from disputing
such line. Ibid.
1. When the complaint alleged a liability of the defendant adminis-
tratrix c. t. a. for $150 and interest, balance due on an annuity
devised, and another liability for $359.46 due because of her fail-
ure to board her mother according to the direction of her testa-
tor's will, it was Held, that a demurrer to the jurisdiction was
improperly sustained, and this, though the Court below ruled
that the second cause of action could not be maintained.
tin v. Goode, 288.
2. In an action for the value of the rents and profits of a tract of
land, it appeared that the defendant, who was administrator of
plaintiff's intestate, entered as such into the possession of said
land, and received the rents and profits to his own use for eleven
years. The Court charged that the plaintiffs were entitled to
recover the reasonable rental value for the entire period: Held,
Shuffler v. Turner, 297.
3. The defendant was properly allowed a deduction for taxes and
improvements. Ibid.
4. The defendant, according to his own admission, assuming to act
as plaintiff's agent in the collection and application of the rents,
cannot plead the statute of limitations unless there was a de-
mand and a refusal, and then only from the time thereof. Ibid.
5. This action was properly brought within three years after he gave
up possession of the land. Ibid.
6. G. was appointed administrator of D. in June and died in August,
1883. In September, 1889, judgment was rendered upon an
action begun in 1884 against G.'s executors establishing G.'s lia-
bility, as administrator, for misuse of D.'s estate: Held, an action
begun in October, 1889, against G.'s sureties was barred by the
statute of limitations. Gill v. Cooper, 311.
7. The plaintiff might have begun his action immediately after his
demand upon G.'s executors and their refusal in 1884, and the
statute runs from that date. Ibid.
8. It is no breach of an administrator's bond to refuse to pay a claim
until the same is established by judgment. Ibid.
9. Where it appeared that the defendant executor kept the funds of
the estate in a bank needlessly for three years after his testator's
death, and during that time he paid the indebtedness of the estate
out of his own private funds, though his testator's fund was am-
ple for such payment: Held, it was negligence, and he cannot be
allowed credit for such gratuitous payment in settlement with
the legatees. Woodley v. Holley, 380.
10. A will by which land is devised to C. for life, and after her death
it is to be divided among children, does not authorize a sale by
the executors. Epley v. Epley, 505.
11. An administrator d. b. n. cannot be compelled by the creditors of
an estate to proceed with a petition to make assets begun by the
former administrator, deceased. Brittain v. Dickson, 529.
ADMINISTRATOR: See ADMINISTRATION.
AGENCY, 122, 297, 306, 665.
If an agent of an insurance company employs a clerk in the usual
business of the company, and permits him also to solicit business,
the company is bound by any waiver, by such clerk, of any
stipulation in the policy which the agent could have made, not-
withstanding a provision in the policy that no persons should be
deemed its agents except those holding its commission as such.
Bergeron v. Insurance and Banking Co, 45.
Vendor agent of vendee, 53.
Verification of pleading by agent, 434.
AGRICULTURAL LIEN: See MORTGAGE.
AGRICULTURE, DEPARTMENT OF:
The Board of Agriculture is a Department of the State Government,
and an action against it to recover money alleged to have been
wrongfully collected by it as a license tax cannot be maintained,
the State not having given its consent to be sued in that respect.
Chemical Co. v. Board of Agriculture, 135.
AMENDMENT: 291, 432, 729.
1. In an action by two tenants in common to have the value of lands
required in construction of defendant's right-of-way assessed,
and after the action had been pending for several years one of
the plaintiffs entered a retraxit, and the Court allowed the other
to amend his description of land so as to embrace his part still
the subject of suit: Held, no error. Sinclair v. Railroad
Co., 507.
2. An order of amendment is not appealable. Ibid.
A Sheriff received an execution August 19, 1892, entered his return
on it November 5, and forwarded it to the Court from which it
issued, but the Clerk of that Court did not take it out of the
post-office until the next day. The Court met on the 2d of
November and adjourned on the 5th, but the Sheriff was igno-
rant of the day of adjournment. In amercement proceedings
after answer filed and the hearing of the cause was entered
upon, the plaintiff moved to amend his affidavit in order to
charge failure to execute and make due return: Held, (1) that
the denial of this motion and the discharging of the rule against
the Sheriff was error; (2) no sufficient excuse was offered for
failure to return the execution. Turner v. Page, 291
1. The Supreme Court will not consider exceptions arising upon the
trial of other issues, when one issue, decisive of the appellant's
right to recover, has been found against him by the jury.
Ginsberg v. Leach, 15.
2. It is not necessary that a party to an action who desires to exam-
ine the adverse party before the trial, under 580 and 581 of
The Code, shall first obtain leave from the Court to make such
examination. The words of the statute, "unless for good cause
shown the Judge shall order otherwise," apply only to the length
of the time of notice, less than five days. An appeal from an
order of the Court, before which such an examination is being
made, directing the examination to proceed, is premature. Vann
v. Laurence, 32.
3. Exceptions to the refusal of the Court to grant a prayer for instruc-
tions, or in granting a prayer, or to instructions generally, can-
not be taken for the first time in the Supreme Court; properly,
they should be made on a motion for a new trial, but it is suffi-
cient if they are assigned in the statement of the case on appeal.
Lee v. Williams, 200.
4. Appeal from an order making parties cannot be allowed to other
parties who do not show that some substantial right of their own
is thereby affected. Emry v. Parker, 261.
5. It is the settled practice that pending an appeal to the Supreme
Court a motion for a new trial upon newly discovered testimony
must be made in that Court; and before the Act of 1887, chap-
ter 192, concerning appeals, such motion must have been made in
the Supreme Court, even after final decree therein. Black v.
Black, 300.
6. The Act of 1887, chapter 192, providing that The Code, Title
13, chapter 10, must not be construed to vacate the judgment
appealed from, that its lien should remain the same until reversed
or modified, notwithstanding any undertaking, and upon its
affirmation, execution should issue from the Superior Court,
modifies the practice so that now after appeal and final decree
in the Supreme Court, a motion for a new trial upon newly dis-
covered testimony should be made in the Superior Court. Pend-
ing the appeal, the practice remains as it was before the act.
Ibid.
7. When the report of a referee was filed and returned at the
November Term, 1891, of Court, and at the May Term, 1892, the
Court refused to recommit upon motion and exception made at
that term: Held, such ruling was not reviewable in the Supreme
Court. Johnson v. Loftin, 319.
8. The writ of certiorari will be granted directing the trial Judge to
amend a case on appeal settled by him, when the affidavit upon
which the application is based, shows merits and negatives laches.
Broadwell v. Ray, 457.
9. Appeal does not lie from a refusal to dismiss an action, nor from
an order adjudging that defendants have been duly served with
process, and are properly before the Court. Luttrell v. Mar-
tin, 528.
10. If the affidavit for an appeal in forma pauperis fails to allege
that it is taken in good faith, the appeal will be dismissed. State
v. Shoulders, 637.
11. This Court will not consider objections to the Judge's charge unless
upon exception properly made and set out in the case on appeal.
State v. McKinney, 683.
12. When, pending an appeal of a prisoner who has been convicted of
a capital felony, he makes his escape, the Supreme Court has
power in its discretion to dismiss the appeal, or hear or continue
it State v. Anderson, 689.
13. When there is no case on appeal, and no error on the face of the
record in a criminal proceeding, the judgment will be affirmed.
State v. Carpenter, 706.
14. A general exception or "broad-side challenge" to the charge of
the Court is ineffectual. Stute v. Frizell, 722.
15. As a matter of practice the Supreme Court will not hereafter send
down a certiorari to supply defects in the record unless sufficient
excuse therefor is made to appear, but will, on motion of the
Attorney General or adverse party, dismiss the appeal. Ibid.
Upon motion to correct judgment. 269.
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