against it is by motion in the cause, whether the action has been ended or is still pending. Such motion may be made at any time within a reasonable period. Carter v. Rountree, 109 N. C., 29.

Page 343. Erroneous judgment.-An erroneous judgment is one entered contrary to law; it cannot be attacked collaterally, and remains in force until reversed or modified. Carter v. Rountree, 109 N. C., 29. Not a final judgment.-An order of sale in partition In re Dickerson, 111 N. C., 108.

-Page 343.

is not a final decree.

--Page 343. After judgment.-An action is not ended by the rendition of a judgment; it remains open for all motions and proceedings for its enforcement, including proceedings supplementary to execution. Turner v. Holden, 109 N. C., 182.

Sec. 385, page 345. Judgment by default final.—The object of the verification is, that if the defendant does not deny the allegations, the cause shall stand as if the jury had been impaneled, and the allegations put in proof without denial, the purpose being to avoid the delay of trial upon uncontroverted points. Griffin v. Light Co., 111 N. C., 434.

When a debt is established by admissions in the answer, if the matter pleaded in avoidance is not established affirmatively by evidence, the plaintiff is entitled to recover on the pleadings without submitting issues to the jury. McQueen v. Bank, 111 N. C., 509.

-Page 345. At what term default judgment taken.-The term of Court at which a complaint is filed before the third day thereof is practically the return term, and if defendant does not answer, judgment by default final may be taken at such term in cases falling within the provisions of this section, and by default and inquiry in other cases. Brown v. Rhinehart, 112 N. C., 772.

Sec. 386, page 347. Practice on unverified complaint.—It is irregular and not according to the course of practice to submit a case to a jury on an unverified complaint at return term, without judgment by default and inquiry, and to enter final judgment on the verdict. Brown v. Rhinehart, 112 N. C., 772.

-Page 347. If material amendment unverified.-A material amendment, unverified, to a verified complaint, renders it necessary to treat the complaint as unverified. Brown v. Rhinehart, 112 N. C., 772.

-Page 347. When inquiry executed. An inquiry as to damages cannot be executed at the same term as that at which judgment by default is rendered, unless it is expressly allowed by statute. Brown v. Rhinehart, 112 N. C., 772.

— Page 347. In claim and delivery.-Where property, the subject of a chattel mortgage, has been replevied in claim and delivery proceedings, and has been wasted, its value, unless admitted to be equal to the amount due under the mortgage, is the subject of inquiry before the jury. Kiger v. Harmon, 113 N. C., 406.

Sec. 387, page 348.-Irregularities cured.-The fact that an infant was not personally served with a summons, in a proceeding to sell land to make assets, but service thereof was made upon his mother, is not such an irregularity as will authorize the vacation of the order for sale and its confirmation, where it appeared that the infant was represented by a guardian ad litem. The irregularity was cured by the statute. Carter v. Rountree, 109 N. C., 29.

Where infant defendants are served with summons in proceedings for the partition of land, and a guardian ad litem is appointed, a judgment affirming a sale cannot, in a collateral proceeding by the infants, be set aside for fraud. Smith v. Gray, 116 N. C.

Sec. 393 (1), page 353. Must be raised by pleadings.-Where the pleadings do not distinctly and unequivocally raise an issue, it should not be submitted. Sprague v. Bond, 113 N. C., 552.

-Page 353. Proper issues. In a proceeding for the sale of decedent's land for assets to pay debts, it was error to refuse to submit an issue raised by the answer as to the sufficiency of the personal property to pay the debts. Stainback v. Harris, 115 N. C., 100.

Sec. 393 (2), page 354. Proper issues.-In an action on a note, the answer averred that if the note was received at all by plaintiff, it was "received coupled with and subject to all the equities" between defendant and the payee, and set up a counter-claim on account of defective title to the land for which the note was given, and the amended complaint denied the averment as to the defective title of the land: Held, that issues were raised by the pleadings which ought to have been submitted to the jury. Wiggins v. Kirkpatrick, 114 N. C., 299.

Where plaintiff embodied in an amendment to the complaint a reply and an answer to the counter-claim in a pleading, and the defendant filed no other answer, but an issue was raised by the pleadings, it was error to refuse to submit the issue for the consideration of the jury. Wiggins v. Kirkpatrick, 114 N. C., 299.

Sec. 395, page 357. Issue submitted without objection.-Where an issue distinctly raised by the pleadings is submitted to the jury without objection, a motion by plaintiff after verdict for the defendant for judgment on the pleadings cannot be entertained. Lewis v. Foard, 112 N. C., 402.

Page 357. Issue not tendered by counsel. Where an issue involved by the pleadings was not tendered, and the issues submitted were not objected to on the trial, a party in such default cannot complain of the consequences of his own neglect. Maxwell v. McIver, 113 N. C., 288.

—Page 358 Issues may be changed during trial. The trial Court may exercise a discretion in altering or substituting issues, when those so altered or substituted will permit any specific view of the law arising out of the testimony to be presented. Blackwell v. Railroad, 111 N. C., 151; Buffkins v. Eason, 112 N. C., 162.

-Page 358. What issues should not be submitted.-It is not error on the part of the Judge below to refuse to submit an issue offered by a party upon whom the burden rests, where there is no evidence to support it. Vaustory v. Thornton, 112 N. C., 196.

Nor to refuse to submit issues tendered by the plaintiff having no reference to the equities set up by defendant. Allen v. Allen, 114 N. C., 121.

It is not error to refuse to submit an issue when the party asking it has an opportunity to present, under another issue submitted, such views of the law arising out of the evidence as are pertinent in support of his contention. Downs v. High Point. 115 N. C., 182; Hamilton v. Buchanan, 112 N. C., 463.

Nor as to a claim for damages which the plaintiff has expressly abandoned. Ward v. R. R., 112 N. C., 168.

Where an issue was tendered which aimed to ascertain the intent of one party to a contract, rather than what was the agreement between the parties, it was proper to refuse to substitute such issue for one submitted by the Court, framed to ascertain the agreement. Spencer v. Fortescue, 112 N. C., 268.

It was not error in the trial Judge to refuse to submit issues tendered by a party in an action of ejectment, when it appeared to such Judge that every pertinent inquiry could be presented in the three issues ordinarily submitted in such actions. Kimsey v. Munday, 112 N. C., 816.

—Page 358. What issues should be submitted. The test is, did the issues presented afford the parties opportunity to introduce all pertinent evidence and apply it fairly. Black v. Black, 110 N. C., 398.

Where a controversy as to the ownership of land was narrowed down to the single question of the date of delivery of a deed, it was not error for the Judge to submit an issue as to such date instead of the usual one involving the title. Vaughan v. Parker, 112 N. C., 96.

Where the issues submitted by the Court were substantially the same as those offered by a party on the trial, it was not error to refuse to submit the latter. Luttrell v. Martin, 112 N. C., 594.

The form in which issues are submitted is of little consequence if the material facts in controversy, as appear from the pleadings, are clearly presented by them, and provided that they be such that the Court may proceed to judgment, and will allow the parties to present to the jury any material view of the law arising out of the testimony which counsel may request the Court to embody in the instructions to the jury. Paper Company v. Chronicle, 115 N. C., 147; Allen v. Allen, 114 N. C., 121; Fleming v. R. R., 115 N. C., 676.

*

Page 358. Issue in devisavit vel non.-Upon the trial of an issue devisavit vel non, the form of the issue, "Is the paper-writing propounded* and every part thereof the last will and testament of the deceased?" is in accordance with the precedents and proper. Cornelius v. Brawley, 109 N. C., 542.

Sec. 396, page 359. Settled by Judge.-The trial Judge has power in the exercise of a sound discretion to settle the issues for the jury, and such exercise is not reviewable in this Court, unless the record shows that the form of the issues was such as to preclude the complaining party from having presented to the jury some view of the law arising out of the evidence. Redmond v. Mullenax, 113 N. C., 505.

-Page 359. Concise and direct. -Where the issues submitted to the jury are confused and calculated to mislead the jury, a new trial will be directed. Bottoms v. Railroad, 109 N. C., 72; Allen v. Sallinger, 105 N. C., 333.

Issues substantially presenting the disputed facts in controversy, though unnecessarily multiplied, are not the proper subject of excepBlack v. Black, 110 N. C., 398.

tion.

Page 360. Frame of issues largely in discretion of Judge.-The trial Judge may, in his discretion, submit one or more issues arising on the pleadings, subject only to the restriction that sufficient facts be found to enable the Court to proceed to judgment, and that each party may have the opportunity to present any view of the law arising upon the evidence through pertinent instructions. Cotton Mills v. Abernathy, 115 N. C., 402.

Sec. 397, page 361. Written contract. -Where a paper-writing, not ambiguous in its terms, alleged to be a contract between plaintiff and the intestate of defendant, was introduced on a trial, its construction was a question of law for the Court, and evidence as to the declarations of the deceased tending to contradict or explain the same was incompetent and immaterial on either side. Sawyer v. Grandy, 113 N. C., 42.

Where the letters between the parties constitute a written contract, it devolves upon the Court to ascertain the intention of the parties and to declare their rights thereunder. Lindsay v. Insurance Co., 115 N. C., 212.

-Page 361. Not an issue of fact.-Whether a libellous communication is privileged is a question of law (subject to review on appeal), unless the facts are disputed, in which case it is a mixed question of law and fact. Ramsey v. Cheek, 109 N. C., 271.

Sec. 398, page 361. Right of trial by jury.-When, upon any aspect of his case, viewed in the most favorable light for him, the plaintiff is entitled to recover, the issues should be submitted to the jury. Gwaltney v. Timber and Land Co., III N. C., 547.

-Page 362. Economy of time.-Where counsel persisted in repeating questions and asking others entirely foreign to the subject matter of the trial, and needlessly protracted the trial, it was not error in the Judge, after repeatedly cautioning the counsel, to stand the witness aside. McPhail v. Johnson, 115 N. C., 299.

-Page 362. Deducting response to one issue from response to another.— In ascertaining damages for the condemation of land, where the amount of damages and benefits have both been found by the jury, it is immaterial whether the mathematical operation of deducting one from the other is made by the Court or the jury. Miller v. Asheville, 112 N. C., 769.

-Page 363. Objectionable language of counsel. It is not error for the Court to stop counsel in comments which are not warranted by the evidence. Houser v. Beam, 111 N. C., 501.

Nor should counsel be allowed to comment upon any aspect of the evidence not covered by his complaint. Shelton v. Reynolds, III N. C., 525.

The discretion of the Court in permitting comments on witnesses and parties will not be reviewed on appeal unless the remarks were grossly improper and calculated to prejudice the jury. Cawfield v. Railroad, III N. C., 597; Pearson v. Crawford, 116 N. C.

Where objectionable language used by counsel in addressing a jury is not objected to at the time, it cannot be objected to later. Byrd v. Hudson, 113 N. C., 203.

Where the Solicitor, in a reply to a remark by the defendant's counsel that the defendant was a respectable white man, said to the jury that he himself was a colored man, and that if defendant was a colored man the jury would convict him in five minutes on the evidence, the error (if any) in permitting such remark to the jury was cured by a caution by the Court in its charge to the jury not to be influenced by the remarks complained of. State v. Hill, 114 N. C., 780.

It is not improper for counsel, in rehearsing the testimony to the jury, to use the stenographic notes when they are read as aids to his memory and are according to his recollection. Gwaltney v. Timber Company, 115 N. C., 580.

-Page 365. Another term held while jury are deliberating.—The fact that while the jury were considering their verdict in a case, the trial of

which was begun on Wednesday of the last week of a special term, the Judge opened and conducted the regular term of Court at the same place, continuing the special term to receive the verdict of the jury, did not prejudice the rights of the parties. Bank v. Gilmer, 116 N. C.

Sec. 400, page 366. Term of Court.-Section 22 of Article 4 of the Constitution, requiring the Courts to be always open, must be construed in connection with Section 11 of the same article, and does not apply to the terms of Courts and matters connected therewith. Delafield v. Construction Co., 115 N. C., 21.

Sec. 403, page 368. After the Judge leaves the bench.-There can be no session of a Court without a Judge; hence, when the Judge leaves the bench for the term, although no notice is given of the final adjournment, or it is ordered to expire by limitation, the term ends and the Judge cannot hear any matters out of the courthouse, except by consent, unless it is "chambers" business. Delafield v. Construction Co., 115 N. C., 21; Foley v. Blank, 92 N. C., 476; Branch v. Walker, 92 N. C., 87.

Sec. 404, page 369. Disqualification of regular juror.-To disqualify a juror of the regular panel for non-payment of taxes, it must appear that there was failure to pay the taxes for the fiscal year preceding the annual revision of the jury list, at which such juror was drawn. State v. Davis, 109 N. C., 780.

Sec. 405, page 371. Disqualification of tales juror.-A tales juror must have the same qualification as a regular juror, with the additional one of being a freeholder. State v. Sherman, 115 N. C., 773.

-Page 371. Regular and tales jurors.-Under section 1722 of The Code, as amended by chapter 559, acts of 1889, the County Commissioners were required on the first Monday in September, 1892, and every four years thereafter, to put on the jury list such persons only as had paid their taxes for the preceding year; hence, a tales juror called on a trial in April, 1894, was not disqualified because he had not paid his taxes for the year 1893. State v. Sherman, 115 N. C., 773.

-Page 372. Special venire. The practice of drawing the venire from the box is commended. State v. Brogden, 111 N. C., 656; State v. Whitson, III N. C., 695.

It is in the discretion of the trial Judge to order a special venire in capital cases and determine its number, which he may likewise change by another order. State v. Brogden, 111 N. C., 656.

Sec. 406, page 372. Not ground of challenge.-Objection that a juror is on the prosecution bond of another plaintiff in another action, though against the same defendant on a similar cause of action, is properly overruled. Jenkins v. Railroad, 110 N. C., 438.

Page 372. Challenge permitted by Court.-The Court, in its discretion, may permit a juror to be challenged after he has been passed to the opposite party. State v. Green, 95 N. C., 611; State v. Adair, 66 N. C., 298; State v. Jones, 80 N. C., 415; State v. Boon, 80 N. C., 461; State v. Vestal, 82 N. C., 563; State v. Vann, 82 N. C., 631; State v. Cuningham, 72 N. C., 469; State v. Fuller, 114 N. C., 904.

-Page 372. Excusing juror.-The trial Judge has authority, in the exercise of a sound discretion, to excuse a juror at his own request, as a favor to him, and before he has been accepted as one of the panel. State v. Barber, 113 N. C., 711.