BELLAMY V. PIPPIN.

JOSEPH C. BELLAMY v. JOSEPH H. PIPPIN.

Upon a motion by the defendant for a new trial in an action for damages, it is not error for the Court to refuse to hear the evidence of a juror, for the purpose of showing that in ascertaining the amount of damages the jury did not consider that some of the property was probably damaged before the cause of action arose, there being no evidence to that effect.

Whether a sale of trees for saw logs carries anything more than the body of the tree, in the absence of a special agreement to the contrary, Quere?

This was a CIVIL ACTION, tried before Seymour, J., at July Term, 1876, of EDGECOMBE Superior Court.

The statement of this case sent up to this court as a part of the record is voluminous, and contains much matter not pertinent to the points decided. All the facts necessary to understand the decision of this court are fully stated in the opinion of Justice READE.

In the court below, there was a verdict in favor of the plaintiff, whereupon the defendant moved for a new trial. The motion was overruled and judgment rendered; from which judgment an appeal was craved and granted.

W. H. Johnson, for the appellant.

Fred. Phillips, contra.

READE, J. The plaintiff owning a timbered tract of land and the defendant owning a saw-mill, it was agreed between them that the defendant should have all the trees on the land suitable for saw logs, at fifty cents a tree, and saw them into lumber.

The defendant cut and sawed a large number of the trees, some of which he did not pay for, and left a considerable number standing, which he declined to take or pay for. The plaintiff had a verdict for the unpaid for cut trees at the price agreed on, and for the standing trees at twenty-cents each.

BELLAMY U. PIPPIN.

The defendant does not complain of any error in the charge of the Judge, upon which this verdict is founded, but does complain that the jury in fixing the price of the standing trees, did not consider that some of them were probably doty. Whether they did or did not, does not appear. But the defendant offered to prove that they did not, by some of the jurors, and his Honor refused to hear the evidence on the motion for a new trial; and of this the defendant complains. We think his Honor was right.

2. The defendant put in a counter claim, that in buying the trees for saw logs he was entitled not only to the body of the trees, but to the laps also, and that he left the laps upon the land; and that the plaintiff took some of them for wood; and that he then forbade the plaintiff to take any more; and that they remain upon the land now; and so he claims not only the value of the laps which the plaintiff took, but the value of those which remain and which he was forbidden to take. The jury allowed his claim for what the plaintiff took, and refused to allow his claim for what remained.

The defendant has no right to complain. He got all that he was entitled to, to say the least. How could he be entitled to recover for what the plaintiff did not take, and which he was forbidden to take. But besides that, it is at least questionable whether a sale of trees for saw logs carries anything more than the body of the tree. It is stated in the case that there was no agreement about the laps. But let it be that the laps were the defendant's, still he has nothing to complain of, because he has been allowed for what the plaintiff took, and what remains are the defendant's still. If the plaintiff shall take them, or refuse to let the defendant take them, as it is stated he has done, since the commencement of this action, then the defendant may bring his action and try his title if he thinks proper to risk it.

There is no error.
PER CURIAM.

Judgment affirmed.

MERCER V. WIGGINS, Adm'r.

JOHN R. MERCER v. JAMES WIGGINS, Adm'r.

Evidence, that the witness, from two notes he held in his hand, which were written and tested by hims If, had an indistinct recollection that at the time the notes ere given, he, the witness, wrote a deed, alleged to be lost, from the defendant's intestate to the plaintiff for a tract of land, and the notes were the consideration therefor; that the deed contained the usual cl use of warranty or covenant of quiet enjoyment, the witness being of opinion that if any special instructions had been given, or if the deed had varied from an ordinary deed, or had there arisen any question as to the title, he would have recollected it; that said intestate was a prudent man in his business transactions, and would not have executed a paper that he did not understand; that from a conversation with the plaintiff, he saw said intestate several years after the execution of the deed, and asked him if he had any idea what had become of the same, and the witness thinks the intestate said he knew nothing about it after the execution and de ivery, is competent to be considered by a referee, as tending to prove the existence of a deed fro.n the defendant's intestate to the plaintiff, and also its coven ints and its loss.

A payment in Confederate money, tendered and accepted by the parties as a payment, amounts to a discharge of the debt.

This was a CIVIL ACTION to recover damages for a breach of warranty contained in a deed, tried before Moore, J., at August Term, 1875, of EDGECOMBE Superior Court.

The case was referred, by consent, at Fall Term, 1874, and at Spring Term, 1875, the report of the referee was filed, and the defendant filed the following exceptions thereto:

1. That the evidence as to the existence of a clause of warranty in the alleged lost deed, is too vague and indefinite to warrant the finding of such fact by the referee;

2. That if he is mistaken, he insists that the measure of damages ought to be the value of the payments made by plaintiff, of which, according to the evidence, $811.03 was on the 13th of July, 1862, and $500.00 on November 1st, 1862,

MERCER г. WIGGINS, Adm'r.

which should have been reduced according to the scale of depreciation of Confederate money as of those dates.

His Honor overruled the exceptions and sustained the report of the referee.

The following is the evidence upon which the finding of his Honor, and also of the referee, is based:

George Howard testified, substantially, as follows: "From the notes which I hold in my hand, being notes given by John R. Mercer to James G. Armstrong, dated June 7th, 1859, one for $1,000.00, and one for $500.00, the same being in my hand-writing and tested by me, I am certain that they were given at the time, and in the town of Wilson; and I have an indistinct recollection that at the time said notes were given, I wrote a deed from J. G. Armstrong to John R. Mercer for a tract of land for which they were the consideration. My only recollection of the tract of land is that it was somewhere in said Mercer's neighborhood, and the deed contained the usual clause of warranty, which has been construed to be a covenant of quiet enjoyment. I have no recollection of any special instructions in the case, and do not think any were given. I have no recollection of what became of the deed afterwards, executed by Dr. Armstrong. From a conversation of Dr. John R. Mercer, I saw J. G. Armstrong several years after the execution of the deed, and asked him if he had any idea what had become of it. I think he said he knew nothing about it after its execution and delivery. Dr. J. G. Armstrong was a quiet man, and I considered him prudent in his transactions, and he would not have executed a paper he did not understand. I think if any special instructions had been given me, or it had varied from an ordinary deed, or any question had been raised as to title, I would have recollected it.

It was admitted that the land was devised to J. G. Armstrong and others in fee simple, determinable on each dying without heirs, and that Armstrong and his co-devisees had partition in the land, and that the plaintiff bought the portion al

MERCER v. WIGGI 8, Adm'r.

lotted to Armstrong. It was also admitted that the notes, spoken of by George Howard, were given for the purchase of the land, and that the sum was a fair price for the same at the time, and that the tract contained one hundred and ninetysix acres. The land adjoined Dr. Mercer's land, and the deed

was written by said Howard.

J. G. Armstrong died in February, 1873, without issue. The sum of $300 was paid on the $1,000 due February 28th, 1860, before the commencement of this suit. Suit was brought and judgment obtained upon the notes severally at August Term, 1861. An alias issued in each case returnable to November Term, 1862.

On the latter execution, the plaintiff paid in July, 1862, $811.03 in full satisfaction on the larger judgment, and on August 12th, 1882, he paid on the execution on the $500 debt, the amount with interest from the 1st day of January, 1860. These last two judgments were paid in Confederate money. The defendants excepted to the finding of his Honor, to this effect:

1. There was no evidence of any covenant of warranty in the deed alleged to have been lost.

2. The judgment paid by the plaintiff were subject to the tegislative scale.

There was judgment for the plaintiff, whereupon the defendant appealed.

Fred Phillips, for the appellant.

Perry, contra.

SETTLE, J. By consent of parties, this case was referred to W. H. Johnston, to find and report the facts, and declare the law arising thereon. His report, both as to facts and law, was adopted and confirmed by his Honor, from which judgment the defendant appeals, alleging :

1. That the evidence as to the existence of a clause of war