The news & observer., 1905-12-14

IueSday not already reported.)
Nj. Millhiser and Co. Appellants. vs.
II. l.. Leatherwood, from Swain
Error
Action to recover SCAT alleged to
have been collected by defendant on
q claim held by him as attorney fol
the plaintiffs and which. on demand
he has failed to pay over The evil
dence tends to show that plaintiffs
had sold to Marr & Co. goods
TO the value of $1,000, on which there
was balance due at the time claim
was placed in defendants hands of
$3.50. Marr & Co. had advanced
money to saw mill men. Coffin & Nc
Donald. to pay their hands. The
latter had contracted with one w. w.
Ladd to saw logs for them. The
defendant represented Ladd as at
torney Coffin & Mcdonald failed to
pay the money advanced by Mari d
Co., and the latter, having taken as
signmentS of labor liens, filed liens
upon lumber belonging to Ladd and
posted thereon notices of sale. At
forwards il was agreed between one
Conley, representing Mari &, Co, and
the defendant Leatherwood, acting as
ATTORNEY. both fer I4add and the
plaintiffs. that if Conley would re-
lease tho liens on the lumber the de-
fendant would assume the payment
OF tho debt due by Mari & Co. to the
plaintiffs out of moneys which his
client .Ladd had placed in bank 10
his credit to secure the payment OF
tho liens, which was done. The de-
fendant never gave Marr & Company
Il receipt for the claim, as checks
drawn by him upon the bank were
returned protested, it appearing IN
this connection that the bank had
been wired to place $1,000 to de-
fcndant's credit, but that, before this
had been done. the order had been
countermanded by second telegram
At the close of plaintiffs testimony
the defendant moved for judgment OF
non-suit which was refused ana, at
the conclusion OF all the testimony
renewed the motion, which was then
sustained and plaintiffs excepted and
appealed
Held: 1. On a motion to non-suit
or dismiss under the statute, Whlch is
equivalent to a demurrer to the evil
dcnce tho court is not permitted 70
pass on the weight of the evidence.
but must accept and construe it in the
light most favorable to the rlaintih.
taking every fact which it tends to
prove AS established.
g Upon the facts outlined in the
statement cf the case, thtfe was
evidence for the jury upon the issues
raised by the pleadings upon the
theory of payment of the debt Oh
Maris {. Co. through the agreemen,
&c their a~nn. with tho dcfendali
Leatherwood. contingent upon the
question of fact rs to whether or not
the money bad been placed to the
latter's credit in bank, though no
opinion as to the defendants liability
is intimated in the absence of flnd-
ing upon the facts by the jury.
(Millhiser VS.. Mari 12S n. c. SIS ana
100 n. G., 500
W. y Fircannon ct al, appellants VS..
Edward Srddrcti'> CT al, from
Burke. New Trial.
Action OF ejectment. Pialnt'ils
claimed the locus in QUO under deeds
from their father. Isaac Fincannon.
executed in 1887. 70" the purpose oa
making a division Cf his lands. Ihey
introduced a number of deeds, among
them deeds from one Berry, calling
for "a rock near a small branch, etc.
as being "a corner of the tract or Iana
owned by the heirs of S. A. Suddreth'
deceased, and known as the Johhsoa
tract" There were other deeds 1or
tbn Ferry and Suddreth lands fix nS
the corner at a post oak instead OF
tho crock" And evidence of sur
vevors tending to show that the post
oak had always been considered the
corner of the tract of land called Tor
i'm the Berry deed On refusal OF IN
str,,ction prayed and the intimatlon
of the court the plaintiffs submitted
to a non-suit and appealed
Held: Where tho neS or coTi-
Of an adjoining tract are called for
i'm a.deed or patent. the lines shail
bc extended TO them without regard
to distance provided these lines anu
corners be sufficiently eStabllsncd ahu
thai no other departure be perm tteu
from the words of the patent or deed
than such as necessity entorceS or
true construction renders necessary.
> cal! in Il deed for ain obJec'
as ..bcing a corner of Il tract OF land
ov.ned h, the heirs of S. A. Suddreth.
and known as the Johnson tract ana
rnns west with the line of the Sud
drotl, trac. - to stake in the OLD
Jonathan Duckworth line, VIII con-
troll other calls when contradictory.
9 Testimony of q surveyor that
he surveyed tho land and under.
stood the rock % be the corner OF
s A. Suddrcth's land am, hughes
srant-also known as Johnson tract
bo found marks. but did not mark the
line" is not evidence sufhcleht 10 eS-
tablish such a survey and marking ~
concentration of the deed as tc
Justify the application OF tne rul
that in such case the party c'alu'slls
under the conveyance shall hoio ac'
cordingly, notw thstanding nus
taken description of the lana III sucn
deed or patent.
L. In the refusal of the court 70
give an instruction setting Ioftu
the description and continuing tndt
''if the jury can find and fix the line
of the tract so called for, and IL 1t
was marked or defined at the time
the plaintiffs deed would be controli-
cd bv. tho call for the Suddreth or
Johnson tract, and would go to and
run with it to the old Jonathan
Duckworth line. if the Jo2athat
Duckwor;h line can be located. anS
this, would fix the boundary of the
nJaintiff's land,'' there was crrcr
w w Frazier. Appellant. vs.. Frankii;'
G;bScn CT al. from Swain. Affirmed
Action disposed of upon demurre.
orc tcpus to the complaint settne
forth facts as follows: On Decem
her II, 1879. defendant j. d. S. Nc
Mahan entered $40 acres OF land