22. Where a mortgage is made of personal property for the purpose of ob- taining supplies to make a crop with, which mortgaged property is claimed by a third party, it is competent evidence to show by the mortgagor any matters necessary to a full understanding of the case. Ibid.
23. Where the property is described in a mortgage as one horse," and the mortgagor only has one horse, the description sufficiently points out the property conveyed, and parol evidence is admissible to identify it, but if he has more than one horse, then it is a patent ambiguity, and nothing passes. Ibid.
24. Whenever it becomes necessary to identify the property conveyed in a mortgage from property of a similar kind, or to show what was in- tended to be conveyed, parol evidence is admissible. Harris v. Wood- ard, 232.
25. In an action to recover damages for a libel, it is competent for the de- fendant to introduce evidence in mitigation of damages, to show the provocation which induced him to publish the libel, but this provoca- tion must originate in the same subject-matter out of which the libel arose, or be closely connected with it. Knott v. Burwell, 272.
26. In actions for defamation under the former system of pleading, evidence offered to sustain a plea of the general issue could not be considered in mitigation of damages, but this has been changed by The Code, $266. Ibid.
27. Malice is presumed from the utterance of false defamatory words, and proof of it, other than proof of the utterance of the false and defama- tory words, is not necessary, and hence it is always proper to allow the defendant to prove an absence of malice in order to mitigate the damages. Ibid.
28. So where the plaintiff had charged the defendant with using false weights in his business, and upon hearing of the charge the defendant sent to the plaintiff and asked him to correct the charge, which the plaintiff promised to do, admitting at the time that the charge was false, but he afterwards refused to retract it, upon which refusal the defendant published the libel sued on; It was held, that these facts were admissible in evidence in mitigation of damages. Ibid.
29. Evidence that there are private ways near to the proposed location of the public road asked for, is competent both before the County Com- missioners and the jury on an appeal to the Superior Court, to show that the proposed road is not necessary, because the private ways ful- filled all the public needs. King v. Blackwell, 322.
30. In an action to attack a deed in trust to secure creditors for fraud, evi- dence of the amount of the trust property received by the trustee is immaterial and incompetent. Hodges v. Lassiter, 351.
31. What constitutes fraud, is a question of law; what is sufficient evidence of the facts required to establish it, is for the jury; and so if the fraud appears on the face of the instrument, it will be declared by the Court without the aid of the jury; but when dependent upon matters dehors the deed, it must be found by the jury. Ibid.
32. Where in an action to attack a deed for fraud, prima facie evidence is given of the bona fides of the debt, the burden of proof is on the party attacking the deed to show the fraud, and evidence of such debts may be gathered from the plaintiff's own evidence. Ibid.
33. Before the acts and declarations of an alleged agent made and done in the absence of the defendant, the alleged principal, can be received in evidence, the trial Judge must find as a fact that prima facie evi- dence of the agency has been offered, and his ruling upon this ques- tion of fact is beyond the reviewing power of the appellate Court. Smith v. Kron, 392.
34. The continuous use of a road as of right, for the prescribed time, is evi- dence of the acquirement of the easement, and in the absence of other evidence it is conclusive. Willey v. R. R. Co., 408.
35. Interruptions of the use of an easement when brought to the knowledge of the claimant, rebut the presumption of a grant, unless such inter- ruptions are promptly contested by the claimant and the easement re- asserted. Ibid.
36. Interruptions of the use after the lapse of the time which raises the presumption of a grant of the easement, furnish evidence of, but do not constitute of themselves an abandonment.
37. Before the records and books of a corporation can be received in evi- dence for any purpose it must be admitted or proved that the entries were made by an authorized servant or agent of the corporation. Glenn v. Orr, 413.
38. The records and books of a corporation are at the least prima facie evi- dence of the organization and existence of the corporation. Ibid.
39. Where the stock book of a corporation contained a list of the stock- holders, the number of shares of stock owned by each, the sum of money paid by each, and the balance due, such book is evidence against a stockholder in an action to recover the unpaid balance of his subscription, to show that he was a stockholder, and the condition of his stock account, but such evidence may be rebutted. Ibid.
40. The burden of proof is on the plaintiff to show that a co-employee of a common master is a superior and not a fellow-servant, unless the na- ture of the employment shows the extent of the co-employee's powers. Patton v. R. R. Co., 455.
41. Where evidence offered by the plaintiff bearing only on one issue is ad- mitted after objection by the defendant it cannot be assigned as error if the verdict on that issue is in favor of the defendants, although the judgment on the entire verdict is against him. Graves v. Trueblood, 495.
42. It is not erroneous for the trial Judge to reject evidence when there is no issue to which it is applicable. Ibid.
43. In an action to reform a deed the evidence of the party asking the re- formation, as to the object of purchasing the land, the directions given to the draughtsman, &c., is not sufficient to warrant a verdict upon which the Court would decree a reformation of the deed. Ibid. 44. A description of land in a deed, describing it as all the interest, right title and claim the grantors may have in the estate of the deceased father of one of them, more particularly one undivided seventh share which descended to the grantor from her father, is sufficient to admit of parol evidence to fit the description to the thing. Robbins v. Har- ris, 557.
The compensation to which an attorney will be entitled for his services as counsel in collecting a note, executed before 1868, does not give him such an interest in the note as to render him an incompetent witness under $580 of The Code. Grant v. Hughes, 177.
I. To exclude the testimony of a party to an action upon the ground that it related to a transaction between the witness and a deceased person, it must appear that the knowledge of the witness was derived from a personal transaction with the deceased person. Thompson v. Onley, 9. 2. Evidence is only rendered incompetent by $590 of The Code when it relates to a transaction or communication between the witness and a deceased person of the class mentioned in this section, in regard to some title or interest derived from, through, or under such deceased person. Loftin v. Loftin, 94.
3. In an action to have the holder of the legal title declared a trustee for the plaintiff, she was allowed to testify that her father, then dead, gave her the money to purchase the land in controversy when none of the parties to the action claimed any interest under the father. Ibid. 4. Where a note was given to an attorney for collection who agreed to re- ceive one half of the amount collected for his services, but he returned the note to the executor of his client without collecting anything; It was held, that the attorney had never had any interest or property in the note and was a competent witness. White v. Beaman, 122.
5. The fact of payment to a deceased person for land purchased of him can be proved when neither the witness nor the estate of the deceased vendor are interested in the result of the action. Cade v. Davis, 139.
1. The insertion in a deed of trust of a provision that the trustee shall em- ploy the assignor at a fixed salary to help dispose of the property con- veyed, does not render the deed void upon its face, but furnishes evi- dence of a fraudulent intent, proper to be submitted to the jury. Frank v. Robinson, 28.
2. In an action to attack a deed in trust to secure creditors for fraud, evi- dence of the amount of the trust property received by the trustee is immaterial and incompetent. Hodges v. Lassiter, 351.
3. What constitutes fraud is a question of law; what is sufficient evidence of the facts required to establish it, is for the jury; and so if the fraud appears on the face of the instrument, it will be declared by the Court without the aid of the jury; but when dependent upon matters dehors the deed, it must be found by the jury. Ibid.
4. Where in an action to attack a deed for fraud, prima facie evidence is given of the bona fides of the debt, the burden of proof is on the party attacking the deed to show the fraud, and evidence of such debts may be gathered from the plaintiff's own evidence. Ibid.
I. While a creditor can issue execution and sell property disposed of in fraud of creditors, this does not prevent a Court of equity from restrain- ing the fraudulent donee until the question of fraud can be tried, so that the property can be sold free from any cloud, and under the Code practice all this may be done in one action. Frank v. Robinson, 28.
2. A bond to stay execution, which provides that the obligors will be re- sponsible for any damages which may arise on account of the acts of the appellant in committing waste, &c., is not a supersedeas bond within the meaning of The Code, $435, 554; which contemplate a bond upon which summary judgment may be rendered in the Supreme Court upon the affirmation of the judgment of the Court below. Alder- man v. Rivenbark, 134.
3. Where the undertaking on appeal for the costs and the undertaking to stay execution are in one instrument, the appellee, upon filing the proper proofs of the insolvency of the surety, is entitled to have the appeal dismissed, as prescribed by The Code, $554, but where the two undertakings are separate and distinct, the appellant has a right to have his appeal heard, although the surety to the undertaking to stay execution is insolvent. Ibid.
4. An execution is not a lien on the personal property of the judgment debtor as against bona fide purchasers from its teste, but only from the levy. Weisenfield v. McLean, 248.
5. The lien of an attachment takes effect from its levy, and so, where in an action to compel a corporation to transfer certain stocks on its books, which the plaintiff had purchased at execution sale after it had been attached to answer the judgment, and the defendant answered that said stock had been transferred by the judgment debtor before the rendition of the judgment, but did not aver that such transfer was before the levy of the attachment; It was held, that the answer did not raise an issue, or set up a substantial defence. Morehead v. The R. R. Co., 362.
1. The Court will always give such interpretation to the words of a deed as will effectuate its purpose if the words in any reasonable view will admit of it. Hicks v. Bullock, 164.
2. Where the words of inheritance only appear in one part of the deed, but the entire language is inartificial and badly expressed, but it ap- pears from the entire instrument that it was the intention of the par- ties to pass the fee, the Court will construe the deed so as to pass the fee. Ibid.
1. The burden of proof is on the plaintiff to show that a co-employee of a common master is a superior and not a fellow-servant, unless the na- ture of the employment shows the extent of the co-employee's powers. Patton v. R. R. Co., 455.
2. Where the common master invests one of his employees with the power to hire, discharge, command and direct the other employees, the mas- ter is liable for his acts, and he is not a fellow-servant, although he works as any other servant and there is nothing in the nature of the employment to show an authority to charge the common master. Ibid. 3. So, while there may be nothing in the nature of the employment of a section master on a railroad to charge the master with responsibility for his acts towards his co-laborers, yet if the master gives him au- thority to command, discharge and employ the laborers, the common master is liable for his misfeasance towards his fellow-laborers in the exercise of the authority so conferred. Ibid.
FINDING OF FACT BY JUDGE:
Where the case is left by consent to be tried both as to the facts and the law by the Judge, and he fails to find some material fact, it will be remanded in order that such fact may be found. Knott v. Taylor, 553.
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