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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