Page images


him to the cashier of the corporation to be applied on his account, which it held as assignee and trustee of the joint stock company, stipulating however that it should not be deemed an admission that he owed that company anything. It turns out in fact that he owed the joint stock company nothing, and therefore the corporation having received and used for its own purposes the $2,039.17, owes that amount for "money had and received." This amount we think is a liability of the corporation, but there is nothing to give it a preference over any other indebtedness of the corporation for money, labor or other cause. The $2,039.17 was not received as a special deposit. It was not put aside and segregated to be kept intact and returned in the identical package. It was simply money to be applied to his account, but the payment of which was to be taken as an acknowledgment of the corcorrectness of the account claimed against him, and the corporation used it.

As we have seen, there was no judgment in the action of Dunn, receiver v. A. S. Johnson declaring this debt a preferred claim, and there could be none. The $2,39.17 will be paid pro rata among the ordinary debts of the corporation, without preference. By virtue of the agreement on record, the judgment bears no interest as against the corporation, the fund being in custodia legis.

The judgment will be corrected to conform to this opinion. Error.



(Filed March 17, 1903.)


The same number of copies of a plat referred to in the pleadings and evidence should be filed on appeal as is required to be filed of the printed record and brief.

ACTION by W. M. and W. B. Stephens against H. J. McDonald, heard by Judge O. H. Allen and a jury, at April (Special) Term, 1902, of the Superior Court of HARNETT County. From a judgment of non-suit, the plaintiff appealed.

Stewart & Godwin, for the plaintiffs.

No counsel for the defendant.

CLARK, C. J. This is an action of ejectment for two tracts of land, one of 17 acres and one of 50 acres. At the close of the plaintiff's testimony the defendant moved to "non-suit the plaintiffs under the statute" because they had failed to make out a case, the motion was allowed and the plaintiffs appealed. The surveyor, witness for the plaintiffs testified "it is not possible to locate the 17 acre tract" and without going over the testimony in detail, it is sufficient to say that his Honor's conclusion was clearly correct as to both tracts.

It is proper to note that, though a plat is referred to in the pleadings and evidence and is necessary to the understanding of the appeal, only two copies are sent up with the record. While the court does not require that maps, plats and similar exhibits should be printed, the same number of copies (15) thereof should be filed as is required to be filed of the printed record and briefs. In Smith v. Fite, 98 N. C., 517, the court said that when a plat is used and referred to in the trial below, it is the duty of the appellant to have it sent up in the case, and in Whichard v. Railroad, 117 N. C.,

MURRAY v. Barden.

614, the court said that it "gave notice of a rule" that whenever a survey and plat are necessary for the proper understanding of an appeal (in that case an action for the diversion of water) unless a survey is made and "15 maps of the locality are sent up as exhibits" in the case "the judgment of the court below will be affirmed or the appeal dismissed." There are very few actions of ejectment in which a plat is not indispensable for a clear comprehension of the points involved.

The judgment of non-suit is


(Filed March 17, 1903.)

1. LIMITATIONS OF ACTIONS-Plea-Sufficiency-Pleadings.

It is not sufficient merely to allege that an action is barred by the statute of limitations without stating the facts from which it could be deduced.

2. EXECUTORS AND ADMINISTRATORS-Trusts and Trustees-Guardian and Ward-Fraud.

An executor may purchase claims against his testator for monies received by his testator as guardian or agent, if no money received by the testator as such guardian or agent has come into his hands as executor and there is no fraud or concealment on his part.

3. EXECUTORS AND ADMINISTRATORS-Husband and Wife-Separate Property of Wife.

A husband may receive and receipt for money due his deceased wife, as her administrator, and such receipt is prima facie evidence that he was such administrator.

4. APPEALS-Record-Transcript-References.

An alleged order of reference not contained in the record on appeal will not be considered in support of the judgment rendered in court below.

ACTION by D. H. Murray and others against J. J. Barden, executor of will of John Barden, heard by Judge E. W. Tim

MURRAY v. Barden.

berlake, at May Term, 1902, of the Superior Court of SAMPSON County.

TEUTUIM. The plaintiffs, the children and grand-children of the testator of the defendant, brought this action to recover an amount alleged to be due to them by the testator. The allegation is that the defendant's testator in 1872 received, as guardian of a part of the plaintiffs and as agent of the others, a large amount of money bequeathed to them by the will of James Vann. An order of reference was made in the case, and under that order a hearing was had and a report made by the referee, F. R. Cooper, as follows: "From the pleadings, admissions and evidence in the case I find the following facts:

1. That by the will of James Vann (Will Book No. 2, 108, of records of Sampson County) one third of the residue of his estate was devised to the children of John Barden, thirteen in number. That on February 6th, 1872, John Barden collected the shares of all his children except Mrs. H. Cornelia Carleton. That her share was collected by her husband H. J. Carleton, by his attorney M. C. Richardson, under a power of attorney and was paid to her on January 31st, 1871, and that the amount paid to her as the net proceeds of such collection was $127.58, and that this was the amount due her after deducting cost of collection and attorney fees on the date of the settlement of the estate of James Vann by his executor, which was on March 2d, 1870. That the shares of the other twelve children was collected by John Barden on February 6th, 1872, and the amount then collected for each one of the twelve was one-thirteenth of one-third of $6,510.31, which amounts to $166.93. But from this there should be deducted the cost of collection and attorney fees, and I therefore, find that on February 6th, 1872, John Barden collected for each of his thirteen children except Mrs. H. Cornelia Carlton, the sum of one hundred and fifty dollars.


This finding gives to each one of the twelve more than twenty dollars more than was received by Mrs. H. Cornelia Carleton, and is fixed upon by the Referee being fair to all parties.

2. That on March 12th, 1870, John Barden qualified as guardian of five of his said children, to-wit: Virginia F. Barden, Rebecca N. Barden, Victoria Barden, Minnie D. Barden and J. J. Barden, and as such guardian collected their shares as aforesaid.

3. That under a power of attorney he collected the shares of five other of his children, to-wit: Mary C. Murray, Nancy J. Winders, Sarah C. Page, Ellen V. Carroll, Martha M. Carroll.

4. That in some way not clear to the Referee, he collected the shares of Charlotte W. (Puss) Smith and Ida C. Chesnutt. There remains the question as to which, if any, are barred by lapse of time and which, if any, have been settled with legally in whole or in part.


Nancy Jane Winders first married Horace Winders, who died, and then about 1867 she married W. H. Winders, and is still a married woman. Her share was collected under

the power of attorney.

6. Mary C. married D. H. Murray before 1867, and her husband is still living. Her share was collected under power of attorney.

7. Caroline married Daniel Page before 1867, 20 or 25 years ago, and died leaving her husband and two children, Walter and Oscar Page. Her share was collected under the power of attorney.


Ellen married Jas. L. Carroll before 1867.

9. Martha married Amnie Carroll before 1867.

10. Virginia F. married R. C. Orrell about 1870, and her husband is still living.

11. Rebecca M. married Abbie Page about 1875, and died before August 25, 1897, leaving five minor children.

« PreviousContinue »