BRAY v. LUMBER CO. knots, unsound knots, red heart badly stained, or other defects making them unmerchantable by the inspection laws of the North Carolina Pine Association, to be treated as culls, except when decayed (rotten) to the extent of rendering them unfit for use. No allowance will be made for lumber thus rejected." The inspection rules of the North Carolina Pine Association, according to the contract between the parties, furnished a description and meaning of the word used in the lumber business-"culls;" and yet it appears on the trial that P. M. Bray, a witness for the plaintiff, was allowed to state, over the objection of the defendant, what class of lumber was embraced in the word "culls," although he admitted that he did not know the rules of the North Carolina Pine Association. It nowhere appears in the case on appeal that the rules of the Association were introduced in evidence. The testimony of Bray on the matter of what were "culls" ought not to have been received. We are clear on this point; but at the same time the case on appeal presents some confusion of statements. For instance, the witness Bray said: "I do not know the rules of the North Carolina Pine Association." But he went on to say in that immediate connection: "Logs will pass as merchantable under these rules that will not plane out; must be badly stained. There is nothing in the rules about stained or culls. A number one board, stained, reduces the grade, but does not make it a 'cull' unless badly stained." The witness by his testimony unequivocally stated that he did not know the inspection rules of the North Carolina Pine Association, and yet he speaks of their contents. The confusion is increased when we turn to the instruction of his Honor to the jury on that question, where he said: "In measuring and inspecting this lumber, the rule of the North Carolina Pine Association was to obtain, whatever that rule HARRIS v. DAVENPORT. called for was to control them and is to control you. Whatever that rule put in the class of culls must go there, whether of knots or stains, or other defects. If applying the North Carolina Pine Association rules puts more of the timber as culls than the plaintiff expected, then the rule must still be enforced," etc. The case as made up seems to treat the inspection rules of the North Carolina Pine Association as the standard of the measurement of lumber, and yet the rules, as we have said, were not introduced as evidence; and the witness Bray, though allowed to testify about the standard of measurement contained in the rules stated that he did not know what the rules were. On the point, however, that we have discussed we are clear that the testimony of Bray was inadmissible as the case is presented to us. Error. HARRIS v. DAVENPORT. (Filed May 26, 1903.) 1. LIMITATIONS OF ACTIONS-Non-Suit-Dismissal-The Code, Sec. 166. A dismissal of an action for the want of jurisdiction of the parties is similar to a non-suit and another action may be commenced within one year thereafter. 2. LIMITATIONS OF ACTIONS-Executors and Administrators-Debt of Decedents-Filing of Claim-The Code, Sec. 164. The commencement of an action by an administrator for the sale of the lands for assets with which to pay a debt to himself is a sufficient filing and admitting of the claim so as to prevent the running of the statute of limitation. 3. LIS PENDENS-Notice. A petition to sell land for assets amounts to notice to a purchaser under a proceeding by heirs for sale for partition. 4. COSTS Appeal-Record-Case on Appeal. When an appellee directs a clerk to send up certain evidence, not in cluded in the case on appeal, and not necessary for the determination of the appeal, the costs thereof will be taxed against him. HARRIS v. Davenport. ACTION by I. A. Harris, administrator, against D. D. Davenport and others, heard by Judge M. H. Justice and a jury, at March Term, 1902, of the Superior Court of BUNCOMBE County. From a judgment for the plaintiff, the defendants appealed. Jones & Jones, for the plaintiff. MONTGOMERY, J. There are two questions involved in this appeal; one is, whether or not the claim of the plaintiff as a creditor of his intestate is barred by the Statute of Limitations, and the other is whether the doctrine of lis pendens is applicable to the purchaser of the land at a sale made by order of the Superior Court of Transylvania County. The defendants, except Charles A. Moore, are non-residents of this State, and the defendants, M. A. Davenport, T. M. West, Emily C. Thompson, C. P. Reese, Jane Miles, B. F. West and Mary Bearden, are the heirs at law of the plaintiff's intestate. At the time of the death of plaintiff's intestate, June 1st, 1888, she was indebted to the plaintiff for medical services and board, as found by the referee. On the 8th day of September, 1888, the plaintiff qualified as administrator of the intestate and on the 10th December following instituted a special proceeding in the Superior Court of Transylvania County to sell the real estate of the intestate to make assets for the payment of debts. Judgment was had in that proceeding, the land was sold and the sale confirmed. But afterwards in July, 1893, the judgments of sale and confirmation were declared by the Superior Court to be irregular and void, for the reason that the summons had not been served according to law. On the first day of January, 1894, the plaintiff commenced this proceeding for the same purpose as that commenced in 1888. On the 7th October, 1893, HARRIS v. Davenport. the defendants in the present proceeding, Charles A. Moore having acquired by purchase from the other defendants onefourth interest in the lands, brought in the Superior Court of Transylvania County a special proceeding for the sale of the land for partition among the owners, and a sale was made to P. S. King under the regular order of the court and confirmed on the 16th of February, 1894. By consent of the parties an order was entered in the present proceeding referring all matters in issue between the parties to Frank Carter, Esq., with directions that he take and state the evidence, and report the same with his findings of fact and conclusions of law thereon to the court. The referee heard the case and made report to the court on the 19th February, 1901. The findings of fact by the referee need not be noticed here, for the reason that none of the exceptions thereto were founded upon the averment that they were made without evidence to support them. The referee held as matters of law: 1. That the estate of the intestate was indebted to the plaintiff, I. A. Harris, in the sum of $303 with interest from the first of June, 1888. 2. That the judgment ordering a sale of the land for partition in the proceeding by the heirs at law and Charles A. Moore, and the purchase by King, were void, and that if King acquired any interest in the land at that sale, the same was subject to the right of sale by the plaintiff as administrator to make assets for the payment of the debts of the intestate. 3. That King was not a bona fide purchaser for value and without notice. 4. That the present proceeding, commenced on the first of January, 1894, constituted lis pendens in the cause, and King when he purchased the land described in the plaintiff's petition did so with notice of the special proceeding to sell the land for the payment of debts. HARRIS v. DAVENPORT. 5. That Charles A. Moore took title of so much of the land or the net proceeds of the sale thereof when sold by the administrator to make assets to pay debts, that might remain or belong to the said estate after the payment of the debts of the intestate and the costs and charges of the administration. 6. That Charles A. Moore was not a bona fide purchaser for value and without notice of any portion of said land as against the right of the administrator to sell the same for the purpose of making assets to pay the debts of his intestate and the costs and charges of administration. 7. That the claim of the plaintiff, I. A. Harris, administrator of the intestate, was not barred by the Statute of Limitations. All of the exceptions of law filed by the defendants to the report of the referee were overruled at the March term, 1902, of the Superior Court of Buncombe County, to which County it, had been removed by consent, and an order of sale instructing the plaintiff as administrator to sell the land described in the petition to make assets to pay debts and the costs and charges of administration, including the referee's allowance. The referee found that the debt due from the intestate to the plaintiff was for board of the intestate and medical attention and drugs furnished to her within twelve months just preceding her death. We think the three years' Statute of Limitations (The Code, Sec. 155) set up by the defendants can not avail them. Within six months after the death of the intestate, the plaintiff had qualified as her administrator, and had commenced a special proceeding, in the county where the lands of the intestate were situated, to subject them to the payment of debts. It is true, as we have said, that the proceedings in that case including the judgment of confirmation of the sale were set aside and declared void, for the reason that there had been no proper service of summons |