20 S.E. 450 | N.C. | 1894
The cause of action alleged was an obstruction placed by the defendant on the upper edge of his land, preventing the free flow of water from the land of plaintiffs just above and ponding it back. The counterclaim attempted to be set up was that the plaintiff had placed an obstruction on the lower edge of his own land, thus diverting water which was thrown upon, and water-sobbed defendant's land. These were two separate and distinct torts. The latter did not "arise out of the transaction set forth in the complaint," nor was it "connected with the subject of the action." The Code, sec. 244 (1). It was the subject for an independent action, and was properly disallowed as a counterclaim. Bazemore v. Bridgers,
The testimony as to the ages of the minor plaintiffs was, at most, irrelevant, and as such it is not ground for a new trial, unless it could be seen to have prejudiced the side objecting. It was harmless error.Glover v. Flowers,
The counterclaim having been properly ruled out, it was not error to reject the evidence offered to show the water-sobbed (423) condition of defendant's land. This evidence could have no bearing upon the allegation of damages to plaintiff's land.
The deposition was improperly excluded. The return showed that it was taken by the commissioner on the day and at the place mentioned in the notice. There was no evidence offered that it was not taken between the hours mentioned in the notice, and there is no presumption that it was not. It appearing that it was taken on the day, at the place, and by the person designated, the presumption, in the absence of evidence *292
to the contrary, is that all things were done rightly. Gregg v. Mallett,
New trial.
Cited: Younce v. Lumber Co.,
(424)