#### DAVID M. BAIN, Adm’r, v. DANIEL BAIN.

Practice in Supreme Court — Premature Appeal.

Where, upon objection, certain testimony was excluded on the trial below, and the plaintiff submitted to a judgment of nonsuit, which was afterwards stricken out and the case ’reinstated for trial, no appeal lies to this Court, and an appeal taken by defendant will be dismissed.

This was a civil action, tried before Connor, J., at November Term, 1887, of Cumberland Superior Court,

On the trial certain testimony offered by the plaintiff was excluded, whereupon plaintiff submitted to a nonsuit.

Afterwards the Court directed the judgment of nonsuit to be stricken out and the case to be reinstated for trial, and the defendant appealed.

The facts appear in the opinion.

Mr. W. A. Guthrie, for the plaiutiff.

Mr. N. W. Ray, for the defendant.

Davis, J.:

The allegations of the complaint, so far as material to the question now before us, are, substantially, *240that on the 8th day of April, 1844, the defendant executed to John Bain, Sr., the intestate of the plaintiff, a bond for the sum of $500, with certain conditions attached, which is made part of the complaint. That, on the same day that the bond was executed, the said John Bain executed to the defendant a deed in fee-simple, conveying to him the land set out in the complaint. That said deed, though absolute on its face, was made with the “express understanding and agreement” that the defendant would take said land and certain personal property referred to in the bond, and hold the same in trust for the payment of certain debts mentioned. That the defendant never performed the conditions of the bond, nor has he executed the trust for which said land was conveyed to him.

The plaintiff asks judgment for $500 mentioned in the bond, with interest thereon, and that it be adjudged that the land be held in trust for its payment, and so applied.

The answer is a substantial denial of the allegations of the complaint, and the (defendant says that lie was in the possession of the land set out in the complaint at the time of the execution of the deed by John Bain (his father), and has been continually since in open adverse possession. He insists-upon the lapse of time and the statute as a bar.

Upon the trial, the plaintiff proved that D. J. McAllister,, the subscribing witness to the bond, was dead, and offered to read in evidence the bond, upon the certificate of the Clerk and Register of Deeds. This was objected to. The-objection was sustained, and plaintiff excepted.

Various other questions relative to the competency of witnesses and testimony were presented and decided adversely to the plaintiff, who excepted, and “thereupon submitted to a nonsuit.”

“The Court, after consideration, being of the opinion that there was error in the ruling made in the exclusion of *241evidence,- directed the judgment of nonsuit' to be stricken out and the case to be reinstated for trial, from which judgment the defendant appealed to the Supreme Court.”

Not only was the appeal in this case prematurely taken from a judgment which was not final, but which, in no possible aspect of the case could deprive the appellant of any substantial right. That such an appeal will not be entertained by this Court is well settled. Hailey v. Gray, 98 N. C., 195, and cases cited.

The case on appeal cannot present the questions raised by plaintiff’s exceptions, his Honor having, upon consideration, concluded that there was error in the exclusion of evidence, but they appear in the record, and counsel unite in the following request: “In this case the counsel on both sides agree to waive all irregularities in making up the case, on appeal and request this Court to decide the point presented.”

If by now expressing an opinion upon the “points presented ” an end would be put to the controversy, the Court would be warranted in acceding to the request. Thornton v. Lambeth, 103 N. C., 86, and the cases cited. It appears, however, from the complaint and answer, that other and important “points” are presented, and many questions may arise, and appeals cannot be considered in this fragmentary way.

The appeal must be dismissed.

Appeal dismissed.