#### JACOB WOOL v. H. A. BOND.

Trial — Issues— Verdict Directed by Judge — Instructions.

1. Where, in the trial of an action for trespass on land, the sole enquiry was whether the land described in the complaint was the same as that involved in a former case b etween the same parties (the judgment in the former being pleaded as an estoppel in the pending action) and the witnesses for the plaintiff, as well as the defendant, testified that the land was identically the same, it was proper for the trial judge to instruct the jury that if they believed the evidence they should answer the issue “ Tes,” and, if they did not believe it, or had any doubt, to answer the issue “ No.”

2. In civil actions, the trial judge may direct the jury’s verdict where there is no conflict of evidence, or where a party fails to make out his case or sustain his defense by evidence.

Civil aotioN, tried at Fall Term, 1894, of Chowan Superior Court, before Graham, J., aud a jury. There was a veidict for the defendant, and from the judgment thereon, plaintiff appealed. The facts are concisely stated in the opinion of Associate Justice Clare.

*2 Messrs. Shepherd, (& JBusbee, and J. H. Sawyer, for plaintiff (appellant).

Mr. W. M. Bond, for defendants.

Clark, J.:

The sole inquiry in this action was whether the land sued for was the same as that described in the pleadings and judgment in a former action brought by the defendant in this case against the plaintiff herein, which was tried at fall term, 1892, of the same court, the judgment in that action being pleaded asan estoppel. All the plaintiff’s witnesses, who professed to know, testified that the laud in question was the identical land embraced in the pleadings and judgment in such former action, and all the witnesses for the defendant testified to the same effect, and three of these were members of the jury in the former action. There being no conflict of evidence, his Honor properly instructed the jui*y that if they believed the evidence, to answer the issue “Yes,” and if they did not believe it, or if the matter was in doubt, to answer the issue “No.” Chemical Co. v. Johnson, 101 N. C., 223; Holding v. Purifoy, 108 N. C., 163. In fact, the Court might have gone even further and have directed a verdict for the defendant. State v. Riley, 113 N. C., 648. Nor was it error to refuse to submit an issue on the mere evidential fact as to the locatiou of the beginning corner. The issue submitted : “ Does the judgment rendered at fall term in the case of Bond v. Wool cover the land in controversy,” was the proper issue arising on the pleadings and did not debar the appellant from presenting any evidence pertinent to the controversy. Fleming v. Railroad, 115 N. C., 676; Humphrey v. Church, 109 N. C., 132.

No Error.