#### THE SCHOOL COMMITTEE OF PROVIDENCE TOWNSHIP vs. TOBIAS KESLER et al.

1. Where issues to be tried by a jury, are tendered by the plaintiff, and such issues are objected toby the defendant, and others tendered, and the presiding Judge directs those tendered by the plaintiff to be submitted; Held, that there can be no appeal to the Supreme Court from such preliminary order.

Rules III, IV and V, adopted by the Supremo Court at June Term, 1871, discussed and fully explained by Pearson, C. J.

Civil action tried before Cloud, J udge, at a Special Term of Rowan Superior Court, January, 1872.

The complaint alleges that the defendant, Tobias Kesler, by a deed bearing date November 27tb, 1848, conveyed a certain tract of land in Rowan County, to Samuel Peeler and others, School Committee of the 38th district of common schools, and their successors, &c. That the plaintiffs in this suit, in their corporate capacity, are entitled to the care and custody of said premises, under an Act of the General Assembly, passed April 12th, 1860, &c., and that they were lawfully possessed of the said premises at the time of the trespass committed by the defendants. That the defendants, Trexler and Roseman, at the* instigation and request of the defendant Kesler, unlawfully entered upon said premises, and then and there injured a certain school house situated upon the said premises, by carrying off the flooring, a number of benches, &c., &c.

Defendants admit the acts complained of and that they were done at the instance and request of defendant Kesler, who claimed title to the premises.

At the Special Term aforesaid, the plaintiffs, by their attorneys, tendered the following issues of fact to be tried by a jury.

I. Did Tobias Kesler convey the land described in the pleadings, to Samuel Peeler and others, school committee, &c.

*324, II. Were the plaintiffs lawfully possessed of said land at the time of the alleged trespass ?

III. Did Rosero an and Trexler, defendants, at the instance and request of the other defendant, unlawfully enter, &c ?

IY. What damage have plaintiffs sustained by the unlawful acts of the defendants ?

Defendants’ counsel objected to these issues, and tendered the following:

I. Did the defendant Kesler, on the 27th day of November, 1848, sign, seal and deliver to Samuel Peeler, and others, school committee, &c., a certain paper writing in the words and figures following: * * * *

II. Did the defendants Trexler and Roseman, by the command of Kesler, enter upon the premises and despoil the same as alleged ?

III. If yes : What is the value of the damage %

Whereupon, His Honor ordered the issues tendered by the plaintiff to be submitted to the jury.

From this order the defendants appealed to the Supreme Court.

John 8. Henderson for plaintiff.

W. TI. Bailey and J. M. MeOorMe for defendants.

PeaksoN, C. J.

By the common law mode of procedure, the parties made up “the issue” by their pleadings. By the mode of procedure in Courts of Equity, the issues were not eliminated by the bill and answer, as the testimony was all in writing, in exhibits and depositions. The Chancellor could take his own time, if the cause was heard upon bill, answer, exhibits and depositions, and the argument of counsel, and settle for himself “the issues” upon which the case turned.

O. C. P. adopts the mode of procedure in Courts of Equity, by complaint and answer, and “ the issues” are not “eliminated by the proceedings.” This in complicated actions gives-*325rise to much inconvenience, because the trial is by jury upon the viva voce test, instead of depositions, which could be perused at leisure; hence very frequently, after the jury is em-panelled, and the witnesses are examined, much delay is caused by the discussion and “wrangling” of counsel as to “the issues,” which the Judge should submit to the jury, and His Honor is obliged “off hand,” to decide upon which issues the case should turn. The consumption of time during the term, in the discussion about £“the issues,” results in serious damage to suitors of the Court, and upon 'appeal after verdict and judgment, in many cases, this Court has been compelled to order a venire de novo, because some material matter had not been submitted to the jury. Rules III, IY & Y, were adopted at June Term, 1871, as a remedy for this evil, by allowing the counsel at the appearance term, if they could agree, otherwise the Judge to settle “the issues,” so that when the case was called for trial, there should be no delay, and all that was to be done was to examine the witnesses and take the verdict, after proper instructions from the Court.

It was not intended by these rules to make an entire change in the mode of jury trials heretofore in use, so as to require in •every ease a special verdict, setting out the dry facts, leaving •the law to be afterwards declared by the Judge, or to require a special finding of particular questions as dry facts, the legal ■effect to be aftarwards decided by the Judge. C. O. P., section ’■232 and- 223.

Most of “the issues,” or questions upon which a case turns, are compounded of both law and fact, with instructions in regard to the law. The only purpose of the rules was to have these issues or questions settled beforehand, to avoid delay and surprise at the trial. Hoes the deed under which the defendant claims as color of title cover the land in dispute ? Osborn v. Johnson at this term, This involves both law and fact. It was for the Judge to instruct the jury what are the boundaries, and for the jury to find whether these boundaries cover *326the land. Did the defendant have a' good title to the land I McKesson v. Hennessee, at this term. It was for the Judge to say what facts the jury must find to entitle the defendants to their verdict. From these two examples, the questions or issues presented in a case, can be easily settled according to the rules. Another instance, indictment for murder, plea, “ not guilty.” “The issue” is a compound of law and fact. The Judge must instruct the jury, [if they are satisfied that the prisoner hilled the deceased, what facts are necessary to constitute murder. So the jury are to decide on the instructions and the evidence, the issues “guilty” or “ not guilty.”

We presume the judge would not be precluded from presenting other issues in his charge, should it appear by the investigation, that some other matter ought to be passed' upon by the jury for the purpose of a decision on the merits, subject of course to his power to allow a continuance to avoid surprise.

Thus it is seen, that the only alternative in practice which was intended to be made by these rules, was to have the issues made up 'beforehand, after due reflection upon the complaint and answer, instead of having it done after the trial was entered wpon. So the idea of an appeal from this mere preliminary proceeding, is out of the question. Suppose, before the adoption of these rules of practice, the judge had on the trial, refused to submit a certain matter to the jury, could the trial stop, so as to allow an appeal ? It might as well be contended that when evidence is ruled out, the trial should stop, until the opinion of the Supreme Court could be had in regard to it, by an appeal. ,The rule would be rescinded at once, if it-had the eflect of giving occasion for delay by appeal, where' the counsel of the parties shall differ in opinion with His. Honor.

Appeal dismissed.

Pee Cueiam, Judgment affirmed,.