
    Action by H. C. Hay against the Carolina Midland Railway Company, commenced September 26,1893.
    
      No. 3368.
    Seegers v. McCreery,
    April Term, 1894.
    This was a motion to dismiss an appeal, which is fully explained by the order of refusal of April 25, 1894,
    
      
      Bachman efe Youmans, for the motion. Lyles & Muller, contra.
   Per Curiam.

This is a motion to dismiss an appeal. We are not aware of any precedent or law authorizing the dismissal of an appeal on the ground that it is frivolous, and, therefore, this ground for dismissal is not sustained. It appears, however, from an inspection of the case, that the motion to amend the answer by adding the defence of the statute of limitations, the refusal of which motion is the ground of appellant’s first exception, was not made until after the testimony of plaintiff in chief and the testimony of defendant had closed, and was necessarily addressed to the discretion of the court. It also appears from the case that the motion for new trial, on the ground of after-discovered evidence, the refusal of which is the ground of third exception, was also addressed to the discretion of the court. It also appears from the case that the Circuit Judge, in his charge, did not exclude from the consideration of the jury the time of the conversion of the chattels, which alleged exclusion is the ground of the second — the only other — exception. There being no allegation of any abuse of discretion, or of any error of law committed by the Circuit Judge, the motion is granted, and the appeal herein dismissed.  