MANUFACTURING Co. v. MOORE. Hagamon (to whom he conveyed a part of the land in 1899), without any claim or demand from Cottrell. In July, 1906, the plaintiff procured a conveyance from Cottrell and soon thereafter brought this action for an accounting, and asking an injunction against cutting timber. The ten years' statute (Rev., sec. 391, 4) is pleaded and is so complete a defense that no discussion is necessary. Edwards v. Tipton, 85 N. C., 479; Simmons v. Ballard, 102 N. C., at p. 109. The trust deed provided that Cottrell should retain possession until default made. The trustor's right of action for redemption of the mortgage and an accounting accrued as soon as the trustee took possession, and became barred in ten years. The evidence of Cottrell, witness for the plaintiff, showed that during the twenty-five years after Boyden took possession, and up to the beginning of this action, Cottrell had made no payment on the debt, nor any demand for possession of the property, nor for an accounting. The Court properly sustained the demurrer to the evidence (Rev., sec. 383). No Error. THE CASE MANUFACTURING COMPANY v. GEORGE E. MOORE et al. (Filed 7 May, 1907). Judgment Matters Embraced-Substantially the Same Counterclaim-Estoppel.-The cause of action embraced by the pleadings is determined by the judgment thereon, whether every point thereof is actually decided by verdict and judgment, or not. Defendants having recovered upon a counter-claim for damages against plaintiff in a former action, upon a note given for machinery purchased, on the ground that the machinery was unsuitable and unskillfully set up, etc., are estopped to again set up substantially the same counter-claim in an action brought by plaintiff upon another note, subsequently maturing, given for the same purpose. MANUFACTURING Co. v. MOORE. ACTION to recover on note given for purchase of machinery, before Bryan, J., and a jury, at November Term, 1906, of the Superior Court of CALDWELL County. Defendant pleaded a counter-claim for damages arising from the inferior character of the machinery and the unskillful and unworkmanlike manner in which plaintiff's agents set it up in defendants' mill. From the judgment rendered, defendants appealed. T. M. Hufham, Jones & Whisnant and W. H. Bower for plaintiff. W. C. Newland and Lawrence Wakefield for defendants. BROWN, J. The plaintiff sold certain machinery to defendants and contracted to properly install it in defendants' flour mill. Three notes were given for the unpaid purchasemoney. The machinery having been duly installed, the note first due was promptly paid. Defendants refused to pay the second note, and plaintiff brought suit on it. The defendants pleaded a counter-claim to the effect that the machinery was deficient, unsuitable, constructed and set up in an unskillful and unworkmanlike manner, and not according to contract, on account of which defendants demanded judgment for $1,000 damages. Upon such counter-claim defendants recovered $350, which was set off against the note then sued on, and plaintiff awarded judgment for the balance of $9.14 and costs of the action. The plaintiff now sues to recover on the last of the three notes, and the defendants for answer plead a counter-claim on account of the inferior quality of the machinery and the unskillful and negligent manner in which it was installed. The Court below held that the defendants were estopped to again set up substantially the same counter-claim in the present action, upon which they had recovered in the former, in MANUFACTURING Co. v. MOORE. which ruling we fully concur. An examination of the answers in the two actions discloses that the counter-claim, or the ground for damage alleged by way of defense, is one and the same in both and based upon the same transaction. The matter is, therefore, res adjudicata, and the defendants. cannot be permitted to recover twice upon the same cause of action. Upon the former trial, defendants had full opportunity to submit appropriate issues and evidence showing every damage resulting from the alleged breach of contract. If they did not avail themselves of their rights they cannot now set up substantially the same cause of action. Generally the plea of res adjudicata applies not only to matters actually adjudged, but to every other question which properly belonged to the subject-matter of the issue, and which the litigants by reasonable diligence could have brought forward. Tuttle v. Harril, 85 N. C., 456; Wagon Co. v. Byrd, 119 N. C., 460; Dimmock v. Copper Co., 117 U. S., 559; 1 Herman on Estoppel, secs. 122 and 123. In Tyler v. Capeheart, 125 N. C., 64, it is said: "The cause of action embraced by the pleadings is determined by a judgment thereon, whether every point of such cause of action is actually decided by verdict and judgment or not. The determination of the action is a decision of all the points raised therein, those not submitted to actual issue being deemed abandoned by the losing party, who does not except." Affirmed. COOK v. PITTMAN. HATTIE COOK et al. v. MORGAN PITTMAN. (Filed 7 May, 1907). 1. Deed-Certificate Married Women-"Color."-A deed made by husband and wife is not "color" of title when the certificate is insufficient in not showing that the husband acknowledged its execution or that the privy examination of the wife had been taken, it not appearing that it was offered as evidence of a common-law deed for purposes of "color." 2. Same-Correction of Certificate.-A justice of the peace cannot correct his certificate made to a deed after his term of office has expired, such authority not having been given by statute. ACTION to recover possession of land, tried at Special April Term, 1906, of MITCHELL Superior Court, before Cooke, J., and a jury. Verdict and judgment for plaintiffs. Defendant appealed. S. J. Ervin and W. C. Newland for plaintiffs. BROWN, J. In deraigning her title, the plaintiff offered a deed purporting to have been executed by Elisha Carroway and wife to Isaac Cook, 20 July, 1878. This deed was offered as color of title. The following is the probate to the deed: "I, Samuel W. Blalock, an acting justice of the peace in and for said county, do hereby certify that I have privately examined Elisha Carroway, Nancy Carroway, his wife, grantors of the above deed; and Nancy, his wife, doth state that she signed the same freely and voluntarily, without fear or compulsion of her said husband or any other person, and she doth still assent thereto. Witness my hand, seal, this 26 July, 1878. S. W. Blalock, J. P." The introduction of the deed was objected to for insufficiency of the certificate. During the recess of the Court, S. W. Cook v. PITTMAN. Blalock attached to the deed a proper certificate, and dated it 26 July, 1878. He attached to the deed at the same time an affidavit dated 11 April, 1906, that on 26 July, 1878, he was a justice of the peace in Mitchell County, and that Elisha Carroway and wife Nancy duly acknowledged said deed before him on that date, and that he properly took the privy examination of the wife. Upon this last certificate the deed was registered during the recess, and when the trial was resumed it was offered again in evidence and admitted, over the defendant's objection. We do not find anywhere in the record that the plaintiffs insisted on proving on the trial the execution of the instrument as a common-law deed for purposes of color. Therefore, the right to introduce it at all must depend upon the sufficiency of the certificate of probate. The first certificate is insufficient because it does not appear thereon that Elisha Carroway ever acknowledged the execution of the deed, and therefore it does not come within the terms of the curative statute of 1893 (Rev., sec. 1017). Neither is the certificate sufficient as to Nancy Carroway, for the reason that it fails to state that the privy examination was taken separate and apart from her husband. Fenner v. Jasper, 18 N. C., 34; Etheridge v. Ashbee, 31 N. C., 353; Hatcher v. Hatcher, 127 N. C., 201. We think that the second certificate, dated in 1878, but made in 1906, did not entitle the deed to registration, and was valueless, as Blalock was not in office and had not been for some years, and had actually, it is said, removed from the county. A Sheriff or coroner who has gone out of office can make deeds for land sold by him under execution by virtue of the power conferred by the Acts of 1784 and 1899, which gave the same power to successors. Harris v. Irwin, 29 N. C., pp. 433, 434. But we know of no statute, and |