It is not like a case in which a party seeks to set aside a deed or other instrument for fraud or undue influence, where a preponderance of the evidence is sufficient to establish the fraud. The distinction is stated in Harding v. Long, 103 N.C. 1; Ely v. Early, 94 N.C. 1; and more recently in Cedar Works v. Lumber Co., 168 N.C. 391; Lamm v. Lamm, 163 N.C. 71; Avery v. Stewart, 136 N.C. 426; Lamb v. Perry, 169 N.C. 436; Glenn v. Glenn, supra; Ray v. Patterson, 170 N.C. 226; Potato Co. v. Jeannette, 174 N.C. 236; McLaurin v. Williams, at this term. The case of Glenn v. Glenn, supra, is strikingly illustrative of the rule as applicable to the facts of our case. It was there (385) said: "Where a defendant holds under a deed formally conveying to him the legal title to real property and a claimant is seeking to correct a mistake in the instrument or annex a condition to it or engraft a trust upon it, he is required to make out his claim by clear, strong and convincing proof ( Cedar Works v. Lumber Co., 168 N.C. 391; Ely v. Early, 94 N.C. 1), a position held to prevail in case of formal written instruments conveying personalty ( White v. Carroll, 147 N.C. 334), and to written official certificates of officers given and made in the course of duty. Lumbe

speaking to the power of amendment now vested in the Court, and its proper exercise, the Court said: "Under the statutes regulating our present system of procedure, Revisal 1905, sec. 507 et seq., and numerous decisions construing the same, the power of amendment has been very broadly conferred and may and ordinarily should be exercised in "furtherance of justice," unless the effect is to add a new cause of action or change the subject-matter thereof, and our cases on the subject hold that where the amendment is germane to the original action, involving substantially the same transaction and presenting no real departure from the demand as originally stated, it shall, when allowed, have reference by relation to the original institution of the suit," citing, among other cases, Renn v. R. R., 170 N.C. 128; Joyner v. Earley, 139 N.C. 49; Lassiter v. R. R., 136 N.C. 89; Nims v. Blythe, 127 N.C. 325; Parker v. Harden, 122 N.C. 111; King v. Dudley, 113 N.C. 167; Aaron v. Smith, 96 N.C. 389; Ely v. Early, 94 N.C. 1. In application of this wholesome principle, it has been expressly held in Thomas v. Simpson, 80 N.C. 4, and in other cases: "That it is competent for the Superior Court, on the trial of an appeal from a justice of the peace, to allow a defendant to set up a counterclaim not made on the trial before the justice."

which we have so often said must abide and control the rights of the parties unless the requisite evidence is forthcoming. We have, at this term, fully discussed the matter in several cases, (523) reaffirming what was decided in Ely v. Early, 94 N.C. 1; Harding v. Long, 103 N.C. 1; Cobb v. Edwards, 117 N.C. 253; Avery v. Stewart, 136 N.C. 426; Lehew v. Hewett, 138 N.C. 6; King v. Hobbs, 139 N.C. 171; White v. Carroll, 147 N.C. 330; Gray v. Jenkins, 151 N.C. 80; McWhirter v. McWhirter, 155 N.C. 145. The cases at this term in which we applied the same rule of evidence are Ray v. Patterson, ante, 226; Lamb v. Perry, 169 N.C. 436, and Glenn v. Glenn, 169 N.C. 729, to all of which we refer without further comment, except Glenn v. Glenn, supra, 169 N.C. at p. 730, where it is said to be established with us that "where a defendant holds under a deed formally conveying to him the legal title to real property, and a claimant is seeking to correct a mistake in the instrument of annex a condition to it or engraft a trust upon it, he is required to make out his claim by clear, strong, and convincing proof.

8. The rules as to the quantum and quality of proof required in certain classes of cases laid down in Harding v. Long, 103 N.C. 1; Brown v. Mitchell, 102 N.C. 347, and Ely v. Early, 94 N.C. 1, will be adhered to without modification. This was a CIVIL ACTION, tried at the March Term, 1889, of the Superior Court of ORANGE County, before Bynum, J.

The Court has no power, except by consent, to allow amendments either in respect to parties or the cause of action, which will make substantially a new action, as this would not be to allow an amendment, but to substitute a new action for the one pending. ( Grant v. Burgwyn, 88 N.C. 95; Merrill v. Merrill, 92 N.C. 657; McNair v. Com'rs, 93 N.C. 364; Ely v. Early, 94 N.C. 1; cited and approved). CIVIL ACTION, tried before Boykin, Judge, at November Term, 1886, of IREDELL Superior Court.

4. Under the present practice, where a party claims under a lost deed, it is not error for the trial Judge to charge the jury, that the lost deed could only be established by clear and satisfactory proof. ( Deans v. Dortch, 5 Ired. Eq., 331; Fisher v. Carroll, 6 Ired. Eq., 485; Plummer v. Baskerville, 1 Ired. Eq., 252; Ely v. Early, 94 N.C. 1; cited and approved. Halyburton v. Harshaw, 65 N.C. 88; Ballard v. Ballard, 75 N.C. 190; distinguished and approved).

54 C.J.S., Limitations of Actions Sec. 279 (b); Marks v. St. Francis Hospital and School of Nursing, 179 Kan. 268, 294 P.2d 258; Waddell v. Woods, 160 Kan. 481, 163 P.2d 348; Bahr v. National Safe Deposit Co., 234 Ill. 101, 84 N.E. 717; Fowler v. City of Seminole, 202 Okla. 635, 217 P.2d 513; Murray v. McGehee, 121 Okla. 248, 249 P. 700. In Ely v. Early, 94 N.C. 1, cited by appellant, the original complaint stated facts sufficient to constitute a cause of action; and this Court held that the amendment "constituted a part of the plaintiff's cause of action at first alleged." George v. R. R., supra, and Webb v. Eggleston, supra, are discussed and distinguished in Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43, where, upon the facts then considered, it was held (1) that the original complaint was not demurrable for failure to allege facts sufficient to constitute a cause of action, (2) that the amendment merely particularized prior general allegations of negligence, and (3) that the court was in error in sustaining the demurrer and in dismissing the action.

This rule is subject to the limitation that the amendment must not, in effect, add a new cause of action or change the subject matter of the original action. Lefler v. Lane, 170 N.C. 181, 86 S.E. 1022; Wilmington v. Board of Education, 210 N.C. 197, 185 S.E. 767; Nassaney v. Culler, 224 N.C. 323, 30 S.E.2d 226; Ely v. Early, 94 N.C. 1. While, in his second cause of action, plaintiff alleges that defendants agreed to convey to him the small residence and the land on which it was situated, he testified that they agreed to give him notes for the amount expended by him in erecting the building.

Issues of law must be tried by the judge; but issues of fact must be tried by a jury, unless trial by jury is waived. G.S. 1-172; Sparks v. Sparks, 232 N.C. 492, 61 S.E.2d 356. This is true even though the issues of fact are raised by pleadings in actions for the enforcement of equitable rights. Comrs. v. George, 182 N.C. 414, 109 S.E. 77; Boles v. Caudle, 133 N.C. 528, 45 S.E. 835; Ely v. Early, 94 N.C. 1; Worthy v. Shields, 90 N.C. 192; Chasteen v. Martin, 81 N.C. 51. Where issues of fact are raised by the pleadings in a cause and trial by jury is not waived, the verdict of a jury determining the issues of fact is an indispensable step in the trial of the cause, and the court is without power to enter a final judgment in the absence of such verdict.

These allegations are consistent "with the gravamen of the complaint." Hatcher v. Williams, supra; Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43; Baker v. Baker, 230 N.C. 108, 52 S.E.2d 20; Ely v. Early, 94 N.C. 1, Nassaney v. Culler, supra. Second, as to the amendments to the effect that the original contract between the parties provided for the "operation" of the warehouses under a joint adventure arrangement between them, whereby the plaintiffs "as managers" were to operate the warehouses for the joint account of the parties for a period of three years.