Supreme Court of North Carolina, 1873

State Ex Rel . Stocks v. . Smith, Adm'r .

Supreme Court of North Carolina · Decided June 5, 1873 · Pearson

69 N.C. 352

Counsel

Battle Son , for appellant. 1. The judgment obtained by the plaintiff against the defendant at the February Term, 1865, of the County Court of Pitt, being in all respects regular, cannot be questioned, except upon a motion to set it aside or to have it amended and modified. It makes no difference that it was given during the war, and its merits, c., cannot now be questioned. Jacobs v. Burgwyne , 63 N.C. 193 ; McElmoyle v. Cohen , 13 Peters 312. 2. If it were admissible to show that the judgment was solvable in Confederate money, then the value of the property sold, and not the amount scaled, ought to have been taken as the true sum to which the plaintiff was entitled. Maxwell v. Hipp , 64 N.C. 98 ; Laws v. Rycroft , Ibid 100. 3. The offer to pay in Confederate money, even if it had been in time, was of no effect because it was not the same identical money which the defendant had received. Cummings v. Mebane , 63 N.C. 315 ; Shipp v. Hetrick , Ibid 329. 4. As the defendant could not tell what he had done with the bank bills the plaintiff was entitled to the value of them. 5. As to the verdict, see Meredith v. Crews , 64 N.C. 536 ; Merrimon v. Norton , 115. 6. After the Court had decided that plaintiff was entitled to a new trial he had no right to punish her for refusing to accept the terms proposed by the defendant. No counsel in this Court, contra.

Opinion of the Court

Pearson, C. J.

A judgment rendered during the war is subject to the legislative scale in regard to Confederate notes, to be applied at the date of the contract or the time of the breach complained of. Alexander v. Rentels, 64 N. C. Rep. 634.

The learned counsel for the plaintiff in this Court admitted his misapprehension of the law in regard to this point, and thus the case is relieved from all embarrassment. The jury find that the plaintiff is entitled to (the amount) the judgment taken February Term, 1865, subject to the legislative scale. His Honor had charged that the scale was to be applied at the date of the demand, August, 1863. So upon the return of the verdict his Honor ought to have directed the clerk to aid the jury in the calculation necessary for the application of the scale, so as to fix the amount for which judgment should be rendered.

Instead of taking this course his Honor heard certain propositions for a compromise, and leaves the matter at large, and thereupon the plaintiff appeals.

There is error. This will be certified to the end that in the Court below the legislative scale, may, upon a calculation to be made by the clerk on the basis that the scale of August, 1863, is applicable, be applied to the case, and judgment be entered in conformity thereto.

*357 It is set out in the record that the verdict was taken by consent in the absence of the Judge, and in such cases, and in fact in all cases, the entry of the verdict made by the clerk should be construed in reference to the charge of the Judge, and it should never be intended .that the jury mean to find contrary to the charge of the Judge. In this case he told the jury, in so many words, that the legislative scale was to be applied at the time the plaintiff made the deinand, August, 1863, and the entry of the verdict must be construed in reference to his charge. There will be judgment for defendant as to the costs of the appeal. It is the fault of the plaintiff that the verdict was not made to conform to the ruling of his Honor.

Per Curiam. Judgment accordingly.

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