ment, and the Court properly submitted a separate issue as to
this matter. Hairston v. Leather Co., 512.
Where this Court, on the former appeal, construed the pleadings
as raising certain issues, and the parties went to trial on
the pleadings, it is too late on this appeal to raise the ques-
tion that such issues are not presented by the pleadings. Bank
v. Hollingsworth, 520.
JUDGE'S CHARGE TAKEN TO JURY-ROOM. See "Practice";
JUDGE'S FINDINGS OF FACTS BY AGREEMENT. See "Evidence."
JUDGMENTS.
Where the Court has the custody of property, it will be retained
to await the result of the action and satisfy any judgment that
may be recovered, it being immaterial how the property was
brought under the control of the Court, whether by attachment
or some other equivalent and lawful act. Lemly v. Ellis, 200.
The defendant was not entitled to judgment by default on his
counter-claim where, pursuant to leave given by the Court, a
formal denial was entered. Tillinghast v. Cotton Mills, 268.
Where the complaint alleged a contract of sale and a breach
thereof, and the answer denied that it was an absolute sale
and alleged by way of counter-claim that the goods were
shipped on consignment, and demanded an account, the plain-
tiff's cause of action was in itself a direct denial of the counter-
claim, and a judgment by default on the counter-claim before
the issues in reference to the plaintiff's cause of action were
determined would have been irregular and improper. Ibid.
Where a proceeding for partition was brought in 1881 and upon
issues raised was transferred for trial to the Superior Court
and a consent decree was entered at June Term, 1887, appoint-
ing commissioners for partition, who filed their report with
the Clerk in 1887, and no exceptions in any form were ever
filed to its confirmation and a decree confirming the report was
procured at the April Term, 1906, without giving special notice
to the defendant or his counsel: Held, that the defendant's
motion to set aside the decree of confirmation was properly
denied. Roberts v. Roberts, 309.
Confession of judgment under Revisal, sec. 581, requires that
there should be a statement in writing signed by the defendant
and verified by his oath and stating: (1) the amount for
which judgment may be entered, and authorizing its entry;
(2) if for money due, a concise statement of the facts out of
which the debt arose, and it must show that the sum con-
fessed is justly due, but the statement that the controversy
is real and the proceedings in good faith is not required as it
is in a "controversy submitted without action." Martin v.
Briscoe, 353.
Where the confession of judgment sets out that the amount of
$823.15 is due plaintiff by defendant for part of "bills of
goods bought from plaintiff by defendant and received by him
between 1 January, 1896, and October, 1896," and said amount
is "part of bills of groceries bought in the time named," this
is sufficient, in the absence of any attack by a creditor, where
the debtor himself, after an acquiescence of six years, is urging
a defect in his own confession of judgment, with no suggestion
of any fraud or imposition in securing the confession nor any
denial of the debt, and should the judgment be held invalid
the debt would be barred. Ibid.
Before a final order or judgment, fixing the amount which is to be
paid by the owner, is made, the cost of the improvement should
be ascertained and apportioned between the several pieces of
property. Asheville v. Trust Co., 360.
Where the issues submitted presented every phase of the case, and
are such as arise upon the pleadings, and are a sufficient basis
for the judgment rendered, and the defendant was given the
opportunity to present every defense he had, his exception to
the issues submitted is without merit. Kimberly v. Howland,
398.
Where the plaintiff alleged that the defendant collected the pro-
ceeds of the sale of certain options, in which they were equal
partners, and that his share of the net profits amounted to
$4,400, and he further alleged that the defendant had been
guilty of fraudulent conduct, and the plaintiff took judgment
for the amount due as his share of the profits upon an issue
which found that the defendant was "indebted" to him in that
amount "by reason of the matters alleged in the complaint,"
an execution against the person should not have been issued
upon the judgment, in the absence of any special finding of
fraud by the jury. Ledford v. Emerson, 527.
Under Article I, sec. 16, of the Constitution, which provides that
"there shall be no imprisonment for debt in this State, except
in cases of fraud," there can be no imprisonment to enforce
the payment of a debt under final process, unless it has been
found upon an allegation duly made in the complaint and a
corresponding issue submitted to a jury that there has been
fraud, and a judgment has been entered in conformity there-
with. Ibid.
The doctrine of stare decisis is applicable to this case and means
that this Court should adhere to decided cases and settled
principles, and not disturb matters which have been established
by judicial determination. Hill v. Railroad, 539.
A former adjudication of this Court in construing a statute or the
organic law should stand when it has been recognized for
years; and in such a case the principle settled or the meaning
given to the statute becomes a rule for guidance in making
contracts, and also a rule of property, and it should not be
disturbed even though the conclusion reached may not be satis-
factory to the Court at the time the same matter is again pre-
sented. Ibid.
A certificate on the back of the bill of indictment not appearing to
have been signed by the foreman of the grand jury is not
ground for a motion to quash or in arrest of judgment, under
Revisal, sec. 3254, unless it is shown that in fact the "wit-
nesses marked X" had not been "sworn and examined."
v. Long, 670.
In an action for damages for breach of warranty in a deed, in
which certain bonds were attached, the defendant cannot com-
plain of a judgment directing that the bonds be sold by a
commissioner, instead of an order to the Sheriff to sell the
attached property under Revisal, sec. 784. Lemly v. Ellis, 200.
When a case is before the Judge on appeal, it is optional with
him to try it or remand to the Clerk with instructions. In re
Wittkowsky's Land, 247.
In an action begun before a justice of the peace in which the plain-
tiff made demand in the sum of $50 for damages done to his
property and premises by defendant in depositing the carcass
of a dead horse near the lands of the plaintiff, whereby the
comfort and enjoyment of his home were impaired and a
nuisance committed to his premises, the Superior Court, on
appeal, erred in dismissing the action for want of jurisdiction
in the justice. Duckworth v. Mull, 461.
Article IV, sec. 27, of the Constitution, and Revisal, sec. 1420 (en-
acted to carry out this provision), which provides that "justices
of the peace shall have concurrent jurisdiction of civil actions
not founded on contract wherein the value of the property in
controversy does not exceed $50," comprehend all actions ex
delicto, the term "property in controversy" meaning the value
of the injury complained of and involved in the litigation, and
where a plaintiff, in good faith, states or limits his demand in
actions of this character at $50 or less, the justice has juris-
diction concurrent with the Superior Court to hear and deter-
mine the matter. Ibid.
Revisal, sec. 3361, is constitutional under the State and Federal
constitutions. When a man having a lawful wife admits a
second marriage in another State, the bigamous marriage is
exploited by his living openly and avowedly in this State with
his wife by the second marriage, and the offense may be dealt
with, tried, determined and punished in the county where the
offender may be apprehended or be in custody. State v. Long,
670.
A juror who owns no land, but whose wife is seized of a fee and
has children by him, is a freeholder, and eligible as a juror.
Hodgin v. Railroad, 93.
The validity of a trial cannot be successfully objected to upon the
ground that one of the jurors, in the sound legal discretion of
the Court, was permitted to ask a competent question of a
witness who was then upon the stand giving testimony. State
v. Kendall, 659.
The method by which jurors are to be selected and summoned not
being prescribed by the Constitution, and no limitation therein
upon the power of the General Assembly to regulate it, an
exception to the validity of section 10, chapter 158, of the
Private Laws of 1895, because the jurors were not drawn out
of the box, but were summoned by the marshal as directed by
the act, cannot be sustained in a criminal action charging
defendant with selling liquor in violation of section 9 of said
act. State v. Brittain, 668.
JURY. See "Questions for Jury"; "Trials."
In an action begun before a justice of the peace in which the plain-
tiff made demand in the sum of $50 for damages done to his
property and premises by defendant in depositing the carcass of
a dead horse near the lands of the plaintiff, whereby the com-
fort and enjoyment of his home were impaired and a nuisance
JUSTICE OF THE PEACE—Continued.
committed to his premises, the Superior Court, on appeal, erred
in dismissing the action for want of jurisdiction in the justice.
Duckworth v. Mull, 461.
Article IV, sec. 27, of the Constitution, and Revisal, sec. 1420
(enacted to carry out this provision), which provides that
"justices of the peace shall have concurrent jurisdiction of
civil actions not founded on contract wherein the value of the
property in controversy does not exceed $50," comprehend all
actions ex delicto, the term "property in controversy" meaning
the value of the injury complained of and involved in the liti-
gation, and where a plaintiff, in good faith, states or limits
his demand in actions of this character at $50 or less, the
justice has jurisdiction concurrent with the Superior Court to
hear and determine the matter. Ibid.
LEASES. See "Corporations"; "Railroads."
Where certain townships by extra taxation procured the building
through their territory of a railroad, the Legislature has the
power to direct the County Commissioners to expend exclusively
in those townships the county taxes derived from such railroad
property in said townships "in repairing roads, building
bridges, extending schools, or such other purposes as the Com-
missioners may deem best," until the amount so used in said
township shall fully reimburse them for the amount paid out
to aid in building said railroad. Jones v. Commissioners, 59.
An entry on the legislative journal that "The bill passed its second
reading, ayes 39, noes..., as follows:" then follows a list of
those voting in the affirmative, without-any reference to those
voting in the negative, indicates that the bill passed by a
unanimous vote and that there were no names to be recorded
in the negative, and is a compliance with the requirements
of Article II, sec. 14, of the Constitution, that the ayes and
noes shall be entered on the journals. Debnam v. Chitty,
131 N. C., 657, overruled; Commissioners v. Trust Co., 110.
The power to levy assessments upon lots to which special and
peculiar benefits accrue from a public improvement is con-
ferred upon the city of Asheville by section 65, chapter 100,
Private Laws 1901. Asherille v. Trust Co., 360.
The Legislature has the power to authorize a railroad corporation
to cross and, of course, to erect a bridge over a navigable
stream. Pedrick v. Railroad, 485.
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