Cowles v. Curry , 96 N.C. 331 ( 1887 )

Smith, C. J.,

(after stating the case as above). The appellants complained of the action of the Judge in striking from the record the first, and entering the second, a substituted judgment, as unauthorized by law, notwithstanding no exceptions thereto were then taken. This alone would be sufficient for our refusal to entertain the objection made here for the first time, but a more effectual answer is found in the statement contained in the record, that the substitution was “ by consent of parties.”

The only assignment of error which we can consider, consists in the overruling the exceptions to the referee’s corrected account, in the particulars suggested, and these are in substance but one exception.

It will be observed, that the objection rests upon a misapprehension of the change made by the referee in the last rendered account. The credit of $580 is allowed in the first, and he does not add thereto the credit of $450, which if done, would enlarge the excess into hundreds, instead of the small sum found to have been overpaid. He states the account upon the basis of allowing, as directed by the Court, the $450 credit as of April 30th, 1856, and the excess in the credit of January 31st, 1860, over the other, as included in it, which $130 is an additional sum paid at the latter date. In other words, the debtor is considered as having paid the smaller sum of $450 at the time of its endorsement on the note, and the further sum of $130 when the order was paid in full, and the credit of $580 entered upon it. The effect of this method of computation is to reduce the interest-bearing principal, after deducting the $450, thereafter to $104tW. We do not see any error in this, and if there was error it cannot now be rectified, since the ruling by which that was brought about, in the direction for a reformation of the account, passed without objection from the appellants, as indeed no exception had been taken by them until the second report was made, and the correction was in strict conformity with the order.

There is no error, and the judgment must be affirmed.

No error. Affirmed.