Branton v. . O'Briant , 93 N.C. 99 ( 1885 )

MERRIMON, J., did not sit. The application for a new trial upon any of the grounds assigned was properly denied:

1. The exception to the admission of the deposition is untenable, since the finding of the facts by the court, in cases where the judge is authorized by law or consent of parties to pass upon them, is as conclusive as when found by a jury upon issues submitted to them, if there beevidence. when there is none, it is alike an error in law, in either to find them, open to correction. So it has been repeatedly ruled in past adjudications, referred to by appellee's counsel.

Thus the court has been called on to ascertain and determine whether a witness was of Negro blood, within the prohibited degrees, when (104) in certain cases this disqualification existed. S. v. Norton, 60 N.C. 296.

Whether as an expert he was competent to testify. Flynt v. Bodenhamer,80 N.C. 205; S. v. Secrest, ibid., 450

Whether confessions of one accused of crime proceed form undue influence, action upon his hopes or fears: S. v. Sanders, 84 N.C. 728; S.v. Efler, 85 N.C. 585; S. v. Burgwyn, 87 N.C. 572, and numerous other cases.

And whenever the finding of facts devolves upon the judge, by law or by consent, substituted for the jury; Cardwell v. Cardwell, 64 N.C. 621;Burke v. Turner, 85 N.C. 500.

2. If instructions were desired they should have been asked before the rendition of the verdict, and in strictness, before the retirement of the jury. One cannot be allowed to remain silent, speculating upon the result, and when it is adverse, complain that the instructions were not given. Proceedings in court must be controlled by rules prescribed and tending to secure fair trials and prevent surprise. An omission in the charge delivered is the fault of counsel, not a reviewable error in the trying judge. This is too well settle to require comment, alike under the old and new practice S. v. O'Neal, 29 N.C. 251; Harrison v. Chappell, 84 N.C. 258;Tayloe v. Steamship Co., 88 N.C. 15; Fry v. Currie, N.C. 436.

In the last cited case the Court, quoting and construing sec. 412, par. 3, of The Code, in its present form, thus speaks: "It is obvious that an omission to give a charge, to which a party would have been entitled, will not be a reviewable error, unless requested and refused. " and it is equally manifest that the expression " in his instructions generally" is meant to embrace such instructions as involve an erroneous statement of the law. When the judge undertakes to lay down the law he must lay it down correctly, that is, the legal proposition must be in itself correct. The enactment is but the affirmation of previous ruling Bynum v. Bynum,33 N.C. 632; Burton v. R. R., 82 N.C. 505; Pierce v. Alspaugh,83 N.C. 258.

No error is pointed out in the charge, and we discover none. (105) The renting was from month to month, as the defendant in his answer admits, and had subsisted since the beginning of the year, and could be legally terminated only be a preceding notice of fourteen days. The Code, sec. 1750. this is not shown to have been given before the defendant's entry upon the premises in the assertion of this proprietary the plaintiff under such circumstances finds no legal justification in the defendant's ownership of the property. There is no error, and the judgment is affirmed.

No error. Affirmed.

MERRIMON, J., did not sit.

Cited; Jones v. Call, post, 179; King v. Blackwell, 96 N.C. 326; S.v. Potts, 100 N.C. 461; S. v. Hinson, 103 N.C. 377; McKinnon v.Morrison, 104 N.C. 364; Blackburn v. Fair, 109 N.C. 465; Simmons v.Jarman, 122 N.C. 198; Matthews v. Fry. 143 N.C. 385; Stokes v.Cogdell, 153 N.C. 182; State's Prison v. Hoffman, 159 N.C. 570;Buchanan v. Clark, 164 N.C. 61; Gilmore v. Smathers, 167 N.C. 443;Adickes v. Drewry, 171 N.C. 671; McMahan v. Spruce Co., 180 N.C. 642.