Jackson v. . Spivey and Harris

Supreme Court of North Carolina

Jackson v. . Spivey and Harris

63 N.C. 261

DecidedJanuary 5, 1869

StatusPublished

This text of 63 N.C. 261 (Jackson v. . Spivey and Harris) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jackson v. . Spivey and Harris, 63 N.C. 261 (N.C. 1869).

Pincite

Opinion

Rodman J.

The first exception of the defendant, was because of the refusal of the Judge to permit the answer of the defendant Spivey, who was then dead, to be read in evidence for the defendants at the trial of the issues. The Judge committed no error in this. On a trial of a suit in a Court of Equity,, the answer of a defendant may be read by him in evidence where it is responsive to the equity set up in the bill and by way of denial; but it is not evidence for him in that Court of an affirmative defence by the allegation of new matter. 2 Dan. Ch. P. 983. Thomas v. Kyles, 1 Jon. Eq. 302, Hughes v. Blackwell, 6 Jon. Eq. 63.

When issues are sent down to to be tried by a jury, it is not the practice to allow the answer of the defendant to be read, or even that part of it which is responsive and negative, unless it is so directed in the order for the trial. The Court may order that the answer shall be read, or that certain admissions shall be made, and so shape both the issues and the mode of trial, as to elicit the truth.

One reason for excluding the answer is that stated by the Judge, that the plaintiff has had no opportunity for cross-examination. Another is, that the answer is not anywhere evidence of affirmative matter, and the • affirmant in the issues having on him the onus probawM, there can be no necessity for using the answer simply as a denial, and the issue is tried like any other issue of fact joined at law.

As to the second exception of the defendants, we can see no- *264 ■error in tbe manner in which, the Judge left the issues to the jury. The main question was, whether Andrew Jackson paid for the forty acres of land by a voluntary appropriation of his own money, or in discharge of a debt to Thomas Jackson the plaintiff, which he owed by having received the money from plaintiff’s grand father with directions to apply it to the purchase of this land, and having temporarily appropriated it to his own use. If he was bona fide a debtor to the plaintiff to the amount paid, he might prefer him, although he was his son, and if he had made the purchase with the money of his son; and taken the deed in his own name, he would have been held a trustee for his son.

It is true that the verdict of the jury is not positively binding on the Court, but it wilFnot be lightly disturbed, and we see nothing in the evidence to impeach it.

The plaintiff is entitled to a decree for a specific performance by the heirs of the deceased defendant Spivey, of the contract of their ancestor, and to have his injunction against the defendant Harris perpetuated.

The plaintiff will recover his costs against Harris.

Per Curiam. Decree accordingly.

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Rodman J.

The first exception of the defendant, was because of the refusal of the Judge to permit the answer of the defendant Spivey, who was then dead, to be read in evidence for the defendants at the trial of the issues. The Judge committed no error in this. On a trial of a suit in a Court of Equity,, the answer of a defendant may be read by him in evidence where it is responsive to the equity set up in the bill and by way of denial; but it is not evidence for him in that Court of an affirmative defence by the allegation of new matter. 2 Dan. Ch. P. 983. Thomas v. Kyles, 1 Jon. Eq. 302, Hughes v. Blackwell, 6 Jon. Eq. 63.

When issues are sent down to to be tried by a jury, it is not the practice to allow the answer of the defendant to be read, or even that part of it which is responsive and negative, unless it is so directed in the order for the trial. The Court may order that the answer shall be read, or that certain admissions shall be made, and so shape both the issues and the mode of trial, as to elicit the truth.

One reason for excluding the answer is that stated by the Judge, that the plaintiff has had no opportunity for cross-examination. Another is, that the answer is not anywhere evidence of affirmative matter, and the • affirmant in the issues having on him the onus probawM, there can be no necessity for using the answer simply as a denial, and the issue is tried like any other issue of fact joined at law.

As to the second exception of the defendants, we can see no- *264 ■error in tbe manner in which, the Judge left the issues to the jury. The main question was, whether Andrew Jackson paid for the forty acres of land by a voluntary appropriation of his own money, or in discharge of a debt to Thomas Jackson the plaintiff, which he owed by having received the money from plaintiff’s grand father with directions to apply it to the purchase of this land, and having temporarily appropriated it to his own use. If he was bona fide a debtor to the plaintiff to the amount paid, he might prefer him, although he was his son, and if he had made the purchase with the money of his son; and taken the deed in his own name, he would have been held a trustee for his son.

It is true that the verdict of the jury is not positively binding on the Court, but it wilFnot be lightly disturbed, and we see nothing in the evidence to impeach it.

The plaintiff is entitled to a decree for a specific performance by the heirs of the deceased defendant Spivey, of the contract of their ancestor, and to have his injunction against the defendant Harris perpetuated.

The plaintiff will recover his costs against Harris.

Per Curiam. Decree accordingly.

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Bluebook (online)

63 N.C. 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-spivey-and-harris-nc-1869.