Miller v. . Pharr

87 N.C. 396

• Court: Supreme Court of North Carolina
• Decided: October 5, 1882
• Status: Published

Opinion

Ruffin, J.

There is no ground for the plaintiff’s exception. The note was merged in the judgment, and we presume had been cancelled by the justice, as it should have been. -At all events, it was properly accounted for by proof that it was on file with the papers in the justice’s office. Gregory v. Hooks, 11 Ired., 371. Therefore the first instruction asked for was properly refused.

As to the second instruction — Conceding it to have been the duty of the constable to have received the money of the justice and paid it over to the plaintiff, still, we think it was properly refused, as there was certainly some evidence going to show that he had so done. The plaintiff’s own witness (Dowd) testified that he had received money on the claims from time to time, and until he thought all had been paid that could have been collected on them ; and that he so declared to the defendants when he made a demand on them after the death of the constable. In the face of this testimony, it would have been manifestly improper for the court to have instructed the jury that there was no evidence that the amount due, on this particular note, had ever been paid to the plaintiff.

No error. Affirmed.