Morris v. Lapene

Court of Appeals of North Carolina

Morris v. Lapene

17 S.C.L. 191

DecidedFebruary 15, 1829

StatusPublished

This text of 17 S.C.L. 191 (Morris v. Lapene) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Morris v. Lapene, 17 S.C.L. 191 (N.C. Ct. App. 1829).

Pincite

Opinion

Johnson, J.

delivered the opinion of the Court.

The Act of 1827, which is in effect the same as that of 1791 as to this particular, allows to the plaintiff’s attorney five dollars for “ every motion for a new trial, in arrest of judgment, or special matter and argument on trial in Circuit, or in the Court of Appeals.”

The universal practice has been' and still is, to allow this charge in all cases where a trial has been had upon an issue joined between the parties ; but no instance now occurs to me in which it has been claimed on the execution of a writ of inquiry: and generally speaking, it clearly could not,-for there are but few instances in which an argument would be useful or necessary. But to this there are some exceptions.

In actions on penal bonds conditioned for the performance of covenants, the defendant, although he may have made default and judgment may be entered against him, may nevertheless'compel the plaintiff by rule to submit the condition to a jury, to ascertain the damages. So in actions sounding altogether in damages, the defendant, although he may have made default and not pleaded, may, according to the practice, come in and contest the amount of damages; and it is not unusual, that these cases call forth a great deal of discussion, on matters of law as well as of fact. Now in these cases, and others of a similar nature, I can see no reason why it should not be allowed. The question quart-[192]*192turn damnificatus, plus aut minus ? involv.es a negative and affii'-' mative to be tried. The necessity for an argument is the same as on the trial of a formal issue, and it is I think clearly covered by the words of" the a.ct. I would therefore lay it down as st general rule, that whenever an argument became necessary, in consequence of a defence made or an objection raised by the defendant, on the execution of a writ of inquiry, the plaintiff’s attorney shall be intitled to tax for special matter and argument. And the clerk- is hereby ordered to revise the taxation of costs in this case in conformity with this opinion.

Motion granted.

Free access — add to your briefcase to read the full text and ask questions with AI

Johnson, J.

delivered the opinion of the Court.

The Act of 1827, which is in effect the same as that of 1791 as to this particular, allows to the plaintiff’s attorney five dollars for “ every motion for a new trial, in arrest of judgment, or special matter and argument on trial in Circuit, or in the Court of Appeals.”

The universal practice has been' and still is, to allow this charge in all cases where a trial has been had upon an issue joined between the parties ; but no instance now occurs to me in which it has been claimed on the execution of a writ of inquiry: and generally speaking, it clearly could not,-for there are but few instances in which an argument would be useful or necessary. But to this there are some exceptions.

In actions on penal bonds conditioned for the performance of covenants, the defendant, although he may have made default and judgment may be entered against him, may nevertheless'compel the plaintiff by rule to submit the condition to a jury, to ascertain the damages. So in actions sounding altogether in damages, the defendant, although he may have made default and not pleaded, may, according to the practice, come in and contest the amount of damages; and it is not unusual, that these cases call forth a great deal of discussion, on matters of law as well as of fact. Now in these cases, and others of a similar nature, I can see no reason why it should not be allowed. The question quart-[192]*192turn damnificatus, plus aut minus ? involv.es a negative and affii'-' mative to be tried. The necessity for an argument is the same as on the trial of a formal issue, and it is I think clearly covered by the words of" the a.ct. I would therefore lay it down as st general rule, that whenever an argument became necessary, in consequence of a defence made or an objection raised by the defendant, on the execution of a writ of inquiry, the plaintiff’s attorney shall be intitled to tax for special matter and argument. And the clerk- is hereby ordered to revise the taxation of costs in this case in conformity with this opinion.

Motion granted.

Cite This Page — Counsel Stack

Bluebook (online)

17 S.C.L. 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-lapene-ncctapp-1829.