Rippey v. Miller.

tiff's property, and that the strict rules of eveidence applicable to the crime of Arson, did not apply to this, which was only an action brought to recover the value of property which plaintiff alleges was destroyed by the defendant's intestate. And, to entitle the plaintiff to recover, he must satisfy the jury that the defendant's intestate did the acts complained of, and that the jury must weigh the whole evidence, and say how the matter

was.

Upon the other points made up by the defendant's counsel, the Court instructed the jury that they might find the value of the horse killed, the value of the wheat and straw which was destroyed with the house, as well that brought there to be threshed, as that of his of his own. If the jury desired, they might find interest upon the value of the property destroyed from the time it was destroyed; but that the question of interest was a matter wholly for the jury.

Under these instructions, the jury returned a verdict for the plaintiff.

Motion for a venire de novo. Rule discharged. Judgment and appeal.

Bynum and Lander for plaintiff.

Guion, J. Baxter, and Gaither, for defendant.

NASH, C. J. No declaration has been filed, and in such case, it is the practice of the Court to consider such declaration filed, as meets the facts stated in the case. This rule is adopted to prevent surprise on a plaintiff from the loose manner in which the pleadings are conducted on the circuit. The declarations in this case we consider as having several counts, and one for the killing of the horse. The first objection raised by the defendant, was that as this is a case of circumstantial testimony, the jury must be satisfied, beyond a reasonable doubt, of the guilt of the intestate, and unless the facts proved precluded every other hypothesis except that of his guilt, they must find for the defendant. This is the rule in capital cases, and adopted in fa

Rippey v. Miller.

vorem vitae, but does not extend to misdemeanors or civil suits. The point was before the Court at June Term last, at Raleigh, and the principle declared substantially as stated in the case by the presiding Judge.* Upon no controverted fact, ought a jury to find it established, unless the party alleging it produces proof to satisfy their mind that it is so. The object of all evidence is to satisfy the minds upon the controverted facts, and when the tryers are so satisfied by competent and legal testimony, they ought so to declare, and not until so satisfied. His Honor stated the rule upon this subject correctly.

The second exception, as we consider the declaration, surely cannot arise. If the declaration contained but one count, and that for the trespass to the freehold, there might be a doubt whether under the allegation of alia enormia, damages could be given by the jury, for the killing of the Horse; but, as there is a separate count for that injury, and the proper action for redressing it is trespass, vi et armis, and as every count is considered in law as a separate declaration, there surely can be no doubt the evidence was properly received, nor can there be any serious doubt that the counts can be joined, 1st Ch. Pl. 230. There is no error in the charge upon this point.

The third exception was properly abandoned by the defendant in the argument here.

The 4th exception cannot be sustained, and the jury, in an action of Trover or Trespass de bonis asportatis, may in their discretion, give interest on the value of the article converted or taken away or destroyed from the time of the conversion or injury as a part of the damages, DEVEREUX V. BURGUIN, 11 Ire. 490, so as to make the trespasser do full justice, by charging him with the price as on a cash sale.

Judgment affirmed.

*Neal v. Fesperman, ante 446.

Yates v. Waugh.

JESSE YATES, v. JOHN WAUGH, EXECUTOR.

Upon the question before a jury, whether a note had been erased, it is not improper for a witness to say he could see the marks of erasure, and that he had seen the paper in a better light, and could see the erasure more distinctly then than now. A witness need not profess to be an expert to answer these inquiries.

THIS was Action of Debt, on a bond, tried before his Honor, Judge SETTLE, at the Spring Term, 1854, of Wilkes Superior Court.

The signature of the hand in question was established to be the hand writing of the defendant's testator. The defendant contended that the body of the note was a fabrication, written above the name of the testator upon some paper, which had been written on for some other purpose, and that to effect this fraudulent substitution, the original writing had been scratched out, or in some way obliterated, to make room for the present writing. To establish this, General Samuel F. Patterson was asked whether he could see marks of erasure on the paper, and whether he thought there was an erasure? To which questions plaintiff's counsel objected, unless he was proved to be an expert in the detection of forgeries. Upon enquiry as to his qualifications to speak as an expert, he answered that he had been Treasurer of the State, President of a Railroad Company, and President of the State Bank for a short time, but did not profess to be an expert. The evidence was decided to be admissible, whereupon the witness stated that on a former occasion, when he had seen the paper, the light being better, he saw marks of erasure more distinctly then, than he now could see them, but that he could still see them. Plaintiff excepted. Verdict for the defendant. Rule for a new trial for the matter excepted to. Rule discharged. Rule discharged. Judgment and appeal.

H. C. Jones, for plaintiff.

Boyden and Mitchell for the defendant.

Dameron v. Justices of Cleaveland.

NASH, C. J. The doctrine of experts has no application to the case; the question was not one of skill or science, but simply of vision and as to that, the jury might or might not be able to decide as well as the witness; that would, in some degree, depend on the excellence of their eye-sight: at any rate, it cannot be error in law to prove to a jury that which they might arrive at, unassisted by the witness.

But there was was one part of the witnesses testimony, important on the trial, and which the jury could not know without testimony. It appears, from the case, that the witness had seen the note before, and its then situation as to the scratches was certainly a relevant inquiry. Suppose, at that time, instead of being scratched, it had then been entirely free from them, that fact would have been very important to the plaintiff. The charge is, that although the signature was genuine, yet that some matter had been written above it, which had been erased or scratched out, and the obligatory part written on the paper, so that the appearance, when first seen, would have been very material to the plaintiff. Its previous condition, as corresponding with its appearance was important to the defence. More espepecially as the witness stated that when he first saw it, the light was better, and he saw it more distinctly than when giving his evidence; and this surely had a tendency to aid the jury, in the dim light with which they were provided, when viewing the instrument themselves.

Judgment affirmed.

JOHN DAMERON v. JUSTICES OF CLEAVELAND.

A contractor to build a Court House, who has not done the work according to the contract, is not entitled to a mandamus to compel the Justices of the county, employing him, to pay the sum agreed on.

Dameron v. Justices of Cleaveland.

THIS was an application for a mandamus against the Justices of Cleaveland, to compel them to pay the plaintiff for building a Court House in the county of Cleaveland, tried before his Honor Judge SETTLE, at Spring Term, 1854, of Lincoln Superior Court.

The questions growing out of the case, arose upon certain issues, which were agreed on, and submitted to the jury, and it was upon exceptions to the charge of his Honor, in submitting these issues, that the plaintiff appealed to this Court, all which is sufficiently noticed by the Court in its opinion.

Bynum and Craige, for plaintiff.

Guion and Lander, for defendants.

BATTLE, J. This was an application by the plaintiff for a mandamus to compel the defendants to pay him a certain balance alleged by him to be due for building a Court House for the county of Cleaveland. To his petition the defendants made their return by way of answer, and therein stated, that the plaintiff had failed to execute his contract according to the specification therein contained, and that they had already paid him as much as his work, labor and materials were worth, and they insisted that they were under no obligation to pay him any more. The plaintiff traversed the return of the defendants, and the following issues were drawn up, by the counsel of the respective parties, under the direction of the Court, to be submitted to a jury:

"1st. Did the plaintiff execute the contract according to the specifications and agreement; and, if so, to what sum is he entitled from the defendants.

"2d. If the plaintiff failed to perform his contract, according to said agreement and specifications, and yet erected the building in a different way, and with different materials, and the building so erected was accepted and used by the Justices of Cleaveland, to what sum is the plaintiff entitled therefor."

Upon the trial of these issues, testimony was introduced by