McKonkey & Co. v. Gaylord. ten dollars beyond what the law allowed him, and was bound to surrender it up, and that the retaining of it was a concealment. The Court refused the instructions as prayed for, and told the jury that without undertaking to intimate to them the force and effect of the evidence, it was submitted to them in the language in which it had been written down in the statement, and that they should give it such weight as they thought it entitled to, in showing that the defendant concealed money since the beginning of these proceedings, and the issuing of his notice to the plaintiff. That if they were satisfied that the defendant had in possession, since that time, the money referred to in the statement, or any other, and that he made no disclosure thereof in his schedule, then they should find the fraudulent concealment as charged in the issue. Verdict for the defendant. Rule for a new trial; rule discharged. Appeal. No counsel for the plaintiff. Heath and Smith, for the defendant. NASH, C. J. There is no error in the ruling of the Court below, or in admitting the testimony objected to: As to the latter, the testimony of Mr. Kelly was clearly competent. The rule, as stated by Mr. STARKIE, in his Treatise on Evidence, 2 vol., p. 372, is, that the witness must either have seen the party write, or have obtained a knowledge of the character of his writing, from a correspondence with him upon matters of business, or from transactions between them, such as having paid bill of exchange for time, for which he has afterwards accounted. The witness testified that he had corresponded with the merchant in New York, whose signature was to be proved, by writing to him and receiving letters from him, and in this way he had acquired McKonkey & Co. v. Gaylord. a knowledge of his signature. The objection was, "the witness had not shewn himself qualified to speak of it." It is within one of the above modes stated, whereby the competent knowledge may be acquired, and the witness professed in that way, he had acquired his knowledge of the signature. The other portion of his testimony might enable the jury to give the whole its proper weight, which was submitted to the jury as belonging solely to them. See DOE on dem of MUDD V. SUCKERMAN, 31 E. C. L. R. 406. POPE v. ASKEW, 1st Ired., 16. STATE V. HARRIS, 5th Ired. 287. GORDON V. PRICE, 10th Ired. 385. His Honor's charge upon the statement made a part of the case, and was correct. That statement was entirely too vague and uncertain, as to the period when the defendant was seen in the possession of the money: Whether, before the writ in the case issued: or before he was arrested under the ca sa or during the pendency of the inquiry under the issues: or when it is simply a statement, that the defendant had been seen gambling, and to possess more than ten dollars. The statement could not aid the jury in coming to any conclusion, as to the time when he was so seen in possession of the money. If such testimony was sufficient to deprive a defendant of the privilege intended by the Legislature, in the act under which the proceedings are had, it would hold out to him a false hope; for it embraces the whole life of the defendant. In every such issue the plaintiff is the actor, he charges a fraudulent concealment by the defendant of his property, and he must prove it; he must, in the language of his Honor, "show that the defendant concealed the money since the beginning of these proeeedings." No man can be expected to account for every trifling sum of money, which may have been in his possession at an indefinite period of time. Judgment affirmed. Pendleton v. Davis. REUBEN PENDLETON vs. WARREN H. DAVIS. The fact, that a blow was given in the presence of a Court, in session, may be given in evidence, in aggravation of damages, though the aet might have also been punished by the Court, as a contempt. A verdict for $100, as actual damages, and $1,000 as exemplary damages, is good. (MCAULAY V. BURKHEAD, 13 Ired. 28, cited and approved.) ACTION of TRESPASS, ASSAULT and BATTERY, tried before his Honor Judge ELLIS, at the Fall Term, 1853, of Pasquotank Superior Court. The battery complained of, was a blow inflicted upon the head of the plaintiff with a stick, and was made in the Court. It ensued upon the occurrence of an angry conversation between the parties, and no justification was alleged. Evidence was offered to show that the defendant was a man of large property, worth from seventy-five to a hundred thousand dollars. This was tendered with a view to the en-hancement of damages. The Court was asked by the plaintiff's cousel, to instruct the jury, that the circumstance of the injury's being inflicted in the Court House, during the session of the Court, might be considered in the question of exemplary damages. The reception of the evidence was objected to by the defendant's counsel, but received by the Court; and his Honor also instructed the jury as requested by plaintiff's counsel, that the pecuniary ability of the defendant, as well as the place and attendant circumstances, might be considered by them upon the question of damages, and the defendant's counsel excepted for error in the reception of the evidence, and in the instructions given by the Court. The verdict was for "$100 actual damages, and $1,000, as exemplary damages." Judgment and appeal to the Superior Court. Pendleton v. Davis. Pool and Smith, for the plaintiff. PEARSON, J. It is admitted, that the jury were at liberty to give exemplary damages. The objections to the charge are met by the case of MCAULAY V. BURKHEAD, 13 Ired. Rep. 28: "To enable juries properly to exercise this discretion, it is necessary to put them in possession of all the facts and circumstances connected with the parties, as well as the act;" "a thousand dollars may be a less punishment to one man than a hundred dollars to another." It is said, that the circumstance, that the blow was given in the presence of the Court, should not have been left to the jury, because the defendant was liable to be fined for that, as a contempt, and if the jury could also take it into consideration, he would be punished twice for the same thing. Upon the same ground, it might be insisted, that a jury could not give exemplary damages when a defendant was liable to an indictment; yet, it is well settled law, that a jury may give exemplary damages in such cases. No doubt the Court, in imposing the fine, would take into consideration the fact, that exemplary damages had been recovered. In several cases the proceedings in indictments have been stayed until it was ascertained what would be the recovery in the civil action. It was also insisted, that no judgment could be rendered on the verdict, because of its uncertainty. It is not in the usual form, but it is in effect for $1,100, as damages, and the jury go on unnecessarily to disconnect and say $100 is for actual damages, and $1,000 is for exemplary damages. This is surplusage, and comes within the application of the rule, utile per inutile non vitiatur. In assumpsit for a liquidated account, the proper finding is, "who assess the plaintiff's damage at $1,100, of which sum $1,000 is principal money, and $100 by way of interest." But a finding, "who Dozier v. Gregory. assess the plaintiff's damage to $1,000 for principal money, and $100 for interest," would in fact be assessing the damages at $1,100, and although not formal, would be sufficiently certain. Judgment affirmed. JOHN DOZIER vs. WILLIAM N. GREGORY. The husband of a tenant in dower is not liable for mere permissive waste, after the death of his wife, and the surrender of his possession. The husband of a tenant in dower, who removes a house from the premises, is liable in an action in the nature of waste, even after the death of his wife, though he may have built the house himself. ACTION on the case, in the nature of WASTE, tried before his Honor Judge SAUNDERS, at the Camden Superior Court, Spring Term, 1853. The plaintiff showed title to the premises by descent from Malachi Dozier. Dower had been assigned to the widow of his ancestor by metes and bounds, including the building in relation to which this action was brought. The widow of Malachi Dozier, after this assignment, intermarried with the defendant, who took possession of the premises, and continued to occupy them until the death of his wife, which occurred just before the bringing of this suit. The defendant, during his occupancy, removed a small house used as a poultry house, worth about five dollars, which the defendant had placed upon the premises after he came into possession. There was a small house on the land used for the same purpose when the defendant entered. There was also on the premises a dwelling house, built in 1800, which the defendant occupied during the life of his wife. This had been thoroughly repaired in 1825, except that the shed could not be prevented from leaking. Upon this house the defendant did no repairing during his occu |