Ginsberg v. . Leach , 111 N.C. 15 ( 1892 )

The following issues were submitted to the jury:

1. Did the defendant unlawfully commit the trespasses and damages as alleged in the complaint?

2. What damage has the plaintiff sustained?

There were no exceptions, other than to the charge and the refusal to give a prayer in the words asked. There was but one witness (Bishop) introduced by the plaintiff, and there was no testimony for the defendant. The court instructed the jury that, if they believed the witness, to answer the first issue "Yes." The jury, on their return, responded to this issue, "No." The court then asked the jury if they had understood it to charge that, if they believed the witness, to answer the first issue "Yes?" A juror arose and stated that the jurors (16) had understood the court so to charge.

The instruction of the court, as to the first issue, was all the plaintiff could possibly have asked. There was no evidence that the defendand [defendant] ejected plaintiff, "molliter manus," but if the witness was to be believed, he did so violently and roughly. The jury having on the first issue returned that they did not believe the witness, it becomes immaterial to consider the correctness of the instructions applicable to the second issue. The Court will not deal with abstract propositions of law.

NO ERROR.

Cited: Malloy v. Fayetteville, 122 N.C. 485; Hamilton v. Lumber Co.,160 N.C. 52.