The issues as submitted were sufficient, and there is no ground to support the exception for refusing to submit those tendered by the appellants. Humphrey v. Church, 109 N.C. 132, and cases there cited.
The plaintiff rested his case upon the invalidity ab initio of the alleged marriage between Nash Booth and Anne Bowers (or Booth), one of the defendants, under the provisions of The Code, secs. 1084, 1284
and 1810; Const., Art XIV, sec. 8. We see, therefore, no force (178) in the first exception, which was to the witness testifying that Anne Booth was a colored person and reputed to be such, S. v.Patrick, 51 N.C. 308. Nor to the second exception, which was of the testimony of the witness who knew her and had had opportunities of observation, that in his opinion said Anne was of mixed blood. It was not necessary that the witness should be an expert to testify to a matter which is simply one of common observation. It has been held in the leading case of Clary v. Clary, 24 N.C. 78 (which has been repeatedly approved), and upon the same grounds that one not an expert can give his opinion as to the sanity or insanity of a person he has had opportunities of observing. Besides, the witness really qualified himself as an expert. S. v. Jacobs,51 N.C. 284.
The counsel, in his argument here, objected to the expressions "colored person" and "mixed blood," and cited S. v. Chavers, 50 N.C. 11. While those terms might not be accurate in an indictment, it does not appear that any objection to the evidence on that ground was interposed below so as to give the witness opportunity to correct his language, and we must assume the jury understood the words in their usual signification.
When the defendants demurred to the evidence, the ruling of his Honor that thereby the defendants admitted the truth of the testimony, together with such inferences favorable to the plaintiffs as could be reasonably drawn therefrom, was unquestionably correct. Bond v. Wool, 107 N.C. 139;Nelson v. Whitfield, 82 N.C. 46. Instead of having ground for exception, the defendants are indebted to the favor of the court that they were allowed to withdraw the demurrer. The exception, if any, should have come from the other side.
The fourth exception is also without merit. There was much testimony tending to show that Anne Booth was a colored woman. It was certainly competent, therefore, to put in evidence, as a circumstance in corroboration, to be weighed by the jury, that she usually (179) associated with colored people. Juries are peculiarly fitted to give the proper weight to such evidence in accordance with the social customs prevailing around them and which are matters of common observation.
Nor is there any merit in the 5th, 6th, 7th, 8th and 9th exceptions, which have already been passed upon in the former appeal. Hopkins v.Bowers, 108 N.C. 298. The court, under The Code, sec. 590, properly ruled out the evidence sought to be elicited of Anne Booth to show marriage between her and Nash Booth. She was a party to the action and interested in the result, for both plaintiffs and defendants claimed under Nash Booth. If marriage is not a personal transaction between
the contracting parties, what is it? We are unable to accept the view of the defendant's counsel that it is solely the act of the officiating minister or justice of the peace. The rejection of the evidence did not prejudice the defendants, as the marriage certificate was in proof, and the presumption arising was unrebutted as to the act.
Neither is there any merit in the 10th exception, and for the reason given by the court below. The Code, sec. 1360; Kerchner v. Reiley,72 N.C. 171; Katzenstein v. R. R., 78 N.C. 286. Besides, the matter was res judicata, Roulhac v. Brown, 87 N.C. 1. The prayers for instructions, so far as they were correct, were substantially given in the charge. The court properly refused to give as a charge the rule formerly prevailing in equity courts. Ferrall v. Broadway, 95 N.C. 551. The "broadside challenge" to the "charge as given," has been held invalid inMcKinnon v. Morrison, 104 N.C. 354, and in the twenty-odd cases since, in which it has been cited and approved, besides in the numerous prior opinions cited in that case.
The judgment upon the verdict in favor of the plaintiffs was signed by the court, and contains no condition. The judge made a (180) verbal conditional order to the clerk in favor of appellants to set aside the judgment and verdict if a bond was filed in five days. This was conditional and of no effect. Strickland v. Cox,102 N.C. 411, cited and approved in In re Deaton, 105 N.C. 59, and had it been acted on, the present appellee would have had ground to complain. The judge could not thus delegate his authority to the clerk. We are at a loss to understand how the invalid order in favor of the defendants could impeach the valid judgment in favor of the plaintiffs. In Strickland v. Cox, supra, the judgment signed in favor of the plaintiffs was conditional, "to be stricken out if," etc., and hence invalid. Here, it is the order setting aside the verdict and judgment "if bond is filed," which is conditional, and hence void. The direction not to docket pending the conditional order was simply a nullity. The Code, sec. 435. The court did not set aside the verdict and judgment, and distinctly stated that it could not say that the verdict was against the weight of the evidence. The sympathy evinced by his Honor for the infant defendants was creditable to his sensibilities, but the practice attempted by him has been often ruled invalid, and could only result in adding to the complications of the litigation, with benefit to no one.
NO ERROR.
Cited: Ward v. R. R., 112 N.C. 179; Hemphill v. Morrison, ib., 757;Hare v. Board of Education, 113 N.C. 15; S. v. Sherman, 115 N.C. 775;Hinton v. Ins. Co., 116 N.C. 25; Rickert v. R. R., 123 N.C. 258;Cogdell v. R. R., 130 N.C. 326; Taylor v. Security Co., 145 N.C. 396;Puette v. Mull, 175 N.C. 536.