that a majority of the votes cast at the elec- [ with the plaintiff on the account of C. Syer tion was not in favor of the proposition. A & Co., after being indorsed by C. Syer & Co. restraining order was issued, and at the trial The evidence tends to prove that Brockett a verdict was returned by the jury in favor received credit for the full sum, and C. Syer of the defendants. Judgment was rendered & Co. received credit for the full $1,335.70 upon the verdict dissolving the restraining from the plaintiff bank. The defendant adorder, and directing the collection of the tax, mits drawing the check, and owing C. Syer and also adjudging the liability of the plain- & Co., and that he has never paid it and tiffs and their surety on the injunction bond has refused to pay it. in certain contingencies. The plaintiffs excepted and appealed. Ehringhaus & Small and Aydlett & Simpson, all of Elizabeth City, for appellants. Ward & Thompson, of Elizabeth City, for appellees. PER CURIAM. [1] We have considered the exceptions of the plaintiffs to the refusal to submit certain issues and to the charge, and find them without merit. The issue submitted covers every phase of the controversy, and the charge is free from objection. [2] The exception to the judgment must be sustained, as the liability of the plaintiffs and their surety on the injunction bond cannot be determined in advance of any loss or damage proven or sustained. The defendant will be taxed, with the costs of this court. Modified and affirmed. (174 N. C. 41) The check was not produced at the trial, and at the conclusion of the evidence his honor entered judgment of nonsuit on the ground that there was no evidence of the loss of the check, and the plaintiff excepted and appealed. Aydlett & Simpson, of Elizabeth City, for appellant. Ward & Thompson, of Elizabeth City, for appellee. ALLEN, J. [1] The principle requiring the loss of a paper to be established before evidence of its contents is admitted has no application to this case, because the defendant admits in his answer the execution of the check, the amount, on what bank drawn, and to whom payable, and the nonproduction of the paper was only material after verdict in determining the action of the court with reference to indemnity. [2] There was, however, evidence of loss of the check. C. C. Hayes, a member of the FIRST NAT. BANK OF ELIZABETH CITY firm of C. Syer & Co., testified that he rev. BROCKETT. (No. 15.) ceived the check from the defendant and sent (Supreme Court of North Carolina. Sept. 12, it to the plaintiff; E. V. Griffin, who was 1917.) In an action on a check which was not produced at trial, evidence held to establish the loss of the instrument. 3. TRIAL 143-PROVINCE OF JURY-DIRECTION OF VERDICT. Conflicts in the testimony of witnesses merely affect their credibility, and do not warrant withdrawal of the case from the jury. Appeal from Superior Court, Pasquotank County; Justice, Judge. Action by the First National Bank of Elizabeth City, N. C., against Robert Brockett. From a judgment of nonsuit, plaintiff appeals. Reversed. This is an action instituted by the First National Bank of Elizabeth City against Robert Brockett of High Point, N. C., to recover the sum of $1,335.70, being the amount of a check drawn by Robert Brockett on the 21st day of August, 1915, and paid to C. Syer & Co., of Norfolk, Va., and deposited employed in the plaintiff bank, testified that the check was sent out to the Bank of Commerce at High Point in a letter he wrote; and H. A. Willis, cashier of the Bank of Commerce, testified in substance that the Bank of Commerce did not receive the check. This, if true, raises a fair presumption that the check was lost in the mail. (Supreme Court of North Carolina. Sept. 12, 1. DEEDS 111-CONSTRUCTION LAR DESCRIPTION. - PARTICU A particular description in a deed is not en2. DEEDS 118-CONSTRUCTION - BOUNDlarged by subsequent general language. ARIES. The rule that the description of land in a deed may be enlarged or limited by evidence of a caution, because, in legal effect, it permits the contemporaneous survey must be applied with transfer of land by parol, and hence the descrip the Buck lot the dividing line is as they contend. tion of a deed cannot be enlarged by testimony | and that if they own the northern half of that the grantor at the time of execution inform ed the grantee that the parcel conveyed extended to a given point; it not appearing that the parties went on the land with a view of making the deed and made a physical survey which is necessary in order to change the description in a deed. The defendants further contend that at the time the deed to them was executed there was an actual location of the line as they contend it to be, and that this controls Appeal from Superior Court, Beaufort the calls in the deed. County; Daniels, Judge. Action by W. T. Potter against G. I. Bonner and wife. From a judgment for plaintiff, defendants appeal. Affirmed. This is an action to try the title to land; the whole controversy being dependent on the location of the dividing line between the lot of the plaintiffs and of the defendants. Sallie Carr Thompson, wife of W. A. Thompson, in 1909 owned a lot in Aurora, N. C., lying on the east side of Fourth street and north side of Middle street In the deed to Mrs. Thompson from F. C. Buck and wife the lot is described as: "Beginning at the intersection of Fourth and Middle streets, and runs about east with the center of Middle street 70 yards; thence about north and parallel with Fourth street 65 yards; thence about parallel with Middle street 70 yards; thence with center of Fourth street 65 yards to the beginning." By deed dated July 12, 1909, Sallie Carr Thompson and W. A. Thompson conveyed to Bessie C. Bonner, feme defendant, that por tion of said lot described as follows: "A certain tract or parcel of land in the town of Aurora, Beaufort county and state of North Carolina, adjoining the lands of Nannie Dailey, F. C. Buck, and others, and bounded as follows, viz.: On the east side of Fourth street, in the town of Aurora, beginning in the center of Fourth street at a point 110 feet north of the intersection of Fourth and Middle streets, running about east and parallel with Middle street 210 feet; thence about north and parallel with Fourth street to the line of the lot belonging to the heirs of J. B. Bonner, deceased; thence about west with the Bonner line to the beginning-containing one-half acre, and being the same lot known as the F. C. Buck home place; and this deed is intended to convey the northern one-half of the said Buck lot, it being lot No. 1 as conveyed by F. C. Buck and wife, to Sallie Carr Thompson by deed dated October 23, 1906, and recorded in Book 141, page 323." By deed dated March 8, 1917, Sallie Carr Thompson conveyed to W. T. Potter, plaintiff, that portion of the Buck lot lying south of the portion conveyed to Bessie C. Bonner, feme defendant; the description calling for the line of the defendant. The defendants admit that the dividing line is as plaintiffs claim if the following description in the deed to them controls: "Beginning in the center of Fourth street at a point 110 feet north of the intersection of Fourth and Middle streets, running about east and parallel with Middle street 210 feet; thence about north and parallel with Fourth street to the line of the lot belonging to the heirs of J. B. Bonner, deceased; thence about west with the Bonner line to the beginning." But they contend that the above descrip The only evidence for the defendants bearing on the last contention is that of the defendant G. I. Bonner, who testified that he acted for his wife, Bessie Bonner, in procuring the deed executed to her; that the deed was drawn by W. A. Thompson, husband of Sallie Carr Thompson, and was delivered in the office of said Thompson; that they did not go out on the land; that there was a wire fence on the land when the deed was made running with the line claimed by the defendants; and that Thompson said to him when the deed was delivered: "That is your line up to that fence; that is half of the Buck lot." There is no allegation of fraud or mistake in the pleadings, nor is an estoppel pleaded. The jury returned a verdict establishing the line as contended for by the plaintiffs, and the defendants appealed from the judgment rendered thereon. appellants. Small, MacLean, Bragaw & Rod Ward & Grimes, of Washington, N. C., for man, of Washington, N. C., for appellee. ALLEN, J. [1] The first position of the defendants cannot be sustained because of the well-established rule that, when there is a particular and a general description in a deed, the particular description controls. Carter v. White, 101 N. C. 30, 7 S. E. 473; Cox v. McGowan, 116 N. C. 135, 21 S. E. 108; Midgett v. Twiford, 120 N. C. 4, 26 S. E. 626; John L. Roper Lumber Co. v. McGowan, 168 N. C. 86, 83 S. E. 8. The principle was applied in the Carter Case to a deed containing a description by metes and bounds, and also "known as Walker's Island." In the Cox Case to a deed containing the description "being the part of the Burton McGowan land conveyed by him to James H. McGowan," following a particular description, and Dana v. Middlesex Bank, 10 Metc. (Mass.) 250, is cited and approved, in which the book and page where the deed referred to was registered was givAnd in the Midgett case, which is apen. proved in L. Co. v. McGowan, to a deed giving a particular description followed by the words "or the one-fourth part of all the land that my father, Edward Mann, died seised and possessed of." It was held in these cases (and many others could be cited to the same effect) that the particular description controlled, and that it could not be enlarged to include other lands by the gen (174 N. C. 23) JONES v. BRINKLEY. (No. 11.) (Supreme Court of North Carolina. Sept. 12, 1917.) [2] The second contention of the defendants is also untenable. The rule prevails with us, as contended by the defendants, that the description of land in a deed may be enlarged or limited by evidence of a cotemporaneous survey, but the rule has al- 1. LIBEL AND SLANDER FELONY. ways been applied with caution, because, in legal effect, it permits the transfer of title to land by parol, in violation of the statute of frauds, and it may frequently result in wrong and injustice. It not infrequently happens that parties, having in contemplation the execution of a deed, go upon the land and make an actual survey and locate and mark the boundaries to be included in the deed, and afterwards conclude to shorten or lengthen a line, or to make some other change in the description, and the deed is executed accordingly, and if parol evidence of an actual survey is permitted to control the description in the deed, it in such cases would thwart the intent of the parties instead of carrying it into effect. The courts have therefore been careful to define with particularity the circumstances under which such evidence may be received, and have only permitted it to control the description in the deed "when parties, with the view of making the deed, go upon the land and make a physical survey of the same, giving it a boundary which is actually run and marked, and the deed is thereupon made, intending to convey the land which they have surveyed." Clarke v. Aldridge, 162 N. C. 330, 78 S. E. 216, and cases cited. These requirements are not only for the purpose of having the line definitely marked, but also to give publicity to the acts of the parties, and is analogous to the livery of seisin of the common law, where the lord, without writing, in order to invest the tenant with title, went upon the land, and in the presence of witnesses delivered a tuft of grass or a twig from the land and declared the tenant to be in possession of the land granted to him. In this case none of these evidences were present. The parties did not go upon the land; they did not survey it; they did not mark the boundaries; and the defendants must rely upon a simple declaration of one of the grantors made at the time of the execution of the deed without any allegation of a fraudulent intent. We are therefore of opinion his honor could have instructed the jury on the facts not in controversy to answer the issue in favor of the plaintiffs, and this view renders it unnecessary to consider the exceptions taken by the defendants in the course of the trial. No error. BROWN, J., did not sit. 7(2)—OFFENSE— To constitute a slander it is not necessary that the offense charged should be a felony. 2. CRIMINAL LAW 27-"FELONY" ов "MISDEMEANOR"-PUNISHMENT STATUTE. Under Revisal 1905, § 3291, making crimes state's prison felonies, and all other crimes mispunishable by death or imprisonment in the demeanors, and section 3293, providing for imprisonment in the county jail or state's prison on conviction of a misdemeanor, if the offense be infamous, the distinction between felonies and misdemeanors is not whether the offense is infamous, but whether it is punishable by imprisonment in the penitentiary or capitally, in which case it is a "felony"; otherwise a "misdemeanor." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Felony; Misdemeanor.] 3. LIBEL AND SLANDER -7(13)—ACTIONABLE WORDS "MORAL TURPITUDE." An oral accusation of larceny charges an defined as "an act of baseness, vileness, or deoffense involving "moral turpitude," which is pravity in the private and social duties that a man owes to his fellow man or to society in general, contrary to the accepted and customary within the rule that words which, if true, will rule of right and duty between man and man,' subject the party charged to an indictment for a crime involving moral turpitude, or to an infamous punishment, are in themselves action able. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Moral Turpitude.] 4. LIBEL AND SLANDER ~7(13)—ACTIONABLE In an action for slander, it is no defense that defendant did not charge an offense for which plaintiff would lose his "liberam legem," or free law, and become discredited or disabled chattels and lands for life, and to have his lands as a juror and witness, or forfeit his goods and wasted, houses razed, trees rooted up, and be committed to imprisonment. 6. LIBEL AND SLANDER 118-CHARGE OF MAGISTRATE-SPECIAL DAMAGES. Where one charged with the theft of ice would be humiliated and isolated from her ascream while in charge of a church festival sociates and acquaintances, she was entitled to recover special damages. Appeal from Superior Court, Gates County; Daniels, Judge. Action for slander by Alverta Jones against Abram Brinkley. Judgment of nonsuit, and plaintiff appeals. Reversed. B. L. Banks, Jr., of Gatesville, and Ward & Grimes, of Washington, N. C., for appellant. A. P. Godwin, of Gatesville, and Ehringhaus & Small, of Elizabeth City, for appellee. CLARK, C. J. This is an action for slander. It was alleged and in evidence that the defendant, in the presence of divers persons and at different times and places, used words to the effect that the plaintiff had stolen a gallon of ice cream. It was admitted that the ice cream was worth about $1. The plaintiff testified that such statement deeply humiliated her, and prevented her from wishing to go to church or anywhere else. The court granted the defendant's motion to nonsuit upon the ground: That "genuine humiliation of feelings is not an element of independent damage of itself, and therefore there was no special damage shown"; (2) that "under the act of 1913 (Pub. Laws 1913, c. 118) the larceny charged, being of less than $20, is not punishable in the penitentiary, and therefore not a felony, and it is not slander to charge one of an offense which is merely a misdemeanor." [1, 2] It would be a very singular condition of the law if to charge one of stealing $19.99 is not slander, but to charge a theft of $20 would be. Such is not the case. To constitute slander it is not necessary that the offense charged should be a felony. "At common law and until the Act of 1891 conspiracy, and even such grave crimes as perjury and forgery, were misdemeanors" (State v. Mallett, 125 N. C. 723, 34 S. E. 651); and it was always libel or slander to charge falsely that one was guilty of perjury (25 Cyc. 305) or forgery (Id. 292). Laws 1891, c. 205, now Revisal, § 3291, providing that "a felony is a crime which is or may be punishable by either death or imprisonment in a state prison. Any other crime is a misdemeanor"-was for the purpose of settling the line between felonies and misdemeanors, but this did not prevent misdemeanors including cases where the offense was infamous; for Revisal, § 3293, specially provides for imprisonment in the county jail or state's prison on conviction of misdemeanor "if the offense be infamous." The line between felonies and misdemeanors has never been whether the offense is an infamous one or not. The line between them is now made by our statute to depend upon whether the offense is punishable by imprisonment in the penitentiary or capitally, in both cases the offense is a felony; otherwise it is a misdemeanor. It is true it has been said rather loosely that an action for slander lies for "words falsely spoken which impute to the plaintiff the commission of a criminal offense involving moral turpitude, and which would subject him, if the charge be true, to an infamous punishment." We have already seen that under our statute misdemeanors for an infamous offense may be punished by im [3, 4] Besides, the definition is not correct. The general rule is: "In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude or subject him to an infamous punishment, then the words will be in themselves actionable." 25 Cyc. 270, 272. To charge one with larceny is to charge him with an offense involving moral turpitude. Nor can we attach any importance to the defense set up that the charge of petty larceny, i. e., of goods less than $20 having been made petty larceny, cannot be an infamous offense because under the statute the recorder's court had jurisdiction of this offense. The jurisdiction of the recorder's court is bestowed by the Legislature under the authority of the Constitution (article 4, § 12), which provides that: "The General Assembly shall allot and distribute that portion of this power and jurisdiction which does not pertain to the Supreme Court, among the other courts prescribed in this Constitution or which may be established by law, in such manner as * * may be deemed best." It has been held that the jurisdiction given the recorder's courts is not in violation of the right of trial by jury guaranteed by Const. art. 1, § 3, because that section provides that the Legislature may dispense with jury trials "for petty misdemeanors, with the right of appeal," and that for the same reason an indictment by a grand jury is not necessary. This court has repeatedly upheld the validity of such courts in State v. Shine, 149 N. C. 480, 62 S. E. 1080, State v. Doster, 157 N. C. 634, 73 S. E. 111, State v. Dunlap, 159 N. C. 491, 74 S. E. 626, and in other cases. The test whether an action lies for slander is not whether the offense is triable in the superior court or the recorder's court or in a magistrate's court. It does not depend upon the offense being a felony or a misdemeanor. If the offense charged involves "moral turpitude," which is defined to be "an act of baseness, vileness, or depravity in the private and social duties that a man owes to his fellow man or to society in general, contrary to the accepted and customary rule of right and duty between man and man" (25 Cyc. 272), then such charge, if false, is ground for an action of slander if orally made, and for an indictment or action for libel if made in writing or printed. To charge a woman falsely of a want of chastity is slanderous and libelous, though such matter is not a felony in her. The only case in our court which properly considered seems to be in conflict with this is McKee v. Wilson, 87 N. C. 300, which holds that to "constitute oral slander the words must impute to the plaintiff the commission of an infamous offense" (which a charge of theft is), but that case went on to say that "a misdemeanor punishable only by fine or imprisonment is not infamous." This latter, if ever a correct statement of law, is cor the punishment of misdemeanors "if the of- charged would subject the person charged fense be infamous, by imprisonment in the to a trial in the superior court or the recounty jail or by a fine." The test is not the corder's court, or whether it was a felony, or nature of the punishment, but the nature of a misdemeanor? Would this make any difthe offense charged. A charge of larceny is ference in the humiliation of the plaintiff or actionable per se, and "there is no distinc-in the injury to her reputation? Indeed, untion between grand and petty larceny in this der some circumstances à petty larceny might respect." 25 Cyc. 297. [5] It was also argued to us that one could not be guilty of slander or libel unless he falsely charged another with an offense for which he would lose his "liberam legem." Counsel did not agree among themselves as to the meaning of this survival from a former stage of existence. "To lose one's free law (called the villainous judgment) was to become discredited or disabled as a juror and witness; to forfeit goods and chattels and lands for life; to have these lands wasted, houses razed, trees rooted up, and one's body committed to prison." Black's Law Dictionary, quoting Hawk, P. C. 61, c. lxxii, § 9; 3 Inst. 221. Such punishments have long since disappeared from our more humane law, and to require that, to constitute slander or libel, the offense charged must be one that would subject the party charged to such punishment, would be simply to abolish such actions. * ** * be more infamous than one of a larger amount. In this case the plaintiff in charge of a church festival was charged with stealing ice cream which among her associates and acquaintances, if true, would have condemned her to an isolation greater than that which might result from the theft of large sums under other circumstances. The protection of a defendant in such cases as this is not in such defenses, as are herein set up but by proof of the truth of the charge. Even this in former times would not have been a defense, but in a juster age we have deemed this a just protection, and have so provided by statute. Revisal, § 3267. For the enactment of this act allowing the truth of the charge to be a defense we are indebted to the splendid defense by Lord Erskine in the Stockdale Case and the efforts in the English Parliament. of Charles James Fox. To the verdict of the jury on such defense the defendant must look, if he has not maliciously and falsely slandered the plain-tiff. The judgment of nonsuit is reversed. CO. (No. 18.) 1917.) (174 N. C. 8) (Supreme Court of North Carolina. Sept. 12, 127-INJURY [6] Nor do we agree that humiliation of the kind inflicted upon the plaintiff by the charge of theft and its resultant consequences is not special damage. In Young v. Telegraph Co., 107 N. C. 384, 385, 11 S. E. 1048, 9 L. R. A. 669, 22 Am. St. Rep. 883, it is said: "Damages for injury to the feelings, such as BUNCH v. FOREMAN BLADES LUMBER mental anguish or humiliation, are given, though there may be no physical injury, in many cases. The plaintiff is entitled to recover, in addition to nominal damages, compensation for the actual damage done him, and mental anguish is actual damage. It is very truthfully and appropriately remarked by a learned author that the mind is no less a part of the person than the body and the sufferings of the former are some times more acute and lasting than those of the latter. Indeed, the sufferings of each frequent; ly, if not usually, act reciprocally on the other.' 3 Suth. Dam. 260. And Cicero (who certainly may be quoted as an authority among lawyers) says, in his Eleventh Philippic against Anthony 'Nam quo major vis est animi quam corporis, hoc sunt graviora ea quæ concipiuntur animo quam illa quæ corpore." For, as the power of the mind is greater than that of the body, in the same way the sufferings of the mind are more severe than the pains of the body." In Osborn v. Leach, 135 N. C. 628, 47 S. E. 811, 66 L. R. A. 648, it was held: "Actual damages include pecuniary loss, physical pain, mental suffering and injury to reputation.' For the employer to let remain out of repair for a long time the hood over the dangerousknives of a planing machine, a necessary protection to workmen, is negligence. 2. MASTER AND SERVANT 125(6)-NEGLIGENCE-NOTICE. gerous power driven machines in its factory, no- 3. MASTER AND SERVANT 289(10)-INJURY jury. NEGLIGENCE Contributory negligence of an inexperienced employé, injured in removing shavings from a planing machine having a defective hood, held under the conflicting evidence a question for the 4. GUARDIAN AND WARD 63-SETTLEMENT FOR INJURY-IMPEACHMENT FOR FRAUD. Even if a guardian has right to compromise, without legal sanction, for personal injury to the ward, the ward is not bound by the comproImise when it is due to gross negligence and bad faith, is manifestly unfair to the ward, made for a grossly inadequate consideration, and so fraudulent. Also Hoke, J., in Ammons v. Railroad, 140 N. C. 200, 52 S. E. 731, citing Bleckley, C. J. What humiliation more intense and poignant can be inflicted than a charge of theft, which was made against this plaintiff, and 5. GUARDIAN AND WARD 63-SETTLEMENT FOR WARD'S INJURY-RECOVERY BY Ward. would any one on hearing such charge conThe guardian and his bond being liable to sider whether the amount of the larceny the ward for money received on a fraudulent set |
