Blake v. Askew, 76 N.C. 325 (1877)

Jan. 1877 · Supreme Court of North Carolina

76 N.C. 325

JOHN C. BLAKE v. WILLIAM F. ASKEW.

Practice in Supreme Court — Feigned Issue.

An action upon a feigned issue, brought by appeal to this Court, will be dismissed.

Civil ActioN, tried at Fall Term, 1875, of Wake Superior Court before Henry, J.

The action was commenced in a Justice’s Court and taken by appeal to the Superior Court and the facts wrere found to be as follows:

That the plaintiff in June, 1874, entered into an agreement with defendant, to-wit; “ For and in consideration of' one dollar paid by said Askew to said Blake and in farther consideration of the mutual promise herein set forth, that said Blake is to deliver to said Askew one coupon bond of the State of North Carolina issued since the war, valid and binding upon the said State and of the par value of $1,000. That upon the delivery of the said bond the said Askew will pay the said Blake the sum of $200, as the consideration for the purchase of said State bond.” (This instrument of writing was signed by the plaintiff and defendant in this action.)

That plaintiff tendered the bond in discharge of his part <of said agreement and defendant refused to accept the same. Thereupon the plaintiff brought this action to recover the said $200.

That said bond with others was issued under ch. 20, Laws 1868-’69, to aid in the construction of the Western Division of the Western North Carolina Railroad and was delivered lby the Public Treasurer to the President of said Western Division.

That at the time said Act was ratified, to-wit; January 29th, 18f)9, the bonds of the State were not at par and the subject of the appropriation as made was not submitted to a vote of the people of the State.

That at the time of the adoption of the Constitution of 1868, no work had been done on that portion of said road for which said bond was issued, to-wit; the Western Division, &c.

Upon these facts His Honor held that said bond was- not “'valid and binding on the State of North Carolina.”

Judgment for defendant. Appeal by plaintiff.

Messrs. Battle Mordecai, for plaintiff.

Messrs. Merrirnon, Fuller ‡ Ashe and Smith $ Strong, for defendant.

Reads, J.

If feigned issues were ever entertained in this State, they are abolished by the Constitution, Art. 4, § 1.

This is manifest by a feigned issue based upon a wager to test the validity of certain bonds said to have been issued b>y the State alleged in the pleadings to amount to $5,000, ■000:

Besides the objection that it is a feigned issue which is forbidden by the Constitution, it is an attempted fraud upon 'the State, by putting her interests in jeopardy and affecting her credit, in a controvery to which she is not a party.

The action is “ not fit to be entertained ” and is therefore ■dismissed.

Each party will pay his own costs.

Per Curiam. Judgment accordingly.