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WILLEFORD v. BAILEY.

give was entirely within their discretion, after carefully considering all the circumstances of the case."

The charge upon this point must be considered with reference to the context (Crenshaw v. Johnson, 120 N. C., at p. 275; Everett v. Spencer, 122 N. C., at p. 1011; Max v. Harris, 125 N. C., bottom of p. 351; Marcom v. Railroad, 126 N. C., 200), and so considered it is unobjectionable. The defendant cut a paragraph in two at a comma, and made it read thus: "If they should further find from the evidence that plaintiff's daughter was an innocent and virtuous woman of good character before she left home and that the defendant is a man of considerable wealth, then they might give plaintiff punitive damages, and in law no verdict they would render I would be excessive." Thus substituting a period for a comma and cutting off the balance of that sentence which qualified the excerpt and the immediately succeeding paragraphs which fully explained it. This proceeding is fairly parallelled by the man who proved (to his own satisfaction) that the scriptures declared "There is no God," by striking out the preceding words of the sentence, "The fool hath said in his heart"—

But standing alone the part sentence "and in law no verdict they would render would be excessive," might be misleading, though "the jury act without control on the subject of damages because there is no legal rule by which they can be measured." Sedg. Dam. (5th Ed.), 458, 464; McRea v. Lilly, 23 N. C., at p. 119; Gilreath v. Allen, 32 N. C., at p. 69. The corrective power is the discretion of the trial judge to set aside the verdict if excessive. And taking the context, as we must, the charge is carefully guarded. There is nothing to indicate that the jury were in fact misled. There was evidence that the defendant was worth $125,000; that he had said he would not have his conduct with the girl known for $15,000; that he was president of an oil and fertilizer

WILLEFORD v. BAILEY.

mill, had an interest in a bank, owned a furniture store, a clothing store and other business; had several farms, besides houses in town rented out. The defendant on the stand did not negative the above estimate of his pecuniary worth, which is always proper matter for consideration in assessing punitive damages. The defendant stated on cross examination that he was a married man with a family, and was a deacon in the church, that the girl's elder sister (Ida) was at the time living in one of his houses in South Carolina; that he supplied her with a house and all she needed and kept her as his mistress, and had done so for three or four years and that he had pleaded guilty in the trial court at that term to an indictment for fornication and adultery with said sister. There was evidence, if believed, fully substantiating the charge that the defendant conspired with the girl's said elder sister, and through that means enticed plaintiff's younger daughter (Willie) to South Carolina and that there he seduced and debauched her. The verdict of $5,000 is not one. that, in view of this evidence, tends to indicate that the jury was misled by the extract from the charge which was excerpted from its context and set out in the appellant's exception.

The last assignment of error to be considered is this: "About 11 o'clock at night, his Honor, upon being informed that the jury had not agreed, went to the jury room and stated that he had been so informed; that the term of the court had been continued for the trial of this case; that the term at Anson should have opened that morning; that if there was any likelihood of the jury reaching a verdict that night, the court would not retire; but if the jury thought it would not reach a verdict, the court would retire and continue the term for the purpose of seeing if the jury would agree; the court did not urge a verdict, but (said) he would be glad to get an expression from the jury as to whether it would be

WILLEFORD v. BAILEY.

likely to agree soon. This was in the absence of the counsel of the plaintiff and defendant." In short, if the jury was likely to agree the judge would sit up to take their verdict and would then leave on that night's train for Wadesboro to open Anson court next morning; and if they were not likely to agree he would go to bed. It was entirely proper to have sent an officer to make the inquiry and it would be no damage (though unusual) for the judge to make the inquiry at the door of the jury room himself. The appellant has printed a sub-head in italics, "Judge goes into the Jury Room," but nothing in the statement of the case justifies that insertion. Even if the judge had gone into the jury room it would not have been error, though it is not advisable practice. Priest v. State (Tex. Cr. Aff.), 34 S. W. Rep., 611.

There was no urging the jury to agree, no discussion of the case, no intimation that the judge said anything improper to the jury or influenced them in their verdict. It must affirmatively appear that undue or improper influence has affected the verdict. State v. Tilghman, 33 N. C., 513; State v. Brittain, 89 N. C., 481. The judgment is

Affirmed.

BARRINGER . TRUST Co.

BARRINGER v. VIRGINIA TRUST CO.

(Filed April 21, 1903.)

1. EASEMENTS-Merger-Estates.

Where the owner of a part of the servient estate becomes the owner of an easement thereon, there was a merger only to the extent of his interest.

2. EASEMENTS-Assignments-Covenants-Damages.

The assignor of an easement to maintain a canal across certain land is not liable for failure to maintain a dam which the original owner had agreed to do as a consideration of the grant of the easement.

3. EASEMENTS-Covenants-Estoppel-Res Judicata.

An action by the assignor of the owner of an easement, who held the easement on the condition that he would keep up a dam, for the purpose of restraining a servient landowner from using more water than he was entitled to, does not establish the liability of the assignor of party owning the easement to keep up the dam.

ACTION by Mary A. E. Barringer against the Virginia Trust Company, heard by Judge W. S. O'B. Robinson, at November Term, 1902, of the Superior Court of CHATHAM County. From a judgment of non-suit, the plaintiff appealed.

H. A. London and F. H. Busbee & Son, for the plaintiff. Womack & Hayes and Manning & Foushee, for the defendant.

CLARK, C. J. In 1851, the Cape Fear & Deep River Navigation Company, being desirous of digging a canal through the lands of Alston Jones, a riparian owner, made a contract with him under seal by which the company agreed "to erect, maintain, keep and preserve in good order a permanent and substantial dam across Deep River, upon the site of said Jones' present mill dam, and the new dam shall be erected, maintained, kept and preserved so as to effectually

BARRINGER v. TRUST Co.

feed and supply hereafter the said Jones' mill canal, and so as not to injure said Jones or his heirs and assigns in the use and enjoyment of the mills already erected or those hereafter to be erected, and so as to give said Jones and his heirs and assigns now and hereafter the exclusive use and enjoyment of such quantity of water as may suffice to propel a sawmill with Hotchkiss wheels and a thresher and cotton gin, and four pair of wheat stones and two pair of corn stones, and bolting works, screen and smut machines, whether that quantity of water shall be used on machinery now or hereafter to be erected by said Jones or assigns. * * * The meaning and intent of this agreement being to observe and secure to said Jones or his heirs or assigns that amount of water power from the new canal which would be requisite for propelling at all times the machinery aforesaid, and leave it discretionary with him or them to use it or apply it as they see fit to machinery now in use or hereafter to be discovered."

In accordance with this contract, the navigation company dug the canal, constructed the dam and furnished the stipu lated water power to Jones. After his death, his property and rights were sold and conveyed to Clegg and Bryan, who in 1863 conveyed to Silas Burns by deed in fee "one acre near the said mill" and "water power to the amount of 15 horse power, the water power granted upon the same conditions as agreed upon between the Cape Fear & Deep River Navigation Company and Alston Jones." In April, 1894, the plaintiff's testator became the owner of whatever rights had passed to Silas Burns under the above conveyance.

After their said conveyances to Burns, Clegg and Bryan conveyed all the remainder of the Jones property and rights to other parties, and by successive deeds the defendant became the owner of the same, as it has also acquired all the property, rights and franchises of the navigation company aforesaid, the defendant has all the property and rights

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