The Court may, in its discretion, submit questions of fact as allowed by the statute. (Clements v. Rogers, 95 N.C. 248, and Porter v. R. R., 97 N.C. 66, cited and approved.) THIS was an issue in a civil action, tried before Shipp, J., at Spring Term, 1887, of HALIFAX.
7. Where the appellant excepted to the Judge's charge on the question of damages, but did not point out what he considered to be the error, and did not ask for any special instruction; It was held, that the judgment would be affirmed, if the charge contained no intrinsic error, although it was not as full as it might have been. ( Brown v. Morris, 4 D. B., 429; Ward v. Herrin, 4 Jones, 23; Moore v. Hill, 85 N.C. 218; Strickland v. Draughan, 88 N.C. 315; Clements v. Rogers, 95 N.C. 248; Morgan v. Lewis, 95 N.C. 296; Tayloe v. The Steamship Co., 88 N.C. 15; State v. Hardie, 83 N.C. 619; State v. Nicholson, 85 N.C. 548; cited and approved). CIVIL ACTION, heard before Shipp, Judge, and a jury, at Fall Term, 1886, of CURRITUCK Superior Court.
10. It seems that an appeal will lie from an order of reference, where there is an undisposed of plea in bar, and the defendant objects to the reference on that ground. ( Slocomb v. Newby, 1 Murph., 423; Molyneux v. Huey, 81 N.C. 106; Syme v. Broughton, 85 N.C. 367; Borden v. Gully, 92 N.C. 127; White v. Beaman, at this Term; Clements v. Rogers, 95 N.C. 248; Neal v. Becknell, 85 N.C. 299; Com'rs of Wake v. Raleigh, 88 N.C. 126; Atkinson v. Whitehead, 77 N.C. 418; McPeters v. Ray, 85 N.C. 462; Smith v. Brown, 3 Hawks, 580; McCullen v. Hood, 3 Dev., 219; Railroad Co. v. Morrison, 82 N.C. 141; Castin v. Baxter, 6 Ired, Eq., 197; James v. Mathews, 5 Jones Eq., 28; Compton v. Culberson, 2 Dev. Eq., 93: cited and approved). This was a CIVIL, ACTION, tried before Gudger, Judge, at Fall Term, 1886, of NORTHAMPTON Superior Court.
After enactment of The Code, the rule was continued in effect. Royster v. Wright, supra; Price v. Eccles 73 N.C. 162; Smith v. Barringer, 74 N.C. 665; R. R. v. Morrison, 82 N.C. 141; Cox v. Cox, 84 N.C. 138; Sloan v. McMahon, 85 N.C. 296; Neal v. Becknell, 85 N.C. 299; Commissioners v. Raleigh, 88 N.C. 120; Clements v. Rogers, 95 N.C. 248; Jones v. Beaman 117 N.C. 259, 23 S.E. 248; Jones v. Wooten, 137 N.C. 421, 49 S.E. 915; Haywood County v. Welch, 209 N.C. 583, 183 S.E. 727; Grimes v. Beaufort County, 218 N.C. 164, 10 S.E.2d 640; Lithographic Co. v. Mills, 222 N.C. 516, 23 S.E.2d 913; McIntosh, N.C. P. P. sec. 523, op. cit. Second Edition, sec. 1394. As stated by Ashe, J., in Cox v. Cox, supra: "When a case involves both an account and the trial of an issue by a jury, they cannot be investigated at the same time — the one must precede the other — and it would be needless to increase the expense and trouble by a reference, when the case might result adversely to the plaintiff upon the finding of the jury."
Moreover, the defendants did not object to the issues of record or tender an issue addressed to the location of the streets. They should have done so if they desired to take advantage of the alleged error. Bank v. Bank, 197 N.C. 526; Drennan v. Wilkes, 179 N.C. 512; Maxwell v. McIver, 113 N.C. 288; Porter v. R. R., 97 N.C. 66; Clements v. Rogers, 95 N.C. 248. The issues submitted and the verdict returned indicate that the appellants rested their case principally upon the defense of adverse possession.
Where an issue involved by the pleadings was not tendered, and the issues submitted were not objected to on the trial, a party in such default cannot complain for the first time in this Court. Maxwell v. McIver, 113 N.C. 288; Porter v. R. R., 97 N.C. 66; Clements v. Rogers, 95 N.C. 248. We think this controversy one of fact almost exclusively, and that it has been settled by the verdict of the jury.
Therefore, though it is error to order a compulsory reference until a trial is first had and a finding adverse to the pleader returned upon an issue raised by a plea in bar, the failure to object when the order is made is deemed a waiver of the right. Silence, under such circumstances, is inconsistent with the purpose to insist upon the settlement of an issue decisive of the whole controversy by any other tribunal than the referee, and to allow a party to do so would be to give him the chance of prevailing by a second mode of trial, after his adversary had been induced by his silence to incur costs, often very heavy, in meeting him in another forum, to which he had not objected. Clements v. Rogers, 95 N.C. 248; Grant v. Hughes, 96 N.C. 177." And again, and for the (445) purpose of showing how the right to a jury trial, once reserved by a mere exception to the order of reference, may be lost, the Court proceeds to decide how it must be preserved, as follows: "For a like reason, where a party promptly insists upon reserving his right, and causes his objection to be entered of record, when the compulsory order of reference is made he may still waive by failing to assert it in his exceptions to the referee's report.
The plea in bar should have been disposed of, because, if found in favor of the defendant, no reference or accounting would have been necessary. Royster v. Wright, 118 N.C. 152; and cases cited; Smith v. Barringer, 74 N.C. 665; Clements v. Rogers, 95 N.C. 248; Kerr v. Hicks, 129 N.C. 141; Bank v. Fidelity Co., 126 N.C. 320; Austin v. Stuart, 126 N.C. 525; Jones v. Wooten, 137 N.C. 421. The court could hardly have proceeded under Revisal, sec. 100, which requires the clerk of the Superior Court to compel the filing of accounts within twenty days by executors or administrators who have neglected to comply with their statutory duty.
The defense of a special plea in bar puts in issue the cause of action, and it (155) would be useless to incur costs and delay if the plea is sustained. It has been repeatedly held, since the adoption of The Code, that an appeal lies from a judgment sustaining or overruling a plea in bar, and that no reference should be ordered until the plea is finally determined. R. R. v. Morrison, 82 N.C. 141, 143; Neal v. Becknell, 85 N.C. 299, 302; Leak v. Covington, 95 N.C. 193, 195; Clement v. Rogers, 95 N.C. 248. Where a matter pleaded in bar is an estoppel was discussed in Rogers v. Ratcliff, 48 N.C. 225; Armfield v. Moore, 44 N.C. 157, and Williams v. Clouse, 91 N.C. 322. If the record is uncertain, and anything be left to conjecture and is not explained by proof, the judgment as evidenced is no estoppel. Jones v. Beaman, 117 N.C. 259.
Therefore, though it is error to order a compulsory reference until a trial is first had and a finding adverse to the pleader returned upon an issue raised by a plea in bar, the failure to object when the order is made is deemed a waiver of the right. Silence under such circumstances is inconsistent with the purpose to insist upon the settlement of an issue decisive of the whole controversy by any other tribunal than the referee, and to allow a party to do so would be to give him the chance of prevailing by a second mode of trial after his adversary had been induced by his silence to incur costs, often very heavy, in meeting him in another forum, to which he had not objected. Clements v. Rogers, 95 N.C. 248; Grant v. Hughes, 96 N.C. 177. For a like reason, where a party promptly insists upon reserving his right and causes his objection to be entered of record when the compulsory order of reference is made, he may still waive by failing to assert it in his exceptions to the referee's report.