At Fall Term, 1869, the action was referred to James E. Kerr, who returned his report at Spring Term, 1873, at which term exceptions were filed to the report by both plaintiff and defendant. Before the report of the referee was filed, the counsel for the defendants served a *Page 40 notice on the plaintiff's counsel, that they would move the Court, pursuant to the act of the General Assembly, of the session of 1866-67, Chap. 59, Sec. 2, to submit the question of diligence or negligence of greater or less degree, which had arisen in the cause, to a jury; and at Fall Term, 1873, the defendant's counsel did move his Honor, to make up and submit such issue to a jury, which motion the Court refused, on the ground that it was made too late.
From this ruling of his Honor, defendants appealed to this Court. The facts of this case do not materially differ from those stated in the opinion of the Court in the preceding case of Armfield v. Brown.
(35) As we there held that Ch. 59, Sec. 2, of the acts of 1866-67 by virtue of which, a trial by jury was demanded, had been repealed, that case is decisive of this and for the reasons there stated, the judgment of the Court below is affirmed.
The case is remanded, to be proceeded with, according to the course of the Court.
PER CURIAM. Judgment accordingly.
Cited: S.c. 72 N.C. 428; Armfield v. Brown, 73 N.C. 82; Overby v. B L Assoc., 81 N.C. 62; Driller Co. v. Worth, 117 N.C. 519.