Brooks v. Collins, 1 N.C. 345, 1 Cam. & Nor. 345 (1801)

Dec. 1801 · North Carolina Court of Conference

1 N.C. 345, 1 Cam. & Nor. 345

Andrew Brooks vs. Eli Collins.

This was an action of assumpsit instituted in the County Court of Orange. The damages laid in the writ were above twenty pounds. After a trial in the county court, it was brought up to Hillsborough Superior Court by appeal.

Upon the trial of the cause, it appeared that the parties being tradesmen. had worked together for their joint emolument, until they earned thirty-two pounds, when they came to a settlement and the balance of eight pounds was found due to the plaintiff. They afterwards continued to work until, they earned one hundred and six pounds more, the whole of which sum received by the defendant. The plaintiff admitted the receipt of fifty pounds from the defendant, on which evidence the jury gave a verdict for the plaintiff, assessing his damages to eleven pounds seventeen shillings and sixpence.

A rule was obtained on the plaintiff, to shew cause why the verdict should not be set aside, and a nonsuit entered.

Norwood shewed cause.

These two principles of law, on the doctrine of nonsuits, are established and known: I. That a plaintiff cannot be non-suited before the jury leave the box, but wish his own consent. 2 Term 275: II. That the court will not permit him to enter a nonsuit after the jury have returned, and declared their verdict. He has the right of putting his cause to the jury and risking a verdict, if he thinks proper; but should he do so, and the jury find against him, then he cannot enter a nonsuit, because such a practice would give him the advantage over the defendant, of receiving the verdict if in his favour, and destroying it if against him. To enter a nonsuit on the rule obtained in this suit, would be contrary to both these principles of law, and give to the defendant that advantage which is denied to the plaintiff.

The practice of granting such rules, if established, will give the defendant another advantage over the plaintiff; he may omit to move for a nonsuit before the evidence is closed, when, perhaps, it would be in the plaintiff’s power to supply the defect relied on by the defendant; and after a verdict is entered against him, move for, and obtain this rule, set aside the plaintiff’s verdict, and enter a nonsuit in its stead. But if such rules are refused, and the defendant compelled to move for a nonsuit before the jury retire, these evils will be prevented, and the parties stand on equal ground. For should the plaintiff refuse to be nonsuited, and obtain a verdict on evidence materially defective, the defendant would be titled to, and might easily obtain a new trial ; but I apprehend that even in such a case, he ought not to set aside the verdict and enter a nonsuit in its stead, unless on a rule entered by consent.

The practice in England of granting rules, somewhat similar to the one in this suit, is modern ; and it has not, it appears to me, been sufficiently attended to in this State. I suppose that practice to be founded on the statute of 14 Geo. 2, c. 17, which provides, “ that if the plaintiff " neglects to bring the issue to trial according to " the course of the court, the court, on motion or " notice, shall give judgment as in case of a non- " suit, unless they allow further time ; and that " the defendant shall recover his costs.” If the rule in this suit is not founded on this statute, it is not supported by any one principle of law : and if intended to be founded on this statute, it must be discharged, for the issues were brought to trial according to the course of the court, and the plaintiff obtained a verdict well warranted by the evidence. 1 Bur. 358. But whether the rule is founded on that statute or not, it is a clear principle that the rule shall be discharged, unless a nonsuit, if moved for before the jury returned, would have been proper and legal. In this case, it is not pretended that such a nonsuit would have been legal; the rule, therefore, ought to be discharged. If the county court had jurisdiction in this case, the plaintiff is certainly entitled to a judgment; and that the court had jurisdiction, I think on the examination of the several acts, there can be no doubt. The first act on the subject is that of 1777, c. 2, f. 61, by which jurisdiction is given to the county courts in all cribs where the debt is above five pounds. By the same act, f, 69, jurisdiction is given to a single justice in all cases where the debt is five pounds or under. The next act is that of 1785. f. 4. By this act, the jurisdiction of a single justice is raised to ten pounds. Under this act, the county courts and justices had concurrent jurisdiction of a debt of ten pounds, and of all sums between that and five pounds. The act of 1786, c. 14, f. 7, is next. This raises the jurisdiction of a single justice to twenty pounds, and contains this proviso : " pro- " vided also, that no suit shall be commenced in " the first instance, returnable to any county " court, for any sum under twenty pounds.” This proviso appears to me, to relate to the suit only, and the sum mentioned in the writ, and not to the balance which may be found on a settlement of the accounts, due the plaintiff : And in this construction I am supported by a decision. Haywood's Rep. 122, and the universal opinion, that if the defendant pleads in abatement, " that the balance due the plaintiff is not twenty pounds,” the plaintiff may well reply the writ for a larger sum. For if this construction is not good, the replication would be bad on demurrer ; and what may be pleaded in abatement, can never afterwards be taken advantage of: This construction will not render the proviso nugatory ; it will still prevent suits on all bonds for small sums: It certainly ought not to extend to the balance on long and great accounts, in the settlement of which are frequently involved the greatest intricacy and difficulty. It often happens, that the plaintiff does not know the balance due him on such accounts, and that he forms erroneous opinions of the law arising on them ; and shall he, in such a case, after he has prosecuted his suit to a verdict, be nonsuited, because that verdict does not happen to amount to twenty pounds? If my construction be not the true one, great evil and injustice will be the consequence of a decision in this case. The law is positive ; it leaves no discretion in the court, and must be carried into execution in all cases. The court could not take notice of any claim or demand set up by the plaintiff, unless proved and found by the verdict. The judges of the Superior Court, by act of Assembly, have a discretion in such cases; but the county courts would have none. If a plaintiff should honestly enter on his accounts the credits to which the defendant was entitled, leaving a balance of above twenty pounds due him, and bring his suit ; if he should, by any accident or misfortune, fail to prove an item of his account, he would be nonsuited and have the coils to pay. Creditors whose demands were not much above twenty pounds, would be under the necessity of leaving out of their accounts all items, however just, the proof of which was doubtful, so as to bring their debts within the jurisdiction of a single Justice. This proviso is omitted by the act of 1794, c. 13, and I contend that the seventh section of the act of 1786 is entirely repealed by the twenty third section of this act ; and that the county courts and justices have concurrent jurisdiction of debts of twenty pounds, and of all debts under that sum and above five pounds, and insist that the rule in this case ought to be discharged.

Hall, Judge.—

This is an appeal from the county court. The jury in the superior court have found a verdict for a sum under twenty pounds; a motion is made by the defendant’s counsel to set aside that verdict, after it is recorded, because the county court, in the first instance, had not jurisdiction, the sum due being under twenty pounds. The verdict being recorded, I think it ought to stand. This motion in substance, might have been made at an earlier stage of the proceedings; had that been done, in all probability it would have been granted.

Taylor, Judge.—

The question in this case is, whether the verdict shall be set aside and a nonsuit awarded, upon the ground that the recovery is for a sum under twenty pounds, the suit having been commenced in the county court.—The act which regulates the jurisdiction of the superior courts, by the value of the suit, gives power to direct a nonsuit, I. Where a greater sum is demanded than is due, on purpose to evade the act: II. Where a suit is commenced contrary to the true meaning of the act: But if the recovery is less than the sum which marks the jurisdiction, still, if an affidavit be made that the sum sued for is due, and that the want of proof or the lapse of time has prevented a recovery, then judgment shall be rendered for the amount legally proved. No difficulty has arisen in the practice under this act, the regulations of which afforded a clear and satisfactory guide, so far as they extend.

As to the jurisdiction of the county courts, the subject is left at large, except in regard to the sum for which the suit is brought; the act is silent as to the manner in which the question shall be examined, and as to the judgment which shall be given; nor doth it either allow or prohibit the recovery of a less firm than twenty pounds. The intention of the legislature seems to be clear enough as to the object —that a single justice should have jurisdiction of all debts of the kind specified in the act, of twenty pounds and under, and that the country court should not have original jurisdiction of the same debts : As to these, therefore, the jurisdiction of the magistrate must be exclusive, and that of the country court merely appellate; and thence we may draw the certain conclusion, that the sum laid in the writ, being above twenty pounds, is not, of itself, sufficient to give jurisdiction to the county court, if the debt be under that sum. For the writ, except in a few instances, where of necessity it must correspond with the demand, furnishes no evidence of the sum really due. Under a different construction, the act of 1786 might be evaded in numerous cases, at the pleasure of the plaintiff, and the jurisdiction of a single magistrate totally absorbed in that of the county court.

The question then occurs, shall the sum recovered, ascertain the jurisdiction of the county court ? I conceive that this would be a rule equally fallacious with that drawn from the sum laid. The plaintiff may recover less than twenty pounds, when his debt is really more. A witness summoned to prove an item in his account, may be absent; the defendant may lessen the debt by a set off, or bar part of it by pleading the statute of limitations : In none of which cases, do I think it would be right to withhold the judgment of the county court for the sum recovered, though less than twenty pounds. The sum for which a suit is in substance instituted, is that which the defendant owes at the issuing of the writ. If the parties have opposite demands against each other, which are connected, from having taken their rise in the same transaction, or otherwise, then the balance is the debt, and that being less than twenty pounds, when the suit commences, cannot be recovered by action. But if the opposite accounts begin in distinct transactions, and are unconnected, each demand is a legal debt, and recoverable by action, l Bl. Rep. 651, 4 Bur. 2133, 5 Term 135, 3 Term 599. Now it is entirely at the option of the defendant, whether he will set off his demand or not. The plaintiff cannot compel him to do it, and before the suit, it cannot be known whether it will be done, or even what the amount of the opposite demand is. It would be hard, therefore, if by setting it off, the plaintiff were prevented from recovering his debt in the county court ; and equally so, if he, under the belief that it would be set off, and thereby reduce his claim to a less sum than twenty pounds, should begin the business by way of warrant before a magistrate, and the defendant should then withhold the set-off. 2 Wils. Rep. 68, 3 Wils. Rep. 48. The same observation will apply to the statute of limitations, which may or may not be pleaded, at the defendant’s option, and which, though pleaded with effect, leaves the plaintiff's debt unextinguished ; since it may be revived by a subsequent promise. In cases of this kind, therefore, the proper enquiry seems to be, not whether the sum contained in the suit is more than twenty pounds, or that found by the jury less; but what was the amount of the plaintiff’s debt when the suit was brought. It is desirable that some regular and uniform practice should be established as to the mode of taking advantage of the smallness of the sum. My own opinion is, that the most regular way would be to plead, that the sum due was less than twenty pounds when the action was commenced; though upon the general principle relative to the jurisdiction of inferior courts, I am far from thinking that this is the only method. It would save time and expence, if the matter were brought before the court, by way of motion to stay proceedings, before the trial; when the amount could be enquired into upon affida vit, as is practised in analogous cases. 5 Term 64, 4 Term 495. Or the objection might be taken at the trial, so as to give the plaintiff an opportunity of submitting to a nonsuit, should the opinion of the court be against him. But I think, the practice would be inconvenient and unjust, to permit the defendant to avail himself of this objection, when he makes it for the first time after the jury have found their verdict. Taking this to be the case, from the record sent up, I am in favour of the plaintiff's having his judgment ; since his adversary has submitted his cause to the jurisdiction of the court, in every stage, except the last, or its progress.

Rule discharged.