Fortescue v. Spencer, 24 N.C. 63, 2 Ired. 63 (1841)

Dec. 1841 · Supreme Court of North Carolina

24 N.C. 63, 2 Ired. 63

JOHN E. FORTESCUE vs PELEG SPENCER, AND THE SAME vs THE SAME.

"Where A owes B a debt by note of upwards of one hundred dollars and in lieu thereof gives B several notes of less than one hundred dollars, so that judgments may be taken on them before a justice of the peace; this is not, either in fraud or evasion of the Statute, prescribing the jurisdiction of justices of the peace out of court.

These were appeals from the judgments of the Superior Court of Hyde County at Fall Term, 1341, his Honor Judge Settle presiding. The facts were these: The defendant _was indebted to the plaintiff in the sum of $148 42 due by, bond, and on the 26th of May, 1840, in satisfaction of that ^on^> §a'e’e to ^ plaintiff two other bonds in the sum of $74 21 each, payable immediately. These two bonds were given and accepted by the parties, respectively, with the view that judgments might be taken thereon before a justice of the peace; and, accordingly, on the same day the defendant accepted the service of two warrants, issued on the bonds, and confessed judgment in each case for $74 21. Those judgments having become dormant, the plaintiff issued a new warrant on each of them and obtained judgment thereon before a justice' of the peace; from which the defendant appeal, ed to the County Court. He there pleaded in each that there was no such former judgment as that alleged in the warrant; and on the issue joined thereon there was a trial and judgment in that Court, from which the defendant again appealed to the Superior Court. On the trial in the latter Court it was objected, that the transaction was in fraud and evasion of the Statute, which confers' jurisdiction on a single justice of the peace out of Court, and, therefore; that the judgments first given, and on which the present warrants are founded, were void and the plaintiff could not recover.' — . But notwithstanding the objection the Court directed the jury to find for the plaintiff upon the issue, which was done. From the judgment thereon, the defendant appealed to this Court.

J. H. Bryan for the plaintiff.

No counsel for the defendant.

Ruffin, C. J.

There canhot be the fedst question that the ruling of his Honor is right. There is no foundation at all for saying, that the parties acted in fraud of the law. Were a creditor, whose debt exceeded the sum of which a magistrate had jurisdiction, to remit a part of it by acknowledging a fictitious payment, for the purpose of taking advantage of his debtor, and obtaining a speedier judgment, there might be ground for this objection, if made in apt time. But what was done here was the act of the parties, and consisted of nothing more than the giving of new securities for a just_'_ debt. Whether that was effected by giving one bond for several before existing, or by giving several for aliquot parts of a debt before due on one bond, is not material. It oppresses no person and evades no law, although in the former case jurisdiction is given to a Court of Record and that of a Justice of the Peace ousted, and in the latter the magistrate acquires jurisdiction. It may have been at the instance of the defendant himself and for Ms benefit, as the costs would be less. Besides, if valid at all, the objection should have been directly taken in the first suit and not collaterally, as in this case, in an action on the judgment.

Per Curiam. Judgment affirmed.-