Wall v. Nelson, 28 N.C. 300, 6 Ired. 300 (1846)

June 1846 · Supreme Court of North Carolina

28 N.C. 300, 6 Ired. 300

BENJAMIN WALL vs. ALEXANDER NELSON.

A Justice of the Peace has no jurisdiction of a question of guaranty. The case of Adcock v. Fleming, 2 D. & B. 470, cited and approved:

Appeal from the Superior Court of Law of Bertie County, at the Spring Term, 1846, his Honor Judge Bailey presiding.

The following is a statement of the case.

This was a warrant, which came up, by successive appeals, to the County and Superior Courts. The plaintiff declared upon a parol contract. For the purpose of proving the contract, he introduced a witness, who testified that he was present when the plaintiff sold a negro to the defendant, that, when the money was paid, the plaintiff remarked, “ I suppose it is good,” to which the defendant replied, “ Yes, if it is not, I will make it good.” He further stated, that a part of the money paid was a bank note for ten dollars, issued by the Alabama and Mississippi Rail Road Company at Brandon; and he testified that the note produced on the trial was the same note. It was further proved, that Nelson said in conversation, that he had heard of this note before, and said that he understood that he had been threatened with a warrant, bat that he had not passed it, and knew nothing about it, and would not take it back. This conversation took place before the plaintiff sued out his warrant. The constable proved that he tendered back the note to Nelson, before or after he served the warrant, but could not recollect which. It was in proof, that the note, though a genuine bill in the opinion of the witnesses, was uncurrent and of no value here, though it was not proved that it was of no value in Mississippi or Alabama. It was insisted in argument by the plaintiff’s counsel, that he was entitled to recover on the original contract of sale, there being, as to this ten dollar note, no payment at all; and that, if this was not so, it was a contract to guarantee, not only that the bank notes were genuine, but that they were current, and that there was evidence of notice and demand from the defendant before the commencement of this warrant. It was insisted by the defendant’s counsel that the true meaning of this contract was, that the notes were genuine and not counterfeit, and truly due and owing from the bank, which had issued them; and not a contract of guaranty, that they were current or of par value. It was further insisted, that before the plaintiff was entitled to any action whatever, it was necessary to prove a demand, and a refusal on the part of the defendant, to take back this note, and give other money in the place of it. It was further insisted, that inasmuch as this' was a contract to guarantee the notes and sounded in damages, it was one of which a magistrate had no jurisdiction. The question of whether a Justice of the Peace had jurisdiction of the subject was reserved, with an understanding, that if the Court should be of opinion that he had not, a non-suit should be entered. The Court charged the jury, that if the defendant passed the note to the plaintiff and promised to make it good, and they were satisfied from the testimony that it was of no value, they should

find a verdict from the plaintiff, provided, a tender of the note had been made by the plaintiff before suit was broughf, and there was evidence of a tender. The jury, under this instruction, returned a verdict for the plaintiff, and upon the question reserved, the Court set aside the verdict, and entered a non-suit. From which the plaintiff prayed an appeal to the Supreme Court, which is granted.

A. Moore, for the plaintiff.

No Counsel in this Court for the defendant.

Daniel, J.

First — if the ten dollar bank note in question had been totally worthless, and that fact had been known to Nelson and unknown'to Wall, the passing it would have been a clear fraud on the part of Nelson ; and the original balance of the price of the slave sold by Wall to Nelson, would still remain due ; but upon this point the plaintiff made no proof.

Secondly — if the note was worthless,' at the time it was passed, from the total insolvency of the bank, and the defendant was ignorant of that fact, did it operate as a payment of the debt, to the amount mentioned in the face of ■the bank note ? It seems that the plaintiff failed to make any such proof as would entitle him to call for the decision of the Court upon this point, attempted to be raised in the Court below.

Thirdly — whether the defendant had guaranteed the' goodness of the note here (that is, in North Carolina) 1 The Court left it to the jury to determine the fact, subject to the question, whether a Justice of the Peace had jurisdiction of such a case. The jury found for the plaintiff upon the guaranty. The Court, after consideration, set the verdict aside and entered a non-suit, because a single Justice has not jurisdiction of a guaranty like this. The plaintiff, then appealed. This Court has several times decided, that an action, upon a promise of a guaranty, was not within the jurisdiction of a single magistrate. Adcock v. Flemming, 2 Dev. and Bat. 470, and cases there cited.

The judgment must be affirmed. .

Pee Curiam. Judgment affirmed.