Fox v. Wood, 33 N.C. 213, 11 Ired. 213 (1850)

Aug. 1850 · Supreme Court of North Carolina

33 N.C. 213, 11 Ired. 213

ALEXANDER FOX vs. JOHN B. WOOD.

A ca. sa., issued by a justice of the peace in Buncombe County, ought to be returned to the County Court of that County,.notwithstanding the provisions of the Act of 1844, abolishing jury trials in the County Courts of Buncombe.

The case of the State v. Sluder, 8 Ire. 487, cited and approved.

Appeal from the Superior Court of Law of Buncombe County, at the Fall Term 1848, his Honor Judge Manly presiding.

The only question presented is, whether a ca. sa., issued by a justice of the peace in the County of Buncombe, ought to be returned to the County or Superior Court, under the provisions of the Act of 1844, which, abolishes jury trials in the County Courts of Buncombe and some other counties.

The ca. sa. was in the usual form, and, after directing tl^e officer to have the body before some justice of the peace of the said County, to satisfy, &c., concludes thus: “and. in case he shall give bond and security according to law, for his appearance before your County Court, you are to take the same and make return thereof, with all the proceedings in the case, to said Court, and herein fail not.”

The officer took a bond for the appearance of the defendant at the next term of the Superior Court, to which Court he returned the writ, and the Judge below refused a motion to dismiss, entertained jurisdiction of the case, and the defendant was allowed to appeal.

J.'Baxter and N. W. Woodjin, for the plaintiff.

Henry and Gaither, for the defendant.

Ruffin, C. J.

His Honor was of opinion, that the Act of 1844 transferred jurisdiction in such a case directly from the justice of the peace to the Superior Court.

We do not concur, but believe the proper construction of the Act of 1844 only takes to the Superior Court, in the first instance, such cases as will require the intervention of a jury as a matter of course. A statute, making an exception to the general law, should be confined to the object which was in view, and the necessity which gave rise to it. The statute under consideration provides, among other things, that all appeals from a justice of the peace in the Counties of Buncombe, &c., in civil cases, shall be returned to the next term of the Superior Court. This is not an appeal, and does not come within the words, nor does it come within the necessity, of the Statute ; for it may be, that an issue of fraud will not be made up. In appeals, the issue is made and tried by the magistrate, and a jury will be required in the Court, to which it is carried, as a matter of course, unless one party or the other makes default.

Proceedings in bastardy are returnable to the County Court, and if an issue is made up, it is taken to the Superior Court by certiorari. State v. Sluder, 8 Ire. 487.

The same principle governs this case. The judgment below ought to be reversed and the motion to dismiss allowed.

This opinion will be certified to the Court below.

Per Curiam. Ordered accordingly.