Emmit v. McMillan, 35 N.C. 7, 13 Ired. 7 (1851)

Dec. 1851 · Supreme Court of North Carolina

35 N.C. 7, 13 Ired. 7

WILLIAM C. EMMIT, vs. JOHN J. McMILLAN

The same strictness is not required in the description of a note in a warrant ■ from a Justice of the Peace, as is required in a description in a declaration in Court. It is sufficient, if the Warrant describes the cause of action, so as to bring it within the jurisdiction of a single justice, as defined by Statute.

Appeal from the Superior Court of Law of Bladen County, at the Fall Term ISol, his Honor Judge Bailey presiding.

This case came up by appeal from the judgment of a Justice to the County Court, and thence to this Court. The following facts appeared : On the 8th day of Decembe1’ 1848, the Plaintiff commenced this suit by warrant, for non-payment of the sum of seventy-five dollars and interest from the 1st day of April 1847] due by note. On the 15th of December 1848, judgment was rendered thereon, by a Justice of the Peace in favour of the Plaintiff, against the Defendant, for the sum of $>75, and interest from the 1st day of 1847, till paid, and costs,” and the defendant appealed to the County Court, and then pleaded non estfactum and payment. While the case was pending in the County Court, the note, on which the suit was brought, was lost in the Clerk's Office, and, upon the trial in the Superior Court, the loss was sufficiently established to let in evidence of its contents, and execution. For that purpose the Plaintiff offered the magistrate, who tried the warrant. He stated, that the instrument was produced on the trial, before him, and was not attested; but that he was well acquainted with the defendant’s hand writing, and by that means knew that the note was executed by the defendant; and that it was dated the 15th day of April 1847, and was for $75, and payable one day after date, and that he gave judgment for the debt, and interest from the loth of April 1847, according to the note. On this evidence the counsel for the Defendant insisted, there was a variance between the note, as described by the witness, and as set forth in the warrant : the one being payable on the 16th of April 1847, and the other on the 1st day of that month; and the Court was of that opinion, and non-suited the Plaintiff, and he appealed.

D. Reid, for the Plaintiff

Strange, for the Defendant.

Ruffin, C. J.

The Court considers the judgment tobe erroneous. The statute givesjurisdiction to a Justiceofthe Peace, of debts and demands of certain amounts, due by bond, note or account; and for work, and labour done, etc; and the jurisdiction is to be exercised upon warrants, which shall express, “ the sum, and how due.” .There is no other process required, nor any declaration ; and the object of thus expressing the sum, and how due, was, obviously, to bring the matter within the jurisdiction of the magistrate, as prescribed in the Statute. Hence warrants never add to the description, “due by bond,” or note, or the like, any further description; in respect, for example, to date, place, day of payment, co-obligor, or any other matter requisite to the complete identity of an instrument in a declaration. This warrant, therefore, is sufficient, on its face, according to the Statute, and universal usage. If, howerer, a party will needlessly undertake to describe the instrument minutely in the warrant, as he would in a declaration, he may with propriety be held bound to prove it accordingly. But this warrant does not purport to enter upon any such description of the note, "saying only, that the sum demanded for debt, and for interest thereon was “due by note,” without giving, date, or day of payment of the note, or its tenor in any respect. ' It is supposed, that it describes the day of payment, in giving a day, from which the interest was to run. But that is merely an inference from the fact, that, usually, interest accrues from the day, fixed for the payment of the principal. That, however, is not necessarily so; for often the debt becomes payable at a particular day, with interest thereon from a previous day. It is true, the Magistrate does not state that to have been the nature of this note. But it is not material to the point before us ; which is, whether the warrant professes to describe the note in that particular. And it certainly does not, except by the inference insisted on; which will not hold good in all cases. Indeed, it is obvious, that the memory of the witness was at fault, as to the day of payment. He fixes, it on the I5th of April, and yet, he says, that the judgment was g'i-yen according to the note ; and upon its face the judgment is for interest from the 1st day of April, as demanded in the warrant. The strong probability is, that the judgment accorded with the note, which was under the eye of the witness at the time of giving the judgment, and the jury might well have supposed, that he was mistaken in his recollection, at the trial, of the day of payment. But it is not material to this question ; for whether the note was the one way or the other, it was equally within the description required by the Staute, and actually contained in the warrant, and therefore the supposed variance did not exist.

Per Curiam. Judgment reversed, and venire de novo.