Neal ex rel. Craig v. Hussey, 48 N.C. 70, 3 Jones 70 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 70, 3 Jones 70

JOHN H. NEAL to the use of CHARLES CRAIG vs. JOHN B. HUSSEY, ADM’R. OF JOHN E. HUSSEY.

“Judgment final by default, according to special!}' filed, for $124.28, and. costs, of which $120 is principal money,'’' isa proper judgment in assumpsit, and is not the proper form for a judgment in debt

Scire facias to subject a sheriff as special bail, tried before his Honor, Judge Person, at the last Fall Term of Duplin Superior Court.

The scire facias recited that a writ came to the hands of Edward E. Hussey, Sheriff of Duplin county, commanding him to take the body of one George Gwyer, and to have him, &c., to answer plaintiff of a plea of trespass on the case, &c., and that the said Edward, as sheriff, executed the same on the body of the said George Gwyer, and returned the same, but took no bond, whereby, and by force of the statute in such case made and provided, the said Edward became the special bail of him, tlie said George Gwyer, &c., and that “ a judgment was rendered against the said Gwyer for $124.28, as damages, &o,, with interest on $120 as principal money,” with the usual clause for the sheriff to show cause why execution should not issue against him to satisfy the said judgment, &c.

The case against G-wyer is stated on the docket as one in “debt,” and the folio-wing is the entry of judgment against him:

“Pleas withdrawn, judgment final by default, according to specialty filed, for one hundred and twenty-four 28-100 dollars, and costs, of which one hundred and twenty dollars is principal money.”

The defendant insisted that the plaintiff was tíot entitled to judgment, for the reason that the writ was in ease, and the judgment was in debt. Secondly, that the sci. fa. does not recite the cause of action in the suit, in which the judgment against Gvyer was obtained. His Honor overruled the objections, and gave judgment for the plaintiff, from which the defendant appealed.

TP". A. Wright, for plaintiff.

Heid, for defendant.

Battijs, J".

The only objection which has been urged before us, against the propriety of the judgment in the court below, is, that the cause of action set forth in the sewe facias is that of trespass on the case, while the judgment produced on the trial was one in debt. Without stopping to inquire whether such a variance, if it existed, could be taken advantage of by the bail, we have only to say that none such exists. The judgment is a proper one in the action of assumpsit, because it sounds altogether in damages, and it was properly entered up by the clerk, upon a default, and the principal money distinguished from the interest, under the cli. 31, sec. 95 and 9G of the Rev. Stat. A proper judgment in debt would have been for the principal sum, one hundred and twenty dollars, and four dollars and twenty-eight cents for damages. The entry by the clerk of the word “ debt,” opposite to the names of tlie parties, and tlie words “according to specialty filed” in tlie memorandum of the judgment, cannot alter its nature. It is still in substance, and effect, a judgment in assumpsit, and therefore conforms to the writ.

Per Curiam.

Judgment affirmed.