Brickell v. Bell, 84 N.C. 82 (1881)

Jan. 1881 · Supreme Court of North Carolina

84 N.C. 82

R. B. & J. B. BRICKELL, Exr’s, v. CATHARINE BELL and others.

Confederate Currency — Scale—Jurisdiction—Trial.

3. A bond executed in February, 1865, “ for two hundred and forty-five dollars in current funds,” nothing appearing to the contrary, is presumed to be payable in confederate money, and is subject to the legislation scale of depreciation.

2. The superior court has jurisdiction of an action upon such bond, the 'sum demanded (meaning the principa]) being- inexeess’of two hundred dollars. But it was error in the court, on overruling a demurrer t© the jurisdiction, to proceed to judgment without the intervention of a jury.

Palmes• v. Love, 75 IT. CL, 163-; Hilliard v. Moore, 85 IT. C., 540; Howard v. Beatty, 84 ST. C., 559 ; Davis v. Glenn, 72 17. C., 519 ; McKesson v. Jones, 86 TST. C., 25S ; Chapman v. Wacaser, 64 IT. C., 532 ; Hedgecoclc v. Davis, 64, N. C., 650; Dalton v. Webster, 82 IS". C-., 279; Derry, 'Stubbs, 83 3ST. 0-, 539, cited and approved.)

■Civ-il Action heard on complaint and demurrer at November Special Term, -1880, of Halifax Superior Court, -before Graves, J.

This action was brought -in the superior court to recover ■the amount due upon the following bond; On demand the first of*January, 18-76, we, or either of us promise to pay to John Whitfield or order two hundred and forty-five dollars in current funds. Dated February 18th, 1865. Before the ■suit was commenced, the bond was assigned to plaintiffs’ testator for value. The defendants demurred to the complaint upon the ground that it appeared on its face the court had no jurisdiction of the subject of the action, in that -the amount claimed -was -under two hundred dollars, and upon the -hearing it was adjudged that the demurrer ■be overruled and the plaintiffs recover of defendants the sum of four hundred and sixty-three dollars and thirty-one cents, from which judgment the defendants appealed.

Mr. Thomas N. Hill, for plaintiffs.

Messrs.-Kitchin & Dunn, for defendants.

Ashe, J.

The ’questions presented for our consideration by the appeal arel

1. Was'the bond sued on subject to the scale?

■2. If it was, did the superior court have jurisdiction?

By the ordinance of the convention of 1865, all executory contracts solvable in money, whether under seal or not, made after the depreciation of said currency, before the first day of May,-1865, and yet unfulfilled (except official bonds' and personal bonds payable to the state) shall be deemed to-have been made with the understanding that they were-solvable in money of the value of sa-id currency, subject-nevertheless to evidence of a different intent of the parties-to the contract -f and by the act of 1866, ch. 44, §1, it is provided that the scale shall be construed t-o apply to debts-herein mentioned, at the date of contracting the same, and not at the time the debts become due.- At the time this' bond was executed, confederate money was the only currency of the country,, and where it does-not otherwise appear upon the face- of the note or bond, or there- was no agreement of the parties-to the contrary, it was presumed to be payable in confederate money. Palmer v. Love, 75 N. C., 163; Hilliard v. Moore, 65 N. C., 540. The bond- sued on-therefore having been given during the war, and nothing' appearing to the contrary, it is- presumed to be payable in confederate money, and subject to the scale.

But it is contended that the terms “ current funds,” rebuts* 'the presumption, and is evidence o-f the intention of the’ contracting parties that the bond should be paid in some other than confederate currency, to-wit, in such funds ass might'be in circulation at the- time when the bond should fall due;, but if has been expressly decided to the contrary-In the case of Howard v. Beatty, 64 N. C., 559, which was an action upon a bond, payable at twelve months, “in current money,” and dated April 6th, 1865; it was held subject to-the scale; and in the case of Davis v. Glenn, 72 N. C., 519, which was an action on a single bill dated August 15th, 1864, and payable six months- after date, in current funds, it was decided that this note was solvable in confederate money, and subject to the scale. To the same effect is the case of Sexton v. Wendell, 23 Gratt., 534.

There are some cases, that at first seem, to conflict with? these, as McKesson v. Jones, 66 N. C., 258; Chapman v. Waca ser, 64 N. C., 532, and some others. Bat upon looking into .them, it is found that the bonds or notes sued on, contain ■some such stipulations as to be paid in current funds or money, when-the note falls due — ten daj'S after peace, or some ■such like terms, which indicated the intention of the .parties ■that the .note or .bond was to -be paid in some other funds than confederate .money.

And it is insisted, if the bond sued on is subject fo the ■scale, then the .-superior court had no jurisdiction, for the ■sum sued for is less than two hundred dollars. This ground ■ of demurrer cannot be sustained. By the constitution of 1868, it is .declared .that the several justices-of the peace shall have exclusive original jurisdiction, under such regulations .•as the general .assembly shall prescribe, when the sum ■demanded shall not exceed two hundred dollars, .and the legislature has provided by section fifteen, chapter sixty-three, -of Battlers Revisa!, amended by the acts of 18.77, eh. 63, that where it appears in any action, brought before a justice of the peace, that the sum demanded exceeds two hundred -dollars, the justice of the peace shall dismiss the action, and ■render judgment .against the plaintiff unless .the plaintiff -shall remit the excess of principal .above two hundred dollars,-with the interest on said excess, .and shall, at the time ■of filing his complaint, direet the justice -to make this entry: “ The plaintiff in this action forgives and remits to the defendant so much of the principal of this claim as is in .excess of .two hundred-dollars, together -with the interest on said excess."” The words “ sum demanded,” have been con-.strued t© mean the principal of the note. Hedgecock v. Davis, 64 N. C., 650; Dalton v. Webster, 82 N. C., 279; Derr v. Stubbs, 83 N. C., 539.

There is no error in -overruling the demurrer, but there as error in proceeding to judgment without the intervention -of a jury.

JLat.this..be.certified to .the s.uperior...cour.t of Halifax.countj, tliat further proceedings may be had in conform.ity to. this: opinion and the law, of. the state..

Error., Ventr-e d& nova-,