Mera v. Scales, 9 N.C. 364, 2 Hawks 364 (1823)

June 1823 · Supreme Court of North Carolina

9 N.C. 364, 2 Hawks 364

Mera v. Scales and McCain.

From Caswell.

Certiorari will be granted on affidavit, that appellant applied in due-time to the Cleric of the Court below for the record of a case to bring it up to this Court, and was informed by the Clerk that he had sent it up, when the record reaches this Court too late.

Nonsuit will be entered where, in covenant, the Plaintiff in the Superior Court recovers less than the sum of £50, unless he file an affidavit under the act of 1777.

Certiorari. Muffin, in this case, moved for a certiora-ri* on an affidavit made by Scales» stating that he was informed by his co-defendant, that several days before the meeting of this Court, the Defendant (McCain) sent to the Clerk of the Superior Court of Caswell for the record in this case, that lie might bring it up, and was told by the Clerk that he had made out the record and sent if up. The record reached the Clerk of this Court on the fourth day of the term, and it was admitted by Sea-'well, for the Plaintiff, that the fads stated, should be considered as having Sieen sworn to by McCain.

Per Curiam.

The affidavit is sufficient, let a certi-orari issue.

And now on the return of the certiorari, the record shewed it to have been an action of covenant, in which the breach assigned was the non-payment of $2650, which Defendant, by his covenant had bound himself to pay. The Jury found that Defendants had paid to the Plaintiff $2650 15, and assessed the Plaintiff’s damages to thirty-nine dollars, twenty-nine cents ; thereupon, Defendant’s counsel moved, hut without success, to nonsuit the Plaintiff,

Henderson, Judge,

delivered the opinion of the Court:

This action is not brought on a bond, note, or liquidated account, and therefore, is not within the act of 1820, which declares, that in such cases, the jurisdiction of the Superior and County Courts shall be ousted by plea in abatement. Nor did the act which gives concurrent jurisdiction, in all cases for civil injuries, to the Superior and County Courts, alter the, mode of ousting jurisdiction in either. In this case, the declaration shows the nature of the demand, arid the verdict of the J ury the amount due 5 and there being no affidavit under the act of 1777, the Court Law. as it is calk'd, there must be judgment of ¡aeosuif.