Sheppard v. Briggs, 9 N.C. 369, 2 Hawks 369 (1823)

June 1823 · Supreme Court of North Carolina

9 N.C. 369, 2 Hawks 369

Sheppard v. Briggs

From Surry.

Xu debt on bond for a sum less than $100, since tins act of 1820, advantage can be taken of the want of jurisdiction, by plea, in abatement only.

Debt on three several bonds, amounting to $394 50, tried before Daniel, Judge. The Plaintiff, on Lhe trial, produced, 1st, a bond for 8253 50 ; 2d, a bond for 8fO;, and 3d, a bond for $fl, all executed by the Defendant, and payable to bimself. The defence was, payment The Jury found, that after allowing the several payments made by the Defendant, there was a balance due the Plaintiff, for principal, $7” 3 10, and they assessed his damage, by way of interest, to 85 34.

Upon the rendition and before recording the judgment, the Defendant moved to nonsuit the Plaintiff. The mo tion was overruled and judgment was entered, where union Defendant appealed.

On the motion for a nonsuit, the Plaintiff filed an afti-^av^’ which made part of the case, stating that he verily believed the balance justly due him from the Defendant was more than $100.

Hall, Judge,

delivered the opinion of the Court:

The parties have treated this case as if the cause of action had happened before the act of 1820, ch. 1045. By that act it is declared, that all suits hereafter commenced in the Superior or County Courts in this State, on any bond, promissory note, or liquidated account, for a less sum than $100, shall be abated upon the plea of the Defendant. By tins act, the Court have not the power of nonsuiting in such cases $ nor is it necessary for the Plaintiff to file an affidavit, as he has done. This was the mode pointed out by former acts of Assembly. By this act, the suit can be abated only upon the plea of the Defendant; of course, the judgment pf the Superior Court must be affirmed.