Opinion
December Term, 1841.
Where A. owes B. a debt by note of upwards of $100 and in lieu thereof gives B. several notes of less than $100, so that judgments may be taken on them before a justice of the peace: this is not either in fraud or evasion of the statute prescribing the jurisdiction of justices of the peace out of court.
THESE were appeals from Settle, J., at Fall Term, 1841, of HYDE.
J. H. Bryan for plaintiff.
No counsel for defendant.
The facts were these: The defendant was indebted to the plaintiff in the sum of $148.42 due by bond, and on 26 May, 1840, in satisfaction of that bond, he gave to the plaintiff two other bonds in the sum (64) of $74.21 each, payable immediately. These two bonds were given and accepted by the parties, respectively, with the view that judgments might be taken thereon before a justice of the peace; and, accordingly, on the same day the defendant accepted the service of two warrants, issued on the bonds, and confessed judgment in each case for $74.21. Those judgments having become dormant, the plaintiff issued a new warrant on each of them and obtained judgment thereon before a justice of the peace, from which the defendant appealed to the county court. He there pleaded in each that there was no such former judgment as that alleged in the warrant; and on the issue joined thereon there was a trial and judgment in that court, from which the defendant again appealed to the Superior Court. On the trial in the latter court it was objected that the transaction was in fraud and evasion of the statute which confers jurisdiction on a single justice of the peace out of court, and therefore, that the judgments first given, and on which the present warrants are founded, were void and the plaintiff could not recover. But notwithstanding the objection, the court directed the jury to find for the plaintiff upon the issue, which was done. From the judgment thereon the defendant appealed to this Court.
There cannot be the least question that the ruling of his Honor is right. There is no foundation at all for saying that the parties acted in fraud of the law. Were a creditor, whose debt exceeded the sum of which a magistrate had jurisdiction, to remit a part of it by acknowledging a fictitious payment, for the purpose of taking advantage of his debtor, and obtaining a speedier judgment, there might be ground for this objection, if made in apt time. But what was done here (65) was the act of the parties, and consisted of nothing more that the giving of new securities for a just debt. Whether that was effected by giving one bond for several before existing, or by giving several for aliquot parts of a debt before due on one bond, is not material. It oppresses no person and evades no law, although in the former case jurisdiction is given to a court of record and that of a justice of the peace ousted, and in the latter the magistrate acquires jurisdiction. It may have been at the instance of the defendant himself and for his benefit, as the costs would be less. Besides, if valid at all, the objection should have been directly taken in the first suit and not collaterally, as in this case, in an action on the judgment.
PER CURIAM. No error.
Cited: Moore v. Thomson, 44 N.C. 223.
(66)