Opinion
August Term, 1849.
1. It is the duty of every court to make its own record, and no other court can indirectly examine into the manner in which it is made.
2. A note for $70, payable in current bank notes, though it is not negotiable, yet comes within the jurisdiction of a single justice.
3. The party with whom a constable makes the contract for the collection of a note is the proper relator in an action on his official bond, and not the person to whom the note is payable.
APPEAL from the Superior Court of Law of CHEROKEE, at Spring Term, 1849, Bailey, J., presiding.
This was an action of debt, brought against the defendant King, as constable, on his official bond, dated 1 January, 1840, and the other defendants as his sureties, for his failing to collect claims put in his hands as constable. The plaintiff introduced the records of the County Court of Cherokee, as follows, to wit: "March Sessions, 1848, ordered by court that the names of the select court, to wit, Peter A. Summey, W. W. Pace and John Tatham, be inserted in the minutes of January Term, 1840, it appearing to the satisfaction of the court that the said Peter A. Summey, W. W. Pace and John Tatham were present and presided during the term, and that this entry be made on the minutes of said term nunc pro tunc." At January Sessions, 1840, is the following entry: "Court met, presiding, Peter A. Summey, W. W. Pace and John Tatham, Esquires; see minutes of March Sessions, 1848, page 293, nunc pro tunc. (59) Harrison King came into court and entered into bond according to law and was sworn into office, and gave for security, Benjamin Sherrall, Benjamin Ward and N. A. Strange, it appearing to the satisfaction of the court that said King was duly elected constable according to law." This testimony was objected to by the defendants, but was received by the court. The plaintiff then introduced a letter of the defendants, which was read by consent. He then introduced a receipt of the defendant King as follows, to wit: "Received 18 November, 1840, from E. Dowdle, a note on Andrew Colvard for $70, due 27 October, 1840, made payable to N. S. Jarratt in current bank notes, which I promise to collect and pay over to the said Dowdle, or return according to law. G. H. King, Cons." The plaintiff then gave evidence of the solvency of Andrew Colvard, and that the officer, by using due diligence, might have collected the money.
The defendant's counsel objected: (1) That the record read was insufficient to show King's election and qualification; that the entry from the record of 1848 did not show that any of the justices of Cherokee were present when that entry was made, and that there was not sufficient in the record to amend by. (2) That the note was for $70, payable in current bank notes, and therefore not within the jurisdiction of a justice of the peace. (3) That the present relator cannot recover, for the reason that the note to Colvard was payable to N. S. Jarratt, and did not belong to him, the relator.
The court overruled these objections, and instructed the jury that if Colvard had property in his possession from which the debt could have been collected if King had used due diligence, the plaintiff was entitled to recover, and that was a question for them.
(60) A verdict and judgment were rendered for the plaintiff, and the defendants appealed.
Gaither for plaintiff.
J. W. Woodfin and Baxter for defendants.
The question as to the record of the County Court is settled. S. v. King, 27 N.C. 203. It is the duty of every court to make its own record; no other court can indirectly examine into the manner in which it is made. Hence the transcript should not notice the order of amendment, but simply set out the record as made by the court.
The note in question is for $70, due 27 October, 1840, payable to N. S. Jarratt, in current bank notes. It is insisted that it is not within the jurisdiction of a single justice, and therefore the defendants are not liable.
Bank notes are not money. They pass as cash and constitute a part of the circulating medium. We concur with the decision in Miller v. Race, 1 Burr., 352, that the bona fide holder of a bank note is entitled to it against the former owner, from whom it has been stolen. We also concur with the decision in Anderson v. Hawkins, 10 N.C. 568, that, for many purposes, bank notes are to be considered as money; they are to be so considered whenever the parties consent, by receiving them as such or otherwise, so to treat them. Pickard v. Burks, 13 East, 20. Id simile non est idem. Although a bank note passes as cash, it is not cash; and it is not a legal tender. In this case the parties have done no act indicating that they considered bank notes as money. By stipulating that the payment might be made in bank notes, it is apparent that they were not so considered. If the note had been a promise to pay seven $10 bank notes, or to pay $70 worth of bank notes, upon failure the action would be debt for specific articles, or case for breach of contract, and a single justice would not have jurisdiction. But the (61) note being a promise to pay $70 on a given day, with the privilege of paying in current bank notes, the party must avail himself of the privilege at the time the note falls due; otherwise it is a note for $70. It is true, the note is not negotiable, because it is not a simple promissory note within the statute making such notes negotiable, like inland bills of exchange under the law merchant. But it is still such a promise for money as will support an action of debt before a single justice.
The third objection, that the action should have been upon the relation of Jarratt and not of Dowdle, is settled. Holcombe v. Franklin, 11 N.C. 274; S. v. Lightfoot, 24 N.C. 310. The contract was made with Dowdle and he was the proper relator.
PER CURIAM. Judgment affirmed.
Cited: Knight v. R. R., 46 N.C. 359; Isler v. Murphy, 71 N.C. 438; Dail v. Suggs, 85 N.C. 107.