Supreme Court of North CarolinaJun 1, 1829
13 N.C. 214 (N.C. 1829)

(June Term, 1829.)

1. Appeals to this Court can only be brought for errors in law. The determination of the trial of an issue of fact, whether tried by a judge or a jury, cannot be reviewed. Therefore the decision of the judge below on the plea of nul tiel record is conclusive.

2. Per TOOMER, J., a scire facias which sets forth that the defendant "was fined nisi according to act of assembly," is not supported by an entry that the defendant being under recognizance "was called and failed."

SCIRE FACIAS in the usual form, upon a recognizance for the appearance of the defendant at the spring term, 1828, of WAYNE, to answer the State upon a charge for an assault and battery. The scire facias recited that the defendant "was duly called and failed to appear, and was fined nisi, according to act of assembly." Upon the plea of nul tiel record, Mr. Solicitor Miller produced the following entry made at Spring Term, 1828; "Phillip Raiford, who was bound to appear at this term to answer the State on an indictment against him, was called and failed." Upon this evidence his Honor, Judge NORWOOD, (215) found the issue in favor of the defendant, and Mr. Solicitor Miller appealed.

No counsel for the defendant.

Attorney-General for the State.


It is a judicial maxim that to matters of law the Court replies; to matters of fact the jury. The issue joined on a plea of nul tiel record involves a question of facts as to the existence of a record. This is not a matter of law, but it is such a question of fact as must be tried and decided by the Court. Should the jury in the Court below, on the trial of an issue of fact, find a verdict contrary to the weight of evidence, this Court cannot, for that reason, disturb the verdict. If the Court below, in trying a question of fact as to the existence of a record, which is properly to be tried by that tribunal, draws incorrect inferences from the evidence, this Court does not see the evidence, and cannot interfere with the decision. S. v. Isham, 10 N.C. 185; S. v. Graton, Ib., 187.

It is not necessary to inquire whether the Court below had authority to mend this scire facias, as in proceedings between individuals, parties to a civil suit. If the authority be conceded, the State can derive no benefit from the concession. Motions to amend the pleadings are addressed to the discretion of the Court, and a refusal to exercise such discretion is not a decision which can be revised in this Court. Armstrong v. Wright, 8 N.C. 93; 5 Cranch, 15; 6 Cranch, 253.

The following opinion is extrajudicial, but as I concur with the judgment of the Court below, there can be no impropriety in expressing that concurrence.

I think there was no such record as that set forth in the scire facias. The judgment of the Court was correctly rendered on the plea of nul tiel record. The scire facias states, "was fined nisi agreeably to act (216) of assembly." No judgment nisi was rendered. No act of the general assembly prescribed the penalty; no fine was imposed. The record of one term showed the recognizance; the record of the succeeding term exhibited this entry, "Defendant called and failed." S. v. Dickinson, 7 N.C. 10, has not been overlooked, but is considered not applicable to the present proceedings. There a recognizance was duly entered into; the cognizor failed to appear; the recognizance was forfeited; judgment nisi was rendered against him, for the sum specified in the recognizance. When the scire facias issued, calling on the cognizor to show cause why execution should not issue against him, for the sum of eight hundred pounds for a fine on a forfeited recognizance, in failing to make his appearance, as he was bound to do, the Court decided that the word fine might be rejected as surplusage; but retaining it did not obscure the sense of the scire facias. And the facts affirmed in the scire facias substantially agreed with the record. There was a forfeiture recorded, and a judgment nisi for the sum of eight hundred pounds agreeably to the recognizance, and as set forth in the scire facias, And the only variance between the record averred in the scire facias and the record offered in evidence to support the averments, consisted in the insertion of the word fine in the scire facias.

PER CURIAM. Affirmed.

Modified: Trice v. Turrentine, 35 N.C. 214; S. v. Green, 100 N.C. 422.