44 N.C. 221 | N.C. | 1853
"That the note declared on was given for the sum of one hundred and ten dollars and two cents, to Eli W. Moore and Company that the plaintiffs had theretofore brought suit on said note to the — county court — that the same was there dismissed at plaintiffs' costs — and that plaintiffs' attorney, pending said suit, endorsed on the note a credit of $10.02, and thereupon caused this present suit to be instituted by warrant before a justice of the peace — wherefore, because the said endorsement has been made by the attorney aforesaid of the plaintiffs, with the design and intent to change the jurisdiction from the court aforesaid to a justice of the peace, thereby committing a fraud upon the law in such case made and provided, and the legal rights of the defendant, the said defendant prays judgment," etc.
To which plea the plaintiffs demurred: (1) That the same was double, in that an abatement was prayed for want of parties and for want of jurisdiction, and though assigning as cause of abatement the want of parties, does not set forth the names of the parties omitted. (2) For that it is argumentative.
Upon a joinder in demurrer by defendant, the case was argued at MARTIN, on the last Spring Circuit, before his Honor, Judge Bailey, who gave judgment overruling the plea, and requiring the defendant to answer over; from which judgment the defendant appealed. The plea is not liable to the objection of being argumentative. It is prolix and sets out irrelevant matter; but this is a mere form, and is not assigned as cause of demurrer.
The part of the plea which we suppose was intended to raise the objection that the names of the individuals who compose the firm of Moore and Company are not set out in the warrant, being left blank, must be treated as surplusage, for the whole is thus in effect (223) blank, and the rule, utile per inutile, etc., applies. So, the only question is in reference to the fraud upon the jurisdiction.
The creditor, without the knowledge or consent of the debtor, enters a credit on the note for the purpose of giving jurisdiction; the debtor has never assented to, or ratified this credit, but has always objected to *215
it. This does not amount to a payment, and the magistrate had consequently no jurisdiction. It is a familiar maxim of law. "No one can make another his debtor without his consent." The converse is equally true. No one can give another a specific article or a sum of money, unless he chooses to accept it; and although in this latter case the acceptance is usually presumed (as it is supposed to be for his benefit), yet there may be reasons why he may not choose to accept (as in our case), and then the presumption is rebutted. Suppose a creditor, whose debt is about being barred by the statute of limitations or the presumption of payment, enters a credit; no effect whatever is given to it, unless the debtor assents to it. It is said this is like the case of a plaintiff who remits a part of his damages to prevent a variance. There is no analogy; for the court allows the remittitur as an amendment of the record. S. v. Mangum,
PER CURIAM. Judgment reversed.
Cited: Barrett v. Barrett,
