13 N.C. 111 | N.C. | 1829
FROM WAKE. On the trial before his Honor, Judge NORWOOD, the case was that the wife of the defendant, Jeptha, being the widow of the plaintiff's testator, took of the money on hand at his death, the sum of (112) forty-seven dollars and fifty cents.
The defendants produced and read a former warrant brought by the present plaintiff against the wife of the defendant Jeptha, before her intermarriage with him, and proved by the magistrate who tried it that *70 on the day of trial the plaintiff appeared, produced witnesses to support his claim, who were examined by the magistrate, and upon consideration of the evidence, he, the witness, thinking that the plaintiff had failed in making out his case, entered the following judgment:
"In this case the plaintiff pay costs. Given under my hand, etc. JOHN SHAW, J. P."
The witness was asked by the counsel for the plaintiff whether the defendant offered any evidence on that trial, to which he answered in the negative. The counsel then asked him whether he considered the judgment as anything more than a nonsuit. This question was objected to by the counsel for the defendant, but the objection was overruled, and the witness answered that he intended to enter a nonsuit, and considered the judgment as one.
Upon this evidence his Honor being of opinion that the plaintiff should recover, a verdict, was entered accordingly, and the defendants appealed. It is said that this claim is founded neither on a specialty, note, contract or agreement; that it is not for goods, wares, and merchandise sold and delivered, nor for work and labor done, and, therefore, that a single justice has no jurisdiction; the act of 1784 (to which all subsequent acts, except that of 1822, refer, and the latter not affecting the case) expressly confining the jurisdiction to cases of that description.
Contracts are of two kinds, express and implied. The first (113) are, where an obligation is expressly assumed; the latter, when it arises from the transaction, without any express undertaking, being according to the obligations imposed by law, the performance of which every person is presumed to undertake, independently of and without an express promise. As if A receives the money of B, a promise is implied that A will repay it. If A pays money for B, at the request of B, the law implies a promise on the part of B that he will repay it. Even in cases where A receives the money of B tortiously, or under a claim of right, B may waive the tort, and presume that A received the money for his use, if in fact the money belonged to B; and A is not permitted to allege that he received the money tortiously, and by wrong, if ex equo et bono, as Lord Mansfield says, he ought to repay it. If this be the rule in the exposition of acts by Courts, emphatically called *71 Courts of Justice, proceeding according to the course of the common law, I can see no reason why it should not be applied to Courts of limited and special jurisdiction, proceeding, it is true, not according to the forms of the common law, but according to its principles; the law being the same in both Courts, varying only in the mode of administration, that which is law in one Court being so in the other, as far as regards the subject-matter of the contract. I must, therefore, say, that if this money in the hands of the defendant (the feme) is the money of the plaintiff, the defendants have agreed to pay it to him. A contrary exposition of the act is at variance, I think, as well with its letter as with its spirit; a contract implied being as much a contract as a contract expressed. This opinion is in accordance with the uniform understanding ever since the act was passed. I should suppose that the jurisdiction of a single justice extends to all cases where a general indebatus assumpsit will lie[.]
As to the bar of a former judgment, I think the defendant has failed to establish it. The bar does not arise from the fact that (114) there has been a former suit upon the subject, but there must have been a former investigation of this very claim upon its merits by a competent tribunal, which has adjudicated upon the subject. The judgment produced in this case shows, it is true, that there was a suit, and that it is at an end; but whether the justice who put an end to it entered into the merits of the claim and adjudicated upon the right does not appear. The entry is that the plaintiff should pay costs; this consequence may follow from a judgment on the merits, as well as something collateral to them and not affecting them. If it was to be allowed as a bar it might happen that the plaintiff would be put out of Court without ever having had his claim passed upon.
I think, also, it was improper to receive evidence from the justice to explain what he meant by the entry. It must speak for itself. As it stands, it is either a judgment or not; it cannot have its character determined by the testimony of the justice. If so, any other person is as competent to do this as he is. But if the entry imports a judgment I think it is proper to prove by the justice, or any other person, that the merits were gone into, if the testimony be consistent with the judgment. I am induced to say this from the analogy it bears to cases where trespess [trespass] has been brought for taking property, and, on the plea of not guilty, a general verdict is found for the defendant. In an action of detinue or trover afterwards brought for the same property, if the verdict and judgment in trespass be pleaded in bar, evidence may be given to prove that the verdict in that action was rendered for the defendant, from the fact that there was no forcible taking, and that it was not given on the title. This is brought in under a replication averring these facts. *72 But here the justice was asked what he meant by the entry; not whether he went into an examination of the merits. But in this case the (115) entry neither was, nor did it import to be, a judgment. It did not profess to decide the cause.
This is not one of the cases where a new trial should be granted because improper evidence was received on behalf of him in whose favor judgment was rendered — for the defendant offered no sufficient bar. There was nothing, therefore, for the justice's evidence to do away.
Upon the question of jurisdiction this case is stronger than where one man receives or takes the money of another. Here the possession devolved on the wife on her husband's death; she held it for those to whom it belonged.
PER CURIAM. Affirmed.
Cited: Justice v. Justice,
