26 N.C. 43 | N.C. | 1843
Assumpsit on two promissory notes, the first for the sum of $61.43, due 21 November, 1841, with a payment endorsed of $40 on 12 July, 1842; the second for $73.87, due 16 June, 1842. The defendant's counsel moved to nonsuit the plaintiff because neither of the notes amounted to the sum of $100, and contended that the plaintiff could not bring a suit on two notes, each of which was under $100. The court overruled this motion and submitted the case to the jury with instructions to find how much was due for principal money and how much for (44) interest at the date of the writ, to wit, on 1 April, 1843, and that they should calculate interest at the rate of 7 per cent as the notes were *40 executed and payable in South Carolina. The jury, under the direction of the court, found that on 1 April, 1843, there was due on both notes, after deducting the payment endorsed, the sum of $98.15 principal money and $5.06 for interest. Upon the finding of the jury, the court ordered the plaintiffs to be nonsuited, from which judgment they appealed to the Supreme Court. The plaintiffs' declaration is in assumpsit on two promissory notes. Plea: Non assumpsit. The plaintiffs offered in evidence two notes signed by the defendant's intestate. The jury assessed the plaintiffs' damages to $107.74, of which $98.15 was principal money; and they further found that on the day the writ was issued, the principal money due on both of these notes was $98.15 and $5.06 interest. Whereupon, on motion, the court ordered the plaintiffs to be nonsuited, and they appealed.
The Superior Court has jurisdiction of all sums of $100 and upwards due by bond, promissory note, or liquidated account signed by the party to be charged thereby. Rev. Stat., ch. 31, sec. 40. And if any suit shall be commenced in any of the said courts (county or Superior) for any sum of less value than $100 due by bond, promissory note, or liquidated account signed by the party to be charged therewith, the same shall be dismissed by the court. Ibid., sec. 41. And in a suit commenced in the Superior Court, if by the verdict of a jury it shall be ascertained that a less sum is due to the plaintiff in principal and interest than by the provisions of section 40 the said Superior Court has jurisdiction of, the court shall nonsuit the plaintiff. Ibid., sec. 42.
(45) It appeared by the finding of the jury in this case that the sum due to the plaintiffs on the two notes for principal and interest at the date of the writ was $103.21. It seems to us that the Superior Court had jurisdiction, and that the judgment of nonsuit was erroneous. If the damages stated in the count would cover them, any number of notes in the same right might have been consolidated and given in evidence, provided the principal and interest due on them amounted to $100 or upwards. It has been suggested to us that probably the word "balance," in the third line of section 40, might have a bearing on the case; but that word when read with its context and with the three last lines in the section will be perceived to have no governing control on suits in the Superior Courts on money notes of the description of those sued on in this action. We do not doubt that a magistrate had concurrent jurisdiction of the case. *41
The nonsuit must be set aside and judgment rendered for the plaintiffs on the verdict.
PER CURIAM. Reversed and judgment for plaintiffs.
Cited: Birch v. Howell,