Ausley v. Alderman

Full title: MERRITT AUSLEY v. DANIEL ALDERMAN AND OTHERS

Court: Supreme Court of North Carolina

Date published: Jan 1, 1867

61 N.C. 215 (N.C. 1867)

Opinion

(January Term, 1867.)

1. The value of a bond or note within the meaning of Rev. Code, ch. 31, sec. 38, is the principal and interest due on it.

2. When the value of a note is reduced by endorsed credits to less than $100 an action brought to the county or Superior Court on such note, may be abated on plea of the defendant.

( Birch v. Howell, 8 Ire., 468, cited and approved.)

BEBT [DEBT] upon a note, carried by appeal from the County Court of ROBESON to Fall Term, 1866, of the Superior Court, Gilliam, J., presiding.

Leitch for plaintiff.

W. McL. McKay for defendants.

Upon oyer at the appearance term in the county court it appeared (216) that the note declared on, bearing date 3 November, 1865, was for $135; and there were endorsed credits of $50 and $16, dated ____ December, 1865, and 14 July, 1866, respectively. Thereupon, the defendant pleaded in abatement that the amount sued for "was less than the sum of which the court had jurisdiction." The plea was overruled in the county court; in the Superior Court it was held good, and the judgment was, that the writ be quashed, and that the defendant recover his costs. The plaintiff appealed.

READE, J.

The statute, Rev. Code, ch. 31, sec. 38, provides that no action shall be originally commenced in the county or Superior Court for any balance of less value than one hundred dollars due on any bond, promissory note, or liquidated account signed as aforesaid." "And if any action shall be commenced in any of said courts contrary to the provisions of this section, or if the sum sued for, which may be truly due and owing, is of less value than that for which the action is hereby allowed to be commenced in said court, the same may be abated on plea of the defendant, or, if the matter appear on the writ or declaration, may be dismissed, on motion."

The value of a bond or note within the meaning of that statute is the principal and interest due on it. Birch v. Howell, 8 Ire., 468. The balance of principal and interest due upon the note sued on in this case was less than one hundred dollars, and therefore the suit cannot be maintained. It would be otherwise, if the amounts were reduced by sets off offered by the defendant. But here it appeared by the face of the note and the payments endorsed, that the "balance due was of less value than one hundred dollars.

PER CURIAM. There is no error. (217)