Opinion
August Term, 1850.
A ca. sa. issued by a justice of the peace in Buncombe County ought to be returned to the County Court of that county, not withstanding the provisions of the act of 1844, abolishing jury trials in the county courts of Buncombe.
APPEAL from the Superior Court of Law of BUNCOMBE, at Fall Term, 1848, Manly, J., presiding.
J. Baxter and N.W. Woodfin for plaintiff.
Henry and Gaither for defendant.
The only question presented is whether a ca. sa., issued by a justice of the peace in the county of Buncombe, ought to be returned to the County or Superior Court, under the provisions of the act of 1844, which abolishes jury trials in the county courts of Buncombe and some other counties.
The ca. sa. was in the usual form, and, after directing the officer to have the body before some justice of the peace of the said county, to satisfy, etc., concludes thus: "and in case he shall give bond and security according to law for his appearance before your County Court, you are to take the same and make return thereof, with all the proceedings in the case, to said court, and herein fail not."
The officer took a bond for the appearance of the defendant at the next term of the Superior Court, to which court he returned the writ, and the judge below refused a motion to dismiss, entertained jurisdiction of the case, and the defendant was allowed to appeal.
His Honor was of opinion that the act of 1844 transferred jurisdiction in such a case directly from the justice of the peace to the Superior Court.
We do not concur, but believe the proper construction (214) of the act of 1844 only takes to the Superior Court, in the first instance, such cases as will require the intervention of a jury as a matter of course. A statute making an exception to the general law should be confined to the object which was in view and the necessity which gave rise to it. The statute under consideration provides, among other things, that all appeals from a justice of the peace in the counties of Buncombe, etc., in civil cases shall be returned to the next term of the Superior Court. This is not an appeal, and does not come within the words, nor does it come within the necessity, of the statute; for it may be that an issue of fraud will not be made up. In appeals the issue is made and tried by the magistrate, and a jury will be required in the court to which it is carried, as a matter of course, unless one party or the other makes default.
Proceedings in bastardy are returnable to the County Court, and if an issue is made up it is taken to the Superior Court by certiorari. S. v. Sluder, 30 N.C. 487.
The same principle governs this case. The judgment below ought to be reversed and the motion to dismiss allowed.
This opinion will be certified to the court below.
PER CURIAM. Ordered accordingly.
Cited: Harris v. Hampton, 52 N.C. 598; Buchanan v. McKenzie, 53 N.C. 97.
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