Opinion
June Term, 1823.
1. Certiorari will be granted on affidavit that appellant applied in due time to the clerk of the court below for the record of a case to bring it up to this Court, and was informed by the clerk that he had sent it up, when the record reaches this Court too late.
2. Nonsuit will be entered where in covenant the plaintiff in the Superior Court recovers less than the sum of £ 50, unless he file an affidavit under the act of 1777.
CERTIORARI. Ruffin, in this case, moved for a certiorari on an affidavit made by Scales, stating that he was informed by his codefendant that several days before the meeting of this Court the defendant (McCain) sent to the clerk of the Superior Court of Caswell (365) for the record in this case, that he might bring it up, and was told by the clerk that he had made out the record and sent it up. The record reached the clerk of this Court on the fourth day of the term, and it was admitted by Seawell, for the plaintiff, that the facts stated should be considered as having been sworn to by McCain.
The affidavit is sufficient; let a certiorari issue.
And now, on the return of the certiorari, the record showed it to have been an action of covenant in which the breach assigned was the nonpayment of $2,650, which defendant, by his covenant, had bound himself to pay. The jury found that defendants had paid to the plaintiff $2,650.15 and assessed the plaintiff's damages to $39.29. Thereupon, defendant's counsel moved, but without success, to nonsuit the plaintiff.
This action is not brought on a bond, note, or liquidated account, and therefore is not within the act of 1820, which declares that in such cases the jurisdiction of the Superior and county courts shall be ousted by plea in abatement. Nor did the act which gives concurrent jurisdiction in all cases for civil injuries to the Superior and county courts alter the mode of ousting jurisdiction in either. In this case, the declaration shows the nature of the demand, and the verdict of the jury the amount due, and there being no affidavit under the act of 1777, the court law, as it is called, there must be judgment of nonsuit.
PER CURIAM. Action dismissed.
(366)