Opinion
June Term, 1823.
In debt on bond for a sum less than $100 since the act of 1820 advantage can be taken of the want of jurisdiction by plea in abatement only.
DEBT on three several bonds amounting to $394.50, tried before Daniel, J., at SURRY. The plaintiff on the trial produced (1) a bond for $253.50; (2) a bond for $70, and (3) a bond for $71, all executed by the defendant and payable to himself. The defense was payment. The jury found that, after allowing the several payments made by the defendant, there was a balance due the plaintiff for principal $73.10, and they assessed his damage by way of interest to $5.34.
Upon the rendition and before recording the judgment, the defendant moved to nonsuit the plaintiff. The motion was overruled and judgment was entered, whereupon defendant appealed.
On motion for a nonsuit the plaintiff filed an affidavit which made part of the case, stating that he verily believed the balance justly (370) due him from the defendant was more than $100.
The parties have treated this case as if the cause of action had happened before the act of 1820, ch. 1045. By that act it is declared that all suits hereafter commenced in the Superior or county courts in this State on any bond, promissory note, or liquidated account for a less sum than $100, shall be abated upon the plea of the defendant. By this act the courts have not the power of nonsuiting in such cases, nor is it necessary for the plaintiff to file an affidavit as he has done. This was the mode pointed out by former acts of Assembly. By this act the suit can be abated only upon the plea of the defendant; of course the judgment of the Superior Court must be
PER CURIAM. Affirmed.
Cited: Clark v. Cameron, 26 N.C. 162.