Swain v. . Smith
Supreme Court of North Carolina
This was a writ of recorda/ri in the nature of a writ of false judgment, to reverse a judgment given by a Justice of the Peace, and upon the return of the writ in which the whole proceedings were certified, the plaintiff, who was also the plaintiff in the suit before the Justice, assigned for error that the judgment given by the Justice in his favor for the amount claimed by him had the following words added as a part of it — “ to be paid in old North Carolina bank money at…
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This was a writ of recorda/ri in the nature of a writ of false judgment, to reverse a judgment given by a Justice of the Peace, and upon the return of the writ in which the whole proceedings were certified, the plaintiff, who was also the plaintiff in the suit before the Justice, assigned for error that the judgment given by the Justice in his favor for the amount claimed by him had the following words added as a part of it — “ to be paid in old North Carolina bank money at par of any bank in the State.” At the Pali Term, 1870, of Alexander Superior Court, before his Honor, Judge Mitchell,…
1Opinion of the CourtDick, J.
The judgment of the Justice of the Peace was erroneous. He had no right to adjudge that the plaintiff’s debt was “ to be paid in old North Carolina bank money at par, of any bank of the State.”
These words cannot be rejected as surplusage as they form a material part of the judgment. The original cause of action was merged in the judgment, and the terms of the contract so changed as to affect injuriously the rights of the plaintiff. A judgment is the conclusion of law from the facts proved or admitted in the suit, and in money demands must be absolute and in a specified amount. The plaintiff…
2Cases cited2 opinions
- Marsh v. . Williams and BrinkleySupreme Court of North Carolina · 1869
- Mitchell v. . Henderson and AnotherSupreme Court of North Carolina · 1869
3Cited by5 opinions
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