Moore v. Thomson

• Decision Date: 30 June 1853
• Citation: 59 Am.Dec. 550,44 N.C. 221
• Court: North Carolina Supreme Court
• Parties: ELI W. MOORE & CO. v. NATHAN THOMSON.

44 N.C. 221

59 Am.Dec. 550

ELI W. MOORE & CO.

v.NATHAN THOMSON.

Supreme Court of North Carolina.

June Term, 1853.

Where the payee of a bond endorsed thereon a payment for the purpose of bringing the amount within a Justice's jurisdiction, upon suit brought before the Justice:-- Held, to be a fraud upon the law, and a plea in abatement will be sustained.

(The cases of the State v. Mangum, 6 Ire. 369. Fortescue v. Spencer, 2 Ire. 63, cited and approved.)

THIS was an action of DEBT, commenced by warrant before a Justice of the Peace, for the sum of one hundred dollars, in the name of Eli W. Moore & Co., as plaintiffs, and the same was carried by the appeal of the defendant to the Superior Court. At Fall Term, 1852, the defendant put in a plea in abatement, averring--

“That the note declared on was given for the sum of one hundred and ten dollars and two cents, to Eli W. Moore & Co.--that the plaintiffs had theretofore brought suit on said note to the County Court--that the same was there dismissed at plaintiffs' costs--and that plaintiffs' attorney, pending said suit, endorsed on the note a credit of $10.02., and thereupon caused this present suit to be instituted by warrant before a Justice of the Peace-- wherefore, because the said endorsement has been made by the attorney aforesaid of the plaintiffs, with the design and intent to change the jurisdiction from the Court aforesaid to a Justice of the Peace, thereby committing a fraud upon the law in such case made and provided, and the legal rights of the defendant, the said defendant prays judgment,” &c.

To which plea the plaintiffs demurred--1. That the same was double, in that an abatement was prayed for want of parties and for want of jurisdiction, and though assigning as cause of abatement the want of parties, does not set forth the names of the parties omitted. 2. For that it is argumentative.

Upon a joinder in demurrer by defendant, the case was argued at Martin, on the last Spring Circuit, before his Honor Judge BAILEY, who gave judgment overruling the plea, and requiring the defendant to answer over; from which judgment the defendant appealed.

No counsel for the defendant in this Court.

Biggs, for the plaintiff .

PEARSON, J.

The plea is not liable to the objection of being argumentative. It is prolix and sets out irrelevant matter; but this is a mere form, and is not assigned as cause of demurrer.

The part of the plea which we suppose was intended to raise the objection that...