Bailey v. Wilson

17 S.C.L. 15

• Court: Court of Appeals of North Carolina
• Decided: May 15, 1828
• Status: Published

Opinion

Johnson, J.

delivered the opinion of the Court.

The rule of Court expressly requires that a copy of the plaintiff’s cause of action, if it be in writing, shall be endorsed oi\ or annexed to the copy-processl And this is the more necessary, as from the concise manner in which, according to the practice of the Court, it is usually set out in the body of the process, the plaintiff’s case, would, otherwise, be imperfectly understood. The rule is rigidly adhered to in practice, and ought not to be departed from.

The omission is, I think, analogous to the want of a bill of particulars to a declaration, and in that form the defendant was not bound to plead to it, but might have demurred, or, as in this case, moved to quash the proceedings, (Bacon Abr. Abatement H.) and that motion is now granted as to the case first in order.

In relation to the remaining question, I will observe, passingly, that I am not satisfied that the result contemplated by the defendant’s counsel, would have necessarily followed, if he had succeeded in getting in the evidence, for I am not prepared to say, that if the judgments had been reduced, even within the exclusive jurisdiction of a magistrate, that the Court in which the judgments were obtained, was excluded from carrying them fully into effect; but the case has been placed here entirely upon the state of the pleadings, and it will be enough for the present, to decide it upon that ground.

Vide 1 Ch. PI. 481, and statute 4 Ann, c. 16, P. L. 95. Rogers, for the motion. Williams, contra.

The defendant claims the right to have been let into evidence of payment, on the ground that formal pleas are dispensed with in the summary jurisdiction both by law and the usage of the bar, amongst whom strict pleading is rarely insisted on. The same necessity exists as well in this as in the higher jurisdiction of the Court, for apprising the plaintiff of the grounds of the defence, and when that defence consists of a matter pleadable at law, I cannot conceive of any forms more convenient or appropriate than those established by the practice of the Courts: And if a case should occur in which these would not apply, and that might well happen, as this is a species of equity jurisdiction, something in the form of an answer would be admissible.

I know of no provision in the act creating this jurisdiction, which dispenses with a written plea in some form or other; on the contrary, the defendant is required by the very terms of the summons, to file his defence with the clerk of the Court, and to give notice thereof to the plaintiff. I am aware that a mistaken liberality has led the bar, very generally, to dispense with formal pleas in those cases, and with respect to these matters, the Court will permit them to manage them in their own way, so far as they agree; but with respect to the Court itself, there can be but one rule; the law must be enforced. In the last case, the motion is, therefore, refused.