Fortescue v. . Spencer

24 N.C. 63

• Court: Supreme Court of North Carolina
• Decided: December 5, 1841
• Status: Published

Opinion

Ruffin, C. J.

There canhot be the fedst question that the ruling of his Honor is right. There is no foundation at all for saying, that the parties acted in fraud of the law. Were a creditor, whose debt exceeded the sum of which a magistrate had jurisdiction, to remit a part of it by acknowledging a fictitious payment, for the purpose of taking advantage of his debtor, and obtaining a speedier judgment, there might be ground for this objection, if made in apt time. But what was done here was the act of the parties, and consisted of nothing more than the giving of new securities for a just_'_ debt. Whether that was effected by giving one bond for several before existing, or by giving several for aliquot parts of a debt before due on one bond, is not material. It oppresses no person and evades no law, although in the former case jurisdiction is given to a Court of Record and that of a Justice of the Peace ousted, and in the latter the magistrate acquires jurisdiction. It may have been at the instance of the defendant himself and for Ms benefit, as the costs would be less. Besides, if valid at all, the objection should have been directly taken in the first suit and not collaterally, as in this case, in an action on the judgment.

Per Curiam. Judgment affirmed.-