Neal Ex Rel. Craig v. Hussey

48 N.C. 70

• Court: Supreme Court of North Carolina
• Decided: December 5, 1855
• Status: Published

Opinion

Battijs, J".

The only objection which has been urged before us, against the propriety of the judgment in the court below, is, that the cause of action set forth in the sewe facias is that of trespass on the case, while the judgment produced on the trial was one in debt. Without stopping to inquire whether such a variance, if it existed, could be taken advantage of by the bail, we have only to say that none such exists. The judgment is a proper one in the action of assumpsit, because it sounds altogether in damages, and it was properly entered up by the clerk, upon a default, and the principal money distinguished from the interest, under the cli. 31, sec. 95 and 9G of the Rev. Stat. A proper judgment in debt would have been for the principal sum, one hundred and twenty dollars, and four dollars and twenty-eight cents for damages. The entry by the clerk of the word “ debt,” opposite to the names of tlie parties, and tlie words “according to specialty filed” in tlie memorandum of the judgment, cannot alter its nature. It is still in substance, and effect, a judgment in assumpsit, and therefore conforms to the writ.

Per Curiam.

Judgment affirmed.