The plaintiffs alleges in substance that, in November, 1882, a suit was pending against him in South Carolina, instituted by J. G. Black; that while he was confined in bed by sickness, the defendant Hambright told him that he had lost his suit, but that the plaintiff therein was willing to compromise for $50, and not harass him further, as he sympathized with him; that acting under the belief that the representations made by Hambright were true, he paid him the $50, who gave a receipt for the same, signed by James Black, for J. B. Black — the said James Black, professing to act for said J. G. Black.
The $50 was paid on 10 November, 1882, and on 11 November he was informed that the suit pending in South Carolina had been decided in his favor, that by reason of his illness he had no means of informing himself of the truth of the matter till the following day, whereupon he demanded payment of the $50, which had been so paid by him under the representations made by Hambright.
The defendant moved to dismiss the action for want of (447) Jurisdiction, which motion was allowed, and the plaintiff appealed. Section 887 of the Code provides that "justices of the peace shall have concurrent jurisdiction of civil actions not founded on contract, wherein the value of the property in controversy does not exceed fifty dollars," The Property in controversy here is the fifty dollars, which, the plaintiff alleges, he was induced to pay by the representations made by the defendants, and which were untrue, and is clearly within the section referred to.
Bullinger v. Marshall, 70, N.C. 520, cited by counsel for the defendant, was before the Act of 1876-77 (sec. 887 of The Code, and is not applicable to this case, and point in Ashe v. Gray, 88 N.C. 190. reaffirmed in 90 N.C. 137, is misapprehended. The complaint in the latter case contained causes of action for direct and fraudulent representations, associated with a cause of action for a false warranty in an exchange of horses, and laid the damages at $50. The jury found upon issues submitted, that there was a warranty, and assessed damages at $50, and the court below refused to give judgment for the plaintiff, holding that the action was founded exclusively on contract and was cognizable only in the court of a justice of the peace. Upon appeal, this *Page 358 was reversed, because the real character of the action was ex delicto, and the jurisdiction of the Superior Court fully appeared in the complaint.
That case is authority for the position that the Superior Court (448) has jurisdiction of torts not exceeding $50, but it does not decide, as insisted by the defendant, that the justices of the peace have not concurrent jurisdiction in actions where the sum does not exceed $50; on the contrary, in Barneycastle v. Walker, 92 N.C. 198, it is said that prior to the Act of 1876, justices of the peace and no jurisdiction in actions of tort, but since that act they have "only a Concurrent, jurisdiction with the Superior Court, when the damages claimed do not exceed fifty dollars."
Error.
Cited: Long v. Fields, 104 N.C. 224; Bowers v. R. R., 107 N.C. 722;Malloy v. Fayetteville, 122 N.C. 484; Fields v. Brown, 160 N.C. 300.