The Revised Statutes, ch. 31, sec. 40, provides that no suit shall be commenced in the Superior Courts for a demand of less value than $60 due by open account. Section 42 provides that if any person shall demand a greater sum than is due, on purpose to evade theoperation of this act, and the jury shall find a sum less than $60, Principal and interest, the court shall nonsuit the plaintiff, unless an affidavit is made that the sum for which the suit is brought is really due, "but that for want of proof and that the time limited for the recovery of any article bars a recovery," then and in that case there shall be judgment. This section is incomplete, and is even hardly expressed; (466) but the substance of it is that a verdict for a less sum shall be taken as prima facie evidence of an intent to evade the operation of the act, unless the implication is rebutted by an affidavit that the sum really due is over the amount of $60, and that the verdict for a less sum was, in consequence of a want of proof or the exclusion of certain items by the statute of limitations, or for some other cause of the like kind, so as to show that the suit was commenced in the Superior Court in good faith, and not on purpose to evade the operation of the act. The words of the act specify but two cases — where there is a want of proof and when the statute of limitations bars; but it is clear from the whole act that the object of section 42 was to prevent evasions, and that, by its true meaning and import, it embraces not merely the two cases specified, but all cases of a like kind, when the plaintiff honestly expected to recover a larger sum, and by affidavit accounts for the fact of there being a verdict for a less sum, so as to make it consistent with the idea that there was no attempt at evasion. For instance, suppose the claim of the plaintiff is reduced to a less sum by a set-off, the case is not within the words, but is within the meaning; the amount of the plaintiff's demand made it necessary for him to proceed by writ and not by warrant, and it was not for him to know whether the defendant would avail himself of the set-off; his doing so accounts for the recovery of a less sum, and rebuts the implication of an intent to evade. So when the plaintiff honestly believes, upon reasonable grounds, that he is entitled to interest, which brings his case within the jurisdiction, but the jury do not allow interest, the matter is sufficiently explained, and the implication of an intent to evade is rebutted; for it was necessary to proceed by writ in order to recover interest, inasmuch as a single justice could not give judgment for an amount over $60, although he might consider that the *Page 317 plaintiff was entitled to interest, Rev. Stat., ch. 72, sec. 6, (467) allows a single justice in the case of bonds, etc., to give judgment, although, by reason of interest, the amount exceeds $100, but there is no similar provision in regard to open accounts, etc.
In the present case the plaintiff swears that he believed he was entitled to interest. Was this belief based on reasonable ground? This is established by the fact that his Honor (without exception) "charged the jury that they might allow interest if they thought proper," and it may be that but for "the want of proof" or regard to the usage between the plaintiff and his customers, or in regard to a direct understanding between the plaintiff and defendant as to interest after the expiration of the year, it would have been the duty of his Honor to have made a more specific charge in reference to the plaintiff's right to interest. There is no error.
PER CURIAM. No error.
(468)