Appeal from judgment of a justice to the county court, and thence to the Superior Court. The following facts appeared: On 8 December, 1848, plaintiff commenced this suit by warrant, for nonpayment of $75 and interest from 1 April, 1847, due by note. On 15 December, 1848, judgment was rendered thereon by a justice of the peace in favor of plaintiff against defendant, for "the sum of $75 and interest (8) from 1 April, 1847, till paid, and costs," and defendant appealed to the county court, and then pleaded non est factum and payment. While the case was pending in the county court, the note on which the suit was brought was lost in the clerk's office, and, upon the trial in the Superior Court, the loss was sufficiently established to let in evidence of its contents and execution. For that purpose plaintiff offered the magistrate who tried the warrant. He stated that the instrument was produced on the trial before him, and was not attested, but that he was well acquainted with defendant's handwriting, and by that means knew that the note was executed by the defendant; and that it was dated 15 April, 1847, and was for $75, and payable one day after date, and that he gave judgment for the debt, and interest from 15 April, 1847, according to the note. On this evidence counsel for defendant insisted there was a variance between the note as described by the witness and as set forth in the warrant, the one being payable on 16 April, 1847, and the other on the 1st day of that month; and the court was of that opinion, and nonsuited the plaintiff, and he appealed. The Court considers the judgment to be erroneous. The statute gives jurisdiction to a justice of the peace of debts and demands of certain amounts due by bond, note, or account, and for work *Page 22 and labor done, etc.; and the jurisdiction is to be exercised upon warrants, which shall express "the sum and how due." There is no other process required, nor any declaration; and the object of thus expressing the sum, and how due, was obviously to bring the matter within the jurisdiction of the magistrate, as prescribed in the statute. (9) Hence, warrants never add to the description "due by bond," or note, or the like, any further description; in respect, for example, to date, place, day of payment, coobligor, or any other matter requisite to the complete identity of an instrument in a declaration. This warrant, therefore, is sufficient on its face, according to the statute and universal usage. If, however, a party will needlessly undertake to describe the instrument minutely in the warrant, as he would in a declaration, he may with propriety be held bound to prove it accordingly. But this warrant does not purport to enter upon any such description of the note, saying only that the sum demanded for debt and for interest thereon was "due by note," without giving date or day of payment of the note, or its tenor in any respect. It is supposed that it describes the day of payment in giving a day from which the interest was to run. But that is merely an inference from the fact, usually, interest accrues from the day fixed for the payment of the principal. That, however, is not necessarily so; for often the debt becomes payable at a particular day, with interest thereon from a previous day. It is true, the magistrate does not state that to have been the nature of this note. But it is not material to the point before us, which is, whether the warrant professes to describe the note in that particular. And it certainly does not, except by the inference insisted on, which will not hold good in all cases. Indeed, it is obvious that the memory of the witness was at fault as to the day of payment. He fixes it on 15 April, and yet he says that the judgment was given according to the note; and upon its face the judgment is for interest from 1 April, as demanded in the warrant. The strong probability is that the judgment accorded with the note, which was under the eye of the witness at the (10) time of giving the judgment; and the jury might well have supposed that he was mistaken in this recollection at the trial of the day of payment. But it is not material to this question, for whether the note was the one way or the other, it was equally within the description required by the statute, and actually contained in the warrant, and therefore the supposed variance did not exist.
PER CURIAM. Venire de novo.
Cited: Williams v. Beasley, post, 113; Parker v. Express Co.,132 N.C. 130. *Page 23