A writ of recordari is sometimes used as a writ of false judgment to bring up a case in order to review an alleged error in law, and it is sometimes used as a substitute for an appeal in which case the whole matter is tried de novo in the higher Court.
Whether a writ of recordari as a writ of false judgment can be resorted to in cases where by law an appeal is given, and the party has failed to appeal, is a question which it is not necessary to decide, but we are inclined to the opinion, that when that error alleged is a defect of juristiction [jurisdiction], such error may be corrected upon writ ofrecordari used as a writ of false judgment, although the party may have neglected to avail himself of the right to appeal. Israel v. Ivey, Phillips 551.
We are of opinion that there was no defect of jurisdiction, and that Beatty was well entitled to "split up" his account in the words of the case, so as to include a certain number of items under one warrant, and a certain number of items under another warrant and so on, so as to bring the several warrants within the jurisdiction of a Justice of the Peace. This is called a "running account," from the manner in which the items are set out in the book of Beatty, each item is entered and was in fact a distinct dealing, so that Beatty might, if so inclined have warranted Caldwell for the amount of each item the day after the article was sold and *Page 371 delivered; in other words the legal effect was the same as if Caldwell had given his due bill to Beatty for each item at the delivery of the article.Waldo v. Jolly, 4 Jones 173. After some hesitation it was held that when one has two promissory notes, both under the jurisdiction of the Court, and within the jurisdiction of a single justice, he might bring the case within the jurisdiction of the Court by issuing a writ and declaring for the joint amount of the two notes. McCastin v. Irwin, 4 Dev. 43. It is beyond question that he might have had a warrant upon each note before a Justice of the Peace, so if there be ten notes or one hundred notes, or as in our case two hundred distinct dealings, each constituting a distinct cause of action for the sale and delivery of goods. It was said on the argument, this would be extremely inconvenient to the defendant, and impose on him great hardship by an unnecessary accumulation of costs. True, it would be very inconvenient not only to the debtor, but to the creditor, and for this reason there are but few cases in which such a course has been taken still, such is the law, and to avoid the hardship, the creditor is permitted to join several items in one warrant, but he cannot thereby escape the statute of limitations, which is applied to each item as if sued on by itself.Green v. Caldcleugh, 1 Dev. Bat. 320, and to discourage a multiplicity of action, the Court will under certain circumstances direct a consolidation. When a plaintiff sued out twenty-one warrants on as many bank notes, amounting in all to one hundred and four dollars, he was compelled to consolidate. Pierson v. State Bank, 4 Hawks 295; see also, Smith v. Bowe, N.C. Term Rep. 200; Buie v. Kelly, 7 Jones 266.
It is nowhere intimated that the principle stated in Waldo v. Jolly supra, is not sound. The right to maintain separate actions on each item or any number of the items is conceded and the Court interferes and orders consolidation simply to prevent useless vexation; but here there is no idea *Page 372 of vexation, and it is apparent that the sole motive for having five warrants is to keep within the jurisdiction of the Justice of the Peace; had he sued out two hundred warrants (one on each item) there would have been no defect of jurisdiction; he elects to include all under five warrants to avoid a rule for consolidation. We can see no ground upon which it can be seriously urged that he was obliged to treat the whole as one debt and sue in the Superior Court. So the main ground on which the application for the writ of recordari was made is untenable. His Honor was under a misapprehension, in supposing that whether Beatty's account was over the jurisdiction of a Justice of the Peace or not, is a question offact and not a question of law; the question of fact was as to the amount of the account and of how many items it was composed; as to that there was no controversy. His Honor erred in regard to the question of law and his decision is of course subject to review, although it is treated by him as a matter of fact.
In regard to the alleged fraudulent conduct of Beatty and Grier, attorney of Caldwell, we are at a loss to see how that that can be reached by a writ of recordari, used as a writ of false judgment. What error in law did the Justice of the Peace commit? Here was a warrant within his jurisdiction as we have seen above, the attorney of the defendant was present and did not dispute the items, but on the contrary, after entering a credit admitted the several amounts claimed to to be due; what could the Justice of the Peace do, save to enter judgment for plaintiff? and what can be brought up for review by this mode of proceeding?
Under the old system this would have been a case for a bill in equity, to have the judgments set aside and a new trial by consent of the plaintiff on the ground of fraud; or possibly it may have been reached by a writ of error for matter of law, in which case the application would be made to the Justice to vacate the judgments on the ground that they *Page 373 had been obtained by fraud. But a writ of false judgment only lies when the Justice himself has committed an error of law.
Whether the remedy under the new system is by action in the Superior Court to compel the party to consent to have his judgments vacated and a new trial had, as formerly under a bill in equity or by an application to the Justice of the Peace, are questions about which we express no opinion; for really we have not formed one, but we are all clearly of opinion that the alleged fraudulent conduct of Beatty, and Grier, the attorney of Caldwell, cannot be inquired into upon a writ of false judgment.
There is error. Judgment below reversed.
This will be certified.
PER CURIAM. Judgment reversed.