concurring. There was no error in this appeal wbieli was by the plaintiff. This was an action begun before a justice of the peace upon eight notes for $25 each, being part of the purchase price ($1,750) for a typesetting machine. On the trial in the Superior Court, on appeal, the defendant’s counterclaim for damages on account of false representations and breach of warranty in the sale was fully investigated and the jury found that the defendant was entitled to recover therefor the sum of $1,100 and interest from the day of sale. By reason of several decisions of this Court the defendant could not recover judgment for the difference, $900 and interest thereon. Yet, if the jury had the right to consider the alleged counterclaim and upon the conflicting evidence and under the charge of the court, to find that the plaintiff was indebted to the defendant in the sum of $1,100, it is surely illogical to hold that the court could not render judgment for the amount which the jury were authorized to find that the plaintiff owed the defendant. The judge had jurisdiction upon the trial and investigation up to and including the reception of the verdict. By what process of reasoning did his jurisdiction stop there? Besides, it will be an inconvenience, and often lead to a denial of justice, if the defendant, as in this case, must practically remit all of his counterclaim above the amount which he owes the plaintiff. In this case should the plaintiff sue upon his other notes for the balance of the purchase money, the defendant will be debarred from using the other $900 of his counterclaim against such notes.
It is true that we have decisions to that effect. But they are not bottomed on the reason of the thing, and the court should not hesitate to overrule them. The courts are very slow, and justly so, to overrule a decision, however erroneous, when it has become a rule of property. But this is merely a question of practice and procedure. It is true also that it has been held that this is a question of jurisdiction, and therefore settled by the Constitution. But clearly this is not so. The Constitution does'prescribe that the justice of the peace has jurisdiction as to contracts only when the principal sum does not exceed $200. But when the case has been carried by appeal into the Superior *71Court, it is no longer a question of tbe jurisdiction of tbe justice of tbe peace, but of tbe jurisdiction of tbe Superior Court.
"When tbe Superior Court becomes seized of jurisdiction of a case it bas it fully, witb full power of amendment, in all cases. It can make no difference whether the case bas been brought into tbe Superior Court by tbe service of summons, or by appeal from tbe clerk, or by appeal from a justice of tbe peace. Tbe summons is nothing but a notice to appear in tbe Superior Court. Tbe notice of appeal from tbe clerk or from tbe justice of tbe peace bas exactly tbe same effect. By either process, tbe Superior Court is vested witb tbe same jurisdiction.
If tbe defendant bad been brought into court by a summons upon a contract for $201, tbe court could permit an amendment making it any other amount. Tbe same power of amendment exists in all cases, because tbe jurisdiction of the Superior Court confers tbe same powers upon tbe judge, even though tbe case is brought into its jurisdiction by appeal from tbe clerk or a justice of tbe peace. Preconceived opinions and former decisions being set aside, there is nothing in tbe Constitution which denies power to tbe judge to enter up judgment for any amount which the jury, under bis instructions, bas legally found to be due. Tbe decisions to tbe contrary should be disregarded.
There was formerly the same inconvenience and difficulty on appeals from the clerk to tbe Superior Court. But this bas now been cured by tbe Act of 1887, now Revisal, 614, which provides, “Whenever any civil action or special proceedings begun before tbe clerk of any Superior Court shall be, for any ground whatever, sent to the Superior Court, before the judge, the judge shall have jurisdiction,” and authorizes him “to hear and determine all matters in controversy in such action.” Tbe decisions hold that tbe judge may make any amendment whatever, and that this is so even though tbe proceeding before tbe clerk was a nullity. In re Anderson, 132 N. C., 243; R. R. v. Stroud, ib., 416; Eubank v. Turner, 134 N. C., 81. The same rule and for tbe same reason should obtain on appeals from a justice of tbe peace. Tbe case being in tbe Superior Court that court should be seized of jurisdiction as fully as if tbe case bad originated there, and tbe judge should have power to make amendments and *72to try tbe case even though, the proceeding before the justice was a nullity. The decisions to the contrary can be corrected by overruling the erroneous precedents referred to. In the matter of appeals from the clerk to the judge the correction was made by statute, but it could have been made by the court itself overruling its former decisions. If it had been a matter of jurisdiction under the provisions of the Constitution it could not have been corrected by statute.
In this connection it may not be amiss to call attention to another inadvertence, into which former courts, whose judges were still under the influence of the former ideas as to procedure, have fallen in holding that a justice of the peace and the clerk have no jurisdiction in equity. The Constitution having abolished the distinction between law and equity, such distinction cannot survive in actions before a justice of the peace or a clerk or any other oflicer any more than in the Superior Courts. The abolition is broad and general, and applies to all courts. The ruling to the contrary was nothing more than the survival of preconceived opinions. It is true 'that neither a justice of the peace nor a clerk can issue an injunction or appoint a receiver. The Legislature has thought fit to restrict such powers to the judges of the Superior Court. That is a matter of practise resting in the discretion of the law-making power. But it is a very different matter to hold, by judicial enactment, that those officers have no jurisdiction where an equity is to be administered. The Constitution having abolished the distinction between law and equity there is no reason why equitable rights as well as equitable defenses should not be set up in proceedings before a justice of the peace or before the clerk, though the administration of an equitable remedy by an injunction or the appointment of a receiver is not conferred upon those officers. It has been held that a justice has jurisdiction of equitable defenses. Levin v. Gladstein, 142 N. C., 494. If so, he must have jurisdiction of equitable causes of action.
"When by appeal such cases get into the Superior Court, the judge can and does issue an injunction and appoint receivers if found an appropriate remedy. The same rule should apply to *73judgments upon a counterclaim, or a cause of action or defense set up by amendment in tbe Superior Court.
Tbe case being in tbe Superior Court by virtue of tbe appeal, tbe parties should not be dismissed tbence to re-enter tbe same court by service of summons in order to litigate identically tbe same matter.