Bullinger v. . Marshall

PeaesoN, C. J. Eirst, the plaintiff was introduced as a witness in his own behalf, and swore that at the time of the sale the defendant said : “ The mule was sound as far as he knew, but did not tell him “ the mule had had the sweeny.” Here was a direct contradiction. The plaintiff, by way of corroborating his testimony, was allowed to prove that soon after the sale and after the unsoundness of the mule had become apparent, the plaintiff', in a conversation with the witness, in *525 detailing the circumstances of the trade, told him that the defendant had not disclosed the fact “ that the mule had had the sweeney.” We concur with his Honor in the opinion, that this testimony was admissible. Before the late statute, by which parties to an action are made .competent as witnesses, it was a settled rule of evidence, that when a witness was impeached, he might be corroborated by proving that soon after the matter occurred he had made the same statement in regard to it. When a party was allowed to.be a witness, it followed as a logical sequence if his testimony be impeached, he may be corroborated by showing that he had, soon after the matter occurred, “ made the same statement in regard to it.” Why should not this consequence follow % No answer can be given ; on the contrary, it is in conformity to the avowed policy of the statute by which rejection of testimony on the ground of incompetency is ignored, and the testimony is to be admitted and weighed by the jury in the secóle of credibility. We yield to the force of this change in the law of evidence, but have no right to express an opinion as to its wisdom, and have only to carry out its corallariés. 2. The action demands damages for a deceit in the sale of a mule, and the allegation made out, a cause of action, which by the former mode of procedure, would have been classed under “ actions ex delicto,” as distinguished from actions ex conto'actru,” At the trial it was moved on the part of the defendant to non-suit the plaintiff on the ground that the action ought to have been commenced before a Justice of the Peace, as the damages demanded are only one hundred dollars. The Constitution ordains, Art. IT., sec. 28, “ The several Justices of the Peace shall have exclusive, original jurisdiction of all civil actions, founded an contract, wherein the sum demanded shall not exceed two hundred dollars, and wherein the title to real estate shall not be in controversy.” According to our construction of this section, a Justice of the Peace has not jurisdiction in “ actions ex delicto,” although *526 the cause of action may grow out of a contract. It being in form under the old mode of procedure, an action ex delicto proves that it is not founded on the contract, but is collateral thereto. There are eases where a party is allowed to waive the tort and sue in contract, as if one takes my horse and sells it and receives the money; I may waive the tort and sue for “ money had and received to my use,” and if the sum does not exceed two hundred dollars, the jurisdiction belongs to a Justice of the Peace; but if the money be not received, my remedy is for the tort, and a Justice of the Peace has not jurisdiction. So if there be a warranty of soundness in the sale of a horse, the vendee may sue upon the contract of warranty, and a Justice of the Peace has jurisdiction, or he may declare in tort for a false warranty and add a countin deceit. (See Williams’ notes to Sanders’ Reports,) in which case a Justice of the Peace, has not jurisdiction. The plaintiff being permitted to declare collaterally in tort for a false warranty, in order to enable him to give in a count for the deceit, which of course was in tort. Our conclusion is, that the effect of this section of the Constitution is to enlarge the jurisdiction of a Justice of the Peace by raising the amount to the sum of two hundred dollars, and by extending it to cases founded on contract for unliquidated damages, as in cases of a breach of warranty of soundness and other like instances, but that the jurisdiction does not extend to any matter collateral, although it grew out of the contract, for in such case the action is not founded on the contract. See Frœlich v. Southern Express Co., 67 N. C. Rep. 1. 3d. In considering this question, we are confined to “ the case” made up and signed by the counsel of the plaintiff and of the defendant, according to C. 0. P. The other papers by which the file is uselessly encumbered not made a part of the statement are put out of the case. The ground of the motion for a new trial was, that when Court took a recess for dinner, the j urors separated and each man went off and got his dinner, and that “ his Honor gave the j urors no caution in regard to conversing with persons not *527 of tbeir number about the case, nor did his Honor give the jury permission to separate or ask the consent of counsel that the jury might be allowed to do so.” His Honor, upon hearing the affidavits and arguments, refused to grant a new trial, and, on the facts set out, we can see no reason to differ with him j the separation of the jury was before “ the charge of the Judge,” and it is the usual practice for juries in civil cases to separate during recess, either for dinner or for the night, unless such separation be objected to by one of the parties. The defendant knew of the separation of the jury, and if he objected to it, in all fairness he should have done so before the verdict was rendered. 4th. Motion for a new trial on the ground that the defendant was “surprised” by the testimony of William Aiken, and “ read the affidavit of the defendant, herewith sent as a part of this case.” So, we are to take the several matters set out in the affidavit as facts agreed on ; that is to say, Aiken, for the purpose of entrapping the defendant, told him that he would swear that the defendant’s general character was good, and when called by him as a witness, swore that his (the detend-ant’s) general character was bad. Taking this to be so, it proves that the defendant was deceived by Aiken, but it does not show that the defendant was surprised in the sense given to the word “ surprise ” by the authorities. In order to justify tire legal inference that the defendant was taken by surprise, two additional facts are necessary : 1. That the defendant was a stranger in the land, and hacf no other acquaintance present by whom his general character could be proven, for although a man is not supposed to be at all times prepared to explain every particular incident of his life, yet he is presumed to be able to prove a good general character unless he happens to be among strangers. 2. There is no averment in the affidavit, that the defendant would be able to prove a good general character at another trial. Why grant a new trial on the ground of surprise, unless the *528 affidavit discloses matter showing reason to believe that upon the second trial, the case will be materially changed ? This Court is reluctant to interfere with the ruling of the Judge in the Court below upon matters calling for the exercise of a sound discretion, unless error in the legal inference is apparent. Per CueiaM. Judgment affirmed.