King v. . Shuford , 32 N.C. 100 ( 1849 )

The decision of the Superior Court is sustained by the general law, Rev. St., ch. 74, sec. 14, and the case ofMumford v. Terry, 4 N.C. 308. But it is considered for the plaintiff that the law was altered by the act of 1844, ch. 12, and that now there is no remedy for a nuisance of this kind in the county of Henderson, but by the common-law (101) action. The act in question enacts, "That it shall not be lawful for the county courts of Buncombe, Henderson, and several adjoining counties, named, to try any causes where a jury may be necessary, nor shall they summon any jury to attend them, and that all suits in the said counties, whether civil or criminal, shall originate in the Superior Courts, and all appeals from justices of the peace in civil cases shall be returnable to the Superior Court." Upon these provisions, taken in connection with that of the Revised Statutes, which requires the remedy by petition to originate in the County Court, and that a jury shall go on the premises to assess the damages, and authorizes the cognizance of it in the Superior Court, upon appeal only, and directs a trial there at bar, it is argued that neither the County nor Superior Court can entertain a suit by petition, and, therefore, it is inferred, as there must be a remedy for an admitted injury, that the one by action on the case lies. But the Court cannot concur in the reasoning nor in the conclusion. The act of 1809 was intended, and has even been construed, as a highly beneficial law, entitled to a liberal interpretation. It was thus characterized in Gillet v. Jones,18 N.C. 339, as well as in Mumford v. Terry and subsequent cases. If, therefore, the jurisdiction of the county courts over this subject were expressly abrogated, it would not follow that the beneficial provisions, as to the method of ascertaining and making the compensation due for the injury occasioned to another by the erection of a mill, were to be wholly lost to the country. It would rather be the duty of the judges to consider that the jurisdiction of the county courts was transferred to the Superior Courts, so as to vest in the latter, by the union of the powers of both courts, the whole jurisdiction of the subject, to be exercised, as far as possible, in the manner (102) prescribed by the statute, and to answer the ends within its provisions. But that is the more emphatically true when it is observed that the act in question is not a general law, but has only a local operation, and respects the jurisdiction of the courts of six counties only. For it would be wholly inadmissible to suppose that the Legislature meant by the act, not merely to say in what courts actions should be brought in those counties, but, also, that the rule of law as to the rights and the remedies of the citizens respecting so important a matter should be different there from that in all the rest of the State. It is clear, therefore, to our apprehension, that the citizens of those counties are not thrown back to the common law in this respect; but that either the County or Superior Court may, and therefore must, entertain a suit by petition, as prescribed by the act of 1836.

PER CURIAM. Judgment affirmed.

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