State Ex Rel. Dowdle v. Corpening , 32 N.C. 58 ( 1849 )

The question as to the record of the County Court is settled. S. v.King, 27 N.C. 203. It is the duty of every court to make its own record; no other court can indirectly examine into the manner in which it is made. Hence the transcript should not notice the order of amendment, but simply set out the record as made by the court.

The note in question is for $70, due 27 October, 1840, payable to N. S. Jarratt, in current bank notes. It is insisted that it is not within the jurisdiction of a single justice, and therefore the defendants are not liable.

Bank notes are not money. They pass as cash and constitute a part of the circulating medium. We concur with the decision in Miller v. Race, 1 Burr., 352, that the bona fide holder of a bank note is entitled to it against the former owner, from whom it has been stolen. We also concur with the decision in Andersonv. Hawkins, 10 N.C. 568, that, for many purposes, bank notes are to be considered as money; they are to be so considered whenever the parties consent, by receiving them as such or otherwise, so to treat them. Pickard v. Burks, 13 East, 20.Id simile non est idem. Although a bank note passes as cash, it is not cash; and it is not a legal tender. In this case the parties have done no act indicating that they considered bank notes as money. By stipulating that the payment might be made in bank notes, it is apparent that they were not so considered. If the note had been a promise to pay seven $10 bank notes, or to pay $70 worth of bank notes, upon failure the action would be debt for specific articles, or case for breach of contract, and a single justice would not have jurisdiction. But the (61) note being a promise to pay $70 on a given day, with the privilege of paying in current bank notes, the party must avail himself of the privilege at the time the note falls due; otherwise it is a note for $70. It is true, the note is not negotiable, because it is not a simple promissory note within the statute making such notes negotiable, like inland bills of exchange under the law merchant. But it is still such a promise for money as will support an action of debt before a single justice.

The third objection, that the action should have been upon the relation of Jarratt and not of Dowdle, is settled. Holcombe v. Franklin,11 N.C. 274; S. v. Lightfoot, 24 N.C. 310. The contract was made with Dowdle and he was the proper relator.

PER CURIAM. Judgment affirmed.

Cited: Knight v. R. R., 46 N.C. 359; Isler v. Murphy, 71 N.C. 438;Dail v. Suggs, 85 N.C. 107.