Wake County NcArchives Court.....Person, V. President & Directors Of State Bank Of NC 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:24 pm

Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

PERSON v. THE PRESIDENT AND DIRECTORS OF THE STATE BANK OF NORTH CAROLINA.

(294)

From Wake.

Where a plaintiff sued out twenty-one warrants on twenty-one notes, amounting 
in all to one hundred and four dollars, in cases where the causes of action 
were the same, and the defence was the same in all, the Court compelled 
plaintiff to consolidate.

Person warranted the State Bank in twenty-one different cases, on their notes, 
the whole amount of notes being somewhat more than $100, and having obtained 
judgments, the bank appealed to the County Court of Wake. In the County Court, 
defendant moved to consolidate the several suits, and the Court ordered them 
to be consolidated, on condition that the defendant would not plead in 
abatement, the want of jurisdiction in the justice who tried the warrants, and 
that they would pay the fees of the clerk and constable. Defendant acceded to 
the terms, and pleaded the general issue, payment and set off, and the cause 
was put to a jury, who found a verdict for the plaintiff, and assessed his 
damages to $127 34 and costs, according to which finding the Court gave 
judgment, from which defendant appealed to the Superior Court. The plaintiff 
also appealed from the judgment of the Court as to the consolidation. 
Aftewards, in the Superior Court, Paxton, Judge presiding, it was ordered that 
the appeal of the plaintiff from the order of consolidation should be 
dismissad with costs, and the cause stand as one suit. Brought upon appeal by 
the defendant; whereupon, Person appealed to this Court.

In this Court, by consent of parties, the records of all the cases in the 
Superior Court (twenty one in number) were considered as being before the 
Court, from which it appeared, that in each case, the justice gave judgment 
for fifty cents more than the note amounted to, besides interest; and further, 
that ten of the notes were protested, and eleven were not.

Haywood, for the Bank.—This appeal should be (295) dismissed, for the order of 
consolidation was no final judgment. If it be such a final judgment that upon 
it an appeal may be had to this Court, it is also such as that an appeal might 
have been taken thereon before verdict to the Superior Court, and in either 
case the appeal of the plaintiff must be dismissed, as he did not appeal from 
the order in the County Court before verdict.

A rule to consolidate is matter of discretion in the Court, and it has been 
repeatedly decided that there can be no appeal from the discretion of one 
Court to another.

But the County Court acted rightly in ordering these suits to be consolidated. 
This manner of proceeding is admitted to be law, and the right of the 
plaintiff respecting Bank bills must be alike, so where a bank holds several 
notes of an individual, and if here the defendant had held the plaintiff's 
notes of the same tenor and due at same time, and had brought twenty-one suits 
against him, the whole community would have been roused, and this Court would 
have little hesitation in attaching to such proceedings the character of 
shameful oppression. Shall the mere change of sides between the same parties, 
require of us to introduce the fable of the Lawyer and Farmer?

From the cases of Cecil v. Briggs, 2 T. Reports, 639; 9 Johnson's Reports, 
262, and Tidds Practice, 556, it is clearly deducible as a rule on this 
suject, that wherever there are two or more suits between the same plaintiff 
and same defendant, for notes or other contracts, which may be joined in the 
same declaration, the Court will give to defendant a rule to consolidate, and 
clearly so where the notes sued on, fall due at the same time, and suits are 
brought thereon at the same time.

Now here, the bank bills were not due till demanded, and being all demanded at 
the same time, then became due to Jesse Person. Indeed it may well be urged, 
that these bills are but written evidence on separate papers of one debt, due 
by one contract.

If the plaintiff can bring his separate warrants on (296) each bill, and the 
defendant be without the right to this rule, what difference is there in the 
cases which is to prevent a merchant from suing out a warrant for each item in 
in his account? And who would be willing to sanction such a practice?

It is said, however, that the case before the Court is not like that of Cecil 
v. Briggs, because in the latter cast defendant was held to bail. The Court, 
in giving their opinion in the case, do not rely on that fact at all, they 
only enquire whether the proceedings taken are oppressive? And if it be not 
oppressive, to heap costs on a defendant to the full amount of his debt or 
more, I can scarcely conceive that Courts would regard it so to ask bail of 
the defendant.

It is also argued, that no consolidation must be made where warrants are sued 
out, because by increasing the sum adjudged in each separate warrant, the 
defendant will obtain the benefit of enlarging the stay of execution. If this 
proves anything, it is in favor of the defendant. Our legislature have clearly 
intended, that where a man owed $100, as it might injure him seriously to have 
his property sacrificed the next day after judgment, at the suit of a grinding 
and oppressive creditor, therefore he might have the privilege of six months 
time to raise the money, and for loss sums shorter periods are allowed. Will 
this Court permit a practice to grow up that shall control this provision of 
our law, which has proved so kind a shield to the poorer class of an 
industrious community? It is manifest that the length of stay is intended to 
be regulated by the amount of the debt, but a lender of money, or other 
creditor, need only take twenty notes of his debtor for five dollars each, and 
instead of six months stay, the defendant gets only twenty days.

The case of Smith v. Bowell, 4 N. C., Rep., 200, is referred to as conclusive 
authority against this rule of consolidation; but by a reference to that case, 
the Court will see that it proceeded entirely on the ground that our (297) 
Legislature having passed a law to prevent the issuing of date bills, imposed 
as a penalty on the maker, that he might be sued on such due bills without 
regard to the amount, in the County or Superior Court, and that no demand was 
necessary, and a rule of consolidation given to the defendant would disarm the 
act of its sting, and virtually repeal its provisions. It is therefore no 
authority in this case.

But suppose this Court shall be of the opinion that the consolidation rule was 
improperly granted, and that it is the right of the plaintiff to have his 
separate action. In the County Court this rule is given on payment of clerk's 
and sheriff's costs, the defendant accepts the terms, pays the costs, and the 
plaintiff then joins issue on the one consolidated suit, and takes his 
verdict. It is too late for him to complain.

Hall, Judge.—The power which the Courts exercise in consolidating actions, has 
for its object the attainment of justice with the least expense and vexation 
to the parties, but in the exercise of this power the decisions have not been 
uniform.

In Smith v. Crabb, 2 Str., 1149, and Mynot v. Bridger, Ibid., 1178, the Court 
refused to consolidate, because being distinct actions, the plaintiff might be 
ready for trial in one action, but unprepared in the other. But in Cecil v. 
Bridge, 2 Term, 639, the Court held that not to be a good reason against 
consolidating two actions, both being brought in assumpsit, the causes of 
action arising in the same county, the writs having been sued out on the same 
day, and the defendant having been held to bail in both actions; because they 
said, if the defendant was not ready in both actions, but only ready in one, 
he might continue both. The reasoning on which this case stands is not 
satisfactory to the Court, in Thompson v. Sheppard, 9 Johnson, 262—there three 
actions were brought by the endorser against the maker on three promissory 
notes, the notes were dated on different days, for different sums, (298) and 
payable at different times to the same person, who endorsed them to the 
plaintiff, the writs were issued at the same time and served at the same time. 
On motion for that purpose, the Court refused to consolidate the actions, 
because they said different defences might be set up.

In the present case the different suits commenced by way of warrant. The 
defendant appealed to this Court; if they appealed without just cause, they 
ought not to be favored. The justice gave judgment in each case for fifty 
cents more (besides interest) than the notes amounted to, amounting in all to 
$10 50, ten of the notes were protested, eleven were not protested. In this 
situation of things, the defendant might have supposed themselves aggrieved. I 
therefore lay that circumstance, the appeal, out of the way. Where suits were 
commenced by way of warrant, two warrants would have answered the plaintiff's 
purpose to recover $104, as well as twenty-one, and indeed would have been 
less trouble to him as well as expense to the defendants. When the warrants 
were consolidated in the County Court, I can see no injury the plaintiff was 
likely to sustain by it; it was altogether improbable there should be 
different defences, the causes of action were the same. I cannot therefore 
find fault with the discretion which the Court have exercised, much expense or 
costs is saved by it. Although the authorities before recited differ in some 
respects, they all agree in this, that the Court possesses the power of 
consolidating suits when a proper occasion offers.

I think the judgment of the Superior Court should be affirmed.

The Chief Justice and Judge Henderson, concurring,

Judgment affirmed.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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