#### THE STATE ON THE RELATION OF EZEKIEL DOWDLE vs. JOSEPH CORPENING & AL.

It is the duty of every Court to make its own record, and no other Court can iudiractly examine into the manner, in which it is made.

A noto for seventy dollars, payable in current bank notes, though it is not negotiable, yet comes within the jurisdiction of a single justice.

The party, with whom a constable makes the contract for the collection of a note, is the proper relator in an action on his official bond, and not the person to whom the note is payable.

The cases of the State v. King, 5 Ire. 203, Anderson v. Hawkins, 3 Hawks 568, Holcombe v. Franklin, 4 Hawks 274, and State v. Lightfoot, 2 Iret 310, cited and approved.

Appeal from the Superior Court of Law of Cherokee County, at the Spring Term 1840, his Honor Judge Bailey presiding.

This was an action of debt, brought against the defendant, King, as constable, on his official bond, dated 1st January, 1840, and the other defendants as his sureties, for his failing to collect claims put in his hands as constable. The plaintiff introduced the records of the Counfj Court of Cherokee, as follows, to-wit: “March Sessions, 1848, ordered by Court that the names of the Select Cpurt, to-wit': Peter A. Summey, W. W, Pace and John Tatham, be inserted in the minutes of January Term 1840, it appearing to the satisfaction of the Court that the said Peter .A. Summey, W. W. Pace and John Tatham were present and presided during the Term, and that this entry be made on the minutes of said term nunc pro tunc.” At January Sessions 1840, is the following entry: “Court met, presiding, Peter A* Summey, W. W.Paceand JohnTatham, Esquires —see minutes of March Sessions 1848, page 293, nunc pro *59 tunc. Harrison King came into Court and entered into bond according to law and was sworn into office, and gave for security, Benjamin Sherrall, Benjamin Ward and N. A. Strange, it appearing to the satisfaction of the Court, that said King was duly elected constable according to law.” This testimony was objected to by the defendants, but was received by the Court. The plaintiff then introduced a letter of the defendants, which was read by consent. He then introduced a receipt of the defendant, King, as follows, to wit: ‘"Rec’d 18th November, 1840, from E. Dowdle, a note on Andrew Colvard for seventy dollars, due 27th of October, 1840, made payable to N. S. Jarrat in current bank notes, which I promise to collect and pay over to the said Dowdle, or return according to law. G. H. King, Cons.” The plaintiff then gave evidence of the solvency of Andrew Colvard, and that the officer, by using due diligence, might have collected the money.

The defendants’ counsel objected ; 1st. That the record read was insufficient to shew King’s election and qualification — that the entry from the record of 1848, did not shew, that any of the justices of Cherokee were present, when that entry was made, and that there was not sufficient in the record to amend by. 2ndly. That the note was for seventy dollars, payable in current bank notes, and therefore not within the jurisdiction of a justice of the peace. 3rdly. That the present relator cannot recover, for the reason that the note to Colvard was payable to N. S. Jarratt, and did not belong to him, the relator.

The Court overruled these objections, and instructed the jury, that, if Colvard had property in his possessions-from which the debt could have been collected, if King had used due diligence, the plaintiff was entitled to re*’ cover, and that was a question for them.

*60A verdict and judgment were rendered for the plaintiff and the defendants appealed,

Gaither for the plaintiff.

J. W. Woodfin and Baxter, for the defendants.

Pearson, J.

The question, as to the record of the County Court, is settled, State v. King, 5 Ire. 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 seventy dollars, due 27th 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 and 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 Anderson v. Hawkins, 3 Hawks 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 ap* parent that they were not so considered. If the note had been a promise to pay seven ten dollar bank notes, or to pay seventy dollars worth of bank notes, upon failure the action would be debt for specific articles, or case for *61breach of contract, and a single justice would not have jurisdiction. But the note being a promise to pay seventy dollars 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 seventy dollars. 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, 4 Hawks 274, State v. Lightfoot, 2 Ire. 310. The contract was made with Dowdle, and he was the proper relator.

Per Curiam.

Judgment affirmed.