
    ROBERT WILLIAMS vs. JOSHUA BEASLEY.
    An appeal lies to the Superior Court from an order of the County Court, allowing an amendment or setting aside a judgment for irregularity.
    There cannot, properly, be a final judgment by default, upon an appeal from a Justice of the Peace; but the matter must be determined upon proofs, either by the Court or by a Jury.
    Judgments, taken as of course, are from necessity, always under the control of the Courts, whose judgments they purport to be, and of an appcilat® Court, which can treat the matter de novo.
    
    The eases of Slade y Burton, 10 Ire. 390, Duffy v Averitt, 5 Ire. 455, Sam-sour v Harshaw, 8 Ire. 480, Bender v Askew, 3 Ire. 150, and Keaton V Banks, 10 Ire. 381, cited and approved.
    Appeal from the Superior Court of Law of Currituck County, at the Fall Term, 1851, his Honor Judge Settle presiding.
    This suit was begun by a warrant, for “ twelve dollars forfeited by the defendant by not working on a public road leading, &c., for twelve days, though lawfully summoned by the plaintiff, the overseer of said road,” The magistrate gave judgment against the defendant for $ 1 and costs, ar.d the plaintiff appealed ; and at the next Term of the Cd&nty Court, in February, 1851, the appeal was returned, and for want of the defendant’s appearance, the plaintiff’s attorney took a judgment by default final for $12 and costs. At May Term following, the County Court, for cause shrown by the defendant, ordered that the judgment by default should be set aside and the defendant allowed to plead; and the plaintiff appealed from the order. His Honor was of opinion, that the judgment by default in the County Court ought not to have been final, and that it was irregular thus to enter it in the office; and thei-efore it was proper to set it aside. But his Honor was further of opinion, that an appeal did not lie from the order of the County Court, aiid for that reason he dismissed the appeals, and then awarded a procedendo, and the plaintiff appealed to this Court.
    
      Smith, for the plaintiff.
    No counsel for the defendant.
   Ruffin, C. J.

It was a mistake to suppose, that an appeal does not lie to the Superior Court from an order of the County Court, allowing an amendment or setting aside a judgment for irregularity, as the contrary has been often decided; Slade v Burton, 10 Ire. 390. But the Court concurs in the opinion on the other' point, and that is decisive of the case against the plaintiff. As warrants do not, like declarations in debt, define, particularly, the bond or other specialty, on ^vhich they demand a'debt, it follows that they must be regarded in the light of declarations in As-sumpsit, or other actions sounding in damages. Duffy v Averitt, 5 Ired. 455; Emmitt v McMillan, at this term. Besides the reasons given in those cases for the rule, it may be mentioned, that it is further supported by the consideration, that the Statute requires that the suit shall be by^arrant, for all sums of sixty dollars or under, “for a balance due oil any special contract or note since it cannot be supposed to be required of the plaintiff to state tho exact balance, throwing on him the risk of allowing the payments precisely, and making the calculation of interest with perfect correctness. There cannot, therefore, properly be a final judgment, by default, upon appeal from a Justice of the Peace; but the matter must be determined, upon proofs, either by the Court, or by a Jury, as mentioned in Ransom v Harshaw, 8 Ired. 480. That was not the course in this case,' but the judgment was entered, without the intervention of the Court, in the office, as of course, aúd, th'erefoi’é, was erroneous and irregular. Such judgments are, of necessity, always tinder the control of the Court, whose judgments -they purport to be, and of án appellate Court, which can treat the matter de novo. Bender v Askew, 3 Dev. 150. Keaton v Banks, 10 Ired. 381.

Per Curiam. Judgment affirmed.  