HARBARD SPENCER vs. GEORGE HUNSUCKER
A Justice of the Peace has not jurisdiction of such a contract as this: “I, the subscriber, promise H. S. that, if he can make it appear, that I had in my hands as constable for collection three notes for $75 each, in favor of the administrators of S. S. deceased, against J. S. and others, and endorsed by B. B., then and on that evidence, I am to stand indebted to him, H. S. for one of said notes, and interest thereon from April 26th, 1842.”
Appeal from the Superior Court of Law of Moore County, at the Fall Term, 1847, his Honor Judge Caldwell presiding.
This suit was commenced before a Justice of the Peace by warrant in “ debt for $75 due by assumpsit.” After judgment and appeals, the cause came on for trial in the Superior Court on nil debet; and on the trial, the plaintiff gave in evidence a written instrument, signed by the defendant, in the following words ; “ I, the subscriber, promise H. Spencer, that if he can malre it appear, that I had in my hands as constable, for collection, three notes, for $75 each, in favour of the administrators of Samuel Smotherman deceased, against Jacob Stutts and others, and endorsed by B. Barret, then, and on that evidence, I am to stand indebted to him, Spencer, for one of said notes, and interest from April 26th, 1842.” ■
Several objections were taken to the plaintiff’s recovery ; and ameng them was one, that the case was not within the jurisdiction of a single magistrate. After a verdict for the plaintiff, subject to the opinion of the Court, on the points made, the presiding Judge set aside the verdict, and, according to an agreement of the parties, ordered a non suit; from which the plaintiff appealed.
Haughton, for the plaintiff.
*10
Strange, for the defendant, argued — ■
1. An action of debt would not lie, because the claim was neither for a specific sum nor a specific article.
2. Justice of the Peace had no jurisdiction. Rev. Stat. Ch. 62, Sec. 6. Bryan v. Washington, 4 Dev. 479. Fen-tress v. Worth, 2 Dev. 229.
3. That the condition on which the plaintiff’s cause of action must arise, if it arose at all, had not been performed when the action was brought. Smith on Contracts, 329. Chilty’s Plead. 309, 11. Callond v. Briggs, 1 Salkeld, 113. Thorpe v. Thorpe, 1 Salk. 171.
Ruffin, C. J.
Without adverting to the other objections, the Court deems that upon the question of jurisdiction, fatal to the action.
It is first to be noted, that this is not within that provision in the Act, which makes, “demands due on special contract or agreement,” cognizable before a magistrate out of Court; because that clause is restricted to demands of $60, or under, and this contract and action are for $75. The question is, whether it falls within the .other clause, which embraces debts, whereof the principal does not exceed $100, “due on bonds, notes, and liquidated accounts.” We think, it does not. This contract is not a bond ; not being under seal. Nor is it a note, in the sense of the statute ; which means, like the Acts of 1762, and 1786, by that word, “ note,” a promissory note for money. That is the legal import of the term per sc ; and the construction is the clearer upon this statute, from the contrast in the language of the two clauses in this section, which relate to the several classes of debts, of $6G, and of $100 : that of the former being “ special contract, note, or agreement” generally, while that of the latter is confined to the specific forms of contracts, “ bonds or notes,” in their technical sense. Still less can this instrument'be called “a liquidated account j” which the Statute *11itself defines to be an account stated in writing and signed by the party from whom the debt shall be due. This imports an amount or balance, ascertained to be due on account, from the one party to the other ; and it excludes the idea of an original contract whereby one person engages to pay a sum of money to another on a certain contingency, in the nature of a wager.
Such a case, is not within the purview of that part of the Act.
Peu Curiam. Judgment affirmed.