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 make it appear that I had in my hands as constable, for collection, three notes for $75 each, in favor of the administrators of Samuel Smotherman, deceased, against Jacob Stutts and others, and endorsed by B. Barrett, then and on that evidence I am to stand indebted to him (Spencer) for one of said notes, and interest from 26 April, 1842." *Page 19
Several objections were taken to the plaintiff's recovery, and among 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 nonsuit; from which the plaintiff appealed. Without adverting to the other objections, (10) 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 se; 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 $60 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," which the statute itself defines to be an account stated in writing and signed by the party from whom the (11) 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.
PER CURIAM. Judgment affirmed. *Page 20