dissenting: Tbe statute under which this proceeding was instituted is very plain. It provides that the “collector shall be empowered to bring an action in the name of the corporation to enforce said lien by subjecting the land intended to be benefited by rendering it more productive either in the Superior Court or before a justice of the peace, and the court having jurisdiction of the amount due shall have power, upon summons served upon any of said landowners as prescribed in cases where actions are brought to enforce money demands where said landowners shall fail to pay such assessment, on or before the first of December of the year in which such assessment shall have been levied; and the court on trial shall have power to adjudge that such assessment shall constitute a lien on the land assessed, and that the sheriff of the county shall sell the said land assessed to satisfy such assessment upon it, and the cost of the action so brought to enforce it.”
This statute authorizes the Court to declare the assessment a lien, for the amount, and if the amount is under $200 the jurisdiction is in the court of the justice of the peace, and if over that amount it is in the Superior Court, and upon the declaration of the lien the sheriff proceeds to sell to collect said sum.
This is precisely the case of Smaw v. Cohen, 95 N. C., 87, where the Court held that an action to enforce a lien for materials and work and labor done, which is for less than $200, is in the jurisdiction of a justice of the peace, Smith, C. J., saying: “The present action, though instituted as well to enforce the lien as to establish the debt to which it attaches, is, by the law, required to be prosecuted in the court having jurisdiction, according to the amount claimed under the contract and in no other. The statute must control and modify the general rule, as laid down in those eases, and as it denies jurisdiction in the Superior Court for the sum demanded we cannot assume and undertake to exercise it.” In Smaw v. Cohen the action was to enforce a lien against the *586land of a feme covert wbo at tbat time could not be liable on a contract, but the proceedings to declare the amount of the lien was held to be before the justice of the peace and the sheriff proceeded to collect. That case is exactly on all fours with this.
In Farthing v. Shields, 106 N. C., 300, Shepherd, J., said: "Smaw v. Cohen, 95 N. C., 85, may be sustained, as to the liability of the separate estate, on the ground that the statute, Code, ch. 41 (liens) directly charges it,” which is exactly the case here. This is not an action to collect a debt, but to adjudge the amount of the lien, which is within the jurisdiction of the justice, and then the sheriff proceeds to collect.
In Weathers v. Borders, 124 N. C., 611, Furches, J., says: "Smaw v. Cohen is authority for holding that where the debt sued for is less than $200, the action should be brought before a justice of the peace; and that where the debt is established by the judgment, the statute creates a lien. Rut where the debt is less than $200, and it is sought to establish an equitable lien, the action must be brought in the Superior Court as a justice of the peace has no equitable jurisdiction.” .
In Finger v. Hunter, 130 N. C., 532, the Court said: “The proceeding being for a lien under $200 was properly brought in the justice’s court. Smaw v. Cohen, 95 N. C., 85.”
In Harvey v. Johnson, 133 N. C., 358, Walker, J., says: “The act of 1901 is an amendment to sec. 1781 of the Code, which subjects the property upon which the repairs or improvements are made to a lien. This brings the case directly within the reason for the decision in Smaw v. Cohen, 95 N. C., 85. In that case the jurisdiction of the justice was sustained by reason of the express requirement of the statute that a suit against the person to enforce such lien, when the amount is less than $200, shall be brought in a justice’s court.”
In Ball v. Paquin, 140 N C., 95, Connor, J., says: “In Smaw v. Cohen, 95 N. C., 85, it is held that an action against a married woman to enforce a lien for an amount less than $200 was within the jurisdiction of a justice of the peace.” In all these cases, as in the present, there was no personal judgment against the defendant, for at that time the Martin Act had not been passed, and it was held that a personal judgment could not be obtained against a married woman.
In Rutherford v. Ray, 147 N. C., 258, it is said by Connor, J.: “In Smaw v. Cohen, 95 N. C., 85, it is held that the justice has jurisdiction of an action to enforce a lien against the property of a married woman if the sum demanded is less than $200. This decision is based upon the language of the statute. It will be observed that the statute uses the words 'according to the jurisdiction thereof.’ ”
All these cases are exactly in point, for in them no personal judgment could be rendered against the defendant, a- married woman, but the *587Court sustained the jurisdiction because the amount for which the lien was adjudged was less than $200, and the lien was not equitable, but statutory, and the sheriff proceeded to collect. In those cases, as in this, it was not sought to decree an equitable lien, but the lien was created by the statute, as a result of the final decree establishing the drainage district, and the justice merely adjudged the amount due under the lien.
This renders it unnecessary to consider the other reasons assigned in the opinion of the Court, for if, as these eases hold, the magistrate has jurisdiction the appeal ought not to have been dismissed. TJnder our practice, the Court does not favor dismissing an action for want of jurisdiction if the Court can sustain it, nor requiring the heavier cost, and the delay, involved by proceeding in the Superior Court when the justice of the peace has jurisdiction of the amount.
Civil causes of action are divided into those on contract and torts. It is this division that is referred to in prescribing the jurisdiction of justices of the peace to “civil actions founded on contract, wherein the sum demanded shall not exceed $200, and wherein the title to real estate shall not be in controversy,” and “of other civil actions wherein the value of the property in controversy does not exceed $50.” This last was construed in Malloy v. Fayetteville, 122 N. C., 480, to authorize justices to take cognizance of actions for damages not exceeding $50 to property. Justices were not given jurisdiction of torts, but that jurisdiction of contracts was not restricted to the narrower meaning of agreements is shown by the fact that indebtedness for a tax, on a lien and under a judgment, are construed to be contracts, though the debtor cannot be said in either case to have agreed to be liable.