SPENCE M. GRAYSON vs. ANDBEW WILLIAMS.

A party cannot divide an account, though composed of various items, so as to give jurisdiction to a magistrate.

OPINION OF THE COURT-BY THE HON. J. CHILD. APPEAL FROM THE CIRCUIT COURT OF ADAMS COUNTY. This action was originally commenced before a Justice of the Peace in said county, founded on an account for professional services, as attorney and counsellor at law-amount fifty dollars-where an appeal was taken from the judgment of the Justice to the said circuit court. On such appeals by the laws of this state, R. C. p. S. The trial before the appellate court is de novo upon the merits, without regard to the proceedings before the magistrate; and either party can avail himself of any matter of pleading or evidence, although the same were not pleaded, or otherwise insisted on in the court below.

The record before us, from the circuit court, contains a declaration in the usual form, with two pleas in bar-non assumpsit, and payment with replications, issues thereon. There is also a bill of exceptions, which is made part of the record; by which it will appear that the case turned upon a question to the jurisdiction of the magistrate; and which was available in the circuit court, although it had not been pleaded, or otherwise insisted on before the justice; upon the ground that the circuit court could derive no jurisdiction, by appeal, from a justice, who himself was acting coram non judice, and without authority.

This little matter has been a vexed question in our courts, since the formation of our state government; both as it regards the jurisdiction of a justice of the peace, and the manner of taking advantage of it, in cases where the plaintiff's demand exceeded 50 dollars and the plaintiff had given a false credit, or divided his claim for the purpose of reducing it within the jurisdiction of a magistrate.

I am well aware that where a court of special and limited jurisdiction

is created by statute, unless enough appears upon the face of the record to give jurisdiction, it would be bad upon demurrur for such a defect, or perhaps the court itself jealous of its own powers, would ex officio take notice of the same and dismiss the cause. 1 Chitty 428; 1 East 252. But where the matter is dehors the record, I am inclined to the opinion that it may be pleaded or given in evidence on the trial. Perhaps it would be well in this place to settle how far, a party plaintiff will be permitted to divide his claim, for the purpose of bringing several actions before a magistrate, in cases where the entire demand consists of causes of action which might be joined, in one suit in the circuit court, amounting to a sum greater than the limit of a magistrate's jurisdiction. I am clearly of opinion that a running account with a merchant, mechanic, doctor, lawyer, or other person, cannot be so divided; although the price of each article should be agreed upon by the parties; because the whole might be con-sidered as one entire transaction and indivisible: the same rule also applies, for the same reasons, where a great number of small notes are given for one single purchaser or consideration, due at the time of bringing the first suit. But, in cases where there is no general dealing; no account of items between the parties; and two or more separate distinct and several express contracts exist, clearly ascertaining the sum due, and for different and several considerations; each for a less sum than fifty dollars, and extending, in the whole, to a greater amount or sum total; and all due at the time of the commencement of the first suit,-I am unable to discern either law or reason to shew that the plaintiff cannot proceed, before a magistrate, on several actions for each; or that a recovery and payment in one should be a bar to the others. Starkie evidence 1, 200.

As it does appear, from the record, that there was an account for professional services claimed by the plaintiff below, against the defendant, existing at the time of the commencement of this suit for a greater amount than fifty dollars; and as nothing appears to exempt it from the operation of the rule herein before expressed, I am of opinion that the court below ought to have instructed the jury as in case of a non suit and entered in judgment accordingly, leaving the party to commenc de noro before the tribunal possessing jurisdiction.

Judgment reversed and non-suit directed.

AUSTIN WOOLFOLK vs. HARRY CAGE.

A party may proceed by attachment in this state to recover damages for a breach of covenant. A judgment obtained in Louisiana, upon a proceeding commenced by attachment, is only binding upon the effects attached.

OPINION OF THE COURT.--BY THE HON. EDWARD TURNER.

This is an action of covenant, commenced by writ of attachment by Harry Cage against Austin Woolfolk, in the Wilkinson Circuit court. The defendant appeared and replevied by giving bail, and moved the court to quash the attachment for reasons assigned on the record, which motion the court overruled. The defendant then pleaded the plea of former recovery, in a district court of Louisiana, to which the plaintiff below replied, and issue was joined to the court. The court below overruled the plea, and after verdict assessing the plaintiff's damages, gave judgment for the plaintiff: from which judgment the defendant appealed to this court.

The Appellant assigns errors to the following effect, to-wit:

1st. That the court erred in refusing to quash the attachment, for the reasons assigned.

2d. That the court erred in refusing to permit the record of the suit in Louisiana, to be read to the jury, as evidence conducing to prove a former trial, judgment and recovery had on the same matter.

3d. That the court erred in deciding the issue to the court on the special plea, in favor of the plaintiff below.

In this case, two points only, in our opinion, present themselves for the consideration of this court.

1st. Will an attachment lie, to recover damages for breach of covenant. 2d. Is the judgment given in the district court of Louisiana binding upon Harry Cage any further than the effects attached.

Our law of attachments, Rev. Code, p. 157, sec. 6; provides, that "if any creditor shall make complaint, &c. and if such creditor shall make

oath, &c. to the amount of his or her debt or demand, &c. such, jadge or justice shall grant an attachment against the estate of such debtor, &c."

Is the plaintiff's claim a credit? We think it is; and that it is such a credit as may be sued for by the process of attachment. One object of this process, is to compel an appearance of the defendant. On his appearance, and giving bail, he is allowed to plead; and the cause then proceeds, as in the ordinary mode of suit by capias ad respondendum.

Another object of the writ of attachment, is, in default of the personal appearance of the defendant, to subject the attached goods and credits of the defendant to the payment of the plaintiff's demand.

This position is sustained by high authority. See Sergeant on attachment, page 43 to 54, and the cases there cited; 4 Cranch, 421, &c.

As to the second point, we are equally well satisfied, that the judgment given in the district court of Louisiana, is not binding upon Cage, any further than as to the effects attached. The proceeding is in rem. The doctrine on this subject was settled many years ago in our courts, in the case of Chew and Relf vs. E. Randolph. Chew and Relf sued Randolph by attachment in Louisiana, and obtained judgment, but they did no succeed in effecting payment of their demand. An action was brought in the Superior Court of Wilkinson county, on the judgment obtained in Louisiana. The cause was taken to our Supreme Court, where it was decided, that an action of debt could not be maintained in such a case. Chew and Relf were turned round to their suit on the original cause of action, on which they finally succeeded. This decision was based on adjudged cases, and the intrinsic nature of the suit by attachment, and has been considered the law of the land ever since.

For the sake of brevity, I will refer to the case of Isaac Bissell vs. Seth Briggs, reported in 9 Mass. Rep, page 462 to 479, where many adjudged cases are referred to, and where the doctrine applicable to this case, is fully and ably discussed by the learned Ch. J. Parsons, and by Sewall J. Cage, not being a citizen of Louisiana, and not being served, personally with process, is not considered as bound by the judgment. rendered against him. The court in Louisiana had no jurisdiction over his person, and could exercise none, unless he had been found there and been served with process. "If a court of any state, should render judg

ment against a man not within the state, nor bound by its laws, nor amenable to the jurisdiction of its courts; if that judgment should be produced in any other state against the defendant, the jurisdiction of the court might be enquired into, and if a want of jurisdiction appeared, no credit would be given to the judgment.

The court in Louisiana, had jurisdiction over the effects of Cage, found in Louisiana, and so far as the proceeding affects those effects, it is binding to all parties; but no further.

Judgment affirmed.
Judge Black concurs.

JOHN BARLOW vs. HENRY ESTERLING.

The judge of probate has no power to issue a writ of certiorari.

OPINION OF THE COURT-BY THE HON. EDWARD TURNER. On an inspection of the record, it appears that this cause was commenced before a Justice of the Peace in Perry county; that the justice rendered judgment against the defendant below for a penalty of five dollars, besides costs; that the Judge of Probate of said county granted to the defendant below a certiorari, to remove the cause into the county court of said county; which court reversed the judgment of said justice; that the judge of the fourth judicial district granted to the appellee a writ of certiorari, to remove the cause into the circuit court of said county; which court reversed the judgment of the county court and remanded the cause to the county court.

The Judge of Probate has no power to issue a writ of certiorari, and erred in assuming jurisdiction thereof, and this court proceeding to give such judgment as the circuit court should have given, considers that the judgment of the circuit court, reversing the judgment of the county court, be affirmed, and that so much of the judgment of the circuit court, as remands the cause to the county court, be reversed.

Judges Child and Winchester concurring.