
    Mitchell vs. Miller.
    JURISDICTION. Justice's by act of 1837, c 22, § 1. — By the act of 1837, c 22, $ 1, extending* the jurisdiction of justices of the peace, their jurisdiction is confined to the case of a liability arising directly out of the instrument itself; and does not embrace an indirect, collateral or contingent liability, created not by the terms of the instrument, but by operation of law, — as the liability of an endorser, &c.
    W. H. Sneed, on the 2d of June, 1837, executed bis bill single for one hundred and fifteen dollars, payable to C. G. Mitchell, or order, on or before the first day of April, with interest from the first of January, 1838. Mitchell, the payee, endorsed it on the 12th of April, 1S38, to D. Mitchell, waving demand and notice; and on the next day, D. Mitchell endorsed it, in like manner, to Alfred Miller. On the 5th of May, Miller sued D. Mitchell upon his endorsement before a justice of Rutherford, who gave judgment for the plaintiff. The defendant appealed to the circuit court, in which it was tried at July term, 1838, before Judge Rucks, sitting for Judge Andeeson, and a jury. On the trial, the defendant objected to the reading of the bill and endorsements to the jury, but his Honor admitted them, and the jury found a verdict for the plaintiff. The defendant moved for a new trial, which was refused, and judgment given. The defendant filed a bill of exceptions setting out the bill and endorsements, and appealed in error to this court.
    Sneed for the plaintiff in error
    said — This is a suit.by the endorsee of a note against the endorser, and unless some act of our legislature has authorised the bringing a suit by-and against persons standing in this relation to each other before justices of the peace for the sum claimed and recovered below in this action, then this judgment must be reversed. In 1809 the legislature extended the jurisdiction of justices upon settled accounts signed by the party to be charged, and upon notes, &c., from fifty to one hundred dollars. The act of 1835-6, giving justices jurisdiction to the same amount in such cases is couched in language substantially the same as the act of 1809. The same may be remarked of the act of 1837, c. 22, § 1. Until the passage of the latter act, justices bad in no case jurisdiction beyond one hundred dollars, and unless it authorizes the bringing of the present suit, it must fail. Neither of the acts above recited mention the case of an endorser; and it is believed that the opinion has universally prevailed among the members of the profession, that they were not included. The construction of the above acts by the circuit courts, it is thought, has been the same. The passage of the act of 1831, giving jurisdiction to one hundred dollars to justices, as between endorsee and endorser, proves that the act of 1809 had received from that body a similar exposition. But in addition to ail this, the case of Smith and Peebles vs. Wallace and Hobbs, 4 Yer. Rep. 572, settles the construction of the acts previous to 1833. The act of 1809, c. 54, extended the jurisdiction from fifty to one hundred dollars, and a case circumstanced as the present, is not included. The act of 1837 extends the jurisdiction from one to two hundred dollars, and as it employs “mutatis mutandis,” the same words as the former acts, it cannot cover this case.
    January 29.
    No counsel appeared for the defendant in error.
   Reese, J.,

delivered the opinion of the court,

The general question arising in the case is, whether the first section of the act of 1837, c. 22, confers upon a justice of the peace jurisdiction in any case where the writing which evidences the contract, creates a liability which is indirect and collateral?

The words used in that section are, that “a justice of the peace shall have concurrent jurisdiction of all debts and demands from one hundred to two hundred dollars, where the balance is due upon any specialty, note, agreement, or settled account signed by the party to be charged therewith.”

These terms, we are of opinion, extend to and embrace only a direct liability, ascertained and evidenced by the signature of the party to the specialty, note, agreement or settled account; but do not extend to, or embrace an indirect, collateral, or contingent liability, created not by the terms of the agreement, but by the operation of the law.

The endorser, by the terms of the endorsement, transfers t0 encjorsee only the legal title to the note. His liability arises not from the terms used, but from the act done, and is produced by the operation of the law merchant. It is clear, therefore, that the liability does not fall within the terms or intention of the act conferring upon a justice of the peace the extended jurisdiction of two hundred dollars. If it had been otherwise, we may be permitted to remark, that every enlightened man must have deeply regretted it. For it would have been as absurd as hazardous to have submitted to these domestic tribunals so large a portion of the controversies arising out of the law merchant, with the difficult questions and nice distinctions which attend them.

2. In the case before us, the circuit court probably sustained the jurisdiction, because the endorsement in its terms waives the necessity for demand and notice. But althongh this would facilitate and simplify the evidence in this case, it still leaves the agreement to be raised by operation of law, and does not in terms create a direct liability.

We are of opinion, therefore, that the judgment of the circuit court be reversed. And this court proceeding to give such judgment as the circuit court ought to have given, arrest the judgment.  