
    Smith and Peebles vs. Wallace and Hobbs.
    A magistrate has not jurisdiction in a suit by the endorsee against the en(jorser 0f a bill single, when the amount due upon the hill single is more than fifty dollars.
    In an action by an endorsee against an endorser, the plea of “no assignment” must be sworn to; otherwise the assignment or endorsement is admitted.
    On the 3d of March, 1830, John B. Anderson executed his promissory note under seal, for $54, payable one day after date, to Smith and Peebles. On the 20th August, 1830, Smith and Peebles transferred by endorsement the said note to Wallace and Hobbs for value received, and waived demand and notice. Wallace and Hobbs warranted Anderson and Smith and Peebles, before a justice of the peace, who gave judgment against all of them for the sum due on said note, the same being more than $50.
    Wallace and Hobbs, some time after, brought this suit in the Williamson county court. The declaration contained the usual count against an endorser, with an averment of a presentment of the note to the maker for payment, and refusal and notice to the endorsers: also, all the money counts, and account stated; pleas, non as-sumpsit and former judgment; verdict and judgment in the county court for Wallace and Hobbs for $59 22; an appeal taken to the circuit court, where there was a similar verdict and judgment, affirming, &c. with twelve and a half per cent, from, &c. Appeal, &c. &c. to this court.
    It was proven in the circuit court, that the judgment of the justice of the peace had never been appealed from, or in anywise reversed or satisfied. It was further proven that Wallace, one of the plaintiffs, went with Anderson and the constable to the justice of the peace, and told him to grant a stay of execution to Anderson; the justice said that an execution had issued, and that he could not grant a stay. Wallace then told the constable to indulge Anderson the time of a stay. It was proven that at that time and up to January, 1831, Anderson was good for the debt, and afterwards became insolvent.
    
      R. C. Foster, for plaintiffs in error.
    The court erred in charging the jury that the indulgence given the endorsers would not discharge the defendants; after issuance of execution, the plaintiffs had no right, but at their own peril, without the consent of defendants, to give time, as by the act of 1820, ch. 151, the sheriff is compelled to make satisfaction out of the maker’s property first, if to be found. This is a legal protection given by law to the endorser, and the plaintiff cannot interpose time to the maker, without the consent of the endorser, who knew the law and knew the maker was good; so far as the plaintiffs and defendants are concerned, the act creates a lien on the endorser’s property, for the benefit of the defendants, and if the plaintiffs interpose and by their act destroy the property, and a loss must be sustained, it should fall on them. 3 Kent 78.
    2. The court erred in charging the former judgment was no bar to the action, because of want of jurisdiction.— An assignment of anote waiving notice and demand, is an unconditional promise to pay, for which debt 'would lie, and is an agreement in writing signed by the endorser, and if under one hundred dollars gives the justice jurisdiction; it is an agreement under the acts of 1809, ch. 84, 1813, ch. 67, 1820, ch. 25.
    3. The court erred in permitting the endorsement to be read to the jury without proof of the partnership of the defendants, and that Smith and Peebles assigned the note. Chitty on Bills, 488: 3 East 52: Peak’s Cases 16.
    
      John Marshall, for defendants in error.
    The judgment in favor of Wallace and Hobbs against Anderson, the maker of the note, and Smith and Peebles, the endor-serg jg vojcj as t0 tjle endorsers, the same being for more than fifty dollars, jurisdiction not being given by the act of 1809, ch. 54: jurisdiction is since given to a justice of the peace in such cases by the act of 1831, ch. 59. The justice of the peace not having jurisdiction, the judgment is absolutely void; (15 John. Rep. 121: 2 Dallas’ Reports, 113: Norris’s Peake, 112;) and the judgment can be shown to be void at any time when it is attempted to be enforced or relied on as a ground of suit by a plaintiff, or as a defence under the plea of a former recovery by a defendant. 3 Yerger’s Rep. 125, 140: 4 Cranch’s Rep. 269: 3 Dane’s Digest, 65, sec. 1, 2, 3, 4, 6. In Peck’s Reports, 134, Judge Brown supposes that writs of certiorari and supersedeas ought not to issue to reverse avoid judgment. Time given by the holder of a promissory note to the maker, will not discharge the liability of the endorser, provided the holder makes no binding contract with the maker; such as agreeing upon record to stay the execution longer than the delays of the law; receiving a consideration from the maker, or agreeing under seal with the maker, to forbear and give time. 3 Wheaton’s Rep. 520: 16 John. Rep. 152: 16 John. Rep. 41: Chitty on Bills, 290, and the authorities there cited. A forbearance to discharge the endorser, must be founded on a valuable consideration, or the agreement to forbear is void, as is abundantly shown by the cases.
    The waiver of demand and notice can be given in evidence under the allegation in the declaration of a presentment to the maker and notice to the endorser. 2 Conn. R. 478: 3 Cow. Rep. 252; where it is said that demand and notice must be alleged, if a waiver is relied upon by the holder. This seems to be the only way to preserve the beauty of pleading, and to prevent botched and cumbersome declarations, mistakes, &c.
    Under an averment of demand and notice, a promise to pay by the endorser after he is discharged by the laches of the holder, is evidence of a waiver of the consequence of the laches, and admits the right of action. 12 Mass. Rep. 52: 2 Nott. and M. 497: 3 John, 68: Chitty on Bills, 233.
    
    The act of 1762, ch. 9, places promissory notes on the same footing of inland bills of exchange, by the custom of merchants in England; and the act of 1786, ch. 4, places money bonds on a like footing.
    The act of 1809, ch. 54, Judge Stuart has always decided did not give jurisdiction to a justice of the peace, for more than fifty dollars, as between endorsee and endorser; the case not being within the words of the act. The act seems to contemplate a paper signed by the party, containing the promise to pay, and all the evidence necessary to charge him, to give the jurisdiction; and to this effect are the decisions in Peck’s Rep. and 4 Hay. 188. The legislature considering this to he the true construction of the act, passed the act of 1831, ch. 59.
   Peck, J.

delivered the opinion of the court.

The first question arises upon the plea of former recovery. The form in which the record presents this question, is such that it cannot be noticed. After trial upon such pleas, every intendment will be made to support the verdict. But as it is insisted the court misled the jury on the point, it is deemed proper to say, that we are all of opinion the justice had not jurisdiction against the endorsers, and therefore no error intervened in the charge.

On the other point, that the plea of non-assumpsit made proof of the assignment indispensable to a recovery, this court holds the rule as laid down by the circuit judge the correct one. To throw upon the plaintiff the burthen of proving the assignment, the plea which denies it must be on oath. In whatever way we take the plea, the affidavit is wanting to make proof of the assignment necessary.

Judgment affirmed.  