
    Martin v. Chauvin.
    J. Twaor more suits on several demands, each of which is within the jurisdiction of a justice of the peace, hut united exceed the jurisdiction of a justice, may be prosecuted at the same time,-and cannot be consolidated.
    2. When property is to be delivered, or a debt is contracted to be paid in property^ on request or demand, and no place is named for the performance of the contract, a special demand at the obligor’s residence, is to bo averred and proved, and the allegation “ although often requested,” is insufficient. This general rule, however, must be received with some qualification, arising from the nature of the contract, and special circumstances and considerations.
    3. Justicesof the peace have no jurisdiction in actions on notes exceeding ninety dollars, to be-paid in property. 
      Buits on sevc-ral demands, Two or moro jurisdiction of ¿o peace,but, "nite.d eP,e.e<1 the junsdic-of a jus-theaametims, consolidated,
    
      Appeal from the Court of Common Pleas of Saint Louis county.
    
      Bowlin for Appellant.
    
    1st. The court erred in overruling appellant’s motion for a continuance, upon the affidavit filed. The affidavit sets out a sufficient ground to have warranted the granting of a continuance.
    2d. The second point of error relied on is the fact of the courts overruling motion for a nonsuit upon the grounds that the justice had no original jurisdiction in the matter, the notes each being for more than ninety dollars, and not being notes for the direct payment of money, but to be paid in lumber.
    3d. The third point relied on is, that the court of common pleas erred in overruling the appellant’s motion for a new trial.
    The other points made in the assignment of errors not relied on.
    
      J. D. Johnston for Appellee.
    
    1st. As to the first assignment of error, I maintain that Chauvin had a perfect right to sue on the notes separately, as decided by this court in Barns v. Hoband, 3 Mo. Rep. p. 47. And even without the authority of that decision, although the law encourages consolidation of actions, where can be done without prejudice to the plaintiff', it would not in a case like this, compel him to consolidation which would deprive him of the right to a speedy collection of his debt. Had these causes of action been consolidated, they would have amounted to a sum above the jurisdiction of a justice of the peace, and would consequently have driven the plaintiff to the more tardy remedy of process in a court of record. Justices’ courts have been established, not more to save the expense incident to proceedings in the higher courts, than to promote the speedy adjustment and collection of debts, and this court it is presumed, will not discountenance that policy.
    2d. As to the second assignment of error. — In his affidavit for a continuance, the defendant, not content with stating the materiality of the witness on tyhose testimony he relied, undertook to specify the fact, he expected to establish by him, viz: that several months after maturity of the notes, defendants made a tender of the property for which they called. This was properly held by the court below, to be insufficient ground for a continuance, for even if true, it would be no defence. Had such a tender been made when the notes fell due, it would have been good, but not being made at that time, the debt became a monied demand, and the plaintiff was entitled so to have it.
    Sd. As to the third assignment of error. — This is sufficiently answered in noticing the first.
    4th. As to the fourth assignment of error.’ — In the bill of exceptions no mention is made of instructions, nor is it remembered that any such absurdity was committed below as asking the court to instruct itself.
    5th. As to the fifth and last assignment, of error — The bill of exceptions are a sufficient answer to this.
    It was argued below, and may he here, that on notes like these an action does not accrue until after a demand for the specific satisfaction of them.
    Reference was made to a Kentucky case, but that only supports the defendant’s position so far as having decided a demand to be necessary where the note was by its terms paj’’able on demand, which is not the case with these.
    p„Jty delivered, or tracted^to be Paid in Pro' or deed for theper-[^contract a special demand at the obligor’s residence is to be averred and proved, and the allegation ‘‘although often requested,” is insufficient. This general rule, however, must be received with some qualification, arising from the nature of the contract, and special circumstances and considerations.
   Opinion of the Court by

Scott, Judge.

Chauvin brought two suits, before a justice, against Martin, on two notes, of which the following are copies. I promise to pay L. J. Chauvin, or order, one hundred dollars, to be paid in pine plank, on or before the 25th day of December, inst., or to be paid with ten per cent interest per annum from this date. Dec. 2, 1838.

Robert N. Martin.

I promise to pay L. J. Chauvin, or order, one hundred dollars, to be paid in pine plank, on or before the 25th day of December, or to draw ten per cent, interest. For value received. Nov. 29, 1838. Robert N. Martin.

Chauvin obtained judgment on both notes in the justice’s courts, and the court of common pleas.

The questions arising are, whether the actions should have been consolidated; whether a demand of payment was ne-' 1 - cessary to be proved, in order to enable the plaintiff to recover; and whether the justice had jurisdiction in founded on these notes. As to the first point, the opinion of this court in the case or Barnes v. Holland, 3 vol. Mo.R. 47, settles the doctrine that two or more suits on several demands? each of -which is within the jurisdiction of the tice, but the amount of them exceeds it, may be prosecuted at the same time, and that they shall not he consolidated.— As it regards the second point: For reasons which have been heretofore, and still are, deemed satisfactory, this court lias adopted the lav/ of Kentucky in expounding contracts of this character. When properly is to be delivered, or a debt is to be paid in property, oil request or demand, and no placéis named, then a special demand at the obligor’s residence is to be averred and proved, and the allegation, “ although often requested,” is insufficient. 2 Bibb, 281, Welmouth v. Petton; Hardin 87. This general rule, as all must be received with some qualifications, arising from the nature of the contract, from the debtor not having a knows place of residence in the state at the time of the contract ; from afterwards changing his place of residence, or from other special circumstances or considerations, which will vary the equity of the rule. Where the time and place are mentioned, or where the time is fixed, and no place mentioned, the law then designates the debtor’s residence, as the place for the performance of the contract, and no demand is necessary; but, the debtor when sued that on the day and at the place in the contract mentioned, and when no place is mentioned, then at his residence, on the day he was ready and willing to pay or deliver the property according to the contract. Grant v. Groshen, Hardin, 85; Cornelius v. McDonald, 2 vol. Mo. R. 56.

Justices of the peace have no jurisdiction in actions on notes exceeding ninety dollars, to be paid in property.

As to the third point, whether a justice has jurisdiction in an action on a note for one hundred dollars, to be paid in plank, it is not conceived that the third sectioft of the first article of the. act concerning justice's’ courts gives jurisdiction over claims like these in this case. That section says, justices shall have jurisdiction overall actions on bonds and notes-for the payment of any sum of money not exceeding one hundred and fifty dollars. The notes in this case cannot be-said to be notes for the payment of money; the party might have discharged them in plank; and the plaintiff is only entitled to the money by reason of his having failed to comply with his agreement to pay the plank. The words one hundred dollars, are used, not to show that this is a money demand, but for the purpose of ascertaining the quantity of plank that was tobe delivered.

Judgment reversed.  