
    McColley & Brothers, for the use of Mitchell Warren, v. William R. Hickman.
    In an action on the recognizance against a surety in an appeal from a justice of the peace, it is sufficient to aver in the declaration that the suit below being for debt, was for a cause of action within the jurisdiction of the justice of the peace. If the appeal be referred out of court under a rule of reference, it will not release the surety from his liability on the recognizance; and it is not necessary to aver in the narr that he consented to the reference. Neither is it necessary to allege in the narr, that the justice of the peace had jurisdiction of the person of the defendant in the action before him.
    This was an action of debt on a recognizance entered into by William R. Hickman, the defendant, as the surety of William and Benjamin Collins (n.) on appeal from a judgment recovered by McColley & Brothers for the use of Mitchell Warren against them before a justice of the peace for sixty-eight dollars and costs. The declaration in the action set forth-the recovery of the judgment before Lemuel B. Shockley, Esq., one of the justices of the peace for the county, for a cause of action within the jurisdiction of the said justice of the peace, from which the defendant appealed in due time,- and that William R. Hickman, the defendant in this action, thereupon became surety for them in the appeal. That after the appeal was entered in this Court, it was referred by the consent of parties on a rule of reference, out of court, in which the referees made a report and return at the next term in favor of the plaintiffs against the defendants for eighty-eight dollars, on which this Court gave judgment for that amount and costs; that an execution was afterwards issued on the judgment against the defendants, to wThich the sheriff made return of nulla bona, and thereupon this action was commenced. To this declaration" the defendant demurred generally; first, because the cause of action was referred out of court after the appeal was entered, without any averment that the defendant as such surety consented to the reference; and secondly, because it was not averred with sufficient certainty that the justice of the peace had jurisdiction of the cause of action below.
    
      E. D. Cullen, for the defendant:
    On the first point, as to the discharge of the .defendant as surety by the rule of reference, any variance or alteration in the contract of bail will release the bail. To declare in a different form of action from that in which the bail is taken, discharges the bail, and it has been so decided in this Court. Waples v. Derickson, 1 Harr. 134. And to refer the case has the same effect. Caldw. on Arbitra. 45. The legal maxim on this point is non in hcee f 'cederá veni, and he contended that a reference out of court under a rule of reference under our statute, releases the bail, and the principle has been ruled and recognized by numerous authorities in other quarters. 6 Wend. 236; 18 Johns. 22; 6 Cow. 399; 2 Wend. 505; 13 Wend. 293; 1 Hill, 69; 15 Eng. C. L. R. 42; 3 Saundf. Rep. 4; 3 Harr. Dig. 5846; 1 Law Libr. 72; 10 Law Libr. 233; 17 Mass. 591; 3 Wend. 54; 6 Wend. 236.
    On the second point, the jurisdiction of the justice of the peace being a special and limited jurisdiction, it ought to be alleged with certainty in the declarations that he had jurisdiction of the cause of action and of the person of the defendant, and if it is not done, it is a good ground of objection on a general demurrer. 1 Cromp. Meas. & Ros. Rep. 301. In pleading the jurisdiction of a court of special and limited jurisdiction, a general averment merely that the cause of action was within the jurisdiction, is not sufficient ; the facts which are necessary to bring it within the jurisdiction, must be stated. 9 Wend. 233; 16 Wend. 562; 6 Cow. 221; 6 Wend. 428. And the jurisdiction of the person of the defendant must also be alleged. 7 Hill, 35. For this is not to be presumed, as nothing is presumed in favor of a special or limited jurisdiction, but it must be averred and proved. 7 Hill, 39, 44, in note; 3 Const. Rep. 193; 5 Hill, 285; 4 Mass. 641; 41 Eng. C. L. R. 825; 3 Harr. 517; 4 Harr. 280.
    
      
      C. S. Layton, for the plaintiffs :
    It is averred in the narr that the justice of the peace had jurisdiction of the cause of action and of the person of the defendant, for it is alleged that the plaintiffs recovered judgment against the defendant for their debt, $c. But it was neither necessary nor proper to incumber the record in this case with the proceedings in that case below, or to set out the facts which gave the jurisdiction. It was sufficient to allege simply that it was for a cause of action within the jurisdiction of the justice. 1 Ch. Pl. 356; 2 Ibid. 220; 1 Wil. 316; 1 Saund. 92, note 2; Pitt v. Knight, Carth. 85; Com. Dig. title Plead. w. 2, sec. 12; Thomps. Entries, 118.
    On the other' point the surety was not released by the reference of the case under a rule out of court. The principle and the reason of the rule of law on which bail or a surety is released from his obligation is, because he is put in a worse condition by the accommodation or arrangement ; but he is not discharged when he is not placed in a worse condition, or is not exposed to additional danger or loss in consequence of it. But how was the surety in this case damnified or placed in a worse condition by the reference ? The condition of the recognizance was to prosecute the appeal with effect, not by any time, or without delay; and if siich had been the case, a more speedy decision and termination of the appeal was obtained by the reference than could have been had without it. The reason why bail is discharged by giving time to his principal is because the bail has a right to surrender his principal at the return of the writ, and he may be put in a worse situation by it. But this does not apply in the case of a surety in replevin. 5 Taunt. 614; 6 Taunt. 379; 5 T. R. 277; 1 Eng. C. L. R. 169; 4 Taunt. 456; 2 Eng. C. L. R. 277; 2 Harr. 190; 16 Eng. C. L. R. 92.
   The Court

gave judgment for the plaintiffs against the defendant on the demurrer. On the first ground of objection taken to the declaration, that the surety in the appeal was released by the reference of the case out of court under a rule of Court, the case cited from 18 Johns. 22, furnishes the correct distinction between it and the other cases cited in support of the objection, and is directly against the demurrant. Had the appeal been submitted to arbitration by the parties before it was entered here, or without being referred under a rule of Court, pursuant to the statute, it would have discharged the surety from the obligation of the recognizance; for it would have been incompatible with the engagement of the surety in the recognizance. And that is the extent to which the other cases cited go. But the case in 18 Johns. recognizes that the effect is otherwise when the case is referred under a rule of reference out of Court, because it is one of the usual methods prescribed by statute, and warranted by long and established practice, of prosecuting suits, here; and although a case, when referred under a rule, is said to be referred out of Court, yet it is not in contemplation of law or in point of fact literally out of Court, for it is still subject to the control of the Court; .and the report, when made, must be returned here for confirmation, and has no conclusive effect until the judgment of the Court is pronounced upon it. It is, therefore, nothing more than substituting, by consent of parties, another and a usual mode of trying the case here in lieu of a trial at bar before the Court and jury, and has practically the same legal operation and effect; and therefore it could not be held to discharge the surety from the obligation of his recognizance that the appeal should be prosecuted with effect, and that any judgment rendered against the appellant here upon the appeal should be satisfied.

On the other point we are of opinion that it was sufficient in this case to aver in the narr that the suit helow was for a cause of action within the jurisdiction of the justice of the peace. Being alleged to be a debt under one hundred dollars, and that he gave judgment against the defendants in the trial for sixty-eight dollars and costs, and that the defendants thereupon appealed from the judgment, was a sufficient statement of the facts of the case, without incumbering the record of the present action with a transcript of the record below, or more explicit allegations, to require this Court to judicially notice" and infer that both the cause of action and the defendant himself were within the jurisdiction of the justice of the peace.  