
    Phipps vs. Richmond.
    The statute of limitations of three years is not a bar to an action before a justice of the peace founded upon a simple contract, upon which an action of debt might be maintained if of sufficient amount to force the parties into a court of record.
    On the 12th day of February, 1836, Daniel and Andrew Richmond procured a warrant against William R. D. Phipps in the followings words:
    «State of Tennessee, Wilson county. To any lawful officer to execute and return. Summon William D. Phipps, to appear before me or some other justice of the peace for Wilson county, to answer the complaint of Daniel and Andrew Richmond in a plea of debt due by account. Given under my hand and seal this 12th day of February, 1836.
    James Somers, J. P.”
    On the 15th day of March, 1836, Silas Tarver, a justice of the peace of Wilson county, rendered judgment in, favor of the plaintiffs and against the defendant for the sum of forty-three dollars and ninety-three cents, which was the amount of a charge for medicines and medical services, after the deduction of certain credits. From this judgment an appeal was taken to the circuit court of Wilson by the defendant. During the pendency of the suit in the circuit court Andrew Richmond died, and the suit was then prosecuted in the name of the surviving partner, when, at the February term, 1839, the cause was submitted to a jury, the honorable S. Anderson presiding. The defendant relied upon the plea that the account was barred by the statute of 1715, ch. 27, sec. 5, passed for the limitation of certain actions therein specified to three years next after the cause of action shall have accrued. The court charged the jury “that the statute of limitations of three years would operate as a bar to an account sued upon before a magistrate, although the warrant was issued in debt, and that the limitation of six years did not apply, as insisted upon by the plaintiff’s attorney.” Upon the charge the jury rendered a verdict for the defendant; a motion was made for a new trial by the plaintiff and overruled and judgment rendered, and an appeal in the nature of a . r .1 • , 01 error taken to the supreme court.
    R. L.-Caruthers, for the plaintiff in error,
    relied upon Tis-dale vs. Monroe, 3 Yerger, 320: Burdoine vs. Shelton, 10 Yerger, 41: Donaho vs. Kirkman, 6 Pet. 20.
    
      R. M. Burton,
    
    cited statute 1715, ch. 27, sec. 5: Pike vs. Green, 1 Yerger, 465.
   Turkey, J.

delivered the opinion of the court.

The only question in this case is, whether the statute of limitations of three years is a bar to an action before a justice of the peace founded upon a simple contract, upon which an action of debt might be maintained if of sufficient amount to force the parties into a court of record. It is contended for the defendant in error, upon the authority of the case of Pike v. Green, 1 Yerg. Rep. 465, that it is. This case is in point if it were law, but we .think it is not. It was made before the question as to whether the statute of 21 James I, was in force in the country was determined, and therefore was not considered of in relation thereto. But afterwards, in the case of Tisdale vs. Munroe, 3 Yerger, 320, this question was investigated and the statute held to be in force. This decision we think has materially varied the subject. Before the decision it was doubtful if the statute were in force; if it were not, then there was no statute of limitations to actions upon simple contracts except for arrearages of rent, and, of consequence, courts would lean in favor of a construction by which our statute of 1715, which bars action of account and upon the case in three years, could be brought to bear upon such contracts; hence, in the case referred to, Pike vs. Green, it was held, that inasmuch as before justices of the peace there is no specific form of action, and that case will lie as well as debt, that the statute shall be held to apply. But since the decision of Tisdale vs. Munroe this difficulty is removed. There is now a statute of limitations which operates upon simple contracts; if the time • be too long the legislature must shorten it.

That the decision of the case of Pike vs. Green is erroneous may be made obvious from the reasoning of the Jcourt .It says, “in this summary proceeding the substance is looked to, as in courts of chancery, and the statute made to apply to the evidence.” Now this proposition'is true, but the deduction from it is false. It has always'been held that a court bf chancery applies the statute of limitations upon the same principles as courts of law; if the party be barred at law he is barred in chancery, and vice versa. A court of chancery having no form of action, must, of necessity"', look to the evidence, and if upon that evidence an action could be brought at law which is not barred by the statute of limitations the party is not barred in chancery. See Burdoine vs. Shelton, 10 Yerger, 41. There is no reason for applying a different principle to trials before justices of the peace; indeed the court in that case do not attempt it, but admit that the same rule is applicable to both tribunals.

The judgment of the circuit court will therefore be reversed, and the cause remanded for a new trial.  