
    Langley vs. Johnson.
    
      May 21.
    , a tt.giftr.te ¿“rii¡ verbal coatr.a pay four ^Uirs ⅜0⅛,
   OPINION of the Court, by

Ch. J. Boyi.e.'

This suit was commenced by the defendant in error against the plaintiff, by a warrant issued by a justice of the peace, who having rendered judgment against the.plain-t0 tiff in error, he appealed tb the circuit court.

On the trial of the cause ⅛ that court a verdict was found for the plaintiff in error, which, on motion, was set aside and a new trial granted. On the new trial a verdict was given for the defendant in error, anda judgment was thereupon ehtered; to reverse which this writ of error is prosecuted.

It appears from the evidence, the whole of which is Contained in a bill of exceptions' taken to the granting óf a néw trial, that the suit was founded upon a verbal Contract to pay fbrty dollars Worth of cabinet work.

We do not deem it material to inquire into, the merits bf the case, since we are of opinion it is one of which the justice of the peace had not jurisdiction, and that consequently, though the evidence might justify a recovery in a different mode of suit, it did not support that form of action. The acts of assembly increasing i;he jurisdiction of magistrates, have given them coghi-zance « of all sums not exceeding fifty dollars, founded •ft any specialty, bill, or note in writing or account.”

As in this case there was no specialty, bill, or note in Writing, the jurisdiction of the magistrate could attach only on the ground of the sum sued for being due upon account; but it is clear where there is a special contract to pay a particular sum in property, that it cannot be said to be due by, or founded on an account, neither in the technical nor popular acceptation of the term.

If then the magistrate had not jurisdiction of the case and the evidence did not consequently support that form of action, it follows that the verdict for the plaintiff in error was correct, and that the court below erred in setting it aside and granting a new trial.

The judgment must be reversed with costs and the cause be remanded for a judgment to be entered upon the first verdict.  