
    Simonds v. Colvert and Others, Executors.
    The jurisdiction of justices of the peace does nqt extend to cases, in which an executor or administrator is either plaintiff or defendant.
    ERROR to the Sullivan Circuit Court.
    
      Monday, November 7.
   M‘Kinney, J.

An action of debt was brought against the defendants as executors of Robert Colverl, deceased, before a justice of the peace. The case was submitted to a jury, and they found for the defendants. The plaintiff appealed to the Circuit Court, and on motion of the defendants, the case was dismissed on the ground of want of jurisdiction.

The question before us is, has a justice of the peace jurisdiction in a case in which an executor is defendant? This is an important question. We approach it with a consciousness that its settlement will be sensibly felt, in the adjustment of claims within the jurisdiction of a justice of the peace, growing out of contracts in the representative character. We have given the subject every attention, anxiously seeking, by analogy and precedent, a means of arriving at a proper conclusion. The jurisdiction of a justice of the peace, in civil actions, is unknown to the common law. Such jurisdiction is given alone by statute. When a statute creates a new jurisdiction, the fixed rules of construction denies, to such jurisdiction, the exercise of a power not directly given. It cannot overstep the provisions of the statute by which it is created, and enlarge itself by inference or implication.

Judah, for the plaintiff.

Kinney, for the defendants.

We have examined the acts regulating the jurisdiction of justices of the peace, and find no provision which gives a justice of the peace jurisdiction, in a case in which an executor or administrator is either plaintiff or defendant. The provisions of the statute, in authorising process to issue, and directing the manner of rendering judgments, regard the parties litigant as acting in their own rights and not in auter droit The case of Wells v. Newkirk, Executor of Pierson, 1 Johns. Cases, 228, is in point. The Supreme Court of New-York, in that case, in deciding against the jurisdiction of justices of the peace, by inference or implication, where an executor was either plaintiff or defendant, present reasons which irresistibly apply to such jurisdiction in this state. Our statute applies to cases, in which a suit is prosecuted or defended in a party’s own right, and not in auter droit. Process and judgment arc predicated upon individual responsibility: no exception as to arrest on warrant, or limitation of the operation of a judgment. Execution issues against a defendant personally, or against his individual property. Defences which are incident to the representative character, are precluded before a justice of the peace without legislative enactment. The plea of plene adminisiravit, or of outstanding debts, may putin issue an amount greatly exceeding the jurisdiction of justices of the peace, and, if acted upon, require an examination of the whole administration. No judgment can be rendered for assets in futuro, nor against the property of the testator. Such are some of the grounds upon which the decision in New-York is founded. They apply to the case before us. The judgment of the Circuit Court must be affirmed .

Per Curiam.

The judgment is affirmed with costs. 
      
       Justices of the peace have now, by statute, the same jurisdiction in all cAse 
        where executors, administrators, or guardians, are plaintiffs, that they would have, were those persons suing in their own right. But if the defendant, in such a case, plead any matter of payment, &c,, the plaintiff may have the cause removed to the Probate Court. Vide Stat. 1832, p. 251; 1833, p. 109; 1834, p. 157.
     