
    [Pittsburg,
    October 1, 1824.]
    WILSON against LONG.
    IN ERROR.
    No contract arises upon a devastavit, which will support an action against the executor, personally.
    A devastavit is not a trespass, within the meaning of the act of the 22d of March, 1814, giving jurisdiction to justices of the peace, in cases of trespass for the recovery of damages for an injury done or committed on real and personal estate. A justice of the peace has no jurisdiction of an action founded on the judgment of a court of record.
    No.contract, express or implied, arises between the executor and a legatee of the testator.
    Error to the Common Pleas of Washington county.
    The defendant in error, Joseph Long,
    
    brought this suit before a justice of the peace, against Joseph Wilson, the plaintiff in error, and obtained .a judgment for seventy-five dollars thirty-eight cents; from which the defendant entered an appeal to the Court of Common Pleas. The cause was arbitrated, and an award filed in favour of the plaintiff for ninety-live dollars, with the costs of suit. ' A motion was made in the court below, in arrest of judgment, on the ground that no promise was set forth in the declaration, and that the magistrate had no jurisdiction of the subject matter.
    The substantial parts of the'declaration were as follows — i( That whereas the aforesaid Joseph Long, at another time; to wit, in the term of --in the year one thousand eight hundred and twenty-two, in the court here, to wit, in the borough of Washington aforesaid, by the consideration of the same court, had recovered against the said Joseph Wilson, executor of Charles Lysle,. the sum of fifty-two dollars and thirty-eight cents, for his costs and charges, by him laid out and expended in defending a suit brought against him by the said Joseph Wilson, whereof the said Joseph, executor as aforesaid, is convict, as appears of record and process in the said court at Washington aforesaid; and whereas also the said Joseph Wilson, on the same day and year, was indebted to the said Joseph Long in another sum of money; to wit, the sum of sixteen dollars of the like lawful money, which debt accrued and became due to the said Joseph Long, as, one of the heirs of the said Charles Lysle, deceased, and which the said Joseph Wihcn, in his capacity of executor aforesaid, was bound to pay; and whereas also the said Joseph Wilson, executor as aforesaid, was indebted on the same day and year in another sum of money; to wit, the sum of six dollars of the like lawful money, and divers sums of money, by him the said Joseph Wilson, executor as aforesaid, before that time had and received to and for the use of the said Joseph Long, which several debts, amount in the whole to the sum of seventy-five dollars and thirty-eight cents: And whereas, after-wards, before the bringing of this suit; to wit, the same day and year, divers goods and chattels and money, which were of the said Charles Lysle at the time of his death, to the value of the debts aforesaid, to the hands of the said Joseph Wilson, executor as aforesaid, came to be administered, which same goods and chattels, the said Joseph Wilson afterwards, and before the bringing of this suit, the same day and year and place last aforesaid, did waste and eloign, and to his own proper use did convert and dispose, whereby action accrued to the said Josoph Long, to require and have the debts aforesaid, amounting in the whole, to the aforesaid sum of seventy-five dollars and thirty-eight cents. Nevertheless,” &c.
    The court below overruled the motion in arrest of judgment, and the cause was removed, by a writ of error, to this court,
    where it was argued by Brackenridge, for the plaintiff in error, and Kenny, for the defendant in error.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an action brought originally by Long against Wilson, before a justice of the peace, who gave judgment for the plaintiff for seventy-five dollars and thirty-eight cents.. The defendant appealed to the Court of Common Pleas, where the cause was submitted to arbitrators, who made an award in favour of the plaintiff, for ninety-five dollars, and the costs of suit. The question is, Whether the justice of the peace had jurisdiction ? By the act of the 20th of March, 1810, justices have jurisdiction “of all causes of action arising from contract, express or implied, where the sum demanded is not above one hundred dollars, except in cases of real contract, where the title to lands or tenements may come in question, or actions upon promise of marriage.” By the act of the 22d of March, 1814, (sect. 6,) they have jurisdiction “of all cases of rent, not exceeding one hundred dollars.” And, by the same act, (sect. 1,) their jurisdiction is extended to “ actions of trover and conversion, and actions of trespass, brought for recovery of damages, for an injury done or committed on real and personal estate, in all cases where the value of the property claimed, or the damages alleged to have been sustained, shall not exceed one hundred dollars.” Let us see, now, what was the cause of action in the present case. The declaration sets forth, a demand of the plain tiff against the defendant, as executor of Charles Lysle, deceased, for three several sums of money; one of which was recovered by the plaintiff against the defendant, by judgment of the Court of Common Pleas; another was due to the plaintiff as one of the heirs of the said Charles Lysle, and the third, was received by the defendant, as executor of the said Lysle, for the use of the plaintiff. The declaration states, that the defendant had assets of Lysle in his hands, sufficient to pay all these debts, which he wasted; whereby action accrued to the plaintiff, to have and recover of the defendant, the whole aggregate of his three demands. No assumption, or contract of any kind, is averred. It is an action founded on the devastavit of the defendant, as executor of Charles Lysle, whereby he became personally liable to the plaintiff No contract, express or implied, arises on a devastavit. Neither is a devastavit a trespass within the meaning of the act of the ,22d of March, 1814. The trespasses there spoken of, are vi el armis, against real or personal property. Besides, if we analyze the plaintiff's three demands, it will be found, that not more than one of them falls within the jurisdiction of a justice. No contract arises on a judgment of a court of record. On foreign judgments there is an implied assumption, but they are not debts of record. There would be a great inconvenience and impropriety, in carrying into effect, by justices of the peace, the judgments of our own courts of record. Neither does any contract, express or implied, arise, between the executor and a legatee of the testator. No action at common law, lies for the recovery of a legacy, unless the executor expressly promises to pay it. But a remedy is given to the legatee, by the act of assembly. It appears, therefore, that the cause of action in the case before us, neither in its separate parts, nor in the aggregate, was within the jurisdiction of the justice. Consequently, it is the opinion of the court, that the judgment should be reversed.

Judgment reversed.  