
    Couger vs. Lancaster.
    When a mortgage deed recited that the defendant “was indebted” to the plaintiff in the sum of eighty-nine dollars twenty-two cents, which should have been paid on the 1st day of January theretofore: Held, that this was a covenant to pay money, and that an action of debt would lie thereon; and that a justice of the peace had jurisdiction to try the same.
    This was a suit instituted before a justice of the peace on a covenant contained in a mortgage deed. To the covenant sued on before the justice, Couger, the debtor, and plaintiff in error here, Thomas Lancaster, the creditor and defendant in error here, and Samuel Lancaster, the trustee in said mortgage, are parties, the three having executed the mortgage deed. Said deed recites- that Cou-ger was then indebted to Thomas Lancaster in the sum of eighty-nine dollars twenty-two cents, which should have been paid on the first January theretofore. “JNTow should the said J. B.'Couger well and truly pay and satisfy the debt when called on for the same, then the deed of trust to be void, otherwise to remain in full force. And in case the debt was not punctually paid, Samuel Lancaster,, the trustee, might sell the property mortgaged.” The debt was not paid, nor did the trustee proceed against the property,, but the creditor sued Couger, the debtor, before a justice of the peace and recovered the debt. The court charged the jury that the covenant contained in the mortgage deed would be sufficient to give the justice who tried the cause jurisdiction to give judgment. The jury returned a verdict for the plaintiff. The defendant moved for a new trial, and the same being overruled, prosecuted a writ of error to this court.
    A. B. Bradford, for plaintiff in error.
    1st. The court erred in not instructing the jury, (there being no other testimony,) that said deed of trust or paper writing was not such an instrument as would give the justice of the peace below authority whereon to found a judgment.
    The act of 1809, ch. 54, gives jurisdiction “where the balance is due on any specialty, note or agreement signed by the party, or on a settled account signed by the parties,” clearly making the instrument the ground or the foundation of the action. Laws of Tennessee, 202: see 4 Haywood’s Reports, 188, Graham and Click vs. Ira Green.
    2d. It does not appear that there was any action by the trustee upon the property, and this must be shown by plaintiff below, Lancaster, before he can sue or proceed upon the deed itself.
    
      P. M. Miller, for defendant in error.
   Catron, Ch. J.

delivered the opinion of the court.

The only question is, had the justice who tried the cause jurisdiction? We think the deed contained a covenant to pay Thomas Lancaster the money, as well as a lien on Couger’s property, and no reason exists why the creditor could not sue in debt upon it, the same as if he had taken a separate bond for the money. Took vs. Hartly, 2 Bro. C. R. 126.

Judgment affirmed.  