
    William Van Horn against Francis Hamilton.
    on certiorari.
    St5te.of maud, msurn-
    
      00nceimcT
      
    
    RYERSON for plaintiff.
    
      
      
        Sayres vs. Springfield, 3 Hal. 168.
      
    
   Opinion of the court.

Southard J.

The summons is, “to answer Francis Hamilton, and shew cause, if any you have, why a tain execution against said Francis, in the hands of William Hoppough, constable, in your favour, issued by Zebulon Sutton, esqr., for 88 dollars, 41 cents, debt, and the costs, why they shall not be receipted, hereof fail not,” &c.

On the return day of the summons, the defendant did not appear, but the plaintiff filed his state of demand and proceeded to offer his evidence; and the justice gave judgment for 29 dollars, 67 cents, debt, with 1 dollar, 8 cents, costs.

The state of demand filed, complains, “ that the de fendant, Van Horn, had one certain execution in his favour, against the plaintiff, in the hands of William Hoppough, constable, issued by Zebulon Sutton, esqr., amount 83 dollars, 41 cents, debt, besides the costs on the same, which you agreed should be receipted, on condition that the plaintiff should give up to you a certain judgment in his favour, against William Fountain, on the docket of Benjamin Hamilton, esqr., of about 29 dollars, and pay the balance in cash; then the said execution, against said plaintiff, in the hands of William Hoppough, constable, was to be receipted; *all which the said plaintiff avers he has done on his part, and the defendant hath refused, and still doth refuse to receipt said execution, according to his agreement, to the damage of the plaintiff, 50 dollars.”

1. If upon this state of demand, the plaintiff has any claim, he cannot support it in an action of debt. He must recover the damages he has sustained, in an action on the case, for a breach of the contract. Debt, even in the Court for the trial of Small Causes, cannot be brought, except upon “ a bond or other specialty, note of hand, bill of exchange, book account, or other demand, founded on simple contract for the payment of money only.” This is not such a contract. But

2. Although the justice, in his docket, has called it an action of debt,” yet the summons is not in debt. It is not, indeed, a summons in any form or style of action with which I am acquainted ; and is altogether informal and irregular.

In my opinion, the judgment must be reversed.  