Winston v. Majors ( 1844 )

GOLDTHWAITE, J.

It is said in the books that assumpsit is the appropriate remedy to recover money promised to be paid in instalments, when the whole debt is not due. [2 Saund. 303, n. 6.j

It has also been decided, that an action of debt cannot be maintained on a promissory note payable by instalments, until the last day of payment be passed. [Rudder v. Price, 1 Hen. Black. 547.] The present case is riot open to the technical objection, that the statement of the cause of action is in debt rather than assumpsit, because the suit was commenced before a justice of the peace; and, therefore, in the circuit court, the plaintiff was entitled to recover according to his right. The instalment of the debt due when the action was commenced, was less than fifty dollars; consequently the justice, and through him the circuit court, had jurisdiction without reference to the form of the statement. But that, if referred to, is as much in assumpsit as debt; and the defendants here pleaded non-assumpsit to it. We consider the action of the court erroneous in arresting the suit from the jury and dismissing it.

Judgment reversed, and cause remanded.