23 Tenn. 108 | Tenn. | 1843
delivered the opinion of the court.
This action was commenced before a Justice of the Peace; the defendant was summoned to answer in a plea of assumpsit, under fifty dollars. Upon the trial in the Circuit Court, it appeared that the defendant, Burton, .was indebted to one Wm. Edmonson in the sum of fifty-one dollars; that he requested the plaintiff, Carraway, to pay the amount to him- in bacon, which was done; and this constituted the subject matter of controversy. The court charged the jury, that a Justice of the Peace had no jurisdiction of the -case, and could, therefore, give no judgment on it; and they must find for the defendant; which they did, and judgment was given accordingly; to reverse which this writ of error is prosecuted. Is this charge correct? It is argued that it is; that the contract and promise is an entire thing, not capable of being severed; and'being for an amount beyond the jurisdiction of a Justice of the Peace, the action brought thereon is coram non judice, and not maintainable. That a contract is an entire thing, and that the plaintiff will not be permitted to vex the defendant by splitting it, and instituting separate suits thereon, is too well settled, both upon reason and authority, to admit of controversy. Smith vs. Jones, 15 Johnson Rep. 229: Farmington vs. Smith & Payne, ibid, 432. But is this principle applicable to the case under consideration? We think not. The plaintiff’s claim has not been split, and separate suits instituted thereon; but the action has been brought for less than he might have demanded upon his contract.. And the question is whether this course of proceeding is sustainable. In special actions of assumpsit upon executory contracts, the contract must be set forth in the declaration as it exists, or there will be a variance between the contract as described and proven, which is fatal upon demurrer, if the variance appear of record, and by non-suit, if it appear in proof. But this principle is not applicable to actions of debt and indebitatus assumpsit upon
The charge of the Circuit Judge, then, in the case under consideration, non-suiting the plaintiff is erroneous, and the judgment will be reversed, and the case remanded for a new trial.