McCormick v. Robinson

1 Chand. 254 | Wis. | 1849

JacksoN, J.

This was an action of assumpsit, originally instituted by the defendant in error, before a justice of the peace, to recover upon a negotiable promissory note, in these words :

“ White Oak SrriNGS, March 15, 1847.

“ On or before the first day of June next, 3 promise to pay James E. Davis, or bearer, the sum of fifty dollars.

“ Math’w McCormick.”

Upon the back of which note was the following indorsment:

“ Received on the within, by turn with Delatour, and agreement with McCormick, four 75-100 dollars.

(Endorsed) “ James L. Davis.

“ May 27, 1847.”

The only question in this cause is, whether a-plaintiff can, by indorsement, reduce a promissory note to a sum less than fifty dollars, and thus give a justice of the peace jurisdiction.

The 9th section (5f the organic law of the territory of Wisconsin (page 25, Rev. Stat.), declares that justices of the peace shall not have j nrisdiction of any matter of controversy, where the title or boundaries to land may be in dispute, or where the debt or sum claimed exceeds fifty dollars.

Under a fair construction of the latter provision of this section, did the “ debt or sum claimed” by the defendant in error, exceed the jurisdiction of the justice ?

The note sued upon, without the indorsement, would have beyond the justice’s jurisdiction ; but the indorsement upon the back of the note, acknowledging the payment upon it of $4.75, reduced the “ debt or sum claimed ” by the defendant in error below fifty dollars.

Had the plaintiff in error a right to inquire into the purpose of that indorsement, in order to ascertain whether the amount indorsed had actually been paid to the defendant in error, or whether it was a mere voluntary relinquishment by him of a part of his debt or claim ?

hr either case, whether the amount of $4.75 had actually been paid upon the note, or whether that sum was voluntarily relinquished by the holder of it, there was no “ debt or sum claimed ” exceeding fifty dollars, requiring to be investigated. If not, there can be no doubt that the justice had jurisdiction.

This is not the case of an open and unsettled account for an amount exceeding fifty dollars, where, although credits are given, which, if allowed, would reduce the sum claimed below fifty dollars, yet no balance having been agreed upon between the parties, the trial would involve an investigation of the whole account.

A party might, in such a case, by leaving out a part of the items of his account, bring his demand within the requisite limit; but he must then lose the portion omitted, as he cannot make it the subject of a separate suit.

Judgment below .affirmed.