6 Ala. 659 | Ala. | 1844
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 state
Judgment reversed, and cause remanded.
