Witherly v. Morgan

2 N.J.L. 83 | N.J. | 1806

Lead Opinion

Kirkpatrick, C. J.

— This appears by the record to be an action on the case brought by the plaintiff for fifty dollars, which he had overpaid to the defendant, on certain executions in his hands against him, as a constable.

This money, if due at all, is due on what is called an assumpsit, or contract, implied in law. And these contracts, raised by implication of law upon the equity of the case, as well as all express contracts, whether written or unwritten, not under seal, are called simple contracts, in contradistinction to those that are under seal.

Now, by the act of March 1, 1804,1 commonly called Cooper’s Act, it is provided that all suits before justices of the peace, founded on simple contraéis for the payment of money, shall be in the name and style of actions of debt and not otherwise. However just the judgment in itself, therefore, the act for reasons not easily to be discerned, has changed the law in this respect, and prescribed a new form of action. We must see that that form is strictly pursued. In my opinion let the judgment be reversed.

Rossell, J. — Concurred.

So, in Rev. 643.



Concurrence Opinion

Pennington, J.

— I concur in reversing the judgment. This is an action on simple contract, brought [*] otherwise that an action of debt, and therefore, against the express letter of the act of Assembly.

Judgment reversed.

Cited in Little v. Gibbs, 1 South. 211; Sayres v. Inhabitants, 3 Halst. 166.