TERM, 1852.]

Bank of the State vs. Steen et al.

the allegations of the replications. Issues were made up to the other pleas.

The plaintiff filed a petition for discovery, alleging that defendant, Jeremiah Webb, by his plea of nil debet, had put the execution of the note sued on, by him, in issue. That, upon the face of the note, it appeared that the said Jeremiah executed it by making his mark, which was witnessed by one Francis Morrow, who had left the country, and was reported to be dead, and plaintiff was unable to prove his hand-writing. That plaintiff could not prove the execution of the note by the said Jeremiah, except by a discovery from the defendants. Interrogatories were propounded to defendants in reference to the execution of the note by said Jeremiah, and an order prayed that they be compelled to answer them. The petition was verified.

The plaintiff had filed a similar petition at a previous term of the court, to which the court sustained a demurrer.

The defendants filed a motion to strike out the above petition, on the ground that it was filed out of time; which motion the court overruled, but refused to make an order for defendants to answer, and plaintiff excepted.

A jury was empanneled, and the issues submitted to them.

The plaintiff read in evidence a petition in debt, filed by her against the defendants, on the same cause of action, in the same court, on the 27th June, 1847.

The petition is in the usual form, sets out the note, and demands judgment for the debt, damages for its detention, &c. The plaintiff then offered to read in evidence the following writ:

The State of Arkansas, to the sheriff of Jackson county—GREETING: You are hereby commanded to summon William Steen, John H. T. Webb, and Jeremiah Webb, if they be found within your county, to be and appear before the judge of our circuit court, at a court to be begun and held at the court house in the town of Elizabeth, in said county of Jackson, on the third Monday af

Bank of the State vs. Steen et al.

(JANUARY ter the fourth Monday in October, 1847, then and there to answer unto the Bank of the State of Arkansas of a plea of trespass on the case on promises to her of eight hundred and eighty-eight dollars, together with damages, and have you then and there this writ, with your proceedings thereon. In testimony whereof," &c.; attested by the clerk in the usual form, 28th June, 1847, and sealed with the seal of the court. Upon which was endorsed the sheriff's return of service upon the defendants, 13th July, 1847. The defendants objected to the introduction of the writ as evidence, and the court excluded it.

Plaintiff then offered to read in evidence a record entry, showing that she dismissed said suit in vacation, on the 12th day of March, 1849, which the court excluded.

Plaintiff excepted to the decisions of the court excluding from the jury the writ and record evidence aforesaid.

Verdict and judgment for defendants, and writ of error by plaintiff.

S. H. HEMPSTEAD, for the plaintiff, cited State Bank v. Sherrill, 6 Eng. 334; State Bank v. Magness, 6 Eng. 343, as to the error of the court in rejecting the writ as evidence; and sec. 93, p. 810, Digest, Story's Eq. Pl., sec. 311, as to the right of the plaintiff to discovery.

Mr. Justice ScoTT delivered the opinion of the Court.

The objection to the reading of the writ in evidence has been heretofore disallowed, (State Bank v. Sherrill, 6 Eng. 334; same v. Magness, ib. 343:) its reading ought to have been allowed. The court also erred in denying the prayer for discovery under the statute, (Dig. p. 810, scc. 93.)

Let the judgment be reversed, and the cause be remanded to be proceeded with.

TERM, 1852.]

Bank of the State vs. Gray et al.

BANK OF THE STATE VS. GRAY ET AL.

Where a replication of part payment to a plea of limitation shows, on its face, that the full period of limitation elapsed between the time of the part payment and the commencement of the suit, it is no answer to the plea, and is bad on demurrer.

Appeal from Pulaski Circuit Court.

S. H. HEMPSTEAD, for the plaintiff.

Mr. Justice WALKER delivered the opinion of the Court. This was an action of debt by the Bank of the State, on a promissory note. The defendants plead the statute bar of three years limitation. The plaintiff replied part payment,

in confession and avoidance. The defendants demurred, and the question is, is this replication sufficient? The bare statement of the facts will show that it is not. The note sued on fell due the 1st of April, 1844: the suit was brought on the 18th of February, 1848: the replication set forth a payment made on the 15th of April, 1844: so that between the time of this payment and the commencement of the action, more than three years had elapsed. There was certainly no error in the decision of the circuit court in sustaining the demurrer to the plaintiff's replication. Let the judgment be affirmed.

Howell vs. Milligan.

[ JANUARY

HOWELL VS. MILLIGAN.

The principal and interest of a covenant for the payment of "ninety-five dollars in good paper currency at par, bearing ten per cent. interest," constitute the "amount claimed" within the meaning of the amendment to the Constitution, giving justices of the peace jurisdiction of covenants, and the act passed in pursuance thereof, (sec. 3, chap. 95, Dig.,) and the principal and interest amounting to more than one hundred dollars, the covenant is not within the jurisdiction of a justice of the peace, a judgment thereon before one is void, and furnishes no protection to party or officer executing it.

Covenant sounding in damages, the damages are made up of the debt and interest, and the justice could not acquire jurisdiction of such instrument by dividing his judgment into debt and damages.

Appeal from Lawrence Circuit Court.

The facts are stated in the opinion of the court.

FAIRCHILD, for the appellant. The instrument set out in the pleas of justification, is a covenant. 175. Sims v. Whillock, 5 ib. 103. 263. Gregory v. Bewley, ib. 320.

30.

Dillard v. Evans, 4 Ark. Fortenbury v. Tunstall, ib. Campbell v. Weisterr, 1 Litt. And as the amount claimed

Chambers v. George, 5 Litt. 335. in the suit before the justice exceeded the sum of one hundred dollars, (Amend. Const. 3, Dig. 71; 640 sec. 8; 3 Ark. 261; 4 ib. 518; 5 Eng. 332; 2 Ark. 169, 392; 1 Bibb 342, 402; 2 Eng. 262; 3 ib. 414,) the justice of the peace had no jurisdiction; and the facts set up in the plea are no justification to the defendant. Ch. Pl., (8 Am. Ed.) 182. 2 Wils. 382. 12 J. R. 257. 19 ib. 7,39. 11 ib. 444. 15 ib. 141. 5 B. Mon. 112. 2 John. Cases 28, 51. 3 Eng. 406.

BYERS & PATTERSON, contra.

1

Mr. Justice WALKER delivered the opinion of the Court.

This was an action of trespass for taking and converting the goods of the plaintiff. The defendant attempted to justify the taking under process from a justice of the peace. The pleas are formal, but the objection urged on demurrer is that the cause of action, on which the action before the justice was brought and on which judgment was rendered, was a matter of contract where the sum claimed exceeded one hundred dollars. The defendant admits that, if this be true, his defence is not good, but he insists that the amount claimed does not exceed one hundred dollars. So that the only question at issue is the true amount claimed. It appears from the pleading (and the facts are admitted by demurrer) that the suit before the justice was instituted on the following instrument: "On or before the 1st of January, 1843, I promise to pay Solomon Hudspeth ninety-five dollars in good paper currency at par, bearing ten per cent. from date till paid, for value received from him. Witness my hand and seal, this 1st day of January, 1842. (Signed,) Andrew Howell, [seal.]" On the 28th December, 1846, the defendant made an affidavit before the justice upon which a writ of attachment issued, in which he stated on oath that, as administrator of the estate of Hudspeth, the plaintiff was indebted to him the sum of seventyeight dollars, twelve and one-half cents, the principal of a note of hand, with interest at the rate of ten per cent. from the date of the note. It further appears that a writ of attachment issued on said covenant, and on the affidavit aforesaid, and that thereafter the justice rendered judgment that the "plaintiff recover of the defendant the sum of seventy-eight dollars, twelve and a half cents, his debt, and the further sum of thirty-nine dollars and eighty-six cents his damages, for the detention thereof."

With these facts before us, the question is, what was the "amount claimed" by the plaintiff in that suit?

The instrument sued upon was clearly a covenant, and the judgment should have been rendered in damages. The fact that the justice elected to call it debt, and to divide his judgment into two sums, one of which he described as debt and the other as