#### State *v*. Alexander.

From Wilkes.

Where iron was left with one for a certain purpose, who after using part retained the remainder to his own use, a warrant cannot be brought, before a single magistrate, to recover the value of the iron retained: the act allowing warrants “for specific articles, whether due by obligation, note or assumpsit,” does not embrace this case,

Perjury cannot, therefore, be committed on the trial of the warrant before the magistrate.

This was an indictment against the defendant for per-, jury, alleged to have been committed on the trial of a warrant by a magistrate. The defendant, on the trial below, before Nash, Judge, was convicted, and moved for a new trial on the ground that the oath alleged to be false was *coram nonjudice,*as the warrant was void. The warrant was in these words:

You are hereby commanded to take the body of Randolph Alexander, if to be found in your county, and cause him to appear before some Justice of the Peace for said county, to answer the complaint of Jésse Gambill. in a plea of debt of 45 dollars,due by open account, and *4,*hundred weight of bar iron, herein fail not.

The Judge refused the new trial, and, from the sentence pronounced defendant appealed.

The case was argued by the *Attorney General*for the state.

Tayeor, Chief Justice.. —

The three acts of assembly first passed for the purpose of increasing the jurisdiction of single magistrates, all employ the same language, viz. “ debts and demands, where the balance due on any specialty, contract, note or agreement, or for goods, wares and merchandize sold and delivered, or for work and labor done.”

It must be a « debt and demand,” and there must be *tl*a balance due,” which necessarily confines it to those *183cases of express contract, where the sum due and the interest, must form the measure of the judgment. The utmost extent to which these words can confer a jurisdiction as to implied assumpsits, is to ascertain the value of labor, or the price of'goods, where none has been agreed upon between the parties, and there has been an express contract of sale, or work done under a like contract. *1777, ch.*115. 1785, *ch.*233. 1786, *ch.*253.

The next act adds to the words, « or for specific articles, whether due by obligation, note or assumpsit.” There must still be a balance due, and an express contract to deliver specific articles. This would add little to the difficulty of transacting the business, because the price of the article, when it was due, might be easily ascertained. 1794, *ch.*414.

But if we go beyond these limits, and extend the jurisdiction to all cases of implied assumpsit and special agreements, where the sum sought to be recovered is not a balance clue, but damages for the non-performance of an agreement, I apprehend W'e shall not only misconceive the views of the legislature, but charge magistrates with a duty, which but a small proportion of them is competent to discharge.

If this case were within the jurisdiction of a single magistrate, the cause of action must be the non-performance of an agreement to make a proper application of iron left with *R. Mexander;*the sum recoverable would not be a balance due, but damages for the breach of the implied contract, of which the value of the iron Would not be the necessary standard; but if a jury were to try it, they would be at liberty to take into view any farther injury suffered by the plaintiff in consequence of the defendant’s failure. It is, therefore, plain to my understanding that no jurisdiction is given, but in those cases where there is a balance due, and where, also, that balance may be ascertained by a fixed, definite standard, furnished by the. parties when they made the contract.

*184Let it be considered for a moment, what a wide door of difficult, and, I may add, impracticable, jurisdiction, would be opened by a construction that should give to mílg¡strates cognizance of all cases of assumpsit, express or implied. A person who should estimate the damage he had sustained as not exceeding a hundred dollars» might warrant for a breach of promise of marriage, upon a contract of guaranty or indemnity, against an attorney or physician for neglect of duty, against carriers and bailees of eyery description, upon express and implied warranties as to the quality or title of a chattel sold, and upon many other cases, which, although sounding in' as-sumpsit, tiie ascertainment of what is due depends upon various nice and intricate points of law, whicli can scarcely be properly decided but by a jury aided by a Court.

This never could liaye been the intention of the legislature, nor will their language bear this construction, grammatically read; for “the balance due” restrains * debt and demand,” and connects itself with every item of the ensuing enumeration.

HendeRson, Judge —

If the Justice of the Peace be fore whom the false oath was taken had not jurisdiction of the matter then in controversy, the defendant is not guilty of perjury.

The defendant, *Willis Alexander,*was sworn as a witness on behalf of *Randolph Alexander,*the defendant in a warrant brought against the said *Randolph,*returnable before a single justice of the peace, out of Court, by *Jesse Gambill,*in a plea of debt of forty-five dollars due by Open account, and four hundred weight of bar iron, and among other things the said *Willis Alexander*déposed, that all the iron which had been brought, or received by the said *Randolph Alexander*of or on account of the said *Gambill,*had been worked up upon the wagon of the said Gambill. The indictment charges that the oath was ma*185terial, false and corrupt; that four hundred weight of iron had been delivered; that only fifty weight had been put on the plaintiff’s wagon; and that the defendant had con*'verted the balance to his own use.*The act of 180- declares that all *debts*and *demands*of thirty pounds and under, for a balance due on any specialty, contract, note or agreement, or for goods, wares and merchandize sold and delivered, or for work and labor done, or for specific articles, whether *due*by obligation, note or assumpsit, shall be cognizable and determinable by any one justice of the peace out of Court.

I will consider this case most favorably for the state, to wit, that the defendant in the warrant *axprcssly*pro, mised to return what was left of the iron after ironing the plaintiff’s wagon, for perhaps such was the fact.

The whole question depends on this, was this iron *due*from the defendant, *Randolph Alexander,*to the plaintiff in the warrant, within the meaning of that word in the act of 180-; was it a debt, was it an obligation or promise to pay? To pay, is to deliver to another that which belonged to the deliverer, and which delivery he was bound to make by some previous obligation; not the restoration to the owner of his own goods, and which had been out of his possession, or withheld from him. Property in the possession of a bailee is not *due*to the bailor; the bailee is not the *debtor,*but the trustee of the bailor until the trust is broken; the bailor has not a demand upon, or right of action against, the bailee; the possession of the bailee is the possession of the bailor. The whole phraseology of the act shows that the jurisdiction extends only to cases where there is an obligation to pay; as in the present case, if the defendant had promised to *pay*or *deliver,*that is, deliver as a *payment*four hundred weight of iron, there is no doubt but that the justice would have had jurisdiction; it would in such case be a debt. It is asked, where is the difference, in reason, between the cases? The difference lies, in the obligation. If this had *186been a promise to pay or- deliver 400 *lbs.*of iron, the ut-. most care on the part of the defendant to procure the iron, would not have absolved him from his obligation. Were j,e sh0w that he had sent to market to get the iron and none was to be had; or that, after getting it, it was lost, together with other iron of his own, in crossing a river; or that he was robbed, or that it was taken by the enemies of the state; this would be no defence, of course the justice would not be confided in to try them; he was only to examine into the demand and whether it had been satisfied, or such other defence as the defendant might have; but none involving the exertions of the defendant whether he had acted with good faith or fraudulently. For however willing we may be to permit a single individual pass on the question debt or no debt, payment or no payment, discharged or not discharged, we have evinced an unwillingness to submit to such individual the power of deciding on the right of property of *menm*and *tuum,*the amount of a single cent, or to say whether we have performed with good faith those personal obligations which we, by our contracts, have assumed. If it be admitted that the justice has jurisdiction over this case, he 'must of necessity have power of examining every question which would form a defence, and it must be extend-to all bailments, for it would be difficult to confine it the legislature to such cases where the defence was simple, as probably it was in this case; but the most complicated must also be included; no line can bo drawn. justice of the peace would have to decide upon the quantity of diligence which will protect, or the quantity negligence which will charge bailees of all descriptions, from the bearer for reward, to the carrier who receives no reward. I repeat it, we are and have been unwilling to permit any one man to say to us, you have been negligent, you have been fraudulent, you ought to resisted the robber, you were more careless of the rights of others than of your own-. All these questions *187might haye arisen in this case, for he was not bound to deliver the iron at all hazards, and the justice had not the right of passing on his justification or excuses, whatever they may have been. For these reasons I think that the expressions in the act, *for specific articles, whether due by obligation, note or assumpsit, do not embrace this case;*and that this want of jurisdiction appears upon the indictment; for unless it was a promise to restore to the plaintiff his own iron, the question whether the iron had been worked up upon the plaintiff’s wagon could not be material, that is, it would liaye offered no defence. I, therefore, think that the judgment should be arrested,.

Judge Hair assenting,

Judgment reversed.