#### Lovett Bell v. Thomas Ballance,

From Beaufort.

Goods were sold to be paid for in notes, the vendee agreeing to take them back if not good. It was held,

1st. That (he insolvency of' the payers authorised tiie vendor to return them immediately, and that upon tender and refusal, he was remitted to his contract for goods sold.

:Id. That a Justice of the Peace had jurisdiction, notwithstanding the guarantee.

oil. Th it tiie tender was good, although the vendor had parted with , the notes, and got possession of them solely for the purpose of making the tender, under an engagement to return them again.

This was a warrant, in which *i(*ilie sum of twenty-five dollars due by account, to his damage ten dollars” was claimed by the Plaintiff.

On (he trial, it appeared that one *Bishop,*as agent for tiie Plaintiff, sold to the Defendant a rifle, for twenty-five dollars, wlio paid for il in a note made by *John Warner, Joseph Warner,*and *Anthony Oneal,*payable to one *Farris,*and also in a judgment against one *Robert McKay,*and agreed to take them hack in case they could not be collected, and.cither return the rifle or pay the Plaintiff twenty-five dollars. It was proved that at the time of the bargain, both the *Warners*were dead, and their estates insolvent — that *Oneal*had moved away, and had not been heard of for some years — and that *McKay*was entirely insolvent. One *Carrouo*proved a tender of the *392r)0fes and judgment by the Plaint'ff to the Defendant, bc-fore the warrant was issued, when the Defendant refused to take them, affirming that he had dealt with *Bishop,*and jia(j no||1¡„g to say to the Plaintiff. Another witness, one Colson, proved tliat the Plaintiff had passed the judgment against *McKay*to Iffm — that it was in his possession the day tiie tender was made, and that the Plaintiff, on that day, applied to him for it, and upon receiving it gave him an acknowledgement binding himself to return it to him.

His honor Judge Donnei/l charged the Jury, that in order to entitle the Plaintiff to recover, he must either demand payment of the parties to the note and judgment, or show a reasonable cause to excuse it, and that lie must also prove a tender of the notes and judgment to the Defendant. His honor informed the Jury that the death, or insolvency of the parties to the note and judgment, was a sufficient reason for not applying to them ; and that if they believed the witness *Carrow,*a sufficient tender in law had been made by the Plaintiff, and it was a matter of indifference in what relation the Plaintiff stood to tiie witness *Colson,*or what were his liabilities to him. provided he had the note and judgment ready to deliver to the Defendant, if lie would accept them.

A verdict was returned for the Plaintiff, and the Counsel for (he Defendant moved for a new trial, on the ground of misdirection; which being refused, a motion was then made in arrest of judgment, the subject matter of the suit not being within the jurisdiction of a single Justice of the Peace ; which being refused, and judgment rendered upon the verdict, the Defendant appealed.

*Hogg,*for the Defendant,

cited *Parker*v. *Elding,*(l *East. 353*— Dwyer v. *Cutler, Ante 312*— Whitlock v. *Van JVess,*9 *Johns. Rep. 409*— Read v. *Cook and Caldwell,*15 *Johns. Rep. 241*— Pierce v. *Drake, Do.*475.)

*Gaston,*contra,

referred to *Read*v. *Goldring.*(2 *Manic and tielwyn,*85.)

*393Taylor, Chief-Justice.

The warrant in this case stafes a demand, which in amount, is within the jurisdiction of a magistrate, and this ought to appear in every case ; but if upon the evidence, the subject matter is shown to be without his jurisdiction, the objection" may be availed of at any time. The objections raised to the Plaintiff’s recovery arc, that his action for tire sale of the rifle is extinguished, and his remedy is on the undertaking to take back the notes. I apprehend the rule to be, that where a particular mode of payment is agreed on, which is not complied with, the Plaintiffs may sue on tire original contract of sale, after the term of credit expired; as in the case of *Brooke*and other s against *While*— there goods were sold on two months credit, to be paid for by a bill at twelve months; and th<* goods not being paid for after the expiration of fourteen months, the vendor recovered in an action for goods sold and delivered.— Ii was insisted in that ease, that the Plaintiffs ought to have declared upon a special contract, for not having given tho bill agreed upon ; for that where any thing is agreed to be done besides tire mere payment of money, the contract is not a sale, but a special agreement. But tin Court said, that if the bill be not given, he may bring an action on the special contract, because lie is d<prived of the particular security agreed upon; but when the Whole time is expired, and no bill lias been given, lie may bring an action for the money which is then due. After the expiration of the period of credit, it is of no use to give the bill, for the party is then entitled to receive bis money. (1 JV*. *Rep.*330.) The qualified mode of payment being introduced for the benefit of the purchaser, w Idle the contract is executory, an action must be brought- on the special agreement; when it i« executed, an action may be brought for the price of the goods. I understand the substance of the contract between these parties to have been, that the Defendant bought a rifle from the Plaintiff for twenty-five dollars, for which he *394agreed to give him a no(e of *Warner’s*and *Oneal’s*originally payable to Farris, together with a small judg-meat against *McKay.*These papers the Defendant pro-^¡ggj †0 (ajie haCk if they were not good, and restore the rifle or pay the money. Whenever therefore, the Plaintiff was able to show that the ¡tapers were not good, he might tender them to the Defendant, and bring an action for the money. Some cases have been cited for the Defendant, to establish the point of extinguishment of the action for the price of the rifle *;*but on a careful examination of them, they all appear to me to be decided on a distinct ground. The case of *Whitlock*v. *Van Ness,*(9 *Johns.*409,) presented tiie question, whether the seller of a horse, agreeing to receive the note of a third person payable in six-months for the price, and the note not being paid, can recover against the purchaser. It was decided that he. could not, because the circumstances of the case show, that the seller considered himself as taking the note at his own risk, and the purchaser not endorsing it or guarantying it, clearly declined pledging his own responsibility. The opinion given is entirely consistent with the Plaintiff’s right to recover on the original sale, if the note liad been taken at the risk of the purchaser, and had not been paid. The case of *Breed*v. *Cook*& *Caldwell,*turns on the same principles, and shows that if on the sale of the goods, the vendee delivers to the vendor the promissory note of a third person, which he refuses to endorse, it is to be considered as payment, and the vendor cannot afterwards resort to the vendee, unless the note was forged, or there was fraud or misrepresentation on his part, as to tiie solvency of the maker. (15 *Johns.*241.) The only question in the case was whether the note was a payment, and it being held to be so, the contract of course was at an end ; no action of any kind could be brought. But if the note had not been a payment, the Plaintiffs might have recovered for the property sold. The other case cited of *Pierce*v. *Drake.**395(15 Johns. 475,) proves only that if the vendor of goods is induced to take the promissory note of a third person as a payment, by a fraudulent representation of the sol-veney of that person, the note is no satisfaction,'and he may maintain an action against the purchaser, for the price of the goods. If the Plaintiff in this case had taken the note and judgment at his own risk, this action would not have been sustainable, for the contract then would have been extinguished by performance.

The magistrate then had jurisdiction of the claim, and the nature of the enquiries necessary to be entered into, as a defence to the claim, cannot oust that jurisdiction. For though it has been held, and I think riglCly, that the act giving jurisdiction to the magistrates excludes cases, which sound in damages for the bread) of a special .agreement, yet if they have the jurisdiction of the principal subject of tiie cause, it must draw after it the incidental matters of defence. A different principle would lead to the grossest injustice, by giving to Plaintiffs, advantage,s which they'won Id not have, if they liad brought a suit. In this view, the Defendant could not set off a judgment recovered in Court, against a debt claimed by warrant, because the Justice could not take cognizance, of a sum so large. Or suppose the parties had submitted all matters in dispute to arbitration, and the submission was by bond,'the penalty of which exceeded the magistrate’s jurisdiction, if the award had found a sum due to the Defendant, after crediting tise Plaintiff’s account it would be unjust to allow the Plaintiff to recover in the face of the award. On this part of the case, nothing can be added to what was said by Judge Henderson, in the *State*v. *Alexander.*“ If it be admitted, that the Justice has jurisdiction over Ibis case, lie must of necessity, have power of examining every question which would form a defence.” (4 *Hawks,*186).

As to the charge of the Court, on the subject of diligence, it appears to me to have been highly favorable to *396the Defendant, and requiring more from the Plaintiff, than the circumstances of the case, duly considered, could, warrant. The Defendant agreed to lake the papers back if they were not good, and as two of the parties to the note were certainly dead, and the other probably so, or had removed away — the party to the judgment insolvent, as well as the parties to the note when if was given, it would have been sufficient to have ascertained these, facts by'a proper enquiry, and then to have relumed the papers in a much shorter time than the Plaintiff took. No injury or loss could arise to the Defendant by Hie act of the Plaintiff, for the papers were of no value, when he received them.

In relation to that part of the charge, which is connected with the alleged tender, and the law arising from *Carrow’s*evidence *;*I think it was correct, since the Defendant disavowed having any thing to do with the Plaintiff, when asked to take hack the papers. The case of *Read*v. *Goldring,*(2 *M.*& *S.*85,) is much in point. Nor can 1 perceive any incorrectness in the* tender of the judgment, if made, and this the Jury, have decided upon, for it was authorized by *Colson*delivering it to the Plaintiffs. I am of opinion that the judgment should be affirmed.

Per Curiam. — Judgment affirmed.