Opinion
(June Term, 1835.)
Upon a covenant to pay sixty dollars annually, for two years, for the hire of a slave, and also to furnish the slave with food, c. debt may be brought before a single justice for one year's hire; and if the warrant call for that sum due by bond, it is well supported by the production of the covenant.
THIS was an action of DEBT commenced by warrant before a single magistrate, and carried by successive appeals to the Superior Court, where it was tried at Rutherford, on the last Fall Circuit before MARTIN, Judge. The warrant stated it to be a "plea of debt, the sum of sixty dollars, and due by bond." Upon the trial the plaintiff produced and proved a written contract in the words following, to wit: "Memorandum of agreement between Mary Hamilton of, c. of the one part, and Morris McCarty of, c. of the other part, witnesseth: Whereas the aforesaid Mary Hamilton, for and in consideration of certain sums of money herein after specified to be paid her, by the said McCarty — Do by these presents hire to the said McCarty a certain negro man named Cupid, for and during the full end and term of two years next ensuing, to commence from the date of these presents, to remain, serve and abide with him until the expiration of the said term, he complying with the articles herein after specified; and he the aforesaid Morris McCarty, on his part, for and in consideration of the services of said negro man Cupid, doth bind and obligate himself to pay unto the said Mary Hamilton or her assigns, the annual sum of sixty dollars lawful money, to be paid annually; and further to find and provide such negro man with good and sufficient food and drink during said term of two years; and also teach him to the best of his ability the art and trade of boot and shoe making. In testimony whereof the parties aforesaid have hereunto affixed their names and seals, this 1st day of Septr. 1827.
"Signed and sealed in Mary Hamilton, [L. S.] presence Morris McCarty, [L. S.]" Charles H. L. Schieflin."
The defendant's counsel moved to nonsuit the plaintiff upon the ground, that the action could not be sustained before a single justice, alleging that it should have been an action of covenant upon the sealed instrument. His Honor refused the motion; and under his instructions the jury returned a verdict for the plaintiff, and the defendant appealed.
No counsel appeared for either party.
— It seems to us that the plaintiff had her election either to bring an action of covenant in a Court of record, or debt before a justice for sixty dollars. This is not a bond for an entire debt payable by instalments. For rent payable quarterly or otherwise, or for an annuity, or on a stipulation to pay £ 10 on one day and £ 10 on another, debt lies on each default. 1 Chitty's Pleading, 106. As the plaintiff brought her warrant for an annuity of sixty dollars due by bond, could the specialty which was offered, be received as evidence, so as to entitle her to a judgment for that sum? It seems to us, that although the plaintiff vouches a specialty, still when it is produced and discloses stipulations and covenants, that the defendant should teach the plaintiff's servant a trade in two years, and also furnish the slave with meat and drink for two years, these covenants (which are not said to be broken) do not enter into the description or substance of the annuity of sixty dollars, which the defendant by the bond agreed to pay her annually for two years, and for which she could bring debt so often as the annuity became due. We think that the evidence was admissible, and that the variance between that specialty and the supposed bond mentioned in the warrant, is immaterial as to the subject-matter of this suit. The bond shows that the annuity is sixty dollars, and for that sum only is this action of debt brought. We think the judgment should be affirmed.
PER CURIAM. Judgment affirmed.