Opinion
Spring Sessions, 1837.
CERTIORARI to Justice Elliott.
Wales, for plaintiff in error.
Booth, for defendant.
Action for two years' dower, demand $20 00. After hearing and trial by referees, report and judgment for plaintiff for "ten dollars annuity due to the plaintiff up to 16th October, 1835."
The record showed that the cause of action was "a demand of the plaintiff below of ten dollars per year, against the defendant below, as an annuity payable to her yearly in lieu of dower in a tract of land which belonged to her husband, Thomas Cartmel, deceased; and which tract was conveyed by deed to said defendant below, subject to the payment of said annuity."
The error assigned was, that the cause of action was not within the jurisdiction of a justice of the peace.
Per curiam. — Prom the record it appears that the action was for an annuity chargeable on land, and the liability of the defendant as claimed is on account of his having purchased the land charged. There is no privity of contract between the parties. If liable at all, he is only liable in respect of the land. Non constat, that there are not other liens against the land to its value prior to this. It can raise neither an express nor implied contract as between these parties; and the remedy, however small the case, is only in equity. If this law be hard it must be changed by the legislature The cause of action is not cognizable before a justice of the peace.
Judgment reversed.