ters of contract, except actions of covenant, where the sum in controversy is of one hundred dollars and under," and consequently, so far as it depends upon any constitutional provision affirmatively conferring the jurisdiction upon justices of the peace, the claim to it must fail. But, even conceding that the action comes clearly within the constitutional grant of jurisdiction to justices of the peace, we again meet with insurmountable objections whenever that jurisdiction is attempted to be exercised in cases like the one now before us. As a substantive matter of jurisdiction, they have no power or authority whatever to determine title to real estate. Should they be permitted to use their jurisdiction over one class of cases so as to draw into controversy before them, as mere incidents, matters of the most intricate character and highest magnitude, involving the most subtle and abstruse questions in the whole science of the law, and for the determination of which the constitution has specially provided a different tribunal?

The sum in controversy in this case is but thirty-three dollars, merely nominal, yet to effect its recovery, it is attempted to draw into the controversy the title to real estate of the value of, perhaps, twenty thousand dollars, to be determined upon by a justice of the peace, who, to arrive at any conclusion, must pass upon the validity and legal effect of a mass of title papers, consisting of patents from the president of the United States, deeds, mortgages, judgments, executions, sheriffs' returns, certificates of acknowledgments, as well as numberless other matters, requiring the most thorough legal knowledge to comprehend and elucidate. The subject-matter in dispute between the parties is insignificant, while the incident, which is attempted to be drawn in by it, is of the greatest magnitude and completely overwhelms it. The attempt to draw such important questions into the jurisdiction of justices of the peace, by such slight and trivial pretexts, can not be regarded otherwise than as an attempted fraud upon the jurisdiction of the circuit courts. The moment the justice of the peace saw that the title to the land must come in controversy before him he should have dismissed the case, refusing to take further cognizance of it: and so, when the case came into the circuit court upon appeal, that court, possessing no other authority over it than the justice, should have dismissed it for the same reason.

For these reasons the judgment of the circuit court is reversed and the cause remanded, with directions to dismiss the same for want of jurisdiction.

Reversed.

ACTION FOR USE AND OCCUPATION.-The action for use and occupation of land is founded not upon privity of estate but solely upon privity of contract: Henwood v. Cheeseman, 3 Serg. & R. 500; Hayes v. Acre, Cam. & M. 19. It is necessary to the maintenance of this action that there should be a contract between the parties, either express or implied, which the plaintiff must prove: Stewart v. Fitch, 2 Vroom, 17; Hall v. Southmayd, 15 Barb. 32; Moore v. Harvey, 50 Vt. 297; Osgood v. Dewey, 13 Johns. 240; Gunn v. Scovil, 4 Day, 228; Stockett v. Watkins, 2 Gill & J. 326; Crouch v. Briles, 7 J. J. Marsh. 257; Estep v. Este p, 23 Ind. 114; Nance v. Alexander, 49 Id. 516; Dalton v. Lau dahn, 30 Mich. 349; Edmonson v. Kii, 43 Mo. 176; Sylvester v. Ralston, 31 Barb. 286; Newby v. Vestal, 6 Ind. 412; Redden v. Barker, 4 Harr. 179; Williams v. Hollis, 19 Ga. 313; Dudding v. Hill, 15 Ill. 61; McNair v. Schwartz, 16 Id. 24; Dixon v. Haley, Id. 145; Boston v. Binney, 11 Pick. 1; Scales v. Anderson, 26 Miss. 94; Cohen v. Kyler, 27 Mo. 122; Brewer v. Craig, 18 N. J. L. 214; Stewart v. Fitch, 31 Id. 17; Hurd v. Miller, 2 Hilt. 540; Campbell v. Renwick, 2 Bradf. 80; Coit v. Planer, 4 Abb. Pr. (N. S.) 140; La Farge v. Park, 1 Edm. Sel. Cas. 223; Pierce v. Pierce, 25 Barb. 243. If, however, the possession is tortious, as in the case of adverse possession, the action for use and occupation does not lie. The owner's remedy in such case is either trespass or ejectment, when damages in the nature of mesne profits may be recovered: Espy v. Fenton, 5 Or. 423; Langford v. Green, 52 Ala. 103; Folsom v. Carli, 6 Minn. 420; Ryan v. Marsh, 2 Nott & M. 156; Henwood v. Cheeseman, 3 Serg. & R. 500; Wiggin v. Wiggin, 6 N. H. 298; Stockett v. Watkins, 2 Gill & J. 326; Richey v. Hinde, 6 Ohio, 371; Howe v. Russell, 41 Me. 446; Sampson v. Shaeffer, 3 Cal. 196; O'Conner v. Corbitt, Id. 370; Cincinnati v. Walls, 1 Ohio St. 222; Wharton v. Fitzgerald, 3 Dall. 503; Edmonson v. Kite, 43 Mo. 176; Byrd v. Chase, 10 Ark. 602; Eastman v. Haward, 30 Me. 58; Curtis v. Treat, 21 Id. 525; Croswell v. Crane, 7 Barb. 191; Watson v. Brainard, 33 Vt. SS; Ramirez v. Murray, 5 Cal. 222. INSTANCES WHERE THE ACTION WILL LIE.-Occupancy of land, by permission of the owner, is enough to support the action, as the law will in such case presume a promise to pay a reasonable sum for the use: Sargent v. Ashe, 23 Me. 201; Kiersted v. Orange etc. R. R., 1 Hun, 151; Rogers v. Libbey, 35 Me. 200; Sutton v. Mandeville, 1 Munf. 407; Logan v. Lewis, 9 J. J. Marsh. 6; Shattuck v. Ransom, 2 Aik. 252; La Farge v. Park, 1 Edm. Sel. Cas. 233; or mere occupancy, unaccompanied by facts sufficient to negative the exist ence of a contract: Chambers v. Ross, 1 Dutch. 293; Phelps v. Conant, 30 Vt. 277; Clark v. Green, 35 Ga. 92; or where there is no formal lease, but a mere promise to pay a given sum as rent: Burnham v. Best, 10 B. Mon. 227; Eppes v. Cole, 4 Hen. & M. 161. The action will also lie against one who takes possession of vacant premises, admitting his want of title, and expressing his willingness to pay rent to the lawful owner: Smith v. Houston, 16 Ala. 111; or against a tenant who holds over after the expiration of his term: Abeel v. Radcliff, 13 Johns. 297; Russell v. Fabyan, 34 N. H. 218; in such case the tenant will be deemed to hold upon the terms of his original lease: Evertsen v. Sawyer, 2 Wend. 507. The action will lie against a vendor who remains in possession after the sale of the premises: Currier v. Earl, 13 Me. 216; or against a judgment debtor, who holds by consent of the purchaser after a sale under an execution: Nichols v. Williams, 8 Cow. 13; or against a tenant who agrees to make certain repairs in lieu of rent, which he fails to do: Tate v. McClure, 25 Ark. 168; or against a tenant at will, after he has left the premises without giving any notice of his intention to quit, although he afterwards derives no benefit from the land: Walker v. Furbush, 11 Cush. 366; or against AM. DEC. VOL. XLVI-19

a lessee who enters under an agreement to take a lease, which he afterwards refuses to accept: Little v. Martin, 3 Wend. 219. Whether a vendee who enters into possession of land under a contract for the purchase thereof, which he afterwards refuses to carry out, is liable to the vendor in an action in the nature of assumpsit for the use and occupation, has given rise to a difference of opinion. In one line of cases such liability has been upheld: Hull v. Vaughan, 6 Price, 157; Gould v. Thompson, 4 Metc. 228; Howard v. Shaw, 8 Mee. & W. 118; Tancred v. Christy, 12 Id. 324; Clough v. Hosford, 6 N. H. 231; Alton v. Pickering, 9 Id. 494; Hearn v. Tomlin, Peak. Cas. 192; Smith v. Wooding, 20 Ala. 324; Davidson v. Ernest, 7 Id. 817; Ayer v. Hawkes, 11 N. H. 148; Gould v. Thompson, 4 Metc. 228; National Oil Ref. Co. v. Bush, 88 Pa. St. 335.

In Kirtland v. Pounsett, 2 Taunt. 145, Lord Mansfield refused to acknowledge this doctrine, alleging, as a reason, that the law would not presume a contract different from that entered into, upon the occurrence of circumstances not contemplated by either of the parties. The supreme court of the United States has also held that under such circumstances there is no contract relation between the vendor and vendee. That the possession of the vendee is that of a mere licensee, and upon his failure to perform the contract the vendor may have ejectment: Burnett v. Coldwell, 9 Wall. 293. And for the same reasons as were stated in the case last cited, many cases hold that where a vendee enters into land under a contract of purchase which he fails to carry out, the remedy of the vendor is not in assumpsit, but trespass: Smith v. Stewart, 6 Johns. 46; Thompson v. Bower, 60 Barb. 463; Stacy v. Vermont etc. R. R., 32 Vt. 551; Miles v. Elkin, 10 Ind. 329; Brewer v. Craig, 3 Harris, 214; Vandarhauvel v. Storrs, 3 Conn. 203; Bell v. Ellis, 1 Stew. & P. 294; Little v. Pearson, 7 Pick. 301; Jones v. Tipton, 2 Dana, 295. Nor will the action lie where the vendee never went into possession of the premises he contracted to purchase. The vendor's remedy in such case is on the agreement: Wood v. Wilcox, 1 Denio, 37; Beach v. Gray, 2 Id. 84. To establisb the fact of occupancy, slight evidence only is essential. Legal, not manual, possession only is required: Hall v. Western Transportation Co., 34 N. Y. 284; Pinero v. Judson, 4 Moo. & P. 497. In one case acceptance of the key of a house was held sufficient to establish occupancy: Seaman v. Ward, 1 Hilt. 52.

MEASURE OF DAMAGES in an action for use and occupation, where there has been no stipulated price agreed upon, is the reasonable worth of the use of the land while in the defendant's occupancy: Brolasky v. Ferguson, 48 Pa. St. 434; Hanes v. Worthington, 14 Ind. 320; Crommelin v. Theiss, 31 Ala. 412; Cal. Civil Code, sec. 3334. In determining the value of such use, evidence is admissible showing for what the land rented in years immediately preceding, as well as for what like property rented at the time of the Occupancy: Fogg v. Hill, 21 Me. 529; McCarty v. Ely, 4 E. D. Smith, 375; Williams v. Sherman, 7 Wend. 109. But the plaintiff can not recover for the use and occupation before he acquired title to the premises: Smith v. Houston, 16 Ala. 111; nor for use and occupation after he has parted with l title: Patrick v. Roach, 27 Tex. 579. If, in an action for mesne profits, it appears that the defendant has expended money for taxes and necessary repairs, he is entitled to deduct this from the value of the use: Semple v. Bank of British Columbia, 5 Sawy. 394; Stark v. Starr, 1 Id. 30; Sedgwick on Damages, 126.

BOZEMAN v. STATE BANK.

[7 ARKANSAS, 328.]

RELEASE BY A CREDITOR OF ONE OF SEVERAL OBLIGORS is a discharge of all. COVENANT ENTERED INTO BY A CREDITOR in favor of one of several obligors, not to sue, and to indemnify him against any suit brought by his coobligors, is not a release which discharges the other co-obligors.

DEBT by the bank, on a written instrument executed by one Buckner, as principal, and L. J. Reardon and defendant, as sureties. The defendant pleaded a written release by the bank to L. J. Reardon. The plaintiff craved oyer of the release, which was granted, and then demurred to the plea. It appeared by the so-called release that the bank, in consideration of four thousand dollars, covenanted with L. J. Reardon, that it would not sue him, and would indemnify him against any suits which might be brought against him by his co-sureties. The demurrer was sustained. The defendant brought error.

Ringo and Trapnall, for the plaintiff in error.

Lincoln, for the bank.

By Court, CONWAY, B. J. It is contended by plaintiff's counsel that the agreement of the bank with Reardon is a release of him, and therefore also a release of Bozeman. It is true, if the bank had formally released Reardon, she would thereby have also released Bozeman. For it is well settled that a release of one of several obligors is a discharge of all. And on this point the authorities referred to by learned counsel are conclusive. But we can not consider the bank's agreement with Reardon a release; it is a covenant not to sue and to indemnify, which in its nature is not a release. If Reardon himself had been sued by the bank, he could not have pleaded that the bank had released him, though he might have pleaded the covenant in bar; but even that would only be permitted to avoid circuity of action. Much less, then, could Bozan plead a release or acquittance. In truth, the covenant with Reardon neither releases nor protects him, and can not avail him in his defense. It is unavailing to all except Reardon himself: Dean v. Newhall, 8 T. R. 168; Lacy v. Kinnaston, 3 Salk. 298; Cuyler v. Cuyler, 2 Johns. 186; Harrison v. Close and Wilcox, Id. 448 [3 Am. Dec. 444].

The judgment is therefore affirmed.

MAY V. CASSIDAY.

[7 ARKANSAS, 376.]

SPECIAL INDORSEMENT BY THE PAYEE of a promissory note, without delivery, is not sufficient to divest his title.

ASSUMPSIT on a promissory note, payable to Cassiday, made by May and A. M. Strayham, as partners. On the trial evidence was offered by the defendant that Cassidy had indorsed on the note the words, "pay to the order of Chester Ashley," which was excluded. The further facts appear in the opinion.

W. Walker, for the plaintiff.

Watkins and Curran, for the defendant.

By Court, OLDHAM, J. The main question presented in this case is whether the circuit court properly excluded the evidence offered by the plaintiff in error to prove that the note sued upon had been assigned to Chester Ashley. The evidence as given was clearly admissible under the issue formed by the pleadings: 1 Ch. Pl. 472. Although the evidence so given and excluded did not establish such an assignment as would divest the defendant in error of his interest in the note and vest it in Ashley, yet it was admissible as tending to establish the fact, and with additional evidence would have done so. That evidence does not establish a fact in issue is no ground for excluding such evidence, provided it is legitimate under the issue formed. Had the evidence not been excluded the judgment of the circuit court would have been the same. It was proven that on the back of the note there was an indorsement in the handwriting of the plaintiff below, to Chester Ashley, but there was no proof that a complete transfer was made by delivery, without which the assignment was incomplete. Upon this point we do not conceive that there is error for which the judgment should be reversed. In other respects the proceedings of the court below are regular, and the verdict and judgment fully warranted and sustained by the evidence as disclosed by the bill of exceptions. Affirmed.

TRANSFER OF NOTE IS NOT ACCOMPLISHED BY INDORSEMENT unaccompanied by delivery: Sterling v. Bender, 44 Am. Dec. 539. And a delivery by the maker to the payee is essential to vest title in the latter: Woodford v. Dorwin, 21 Id. 573; Lansing v. Gaine, 3 Id. 422.