Devers v. Gething , 2 Foster 66 ( 1874 )

Opinion by

Dana, J.

The plaintiff brought an action of trover and conversion, in the court of common pleas. The damages laid in his declaration and the amount actually recovered are less than one hundred dollars. The act of 22d March, 18x4, P. D. 867, § 119, gives to justices of the peace and aldermen jurisdiction of actions of trover and conversion in all cases where the value of the property claimed or damages sustained shall not exceed one hundred dollars. The jurisdiction of the court of common pleas is not taken away by this act, nor does it contain any provision analogous' to the 26th section of the act of 1810, P. D. 848,,.§ 31, imposing costs on a plaintiff who sues in the common pleas for. debt or demand of less than one hundred dollars, made cognizable before a justice of the peace. The case of Clark v. McKisson, 6 S. & R., 87, determines that the restriction on the exercise of jurisdiction by the courts of common law, which is provided by the act of 1810 for cases within its perview, does not exist in trespass, trover, and conversion under the act of 1814-Justices have concurrent jurisdiction with the common pleas under the latter act in actions of trover and trespass, and this act does not require an affidavit that the claim exceeds one hundred dollars in order to recover costs. Moyer v. Illig, 2 P. F. Sm. 444.

It is true that in Clark v. McKisson and Moyer v. Illig, the plaintiff’s demand, as laid in the'declaration, exceeded one hundred dollars, but that would not have made the slightest difference if the provisions of the 26th section of the one hundred dollar law had been deemed applicable to cases of trespass or trover, because by that section the sum recovered determines whether the plaintiff shall gain or lose costs, unless he has taken the precaution to make a previous affidavit, or unless his demand is •reduced by set-off. Richards v. Gage, 1 Ash. 192.

It follows, under the authorities, that the jurisdiction of the common pleas in trespass or trover is neither qualified or restricted by the act of 1814; that the restrictive clause contained in the justices’ act of 1810 does not exist in the act of 1814, giving to justices jurisdiction in actions of trover and trespass, and that the plaintiff is, therefore, entitled to have bis judgment entered with costs.

The rule is discharged.