153 Pa. 614 | Pa. | 1893
Opinion by
Knappenberger and Roth were the owners of adjoining farms in South Whitehall township, Lehigh county. They maintained jointly a partition fence between them. In 1891, Knappenberger planted one of the fields on his side with corn; at the same time Roth pastured his cattle in his field on the opposite side. One of his cattle was a mischievous cow that often broke the fence between, and then the whole herd would pass through and destroy the corn. Knappenberger several times notified Roth of this propensity of his cow, and requested him to take her out of the herd, but Roth paid no attention to him. Then Knappenberger brought suit before a justice of the peace, claiming damages to his corn, the growing crop. Roth defended, averring that the portion of the partition fence which Knappenberger ought to have kept up was in bad condition, and not sufficient protection against cattle of orderly habits.
The justice gave judgment in favor of Knappenberger for $20 and costs; Roth appealed, and, on filing his transcript, entered the plea of nil debet, and the appeal was tried on this issue .before a jury, who rendered a verdict for plaintiff for $1.73. Roth then entered a rule on Knappenberger to show cause why judgment should not be entered on the verdict for no more costs than damages. The court below thought the ease was ruled by the British statute 22 and 23 Charles II., chap. 9, which provides:
“ That from and after the 1st day of May aforesaid, in all actions of trespass, assault and battery and other personal actions, wherein the judge, at the trial of the cause, shall not find
It was accordingly ordered that judgment be entered for no more costs than damages.
That this statute is in force in Pennsylvania, there can be no question. It was reported to be in force by the judges, and was assumed to be, in Hinds v. Knox, 4 S. & R. 417; Guffey v. Free, 19 Pa. 384, and Simonds v. Barton, 76 Pa. 434. At last in Winger v. Rife, 101 Pa. 152, Chief Justice Sharswood, delivering the opinion of this court, said: “ It is too late now to raise the question whether the statute 22 and 23 Charles II., chap. 9, and 8 and 9 William III., chap. 11, are in force in this state. The report of the judges, frequent recognitions in the opinion of this court, if not direct opinions, and uniform practice have settled it.”
The mischief which the British statute intended to remedy, as itself declares, was to “ avoid infinite numbers of small and trifling suits commenced in the courts of Westminster.”
In the suit before us, the title to the land did not come in question, and of course the judge of the common pleas, which court in jurisdiction is like unto the courts of Westminster, could not certify on the back of the record that it was an exception to the general words of the statute limiting the costs to the amount of the verdict. The amount, then, of the damages, $1.78, being under forty shillings or $5.33 (Pennsylvania currency), places it among “ the infinite number of small and trifling suits ” which it was the object of the statute to “ avoid ” by imposing as a penalty on the suitor an inability to recover more than “ small and trifling ” costs; that is, if the question is determined by the statute quoted. But is it ? It will be noticed, that the suit was originally brought before a justice of the peace, who rendered judgment in favor of plaintiff for $20.00, and the defendant brought the suit into the common pleas by appeal. The act of assembly of March 22,1814, provides: “ That
From the admitted and assumed facts in this case, the action was clausum fregit, or rather it would have been so termed before the procedure act of 1887, and it was expressly agreed by the parties that the title to the land was not in question. The jurisdiction, then, of the justice, under the act of 1814, it seems to us, could not be questioned; the court had jurisdiction on appeal, only because the justice had original jurisdiction of the cause of action; nor can the cause of action, whatever change may be made in the pleadings or evidence, be departed from in the common pleas. The appeal is from the judgment of the justice, because the appellant alleges injustice, either in the application of the law or the findings of fact.
Under the Charles II. statute, this defendant, when he gets into the common pleas, invokes a rule of which he could not get the benefit before the justice; for he admits that if the judgment of the justice had been for the same amount as the verdict of the jury, and had not been appealed from, the plaintiff would have recovered full costs.
The court decided that the act of 1814 applied only to cases where the judgment of the justice was final because of acquiescence of parties, or because of smallness of amount, but that on appeal, when the verdict was below the forty shillings limit, then the British statute applied and the plaintiff’s costs were kept down to the amount of his damages.
It is not necessary to discuss the question as to which statute would have determined plaintiff’s right before the passage of the act of the 9th of April, 1888, which provides: “ The
It is but justice to the learned judge of the court below to say that the case of King v. Boyles was not called to his attention on the argument before him. If it had been, his decree would doubtless have been the same as ours.
The decree of the common pleas is reversed, and it is directed that judgment be entered on verdict for plaintiff with full costs.