79 Pa. Super. 352 | Pa. Super. Ct. | 1922
Opinion by
On the trial of an appeal from the judgment of a justice of the peace, in an action arising from contract, the court below refused to allow the defendant to give evidence of a claim of set-off amounting to $291.56, on the ground that section 7 of the Act of March 20, 1810, 5 Sm. L. 161, limited the amount of a set-off which could be presented before a justice to the sum of $100, and on appeal to the common pleas the same limitation attached.
The right to defalcate or set off accounts, etc., in actions brought in any court in this State was secured by the Act of January 12, 1705, 1 Sm. L. 49. The amount which could be set off in an action before a justice under the Act of 1810, supra, was naturally limited by the jurisdiction of the justice, as fixed by section 1, which provided that the several justices “shall have jurisdiction of all causes of action arising from contract, either express or implied, in all cases where the sum demanded is not above one hundred dollars; except in cases of real contract, where the title to lands or tenements may come in question, or action upon promise of marriage.”
A set-off is, in effect, a cross action: Gunnis, Barritt & Co. v. Cluff, 111 Pa. 512. Without more, therefore, the general limitation of the jurisdiction of a justice in actions arising from contract necessarily limited the set-off which he might consider and pass upon in such actions to a like amount: Milliken & Co. v. Gardner, 37 Pa. 457, 458; Holden v. Wiggins, 3 P. & W. 469, 472. In Deihm v. Snell, 119 Pa. 316, the defendant, on the trial
So, when the Municipal Court of Philadelphia County was created, (Act of July 12, 1913, P. L. 711), and its jurisdiction in actions of assumpsit was fixed at $600, it was held by this court that without any special provision limiting the amount of a set-off which might be presented and passed upon in said court, the limitation of its general jurisdiction necessarily fixed its jurisdiction in matters of set-off: Backer v. Remov, 69 Pa. Superior Ct. 138.
It follows that when the Act of July 7, 1879, P. L. 194, enlarged the jurisdiction of justices in such actions to an amount not exceeding $300, the jurisdiction to pass upon claims presented by way of set-off therein was likewise increased unless precluded by some other provision in the Act of 1810 or the Act of 1879.
Section 7 of the Act of 1810, supra, is the only clause having any possible bearing on the subject. It provides —in its material part — as follows: “That a defendant who shall neglect or refuse in any case to set off his demand, whether founded upon bond, note, penal or single bill, writing obligatory, book account or damages, on assumption against a plaintiff, which shall not exceed the sum of one hundred dollars, before a justice of the peace, shall be and is hereby forever barred from recovering against the party plaintiff by any after suit.”
This section was not affected by the enlarging Act of 1879 and is still in force, so that while the jurisdiction of a justice has been increased from $100 to $300, a defendant is only required, under the penalty before mentioned, to present his set-off before the justice if his claim does not exceed $100. If defendant’s set-off exceeds $100, but is not more than $300, — the present limit of the justice’s jurisdiction, — he may, at his election, either present it at the hearing before the justice, or refrain from doing so and bring a separate action thereupon against the plaintiff. And he is not restricted on the trial of the appeal in the common pleas to the set-off relied on before the justice: Tate v. Tate, 2 Grant 150.
Giving full consideration to the able argument of the learned counsel for the appellee, we are of opinion that a justice has jurisdiction of proper claims of set-off, not exceeding $300, and that on appeal to the common pleas a like set-off may be pleaded, (Act of April 14,1921, P. L. 144), and given in evidence.
The second assignment of error is sustained. The first and third are overruled.
The judgment of the court below is reversed and a venire facias de novo is awarded.