majority">Eccleston, J.,

delivered the opinion of this court.

This is an action of assumpsit, instituted by the appellant against the appellee, in which damages to the amount of $1000, are laid or claimed in the nar; the pleas being non assumpsit and limitations. The jury rendered a verdict in favor of the plaintiff for $30, and the defendant obtained a rule upon the plaintiff, to show cause why a non pros, should *255not be entered, which rule was made absolute. From which decision this appeal is taken.

Whether the judgment below is to be affirmed or reversed, must depend upon the construction which is to be given to the act of 1852, ch. 239.

In an argument of much force and ingenuity, the counsel for the appellant has insisted, that this act has extended the jurisdiction of justices of the peace to all cases of contract, where the debt or damage laid or claimed shall not exceed one hundred dollars; and that the amount of the- verdict, as formerly,'is no longer the test of jurisdiction in such cases: so that whenever a suit ex contractu is instituted in the circuit court, and the debt or damage laid or claimed shall exceed $100, no matter what may be the amount of the verdict, such court has jurisdiction and may render judgment upon it for the plaintiff, if the verdict be in his favor.

In O’Reilly vs. Murdoch, 1 Gill, 33, the various acts, relating to the jurisdiction of magistrates, from that of 1791, ch. 68, down to that of 1834, ch. 296, inclusive, were referred to and commented upon ; but in concluding the opinion the court say, “These views are not to be considered as in any respect applicable to cases of contract, but are intended to be confined to actions of tort, where the amount of the damages are peculiarly a subject for the consideration of the jury.” The case before them was one of that description. Beall vs. Black, also reported in 1 Gill, 203, was a case of tort; but the court there, in very explicit terms, state the difference, up to the passage of the act of 1835, ch. 201, between cases of contract and those of tort, in relation to the test of jurisdiction. Reference is made to O’Reilly vs. Murdoch, as deciding the standard of jurisdiction in tort, not to be the sum recovered by the verdict, but the sum laid or claimed in the plaintiff’s declaration. The court then say, “By an act passed in 1824, a new test of jurisdiction was first introduced in cases sounding in tort, and not in contract, and from- that period, the same rule has been preserved inviolate. The rule established by that act, (and which has uniformly been adhered *256to ever since,) to test the jurisdiction of the justices of the peace in cases of tort, has been the damages claimed, and not-the sum recovered. In cases of contract, a different principle seems to have prevailed, and in all such cases, the sum-recovered, and not the matter put in demand is made to decide the question of jurisdiction. From this rule no departure has been made by the act of 1835.” The principle here stated in regard to cases of contract, is quoted and relied upon in Carter vs. Tuck, 3 Gill, 251, which was an action of assumpsit.

The two latter cases not only speak of and construe the act of 1835, but they, in connection with the first, show, unequivocally, what the late Court of Appeals considered to have been, prior to that act, the true tests of jurisdiction of justices of the peace, in the two classes of cases spoken of.

O'Reilly vs. Murdoch, it appears was argued at June term 1843, and Beall vs. Black, at the following December term. On looking at the original opinions, we find they were both filed on the same day, and were written by the same judge. The third case, (Carter vs. Tuck,) refers to the second, and in that reference is made to the first. It is therefore a reasonable inference, that all the acts spoken of in the first were considered in deciding the other two. One of those acts is that of 1834, ch. 296; in which it is enacted, “That from henceforth, the justices of the peace shall have jurisdiction over, and may take cognizance of, all cases whatever, where the debt or damages laid or claimed shall not exceed the sum of fifty dollars, except in cases or actions of slander, assault and battery, and in cases or actions where the'title to lands shall or may come in question.” Notwithstanding this provision, the court held, in the two latter decisions referred to, that prior and subsequent to the'act of 1835, in cases of contract, “the sum recovered, and not the matter put in demand, is made to decide the question of jurisdiction.”

It has been suggested in argument, that the court considered the act of 1834, as not having altered the rule just stated, because' prior to the passage of that act, magistrates had *257jurisdiction up to fifty dollars, in all cases of contract. And this being so, the legislature had no design to give any increase of jurisdiction in matters of contract, consequently no part of the law could properly apply to that class of actions; but the intention must have been to include cases of tort, not provided for by any of the previous acts, and therefore the language used had reference to torts only. Whether this does or does not present, correctly, the views of the court in regard to this act, it is very certain they considered it as not having changed, what had previously been the test of jurisdiction, in actions of contract.

With these decisions before us, when we look to the act of 1852, and perceive (what appears to be perfectly evident,) that the main design of the legislature was to extend the jurisdiction of justices of the peace, from fifty to one hundred dollars, in reference to both torts and contracts, we see no good reason why the words, “debt or damage, laid or claimed,” may not be considered, in matters of contract, as applicable to the main object of the law, the extended jurisdiction, in amount; and not as having any influence upon the subject of jurisdiction in cases provided for prior to the act. This remark is confined to contracts, because the case before us is one of that class, and also, because in torts the rule or test was the' same before the passage of the act as the one prescribed in it.

We cannot close'our eyes to the fact, that for many years' past, the legislation of this State has tended, very decidedly, to restrict the jurisdiction of the courts, and to extend that of the magistrates. And as this very act was passed for the express purpose of extending the jurisdiction of magistrates, it cannot be supposed the legislature designed thereby so to change or alter the existing law, in regard to claims on contract, under fifty dollars, as to put it in the power of a plaintiff to take from the magistrate his jurisdiction, and to maintain a suit, for the most trifling sum, in the circuit court, subjecting his debtor to the costs of such a proceeding, simply by taking care to lay or claim a sufficient amount of damages *258in his declaration. If the construction insisted upon by the appellant is correct, the jurisdiction, which before the act could only be exercised by a justice of the peace, at the pleasure of the claimant may now be taken from the justice and given to the court. This would be rather a strange mode of carrying into- effect the chief design of the law, that of extending the jurisdiction of the justices. It is true, that even with such a construction, the act would extend the authority of the magistrates in one respect, but certainly would rediice it in another. Although they might, under the law, have some cases over fifty dollars, they might lose more under that sum.

The acts of 1791, ch. 68, and 1809, ch. 76, in express terms, take from the courts the jurisdiction which they give to the justices, but none of the acts which confer authority upon magistrates to hear and decide cases of tort, from that of 1813, ch. 162, down to that of 1834, inclusive, take from the courts their jurisdiction in such cases. There was consequently no necessity for regulating the test of jurisdiction in those cases, by the amount of the verdict, the plaintiff being at liberty to select either tribunal: if he desired to go before a justice he could do so by laying his damages within, the prescribed limit. And as the laws which gave the magistrate his authority, did not take away the jurisdiction of the court, but left it to the choice of the plaintiff which he'would' prefer, if he thought proper to sue in the latter, it was a matter of no importance what the amount of the verdict should be. And the act of 1852, not only does not take away the jurisdiction of the court, but in express terms preserves it, by providing in the 4th section, “That in all cases where the amount claimed, or the thing in action exceeds the sum or valúe of fifty dollars, and justices of the peace have jurisdiction, the several circuit courts for the counties of this State shall'have jurisdiction concurrent with justices of the peace.” The concurrent authority here provided for, we understand as designed to embrace the class of cases coming within the jurisdiction of magistrates, as extended by this act. Seeing, that to this extent, even in matters of contract, the option is-*259here given to a plaintiff to sue, either in the court or before a magistrate, there was no necessity for regulating the jurisdiction of either tribunal, by the amount of the verdict; and therefore the words, “debt or damage laid or claimed,” as used in this act, were appropriate, and amply sufficient, in reference to suits on contract, coming within the increased jurisdiction of magistrates. But in our opinion the legislature did not intend so to change the law, in regard to actions ex contractu, as will authorise the circuit courts to render judgment in favor of a plaintiff on any verdict, where prior to the act of 1852, a non-suit should have been entered, ki consequence of the verdict being for a sum less than the jurisdiction of the court, and within that of a justice of the peace.

This act does not, in express terms, repeal the acts which took from the courts their jurisdiction in cases of contract, up to fifty dollars, nor do we perceive a repeal of them by necessary implication.

Judgment affirmed.

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