Hutchinson v. Kellam
Hutchinson v. Kellam
Opinion of the Court
the judges delivered their opinions seriatim.
These are actions of trespass quare clausum frespit, in which the damages found are below 100 , „ J 5 ’ . . ° , , , dollars ; and the question is, whether the appeals are to be dismissed, the Court not having jurisdiction ? According to my opinion, another question arises, and that is, whether the freehold, or the title, or bounds of the land, were drawn in question ; and if so, that we should take jurisdiction of the cases, notwithstanding the smallness of the damages: but I am arrested in this inquiry, because the other members of the Court are of opinion, that, although the freehold may have been in controversy, and decided on by the Court, yet the damages are to be the sole criterion by which we are to be governed, as to the point of jurisdiction ; and they being under 100 dollars, the appeals must be dismissed.
After the most careful examination of which I am capable, and although I have had the benefit of the most patient and able advice of my brethren, I have not been able to satisfy myself, that the damages are the sole criterion by which we are to determine our jurisdiction in these cases ; and it therefore becomes my duty to deliver my opinion ; satisfied, when the opinion of others are delivered, I shall be found wrong, although, at present, Í have not the good fortune to perceive it.
The Act of Assembly,
The 14th section of the same law enacts, “ That appeals, writs of error, and supersedeas, may be granted, beard, and determined by the Court of Appeals, to, and from any final decree, or judgment of the High Court of Chancery, General Court, and District Courts, in the same manner, and on the same principles, as appeals, writs of error, and supersedeas, are to be granted, beard, and determined by the High Court of Chancery, and District Courts, to, and from any final decree or judgment of a Chancery Court,” &c.
The District Court law contains two sections, which it may be proper to advert to.
By the 53d section, it is enacted, “ That where any person, &c. shall, think himself aggrieved by the judgment of a County Court, &c. in any action, suit, or contest whatsoever, where the debt, or damages, or other thing recovered, or claimed, exclusive of costs, shall be of the value of 100 dollars, or 3,000 pounds of tobacco, or where the title, or bounds of land, shall be drawn in question, or the contest shall be concerning mills, roads, the probat of wilts, or certificates for obtaining administration, such person may appeal, &c. to the District Court.”
Thus the legislature having established a certain principie as to one Court, which it finds would properly apply to another, instead of re-enacting it as to that other, adopts and applies it, by a general clause, to that other, This may, in some respects, not be an unsafe course. The uniformity of the principle, as to both Courts, is a desideratum, which might be put to hazard by slight variations in phraseology, were a new bill drawn ; but, bs this as it may, this course of legislation has been adopted, and it becomes us, according to our best judgment, to discover the intention of the legislature, and pursue it. To return, however, to the question before the Court, I understand this position to be maintained, as to the jurisdiction of this Court, in actions of trespass quartclausum fregit : that although, in such action, the defendant may plead that the freehold is in him, or if the action be between two coterminous tenants, each holding in fee, relative to their boundaries, in which cases, the tide to the freeho'-d is directly litigated, and decided on; that yet this Court has not jurisdiction, to reverse an erroneous judgment, thus settling the title to lands, unless the damages recovered be 100 dollars, or upward. That, as the words of the Act of Assembly require that the matter in controversy -shall be equal in value, exclusive
I shall first consider this general position, under the words of the second section of the act above quoted, concerning the Court of Appeals ; and, secondly, I shall consider how far those words have been explained, or enlarged by the other clauses and acts; premising, however, that there is no doubt entertained, as I understand, that an appeal would lie to the District Courts formerly, and to the Circuit Courts now, in actions of this nature, where the title, or bounds of lands, are drawn in question, even if the damages recovered be but a cent.
I shall not stop to inquire, whether the verdict and judgment, in this action, can be pleaded in bar of any action for another trespass, on the same lands, but shall content myself by admitting, that the verdict is only evidence to another jury, as the verdict in ejectment; but it may not be improper to make a few observations as to the nature of this action, as laid down in the books. In Bac. Abr. it is said, that this action, as well as those of ejectment and waste, is a mixed action, and must be brought where the land lies; and in the 3d vol. of Black. Com. p. 214., it is said, relative to this action, “ That it is one of the ways devised, since the disuse of real actions, to try the property of - estates ; though it is not so usual as that by ejectment; because that not only gives damages, but also possession of the land : whereas in trespass, which is merely a personal suit, the right can only be ascertained, but no possession delivered. Also in Gil
It will be my first object, then, to consider, whether a fair construction of the second section of the act of 1792, will not authorize this Court to take jurisdiction in this action when the freehold is drawn in question? ¿Vnd, secondly, if it will not, how far that section has been explained, or amended and enlarged, by the clause authorizing appeals to this Court, in the same manner, and on the same principles, as appeals are granted from the County Courts to the District Courts.
In construing statutes, it is proper, that all acts in pari materia, though some of them may be out of force, are to be consulted in forming a conclusion,
The damages in personal actions was fifteen per cent,, and in real actions, 2.000 pounds of tobacco: mixed actions, such as ejectment and waste, and trespass quare clausum fregit, if that be a mixed action, do not seem to be expressly provided for, but, partaking of the reality, probably were embraced in the clause relative to real actions.
Damages on affirmance in personal and mixed actions are fifteen per cent. 5 and in real actions 2,000 pounds of tobacco: and where the plaintiff or demandant appeals, and judgment is affirmed, he pays damages amounting to 600 pounds of tobacco; and no appeal shall be valid, or writ of error, or supersedeas granted, where the debt, damages, or other matter recovered, shall be of less value than 10'. or 2,000 pounds of tobacco, exclusive of costs, unless, in such suit, the title or bounds of land shall be in question.
This last law was re-enacted verbatim in 1753, as to these matters, and so the law remained until the acts of 1777, October session: whereby the jurisdiction of the General Court, which was theretofore, as well in common law as Chancery cases, and was the supreme Court, on this side the water, was divided; by the first of which, (Ch. Rev. 14.) a Court of Chano ry was established, and by the second, (Ch.Rev. 17.) the Genera! Court, having only common law, and criminal jurisdiction.
By the 42d section of this latter act, it is provided, That if any person, &c. shall think themselves aggrieved by the judgment or sentence of any Court, &c. in any action, suit, or contest., where the debt, or damages, or other thing, recovered or claimedexclusive of the costs, shall
1 he word claimed, united with the thing recovered, occurs first in this law, as also the jurisdiction in cases of mills, ¡kc. ; and mixed actions are by express provision put on the same footing with real actions, as to the damages on affirmance.
1 his Court, as to common law cases, then remained the Court in the last resort, until May session, 1779, when an act passed {Ch. 22.) constituting the Court of Appeals, to consist of the Judges of the H'gh Court of Chancery, General Court, and Court of Admiralty: which law provides, that the Court so organized, shall have jurisdiction, inter alia, in all suits brought before them by appeals, and writs of error to reverse decrees of the High Court of Chancery, judgments of the General Court, i.nd sentences of the Court of Admiralty, &e« if the matter in controversy be equal in value, exclusive of costs, to SOL or be a freehold or franchise ; here the words now under consideration first occur.
Under these laws, it will be admitted, I presume, that the General Court, prior to the year 1779, that is to say, from the year 1748, until that time, had jurisdiction by. appeal, being the Court in the last resort, in all actions, whether re d, personal, or mixed, let the damages be what1 they may, provided the title, or bounds of lands, were drawn in question; and, of course, that the Court would have taken jurisdiction in these cases.
In the case of Hutcheson and Kellum, if the Court had instructed the jury as to the law of the case, and under that instruction, they had found for the defendant, this Court would have had jurisdiction. (2 Call, 508. 3 Call, 181.) But if A. sues B. for a trespass on 100 acres of land; the defendant claims the whole tract, and the Court, erroneously, instruct the jury, that he has title to ninety acres of the tract, so that the damages to the ten acres only amount to ten dollars, the plaintiff has no redress, although, but for that erroneous instruction, he would not only have had his title correctly established to the 100 acres, but would probably have got 100 dollars damages, or more ; so that establishing his title to the ten acres would be a real misfortune to him ; for, had the Court decided against him, as to the whole tract, the whole error would have been corrected here. But if I had any doubts upon this subject, they are not only removed, as to cases of freehold, but as to all cases where the title or hounds of lands are draxvn in question, by the 14th section of the act of 1702, which gives this Court jurisdiction, in appeals, writs of error, and supersedeas, in the same manner, and on the same principles as appeals, &c., are granted to the District Courts, from judgments of the. inferior Courts.
By the first of these acts, {sec. 16.) it is declared, thai questions of difficulty may be adjourned, &c. &c.; where a party thinks ¡ imself aggrieved by the judgment of the District Court, he may appeal thereupon as of right, or obtain a writ of error thereto, from the Court of Appeals, not of right, but at the discretion of the Court, Thus it would seem, that by this section," an appeal would be allowed in all cases in which that Court had jurisdiction, even in actions of slander, where the damages were under 100 dollars. This general right, however, tvas afterward restrained, as will be seen. By the 87th section of the same law, it is declared, that where any per- on thinks himself aggrieved by the judgment of the County Court, &c., in any action, suit, or contest iwhatever, where the debt, or damages, or other thing recovered, or claimed, in such suit, exclusive of costs, shall be of the value of 30/. or 3,000 pounds of tobacco, or upwards, or where the title, or bounds of lands are drawn in question, or the contest shall be about mills, roads, the probat of wills, or certificates for obtaining administration, such person may appeal to the District Court.
By the 2d of these acts, to wit, that organizing the Court of Appeals, it is enacted after directing how the judges are to be elected, &c. (in sec. 12.) that the seve
The legislature, too, considered the jurisdiction as extended by that law to cases of 100 dollars; for, in 1792, when they come to reduce the general acts into one, they insert that sum in the law. But it may be said, as they changed the sum, why did they not change the other phraseology of the section, so as to make it the same as the section in the District Court law ? I answer, that bad they done so, it would have been necessary to have inserted, several clauses from the District Court law, which the legislature wished to avoid, by retaining the clauses in question, and particularly as they were professing simply to reduce into one the several acts, &c. : but there may have been another reason; the \toxd franchise was not in the District Court law. This is cer
Upon the whole, I can see no reason for confining the jurisdiction of this court to cases of freehold, where, as '¿veil the title as possession, is adjudged to the one party or the other. I think Í am not impelled to a contrary decision by the 2d section of the Court of Appeals’ law; and that, if that section was more express, yet it must be taken in conjunction with the other sections and laws j and all must be construed together as forming one system, and so to have their respective operations. I think, therefore, that the court may have jurisdiction in these cases, if the freehold, or title, and bounds of lands, are in question, and that we ought to look into the records to see if such is the case.
These were actions of trespass quarti clausum fregit, in which the damages recovered were less than 100 dollars; and the only question is, whether this court can take jurisdiction; it appearing from the records that the title or bounds of lands were drawn in question in the inferior court.
I consider this question as lying within a very narrow compass, and susceptible of a ready solution, by reference to the clause in the act of assembly regulating the jurisdiction of this Court, as contrasted with that regulating the appellate jurisdiction of the District Courts. To give this Court jurisdiction, the matter in controversij must be equal in value to 100 dollars, or must be a freehold or franchise. The action of trespass is one, in which damages only are recovered ; and, although the title or bounds of land may be incidentally and collaterally brought in question, yet the value of the matter in controversy is, from the very nature of the action, the value of the damages sustained by the trespass; and this, as well where the title or bounds of land may be drawn
As to the subject of the jurisdiction of this Court in general, I beg leave to refer to the opinion I have just delivered in the case of Lewis v. Long. The result of that opinion is, that where the matter in controversy is of less value than 100 dollars this court has no jurisdiction, unless that matter be a freehold o- franchise. This is expressly laid down in the 2d section of the act constituting this Court, and is not changed or varied by the 14th section of the same act, declaring that appeals, writs of error, or supersedeas, shall be granted, heard, and determined, by this Court, to and from the judgments of the General Court, District Courts, and High Court of Chancery, in the same manner, and on the same principies as they are granted, heard, and determined, by the High Court of Chancery and District Courts, to and from the judgments of the County Courts.
It is said that, in relation to the old General Court, áppeais lay in all cases where the tides of land came in question. This is admitted; and that for the very reason that they now lie from the County Courts to the District Courts. And the reason why the present Supreme Court is narrowed in its jurisdiction in this case, from that which formerly belonged to the old General Court is, because of the establishment of the intermediate District Courts, which, as I have already said, are made final as to their jurisdiction, unless the freehold itself be the direct object of the action.
If we attend to this distinction in the two acts, and reject the construction contended for under the term manner and principles,” we are then brought to the
This is expressly shown to be otherwise by all the elementary writers. In 3 Bl. 213. we are told that in this action “ nothing is recovered but damages for the wrong committed,” though it is readily admitted that in this action the title or bounds of the land do sometimes come in question. In the County Courts, when the title or bounds of land do come in question, (or where the adequate damages are found, an appeal lies to the District Courts; and in the District Courts, when the freehold or franchise itself shall be the matter in controversy, (with the same exception as to damages; an appeal lies to this Court. The latter not being the case, in the present instance, though it be admitted that the controversy was one in which the title or bounds of land may have been drawn incidentally and collaterally in question ; and the damages found in both these cases being below the limit marked out for the jurisdiction of this Court; I am of opinion that both appeals be dismissed.
These being actions of trespass quare clausum fregit, sounding altogether in damages, which were assessed at less than one hundred dollars; and neither a freehold nor a franchise being in controversy, I am of opinion that this Court has no jurisdiction of the causes, and that the appeals be dismissed.
By the Court, appeals dismissed.
Revisea Code, 1st vol. p. 60.
Revised Code, 1st vol. p. 62.
Ib. p. 72.
(a) Gaskins v. Commonwealth, 1 Call, 198.
Edition of 1734, p. 163.
Edition of 1748, p. 245.
8 Call, 470—4.
Currie v. Martin, 3 Call, 40.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.