
    Robert Finney and Hugh M’Bride against John M’Mahon.
    A party may wave a tort, and go for the money clearly due to him, before a justice of the peace.
    Certiorari to William Montgomery of Northumberland county, esq. The record stated the demand of the plaintiffs to be under forty shillings, and that the justice, on due proof made before him, had given judgment for the plaintiffs for seven stillings and sixpence and costs. The nature of the demand did not appear from the record, but on the defendant’s application to the justice, he had certified to the court a state of the facts as they appeared before him on evidence. The plaintiffs had been hunting in company in the woods, and discovering a bear had fired at and wounded him. They pursued him, and when the beast could not escape from them, the defendant, in their view, came up and killed him, and forcibly retained the skin. On these facts the justice gave judgment for the plaintiffs for 7s. 6d. the value of the bear skin.
    Mr. Sergeant for the plaintiffs urged, that the words of the act of assembly of 1715, giving jurisdiction to justices of the peace, were “any debt or demand under forty shillings,” and that the term demand was very comprehensive in a legal sense, and that there were no exceptions in this act similar to those in the 5I. act. Under the act of 1746, actions of trespass vi et armis for taking goods, are not excepted from the jurisdiction of justices of the peace, unless where the title of lands shall any wise come in question. Province Laws, 80, 207. But independently. * hereof it has been settled, [-*049 that a party may wave the tort and go for the money *- clearly due. Cowp. 414. Doug. 132. 1 Term Rep. 387. Here the justice did not proceed to assess damages for forcibly taking the bear skin, but conceiving the skin to be clearly the property of the plaintiffs, gave judgment for the value thereof.
    Mr. Ingersoll for the defendant contended, that justices of the peace should be restrained within their proper jurisdiction. The act of 1715, § 2, pa. 81, declares that no court shall have cognizance of debts or demands under forty shillings; but the xiniform construction has been to restrict the word “demand ” to matters of contract. Justices of the peace have no jurisdiction in matters of mere trespass, nor can they assess damages. Here the tort was not waved, but was insisted on before the justice, as a ground of his giving judgment for the plaintiff. The return to the certiorari states the action to be “in a plea of damage under 40s.’’
   By the court.

It would be unreasonable to expect of justices of the peace a return to a certiorari drawn up with strict legal precision. It is obvious that they must be unacquainted with the forms of action. Care must be taken that they do not exceed their jurisdiction, but captious exceptions must not be allowed. ‘ ‘ Demands ’ ’ in the forty shillings act have always been restricted to those which arise ex contráctil and not ex delicto; but in this case it may be fairly inferred, that the justice did not exceed his jurisdiction from his representation of the facts-. The defendant took a bear skin to which he had no just pretensions. The plaintiffs demand reparation for the injury, and waving the tort, as it may fairly be supposed, require the value of it from. him. The justice gives judgment for the value, as on an implied contract. We see no reason therefore to annul the proceedings before him.

Judgment affirmed.  