
    CONSTITUTIONAL COURT,
    COLUMBIA,
    DEC. 1801.
    Douglas v. Mothershead.
    The provision in' the act of 1747, that persons suing in courts of law,who shall recover less than £20, currency, shall lose their costs, has not become obsolete; nor is it repealed, as to actions founded on tort, by the acts of assembly divesting the jurisdiction of justices of the peace in such actions. [sed vide the act of 1799,2 Faust, 320, as to actions of trespass, trover,, detinue, case, &c., brought to try the title to property.].
    Motion on a rule to shew cause why the plaintiff’s judgment and execution, so far as regarded the costs of suit, should not be set aside as illegal. The rule had been granted, and a decision had thereon, in Lancaster district. The decision of the district court having been against the defendant’s motion, the same was brought up, by way of appeal, to this court. The case was this. The plaintiff had recovered against the defendant in an action of trespass vi el armis, for taking away certain goods and chattels of the plaintiff, by verdict of a jury, eight dollars damages, and entered up Ills-judgment accordingly, and for his costs of suit, and sued out exe. cution for the damages and costs. The defendant grounded his motion on an act of assembly passed in 1747, P. L. 214, concerning small and mean causes, by which it is enacted, that any person shall-prosecute any action m the superior court of law, and shall not recover above the sum of £20, currency, he shall lose his costs of suit.
    In opposition to the motion, Brevard of counsel for the .plaintiff, argued as follows:
    The common law did not professedly allow costs, yet the amerciament of the vanquished party was a necessary appendage to the judgment. If the plaintiff prevailed the defendant was in misericordia, and was punished with the expensa litis. But if the defendant prevailed the plaintiff was amerced pro falso clamare. Bac. Abr. Costs, A. 6 Yin. Abr. Tit. Costs.
    The statute of Gloucester, which gives costs in all cases where damages are given, has not indeed been made of force in this State directly, but, perhaps, may be referred to by some act óf parliament made of force, or impliedly made of force, by such British statutes which are of force, and which have a necessary relation to the law of costs, established by the statute of Gloucester. But, however, that may be, the last mentioned statute has been constantly adhered to, in practice in this State, from the earliest period of its jurisprudence, as far as I have been able to learn, and must be considered as the law of this State, in relation to costs.
    st. 6 Ed. ' *’
    Therefore, both at common law, and upon the statute of Gloucester, the plaintiff is entitled to satisfaction for his expenses of litigation ; and the plaintiff’s common law right, in this behalf, cannot be taken away by implication or construction, but by clear and positive law. It remains to consider, whether, in this case, such right has been so taken away. It may be proper, however, first to mention, that in England, the statute 22 and 23 Car. 2, c. 9, which gave no more costs than damages in trespass, has been construed not to extend to cases where the freehold cannot come in question, as in this case. 1 Salk. 208. This statute is not of force here ; but it shews how cautious the court ought to be of breaking in upon the common, law rights of the people, or in the interpretation of written laws. I contend that the act of assembly of 1747, cannot, at this day, be fairly interpreted to take away the right in question. Consider the scope and design of the act, the mischiefs which it was intended to avoid, and the causes which induced thf legislature to pass it. It is entitled “ An act for the trial of small, and mean causes and declares, “ that all suits for the recovery of any debts, dues, damages, or demands, whatsoever, to the value of £20, or under, or other-cause, where it shall appear the plaintiff has been damnified to no higher Value, shall be triable and determinable only before a justice or justices of peace, and in no other court: and that if any person shall prosecute any action in any other court, and shall not recover above the sum of £20, he shall lose his' costs of suit.” I contend that this law is now obsolete j having ceased, to operate as a binding rule, with the causes which produced it. The reason of the rule having ceased to exist, the rule itself has become extinct. "
    At the time when this act was passed, there was but one court for the trial of causes above the description of such as have been denominated “ small and mean,” which court was established on the seá shore, in a corner of the State. Every justice of the peace bad a jurisdiction as high as £20, old cúrrrency, (about £3, sterling,} in all causes of action of a civil nature, whether founded in con. tract, or on tort. The power and jurisdiction of a justice of the peace was not then confined' to any particular description of civil injuries; his jurisdiction was only limited as to the quantum of debt, or damage, which he was competent to give judgment for. Therefore, any person,'who chose, might apply to a justice of peace for redress, for any civil injury he might have sustained ; and, provided, the injury was not so grievous as to require a inference to a more competent tribunal, a justice of the peace might give him a satisfactory remedy.” '■ '
    But it often happened, that, for trivial causes, a man was sued, and compelled to attend the Court of Common Pleas in Charleston, from remote parts, perhaps often from the frontier of the back country ; and after a vexatious and expensive attendance, have to pay a heavy bill of costs, as well as his own counsel fees, in a case, where, although the plaintiff might be legally entitled to recover something against him, yet the real debt, or damage, wo'ukl be very trifling, compared to the expenses of suit. This was a great oppression arid grievance, and called for legislative interference. The design of the act was, to compel persons, having just causes of action, where the sums due, or injuries sustained, were small, and'within the jurisdiction o- justices of the peace, to resort, for redress, to those inferior tribunals and to make this the interest of such persons, it obliged them t® do sq at the peril of costs jf they sued in the superior court, aril Tailed to recover a greater sum .than might have been recovered .before a justice of .peace. .Such a law, at that time, was necessary and just. But what is the case now ? The civil jurisdiction of justices of peace has, since that time, been, very properly, limited by the legislature, to .causes of action founded on contract A justice of the pence pannot, at this day, exercise any jurisdiction in the trial of any cause sounding in damages, or founded on tort. In the exercise of their power, when possessed of full jurisdiction. in such cases, they had, very generally, acted either from ignorance, or a disregard of all legal principles, in a most abusive and outrageous manner, which evinced the propriety and necessity pf abridging their authority in this respect.
    But before this was done, circuit courts, and afterwards county courts, were established throughout the State. The citizen was not dragged down to Charleston, from the mountains, to answer a trifling charge, for a debt of three pounds, or a slight assault. .Various courts, .conyeniently situated, might be resorted to by all those who had need of their assistance ; and the defendant could not be tríade t.P answer out of the precincts of the court, within which he was taken or served with process.
    Every purpose which the act of 17.47 was calculated to answer, .has been already answered, .and every evil entirely obviated, by the changes which have since been made in our judicial system ; and .the causes and reasons which rendered the passing of that act nepessary and .just, .havp entirely failed. This law, ought, therefore, to be considered as obsolete.
    The party plaintiff has now no choice, as he formerly had, in a case founded on tort, to sue for redress, either .before a justice of .peace, or a superior court; but he must, from necessity, sue in a. court of law, or remain remediless. Admit he has received an injury which demands a recompense, in value, not exceeding JS2Ü, old currency, and that a court and jury must, if they proceed according to law, give him judgment for nearly that amount, yet if they do npt go further, and give judgment for more than £20, currency> he shall not be allowed his costs of suit. ' What is the consequence? He must defray the expense of carrying on a lawsuit, to obtain justice, amounting to more than the sum he is entided to recover, or he must be contented to go unredressed. This is certainly contrary to the spirit of our law. It is contrary to the rules of natural justice, and to the general principles of law,
    
    In answer to these observations, it was urged, that the act of 1747 was still in full force, and ought to govern the question, inasmuch as it had never been repealed by any subsequent act of the legislature : that the arguments, which had been used to shew that it had become obsolete, and of no force, by reason of the causes, which originally induced the making of it, having ceased to operate the same inconveniences as formerly, were not sufficiently cogent and well founded to warrant the decision contended for by the plaintiff’s counsel; and that whatever might have been the operative reasons for passing the act, there still existed good reasons of policy for continuing the law in force : that it was a wise and wholesome regulation, tending to restrain the litigious dispositions of mankind, and to prevent much oppression and injustice: that the evils which had been pointed out as objectionable to the act, could not be extensive, and were comparatively less than those which would ensue, if every litigant who should recover a few cents, was, at all events, to have the full costs of suit; and that numerous suits would be brought merely for the sake of the costs, unless this law should be admitted to be still of force.
    Brevard, for plaintiff Mathk, for defendant.
    
      
      
        [vide St. 23 H. 8. o. 15. P. L. 47, and see 1 Brev. Dig. 190, note.]
    
    
      
      
        By the county court act of 1785, P. L. 335, tho power and jurisdiction of magistrates, under the act of 1747, where oounty courts wore established, was limited to the trial of civil causes, where the debt or demand exceed 2Us. and was "taken away where the demand was founded on tort, as for trespass, to et armis, assault, &c., and also for slander. The'judicial powers of justices of peace were afterwards enlarged, in respect to causes arising ex contractu, and extended from 20s. to £5, and then to £3. P. L. 400, 433; afterwards, again, to £5. P. L. 454. By the act of 1791, 1 Faust. 52, the jurisdiction of justices of the peace throughout the State was limited to cases of eontaact: and by the pet of |709, the amount was fixed at twenty dollars, 2 Faust- 31Q.
    
    
      
       In 1799, during the pendency of-this canse in the Constitutional Court, an act was passed, which enacts, “ That in all actions of trespass to try titles to lands, in all actions of trespass on the case, in all actions oftrover,andinall actions of detinue, or in any of them, brought to establish or try the right of title in any kind of property, if the plaintiff establish his right of property therein, he shall recover his fu.il costs of suit, if the verdict shall be above the sum of four dol lars.” 3 Faust, 320.
    
   The court took time to consider, and afterwards gave judgment for the defendant, holding the law of 1747, objected to, as obsolete, to be still of force. This decision was made final at a meeting of the judges at Columbia, in April, 1802.  