Rogers v. Ratcliffe

The opinion of the Court was delivered by Lewis, J. The plaintiff in error brought an aqtion on contract [185] in the Court of Common Pleas, without filing an affidavit that his demand exceeded one hundred dollars. Pie recovered less than that sum. There was no plea of set-off upon the record. As the decision of the cause had been made by arbitrators, the Court of Common Pleas heard depositions for the purpose of determining the question of costs, and upon full examination into the moans by which the plaintiff’s demand had been reduced, decided that it had not been reduced by set-off, and that the plaintiff was not entitled to recover, costs. If the Court was right in its decision of the question of fact, the judgment that the plaintiff could not recover costs' is according to the letter of the Act of Assembly. Where a plaintiff in an action on contract recovers less than one hundred dojlars, and there is nothing to show that the demand was reduced by set-off, the presumption is that the amount was within the jurisdiction of a' justice of the peace. In such a case the plaintiff’s refusal to bring his cause before the appointed tribunal justly deprives him of costs. But was the Court right in its solution of the question of fact ? How are we to ascertain? There is nothing on the record to show that the fact vras otherwise than as found by the Court. The depositions produced before the Court, on the hearing of the motion in relation to the costs, form no part of the record; nor can they be brought here by bill of exception. The statute which gives the bill does not extend the privilege to the decisions of the Court upon depositions produced on the hearing of motions of this kind. As the evidence on which the Court acted is not judicially before us, we have no means of reviewing the decision. For this reason the rule was established many years ago, in relation to this section of the Act of Assembly, that “ the decision of the Common Pleas is not to be treated as erroneous unless the fact which impeaches it appears on the face of the record:” Spear v. Jameson, 2 Ser. & R. 532. There is nothing on this record which impeaches the decision below, and the judgment is therefore to be affirmed. Judgment affirmed.