possession of the vendor, it is admitted that our laws allow the sale of choses in action, and equity will aid in protecting and securing the right of the purchaser; but the analogy betwoen these cases and the one under consideration, is too remote to be readily perceived. It is also admitted, that as there is no law prohibiting the sale of a chose in action, so neither is there any regulating the consideration, or the mode of paying it, which is left to the will of the parties. It may be payable in money, property or personal services, but notwithstanding this admission, we affirm that modes of payment might be stipulated that would be illegal, and that could not be enforced in a court of justice. Instances of this kind will readily occur to every person of reflection. This fact proves, that notwithstanding it is a general rule that men may stipulate for such consideration as they choose, yet the rule has its exceptions, and the case now before us may safely be considered as one of them.

Whatever may have been the merits of the claim set up by Vattier-whatever power he might have had to sell that claim-and although he had an unquestionable right to purchase the professional services of the plaintiff in the prosecution of that claim,-yet we cannot see the absurdity of saying, that the claim could not be stipulated as the consideration of the service, or the service as the consideration of the claim. To admit this as an absurdity, would be to destroy all distinctions, and to admit that the legality of a transaction is in no case to be affected by a reference to its consequences. The sale of a claim may be perfectly innocent-the purchase of professional services may be unexceptionable, and yet the purchase of those services, by the transfer of the claim, in the prosecution of which they are to be employed, may be highly pernicious, and attended with such injurious effects on society, as to render it expedient to prohibit such a contract. Experience teaches that such consequences usually attend such contracts. Hence the propriety of the restriction in question, while you permit the sale of the claim, or the purchase of the services, as distinct transactions.

We do not admit the conclusions of counsel, that the consequences which these contracts may have on society, cannot enter into the argument-that they are only to be urged before the legislature, and cannot be listened to or regarded by the court. This proposition at once begs the question, by supposing that there is no rule of law on the subject. Were this the case, we admit that the legis. lature alone could remedy the evil, as the court has no power to introduce a new law, but when a rule of new law does exist, applicable to the case, and sufficiently broad to embrace it, it is the province of the court to apply it.— They are the tribunal to whom the appeal is to be made, and by whom it must be decided. The legislature may say what the law shall be the court must say what it is.

But we are told, that to declare this contract not to be void on the face of it, does not include the consequence that all agreements of this nature are to be void on the face of it, does not include the consequence that all agreements of this nature are to be held obligatory. The proposition is admitted, and although counsel might wish to limit the exception to such contracts as come within the scope of the twelfth section above referred to, yet the court believe it to be much more extensive, and to embrace this case, whatever may have been its actual effect on the parties claiming the property in contest.

Judgment, therefore, must be entered for the defendant on the demurrer, which we consider clearly supported.

The stipulation in the contract, on which the opinion and judgment of the court are chiefly predicated, and to which they have directed it to be confined, is that which prevents Vattier from compromising and settling the matters in controversy, without the concurrence and consent of the other contracting parties. This point being considered sufficient, the court forbear to give an opinion on any other. As the provision, on the subject of cost, is not set out in the declaration, and the defendant has demurred without oyer, that feature in the contract has not been considered.

NORTON v. HART.

The plaintiff, in action of trespass on real estate, where the damages laid in the declaration exceed one hundred dollars, is entitled to full costs, without regard to the amount recovered.

Action of trespass with force and arms, for breaking and entering plaintiff's close, digging up stone, laying on timber, &c., commenced in the Common Pleas of Portage county. Damages laid four hundred dollars. Verdict and judgment in the Common Pleas, and an appeal to the Supreme Court. Verdict in the Supreme Court for Plaintiff damages twenty-five cents. The plaintiff claimed judgment for the damages and costs. At the suggestion of the defendant's counsel, the question was reserved to be decided here. J. Sloan for defendant.

By the COURT.

By the 52d section of the act defining the duties of justices of the peace and constables, in criminal and civil cases, passed February 16th, 1820, it is provided, "That if any person or persons shall commence or prosecute any suit for any debt or demand by this act made cognizable before any justice of the peace, in any other court than is authorised and directed by this act, and shall obtain a verdict therein for debt or damages, which, without costs, shall not amount to one hundred dollars or more, he, she, or they, so prosecuting, shall not recover any costs in such suits, any law to the contrary notwithstanding."

In order to a correct decision of the question reserved, it is only necessary to ascertain whether, in the case before the court, a justice of the peace could have held jurisdiction.

By the 5th section of the before recited statute, the jurisdiction of justices of the peace is extended under the restrictions and limitations provided in the same act, to any sum not exceeding one hundred dollars. In the 49th section it is provided, in effect, "that this jurisdiction shall not extend to actions of trespass with force and arms, for assault and battery, for malicious prosecution," &c. nor to actions "where the title of lands is called in question."-These provisions were contained in the justices' law previous to the year 1816, and in construing the several statutes on the subject, it was held, that a justice of the peace had no jurisdiction in actions of trespass upon real property. To remedy this evil, the legislature, on the 17th February, 1816, passed an act extending the jurisdiction of justices of the peace to actions of the latter description, where the damages demanded should not exceed the sum made cognizable before a

justice, or, in other words, where the damages demanded should not exceed one hundred dollars.

This provision is retained in the law of 16th February, 1820, first recited; by the 30th section of which it is enacted, "That the jurisdiction of justices of the peace shall extend to actions of trespass on real estate, in cases where the damages demanded for such trespass shall not exceed the sum made cognizable by a justice of the peace in other cases." By the terms of this section it would seem that the sum demanded is the test by which the jurisdiction is to be ascertained. If the plaintiff demanded damages to a greater amount than one hundred dollars, the justice has no jurisdiction. The plaintiff may be mistaken with respect to the actual damage he has sustained. There is no certain rule by which this damage can be ascertained. If a suit be commenced upon a note or bond, the instrument itself will afford some certain rule by which we can ascertain the extent of injury sustained by the plaintiff. In trespass upon real property or upon the person, it is different. (See Wilson v. Daniel, 3 Dallas Hancock v. Barten, 1 Serg't. and Raw. 269.)

401.

costs.

In the case before the court, the damages demanded were four hundred dollars. This exceeded the jurisdiction of a justice of the peace. The suit was well commenced in the Court of Common Pleas, and the plaintiff is entitled to If the intention of the legislature were different-if they intended that in actions of trespass on real property, commenced in the court of Common Pleas, no costs should be. taxed unless the plaintiff recovered one hundred dollars or more, they have not expressed that intention, and it remains for that body, and not for the courts, to apply the remedy.

MARTIN'S CASE.

An application by the defendant in ejectment, after a recovery against him, for the appointment of Commissioners to value his improvements, under the occupying claimant law, in a separate proceeding, in which the party prevailing is entitled to costs. Where the application is made by the defendant, and a judgment is given in his favor, the count will order the lessor of the plaintiff to pay the costs of the proceedings.

George P. Cotton prosecuted ejectments against Samuel G. Martin, which were finally tried in the Supreme Court of Clinton county. Martin set up title in himself, but Cotton recovered. Application was then made by Martin for the appointment of commissioners to value his improvements, under the provisions of the law for the relief of occupying claimants of land. This application was sustained. The commissioners reported in his favor, and the proper orders were made for securing to him the advantages allowed by law. A question arose who should be held chargeable with the cost that accrued upon the application for, and proceedings of the commissioners, and the decision of this question was reserved and referred to this court

Dunlevy for Martin.

By the COURT.

As the commissioners may be appointed upon the application of either party, it may be considered as a separate proceeding, in which the party prevailing is

entitled to his costs. In this case the application having been made by the defendant, in whose favor judgment has been rendered upon it, the court are of opinion that the costs must follow that judgment, and that an order be entered on George T. Cotton, lessor of the plaintiff, to pay the costs in question.

REEDY v. BURGERT

A judgment upon a scire facias on a mortgage, extinguishes a bond, note, or other evidence of the original debt.

The action of assumpsit, debt, or covenant, the action of ejectment and a bill in chancery, are all covenant remedies, and any one or more of them may be persued at the same time. But when the statutory remedy by scire facias is resorted to, assumpsit, &c. will not lie for the amount due.

Covenant was brought upon a writing under seal, for the payment of money. The declaration was in the usual form. The defendant pleaded in bar that the note was given for a sum of money, the payment of which was secured by a mortgage upon lands, and that the plaintiff had prosecuted a scire facias upon. the mortgage, under the statute, and obtained a judgment thereon. To this plea the plaintiff demurred. The case was certified from the Supreme Court of Stark county, to be decided upon the point presented by the demurrer.

LATHROP, in support of the demurrer.

By the COURT.

The counsel for the plaintiff seems to suppose that the action of assumpsit, debt or covenant; the action of ejectment to take possession of the mortgaged premises; and the bill in chancery to foreclose the equity of redemption, were all concurrent remedies at the common law; and because more than one of these remedies might be pursued at the same time, that the statute remedy, by scire facias, may be pursued with them. But this is a mistake. The action of as. sumpsit debt, or covenant, is resorted to for recovery of the money due on the obligation. The action of ejectment is not a concurrent, but an auxiliary remedy; and the bill in chancery is of the same character. The ejectment is used to get possession of the landed security-the bill in chancery to remove incumbrances from it.

The object of giving scire facias was to enable the mortgagee to resort at once, in one action, to the recovery of his debt, and the subjecting his landed security to the satisfaction of it. This proceeding enables the mortgagee to obtain judgment for his debt, and execution against the mortgaged premises, at the same time, upon which execution the premises are sold, discharged of the equity of redemption, which, without such proceeding, could not be levied upon and sold upon execution on a judgment at law. This was creating, by statute, a new and more summary remedy, to which the party might resort, without affecting his right to pursue the pre-existing remedies. It gave a choice of remedies, but did not confer a right to pursue them all at the same time.

By the first section of the scire facias law it is provided, that “it shall be lawful for the defendant to come in and plead payment or satisfaction for all, or any part of the money demanded by the plaintiff, or any other legal plea in bar, or avoidance of the deed or money therein demanded as the case may require; and thereon the parties shall proceed to issue and trial as in other cases."

When judgment is rendered the second section directs that execution shall issue, upon which the mortgaged premises shall be taken and sold as other lands. The third section provides that if the mortgaged premises shall not sell for a sum sufficient to satisfy the judgment, "then the residue of said judg. ment so remaining unsatisfied, shall be deemed and taken to be a debt of record," upon which the plaintiff may sue out a scire facias, and proceed to judgment and execution thereon, as in other cases.

These provisions shew that it was the intention of the legislature that the scire facias should be prosecuted, defended, and tried, upon the whole merits. of the plaintiff's claim, and that the judgment rendered should be final and conclusive between the parties. That judgment ascertains the true amount of the debt due, and constitutes it a debt of record, in virtue of express terms of the statute. It results necessarily from this conclusion, that a bond or note, or other evidence of debt, being the foundation upon which this judgment is predicated, must be merged in the judgment; and no other action can be sustained for the debt unless founded upon the record.

Some absurdity, and much inconvenience and injustice might be the consequence of a different doctrine. If the plaintiff should be dissatisfied with the amount recovered on the scire facias, he might resort to his action for the original debt. All the facts investigated and determined on the trial of the scire facias, would be open for second investigation. A recovery might be had for a different amount; two different verdicts and judgments might exist at the same time, for the same debt, and another suit would become necessary to prevent a double satisfaction.

It is objected that if this action cannot be sustained, it deprives the plaintiff of the advantage of requiring special bail. The answer is, that the statutory remedy by scire facias proceeds against the land, a security which the plaintiff himself agreed to accept. An additional security upon the debtor's person ought not therefore to be required-and the plaintiff elected to take this remedy. as it is given. Had he wished to add a claim upon the defendant's person in addition, he could have elected to take his common law remedy, and brought his action for the debt.

In respect to the two judgments for the same debt, this case is alleged to stand upon the same footing of separate judgments against the maker and endorsers of a promissory note. But the resemblance does not hold: in that case the judgments are against different persons, upon separate and different contracts. Here, if two judgments could be had, they would be against the. same person, upon the same contract.

A majority of the court are of opinion that the defendant have judgment, Judge SHERMAN dissented,