It was enough, to maintain the action, for the plaintiff to show a special property in the chattel, with the exclusive right of possession at the time of the caption. G. L., c. 245, s. 2; Mitchell v. Roberts,50 N.H. 486. The lease or contract between Thompson and the plaintiff gave to him the exclusive possession of the heifer, and a special interest or property in it. The plaintiff had possession of the pasture where the heifer was kept, and possession of the heifer coupled with an interest. His possession was something more than a naked bailment. He not only had the entire care and use of the heifer, but also an interest in its growth during the term and until the end of the year. Thompson, though the general owner, had no right of possession jointly with or against the plaintiff, and could not himself maintain the action Wheeler v. Train, 3 Pick. 255; Collins v. Evans, 15 Pick. 63. The defendant objected to the introduction of the lease in evidence. It exhibited the plaintiff's title and right of possession, was a necessary part of his case, and was competent evidence of the contract.
The defendant claims that by statute (G. L., c. 245, s. 5), in actions of replevin, where the value of the property replevied does not exceed $13.33, the jurisdiction of justices of the peace is exclusive; and the value of the heifer being found to be $12, the supreme court has no jurisdiction, and the action should be dismissed, or the plaintiff nonsuited. If the defendant's claim were well founded, it would not follow that the supreme court has no jurisdiction of this cause, in which the value of the property replevied was alleged in the writ to be $15. It has always been understood that the limit of jurisdiction of justices of the peace is either the amount *Page 344 demanded in damages — the ad damnum — or, in replevin, the value of the property as alleged by the plaintiff. Any other construction would lead to confusion in all cases where the actual value and alleged value differ only by a small sum. In good faith estimating the value at a sum that compels him to bring his suit in the supreme court, it would be a hardship and a travesty upon justice if, after trying his case through, and establishing his right upon the merits, the plaintiff must suffer nonsuit, and lose what he has fairly earned, because the value of the property is found to be a little less than the sum estimated, and the case within the exclusive jurisdiction of a justice of the peace.
The general understanding has been, and the practice has accorded with the understanding, that the court of common pleas, and, subsequently, the supreme judicial court and the supreme court at the trial terms, had concurrent jurisdiction with justices of the peace of causes, when the sum demanded in damages was less than $13.33, unless by statute the jurisdiction was plainly and expressly restricted. Rochester v. Roberts,29 N.H. 360. If the replevin statute, first appearing in its present form in the Revised Statutes, c. 204, s. 4, by its language was intended to restrict the jurisdiction of the court of common pleas, and afterwards that of the supreme court, to cases where the value of the property replevied exceeded $13.33, the General Statutes of 1867, c. 189, s. 3, giving the supreme court, at the trial terms, "cognizance of civil actions and pleas, real, personal, and mixed, according to the course of the common law," without exception or restriction, must have extended that jurisdiction so as to embrace replevin suits, when the property replevied is of less value than $13.33. The judiciary act of 1859, in force when the General Statutes were enacted, and all the preceding judiciary acts as far back as, and including, that of 1791, not only did not expressly give general and universal jurisdiction to the common law courts, but all excepting that of 1791 contained an express exception from their jurisdiction of causes in which justices of the peace had jurisdiction. The act of 1791 gave to the court of common pleas jurisdiction of civil causes where the sum demanded in damages exceeded forty shillings, the limit at the time of justices' jurisdiction. Laws, ed. 1797, p. 55; Laws 1830, Title 111, s. 1; R. S., c. 172, s. 3; Laws of 1855, c. 1659, s. 2; Laws 1859, c. 2211, s. 3.
The General Statutes of 1867, defining the powers and jurisdiction of the supreme court, omit the exception to jurisdiction previously made in similar statutes; and the marking in the margin of their report, by the commissioners of revision, by the letters "s. m.," shows that the section of the act of 1867 referred to was intended as a substitute, with material changes, for the previous statute on the subject. The express language, — general jurisdiction of "pleas and actions, according to the course of the common law," — is given without exception and without reference to any *Page 345 amount demanded in damages, or the value of the thing in controversy, and must be considered broad enough to embrace this case.
Two witnesses were called as experts on the question of the heifer's breed, and another upon the heifer's age, as determined by the shedding of teeth. They all testified as to their knowledge and experience upon the subject; and the question of the qualifications of the witnesses to testify upon the subjects to which they were called was wholly for the referee, and his ruling admitting or excluding the evidence is not subject to revision here. Dole v. Johnson, 50 N.H. 452; Goodwin v. Scott, ante 112.
Judgment on the report for the plaintiff.
STANLEY, J., did not sit: the others concurred.