legislative power. The presumption in favor of its validity is overcome by competent evidence. Other questions have been argued, but it is not necessary to decide them.

All concurred.

Judgment for the defendant.

SEAVEY v. DANA.

The defendant is liable in an action for money had and received for the proceeds of a note delivered to him by a bailee to whom it had been intrusted by the plaintiff for safe keeping.

Both parties claiming title to the money, and agreeing to its deposit in a bank, not to be withdrawn except upon their joint order, or upon a decision of the court made in a proceeding to be brought for the purpose of determining the rights of the parties, a subsequent suit for the money by one of the parties is a proceeding contemplated by the agreement.

ASSUMPSIT, for money had and received. The plaintiff offered to prove that the money sought to be recovered is the proceeds of a note belonging to him, and which he had placed in the hands of a bailee for safe keeping. The bailee delivered it to the defendant, who refused to deliver it to the plaintiff on demand. Subsequently, at a bank in Concord, the maker paid the note, which was then delivered to him by the defendant, and the money was deposited in the bank with a written agreement between the parties that each claimed the money, and that it should not be withdrawn except upon their joint order, or in pursuance of a decision of a court of law, or reference agreed upon, in proceedings instituted for the purpose of determining the rights of the parties. On a later day this suit was brought. The claim of the defendant, that the action could not be maintained on proof of these facts, was overruled, and a verdict for the plaintiff taken by consent, subject to the opinion of the whole court.

S. Dana, for the defendant.

Sanborn & Clark, for the plaintiff.

ALLEN, J. The action for money had and received can be maintained against the defendant, if he received the note as money or its equivalent, or if he received the proceeds of the note. Lord v. Staples, 23 N. H. 448, 457; Matthewson v. Eureka Powder Works, 44 N. H. 289, 291, 292; Ainslie v. Wilson, 7 Cow. 668. The defendant having received the note from the bailee of the plaintiff

without his consent, an action of trover against the defendant accrued to the plaintiff, and the defendant having given up the note, and received or authorized payment, the plaintiff could waive the tort, and maintain assumpsit for money had and received. Mann v. Locke, 11 N. H. 248; Smith v. Smith, 43 N. H. 536. The agreement of the plaintiff, that the proceeds of the note might be deposited in the bank to await the result of legal proceedings, or mutual arbitration to determine the rights of the parties, was not an agreement not to sue, nor a release of any right of action. The decision of a court of law provided for in the agreement could not be obtained without a suit, and the insertion of that provision in the agreement must be construed to mean that legal proceedings were contemplated. No reason appears why the rights of the parties in the note and the deposit are not determined by a trial of this case and judgment. The defendant having submitted the case on the facts which the plaintiff offered to prove, the exceptions are overruled, and there must be

Judgment on the verdict.

STANLEY, J., did not sit: the others concurred.

STEVENS v. CHASE.

The right of exclusive possession, coupled with an interest or special property in a chattel, is sufficient to maintain replevin for it against one wrongfully taking or detaining it, though a third person has, at the time, a common or sole property in the chattel.

The supreme court has original concurrent jurisdiction, with justices of the peace, of actions of replevin where the value of the property is less than $13.33.

The qualification of a witness to testify upon a subject calling for expert testimony, is a question of fact to be found at the trial term.

REPLEVIN, for a heifer. In April. 1880, one Thompson leased to the plaintiff a farm and pasture for a year, furnishing for the plaintiff's use on the farm cattle and sheep, of which the plaintiff was to have one half the income and gain in growth, and share one half the loss. The terms of the agreement were complied with, and the cattle and sheep on appraisal were redelivered to Thompson at the end of the year. Among the cattle was the heifer, which, in June, 1880, escaped from the pasture to the defendant's pasture. The plaintiff drove it to the pasture occupied by him, and the defendant, claiming it as his, recaptured it, and in October, 1880, the plaintiff took it on the replevin writ. The

value of the heifer at that time was $12. The value alleged in the writ is $15. Other facts upon which questions arise are stated in the opinion.

Shirley & Carr, for the defendant. The supreme court has no jurisdiction of the cause. In actions of replevin, if the value of the property replevied does not exceed $13.33, the action "shall be brought before a justice or police court;" otherwise in the supreme court. G. L., c. 246, s. 5; G. S., c. 226, s. 5; R. S., c. 204, s. 4. The "value," and not the "sum demanded in damages," is made the test of jurisdiction. The statute giving jurisdiction to justices of the peace in other cases than replevin, does not exclude the jurisdiction of the supreme court, the word "may" instead of "shall" being used, and in that statute the test of jurisdiction is "the damages demanded" instead of the "value of the property. G. L, c. 214, s. 1. So far as jurisdiction is concerned, the replevin statute would be a superfluous addition, if its meaning is the same as the one giving jurisdiction to justices of the peace in other cases.

In other states where the question has been before the courts on similar statutes, it has been decided that the real and not the alleged value of the goods in replevin is the test of jurisdiction. Sanford v. Scott, 38 Conn. 244; Pomeroy v. Trimper, 8 Allen 398, 404; Leonard v. Hannon, 105 Mass. 114; Blake v. Darling, 116 Mass. 300; Thomas v. Spofford, 46 Me. 410; Darling v. Conklin, 42 Wis. 478; Jacobs v. Parker, 7 Baxter 434; Peyton v. Robertson, 9 Wheat. 527; Bump Fed. Proc. 357, s. 706. The value of the property alleged in the writ is not conclusive against the plaintiff. Briggs v. Wiswell, 56 N. H. 319; Russell v. Babbitt, 60 N. H. 373; Clap v. Guild, 8 Mass. 153; Huggeford v. Ford, 11 Pick. 224; Barnes v. Bartlett, 15 Pick. 79; Swift v. Barnes, 16 Pick. 196, 197; · King v. Dewey, 11 Cush. 218; Small v. Swain, 1 Greenl. 135.

The suit should have been brought by Thompson in his own name. The statute provides that the "owner" or "person entitled to the possession" may maintain replevin. G. L., c. 245, s. 2. The ownership draws to it the right of possession. Thompson was the owner of the heifer, and the plaintiff had no interest in it, nor in the suit at the time of trial, when the heifer had been returned to Thompson on the appraisal. If it were otherwise, and the plaintiff could be regarded as having an interest in the property at the date of the writ, then the action should have been in the joint names of Thompson and the plaintiff, for they were either tenants in common or copartners. The damages could not be apportioned (Garvin v. Paul, 47 N. H. 158), and Thompson should have been joined as plaintiff.

Carr's testimony was competent as having a tendency to rebut the plaintiff's claim, and establish the defendant's. Felch's testimony had no bearing upon any issue, and ought to have been excluded.

Pike & Parsons, for the plaintiff. At the time of the commencement of the suit, the plaintiff, by the terms of the lease, which were complied with by both parties to it, was entitled to the possession of the heifer, and it matters not whether they were tenants in common or copartners, as to ownership. The law gave "the person entitled to the possession" the right to maintain the action. G. L., c. 245, s. 2; Mitchell v. Roberts, 50 N. H. 488; Kittredge v. Holt, 55 N. H. 622; Garvin v. Paul, 47 N. H. 158; Richardson v. Reed, 4 Gray 442; Brockway v. Burnap, 12 Barb. 347; Roberts v. Randel, 3 Sandf. 707; Van Namee v. Bradley, 69 Ill. 299; Warner v. Matthews, 18 Ill. 83; Brammell v. Hart, 12 Heisk. 366; Hunt v. Strew, 33 Mich. 85; Morgan v. Hedges, 4 Col. 526; McCoy v. Cadle, 4 Iowa 557.

The supreme court has jurisdiction. The finding that the value of the property was only $12 was immaterial. By the pleadings the value was not put in issue. The only question tried or in dispute was the title to the heifer. The construction of the statute claimed by the defendant, making the real value and not the alleged value the jurisdictional test, would make the remedy uncertain, expensive, and oppressive. Such a construction would make the law a snare in all cases, while the difference between the alleged value and the actual value is small. The plaintiff has a right to the remedy in every case, whatever be the value of the property, and a right to know in what tribunal to bring his action before commencing it. He could not know this in cases where the value is near the line of $13.33, if it were a question to be determined upon trial. The constitution limits the jurisdiction of justices of the peace to cases where the damages demanded shall not exceed $100. But the legislature has never enlarged the jurisdiction beyond the sum named in the old constitution. The legislature cannot go beyond the constitution, and in the statute of replevin, Gen. Laws, c. 245, 8. 5, it cannot be supposed that by the language, "the value of the property replevied," the legislature intended to exceed its constitutional power, which was plainly limited in fixing the jurisdiction of justices of the peace to a sum "demanded in damages." "The value of the property replevied" must be taken to mean the "alleged value," and not the real value" found by the tribunal trying the case. The statute defining the jurisdiction of justices of the peace in civil causes generally (G. L., c. 214, 8. 1), applies to and includes cases of replevin, and that statute makes the "damages demanded," and not the actual value of the property, the test. If the construction contended for by the defendant is the correct one, the section of the statute in question is unconstitutional and void. The history of the action of replevin in this state favors the construction claimed by the plaintiff. The law of February 9, 1791 (Laws of New Hampshire, 1805, p. 53), provides that every justice of the peace, etc., is authorized to try and determine all actions "when the sum demanded in damages

does not exceed forty shillings. The language of this statute was in substance adopted by the constitution of 1792, which, so far as the question at issue is concerned, is the language of the present constitution; and the present law, giving jurisdiction to justices of the peace in civil causes, follows the old law, which has always been understood to make the jurisdictional limit of $13.33 the sum alleged in damages, and not the actual damages found.

The Massachusetts cases cited by the defendant have no application here. The right to replevy any kind of property of less value than $20, except cattle distrained or impounded, does not exist in that state, and has not since 1789. King v. Dewey, 11 Cush. 218, 220. The general rule for determining the jurisdiction of courts, when it depends upon the amount of the claim, should be applied. That rule is, that the sum demanded in damages, or the amount alleged to be in controversy, or the alleged value of the property appearing on the face of the record, determines the jurisdiction. Gordon v. Longest, 16 Pet. 96; Green v. Liter, 8 Cranch 229.

Whether the witnesses, Carr and Felch, were qualified as experts was a question of fact for the referee, and his finding on the subject is conclusive. Cummings v. Centre Harbor, 57 N. H. 17.

ALLEN, J. 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, 8. 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