#### DUCKWORTH v. MULL.

(Filed December 22, 1906).

Torts — Jurisdiction of Justice — “Property in Controversy

1. In an action begun before a justice of the peace in which the plaintiff made demand in the sum of $50 for damages done to his property and premises by defendant in depositing the carcass of a dead horse near the lands of the plaintiff, whereby the comfort and enjoyment of his home were impaired and a nuisance committed to his premises, the Superior Court, on appeal, erred in dismissing the action for want of jurisdiction in the justice.

2. Art. IV, see. 27, of the Constitution, and Revisal, sec. 1420 (enacted to carry out this provision), which provides that “justices of the peace shall have concurrent jurisdiction of civil actions not founded on contract wherein the value of the property in controversy does not exceed $50,” comprehend all actions ex delicto, the term “property in controversy” meaning the value of the injury complained of and involved in the litigation, and where a plaintiff, in good faith, states or limits his demand in actions of this character at fifty dollars or less, the justice has jurisdiction concurrent with the Superior Court to hear and determine the matter.

Walker and CCuraoR, JJ., dissenting.

ActioN by Frank Duckworth against F. K. Mull, beard on appeal from a justice of tbe peace by Judge O. H. Allen and a jury, at tbe June Term, 1906, of tbe Superior Court of Buree.

Tbe plaintiff made demand in tbe sum of fifty dollars ($50) for damage done to bis property and premises by defendant in depositing tbe carcass of a dead horse near tbe lands of tbe plaintiff, whereby tbe comfort and enjoyment *462of bis borne were impaired and a nuisance committed to bis premises by tire filth and stencb arising and flowing therefrom.

There Was evidence on the part of the plaintiff tending to show that the defendant, on 22 June, 1904, had placed in a gully above his (plaintiff’s) spring and premises, the carcass of a horse; that the point where the same was deposited was only some fifty yards above the head of a branch which ran within ten steps of plaintiff’s spring, and that when it rained, the water would run down the gulley from the carcass from the head of the branch and on down past the spring.

There was evidence tending to show further that the plaintiff suffered great annoyance and discomfort from the stench arising from said carcass; that it could be noticed distinctly 300 yards below the premises and spring of the plaintiff, and in the field above his house; that his stock refused to drink in the branch at his watering-place; that the buzzards sat in the trees and around the spring, and that he was forced to get water at another place; that plaintiff, prior to the beginning of this action, went to defendant and asked him to cover up1 or remove the carcass, but defendant refused to do so.

At the close of plaintiff’s testimony the defendant moved for judgment as of nonsuit under the Hinsdale act for want of jurisdiction in-the justice of the peace before whom the same was begun, and of the Superior Court on appeal to hear and determine the same. Motion allowed, and plaintiff excepts. Judgment for defendant, to which judgment plaintiff excepted and appealed to the Supreme Court.

Avery & Ervin for the plaintiff.

Avery & Avery for the defendant.

HoKe, J.

The Constitution of this State, Art. IV, sec. 21, ordains that justices of the peace shall have jurisdiction, *463under such regulations as the General Assembly shall prescribe, of civil actions founded on contract wherein the sum demanded shall not exceed $200 and wherein the title to real estate shall not be in controversy; and provides further that the General Assembly may give to the justices of the peace jurisdiction of other civil actions wherein the value of the property in controversy does not exceed $50.

Carrying out the provisions of this section, the Legislature has enacted as follows:

Sec. 1419: “Justices of the peace shall have exclusive original jurisdiction of all civil actions founded on contract except, (a) wherein the sum demanded, exclusive of interest, exceeds $200; ([b) wherein the title to real estate is in controversy.”

Sec. 1420: “Justices of the peace shall have concurrent jurisdiction of civil actions not founded on contract wherein the value of the property in controversy does not exceed $50.” Kevisal 1905, secs. 1419, 1420.

By this statute, the Legislature has conferred on justices of the peace jurisdiction in terms certainly as broad as the Constitution permitted, and this jurisdiction, therefore, will depend on the true interpretation of the constitutional provision.

The' question involved here being onte of civil jurisdiction, only the clauses of the Constitution pertinent to that inquiry'have been quoted. And the subject of contract having been dealt with in express terms, when the Constitution provided that jurisdiction could be conferred in “other civil actions,” it was referring to actions of tort, and the question presented here is whether this clause authorizing that jurisdiction could be given in “other civil actions where the value of the property in controversy does not exceed fifty dollars,” includes all torts or only a restricted class of torts.

*464On that question we think that the decisions of this Court, already made, lead necessarily to the conclusion that the clause referred to comprehends, and was intended to comprehend, all actions ex delicto; that the term, “property in controversy,” here used as determinative of jurisdiction, by correct interpretation, means the value of the injury complained of and involved in the litigation; and where a plaintiff, in good faith, states or limits his demand in actions of this character at fifty dollars or less, the justice, as provided by the statute, has jurisdiction concurrent with the Superior Court to hear and determine the matter.

Thus in Malloy v. Fayetteville, 122 N. C., 480, it was held:

(a) “The provision in sec. 27, Art. IV, of the Constitution, authorizing the General Assembly to give to justices of the peace ‘jurisdiction of other civil actions wherein the property in controversy does not exceed fifty dollars,’ is not a restriction, even by implication, to forbid conferring jurisdiction where damage, and not property, is in controversy.

(b) “Section 888 of The Code authorizing action for ‘damages’ not exceeding fifty dollars to property, though the property be of greater value, does not contravene sec. 27 of Art. IV of the Constitution, and is authorized by sec. 12 of said article.

(c) “A justice of the peace has jurisdiction of an action for damages not exceeding fifty dollars for injury to personal property, though such property be of greater value than fifty dollars.”

This was an action for negligent injury to personal property where the property, a horse and buggy, was shown to be worth more than one hundred dollars; but the injury thereto, the matter in litigation, was alleged and proved to be less than fifty dollars, and the verdict and judgment were upheld.

And in the more recent case of Watson v. Farmer, 141 N. C., 452, approving Malloy v. Fayetteville, it was held:

*465“Courts of justices of tbe peace bave jurisdiction to bear and determine actions for injury to personal property and to render judgments thereon, not exceeding fifty dollars, and tbe jurisdiction is not determined by the value of tbe property injured, but by tbe amount demanded in tbe warrant or complaint.”

Justice Broiun, in delivering tbe opinion, says “tbe jurisdiction of tbe justice is not to be measured by tbe value of tbe property, but by tbe amount demanded in tbe warrant or complaint.”

In both of these opinions tbe value of tbe property injured is rejected as tbe test of jurisdiction, and tbe value of tbe injury, as defined and limited by the summons and complaint, is adopted.

And we are not impressed with tbe position taken, that this addition to a justice’s jurisdiction should be confined to actions for claim and delivery of personal property.

While tbe proceedings of tbe Convention of 1815, this being tbe convention by which tbe section in question was established, are not very fully reported, we know that one of tbe purposes considered most desirable at that time was to enlarge tbe jurisdiction of justices of tbe peace; and no good reason suggests itself why such a purpose should be stopped short by adding'only one additional cause of action to tbe jurisdiction already bad by these officers; and we know that tbe first Legislature which met after this change in tbe organic law enacted tbe statute as it now appears in tbe Eevisal, sec. 1420: . “Justices of tbe peace shall bave jurisdiction of civil actions not founded on contract wherein tbe value of tbe property does not exceed fifty dollars.”

Tbe simple, natural interpretation of tbe statute would make it apply to all “civil actions not founded on contract,” and should bave much weight as tbe first legislative interpretation of tbe meaning of tbe clause in question.

*466Again, it is urged that if the Convention of 1875 had intended to confer this extended jurisdiction in actions for tort, they would have used the terms, “in other actions where the amount demanded does not exceed1 fifty dollars,” as they did in speaking of contract.

The answer is, that in contract the “sum demanded” would include every case of contract; whereas, in tort, these words would not have been sufficiently broad, inasmuch as they would have excluded actions for specific personal property, one of the most useful and common of the actions ex delicto. And it might he further answered that if the convention had intended to confine this jurisdiction to actions for claim and delivery, they could easily have said so; and they no doubt would, for they were a body of men who knew their minds and knew how to express their meaning in apt and forceful language.

We are clearly of the opinion, as heretofore stated, that these words, “where the property in controversy does not exceed fifty dollars,” mean, and were intended to mean, the ^ value of the injury involved in the litigation.

In the business affairs and transactions of individuals and the construction of instruments which concern the devolution and transfer of property between them, this term “property” has usually received a more restricted construction. It has been so in the decisions of' our own Court; but in constitutions and public statutes where the words permit, and the spirit and intent of the law require, the word “property” has frequently and more usually been accorded the broader significance which we have given it. '

In the sections of our Constitution protecting life and property, the term is held to include vested rights of action.

As said in Cooley dn Constitutional Limitations (7 Ed.), p. 577: “A vested right of action is property in the same *467sense in which, tangible things axe property, and is equally protected from arbitrary interference.”

And in Black’s Constitutional Law, p. 432, it is said: “A cause of action, accruing at common law or by a contract, which is fixed and settled in a particular person, and continues in force, is a vested right within the protection of the constitutions. It is property, and it cannot lawfully be divested by legislative interference, or by taking away the legal means of making it effective, or by so hampering it with conditions or restrictions as to render it practically worthless.” Also, Angel v. Railway, 150 U. S., pp. 1-19.

And in Railway v. Dunn, 52 Ill, 260, construing a statute giving to married women control over their separate property, the term “property” was held to include a right of action for personal injury. In delivering the opinion Chief Justice Breese said: “If, then, it can be established that the right of action for this injury is property, as it came to her from a source other than her husband, then it was her separate property and comes under the operation of the act.” And the Chief Justice then proceeds: “Chancellor Kent, in his Commentaries, says another leading distinction in respect to goods and chattels is the distribution of them into things in possession and things in action. The latter are personal rights, not reduced to possession, but recoverable by suit at law. Money due on bond or other contract, damages due for breach of covenant, for the detention of chattels or for torts, are included under this general head or title of things in action. 2 Kent’s Com. (Comstock’s Ed.), 432, under the head of the nature and various kinds of ‘personal property.’ A right to sue for an injury is a right of action; it is a thing in action, and is property according to this authority.”

There are decisions by the Supreme Courts. of Michigan, Ehode Island and Connecticut to like effect in questions of similar import. Dunlap v. Railway, 50 Mich., 470; Cooney *468 v. Lincoln, 20 R. I., 183; Hubbard v. Brainard, 35 Conn., 563.

There is a decision to the contrary in Wisconsin: Gibson v. Gibson, 43 Wis., 23. In that case, some weight was given to the wording of the particular statute. Apart from this we do not think this case is well considered, or that it is in accord with the weight of authority.

We are therefore of opinion, and so hold, that the Constitution has granted the right to confer jurisdiction to the extent therein specified in the case of all actions arising ex delicto j and the Legislature having given this jurisdiction to justices of the peace, there was error in dismissing the case, and the judgment is reversed.

Judgment Eeversed.

Walker, J.,

dissenting: This is the first case, I believe, where a justice of the peace has been held to have jurisdiction of an action for the recovery of damages for a tort which did not consist in a direct injury to property. My own opinion is, and always has been, that it was never intended by the Constitution, Art. IV, sec. 27, to confer jurisdiction in actions not ex contractu, except for the recovery of specific property or, at most, for the recovery of damages to property not exceeding the value of fifty dollars. Jurisdiction of the justice could only be vested by express provision of the Constitution, or by legislative grant given in pursuance of the provisions of the Constitution. The Constitution, Art. IV, sec. 27, provides that “The several justices of the peace shall have jurisdiction, under such regulations as the General Assembly shall prescribe, of civil actions founded on contract, wherein the sum demanded shall not exceed $200, and wherein the title to real estate shall not be in controversy; and of all criminal matters arising within their counties wherein the punishment cannot exceed a fine of $50 or imprisonment for thirty days. And the General Assembly *469may give to justices of the peace jurisdiction, of other civil actions wherein the value of the property in controversy does not exceed $50.” The Constitution does not in terms confer jurisdiction upon justices to try actions for damages arising from torts, and it limits the power of the General Assembly in conferring jurisdiction to those cases wherein the value of the property in controversy does not exceed $50. In Malloy v. Fayetteville, 122 N. C., 480, it was held that a justice of the peace has jurisdiction of an action for damages not exceeding $50 for injury to personal property, though such property be of greater value than $50; but this was held by a bare majority of the Court, and, with all respect, I submit, against the correct interpretation of the Constitution.

Unless sec. 27 of Art. IY is a restriction upon the legislative power to confer jurisdiction upon justices of the peace, then there is no restriction upon the legislative will in this direction, and jurisdiction may be conferred upon them in any amount and covering every variety of action.

Art. IY, sec. 12, which is cited in the opinion in Malloy v. Fayetteville, in support of the decision in the case, concludes with the sentence, “so far as the same may be done without conflict with other provisions of this Constitution.” Any allotment of other jurisdiction than that mentioned in see. 27 is certainly in conflict with that section. The enumeration of powers which may be exercised is always held to exclude the exercise of other powers not enumerated. When the Constitution says, “and the General Assembly may give, to justices of the peace jurisdiction of other civil actions wherein the value of the property in controversy does not exceed $50,” it is manifest that the meaning would not be added to it if it had said further, “it shall confer no further or other jurisdiction.” If sec. 12 of Art. IY authorizes an allotment of jurisdiction not mentioned in see. 27, why would it not be competent for the Legislature to increase the juris*470diction in actions founded on contract to any amount it pleases beyond $200 ? Why would it not also be competent for tbe Legislature to give to justices of the peace jurisdiction in criminal matters without the limitation of punishment ? Section 27 does not expressly forbid the Legislature to confer'jurisdiction beyond $200 in civil suits nor in criminal matters where the punishment exceeds a fine of $50 or imprisonment for thirty days. It simply says that justices shall have jurisdiction up to that limit, but certainly does not say that they shall not have jurisdiction beyond that limit.

■ It is true that there are a number of cases having their origin before justices of the peace which .were brought to recover damages for injury to personal property and which came to this Court and were upheld before the case of Malloy v. Fayetteville was decided; but not in a single one of those cases was the question of the constitutional power to confer jurisdiction raised. It appears for the first time in Malloy v. Fayetteville, and the authority of that case is greatly weakened by the force of the two dissenting opinions. Even if the Legislature could confer the jurisdiction on a justice of the peace of an action for the recovery of damages for injury to personal property, it appears to me that it has not done so.

Section 1420 of the Revisal of 1905 provides: “Justices of the peace shall have concurrent jurisdiction of civil actions not founded on contract, wherein the.value of the property in controversy does not exceed $50.” This section is in exact harmony with sec. 27 of Art. IY of the Constitution, and in express terms confers the jurisdiction which the Constitution permitted the Legislature to confer.

The section relied on in the opinion of the Court in Malloy v. Fayetteville is now sec. 1476 of the Revisal of 1905, and reads as follows: “All actions in a court of justice of the peace for the recovery of damages to real estáte, or for the *471conversion of personal property, or any injury thereto, sliall be commenced and prosecuted to judgment under the same rules of procedure as provided in civil actions in a justice’s court.” This section assumes the existence of the jurisdiction of the justice in such cases, and merely provides rules for the conduct of the trials, but it does not confer jurisdiction. It is significant that sec. 1420 appears in the Kevisal under subdivision III, chap. 27, entitled “Civil Jurisdiction,” while sec. 1476 appears under subdivision VII, chap. 27, entitled “Eules of Procedure.” Section 1420, conferring the jurisdiction which the Constitution says the Legislature may confer,, limits that jurisdiction to cases wherein the value of the property in controversy does not exceed $50. Section 1476 places no limitation upon the jurisdiction. If sec. 14-76 does confer jurisdiction upon justices of the peace to hear and determine cases involving injury to personal property, to what amount is their jurisdiction limited ? The Court in Malloy v. Fayetteville assumes that the amount is limited to $50; but why to $50? Section 1476 mates no limitation. It simply lays down the rule of procedure, which is certainly not the same thing as jurisdiction, and that rule of procedure is to be the same as provided in civil actions in the justice’s court. Now there are two kinds of civil actions in the justice’s court: one founded on contract, wherein the jurisdiction is limited to $200, and one founded on tort, wherein the jurisdiction is limited to $50. Which shall he the limitation here, and what did the Legislature mean ? It seems clean to me that the Legislature, even if it had the power, has not conferred upon justices of the peace jurisdiction in matters of this sort. When the Constitution established the courts of justices of the peace, it fixed their jurisdiction, and when it conferred upon the Legislature the authority to add to that jurisdiction, it in express terms states in what particular it may add to it. But whether or *472not jurisdiction is conferred in cases of tort for injury to property, and is not confined to tbe recovery of specific property, an action, such as this one, is certainly one of the first impression. The Convention could not have intended to grant such jurisdiction in all cases of wrongs, whether to property, person or character, and without regard to their nature, by the mere use of the word “property,” which has a well-defined meaning, when used in the Constitution in connection with the subject to which it relates.

In Malloy v. Fayetteville, it appears, at p. 483, that the present Chief Justice, who there spoke for the Court, evidently thought there was a clear distinction between the word “property,” as used in the Constitution, and- the word “damages,” or the right to recover them, and he places the decision of the Court upon the ground that the right to recover “damages” as distinguished from “property” is conferred, and conferred only, by Art. IY, sec. 12, of the Constitution, which provides that the portion of power and jurisdiction which does not pertain to this Court may be allotted and distributed by the Legislature among the other courts created by that instrument or which may be established by law, in such manner as it may deem best, and that the Legislature has actually given the jurisdiction under this section by passing what is now sec. 1476 of the Revisad

But it has been shown, it seems to me, that no such jurisdiction was conferred by that enactment (Revisal, sec. 1476) or intended to be conferred by the Constitution, Art IY, sec. 12. But there is more to be said: When conferring jurisdiction of non-residents upon courts a sharp distinction has always been drawn between the word “property” and the term “subject-matter” of the action. The latter term signifies the nature of the cause of action and of the relief sought. It relates to the right to prosecute the particular suit and to obtain the relief demanded; while the word *473“property” is used in quite a different sense as denoting something tangible, or at least something which may be subjected to the process of the Court, as in the case of attachment dr garnishment. It is the res and not the mere right in the particular action to sue for damages. Cooper v. Reynolds, 77 U. S., 308; Pennoyer v. Neff, 95 U. S., 714; Foltz v. Railroad, 19 U. S. App., 581; Hall v. Hall, 12 W. Va., 15. When we refer to the constitutional protection over property or the right of a married woman to acquire and own property in her own right, as her separate estate, or to the subjects of taxation — and perhaps there are some other instances — we may very well say that the word “property” as there used should be considered a nomen general-issimum and should embrace within its meaning everything owned and possessed, whether tangible or intangible, for that is the manifest purpose. This meaning is given to the word in order to comply with the evident intent, as ascertained from the context, and the necessity arising out of the particular nature of the law being construed. Cases referring to such a use of the word are not, therefore, in point. It would seem that my view is supported by the case of Smith v. Campbell, 10 N. C., 590, where the Court gave a restricted meaning to the word “property” when construing a clause of the Constitution in respect to the jurisdiction of a justice of the peace. See also Pippin v. Ellison, 34 N. C., 61. When the word was used in the Constitution it was meant to refer to the thing for the recovery of which the action is brought, and not to the right to bring the action to recover that thing. It is the value of the former, and not of the latter, that determines the jurisdiction, and it can make no difference whether the thing to be recovered is personal property in possession or a chose in action. If either is the thing sought to be recovered, or the value of it, if there has been a conversion, it is the “property in controversy.” The divis*474ion of property into real and personal and- of the latter into property in possession and in action can have no material bearing’ on this case,. and will tend, I think, more to obscure than to elucidate the real question involved. The framers of the Constitution evidently meant that the thing for the recovery of which, or of damages for its conversion, the suit is brought, should be considered as the property in controversy. This is the natural and, it seems to me, the only meaning they could have intended to express. If it is not, it logically follows from the decision in this case that a justice will have the power to try all kinds of tort's, such as libel, slander, seduction and the many others known to the law. It cannot be that it was intended to confer such an extensive jurisdiction.

CoNNOR, T., concurs-in the.dissenting opinion.