DICK against GASKILL, 2 Whart. 184

The opinion of the Court was delivered by Sergeant, J. By the act of assembly of the 30th of March, 1811, the District Court of the city and county of Philadelphia, has no jurisdiction, except where the sum in controvery exceeds one hun-, dred dollars. Where it is less than that sum, or only reaches it, the jurisdiction belongs to the Court of Common Pleas, or a justice of the peace. In Kline v. Wood, (9 Serg. & Rawle, 294,) this subject was carefully examined by Mr.

Justice Duncan ; and in delivering the opinion of the court, he lays down the rule to be, that in personal actions, it is not the amount recovered that is to determine, but in order to ascertain the sum in controversy, the declaration must be resorted to; and in actions for damages founded on a tort, the sum claimed by the plaintiff in his declaration, is conclusive; but- in actions on contract, the cause of action stated by the plaintiff must be regarded; and if on that cause of action, the plaintiff might recover beyond one hundred dollars, the District Court has jurisdiction; if he could not, the jurisdiction is in the Court of Common Pleas, or a justice of the peace.

In Kline v. Wood, the plaintiff declared in assumpsit, for damages sustained in the sale of a horse to him by the defendant, which was warranted sound, and turned out to be unsound. He stated the price of the horse to be $80, and his expenditure of a sum beyond that, for the care and keeping of the horse after the purchase, amounting in the whole to $150, and concluded to his damage $200.

This court held that the District Court had not jurisdiction, because it was manifest that in this declaration, the plaintiff could legally recover in damages, oply the difference between the value of a sound and unsound^hórsé’, dr at the utmost the price of the horse; and that-was under $Í00.;;_f Testing the present case by these rules, it is clearly distinguishable from Kline v. Wood.

The declaration is in case, and states as the gravamen of the complaint, that the defendant agreed that the ward should stay with and work for the said -plaintiff; until he, the ward, should become of age, which would, be on the 19th of May, 1838, and for the performance of his said_agreement, bound himself in the penalty of $100. It then sets forth the breach, that the ward had not staid, but left the plaintiff’s employment, &c.; to his damage, $300.

The only question that arises on.'this declaration is, whether the plaintiff is limited to the, sum. mentioned as the penalty, or might recover damages beyond it; for in the latter case, the sum in controversy did exceed $100, and the .court had jurisdiction.

And we think the cases cited satisfactorily prove the rule of law to be, that where there is- a contract for the performance of certain things, and the party binds himself in a penalty for the performance, the party complaining of the breach of such contract, has his election either to bring debt for the penalty, or case for the breach of the contract ; and in the latter case may recover even beyond the amount of the penalty in damages ; and where-the word penalty is specifically used, it is not in the nature of liquidated damages, but merely as a security.

On this declaration, therefore, the plaintiff might legally have recovered more than one hundred dollars; and therefore the jurisdiction of the District Court extended to the case. It may be proper to add that there are some cases in which the sum in controversy cannot be ascertained by the declaration, such, for instance, as suits before justices of the peace, where the question may be determined on affidavits, (3 Yeates,) or ejectments in which the value may appear in the evidence, or perhaps by affidavit.

So in replevin, where the issue is as to the amount of rent in arrear, the sum claimed for rent in the avowry was chnsidered as the test. Ancora v. Burns, (5 Binn. 522.) Judgment affirmed.