
    Henry Clay vs. Horace M. Barlow.
    Suffolk.
    November 14. —16, 1877.
    Colt & Ames, JJ., absent
    The “ debt or damages demanded” by which the St. of 1875, c. 106, § 1, regulates the jurisdiction of the municipal courts of Boston in civil actions, is the ad damnum in the writ, without regard to the amount claimed in the declaration or proved ai the trial.
    
      A writ descritied the cause of action as “ in an action of contract or tort; ” and the deck ration contained a single count in contract. The Superior Court overruled a motion to dismiss, and the defendant appealed. Held, that, so far as the objection related to the writ, the decision, by the Gen. Sts. c. 115, § 7, was final; and that, so far as it related to the declaration, it could only be taken by demurrer.
    Writ, dated February 21,1876, returnable to the Superior Court, and describing each party as having his usual place of business in Boston in the County of Suffolk, and the cause of action thus; “ In an action of contract or tort. To the damage of the plaintiff (as he says) the sum of five hundred dollars.” The declaration filed with the writ contained a single count upon an account annexed for $81 for goods sold on December 21, 1875.
    In the Superior Court, the defendant moved to dismiss the writ, for the following reasons:
    “ 1st. This court has no jurisdiction of the cause of action, the amount claimed being less than $100, and all the parties to the writ belonging in Boston in the County of Suffolk.
    “ 2d. The writ alleges the cause of action to be in contract or tort, but does not allege that the plaintiff is in doubt as to which it is, and the declaration does not pretend that it is in tort.”
    The court overruled the motion, and rendered judgment for the plaintiff for $84.80 damages, and $35.82 costs; and from the order overruling the motion to dismiss, the defendant appealed to this court.
    
      T. Riley, for the defendant.
    
      H. B. Callender, for the plaintiff.
   Gray, C. J.

The words “debt or damages demanded,” in the St. of 1875, e. 106, § 1, regulating the jurisdiction of the municipal courts of Boston, as in other statutes of the Commonwealth, defining the jurisdiction of courts by like words, refer to the ad damnum in the writ, and not to the amount claimed in the declaration or proved at the trial. Chamberlain v. Cochran, 8 Pick. 522. Hapgood v. Doherty, 8 Gray, 373. Trees v. Rushworth, 9 Gray, 47. Ladd v. Kimball, 12 Gray, 139. Ashuelot Bank v. Pearson, 14 Gray, 521.

The other objection, so far as it relates to the writ, was for a defect of form in process, upon which the decision of the court below was final; and, so far as it relates to the declaration, could not be taken otherwise than by demurrer. Gen. Sta. & 114, § 10; e. 115, §7 e. 129, § 2, el. 5; §§ 7, 12. Barlow v. Leavitt, 12 Cush. 483. Judgment affirmed.  