
    William McFarland v. Nathan Nixon, et al.
    
    An account offered upon the trial of a warrant, for a sum exceeding sixty dollars, stated to be “ due by account,” must be signed.
    The plaintiff brought his action by warrant, returnable before a single justice, and in the said warrant stated his claim to befor “ debtdue by account for the amount of seventy-six dollars.” Having failed to sustain his demand before the magistrate, he appealed to the County Court, where a verdict was rendered against him, and he then appealed to the SuperiorCourt.
    On the trial before Seaweed, Judge, at Gates on the last Circuit, it was ruled by the Judge that the plaintiff could not give in evidence any account other than a signed account, and judgment of nonsuit was entered. The plaintiff moved to have the nonsuit set aside, and this motion being refused he appealed to this court. Other points were made which it is unnecessary to state.
    No counsel appeared for either party.
   Gaston, Judge.

After stating the case as above, proceeded:

We are of opinion that there was no error in the decision of the Judge upon the admissibility of the evidence. By law, justices have jurisdiction of claims due by a signed account, if the amount docs not exceed one hundred dollars ; but their jurisdiction in regard to unsigned accounts is limited to sums not exceeding sixty dollars. The warrant does not indeed in express terms declare that the claim is founded on a signed account, but it avers that it is for “ a debt due by account for the amount of seventy-six dollars." It must be intended that the plaintiff alleges his claim to be one of which the justice had jurisdiction, and therefore it cannot be otherwise understood than for a debt duo by signed account. The warrant being the plaintiff’s declaration, no evidence could be rightfully received which did not sustain it.

As to what is stated in the case about the different motions to amend, of the refusal of the plaintiff to accept the permission to amend on the terms oifered by the judge —and of the judge, after this rejection by the jdaintid) refusing to allow an amendment when prayed for a second time — it is enough for us to say that upon these and similar questions, the judge below has a sound discretion which this court has not the right to control.

The judgment of nonsuit is affirmed.

Per Curiam — Judgment aeeirmed.  