
    Covington vs. Neilson.
    When the judgment rendered in the circuit court is under fifty dollars, it cannot be arrested upon the ground of want of jurisdiction in the court; it must be pleaded in abatement, 
    
    When an appeal in the nature of a writ of error was prayed and granted to the supreme court, and bond and security given, but the record was not filed at the next term of the supreme court, and afterwards the party applied to one of the judges of the supreme court for a writ of error, and the same was granted by the judge, under which the record was filed: Held, that the cause was well brought before the court.
    The plaintiff in error, Covington, issued his writ in assumpsit for ninety dollars, for which sum he declared. Upon the trial in the court below he recovered less than fifty dollars. The circuit court on motion arrested the judgment. The plaintiff prayed an appeal in the nature of a writ of error to the supreme court, which was granted; he entered into bond as required by law. This was at November term, 1S32, and the plaintiff did not file the record at the next term of the supreme court. In February, 1833, plaintiff obtained an order from a judge of this court for writs of error and supersedeas returnable to this term of the court.
    
      H. «á. Garrett, for plaintiff in error.
    This should have been pleaded in abatement, and is not a good cause in arrest, as has been decided by this court. 1 Yerger’s Reports, 489.
    For this error in the court below, the counsel for the plaintiff expects the judgment to be reversed, and judgment rendered for plaintiff for the amount found by the judgment.
    
      Stoddart and Brown, for defendant in error.
    Defendant’s counsel contend, that these cases should be dismissed, as not brought up within the provisions of any ox the statutes upon the subject.
    The plaintiff having prayed and obtained an appeal in the ordinary mode, be was not entitled to a writ of error granted out of court. He was bound to prosecute bis. appeal as he prayed for it. The writ of error by a judge out of court is only to be granted in cases where an appeal in the nature of a writ of error is not granted in court. The statute of 1827, ch. 50, sec. 1, provides, that when an appeal in the nature of a writ of error shall have been taken up to the court, and the plaintiff in error non-suited on the ground that the appeal was not taken up within the time prescribed by the rules of the court, that then he may still have the benefit of a writ of error in the same manner as though no appeal in the nature of a writ of error had been granted. The statute was designed to benefit plaintiffs in error who had made exertions to prosecute their appeals, but had failed, but does not extend to those who-had made no such exertions. The case provided for is, where- there has been a non-suit on an appeal not brought up in time. The present case is left as it stood prior to the passage of that act.
    
      
      
         a) 1 Yerger’s Rep. 489.
    
   Peck, J.

delivered the opinion of the court.

The writ and declaration are for a sum within the jurisdiction of the circuit court, but upon the trial before a jury, a verdict was rendered for a sutn less than fifty dollars, and the judgment has been arrested.

This is erroneous; by the act of 1803, ch. 5, sec. 2, it is provided; that if any suit shall be brought in the county court for a less sum than fifty dollars, said suit shall abate on the plea of defendant. It is always presumable that the sum in dispute is as well known to the defendant as to the plaintiff. If, therefore, the defendant knows the action is brought for a sum under the jurisdiction of the court, no matter what may be the sum laid in the writ and declaration, he has the right to put the question of jurisdiction in issue by a plea in abatement, resting the point upon the sum in dispute. This not having been done and the writ and declaration showing jmima facie a cause of action for a sum properly within the jurisdiction, and the matter in abatement having been waived, it was too late to take advantage of the question of jurisdiction, when it had been discovered by the verdict that the sum was under the jurisdiction.

The question made by the defendant in error in the brief as to the manner of bringing up the cause into this court, can avail him nothing. The writ of error, whether we consider it here under the fiat of the judge, or in virtue of the appeal prayed and granted, is well before us. One of the forms of bringing it up was good, and it is not material to inquire which was the most correct one to have pursued. The judgment is therefore reversed, and this court proceeding to give such judgment as the circuit court should have rendered, give a judgment to the plaintiff on the verdict.

Judgment reversed.  