
    Linton versus Vogel.
    1. On an appeal to the Common Pleas from a judgment of a justice of the peace, the amount demanded by the plaintiff cannot be increased beyond the limits of the justice’s jurisdiction, except so far as to embrace interest which has accrued since the institution of the suit.
    ' 3. A. instituted suit for breach of contract against B. before a justice of the peace, and recovered judgment in the sum of $75. B. appealed to the Common Pleas, whereupon A. filed an affidavit claiming to recover the $75 with interest. Subsequently A. filed a narr. wherein his damages were laid at $500, and on the trial a verdict was rendered in his favor for $140. Subsequently the court permitted the plaintiff to amend his narr. so as to make the amouut claimed thereby $100, and .upon his remitting all of the verdict above that amount, entered judgment in his favor. Held, that this was error. The defendant had a right to insist that no damages should be claimed or proved at the trial greater than $100. Hence, the verdict should have been set aside and the case tried anew.
    3. Senible, that if the plaintiff had, prior to the trial, asked leave to amend the narr. so as to reduce the damages claimed therein to $100, the court would have been justified in permitting the amendment.
    October 3d 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1881, No. 172.
    Appeal from the judgment of a justice of the peace. Assumpsit. Yogle brought suit against Linton, before the justice, and recovered a judgment by default for $75, being the amount of damages claimed by the plaintiff for the non-fulfillment by defendant of a contract to farm a tract of land on shares. The defendant appealed to the Common Pleas, whereupon plaintiff filed an affidavit in which he claimed to recover $75, for damages as above stated; and subsequently filed a narr. wherein the damages were laid at the nominal sum of $500. The defendant filed an affidavit of defence and a plea, in which, among other things, lie set up want of jurisdiction in the court.
    On the trial, the plaintiff gave evidence tending to show that he had suffered damages to the amount of $140, for which sum the jury rendered a verdict in his favor. The defendant moved for a new trial, and in arrest of judgment, and the court, after argument made this order:—
    “May 23d 1881, on argument list and plaintiff allowed to amend his narr. by striking out $500 and inserting $100 as damages, and plaintiff now in open court remits all of the above verdict over $100. New trial refused and judgment directed to be entered for $100 and costs, on payment of verdict fee.”
    The defendant thereupon took this writ of error, assigning for error the above order, and the entry of judgment for $100.
    
      Whitesell & Son and Slagle (Wiley with them), for plaintiffs in error.
    On an appeal from a judgment by a justice the cause of action remains the same: Owen v. Shelhamer, 3 Binney 45. The trial was, in fact, had on a new cause of ‘action for a claim exceeding $100, and after a verdict for a sum in excess of the justice’s jurisdiction, the court permitted the narr. to be amended, and the excess to be relinquished, in order to make it appear by the record that the cause of action remained the same. While a court may correct its records so as to conform to facts, it cannot thus assume an unlawful jurisdiction, and afterwards alter the record, not in conformity with facts, making it appear to conform to the law: Collins v. Collins, 1 Wright 387 ; Bower v. McCormick, 23 P. F. Smith 427; 2 Troubat & Haley’s Pr. 185, 193.
    
      Geo. H. Quaill, for the defendant in error.
    There being no bill of exceptions to evidence, the bare record is before the court, which shows : a suit before a justice for $75, and judgment for that sum; an appeal to the Common Pleas; a narr. laying damages at $500 ; a verdict for $140 ; an amendment before judgment reducing the damages claimed in the narr. to $100; and a remittitur, by leave of the court, for all in excess of $100. This record shows no error. The plaintiff cannot, by
    
      relinquishing part of his claim, confer jurisdiction on a justice, but where the sum demanded is within the jurisdiction of the justice, and the jury give a sum beyond that, the plaintiff can remit the excess, and have judgment for the balance. This can be done at the bar of the court: Darrah v. Warnoch, 1 P. & W. 21; HcEntyre v. McEldnff, 1 S. & B. 18.
    When the demand is within the jurisdiction of the justice, it is not fatal to the appeal that a sum beyond his jurisdiction is laid in the declaration to cover the damages, it is only by a rule of court that a declaration in an appeal case is rendered necessary at all: Greenawalt v. Shannon, 8 Barr 465; Hoffman v. Dawson, 1 Jones 280 ; Collins v. Collins, 1 Wright 390 ; Funk v. Ely, 2 P. F. Smith 442. The amendment, however, as it was made, was wholly unnecessary, and the want of such amendment could not have been taken advantage of by the defendant below after a trial on the merits. Hence a usele'ss and unnecessary amendment of the record, harmless in itself, doing nobody injury, and surprising nobody, cannot be alleged as error: Greenawalt v. Shannon, 8 Barr 465; Hoffman v. Dawson, 1 Jones 280.
    Besides, every court of record has the power of amendment and may exercise that power at any time, before final judgment: Pa. & N. Y. R. R. & Canal Co. v. Bunnell, 31 P. F. Smith 414.
    October 31st 1881.
   Mr. Justice Sterrett

delivered the opinion of the court,

While it is true, in a certain sense, that on appeal from the judgment of a justice the proceedings are de novo, it is well settled that the cause of action cannot be changed, nor can the demand be increased beyond the limit of the justice’s jurisdiction, except so far as to embrace interest which has accrued since the institution of suit. A verdict and judgment for more than that is conclusive that the action was either erroneously brought or improperly prosecuted; Darrah v. Warnoch, 1 P. & W. 21. In the preseut case the plaintiff’s demand, before the justice, was $75, damages for breach of contract, and for that sum he obtained judgment, from which defendant appealed. In his affidavits filed in court, setting forth more fully the contract and breaches thereof, he claimed the same amount with interest from July 1st 1879. Thus far the record exhibits a cause of action clearly within the jurisdiction of the justice1; but the declaration, containing the common counts, to which is added an inartificially drawn special count on the verbal contract, lays the damages at $500. This might and should have been amended, by leave of court, so as to bring the case properly within its jurisdiction ; but, without offering to do so, the plaintiff proceeded to’trial, and having introduced testimony tending to prove the allegations contained in the special count, and items of damage, exceeding in the aggregate the jurisdiction of the justice, a verdict was rendered in his favor for $140, nearly twice the amount demanded by him on the hearing before the justice and subsequently in his affidavits of claim. The plaintiff in error could not be thus called upon to defend against a claim of damages, the items of which in the aggregate, as shown by the testimony as well as the verdict, greatly exceeded the jurisdiction of the court on appeal, fie was not bound to anticipate or defend against such excessive claim, nor would the court have been justified in entering judgment on the verdict as rendered. The result was a mistrial, and the verdict should have been set aside or judgment arrested ; but, after verdict, the court permitted the plaintiff to amend by striking out $500, and inserting $100, as damages, and then upon his remitting all of the verdict in excess of $100, judgment was entered for that amount. In this we think there was error. While the power of the court to authorize the amendment cannot be questioned, the circumstances were not such as to justify the entry of judgment for $100. Inasmuch as the defendant was not bound to anticipate or defend against a claim for damages exceeding $100, the verdict was invalid, and judgment thereon for the amount found by the jury would have been irregular and illegal. Nor was it competent for the plaintiff to cure the defect by remitting part of the verdict, or for the court to determine that $100 was the proper amount of damages for which judgment should be entered. The defendant below had a right in the first place to insist that damages, exceeding the limit of the justice’s jurisdiction, should neither be claimed nor proved, and in the next place he was entitled to have the jury pass upon the question of damages. The plaintiff, in his original demand supported by his own oath on the hearing before the justice, and in the affidavits of claim afterwards made in court by himself and his attorney, fixed his damages at $75. There is no good reason why he should have judgment for more than that sum with interest. It is not to be presumed that the plaintiff under-valued his own claim. If the declaration had been amended before or during trial, and the testimony as to the damages had been kept within proper bounds we would not feel disposed to disturb the judgment, but, as it is, we are of opinion that it cannot be sustained.

Judgment reversed, and a venire facias de novo awarded.  