
    Southwick, Cannon and Warren vs. Reuben Merrill.
    Franklin,
    
      Janury, 1830.
    
    The sum actually appearing to be due from the record of a judgement, and not the amount for which the judgement was rendered, is the “ debt or matter in demand, within the meaning of the statute defining the powers of justices of the peace; and
    Where ajudgement had been rendered for more than one hundred dollars, and a payment had been made, and endorsed, which reduced the sum due to less than one hundred dollars, — it was held, in an action of debt brought on such judgement, that the county court had not jurisdiction of the action.
    Where it appears on the trial of an action from the plaintiff’s own showing, that his debtis not of sufficient amount to give the court jurisdiction, the cause will be dis~ missed on motion.
    This was an action of debt on ajudgement rendered by a justice of the peace, on the confession of the defendant, for $563,50, and there was endorsed on the record by the plaintiff’s attorney $533,86. The suit was brought originally to the county court after the endorsement had been made. No mention was made in the declaration of the endorsement, but the judgement was declared on as though no payment had been made thereon. On trial there was no dispute respecting the correctness of the endorsement, but the only question was, whether the court had original jurisdiction of the action. The defendant filed a written motion praying that the suit might be dismissed for want of jurisdiction, and on this ground the court dismissed it. The parties afterwards agreed on a statement of facts, on which the case was removed to this Court for a final decision.
   After argument,

Prentiss, Ch. J.,

delivered the opinion of the Court. — It appears from the case agreed upon by the parties, that the plaintiffs declared in debt on a judgement for the sum of $663,50, but the record produced by them on the trial shewed an acknowledgement of satisfaction for the sum of $533,86, leaving due on the judgement the sum of $87,69, including interest. The court below dismissed the action, on the ground that the plaintifi’s demand was within the jurisdiction of a justice of the peace, and, consequently, not within the original jurisdiction of that court.

Every justice of the peace is authorized and empowered to hear, try, and determine all pleas and actions of a civil nature, other than certain actions particularly specified, where the debt, or other matter in demand, does not exceed the sum of one hundred dollars; and in all such cases, the county court has appellate jurisdiction-only. — (Comp. Stat. p. 139-91.J The question in the case before us, therefore, is, whether the original amount of the judgement declared upon, or the sum appearing from the record to be doe upon it was the debt or. matter in demand, within the meaning of the statute; and we are all of opinion, that the balance, which thus appeared to be due from the plaintiffs’ own showing, must be regarded as the debt or matter in demand. It is certain that the sum due on the judgement was the real debt, and all that could be recovered in any form. Though by the modern decisions, a less sum may be recovered than is demanded in the declaration, in an action of debt on judgement, as well as on simple contract, and it is not necessary to demand the precise sum due, as required by the old law, yet, as the plaintiffs might have declared lor the balance of the judgement only, the right of jurisdiction in the court below did not depend on the manner in which the declaration was framed in this respect, but upon the sum which appeared from the record to be due. Where payment in part satisfaction of a judgement is'set up by the defendant, and does not appear from the record,- as the payment in such case may- be a matter of dispute, and the plaintiff has a right to contest it,the jurisdiction of the court will not be affected although the plaintiff’s demand may be reduced thereby to one hundred dollars or less.

Where the want of jurisdiction appears from the face of the writ, the defendant may avail himself of the objection by plea; but where from the writ the court, prima facie, has jurisdiction, but it appears on trial, from the plaintiffs own showing, that his debt or demand is not of sufficient amount to give the court jurisdiction, the course is to dismiss the action on motion. Such has always been the practice; and if it did not prevail, it would be in the power of the plaintiff to give the court jurisdiction, in evasion of the statutes, in any case, by merely declaring for or demanding a sum exceeding one hundred dollars. In actions of tort, where the damages are uncertain, and rest in the discretion of the jury, the damages demanded must be the criterion of jurisdiction. In actions on penal bonds, as the penalty is the debt at law, and judgement is regularly to be entered up for that, the question of jurisdiction must be determined by the amount of the penalty, without regard to the damages which the plaintiff may be entitled to recover on the breaches assigned. And,indeed,in all cases where by the rules of pleading, the plaintiff, in the form of action he adopts, is bound to declare for the original amount of his claim, and cannot demand in debt or damages, according to the nature of bis action, less, it is immaterial, as it respects the question of jurisdiction, what is the sum actually due.

Royce and Hunt, for plaintiffs.

H. E. Hubbell, for defendant.

Judgement affirmed,

The following note should have been inserted at the end of.the case, Southwick, Cannon & Warren vs. Merrill, (ante p. 320,) but having been mislaid, it was omitted when that case was printed.

Hutchinson, J.,

dissented. He considered the expression, “ debt or other matter in demand,” in the statute regulating jurisdictions, to mean all that debt or other matter described in the declaration, which the plaintiff must prove in order to recover any thing. If he describes a judgement of $500, or $1000, he can prove none of it without he proves the whole. When, therefore, the judgement exceeds $J00, the action must be brought before the county court, however small the sum. due may appear by endorsements. Such had always been the practical construction as far as he had known cases coming within this principle.  