
    Bonner v. Watson.
    Where several claims are sued upon and the entire payment of one or more of them before suit ivas brought is proved, leaving tho suit to stand upon a claim not originally within the jurisdiction of tho court, tiie suit must be dismissed for want of jurisdiction. It is only where a demand once within tho jurisdiction of the court is reduced by payment to an amomit not within tho jurisdiction of the court that the act of 18-10 (Hart. Dig., ait. 600j authorizes the entry of judgment upon tho merits.
    Appeal from Brazoria. This was a suit by the appellant against thenppel-lee upon three several promissory notes described in the petition, the first for the payment of $1’7G; the second for $101; and tho third for $40.12. The petition was filed on the 27th day of September, 1847.
    The defendant pleaded that the two notes first described were settled and paid by him on the 23d day of December, 1844; and that the amount was included in a note then given for $2,317.50, payable twelve months after date; and that the two notes so included ought to have been and would have been given up at the time had they not been forgotten. Annexed to this plea were interrogatories to the plaintiff touching the'facts stated in the plea, and asking further whether the large note, dated December 23, 1844, was not in suit by a third party. The plaintiff declined to answer the interrogatories. Arid the case being submitted to the court upon the evidence furnished by the notes and the interrogatories; and the latter being taken as confessed for the want of an answer the court dismissed the case for the want of 'jurisdiction. The plaintiff appealed and assigned this ruling as error.
    
      
      J. B. Jones, for appellant.
    
      Harris and Pease, for appellee.
   WheeleR, J.

It is understood to he conceded by counsel for the appellant that the plaintiff was not entitled to judgment for the notes first described, hut it is said that the judgment is erroneous in that the court did not give judgment for the smaller note last described, under the provision of the 4th section of the act of 1840, “allowing discounts and set-offs.” This case, however, does not come within that provision. Its language is, “should the claim of the plaintiff be reduced to a sum not within the jurisdiction of the court by payment, then judgment shall be given in favor of the plaintiff for tlie balance due,” &c. (Hart. Dig., p. 223.) To bring the case within the statute the claim of the plaintiff, which is “reduced to a stun not within the jurisdiction of the court,” must have been originally and before it was so reduced within the jurisdiction of tile court. But the two demands to which the evidence of payment applied and the only demands embraced in the suit, which were originally within the jurisdiction of the court, had been the subject of a settlement in which they had been extinguished before the institution of the suit. They could not then be included with a demand not within the jurisdiction of the court in order to give it jurisdiction of that demand. Had the suit been instituted upon a single demand which had been reduced by payment upon it to a sum not within the jurisdiction of the court, it would liave presented a very different case, and such an one as the statute contemplates.

The only demand of the plaintiff subsisting when the suit was brought, not having been within the jurisdiction of the court, the case was rightfully dismissed for the want of jurisdiction, and the judgment must be affirmed.

Judgment affirmed.  