
    The Town of Weston v. Peter D. Marsh.
    
      (In error.)
    
    Where the ad damnum in a writ, pending in a j ustice’s court, is but ten dollars, the action is not appealable, unless the plaintiff’s written exhibit, specification or the declaration itself clearly shows that the demand is more.
    This was a writ of error to reverse a judgment of the county court.
    The defendant in error commenced a suit against the plaintiffs in error, before a justice of the peace, declaring in two counts. The first count was, in substance, that, in consideration that the defendant in error would convey John Win-ship, a pauper of said town of Weston, from the house of John Wilder to the house of Ira Fen, both in said Weston, the plaintiffs in error, by the overseers of the poor of said town, (naming them,) promised the defendant in error to pay him a reasonable sum therefor, and to save him harmless from all costs and charges which he might incur in conveying said pauper as aforesaid, and if he should meet with difficulty and incur expense in so carrying said pauper, in consequence of a flood of water which was, at that time, upon the road leading from the said Wilder’s to the said Fen’s house, the plaintiffs in error would pay all just damages and costs arising therefrom ; that relying upon said promise, the defendant in error conveyed said pauper from the house of said Wilder to the house of said Fen ; that while he was so conveying the said pauper, his horses plunged into the water and became frightened, and it became necessary to procure assistance; that men in the neighborhood volunteered fheir services and assisted him in conveying the pauper, for which services the defendant in error had been sued and put to great trouble and expense in defending said suits and in satisfying the judgments rendered against him, to a large amount, to wit, the sum of ten dollars.
    The second count was for ten dollars, paid laid out and expended by the defendant in error at the request of the plaintiffs in error. The ad damnum, in the writ, was ten dollars. The plaintiffs in error pleaded an offset of thirty dollars, in the justice’s court, but did not introduce any evidence in support of the plea. A judgment was rendered by the justice, in favor of the defendant in error against the plaintiffs in error, for ten dollars damages and $4,47 costs. From this judgment the plaintiffs in error appealed to the county court. The appeal having been entered in the county court, the defendant in error moved the court to dismiss the suit, alleging that the county court had no appellate jurisdiction thereof; — Whereupon the county court dismissed the suit with costs, and to reverse the judgment of the county court, dismissing said suit, this writ of error was brought.
    
      D. L. Putnam, argued for plaintiffs in error,
    and cited Hill v. Wait, 5 Vt. R. 124. Id. 503. 4 Vt. R. 195.
    -D. Kellogg, for defendant in error,
    contended that the justice had exclusive jurisdiction in the case, and cited Brush v. Hurlburt, 3 Vt. R. 46. Stevens v.Pearsons, 5 Vt. R. 507. Hill v. Wait, Id. 124. Richardson v. Dennison, 1 Aik. R. 210. Bell v. Mason, 10 Vt. R. 511. Catlin v. Aiken, 5 Vt. R. 180.
   The opinion of the court was delivered by

Collamer, J.

— Every judgment of a justice is final “when the sum demanded does not exceed ten dollars.” The amount claimed by the plaintiff is generally determined by the ad damnum, and, as to an open claim, or matter resting in assessment of damages, that is conclusive. There being two or more counts, each claiming no more than ten dollars, does not alter it, as they will always be presumed to be for the same subject matter, when that is possible, because by no other presumption can the declaration and ad damnum be consistent. If the ad damnum does not exceed ten dollars, still the action may be appealable, if, by the plaintiff's written exhibit or specification, or by the declaration itself, it is clear that his demand is above ten dollars. In this case the ad damnum is but ten dollars, and the plaintiff presented no written exhibit or specification. Does the declaration clearly show that his claim w-as more than he demanded in damages? The second count, for money paid out, will be' presumed to be for the same matter, or a part of it, men - tioned in the first count, by the rule already mentioned. By the first count, it is alleged that the defendants below promised to pay for transporting the pauper and to indemnify the plaintiff below for all damages,costs and charges incurred therein ; that he performed the service, was compelled to call assistance,and,for this,has been sued and put to costs, and been compelled to pay judgments recovered against him to a large amount, to wit, ten dollars. It is to be remembered, that an amount laid under a videlicet is rendered thereby in no way certain, unless it be that it cannot be shown above that amount. Now treat this count in that manner and we cannot say what was the amount of the- plaintiff’s claim. The declaration, therefore, does, not show that the plaintiff’s claim exceeded ten dollars. This question could not be affected by the finding of the justice, nor by the fictitious plea in offset of the defendant below.

Judgment — that there was no error.  