
    SUSIE E. PERRY v. GAY, KIMBALL & GAY.
    
      Appellate Jurisdiction of County Court.
    
    In general assumpsit brought before a justice of the peace on a declaration alleging an indebtedness, &e., for $20 and a writ laying the ad damnum at the same sum, plaintiff furnished a specification of balance of $19.69 due for work. On cross-examination she produced her original account, whereby it appeared that her charges were much more than $20, but that the credits of payments reduced the balance to the sum specified. Held, that the sum of her charges constituted the matter of inquiry, and that the action was appealable.
    General Assumpsit appealed from the judgment of a justice of the peace. The declaration alleged an indebtedness, &c., for $20, and the ad damnum was fixed at that sum. From the copy of the justice’s record it appeared that the plaintiff presented before the justice a specification of claim “ To balance due for work for months of June, July and August,” in the sum of $19.69; that the defendants pleaded the general issue ; that on cross-examination the plaintiff produced what she testified to be her original account, whereby it appeared that she had charged the defendants for mottling buttons $20.55 in June, $34.35 in July, and $4.60 in August, or in all the sum of $59.50, and that the defendants had paid her in those three months $39.81 of that sum; that the plaintiff testified that she gave the defendants her work after August 5 ; that from the defendant’s book'of account, which was produced at the plaintiff’s request, it appeared that the plaintiff’s account amounted to $38.77 ; that judgment was rendered for the plaintiff for the sum named in her specification and costs; and that the defendant appealed.
    At the December Term, 1879, the plaintiff moved to dismiss for want of appellate jurisdiction ; but the court, Barrett, J., presiding, overruled the motion, to which the plaintiff excepted.
    
      Charles H. Williams and W. C. French, for the plaintiff.
    Neither the ad damnum nor the specification exceeded $20; therefore an appeal would not lie. What was brought out on cross-examination or in evidence did not constitute a specification, or an exhibit within the meaning of the statute. Sts. 1876, No. 64; Weston v. Marsh, 12 Vt. 420 ; Persons v. Center Turnpike Co. 20 Vt. 170 ; Warren v. Newfane, 25 Vt. 250. See Williams v. Mason, 45 Vt. 372 ; Church v. Vanduzee, 4 Vt. 195 ; Cole V. Goodall, 39 Vt. 400. The case Connecticut f Passumpsic Rivers Railroad Co. v. Bates, 32 Vt. 420, is distinguishable.
    
      Hunton & Stickney, for the defendants.
    The sum of $59.50 was open to litigation. Gibson v. Sumner, 6 Vt. 163 ; Spear v. Peck, 15 Vt. 566. The exhibits showed the action appealable. Sts. 1876, No. 64 ; Church v. Vanduzee, 4 Vt. 195 ; Connecticut f Passumpsic Rivers Railroad Co. v. Bates, 32 Vt. 420 ; Williams v. Mason, 45 Vt. 372. Although the matter in demand may be limited for the purpose of bringing the action before a justice, the justice’s jurisdiction cannot thereby be made final if it appears in evidence that the matter is not within his final jurisdiction. Warren v. Newfane, 25 Vt. 250 ; Church v. Vanduzee and Williams v. Mason, supra.
    
   The opinion of the court was delivered by

Redfield, J.

This action is assumpsit in the general counts. The defendant appealed from the justice’s judgment; and the plaintiff moved to dismiss the appeal, on the ground that the justice had exclusive jurisdiction. Neither the claim in the declaration nor the ad damnum exceeded $20. On trial before the magistrate the plaintiff presented, as she called it, a specification, viz: “ To balance due for work for months of June, July and August,” $19.69. On trial she offered herself as a witness ; and on cross-examination produced what she called her original account, which showed that the amount of her services in June were $20.55 ; in July, $34.35 ; and in August, $4.60, and that there had been payments each month so that the balance due was $19.69. We think the court properly overruled the motion. The whole claim in issue, and the subject-matter of inquiry, was $59.50 ; and the adjudication of which gave appellate jurisdiction. The case is controlled by the case of Williams v. Mason, 45 Vt. 372, and quite identical with it. In addition to the cases therein cited, the case of Concord v. National Bank, 51 Vt. 144. We are satisfied with the reasoning in these cases, and could not make the rule more certain. The case of Warren v. Newfane, 25 Vt. 250, is not in conflict. The court held in that case, that the plaintiff might waive all other items of his account, save the items amounting to $7.27 ; and that the judgment did bar all other items of the plaintiff’s account.

The ruling of the County Court is affirmed, and the cause remanded for further proceeding.  