
    R. & Z. Tyler vs. Nathan Lathrop.
    Chittenden,
    
      December, 1832.
    That ai* action upon a note, given for more than twenty dollars,, but indorsed down to a less sum than that, is appealable.
    That an Audia Querela is the correct remedy for the party aggrieved by' the refusal of a Justice of the Peace to allow, an appeal, when it ought to have been allowed.
    This was an Audita Querela, Brought to the County Court-, and comes up on exceptions.
    The only questions, presented in this'case, are, whether the present complainants, the original defendants, were-entitled to an appeal, and, if not, whether Audita Querela is the correct remedy. The- action was brought upon a note for the sum of twenty-one dollars and seventy cents, bearing interest; on which there was an indorsement, reducing the sum due, to about seventeen, dollars, for which the Magistrate rendered judgement. The defendants prayed for an appeal within the two hours allowed by law, and offered satisfactory bail. But tire appeal was refused by the Magistrate, who supposed it not appealable, because the action was brought upon a note, and the judgement was rendered for a-less sum than twenty do liars.
    In the County Court, the defendant, Lathrop, demurred to the complaint, and it was adjudged sufficient, and the defendant excepted to the decision.
    
      Argument for defendant. — The only point in this case is-, whether the judgement was open- to appeal, and it is contended it was not.
    By the Statute, p. 139, appeals are restricted in cases ok notes, if the notes shall not exceed the sum of twenty dob-lara.
    The spirit and intention of' the act evidently was, that no appeal should be allowed, when the judgement did not-exceed the said sum- of twenty dollars.
    And this we contend is the fair construction of the Act?.
    In questions of jurisdiction, the Court are limited by the sum due-
    
      Argument for plaintiff. — This case presents but one question for the Court to decide; and that is, whether the action in favour of the present defendant, against Plaintiffs, before justice Bliss, was or was not appealable.
    
      It'is contended by the plaintiff that they were entitled to «n appeal from the judgement of the justice.,, because they moved for it within the two hours, tendered to the Magistrate his fee, and offered good and sufficient bail. And it appeared from the declaration and evidence, that the note on which the suit was brought was over $20, .to wit> *21,70.
    The Statute restricting the right of Appeal, in certain Cases, provides, that no appeal ¿shall be allowed on notes or settled accounts, if they shall exceed the sum of $20. *Fhe question then arises what constitutes}! promissory note. Revised L. 139.
    It is defined in the books to be a promise or engagement in writing, to pay a specified sum at a time therein limited, or on demand or at sight, to a person therein named, or his order, or the bearér. Chittyjon Bills,^324; 2 B. Com. 467; Bailey on Bills, 1.
    [f this definition be correct, an appeal ought to have been granted, for the endorsement is not essential nor can it ¡makesFpart of the note.
    It is a mere receipt, or an acknowledgement of the payment of a certain sum, put upon the back of the note for .the convenience of parties. It must be made subsequent to the note, and cannot effect'it eitherjjinjthe manner, or time of payment, or its negotiable character. Bavlef on Bills 25 & 27•; 8 John, 379.
    The note, at its execution, was certainly not within the restriction. And shall the plaintiff, by his own act, be permitted to take away the jurisdiction of the County Court, .and the rights of the Defendants ?
    The Statute, granting appeals, has ever had a liberal construction; and the restriction a strict one.
   The opinion of the Court was pronounced by

Hutchinson C. J.

We think the appeal ought to have been allowed. The Statute, see p. 139, allows appeals generally, and adds provisoes, one of which is, “that no appeal shall be allowed in any action, brought on notes or settled accounts, if such notes or settled accounts shall not exceed the sum of twenty dollars.” This has no reference to the sum remaining due upon such notes, like the Statute, which regulates the original jurisdiction of Justices, 0f the Peace. The action is appealable, if the note, or notes exceed the sum of twenty dollars. Such was the case this original action.

Adams, for defendant.

X), A. Smalley, for plaintiff.

The defendant’s Counsel suggested, in argument, that an Jludita Querela was not the proper remedy, even if the appeal ought to have been allowed. But this Court have long since sanctioned this remedy. The party, entitled to an appeal, has a right to a hearing in the County Court, upon the merits of his cause. Of this he is deprived, by a refusal to allow an appeal. Moreover an appeal vacates, or at least, suspends, the judgement. By denying the appeal, the judgement remains in force, and execution issues. No other remedy was provided by our laws, till a late Statute, which allows a petition in the nature of an Audita Querela, but without its exact ceremonies, as a remedy for this, and some other cases, named in that Statute. The Audita Qtuerela, as long used in such a case, is an apt remedy for such an aggreivance, because the party aggrieved is liable to execution, without having had his full day in Court; and because this writ may be made a su-persedeas to such execution.

The judgement of the County Court is affirmed.  