¶1The case is with the plaintiff both on principle and authority. As regards the cause of action, the proceedings, on appeal are not de novo; and the plaintiff can recover no more than he might have recovered before the justice. A judgment for more would be decisive either that the action was improperly commenced or improperly prosecuted. A plaintiff may undoubtedly remit a part of his demand, to bring the residue within the jurisdiction of a justice; but, having done so, he must proceed consistently, and cannot set up on the appeal the part that hé had previously abandoned. So that when the judgment on the appeal is for a greater sum than could have been recovered before the justice, it involves the plaintiff in the dilemma either of having sued for too much originally, or of having recovered what he had previously released. But as he might have released the excess below, and as there is an increasing liberality in courts of error, we think it reasonable to-afford him an opportunity to do so here.
¶2The plaintiff instantly released the excess at the bar, and the judgment was affirmed.