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The opinion of the court was delivered by

Redfield, J.

— In this case the county court dismissed the cause for want of jurisdiction in the justice’s court, where the suit was brought, and from whence it came into the county court by appeal.' In order to justify that judgment, which was rendered upon the motion of defendant, we must be satisfied, that, at the time of rendering the judgment, it did appear judicially, that the county court had not jurisdiction of the cause. In a case of doubtful import, upon a question of jurisdiction, the intendment will always be in favor of that court, where the case is in fact brought. If this were not so the suit might be dismissed in one court, because it did not ap*597pear affirmatively that the case came within the limits of the jurisdiction of that court, and the same case, when instituted in another court, be there dismissed for the same reason.

So far as any thing can be determined from the declamation, in an appealed case, in regard to the jurisdiction, it is obvious that reference should be had to the original declaration, and not to the declaration filed in the appellate court. The new declaration is but an amplification of the former one, and for the purposes of compliance with the established precedent. It cannot give a jurisdiction, which before did not exist. Thompson v. Colony, 6 Vt. R. 94. Neither should it be construed to take away one, which before did exist.

As the jurisdiction of county and justice courts is exclusive, it is sometimes difficult to fix definite limits to determine the extent of each. In the greatest, number of cases this question is determined by the ad damnum clause in the declaration. In all actions of tort and of contract, where the amount of damages is wholly ¿uncertain and subject to estimation, the plaintiff is allowed to choose his court, by limiting his claim for damages below one hundred dollars. This can never do injustice to the defendant, as it is only a privilege to reduce a claim for damages.

When the contract itself stipulates the quantum of damages and this appears, either from the declaration, or the plaintiff’s exhibits, questions of jurisdiction will be determined thereby.

But there are many cases, where the matter of jurisdiction is made to depend upon the plaintiff’s evidence, instead of his declaration or exhibits. This may, no doubt, lead to some inconveniences, but it' has for many years been the settled law of the state, and I am not aware that it has led to any seri- < ous embarrassments in practice. This is the case in regard to actions of book account, where the debit side of the plaintiff’s book is the criterion of jurisdiction. In debt upon judgment, it was held to depend upon the amount, which appeared to be due by the indorsements on the execution. Southwick et al. v. Merrill, 3 Vt. R. 320. It was decided by this court, too, that the matter of jurisdiction, in an action of trover, depended upon the plaintiff’s evidence. Ladd v. Hill, 4 Vt. R. 164. The same rule was extended to the action of assumpsit, Morrison v. Moore, 4 Vt. R. 264. This court on *598the present circuit extended the same rule to actions of trespass de bonis. Kittredge v. Rollins et al. (ante, 545.)

The statute, in relation to promissory notes, was evidently intended to fix the question of jurisdiction on a similar basis. That statute provides, in express terms, that when it shall appear, either “ from the plaintiff’s declaration or the indorsement or indorsements on the note,” that the sum due does not exceed one hundred dollars, the justice shall have jurisdiction. It is, then, too apparent to require illustration or argument, that this matter need not appear from the declaration alone, but may appear from the note and indorsements. Any motion to dismiss an action on note, in a justice’s court, founded upon the declaration alone, is premature and should be overruled. The defendant must wait until the note is presented in the course of the trial, and then interpose his motion to dismiss, if necessary.- It will appear, from the above rule, that when the plaintiff in an action on note, which on its face shows more than one hundred dollars due, brings his suit before a justice of the peace, on the ground that the sum due has been reduced below one hundred dollars, by payments not indorsed, he should set forth these payments in his declaration. For the statute is express, that the sum due must appear, either from the declaration, or the indorsement or indorsements on the note.

In looking into the record in this case, it is evident, that it does appear from the declaration, made when the writ issued, that the sum due upon the note was less than one hundred dollars. It is there alleged, that the note is unpaid except $35. As no date is affixed to this payment, and the intendment is in favor of the jurisdiction, and against the plaintiff in regard to the amount due upon the note, it will be presumed to have been made at the date of the note. So that the sum due upon the note will not now exceed the limit of a justice’s jurisdiction.

Judgment of county court reversed and the motion to dismiss overruled and cause remanded for further proceedings.

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