¶1The opinion of the court was delivered by
¶2As the contract in this instance had fixed no price for the corn, and the plaintiff had demanded damages above the sum of one hundred dollars, it was a case apparently within the original jurisdiction of the county court. In such a case I doubt the propriety of forming a preliminary issue upon the point of jurisdiction, since it must depend upon extraneous evidence, and involve, to some extent, the same showing which would belong to the trial in chief, It seems, however, that the plaintiff made no objection to such a course, and voluntarily joined in the issue. If the defendant, by his plea, designed to place the issue entirely upon the value of the corn, at the time and place stipulated for its delivery, it is evident that the plaintiff, by his replication, did not. He replied, in the language of the statute, affirming that the matter in demand was over one hundred dollars, and upon that averment the issue was joined. Hence the testimony was not rendered any the more decisive upon the question of jurisdiction, by reason of the time and manner in which the question was raised. The subject was still to be regarded in the same light as if a motion to dismiss had been made in the usual way upon trial, after the testimony had been heard.
¶3When we consider the question in this view, it is obvious that the precise value of the property (whether a little over or under one hundred dollars) ought not to be the test of jurisdiction. That value would, indeed, control the rule of damages m the end, as it does in trover for property converted, and in assumpsit for goods sold, or services rendered, where *227no fixed price or certain compensation has been agreed upon. But, in all such cases, as the value has not been previously settled by agreement, but must depend upon testimony in court, the party is liable to be disappointed in the estimate of value which others are to make. It was decided, in Ladd v. Hill, 4 Vt. R. 164, which was trover for a yoke of oxen, and in Moore v. Morrison, 4 Vt. R. 264, which was assumpsit for services rendered without any rate of wages agreed upon, that the proper inquiry was, whether the party commenced his suit is good faith, honestly supposing that he might be entitled to more than one hundred dollars. The same rule should evidently govern the present case. Now it appears, that within six weeks previous to the time set for-delivering this corn, the plaintiff had accounted to the defendant for it at one hundred dollars, which was then the current value of it. It turned out, on trial, that between the last of December and the 7th of February, the market price had declined to eighty-four cents per bushel. But since the case does not show, that when he commenced his action the plaintiff was aware of that fact, it does not impeach his motive in suing to the county court.
¶4There is, of necessity, in many cases, a sound discretion to be exercised by courts, in passing upon these questions of jurisdiction. This was a case of that description ; but, to entitle the decision to be treated as one resting in discretion, the facts or evidence should appear, upon which a proper discretion could be exercised. The value of the property alone furnished no absolute rule of decision. Other facts were required to be blended with it, showing at least the probable consciousness of the plaintiff, that he was not entitled to an amount of damages beyond the power of a single magistrate to award him. The exceptions are silent as to every consideration except the value of the property, and the decision appears to have proceeded upon that ground alone. We therefore think it was erroneous, and the judgment is accordingly reversed.