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Opinion by

Rice, P. J.,

A justice of the peace has jurisdiction of actions of trespass for the recovery of damages for injury done or committed on real and personal estate. The damages for which a plaintiff may sue before a justice in this form of action are such as arise where the injury is immediate, and would be recoverable in the common-law action of trespass vi et armis, and not such as are consequential, and would be recoverable, if at all, only in an action of trespass on the case. It is the nature of the demand, not merely the form of action in which the summons issues, that determines the justice’s jurisdiction; and, if he had no jurisdiction of the cause of action, the objection is not waived by an appeal, but may be raised, as was done in the present case, on the trial in the common pleas. Therefore, although the form of action was assumpsit, yet if the cause of action was a purely consequential injury which, at common law, was cognizable only in an action of trespass on the case, the defendant’s contention, that there could be no recovery in the action being tried, was unassailable.

The defendant assumes that the cause of action as presented to the justice was negligence. But the transcript does not affirmatively show that such was the case. As we have said, the form of action was assumpsit; the nature of the demand appears only in the following memorandum of the plaintiff’s testimony which the justice put on the docket: “ Plaintiff is sworn and claims $60.00, being the amount due plaintiff for repairs and loss of time for a buggy which defendant borrowed from plaintiff, the said buggy being broken while being used by an em*305ployee of defendant.” Section 4 of the Act of March 20,1810, 5 Sm. L. 164, provides that the proceedings had before him shall be entered at large by the justice on his docket; “ in which he shall state the kind of evidence upon which the plaintiff’s demand may be founded, whether upon bond, note, penal or single bill, writing obligatory, book-debt, damages non assumpsit, or whatever it may be.” But mere irregularities cannot be taken advantage of upon an appeal from his judgment. It is therefore not material to inquire in the present stage of the case whether or not, upon certiorari, it would have been held that the entry made by the justice was. a sufficient compliance with the foregoing provision. It is enough for present purposes to say that the transcript does not affirmatively and conclusively show that the cause of action was a breach of an implied duty, and was cognizable only in an action of trespass on the case. Nor is there anything on the face of the transcript to show that the demand before the justice differed in nature from that declared upon in the common pleas. Going then to the plaintiff’s statement of claim, and the evidence adduced in support of it, we find that it in reality embraced two demands : the first for the sum of $40.00, being the amount paid, laid out and expended by the plaintiff at the special instance and request of the defendant (this was shown by the evidence) which sum the defendant expressly promised to pay; second, for the sum of $21.00, which the plaintiff lost in consequence of the defendant’s negligence. The first was based on express contract and was clearly within the jurisdiction of a justice of the peace, and for present purposes it may be conceded that the second was not within his jurisdiction. If the plaintiff’s demand had been thus entered on the justice’s docket and the proceedings had been brought up for review by the common pleas upon certiorari, the court might have been compelled to reverse the judgment, because as the learned judge who presided at the trial well says, that court in that form of proceeding “has no power to divide the judgment, in order that it may affirm the portion of the claim which is well founded, and set aside that portion which is illegal.” But after the defendant has appealed and gone to trial on the merits, no such obstacle stands in the way of a recovery of that demand of which the justice had undoubted jurisdiction. It is true it has been held in many cases that if *306the plaintiff’s claim exceeds tbe amount'of which justices of the peace have jurisdiction, the plaintiff cannot give jurisdiction by remitting part, nor can the court acquire jurisdiction in such a case on appeal by lopping off the excess. In such a case the claim must be treated as an entirety. But in the present case, as we have shown, a different state of facts is presented, and after a fair trial on the merits, we are not called upon to be astute in the effort to bring the case within principles which, so far as we have been able to discover, have not been extended to such a case. In the absence of an authoritative adjudication to the contrary, we are of opinion that the court committed no error in permitting a recovery for the sum expended by the plaintiff at the defendant’s request and upon the faith of his express promise to pay. The discussion of the question in the oral opinion of the learned judge overruling the motion for compulsory nonsuit, and in his written opinion discharging the rule for new trial, fully covers the ground and renders further discussion by us unnecessary.

Judgment affirmed.

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