¶1Two questions are presented by these exceptions for the consideration of the Court. 1. Whether the County Court had appellate jurisdiction ; or in other words, whether the writ was so drawn as to give the justice of the peace exclusive jurisdiction. The declaration sets forth a judgment of $5,30 damage and 25 cents costs, and concludes “ to the damage of the plaintiff $20,00.” The question has long been agitated in the lower Courts whether the ad damnum or the cause of action declared on should be the criterion in determining the jurisdiction of a justice of the peace ; and the practice is very unsettled, particularly in cases where their adjudication is final; and the decision of our County Courts have not been uniform in sustaining appeals of that character; but in some cases have been governed by the amount of the plaintiff’s demand,and in others by the amount of the ad damnum; and it is of little consequence which shall be adopted, compared with the necessity of having the question put at rest. In the case of Church vs. Van Duzer decided last week’in Franklin county, the plaintiff in an action of book debt, had laid his ad damnum at $10 and the amount which he exhibited before the justice amounted to $10,60; an appeal was taken to the County Court, and a motion to dismiss for want of appellate jurisdiction was overruled, and this Court affirmed the judgment. Again, in the case of Reynolds and Wife vs. Robinson, decided on writ of error in Franklin *127County 1822, the ad damnum was $20, the amount on oyerG was $1,50, the County Court on motion, dismissed the action for want appellate jurisdiction,and this Court reversed - their decision; and it would seem that the point to be decided in this case, falls directly within the-decision last cited; for where the Court has the question of jurisdiction before them, it is immaterial whether the amount of damage is to appear1 from the declaration or a specification of the claim ; and as the case of Reynolds and Wife vs. Robinson, the defendant in error, must be considered as settling the law where the ad damnum is laid over $10 ; so ,does the case of Church vs. Van Duzer, where the amount- exhibited is over $ 10,and both Were' appealable. And the Court are unanimous in the opinion, that to give the justice exclusive jurisdiction, the ad damnum must not be laid over, nor the sum in demand appear from the declaration, or specification or exhibits of the plaintiff, to be more than $10.
¶2The jurisdiction of the justice being sustained, our next enquiry is, whether Ezra Pike could legally render a judgment in favor of this plaintiff; they being related within the 4th degree of affinity. In the1 23d section of the act defining the powers of a justice of the peace, it is declared “ that no justice of the peace shall take cognizance of any cause, where he shall be- within the 1st, 2d, 3d, or 4th, degree of affinity or consanguinity to either of the parties, or shall be directly or indirectly interested in the cause of matter to be determined.” Arid in the ease of Bates vs. Thompson, reported in 2d, Vol. Chip. R. 96, it was determined by the Court, that the entering u-p of a judgment by a justice of the peace, upon the voluntary confession of the debtor, was- takmg cognizance of a cause, within- the meaning of this section; and as the justice was the owner' of the' demand- upon which he- took the confession, the record was adjudged void; and we see no reason for calling.' in question the propriety of that decision; therefore the1 judgment against Pettis upon which the execution in qües--tion- issued, must be pronounced void.
¶3As it respects the execution, it being legal upon the face-of it, would have justified the officer had he levied and collected the amount of Pettis ; and yet the plaintiff cannot. 1‘SCOYer of him in a charge of neglect of duty in not col*128lecting and paying the amount over; for in this as well as otjiei, caseg^ ¡.Q rnake an officer liable for neglecting to collect an execution the plaintiff must show a judgment ^lat not void. For these reasons, the judgment of the County Court must be affirmed*
¶4Judgment affirmed.