¶11. Where the original jurisdiction of a court is limited to a claim for a certain amount in money in a case sounding in damages, that amount is to be ascertained by the ad damnum expressed in the writ. The plaintiff cannot recover beyond his ad damwum, and the judgment of the court cannot exceed it. Yet this judgment will be a bar to the whole claim. The case cited from Wheaton does not apply, because it was replevin, which draws in question the right to specific property, and the damage claimed is merely incidental, and no measure of the amount in controversy. The cases from Howard depend on a statute differently worded. The court are of opinion that if the plaintiff chose to waive the surplus of his claim, which was for goods valued at more than $100 — which was perhaps more than he could have proved — he might do so, and bring his action in the justices’ court.
¶22. It is a sufficient answer to the constitutional objection, that a trial by jury is secured to the defendant on appeal. Jones v. Robbins, ante, 341, and cases cited. Exceptions overruled.