This suit was commenced in the County Court, and brought by appeal to the Superior Court. Upon the question of jurisdiction, it is to be’ treated in the latter Court, as if still pending in the Court below. By the acts of 1804 (Rev. c. 650) and of 1820 (Id. c. 1045) suits brought iu any Court, for sums less than therein mentioned, are to be abated on the plea of the Defendant. A plea is therefore the only method of taking advantage of the want of jurisdiction. We do not find any statute giving the power of nonsuit-ing the Plaintiff, if he recover less than a particular sum, as is provided respecting the Superior Courts by the act of 1777 (Rev. c. 115, s. 10). But if this were in the Superior Court, the Plaintiff would still be entitled to judgment. For the Court does not ex officio order a non-suit. It acts only on the Defendant’s motion to that effect $ for it may be, that the Defendant would prefer the bar of a verdict form certain sum, to letting the Plaintiff at large again ; and the provision is not to be construed in favor of the Plaintiff, but the Defendant only. And if there be such a motion, the Plaintiff is permitted to avoid its operation, by his affidavit that more was really due.

Here no motion is made for a nonsuit, but only for a new trial. We see no ground for saying there ought to be a new trial; for it does not appear, that the Plaintiff *298 ¡‘«covered more than in law and justice was due to him. Had there been a specific motion for a nonsuit, the Plaintiff, by his affidavit, might have explained the true time entering tiie credit in his account, and showed that it was after suit brought, or tiie Court might, from the Judge’s notes, have modified the verdict, so as to give tiie Defendant the advantage of his account by way of set-off, instead of payment. We cannot tell how tiie facts might have been made to appear. There was no motion for a nonsuit, and there is no ground for a new trial.

Per Curiam. — Let the judgment below be affirmed.