Curia, per

The Act of 1824, (6 Stat. So. Ca., 239,) makes the jurisdiction of justices of the peace exclusive, “ in matters of contract, to the amount of twenty dollars,” with the right of appeal. Upon the construction of. that Act, it would seem strange that there should be a difference of opinion, or that there should be any doubt that the jurisdiction depends on the sum proved, and not upon the amount claimed. If it were otherwise, the plaintiff might easily evade the Act, by inserting a. plausible claim in his process, upon which some evidence might b’e offered, although he might know that it would be rebutted. Every plaintiff should be prepared to furnish satisfactory proof of the debt due to him, or of the value of that which he claims; and, if it be at all doubtful, let him, for safety, restrict his demand to twenty dollars, as was done in Goldthwaite vs. Dent, (3 M’C. R. 296,) where a justice, upon'a quantum meruit for services, gave judgment for twenty dollars; the proof being that the services were worth from fifteen to fifty dollars. The Court said, “ it does not follow, because the plaintiff may have charged more, that he may not charge and recover less.” If the construction contended for were adopted, it would be easy for the parties, plaintiff and defendant, by agreement, to secure the jurisdiction of the Court, and evade the wholesome provisions of the Act, which were intended to confine such small and mean causes within the inferior jurisdiction'.

The precise question has been several times decided, and cannot be considered as any longer open for argument. Da*167vidson vs. Setzler, (3 MSS. D. 669,) decided in 1827, was like the .case now before us. It was a summary process, tried before Mr. Justice Gantt, at Newberry. The plaintiff’s demand was an account of $21 50, for goods sold and delivered. She furnished proof to the amount of $16 81, but failed, as to the balance of the amount, to produce legal and competent evidence. A motion for a non-suit was made, which his Honor overruled, on the ground that the plaintiff’s real cause ol action was within the jurisdiction of the court, and it was her misfortune, not her fault, that she failed to establish two items, under the usage and practice of the court. He therefore gave the plaiatiff a decree for the amount proved, and leave to discontinue as to the items not proved. The motion for non-suit was renewed in the court of appeals, and was granted. The court said, “ the Act of 1824 has made the jurisdiction of magistrates exclusive, to the amount of twenty dollars, and therefore the court has no longer any authority to act in such cases. If the plaintiff fail to prove his account, and cannot shew cause for postponement, let him submit to a non-suit and commence his action again.”

In Harris vs. Overby, (4 MSS. D. 491,) tried in 1829, plaintiff brought assumpsit for one hundred dollars for services rendered as a physician to the defendant’s daughter, and proved the defendant’s promise to pay. This vvas rebutted by other evidence, that the plaintiff undertook to make an effectual cure, or to charge only five dollars; that the patient was not cured, and that the defendant’s promise to pay 100 dollars was made under a mistaken belief of her being cured. The Judge charged that the plaintiff, on that proof, could only recover five dollars. But the jury found for the defendant, and the plaintiff appealed. The Court held that the amount proved “was exclusively within a magistrate’s jurisdiction ; and, if a plaintiff- may, by superadding a fictitious cause of action' to the real demand, transfer the cause to the circuit court, and recover a judgment, the jurisdiction of magistrates will be annihilated, in violation of the law, and *168to the great delay of public justice.” I have referred thus: minutely to these cases, because they are not reported, and may not otherwise become known to the bar. They were followed by Ferguson vs. Teemster, (1 Bail. 516,) where, in covenant by landlord against tenant for not making repairs to demised premises, the plaintiff proved the value of the repairs to be 15 dollars, and was non-suited. It was held, that the demand was exclusively within the jurisdiction of a justice of the peace.

Next followed the case of Caldwell vs. Garmany, (4 MSS.D. 442,) decided in December, 1836, which was a sum. pro.on the warranty of soundness of a horse; and Mr. Justice Butler non-suited the plaintiff on proof that his damage did not exceed twenty dollars, after hearing witnesses on both sides.

It is supposed that the case of Nance vs. Palmer, (2 Bail. 88,) is in conflict with the decisions referred to, and that we' are overruling'that case. Such is not the opinion of a majority of the court. In that case, a motion for non-suit was-made in the circuit court, after a verdict for the plaintiff, upon ’the evidence. It was refused, and the decision was affirmed by the court of appeals, on the ground that, according to-settled rules of practice and pleading, the plaintiff could not he non-suited after he had a verdict'. Mr. Justice Johnson,in delivering the judgment of the court, alludes to the practice of the courts, in cases where the plaintiff has deceitfully and without any pretence, superadded a fictitious cause of action to a meritorious one, in order to secure a particular jurisdiction, by enlarging the amountand cites the case of The Cambridge Association vs. Nichols, (1 T. Const. R. 121.) That was upon the construction of the Act of 1769, (P. L. 270,) creating the summary jurisdiction, which authorized the courts to determine in a summary way “ all causes cognizable in the said courts, for any sum not exceeding ¿£20 sterling.” The jurisdiction there, is made to depend upon the cause of action, the sum- or amount of the demand claim-*169ed; and the decision in 1 Tread, is not, at variance with the view we take of the Act of 1824. Even there, and in cases of like kind, if the demand of the plaintiff, sued for in the general jurisdiction, were reduced by proof of actual payment, to a sum within the summary jurisdiction, the result would be to deprive the plaintiff of more than summary process costs. (

In the United States Courts, where the jurisdiction depends upon the amount or sum, the Acts of Congress use the words “matter in dispute.” There, the proceedings are stayed at any stage, when it is made to appear that the case is without the jurisdiction. Such too is the practice of the English Courts; not on the mere suggestion of the defendant that the sum or debt is too small; but, according to later authorities, always on the affidavit of the defendant, if not denied by the plaintiff; or upon any admission or acknow-ledgement of the plaintiff, that such is the fact. (2 Black. Rep. 754; 4 T. R. 495; 5 T. R. 64.) Under the former practice, when proceedings were not stayed upon mere affidavit, it was said, in (2 Ld. Raym. 1304,) “it ought to appear upon the trial, that the cause of action was under forty shillings.” From which I infer, if it had so áppeared on trial, that the plaintiff could not have had judgment.

If, in Nance vs. Palmer, the motion had been in arrest of judgment, I do not perceive how it could have been refused, without overruling the previous cases of Davidson vs. Setzler, Harris vs. Overby, and Ferguson vs. Feemster. But as the motion was for a non-suit, after the defendant had gone to a jury on the merits, and the plaintiff had a verdict, on rules of practice, it. was properly refused. It is urged that the plaintiff having offered evidence, on that part of his demand which is rejected, enough to put the defendant to proof, makes a different case to which those cited do not apply. But Harris vs. Overby was precisely the same; and in Davidson vs. Fetzler, the presiding judge was satisfied that *170the z-ejected items were not fictitious and pretended, but were just. A plaintiff may bring an action by sum. pro. with a certainty of recovering over 20 dollars; but, (his demand consisting of several particulars,) a witness to prove some of them dies before trial, or removes, or is accidentally absent, so that he can only prove a demand under 20 dollars. He would Stand on stronger grounds of equity and reason, than a plaintiff who includes demands which the defendant proves to be unjust. Why should the latter recover any part of his demand, and the former be non-suited for want of jurisdiction?

The construction given to the Act of 1824, is congenial to the spirit of former legislation on the same subject; for the Act of 1747, (P. L. 213,) which created the jurisdiction of justices of the peace in civil .actions, declared, that all suits, for the recovery of debts, demands, or damages, to the value of £20, or under, whereby' it should appear that the plaintiff has been damnified to no higher value, should be triable only before a justice, and in no other court whatever; making the jurisdiction to depend on the amount, or sum proved on the trial,

Without overturning Nance vs. Palmer, or denying its authority, we think that the plaintiff in the case before us, having established a demand under twenty dollars, was not entitled to* a decree. The decree which was pronounced in his favour is set aside, and the motion for non-suit is granted.

dissenting. In this case the plaintiff gave good evidence of his demand to the amount of sixty-one dollars ; but the defendant then gave counter evidence that reduced the debt to fifteen dollars and interest. The plaintiff could not be non-suited upon the defendant’s evidence; so the judge decreed for the $15 and interest.

The case of Nance vs. Palmer, decided by the court of appeals, (2 Bailey R. 88,) was in the same situation ; but the sum, pro. was referred to the decisiozi of a jury, who found *171for the plaintiff $14. Upon this verdict, judgment was given for the amount of the verdict; and the, court of appeals supported the judgment as within the proper jurisdiction of the court. Now, if in that case the presiding judge had given a decree for $14, could that have taken the case out of the jurisdiction? Whether upon verdict or decree, it is the Judge that gives the judgment within his jurisdiction. The jury were no more than the agents of the court, in order to fix the amount of the defendants indebtedness ; which being so fixed, the judge gives judgment to the plaintiff. The verdict cannot make jurisdiction. If the case be without the jurisdiction, the verdict is a legal nullity upon which no judgment can be awarded by the judge. Even the consent of the litigants, an award, or a confession of judgment cannot give jurisdiction. The case would be out of court and void perse. But, in all such cases, the want of jurisdiction must appear from the case itself, as an inference from its facts.

Apply -the case of Nance vs. Palmer, to the one before us, If the judge had referred Sanders vs. Gage to the jury, and they had found $15 due, the verdict would have stood, and the judgment of the court would have been right. But the judge, without requiring the aid of the jury, gives judgment for that amount, and then, according to the argument, the amount is out of his jurisdiction, and the judgment void. It would follow, then, that the amount of indebtedness being ascertained by a jury, may, in such case, give jurisdiction ; but the same truth, when ascertained by the judge, or even by the confession oí the parties, has no such effect. The’ inconsistency cannot be reconciled; and, if Nance vs. Palmer be law, the decree in Sanders vs. Gage was right. And I now propose to prove it a sound decision.

The rationale of Nance vs. Palmer is that, if the creditor has prima facie proof that the debt amounts to more than $20, he may and must demand it in the circuit court. For, if he sue before a magistrate, his own evidence must put his case *172out of court, and he would be without remedy. The counter evidence of the debtor, which may, or may not exist, and is unknown to the plaintiff, cannot therefore affect the jurisr diction, which necessarily depends on the case as proved by the plaintiff. Take, for illustration, the counter case to the one before us. A. sues B, before a magistrate, .for $15 and proves that amount: A. is in court. B. then adduces evidence to prove the debt $50. Can that take the case out of the jurisdiction, and take it out of court ? If it can, A. can get judgment no where; for, upon his own evidence, he must be non-suited in the circuit court; and his case is without a remedy. The same would be the case where A. sued B. for $80 in a sum.pro. and proved the amount, if B. should then prove the amount $90. A. would be non-suited upon B’s. evidence ; whereas the legal principle is that, if the plaintiff be properly in court by his own testimony, he can be put out only upon the merits; that is,, upon the trial of the issue made up. And this is the proper principle in Nance vs. Palmer. And the same principle illustrates well that the jurisdiction of the case now before the court depended upon the plaintiff’s evidence.

If the summary jurisdiction of the court were to depend upon the final amount of the indebtedness of the defendant, as apparent from his own evidence, then it would follow that, if A. has two notes of B., each lor fifty dollars, he could not sue B. on one, or each of the notes in the summary jurisdiction. For, upon its appearing, on the part of the defendant, that his whole demand, was an hundred dollars, A. would be rion-suited. This would also be the .case where the defendant reduces the plaintiff’s claim, by discount, to $20. But it is settled law, that, in either of these cases, the plaintiff’s claim is still within the jurisdiction. And, although it is sometimes said that the latter case is kept within the jurisdiction because reduced by discount, yet the true principle of all those adjudications, like that of Nance vs. Palmer, de*173pends upon the plaintiff’s case, as shewn on his part. If he acted deceitfully, as by joining pretended causes of action, as said in Nance vs. Palmer, he could not succeed. Or, if he denied receipts given, these would form intrinsic and inseparable parts of his own case, or would constitute exceptions to the rule.

Let us now turn to the MSS. case of Caldwell vs. Garmany. I grant, according to that case, the claim in Sanders vs. Gage was out of the jurisdiction, and Sanders ought to have been non-suited upon the defendant’s evidence. We have then to decide between that case and Nance vs. Palmer, But the case of Nance vs. Palmer has been practised upon exclusively. It makes the plaintiff’s case, as proved by bim; the test of the jurisdiction. Onthe other hand, if the jurisdiction is made to depend upon the defendant’s evidence, no skill or learning can assure a creditor where he may bring his action.

But if such a principle is to prevail, then assuredly the defendant must first plead specially to the jurisdiction, pointing out the proper form, and why the plaintiff’s case is not the subject of the jurisdiction, within which it has been brought' with apparent right and reason. All such pleas to the jurisdiction require, for justice and safety to the plaintiff (Cowp. 172 ; 6 East. 583,) that the true jurisdiction be pointed out. Without such a plea, how are we to give judgment in such a case 1 We cannot decree nil capiat, nor for the defendant; because that would estop the plaintiff’s recovery in any court. We cannot non-suit the plaintiff, because he has sustained his claim to the extent of sixty-one dollars ; and we cannot arrest the judgment, because there is no fault in the record.

Is it not then plain that the plaintiff must have his judgment, unless the want of jurisdiction appears by his own shewing, or is spread upon the record by a plea that designates the more proper jurisdiction to which he may be referred for justice 1 And in summary jurisdiction, all special *174defences must be pleaded. (Bailey vs. Wilson, 2 Bail. R. 15.) And I am supporting a decision made upon the record and evidence as presented, Thus, then, the case before us is referred back to the plain principle of Nance vs. Palmer; that is, if the allegata and probata of the plaintiff come with in the jurisdiction, the plaintiff cannot be put out of court, but upon the merits of his case, because a legal cause of action is first exhibited and then proved.

I concur in this opinion,