delivered the opinion of the Court:

There was no motion in arrest of judgment, nor was there any bill of exception signed. But the case is brought here by appeal on the naked record as we have recited it. And the question is, whether there is anything apparent upon the record that requires this court to review and reverse the judgment from which the appeal is taken.

It is true, as contended for the appellee, that questions not affecting the jurisdiction of the court below, or its power to render judgment upon the case stated for its action, will *556not be entertained and decided by this court, under section 3 of Rule V of this court, unless they appear to have been fairly presented for decision by the court below. This is to prevent injustice to the trial court, and surprise to the parties and their counsel in this court, where, if questions be allowed to be made for the first time, would convert this court into an original trial court, and preclude the adverse party from fairly meeting the question by facts that might be within his control, or by the amendment of pleadings to meet the requirement of the new question made.

But this reason of the rule does not apply to the case where the declaration states a case not within the jurisdiction of the court, or which wholly fails to show any such legal cause of action upon which a valid judgment can be rendered. In such case, the declaration itself presents the question, and the court must be assumed to have taken notice of the case as therein stated, when called upon to render judgment. Slacum v. Pomery, 6 Cr. 221; McAllister v. Kuhn, 96 U. S. 87; Oragin v. Lovell, 109 U.S. 194; Moline Plow Co. v. Webb, 141 U. S. 616, 623.

Now, in this case, the only actionable causes of action that were stated in the declaration, due at the time of the action brought, were the two instalments due, respectively, the 21st and 28th of December, 1895, making, in the aggregate, the sum of $100; and though the declaration concludes with the claim of $1,300, the $100, according to the allegations as to the terms of the contract, was the only, sum for ydiich suit could be brought at the time of the institution of the present action. This sum determined the question of jurisdiction,

By the act of Congress of February 19,1895, for the extension of the jurisdiction of justices of the peace in this District, the original1 jurisdiction of the Supreme Court of the District is limited and restricted to cases “ where the amount claimed to be due, or the value of the property sought be recovered, is more than one hundred dollars”; and *557sucli jurisdiction of the Supreme Court is concurrent with that of justices of the peace as to all amounts exceeding $100 and not exceeding $300; and of all sums above the last named sum the Supreme Court has exclusive jurisdiction. The amount sued for here, and which was recoverable at the time of” the action brought, was within the exclusive jurisdiction of justices of the peace. There is no interest claimed, and no addition for interest could be taken into account for the purpose of increasing the amount, so as to bring the claim within the jurisdiction of the Supreme Court of the District. Boagin v. Gordon, 34 La. Ann. 1052; Van Gelder v. Van Gelder, 81 N. Y. 129; Josnez v. Conner, 7 5 N. Y. 158.

In the case of Cooke v. Whorwood, 2 Saund. 337, the action was upon an assumpsit to perform an award, for the payment of money in instalments; and it was held that the action would only lie as the instalment became due. In that case, it was held by the court, as reported by Saunders, that the action might be brought for such sum of money only as was due at the time of bringing the action, and the plaintiff should recover damages accordingly; and when another sum of money awarded should become due, the plaintiff might commence a new action for that also, and so toties quoties. And Chitty lays it down as settled law (1 Chit. Pl. 16 Ed. 115), that, in general, assumpsit is the only remedy for the recovery of an instalment due on a simple contract, in respect of an entire sum payable by instalments, the whole of which have not accrued due, as the action of debt is not sustainable in such case. Tucker v. Randall, 2 Mass. 283; Rudden v. Price, 1 Hen. Bl. 547; Com. Dig., Action F. In the case of Rudden v. Price, just referred to, will be found a most learned discussion, by Lord Loughborough, Chief Justice, of the question of the right of action in debt upon a promissory note, payable in instalments, before the last instalment was due. He held that the action could not be maintained.

*558It is clear, the two instalments due at the time of the action brought were not sufficient to maintain the jurisdiction of the court, and that the subsequent instalments, falling due after action brought, could not be included in the recovery, or in any manner reckoned in the plaintiff’s claim, so as to support the jurisdiction of the court, or to justify the rendition of the judgment upon the verdict for the entire sum of $1,300. There was no legal foundation, therefore, for such judgment, and the court was without jurisdiction to render it. Clay Center v. Farmers’ Loan and Trust Co., 145 U. S. 224. The judgment must, therefore, be reversed and the cause be remanded, that the plaintiff may enter a non-suit of her action, or, in default of that, that the court may dispose of the case in a manner not inconsistent with this opinion; and it is so ordered.

Judgment reversed and cause remanded.