James Thompson vs. Solomon Colony, 6 Vt. 91

The opinion of the Court was pronounced by Mattocks, J. — The general count in the declaration before the justice states, that the plaintiff’s son was to labor for defendant part of three years, (if either party should not revoke during that time) at $50 for the first year — $6 0 for the second year, and $70 for the third. — That the son did labor the two first years, and then discontinued.

Then follows two of. the common counts, and concludes, “ All which defendant refuses to pay, which is to the damage of the plaintiff one hundred dollars.” If the first count shows the cause of action within the jurisdiction of the justice, the other counts may be considered as auxiliary to the first; and the several counts may be considered as different modes of declaring for the same cause of action.— Richards vs. Davison, 1 Aik. 215. But the sum due for the two years’ labor, which is averred to have been performed according to the contract of the parties, appears to be one hundred and ten dollars.

The jurisdiction of a justice being but one hundred dollars, the debt or matter in demand seems above, and not within his jurisdiction. To avoid this conclusion, it has been urged that no breach of the special contract is alleged, and therefore it is to be deemed no count, and the case will then stand upon the other counts. If the fact was so, it could not avail the plaintiff, as in general the insufficiency of the breach will be cured by the verdict. — 1 Chitty, 331.

And the defendant not having demurred for this cause, it is not competent for the plaintiff to nullify one part of his declaration with a view to save the other. But the conclusion, “ all which the defendant refuses to pay,” negatives the payment of the sum declared for in the special as well as in the general counts; and the case cited of Hosford vs. Foot, 3 Vt.

R. 396, which was f°r not saving defendant harmless from three notes of less than a hundred dollars each, payable in three successive years, and alleging that he was compelled to pay the ^rst note 5 an(^ “ alleging as a breach what related to that note only,” makes nothing for the plaintiff. If the plaintiff here, after setting forth the contract, had averred one year’s performance, or the two or three years’ performance, and negatived payment for one year, it. would then have been like the case cited.

It has also been contended, that the ad damnum is to decide the jurisdiction in the first instance, and then the proof on trial. This position is probably correct where the declaration does not show the case without the jurisdiction of the justice ; but where it does, as in an action on a note for two hundred dollars, and no endorsement or payment averred, and the ad damnum one hundred dollars, then clearly there is no jurisdiction. No essential part of the process should show a want of jurisdiction in the court.

The justice then having no original jurisdiction of the case, the county court had no appellate jurisdiction. This is an obvious and settled .principle. The only remaining question then is, whether the county court should have permitted the plaintiff to amend his declaration, sent up from the justice, so as to make a case that might have been cognizable by the justice, and that consequently the county court might take jurisdiction of the same.

It appears by the bill of exceptions, that the general issue and certain offsets being plead, the cause came on for trial; and in the course of the trial, it was dismissed for want of jurisdiction, and the court decided they had not power to permit the plaintiff to amend. It is to be understood, therefore, that the case went to trial on the declaration contained in the original writ; and when the court were about dismissing the action, the plaintiff moved to amend ; but in what manner, does not appear. Indeed, it is not apparent how any amendment could have been made that would have effected the purpose intended.

Certainly the old facts must have been varied, or new ones introduced, to have given the court jurisdiction; and as the declaration was drawn at length below, and relied upon without filing a new one above, we think the motion to amend on trial was properly refused : And when it is considered that the county court, in appealed cases, have not an original, but a derivative jurisdiction, and that the case came by appeal from a justice, and it appears by the record that the whole proceeding was coram non judice,' for the county court first to assume jurisdiction of the cause, and allow an amendment which would give a kind of nunc pro tunc jurisdiction to the justice, and then make that the basis of their own ultimate jurisdiction of the cause, would not be within the “ power” of the county court: that is, it would not be the legitimate and proper exercise of their judicial power as a court of law.

The judgment of the eounty court is therefore affirmed.