Joseph Sibley versus Uriah S. Smith and Trustees, 19 Pick. 546

Shaw C. J. The ad damnum in this case was under $ 100, it was not therefore a case open to appeal as between the principal parties. Ammi Smith, the intervening party, who came in under the statute to contest the title to the property, charged by the attachment, in the hands of the trustees, claims an appeal. He relies mainly on the authority of Hovey v. Crane, 10 Pick., where the trustee was allowed to appeal, though the ad damnum was under $ 100.

But the ground of that decision was, that as the law then stood, the question, whether the trustee must be charged or not, depended wholly upon the facts disclosed by the trustee; those facts could not be varied Dy proof, and therefore the question whether trustee or not, was exclusively a question of law, as upon a special verdict or case stated. It depended upon the application of rules of law to those facts.

But by the Revised Statutes, all this is changed ; the intervening party is allowed to bring proofs and try his title upon the fact and upon the law, and in this way can he have a trial of the fact by the jury. The Court are therefore of opinion, that the case does not come within the principle or the authority of Hovey v. Crane, and that it is not open to an appeal to this Court. Appeal dismissed.