The opinion of the court was delivered by
Hebard, J.
Several questions have been made. 1. It is objected, that the plaintiff cannot maintain this action, for the reason that he was an authorized person. If the law recognizes him for the purpose of making legal service, and creating a lien by way of attachment of property, all this power would be lost, if he could not perfect the lien in the manner here attempted. The case of Thayer v. Hutchinson et al., 13 Vt. 504" court="Vt." date_filed="1841-03-15" href="https://app.midpage.ai/document/thayer-v-hutchinson-6572511?utm_source=webapp" opinion_id="6572511">13 Vt. 504, establishes the authority of the receiptor to pursue the property for the benefit of the authorized person. If the receiptor, in' such case, could pursue the property against a third person, the authorized person could have his action against the receiptor.
2. It is objected, that the suit should have been against all the sigriers of the receipt. This is fully disposed of by the' receipt itself. The signers take upon themselves a joint and several obligation.
3. As to the variance, — the declaration is according to the legal effect of the receipt; and that is sufficient, when the action counts directly upon the paper. In this case the plaintiff does not recite the paper, but declares against the defendant, according to his liability, and the paper is merely given in evidence.
4. The next objection to the judgment of the county court is, that the court had no original jurisdiction of the suit. The question of jurisdiction is not unfrequently a very perplexing question, and the *639courts have, in a variety of cases, attempted to give some general rules in relation to the subject; but it is, after all, found that each case must, in some measure, depend upon the particular circumstances of the case; and there is a degree of discretion allowed to the county court, in determining the question. But I believe it has always been held necessary, that \he plaintiff should do so much, at least, as to state his case on paper, iri such a manner, that, if all he alleges is true, it will appear that the court has jurisdiction. If he does that, and the claim sound in damages, and by the proof it appears that he had reasonable grounds for believing that he should recover over $100, still, in ordinary cases, if the damages happen to fall below $100, the case will not, of course, be dismissed for want of jurisdiction.
To determine whether the court had jurisdiction in this case, it becomes necessary to see, in the first place, what the plaintiff sets up, as the basis of his claim. It seems that the plaintiff was authorized to serve a writ, that he attached property upon the writ to the value of more than $100, and took the receipt of the defendant and others for the property, in which they jointly and severally promised to keep and deliver the property, “ or pay all cost and damage in case of failure and the amount of the note, upon which the property was attached, is specified in the receipt. The plaintiff in that suit obtained judgment and took his execution and delivered it to an officer, and this property was demanded of the defendant, and was not delivered, and this suit is brought against him to recover the cost and damage occasioned by the defendant’s failure to deliver the property, agreeably to the terms of the receipt. This is the basis of the plaintiff’s claim, as he has given it himself. By looking farther into the writ, we shall see what he sets up as the measure of the damage upon his own basis.
By the declaration it appears that the judgment in that suit, damages and cost, amounted to $79.60, and, with the other incidents to it, in the whole, amounted to $84 ; and the plaintiff sums up and concludes his declaration by saying, that said judgment is wholly unsatisfied, that it is still in force, and the same is still due, with the fees and interest on the same, and that the defendant refuses to pay the same, though it has been demanded of him. From this it is apparent, that his claim,, as he has seen fit to present it, is as much *640a matter of computation, as a note of hand. He only claims the amount of the judgment, officer’s fees and interest. He sets up no claim to the value of the property, but, agreeably to the terms of the receipt, he goes for the damage and cost occasioned by a failure on the part of defendant to deliver the property to the officer, when demanded. This being all he was entitled to recover, and all that he could reasonably suppose that he was entitled to recover, and, above all, being all that he has declared for in his writ, it is very clear, that, when the action was entered in the county court, that court had no jurisdiction of it.
When the case thus stood in the county court, the defendant, as well as,the plaintiff, having the whole of the plaintiff’s claim set forth, by which they had an opportunity to know and judge of it, agreed to a reference; and the question now is, what effect that agreement to refer the case had upon the jurisdiction of the court.
In the first place, it would be inequitable and unjust for the defendant to experiment upon the merits of the plaintiff’s claim, before a tribunal created by the parties, for the express purpose of taking a more equitable view of the case, than would be consonant with the rules and legal forms of proceeding before the court, and, when unsuccessful there, to throw himself back upon a defect, that was apparent in the outset, and which might have been taken advantage of, before the expense of litigating the merits of the case had been incurred.
In the second place, we think that the statute, providing for this mode of trial, intended to take the case out of the ordinary principles of law, which govern proceedings. It is regarded as a mere arbitration, for most purposes, and the court will not revise any of the doings of the referees, unless they say in their report that they in-intended to be governed by legal principles. The case, under the provision of the statute, is kept so far in the court, that liens may be preserved, and execution issue to carry into effect the judgment of the referees. When the cause is referred, it is before another tribunal; and it is not unusual that the parties refer matters, not embraced in the action in court. In England, and in some of the United States, this reference is called an arbitration, — the court still retaining all the power over it, that our court does over the reference. The effect, in short, of this reference, a3 of all others, is, *641to waive all those questions of formality, and technicality, that otherwise might have been insisted on, and transfer the matters to a different tribunal, which only takes cognizance of the merits of the controversy. The question of jurisdiction is determined by statute; and the statute has determined this mode of trial; there is nothing, therefore, in this view of the case, inconsistent with the general doctrine, — that this question never comes too late.
3. In the next pla'ce, we regard this question as having been, in effect, passed upon, and as not being entirely an open question. In the case of Eddy v. Sprague, 10 Vt. 216" court="Vt." date_filed="1838-01-15" href="https://app.midpage.ai/document/eddy-v-sprague-6572015?utm_source=webapp" opinion_id="6572015">10 Vt. 216, which was an action for the warranty of a horse, the referees did not find a warranty, but a deceit. The court sustained the report, although the issue tried by the referees was npt the one joined in court, nor one growing out of the declaration. In the case of Learned v. Bellotas, 8 Vt. 84, the same doctrine is held.
Judgment affirmed.