1 Aik. 210 | Vt. | 1826
This is a writ of error, brought to reverse a judgment of the county court, in an action in which Denison was plaintiff, and recovered his damages and costs.
It is contended that this judgment ought to be reversed. 1 st, because the Court had no jurisdiction of the action. 2d, because the Court erred, in deciding that Denison could recover, for use and occupation, upon such testimony of the actual occupation, as appears in the case, The only objection that appears
A want of jurisdiction is here urged, arising from what is called an enlargement of the plaintiff’s claim, by the new declaration filed in the county court. It seems there was one count only before the justice, and two counts before the county court. The ad damnum, in both, is within the jurisdictionof the justice, but the sums declared for, in thé two counts, when added, amount to 150 dollars. It does not appear that this question was started before the county court. No objection appears to the reception of the new declaration, nor is this objection named in the motion to dismiss. Nevertheless, if the Court had not jurisdiction, and the want of jurisdiction appears upon the record, their judgment must be reversed. But the Court find no such difficulty. The first count is for a sum certain; and the second upon a quantum meruit. Both claim rent for occupation of the same premises, for the same period. It is obviously tvyo ways of declaring for the same thing. The second count adopts the form of saying for other premises. This is a necessary form. But it sufficiently appears to the Court, that the sum^brought into litigation, was within the jurisdiction of the Court. Of course, this objection is overruled.
What is already said, virtually disposes of the second points for it does not appear upon what ground the Court below decided that point. They decided upon the weight of evidence: and whether they weighed the evidence right!}’-, or not, is not
The judgment of the county court is, therefore, affirmed, and the defendant in error allowed his costs of this writ of error.