Warren v. Town of Newfane

25 Vt. 250 | Vt. | 1853

By the Court.

The only question in this case is, whether the judgment of the justice was final. The words of the statute are, “ No appeal shall be allowed, where neither the ad damnum,, nor the sum demanded by the declaration, nor the specification or exhibits of the plaintiff on trial, shall exceed ten dollars.”

It is admitted, nothing in the plaintiff’s writ made this case appealable, and nothing exhibited by the plaintiff on trial, unless his book, which was called out by the defendants on cross-examination, is to be regarded in that light. And we think the book can hardly be regarded as the plaintiff’s exhibit on trial, when drawn out in this way.

If it were to be considered, that the plaintiff might still recover that portion of the account omitted, then it ought to be regarded as part of the cause of action, or if the party might still sue for it, and this adjudication not be regarded as a bar to its recovery.

But a book account has usually been regarded as one entire claim, which if the party sued in part, it will bar the whole, unless some portion of the amount is left behind because it is not due, or for some other good cause, or by mistake. McLaughlin v. Hill, 6 Vt. 20. And unless this is so to be regarded, it certainly ought not to be permitted to the party to subdivide an entire account, for the mere purpose .and convenience of obtaining successive final judgments before a justice. But with this qualification, we see no more hardship, than in regard to other open claims.

In actions of tort, the party may set his own estimate upon his cause of action, whether for general or final jurisdiction, and the other party cannot complain ; and it has been held, the party may endorse a note down fictitiously for the mere purpose of varying the jurisdiction. Herren v. Campbell, 19 Vt. 23. See also 1 Washburn’s Digest, 91, and cases cited. This last decision is certainly contrary 'to the construction given to the subject in the English courts. But it seems to have been the intention of our legislature to enable the plaintiff to abandon any portion of his claim, which lie chose to abandon, and thus in some sense to make a jurisdiction, or to make one final, at his election. This is so in regard to most actions, but not all. The extent of the jurisdiction of a justice is made, in actions on book accounts, to depend upon the debit side of the plaintiff’s book. But in regard to making actions not appealable, a different form of expression is used, and we must suppose, with intent to make this question dependent upon a different test, i. e. the specification or exhibit of the plaintiff; and by these terms is meant evidently the same thing, the written description of his • claim, or probably the written evidence exhibited by plaintiff in support of his claim. We think if the book had been intended, different language would have been used, as in other sections where the question of jurisdiction is made dependent upon the book.

And we see no more objection to allowing the plaintiff to reduce his claim within the final jurisdiction of a justice, by his writ, declaration, and exhibit or specification, by reducing the price of charges, or by abandoning some, than in any other case, provided the abandonment, in this mode, is made conclusive upon all after claim, as we think it must be.

Judgment affirmed.