| Vt. | Mar 15, 1853
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" court="Vt." date_filed="1834-01-15" href="https://app.midpage.ai/document/mclaughlin-v-hill-6571578?utm_source=webapp" opinion_id="6571578">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" court="Vt." date_filed="1846-03-15" href="https://app.midpage.ai/document/herren-v-campbell-6573508?utm_source=webapp" opinion_id="6573508">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,
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.