#### Jonathan Ellis, Appellant, v. Jacob Snider, Appellee.

APPEAL FROM UNION.

Where it appears from the account of the plaintiff that he claims less than one hundred dollars before a justice of the peace, the justice is not ousted of his jurisdiction, though a witness should prove that the plaintiff was entitled to more than one hundred dollars. The plaintiff’s own claim must govern as to jurisdiction.

Opinion of the Court by

Justice Lockwood.

This was an action originally commenced before a justice of the peace, in which the plaintiff recovered ninety dollars, and an appeal was taken by the defendant to the circuit court of Union county. Previous to the commencement of the trial in the Union circuit court, the plaintiff, on motion of the defendant, was ordered to file a written account, and thereupon the plaintiff filed a written account consisting of several items, amounting in the aggregate, to ninety-five dollars. It appearing to the court below, from the evidence of witnesses, that the defendant below was indebted to the plaintiff in a larger sum than one hundred dollars, (although the plaintiff had charged and claimed* a less sum than one hundred dollars,) the court decided that the justice of the peace had no jurisdiction of the cause, and reversed the judgment of the justice on that ground. To review the judgment of the circuit court, an appeal has been taken to this court.

The only question presented for our consideration is, whether the circuit court erred in reversing the judgment of the justice of the peace for want of jurisdiction.

By a reference to the statute giving justices of the peace jurisdiction, it appears that they have jurisdiction, “for any debt claimed to be due upon open and unsettled accounts between individuals, where the whole amount of the accounts of either party shall not exceed one hundred dollars.” * The party who presents an account is the best judge of the extent of his claim, where the amount of his claim has not been reduced to certainty by a note or express agreement. He is to determine how much he will demand for any particular service or article of property, and it is for the court or jury to decide whether the charge is reasonable or otherwise, and it is their province to allow either the amount claimed, or less, as in their judgment they shall believe the testimony will warrant. But neither the court or jury have a legal *337right to allow more than the plaintiff claims. Should they do so, it would be error, unless the plaintiff remits the excess. The circuit court, consequently, erred in deciding that the justice had no jurisdiction. The judgment below is reversed, with costs, and the cause remanded for further proceedings. (a), (1)

Breese, for appellant.

Judgment reversed.

*

Rev. Laws of 1827, p. 259,

(a)

Cases in relation to jurisdiction of justices of the peace. Clark v. Cornelius, ante, p. 46. Maurer v. Derrick, ante, p. 197.

(1)

See note to Clark v. Cornelius, ante, p. 46.