#### Jacob Seafkas et al., Appellants, v. John M. Evey, Appellee.

APPEAL FROM WOODFORD.

A justice of the peace has not jurisdiction over a matter of set-off which would require him, after deducting the claim of plaintiff from the set-off, to adjudicate upon an amount exceeding one hundred dollars.

Evey sued Jacob and Albert Seafkas, in debt, on a note, given by them to one Gish or order, for one hundred and fifty-two dollars and interest, dated 19th September, 1857, and assigned by Gish, on the 1st of January, 1859, to one Frantz, who again assigned the note to Evey, the appellee, on the *17922nd of March, 1861. A. Seafkas denied having signed the note, and verified the plea by his affidavit. There was proof showing that he directed his son to sign the note for him.

The appellant (A. Seafkas) also pleaded, that on the 30th of April, 1859, he had sued Frantz, the said assignee, before a justice of the peace, and that Frantz had offered the note, now sued on and then owned by him, in set-off before the justice, who heard the proofs, and that the justice rendered judgment in favor of A. Seafkas against Frantz; and that the justice had jurisdiction in the premises. To this plea replications denying the jurisdiction of the justice were filed, and issue taken on them. The jury found for the appellee, Evey, and judgment followed. The cause was tried in Woodford county.

H. Grove, for Appellants.

John J. Weed, for Appellee.

Breese, J.

The testimony to prove the execution of this note, was by no means of a convincing character, and had we been sitting as jurors, should not have found the verdict. But though weak, it satisfied the jury, and we cannot well disturb their verdict.

Upon the other point, the justice of the peace had no jurisdiction of the note when it waé offered as a set-off in the case of Seafkas against Frantz, and no decision upon it could be a bar to a recovery in another suit.

After taking out the plaintiff’s claim in that suit, of sixty-six dollars, there still remained due on the note one hundred and seventy-two one-hundredth dollars, a sum beyond the jurisdiction of a justice. This was made up by interest arising on the note, and the holder is presumed to claim all he is entitled to, unless waived or released by him in some mode. There is no proof that the overplus beyond the magistrate’s jurisdiction was released, or intended to be, but it was claimed, and that would oust the magistrate’s jurisdiction. The judgment is affirmed.

Judgment affirmed.