Town of Weston v. Marsh

The opinion of the court was delivered by Collamer, J. — Every judgment of a justice is final “when the sum demanded does not exceed ten dollars.” The amount claimed by the plaintiff is generally determined by the ad damnum, and, as to an open claim, or matter resting in assessment of damages, that is conclusive. There being two or more counts, each claiming no more than ten dollars, does not alter it, as they will always be presumed to be for the same subject matter, when that is possible, because by no other presumption can the declaration and ad damnum be consistent. If the ad damnum does not exceed ten dollars, still the action may be appealable, if, by the plaintiff's written exhibit or specification, or by the declaration itself, it is clear that his demand is above ten dollars. In this case the ad damnum is but ten dollars, and the plaintiff presented no written exhibit or specification. Does the declaration clearly show that his claim w-as more than he demanded in damages? The second count, for money paid out, will be' presumed to be for the same matter, or a part of it, men - tioned in the first count, by the rule already mentioned. By the first count, it is alleged that the defendants below promised to pay for transporting the pauper and to indemnify [422] the plaintiff below for all damages,costs and charges incurred therein ; that he performed the service, was compelled to call assistance,and,for this,has been sued and put to costs, and been compelled to pay judgments recovered against him to a large amount, to wit, ten dollars. It is to be remembered, that an amount laid under a videlicet is rendered thereby in no way certain, unless it be that it cannot be shown above that amount. Now treat this count in that manner and we cannot say what was the amount of the- plaintiff’s claim. The declaration, therefore, does, not show that the plaintiff’s claim exceeded ten dollars. This question could not be affected by the finding of the justice, nor by the fictitious plea in offset of the defendant below. Judgment — that there was no error.