#### McCormick, Pl’ff in Error, *vs.*Robinson, Def’t in Error.

Where a suit is brought in a Justice’s Court, upon a note or claim exceeding fifty dollars, the Justice has not jurisdiction, under tho Statute, to try it, or to render a judgment thereon.

Where tho suit is on a note endorsed down, so as to leave loss than fifty dollars claimed thereon, the Justice has jurisdiction, notwithstanding tho defendant shall prove, on tho trial, that the endorsement was made without any payment being made on tho note.

It is the sum claimed by tho plaintijij that controls'jurisdiction; and if ho chooses to roleaso a part of his debt, tho defendant is not’ wronged thereby, and cannot defend himself in such a ease.

In an action before a Justice, on an open account, which is all due at tho time the suit is brought, amounting to moro than fifty dollars, the plaintiff may remit or leave out of the account, a sum to reduce tlie amount to the jurisdiction; but tho balance of the account, remitted ,or left out, could never bo collected.

Error to the late District Court for La Fayette Countv.

This was an action of assumpsit, on a promissory note of fifty dollars, brought before a Justice of the'Peace, for the recovery of the amount due thereon. There.was endorsed on the note four dollars and. seventy-five cents, which reduced the sum due or claimed thereon, below fifty dollars.

On the'trial, the. plaintiff proved the execution of the note. The defendant produced no witnesses,or evidence, *255and the Justice rendered judgment against the defendant for $45 25 daAiages.

The defendant below, the plaintiff in error, appealed from the judgment rendered by the Justice, to the District Court of La Fayette County, and the suit was there tried before the late Chief Justice Dunn, and by-agreement, without a jury. The defendant in error proved the execution of the note by the plaintiff in error, and rested. The plaintiff in error then called a witness to prove that there had never been any arrangement for a credit on the note declared upon; and claimed and assumed that the endorsement made upon the note, was fraudulently made by the defendant in error, to confer jurisdiction upon the Justice to entertain the suit, which otherwise he could not have had. Judge Dunn overruled and rejected the proffered evidence, as incompetent to defeat a recovery, and affirmed the judgment rendered by the Justice. To the-rejection of this evidence, the plaintiff took an exception, and upon that the suit was brought into this Court.

*J II*Knowlton, for Plaintiff in Error.

*Robinson*& *Culver,*for Defendant in Error.

*By the Court.*

Jackson, J.

This was an action of as-sumpsit, originally instituted by the defendant in error, before Jeffery T. Halsey, Esffi) a Justice of the Peace for La Fayette County, to recover upon a negotiable, promissory note, in these words:

> “White Oak Springs, March 15, 1847.

> On or before the first day of June next, I promise to* pay James L. Davis, or bearer, the sum of fifty dollars.

> MATH’W MgCORMICK.”

*256Upon the back of which note was the following endorsement —

> “ Received on the within, by turn with Delatour, and agreement with McCormick, four 75-100 dollars.

> Endorsed, JAMES L. DAVIS

> May 27, 1847”

The only question in this cause is, whether a plaintiff can, by endorsement, reduce a promissory note to a sum less than fifty dollars, and thus give a Justice of the Peace jurisdiction;'

The 9th section of the organic law of the Territory of Wisconsin, *{‘page*25, *Revised Statutes,)*declares that Justices of the Peace shall not have jurisdiction of any matter of controversy, where the title or boundaries to land may be in dispute, or *where the debt or sum*claimed, *exceeds fifty dollars.*

Under a fair construction of the latter provision of this, section, did the “ debtor sum claimed” by the defendant in error, exceed the jurisdiction of the Justice!

The note sued upon, without the endorsement, would have been beyond the Justice’s jurisdiction; but the endorsement upon the back of the note, acknowledging the payment upon it of four dollars and seventy-five cents, reduced the “ debt or sum claimed” by the defendant in error, below fifty dollars.

Had the plaintiff in error a right to inquire into the purpose of that endorsement, in order to ascertain whether the amount endorsed had actually been paid to the defendant in error, or whether it was a mere Voluntary relinquishment by hito, of a part of his debt or claim?

In either case, whether the amount of four dollars and' ¡seventy-five cents had actually been paid upon the *note,or*
      *257Whether that sum was voluntarily relinquished by the holder of it, there was no “ debt or sum claimed,” exceeding fifty dollars, requiring to be investigated. If not, there can be no doubt that the Justice had jurisdiction.

This is not the case of an open and unsettled account for an amount exceeding fifty dollars, where, although credits are given, which, if allowed, would reduce the sum claimed below fifty dollars, yet no balance having been agreed upon between the parties, the trial would involve an investigation of the whole account.

A party might, in such a case, by leaving out a part of the items of bis account, bring his demand within the requisite *limit;*but he must then lose the portion omitted, as he cannot make it the subject of a separate suit.

Judgment below' affirmed.