after stating the case, delivered the ■opinion of the court as follows:
The first ground on which this'court is asked to reverse the judgment is, that the court below had no jurisdiction, as the note sued on was within the jurisdiction of a justice of the peace. ■
The act of our legislature organizing the district court, and -defining its powers and jurisdiction, in the latter part of the 2d section, reads as follows: “Also, of all suits for the recovery of land, of all cases of divorce and alimony, and all suits, complaints and pleas whatever, without regard to any distinction whatever, between law and equity, when the matter in controversy shall be valued at, or amount to, one hundred dollars or more, exclusive of interest,” etc. [Laws State of Texas, 1 vol. p. 201.]
The 13th section of the act to organize justices’ courts, and to define the powers and jurisdiction of the same, is in the following words, i. e.: “That justices of the peace shall have jurisdiction over all suits and actions for the recovery of money on any account, bill, bond, promissory note, or other written instrument, or for specific articles, where the amount or value does not exceed one hundred dollars, exclusive of the interest, costs and damages.” [1 Vol. Laws State of Texas, p. 302.]
It will be seen by the above citations, that both the d’strict court and the justice’s court can exercise jurisdiction for the sum sued for in this case. To neither is exclusive jurisdiction given, and the plaintiff had a right to select which of the two jurisdictions he would prefer, for the enforcement of his rights. The constitution of our state gives to the district courts jurisdiction, on claims like the present, for all sums not under one *12hundred dollars, exclusive of interest. The first act of the legislature, referred to above, is in accordance with the constitution; but this is not given as exclusive jurisdiction, and it is competent for the legislature to confer concurrent jurisdiction on the justices’ courts. In giving jurisdiction to justices’ courts, the legislature is under no constitutional limitation. The 17th section of the judicial department provides that “justices of the peace shall have such civil and criminal jurisdiction as shall be provided for by law.” ¥e are, therefore, of the opinion that the district court had jurisdiction in this case.
On the next point presented by the appellants, we believe that under the plea of non-indebtedness the evidence offered was properly rejected by the court. We need not enquire whether such testimony could have been recéived under the common law plea of nil debet. To receive it under our system would be subversive of all the advantages that we justly claim for our practice of petition and answer. The answer must, undoubtedly, set -forth all special matter of avoidance of the cause of action. If this is omitted, the testimony of such matter must be excluded.
The next objection taken by the appellants is to the refusal of the court below to allow them to read to the jury their special answer. In the statement of the ease, it will be seen under what circumstances the plea or answer was offered and rejected. To determine the correctness of the decision of the judge, we will refer to the law regulating the time and mode of answering or pleading.
The 29th section of the act to regulate proceedings in the district courts (Laws of State, vol. 1, 371) provides “that the defendant in his answer may plead as many several matters,, whether of law or fact, as he shall think necessary for his defense, and which may be pertinent to the cause; provided, that he shall file them all at the same time, and in the due order of pleading.” The first part of section 34, same act, provides “ that the pleadings, in all suits, may be amended under the *13direction of the court, and upon such terms as it may -prescribe, at any time before the parties announce themselves ready for trial, and not thereafter .”
The 35th section of the same act reads, “that no paper shall be considered as filed in the proceedings of any cause, unless the clerk shall have indorsed thereon the day on which it was filed, and sign his name thereto.”
It will be seen that to have received the defendants’ plea, under the circumstances under which it was offered, would have been wholly to disregard all three of the provisions of the law just cited. It was not filed at the time of filing the first. It was not indorsed fled, with the date and the signature of the clerk. It was not offered as an amendment, before the parties had gone into the trial. If an amendment is not asked before the trial is gone into, the judge has no discretion: he has no legal authority to allow it to be then done.
The only remaining question is, did the court below err in refusing to grant a new trial?
On a motion for a new trial, so much is often left to the discretion of the judge, that it is often very difficult to determine, on a revision, the correctness of his decision. If, instead of exercising a sound discretion, influenced by a due and proper regard to the rights of the parties, he has only exerted a capricious act of power, his decision ought, most assuredly, to be revised, and the mischief corrected. In the case before us, there is no affidavit of surprise — no reason assigned why the laws, regulating pleadings, had not been complied with. Under such circumstances, we cannot say that the judge was unwise, or capricious, in the refusal to grant a new trial.
The judgment is affirmed.