This suit was originally brought before a magistrate to recover sixty dollars xVo'> the balance claimed on *63account for one hundred and fifty-three "xso%- dollars, reduced by a credit of ninety-three yW dollars.
The defendant’s objection to the jurisdiction of the Justice was overruled. The cause was brought on certiorari to the District Court, to test the question;—and on motion the certiorari was dismissed. In this there was no error. The amount claimed was sixty dollars. The original account had been reduced to that sum by credits allowed by plaintiff, and so stated when he brought his action. These credits thus allowed must be regarded as payments pro tanto, and suit if brought in the District Court would, if the case of Swigley v. Dickson, 2 Tex. R. 192, be sound law, have been dismissed for want of jurisdiction; and if not dismissed the plaintiff would, under Art. 609, Hart. Dig., have been condemned in the costs. (9 Tex. R. 405; 5 Id. 386 ; 4 Id. 120.)
A plaintiff cannot be forced into the District Court, and compelled to pay costs to recover a balance less than one hundred dollars, which is within the jurisdiction of a Justice’s Court, There is no pretence in this case, of a valid defence against the whole account of the plaintiff. If there were, it would be no sufficient ground to sustain the plea to the jurisdiction. The account consists of various items. And the defendant would not be required to prove that the whole were groundless. If sixty dollars and one cent of the account were shown to be without foundation, the judgment must be for defendant. But in this case there is no plea except to the jurisdiction.
The plaintiff is to be commended for claiming no more than is really due to him, and for allowing credits which perhaps might not have been easily established by defendant. Under our ancient laws, a plaintiff could not include in his petition more than was really due to him under pain of paying three times as much with costs and damages. (1 White, 277.) This seems to be very severe, though just. But the defence set up in this case would not only modify this rule, but so utterly reverse it as to dismiss the plaintiff out of Court because he did not claim more than he knew was really due to him. We are of opinion that the writ of certiorari was properly dismissed, and it is ordered that the judgment be affirmed.
Judgment affirmed.