delivered the opinion of the court,
While it is true, in a certain sense, that on appeal from the judgment of a justice the proceedings are de novo, it is well settled that the cause of action cannot be changed, nor can the demand be increased beyond the limit of the justice’s jurisdiction, except so far as to embrace interest which has accrued since the institution of suit. A verdict and judgment for more than that is conclusive that the action was either erroneously brought or improperly prosecuted; Darrah v. Warnoch, 1 P. & W. 21. In the preseut case the plaintiff’s demand, before the justice, was $75, damages for breach of contract, and for that sum he obtained judgment, from which defendant appealed. In his affidavits filed in court, setting forth more fully the contract and breaches thereof, he claimed the same amount with interest from July 1st 1879. Thus far the record exhibits a cause of action clearly within the jurisdiction of the justice1; but the declaration, containing the common counts, to which is added an inartificially drawn special count on the verbal contract, lays the damages at $500. This might and should have been amended, by leave of court, so as to bring the case properly within its jur*460isdiction ; but, without offering to do so, the plaintiff proceeded to’trial, and having introduced testimony tending to prove the allegations contained in the special count, and items of damage, exceeding in the aggregate the jurisdiction of the justice, a verdict was rendered in his favor for $140, nearly twice the amount demanded by him on the hearing before the justice and subsequently in his affidavits of claim. The plaintiff in error could not be thus called upon to defend against a claim of damages, the items of which in the aggregate, as shown by the testimony as well as the verdict, greatly exceeded the jurisdiction of the court on appeal, fie was not bound to anticipate or defend against such excessive claim, nor would the court have been justified in entering judgment on the verdict as rendered. The result was a mistrial, and the verdict should have been set aside or judgment arrested ; but, after verdict, the court permitted the plaintiff to amend by striking out $500, and inserting $100, as damages, and then upon his remitting all of the verdict in excess of $100, judgment was entered for that amount. In this we think there was error. While the power of the court to authorize the amendment cannot be questioned, the circumstances were not such as to justify the entry of judgment for $100. Inasmuch as the defendant was not bound to anticipate or defend against a claim for damages exceeding $100, the verdict was invalid, and judgment thereon for the amount found by the jury would have been irregular and illegal. Nor was it competent for the plaintiff to cure the defect by remitting part of the verdict, or for the court to determine that $100 was the proper amount of damages for which judgment should be entered. The defendant below had a right in the first place to insist that damages, exceeding the limit of the justice’s jurisdiction, should neither be claimed nor proved, and in the next place he was entitled to have the jury pass upon the question of damages. The plaintiff, in his original demand supported by his own oath on the hearing before the justice, and in the affidavits of claim afterwards made in court by himself and his attorney, fixed his damages at $75. There is no good reason why he should have judgment for more than that sum with interest. It is not to be presumed that the plaintiff under-valued his own claim. If the declaration had been amended before or during trial, and the testimony as to the damages had been kept within proper bounds we would not feel disposed to disturb the judgment, but, as it is, we are of opinion that it cannot be sustained.
Judgment reversed, and a venire facias de novo awarded.