The opinion of the court was delivered by
Kennedy, J.The third section of the act of 20th March, 1810, provides, that “if the parties appear before the justice, either' in person or by agents, the justice shall proceed to hear their proofs and allegations, and if the demand shall not exceed fivedollars and thirty-three cents, shall give judgment, as to right and justice may belong, which judgment shall be final, but if the demand or sum in controversy shall be more than that sum and shall not exceed one hundred dollars, and either party shall refuse to submit the determination of the caseto the justice,.he shall in that case request them to choose referees,” &c. And the fourth section proceeds further to declare that “if either party or their agents shall refuse to refer, the justice may proceed to hear and examine their proofs and allegations, and thereupon give judgment publicly, as to him of right may appear to belong, either party having the right to appeal within twenty days after judgment being given either by the justice alone, or on award of referees, when such sum shall exceed the sum of twenty dollars.” The fourth section also enacts that a defendant who shall neglect or refuse in any case to set off his demand, whether founded upon bond, note, penal or single bill, writing obligatory, book account, or damages in assumption against a plaintiff, which shall not exceed the sum of one hundred dollars, before a justice of the peace, shall be, and is thereby, forever barred from recovering against the party plaintiff, by any after suit. ” It is clear from the words of the third section that it is the amount of the demand and not the amount of thejudgment given by the justice which regulates the right of appeal to the court of Common Pleas. Nor is it confined to the amount of the plaintiff’s demand; for I consider that upon a fair construction of the act the word “demand” or at least the expression “sum in controversy” will refer to, and embrace the demand which the defendant may offer to set-off, or claim a judgment for, against the plaintiff. This construction seems necessary not only to do equal justice between the plaintiff and defendant, and to place the defendant upon an equal footing with the plaintiff, but to preserve to him the right of trial by jury inviolate as before the adoption of our present state constitution. By the seventh section of the act it is expressly declared that if the defendant shall in “any case” no matter what the amount of the plaintiff’s claim may be, whether above or below five dollars and thirty-three cents, neglect to set-off his. demand, if it do not exceed one hundred dollars, he shall ever afterwards be debari'ed from x-ecovering the same of the plaintiff. This provision of the act compels the defendant to set-off orbring forward on such claim against the plaintiff if he íxas it or otherwise. *121forfeit all right to demand or sue for it afterwards; which could never have been intended by the legislature, without giving to the defendant ultimately by appeal, the benefit of a jury trial, in deciding upon his claim, where it shall exceed five dollars and thirty-three cents, and the justice shall have decided against him.
Ithas, however, been contended in this case by the counsel for the plaintiff in error, that the defendant ought, at all events, in order to have entitled himself to an appeal from the decision of the justice, to have had the amount of his claim entered upon the justice’s docket. The act of assembly certainly does not require this. Besides, it seems to me that the defendant can have nothing entered Upon the justice’s docket but what the justice shall please to püt there, and that it would be too severe to deprive a party of his right on account of the omission of the justice. Because in this case it appears from the return of the justice to the rule taken upon him in the court below, to return the accounts and evidence an the ease, that the defendant had made a statement in writing of the amount of his claim against tlpe plaintiff, detailing the items of it, and shewing what each was for; and had presented it to the justice before trial, and left it with him. This was certainly as much as he could do. If it ought to have been noted or entered in any way on the justice’s docket, it was the duty of the justice to have done so, and his omission ought not to prejudice the defendant in his right to an appeal. Indeed it is expressly provided for, towards the close of the fourth section of the act, that “no deficiency of form or substance in the record or proceedings returned, nor any mistake in the form oí name of the action, shall prejudice either party in the court to which the appeal shall be made. ’’ Neither do I see any góod reason why a statement made out in writing by a party containing not only the amount of his claim, but also the nature of it, and given as such to the justice before' trial, as was done in this case, and at the time of trial, and left with him, should not be equivalent to an entry of the amount of his claim by the justice on his docket. The statement thus reduced to writing by the party and left with the justice, can be certified and returned with the appeal to the court by him, and will be at least as likely to be free from mistake, as if he had entered it on his docket merely from the mouth of the party. Certainty of what -ivas the amount of the party’s demand before the justice on trial, is the object sought after; and the mode adopted by the Common Pleas in this case to attain this end, as well as the evidence furnished by the justice, of the amount of the defendant’s demand, which greatly exceeded five dollars and thirty-three cents, is quite satisfactory; and in the opinion of a majority of this court, entitled him to his appeal,
Ross, J. dissented/Judgment affirmed,