By the 10th section, 5th article of the constitution of this State, it is provided: “A competent number of justices of tbe peace shall be appointed .in and for each county, in such mode and for such term of office as the General Assembly may direct. Their jurisdiction in civil cases shall be limited to canses in wbicb tbe amount in controversy shall not exceed fifty dollars; and in all cases, tried before a justice of tbe peace, right of appeal shall be secured, under such rules and regulations as may be prescribed by law.”
To give practical effect to this clause of our constitution, the legislature, in the year 1819, passed the following act, in addition to the pre-existing laws upon the subject: "In cases of appeals from judgments of justices of tbe peace, tbe court before wbicb such appeal shall be brought, shall proceed to try the same according to the justice and equity of the ease, without regarding any defect in tbe warrant, capias, *186summons, or other proceedings of the justice of the peace, before whom the same was tried." Clay’s Dig. 315, § 19. It is further provided by law, that appeals on judgments for sums over twenty dollars shall bo tried ele novo, on an issue to be made up at or before the trial. This issue, according to the practice which obtains in the Circuit Court, and which has been repeatedly sanctioned by this court, is formed by the plaintiff’s filing a succinct statement of his cause of action, to which the defendant may plead or demur.
Under the act of 1819, this court has frequently held, that, for irregularities occurring before tbe justice, either in his .process or judgment, the appellate court should not quash the proceedings or repudiate the cause. Perry v. Brown, Minor’s Rep. 55: McGrew v. Adams & Elliott, 2 Stew. 502; Harrison v. Donelly, 5 Por. 213; McCrary v. Smith. 1 Ala. Rep. 157; Bentley v. Wright, 3 Ala. Rep. 157; White v. Blount and Skelton, at the present term.
It has also been held, that a, plaintiff in a cause before a justice of the peace, whose demand, on its face, exceeds his jurisdiction, may, by voluntarily entering a credit, or making a release, either before or at the trial before the justice, reduce his claim to an amount within his jurisdiction, and proceed to judgment before him for tbe balance. But the credit, or release, must bo in good faith, aud extinguish, pro tanto, tbe indebtedness of the defendant. King v. Dougherty, 2 Stew. 487; Baird v. Nichol, 2 Por. 86; Nibbs v. Moody, 5 Stew. & Por. 198; Henderson v. Plumb et al. 18 Ala. 76.
If, however, it does not appear, by tbe proceedings before the justice, that the plaintiff gave such credit, or made such release, and the claim is founded on a promissory note, or other written evidence of debt, the amount of which, with the legal interest thereon accruing, exceeds the jurisdiction of the justice, he will not be allowed to confer jurisdiction on himself by voluntarily casting off the interest, and rendering judgment for $50, or a less sum. Interest, in this State, is a necessary portion of the demand due by verbal or written contract, and, by force of our statute, must form a part of the recovery, unless the right to it be abandoned, or forfeited by some act of tbe plaintiff in the suit. He may abandon it by entering a voluntary credit to the amount of it, or by releas*187ing it in some other way; or be may forfeit it, by refusing to accept the principal when tendered, or by reserving, on a loan of money, a higher rate than 8 per cent, per annum. But until he divests himself of his right to it, either by abandonment or forfeiture, no court is allowed to refuse it to him.. Clay’s Dig. 288, § 2. Indeed, so jealously does the law guard these rights, that it provides that all partial payments on such demands shall first be applied to the extinguishment of the interest accrued. Olay’s Dig. 288, § 1.
It has been further held, both here and elsewhere, that if the want of jurisdiction appears by the judgment, or on the face of the proceedings, the party injured need not be put to his plea to the jurisdiction, but the appellate court will look to it mero inotu, and declare the judgment warn non judice, and void. Wyatt v. Judge et al., 7 Por. 37; Weightman v. Karsner, 20 Ala. Rep. 446; 3 How. Miss. 34; 5 Mon. 261; 12 Ver. 595; 7 Leigh, 63; 13 Ver. 175; 2 South. 822; 1 Binn. 219.
The act of 1819 (Clay’s Dig. 315, § 19,) was never designed to cover a want of jurisdiction in the justice of the peace, but it relates alone to irregularities and informalities in the process, proceedings and judgment before Mm. ' Neither was it intended to extend his jurisdiction to a sum exceeding fifty dollars, nor can it justify his assuming jurisdiction for a .greater amount.
In this cuse, as is apparent from the record, the note on which the action is founded, with legal interest to the date of the judgment before the justice, exceeded the sum of fifty •dollars; and it is admitted that no part of it was either credited, or otherwise released by the plaintiff, before or at the time of the rendition of that judgment. It is then apparent ■that the plaintiff’s claim exceeded the justice’s jurisdiction, and this may well be pleaded in abatement, even under the ruling in the extreme case of Bendy v. Wright, 3 Ala. Rep. 157.
But it is insisted, on the authority of Cothran et al. v. Weir, 3 Ala. Rep. 24, that the recovery, and not the amount •claimed, is to be looked to in order to settle the question of jurisdiction; and as this is the rule, and the judgment in the justice’s court was for no more than fifty dollars, the appellate *188court, even under the plea in abatement, cannot look behind the judgment for the purpose of ascertaining the amount claimed by the plaintiff, for the purpose of settling the question of jurisdiction. While it is admitted, that both the head note and the language of the opinion in the case referred to fully countenance such a rule, yet I cannot consent that it is the true one, nor do I think the judge delivering that opinion, intended so to lay it down. That opinion is couched in very few words, refers to no authority, and asserts a j^mciple ■ which is in direct hostility to many well considered cases which have been adjudged by courts of very high authority. In Vermont, Kentucky and South Carolina the very reverse-has been held, and in the two first named States, repeatedly. Weightman v. Carlisle, 12 Ver. 296; 6 ib. 91; Grant v. Tums, 7 Monr. 218; 4 J. J. Marsh. 242; 2 Bailey, 112.
It is also opposed, as I conceive, both to the letter and spirit of our act of Assembly, conferring and regulating the jurisdiction of justices in civil cases, which provides that, “ All debts and demands, not exceeding fifty dollars, for a sum or balance due on any specialty, note, bond, &c., are hereby declared to be exclusively cognizable and determinable by a justice of the peace.” Olay’s Dig. 858, § 1; and to the reasoning of this conrt in the cases of Nibbs, use, &c, v. Moody, 5 S. & P. 198; Winston et al. v. Majors et al. 6 Ala. Rep. 659, and Ledbetter v. Castles, 11 Ala. Rep. 149.
In the last of these eases, the true rule by which the question of jurisdiction is to be tested, is distinctly laid down. Castles had collected money as a justice of the peace, which he failed to pay over on demand; and the amount so collected, with the interest and damages allowed by the statute, exceeded $50, and a motion was made in the Circuit Court for their recovery. It was hold, that the Circuit Court might rightfully take jurisdiction, because, “the principal, interest and damages make the aggregate of tbe plaintiff’s demand, and. must be all looked to upon a question of jurisdiction.”
The true criterion by which the question of jurisdiction in such cases is to be settled, I apprehend to be, the amount legally due ou the note, or the sum actually claimed, and for which a recovery is sought before the justice; and not the recovery before him, as is said in Cothran et al. v. Wier, supra. See Ledbetter v. Castles, supra.
*189These views lead us to the conclusion that the court erred in sustaining the demurrer to the plea to the jurisdiction.
We would not be understood as overruling the cases of Cothran v. Weir, supra, and Rose v. Thompson, 17 Ala., in which the former was cited by this court with approbation. Both those cases were correctly decided on the facts presented by the records. Our only object is, to correct the unguarded expression of Ormond, J., with regard to the jurisdiction, as it is laid down in Cothran et al. v. Weir, and establish the rule as it is laid down in the later case of Ledbetter v. Castles et al., supra.
We are also of opinion that the judgment of Crabtree against the estate of the plaintiff’s intestate was a good off set, The debts are due in the same right; and notwithstanding the administrator, on a note payable to him as such, is allowed to sue and recover in his own name, yet the recovery when had will be assets in his hands belonging to the estate of his intestate. In such a suit, a demand against him in his individual capacity cannot be pleaded as an off set, (Harbin v. Levi, 6 Ala. Rep. 399;) and to hold that a debt due from the intestate could not be set off in such an action, would be to determine that such claims are subject to no set off whatever which is clearly not the law.
The fact that the claim of Crabtree against the intestate's estate had been reduced to judgment, and that the record shows that when it was obtained there were two administrators, can make no difference, inasmuch as the judgment is de lonis intestabis, and the recovery here will be assets of the estate. Jones v. Melton, 6 Ala. Rep. 830.
For these reasons the judgment of the court below must be reversed, and a judgment here rendered in favor of the plaintiff in error, on the plea to the jurisdiction.