This suit was commenced' since the Code went into operation, and is governed by its provisions. There is a substantial difference between the act of 1807, (Olay’s Digest, 825, § 75,) and section 2365 of the Code. Under the former statute, this cour truled, in^Cummings v. Edmundson, that “the question whether a plaintiff, in instituting suit in the circuit court for a larger sum than fifty dollars, and recovering less than that sum, has designed to evade the latter part of the act of 1807, is one of discretion in the court trying the cause, and which cannot be reviewed in this court.” — 5 Port. 145. Our subsequent decisions onjthat statute have uniformly and rightly held the same language. — See them collected on the brief of *210counsel. Tlie Code is imperative in its terms. — § 2365. Its language is, “If suit be brought, on any moneyed .demand, for a less amount than that of which the court has jurisdiction, the suit must be dismissed; or, if suit be brought for such amount, and a less sum be recovered, unless the amount is reduced below that of which the court has jurisdiction by a set-off successfully made by the defendant, the judgment must be set aside, and the suit dismissed, unless he, or some one for him, make affidavit,” &c.
The constitution confers on the circuit courts original jurisdiction, “in civil cases, only when the matter or sum in controversy exceeds fifty dollars.” — Art. V, § 6 ; Code, § 628. The verdict in this case was for precisely fifty dollars, — a less sum than that of which the circuit court has original jurisdiction; and the record informs us that the recovery was not “reduced below that of which the court has jurisdiction, by a set-off successfully made.” The record also jinforms us that neither the plaintiff nor any one for him made the affidavit required by law. The suit in this case being on a “moneyed demand,” the circuit court should have set aside the judgment, and dismissed the suit, on the defendant’s motion.
Ve need not, and do not, now decide what would be our conclusion, if the record failed to inform us that the statutory affidavit had not been made. That question will be considered when it arises.
The error above pointed out renders it unnecessary that we should decide any other question raised by the record.
The judgment of the circuit court is reversed, and a judgment here rendered, setting aside the judgment of the circuit court, and dismissing the suit. Let the appel-lee pay the costs of this court, and of the court below.