This is a writ of error, brought to reverse a judgment of the county court, in an action in which Denison was plaintiff, and recovered his damages and costs.
It is contended that this judgment ought to be reversed. 1 st, because the Court had no jurisdiction of the action. 2d, because the Court erred, in deciding that Denison could recover, for use and occupation, upon such testimony of the actual occupation, as appears in the case, The only objection that appears *215to have been raised, to the jurisdiction before the county court, is grounded upon the supposition, that the title of land was concerned: of course, that a justice of the peace could have no jurisdiction: and if so, none could be transferred to the county court by appeal. These positions are both correct in principie, if they were supported by facts. It does not appear that the title of land did come in question. The party who tenders his bill of exceptions, with a view to a writ of error, must, at his peril, place so much there as shows that the county court did err; for the presumption is, that their judgment is correct, till the contrary appears. This must appear, either by stating definite law points arising, as on objections to evidence, or written motions to dismiss, which stand demurred to, &c. or by stating the whole evidence, the legal import of which is embraced in the decision: and, in that case, it must appear to be the whole, or this Court cannot ascertain upon what the judgment of the Court below was predicated. In the present case, the bill of exceptions states the testimony of certain witnesses, and that there was a motion to dismiss, for want of jurisdiction; and that the Court refused to dismiss: but it does not state that the evidence recited, was all the evidence in the case, nor upon what ground the Court decided. There might have been other testimony, or the Court may have disbelieved that on which the original defendant relied. There might have been proof of an express contract to pay rent, as demanded by the plaintiff: then the title would not come in question. At least, it might not. On this point there is no errsfr.
A want of jurisdiction is here urged, arising from what is called an enlargement of the plaintiff’s claim, by the new declaration filed in the county court. It seems there was one count only before the justice, and two counts before the county court. The ad damnum, in both, is within the jurisdictionof the justice, but the sums declared for, in thé two counts, when added, amount to 150 dollars. It does not appear that this question was started before the county court. No objection appears to the reception of the new declaration, nor is this objection named in the motion to dismiss. Nevertheless, if the Court had not jurisdiction, and the want of jurisdiction appears upon the record, their judgment must be reversed. But the Court find no such difficulty. The first count is for a sum certain; and the second upon a quantum meruit. Both claim rent for occupation of the same premises, for the same period. It is obviously tvyo ways of declaring for the same thing. The second count adopts the form of saying for other premises. This is a necessary form. But it sufficiently appears to the Court, that the sum^brought into litigation, was within the jurisdiction of the Court. Of course, this objection is overruled.
What is already said, virtually disposes of the second points for it does not appear upon what ground the Court below decided that point. They decided upon the weight of evidence: and whether they weighed the evidence right!}’-, or not, is not *216within the province of this Court to determine. For ought that appears, they disbelieved the testimony : for ought that appears, there was other testimony, not now presented to this Court. jj. js yery probable that this Court, upon haviug the whole case before them, as it was before the county court, might decide differently from what they have done: but as the case now stands, we cannot say that the Court below erred.
Joseph C. Bradley, J. Doolittle, and A. Aikens, for the plaintiff in error. Horatio Needham, and S. S. Phelps,- for the defendant in error.The judgment of the county court is, therefore, affirmed, and the defendant in error allowed his costs of this writ of error.