pronounced the opinion of the Court.— The defendant’s motion to dismiss for want of jurisdiction was not such a motion as should be granted of course i for sufficient was-stated in the declaration to give the county court jurisdiction. The* note of one hundred dollars, in one count, and four or five oxen in another, alleged to be worth ‡ 120, prima facie, exceeded the jurisdiction of a justice ofthe peace. Themotion waspredieated upon asup-posed failure of the plaintiff to prove so large a sum due to him, as would bring his case within the jurisdiction of the county court. The county court were called upon to weigh the plaintiff’s testimony for the purpose of deciding this motion. And they ought not to dismiss the action, unless it was a clear case, that the plaintiff’s whole claims, in this action, could be tried before a justice of the peace in one action. The plaintiff ought not to be dismissed from one-court, and sent to another, where the jurisdiction would still be uncertain. The defendant’s motion was addressed to the sound discretion of the court ; and several circumstances were worthy of their attention. The matters stated in the declaration were large enough togive the county court jurisdiction. If it were suggested, that the plaintiff ought either to have sued for the note, treating it as unpaid, or for the $56 worth of oxen, treating the note as paid, and either would have been within the jurisdiction of a justice of the peace, the question immediately arises,, whether *171lie would have been safe to have sued in either of those ways, alone. Much might be urged to show that the note was paid, and was of no value when converted by the defendant, and that the plaintiff’s only claim was for the oxen.
Again, it might be urged, that the plaintiff’s taking back the note, after the oxen were attached, was a refusal to treat the oxen as payment, and a determination to hold the note in full force. From 'the testimony stated in the case, I should consider the note paid, and the oxen the property of the plaintiff. But different testimony as to what transpired, when the oxen were turned out, and with regard to the powers of the person who then acted as agent for the defendant, might vary the case in this respect. - This uncertainty, upon which count the plaintiff ought to recover, added to the uncertainty of what amount the plaintiff ought to recover, in reference to his own interest, and his liability over for whatever else was due upon the note, which still remained in defendant’s possession, rendered it proper that the county court should retain jurisdiction. And here it may be observed, that the testimony on the part of the defendant could no more afiect this question of jurisdiction, than proof ol partial payments in any case whatever. The defendant’s showing that the balance of the note, or of the cattle, after the plaintiff’s debt was satisfied, belonged to John Denio, and was legally holden by the defendant’s attachment against John, might go to reduce the damages, but could not deprive the court of jurisdiction.
Another question was raised upon the instructions given to the jury with regard to the conversion. If the note were the object of the recovery, there could be no doubt but that the defendant’s obtaining it for examination, and then stuffing it into his rpouth, and forcibly keeping it, was a conversion. I thought upon the hearing, that the same question was equally clear, if the oxen were the object of recovery. The plaintiff and John Denio, it now seems, owned them as tenants in common, and the defendant attached the whole as the property of John Denio. That, and the after sale, were clearly a conversion of the plaintiff’s portion of the oxen. The defendant could of right take no more than the undivided portion which belonged’ to John Denio.. If Eli and John Denio had been partners, or if John had had the sole possession of the oxen, and the plaintiff’s interest in them had not been known to the defendant, and the defendant claimed by a purchase from John, a different question would have arisen.
The judgement of the county court is affirmed.