The opinion of the court was delivered by
Williams, Ch. J.Tins was an action of debt, brought to recover several penalties under the 18th section of the listers’• act. By that section, the keeper of a stallion, if he neglects to comply with the requisites of the statute, forfeits the sum of five dollars for each mare the stallion shall be put to and cover during the season. The plaintiff, in his declaration, sets forth, in distinct counts, as many penalties as would give jurisdiction to the county court. On trial he proved that the horse went to fifteen mares and no more, and no proof was offered that he went to any other. On trial the defendant’s counsel insisted that the county court had no jurisdiction and requested the court to .direct the jury to bring in a verdict for the defendant'. The court were probably correct in not charging the jury as requested ; but whether they should not have dismissed the case for want of jurisdiction, is deserving of consideration.
The statute of 1820 authorized every justice of the peace to hear, try and determine all actions of a civil nature, except in certain cases where the debt or other matter does not exceed ono hundred dollars. In all actions, of a criminal nature, the jurisdiction of the justice is limited to those cases where the fines or forfeitures do not exceed the sum of seven dollars. It is the nature and not the form of the action which determines the jurisdiction. This principle was decided in the county of Giand Isle, in a case not reported, but which was correctly stated and referred to by the counsel for the defendant. A justice of the peace has jurisdiction to the amount of one hundred dollars, in all actions to recover penalties similar to those for which this action was brought.
Taking it for granted that the rule adopted in the case of M’Farland vs. M’Laughlin, 2 Chip. 90, applies to actions to recover penalties, where the whole amounts to over one hundred dollars, the enquiry will be, whether, in this case, when it was rendered certain that the penalties amounted to seventy-five dollars and no more, the county court had jurisdiction. This case cannot be compared to those where.the damages are uncertain, liable to be varied by proof, and in which the ad damnum would determine the jurisdiction ; nor is it like those where the suit is brought for several penalties, and evidence is offered tending to prove enough to bring the case within the jurisdiction of the cou'n*275ty court, but which turns out to be insufficient to prove each count. In such cases, if the court should be of opinion that the suit brought in good faith, but the evidence different from what might reasonably have been expected, they ought not to dismiss the suit for want of jurisdiction. It is more like the case where the declaration counts on several distinct notes, some of which had no existence, and the counts were evidently inserted to give juris» diction to the county court.
The amount to be recovered in this case was certain, and did not exceed seventy-five dollars, and we cannot say that the plaintiff might sue for that sum before the county court, by making counts for penalties which had never been incurred. We do not see that fhe plaintiff is laid under' any inconvenience by this view of the law. He could have brought as many actions as he thought proper before a justice of the peace, and could have collected all the forfeitures to which the defendant was liable. If he ventured to bring his suit to the county court, he should be satisfied that his evidence would prove, or at least, would tend to prove, that the forfeitures exceeded the sum of one hundred dollars, to which extent a justice had jurisdiction. The decision of the county court, that they had jurisdiction, was therefore erroneous; and although they might not have been warranted in directing a verdict for the defendant, they should have dismissed the suit for want of jurisdiction. The judgment of the county court is therefore reversed, and the action is dismissed and the defendant will recover his eost.