The plaintiffs brought to the Court of Common Pleas their action of indebitatus assumpsit on the common counts, demanding $180 damages and costs.
In cases of this kind jurisdiction generally depends upon the amount demanded as damages, that being regarded as the matter in demand within the meaning of the statute. The plaintiffs having demanded less than $500 and more than $100, the Court of Common Pleas had undoubted jurisdiction of the case. But if it appear on the face of the declaration, either as originally drawn, or as afterward amended, that the plaintiff cannot recover all the damages laid in the ad damnum clause of his writ, then the matter in demand will be the highest sum which the plaintiff on the face of his declaration appears to be entitled to recover. Thus, although the declaration in this case demands $180 in its ad damnum clause, yet if the plaintiffs have filed a bill of particulars as part of the record, and have thereby so amended their declaration that it appears on the record that no recovery can be had beyond the sum of $96.86, then a want of jurisdiction in the Court of Common-Pleas appears of record, and the judgment is erroneous for defect of jurisdiction.
The record on this subject is as follows : The plaintiffs on the day of trial voluntarily produced a bill of items- of their account, the same purporting to be an exact transcript of their books, which were also produced in court. The bill of items *136is then given at length. We think such a document is not necessarily a b ill of particulars; it does not appear to have been filed as such, so as by such filing to become part of the record. But further, this bill of items, though as originally produced it perhaps showed a demand less than $100, yet by leave of the court it was so amended that the matter in demand is within the jurisdiction of the court. We see no objection to such an amendment. A bill of particulars would, we think, be open to such an amendment.
The defendant argues that the moment a bill of particulars is filed showing a demand of less than $100, it becomes the duty of the court to dismiss the suit for want of jurisdiction, and that the court can exercise no further control over the case than summarily to throw it out of court. We cannot accede to this view of the subject. The plaintiff cannot thus by an act of his own oust the court of a jurisdiction vested in it. He cannot, without the consent of the defendant and of the court, withdraw himself from a jurisdiction which he has himself invoked. The case remains within the control of the court certainly for some purposes. Judgment may be rendered for costs in favor of the defendant, and we think if the court is satisfied that the bill of particulars was filed in the form it is by inadvertence of counsel, or by mistake, that it is open to amendment within any reasonable time. A contrary doctrine would simply visit a plaintiff with serious damage by reason of a mistake from which the defendant suffers nothing, and correcting which does the defendant no injury-
The defendant further insists that the bill of particulars disclosed that the real matter in dispute between the parties was within the jurisdiction of a justice of the peace, and that being so, an amendment ought not to be allowed for the purpose of enabling the plaintiffs to insert fictitiousitems of debit, or erase true items of credit, thereby to give the court a jurisdiction by fiction. It must be conceded that as an original question there is force in the suggestion. It seems, a.t first sight, like an abuse of our statute rule to allow a plaintiff, by making a large de*137mand in his writ, to bring cases really small into the higher courts. But the law has long been settled that this may be done, and no serious evil has followed. It would occasion great embarrassment to have the jurisdiction depend upon the real value of the matter in controversy as that value should appear at the trial, and under the rule as administered it is not common that the higher courts are improperly called to try small Causes. We have become familiar with the rule which thus allows the plaintiff to fix the matter in demand by the ad damnum clause of his writ, and allowing him to amend his bill of particulars, and make it conform to his declaration in respect to the amount demanded, is but following out a rule with which we are familiar, and which in practice has been found convenient and safe.
We therefore decide that there is no error in the judgment complained of.
In this opinion the other judges concurred.