*727The opinion of the court was delivered by
Pierpoiot, Ch. J.The first question discussed by counsel arises upon the motion to dismiss for want of jurisdiction. If this motion prevails, there will be no occasion to consider the other questions. The declaration contains two counts; the first is for trespass on the freehold, the second for taking- personal property. The ad damnum is twenty-five dollars. The action was brought before a justice of the peace, and comes to this court by appeal.
Justices of the peace have jurisdiction in actions of trespass on the freehold, only when the sum in demand does not exceed twenty dollars. The ad damnum is a part of the plaintiff’s declaration, and in actions of trespass on the freehold, determines the sum in demand and settles the question of jurisdiction. It fixes the amount which the plaintiff may recover if he recovers at all. Under the first count in the declaration, any court having jurisdiction could render a judgment for the sum of twenty-five dollars for the trespass on the freehold alone. This being so, it seems quite clear that the first count is for a cause of action wherein the sum demanded exceeds the jurisdiction of a justice of the peace. This difficulty is not obviated by the fact that the plaintiff has joined a count for a trespass that is within the jurisdiction of a justice. The court must have jurisdiction of the whole case as it stands on the face of the deelaration, with power to render a judgment on the whole case, or any part of it, to the full amount of the plaintiff’s demand, if the proof requires it. If the declaration shows a case that is not within the jurisdiction of {he court, the court has no power to remedy the difficulty ; it cannot allow the ad damnum to be reduced, or the objectionable count to be stricken out; as to do so, the court must first have jurisdiction. The party himself could do that as well without the aid of the court as with it. For the same reason, no proceedings in the matter in the form of judicial proceedings, can aid the party, as the court has no right to proceed at all, and whatever is done, is of no avail for any legal purpose.
This doctrine was fully established in Prindle v. Cogswell, 9 Vt. 183, and has been followed ever since. The pro forma judgment of the coupty court overruling the-motion to dismiss, is *728reversed, and the cause dismissed. But as the defendant saw fit not to make his motion to dismiss at the outset, as he should, and proceeded to plead, and followed the case until there was a verdict against him, and as the statute that gives the court power to render a judgment for costs when a case is dismissed for want of jurisdiction, provides that the prevailing party shall be allowed his reasonable costs, we think it reasonable that the defendant should be allowed his costs in this court only.