This action is based on account for the board and care of a horse. It was begun before a justice of the peace, where plaintiff had judgment. On appeal to the circuit court defendant obtained judgment against plaintiff for the sum of $5.20 over and above plaintiff’s demand. Defendant obtained this judgment on a counter-claim filed by him in which it was alleged that by the terms of an agreement between plaintiff and defendant, plaintiff was to take good care of said horse, treat him kindly, and not permit him to be driven or used or abused in any manner whatever. That defendant carelessly and negligently cared for the horse and so mistreated him that he was injured and damaged in the sum of fifty dollars. The court found for plaintiff in the sum of $24.80 on his account and for defendant in the sum of thirty dollars leaving a balance due defendant of $5.20, and judgment was entered for him for that amount.
Under the law relating to justices of the peace as it stood prior to the revision of 1879, now section 2850 of that revision, it seems that a justice of the peace had not the jurisdiction to entertain a counter-claim, at least to the extent of going beyond plaintiff’s demand and *468giving judgment for defendant for an amount in excess of plaintiff’s claim. Flesh v. Christopher, 11 Mo. App. 489; Walker v. Lewendovoska, 15 Mo. App. 581; Emery v. Railroad, 77 Mo. 339. But the revision of 1879 contains the following new sections, viz.:
Section 2989. “ When plaintiff dismisses sn.it, defendant may prosecute counter-claim.
“And in all cases where a counter-claim or set-off has been filed and the trial commenced before the plaintiff dismisses or withdraws his action, the defendant shall have the right to proceed with the trial of his claim, and if any sum be found in his favor he shall have judgment therefor with costs.”
Section 3060. "Pleadings may be amended when.
“In all cases of appeal the bill of items of the account sued on, or filed as a counter-claim or set-off, or the statement of plaintiff ’ s cause of action, or the defendant’s counter-claim or set-off, or the other ground of defense filed before the justice, may be amended upon appeal in the appellate court to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted; but no new item Or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment. Such amendment shall be allowed upon such terms as to costs, as the court may deem proper.” '
By these, in connection with section 2850, we are of the opinion that the legislature has intended to permit defendants to avail themselves of counter-claims before a justice of the peace in an amount and in a case where such justice would have jurisdiction were the defendant, as plaintiff, suing on the demand.
It will not be contended that a justice of the peace has not jurisdiction of the subject-matter of defendant’s counter-claim. The question whether he shall be permitted to exercise such jurisdiction, in behalf of a defendant who presents his cause of action as a statutory *469counter-claim, is a question rather of procedure than of conferring original jurisdiction. As to whether it is permitted as a matter of procedure, is not the same as if jurisdiction over the subject-matter was being conferred.
It is to the latter class of cases that the “back.tax” case of State ex rel. Gordon v. Hopkins, 87 Mo. 519, is applicable, where it is held that the jurisdiction cannot be conferred upon justices of the peace by implication, but must be by express enactment. Whether jurisdiction is conferred as to the former class of cases should be ascertained by the ordinary rules of construction. If, then, the legislative intention can be clearly gathered from the legislative expression, it should be applied and enforced. We think it clear, from the sections of the statute above quoted, that the legislature intended to allow a justice of the peace to entertain a counter-claim in behalf of a defendant to the extent of giving such defendant an affirmative judgment for the excess of his claim over plaintiff’s demand. And we so hold.
The judgment-, with the concurrence of Smith, P. J., is affirmed; Qtll, J., not sitting