dissenting. In this case I am bound, in justice to myself and my brethren of the late Court of Appeals, to record my dissent. The very principle involved in this case was decided in the case of Nance vs. Palmer, and this is in effect an overturning of that case, without any necessity whatever; for it is upon a mere question of practice, which, when once settled, it is only necessary to let alone, and it will operate without prejudice.
The decision in Nance vs. Palmer is, it seems to me, right on every just principle and construction of law. The plaintiff brings a case in court, he proves his demand, and it is confessedly within the jurisdiction; the defendant undertakes to establish his defence of payment, and after a regular contest the jury return a verdict for $12,98 in favor of the plaintiff; how can the court refuse judgment in favor of the plaintiff? He has the verdict in his favor; according to the statute law the amount found will entitle him to costs ; and yet because, if his demand, in truth and fact, according to the verdict of the jury, (although he may believe otherwise,) ought not to have been for more than $12,98, the court undertake to say to him, “you might have sued before a magistrate, and therefore now you shall not have the benefit of your verdict!” I know of no law which will justify the court in refusing to give judgment where the case made in the declaration is within the jurisdiction of the court, and is legally and properly set out, and the plaintiff has a verdict for any sum. But much or little, he is entitled to demand judgment and execution for his damages, and also for his costs, if the damages found be sufficient to carry costs.