Two questions are presented by these exceptions for the consideration of the Court. 1. Whether the County Court had appellate jurisdiction ; or in other words, whether the writ was so drawn as to give the justice of the peace exclusive jurisdiction. The declaration sets forth a judgment of $5,30 damage and 25 cents costs, and concludes “ to the damage of the plaintiff $20,00.” The question has long been agitated in the lower Courts whether the ad damnum or the cause of action declared on should be the criterion in determining the jurisdiction of a justice of the peace ; and the practice is very unsettled, particularly in cases where their adjudication is final; and the decision of our County Courts have not been uniform in sustaining appeals of that character; but in some cases have been governed by the amount of the plaintiff’s demand,and in others by the amount of the ad damnum; and it is of little consequence which shall be adopted, compared with the necessity of having the question put at rest. In the case of Church vs. Van Duzer decided last week’in Franklin county, the plaintiff in an action of book debt, had laid his ad damnum at $10 and the amount which he exhibited before the justice amounted to $10,60; an appeal was taken to the County Court, and a motion to dismiss for want of appellate jurisdiction was overruled, and this Court affirmed the judgment. Again, in the case of Reynolds and Wife vs. Robinson, decided on writ of error in Franklin
The jurisdiction of the justice being sustained, our next enquiry is, whether Ezra Pike could legally render a judgment in favor of this plaintiff; they being related within the 4th degree of affinity. In the1 23d section of the act defining the powers of a justice of the peace, it is declared “ that no justice of the peace shall take cognizance of any cause, where he shall be- within the 1st, 2d, 3d, or 4th, degree of affinity or consanguinity to either of the parties, or shall be directly or indirectly interested in the cause of matter to be determined.” Arid in the ease of Bates vs. Thompson, reported in 2d, Vol. Chip. R. 96, it was determined by the Court, that the entering u-p of a judgment by a justice of the peace, upon the voluntary confession of the debtor, was- takmg cognizance of a cause, within- the meaning of this section; and as the justice was the owner' of the' demand- upon which he- took the confession, the record was adjudged void; and we see no reason for calling.' in question the propriety of that decision; therefore the1 judgment against Pettis upon which the execution in qües--tion- issued, must be pronounced void.
As it respects the execution, it being legal upon the face-of it, would have justified the officer had he levied and collected the amount of Pettis ; and yet the plaintiff cannot. 1‘SCOYer of him in a charge of neglect of duty in not col
Judgment affirmed.