Rose v. Thompson, 17 Ala. 628 (Ala.)

CHILTON, J.

The testimony of the witness Taylor was clearly admissible. He proved that the defendant below, when informed of the proposal of the plaintiff to let him have the painting at fifty dollars, to be paid said witness or left at the store of Mr. Perse, replied that he had offered to pay the fifty dollars once, and that he should not do so again, but expressed himself perfectly satisfied with the picture. That the witness did not communicate to the defendant all that Thompson said, when it does not appear that the remaining portion of the message could in any wise affect the legality of the proof, or was even essential in order properly to understand it, cannot in our view justify

a .rejection of it; . .If any part of the proposition, or the reason, why it was submitted, was deemed essential as affecting either the competency or sufficiency of-the.admissions of the defendant .below, he could have brought it out on cross-examination, and upon it have predicated his motion to reject the whole proof. As the same is now presented, the only question involved is whether any portion -of the proof of Taylor is legal, for the rule is, that being objected to as a whole,-if-any- part of it be proper, the court must overrule the objection, since the judge is not required to cast about -to determine and separate the portion which is legal from that which is not. — Donnell v. Jones, 13 Ala. Rep. 505-6, where: the-several decisions of this court, .bearing upon this point,-are cited.

*2. The defendant by his pleadingraised.no objection to the jurisdiction of the justice, either before the justice himself, or before the Circuit Court; but to the statement or declaration, which contains several counts, each for-fifty-dollars, he pleaded the general issue. After the evidence, however, was adduced, and the case had gone to the jury, the counsel .for the defendant below asked several charges of the court, placing the right to recover upon the want of jurisdiction in thejustice, by reason of the demand being for more than fifty dollars. Now it is certainly true that by the constitution and laws of jhis State, thejustice of the peace could not take jurisdiction over.sums-exceeding fifty dollars, but the appellate court, it is said, must look to the amount recovered before -the justice, and not the amount claimed in the court above, as determining the question of jurisdiction.— Cothran et al. v. Weir, 3 Ala. *24. And further, in the case of Bendy et al. v. Wright, ib. 607, it was held that where a.judgment was rendered before a justice for more than fifty dollars, the defendant could not on motion yacate it in the appellate court, but that the correct practice required that he should be put to his plea in- abatement for the want of jurisdiction. If the defendant fails to do this, in the language of the Chief Justice, in the case last cited, “he impliedly admits that he1 has been brought before the proper court.” This is supposed to result from a correct and liberal construction of the act of 1819,- (Clay’s Dig. 815, § 12,) and we are satisfied to adhere to it. A different construction would allow a party to avail himself of matter in abatement in bar of the action, and instead

of giving his adversary a better writ, as he must do in his plea, would deny to him any remedy. — See also Prewitt et al. v. Stewart, 5 Ala. Rep. 112. If the declaration showed the want of jurisdiction in the justice, the defendant might have demurred, (Williams v. Hinton, 1 Ala. 297); but he has pleaded to the merits, without raising by his plea or demurrer any question as to the jurisdiction, and must therefore be confined to a meritorious defence.

This view embraces the points involved in the charge given and the three charges which the court denied, and -shows that the court correctly decided the law. We have not been aided by any argument or brief on the part of the plaintiff in error, but having examined with care the bill of exceptions, discover no other question presented by it.

Judgment affirmed.