the damages laid, in the declaration, and not the amount assessed by the jury, as evidencing jurisdiction. Indeed the mere discretion of the party, or the finding of a jury, upon a question of damages, ought not, and cannot affect the jurisdiction of the court. The same principle has been decided by the English courts. 3 Burr. 1592. 2 Will. 48. But if doubts could be entertained, whether this case is excluded from the jurisdiction of justices of the peace, the 67th section of the judiciary act, would seem completely to remove them. The statute declares, "that in all actions for libel, slander, malicious prosecution, assault and battery, action on the case for a nuisance, &c. if the jury, upon the trial of the issue, or on enquiry of damages, shall find, or assess the damages under five dollars, the plaintiff shall not reco. ver any costs." It is true, this act is prior in date to that regulating the duties of justices of the peace, but both were passed the same session. The same class of cases has long been excluded from the jurisdiction of justices of the peace, and, while they are excluded, a separate law was passed, the same in substance as the provisions in the 67th section of the judiciary act. Upon a fair comparison of these acts, and a correct construction of their provisions, no doubt can be entertained, that the Legislature considered the action on the case for nuisance, not within the jurisdiction of justices of the peace. Upon a dif ferent construction of these statutes, on an appeal by either of the parties, the plaintiff could not recover costs, unless the jury assessed the damages to five dollars or upwards. It would be difficult to discover a plausible reason for making the action on the case, for nuisance, an exception to all others in this respect. This would be the only exception to the general law, that where the matter in controversy is within the jurisdiction of a justice, the costs, whatever the amount assessed, should follow the damages. If the actions of ejectment, slander, &c. ought not to be tried by a justice of the peace, by reason of their greater importance to the community, and to the parties, or the greater difficulty of comprehending and applying the rules which govern them, it seems quite proper that actions on the case, for nuisance, which frequently present very complex questions of vast importance to estates, depending, for their decision, upon nice discrimination, and accurate knowledge of law, should also, in the first instance, be brought before the courts of record, where the judges are selected from the profession, and are supposed to have a more perfect knowledge of the legal rights of the parties. But it seems unnecessary to resort to the reason for the particular exclusion, where the legislature has put a construction upon the justices' act, which shews a manifest intention to exclude the action under consideration, from their jurisdiction.

2. The question presenting more difficulty, is, whether the defendant, by suf fering continuances, pleadings in bar, &c. has not precluded himself from ma. king objections to the jurisdiction of the court. It appears to be a general rule the objections to the jurisdiction come too late, after a plea in bar, and that the want of it, must be taken advantage of by plea. 2 Ven. 484. Cok. Litt. 127. 6 Cow. 161. 3 John. R. 105. To this general rule there are exceptions. Where the court has no jurisdiction, at common law, or it has been taken away by an act of the legislature, such want of jurisdiction may be pleaded in bar, or be given in evidence, under the general issue, and is not properly the subject of a plea in abatement. 1 Chitty, 428. 1 East. 352. 6 East. 583. In the case of

Parker v. Elding, (1 East. 352,) the plaintiff brought his action for depasturing cattle, &c. and proved himself entitled to recover a sum under forty shillings. The defence set up was, that the debt was contracted in the Isle of Ely, and the statute of 18 Geo. 3, c 36, which declares, "that no action or suit för any debt not amounting to forty shillings, and recoverable, by virtue of this act, in said court of request, shall be brought against any person residing, or inhabiting, within the jurisdiction thereof, in any of the king's courts of Westminster, &c. or elsewhere, out of the said court of requests." The Court held they were bound to take notice of this law. How then, say the Court, can we say that the plaintiff shall recover against the positive direction of the act? The decis ion was against the exercise of jurisdiction. The case under consideration, upon the face of the papers, was in the common pleas, and must have been tried by that court, by virtue of its appellate, and not of its original jurisdiction. It is the essential criterion of appellate jurisdiction, that it revives and corrects the proceedings, in the cause already instituted, and does not create that cause. 1 Cran. 175.

The courts of justices of the peace, if not all others in this state, are of limited jurisdiction. If not inferior, in the technical sense, so that transcripts of their proceedings must show jurisdiction, they are limited, and when it appears that the powers given by law have been transcended, the appellate court is authorized to treat the proceedings as a perfect nullity. The appellate jurisdiction of the common pleas is based upon the jurisdiction of the justice whose transcript is brought up. If it appears from that, the justice had no jurisdiction, the superior court is left to create the cause, or dismiss it. A safe and convenient general rule for this Court to adopt, would perhaps be, that, when upon the face of the papers it appears that the appellate, and not the original powers of the common pleas are sought by the parties, and that the subject matter was not within the jurisdiction of the justice, to dismiss the proceedings, upon motion, in any state of the cause; but when the papers do not sufficiently disclose these facts, and the defendant pleads in bar, to consider the process as waived, or the jurisdiction admitted. This will preserve the distinction between the original and appellate jurisdiction of the Court, and prevent the confusion and difficulties which might arise, either from the illegal exercise of powers by justices of the peace, or by having the independent judgment of two courts for the same cause of action. The latter would have been the case in this instance, if the Common Pleas had considered the proceedings of the justice a nullity, for want of jurisdiction, and had treated the cause as originating in the higher court. We are of opinion that an appellate court, as such, has no jurisdiction of the subject matter where the Court in which the cause originated had none. Therefore, when the parties themselves show the fact, it is the duty of the ap pellate Court, in any stage of the proceedings, to dismiss the cause, and leave the costs to be recovered by those interested in them.

The judgment of the Court below is affirmed, as to the dismissal of the cause, and reversed as to the judgment for costs. See Kennedy, v. Terrell, Hard.

490.

BUTLER v. COWLES.

Assumpsit, for use and occupation, after a recovery, in ejectinent, will not lie, to recover rents and proûts, accruing after the date of the demise in the declaration.

This cause was reserved in the county of Delaware, on a written statement, as follows: "In case, &c. for use and occupation. It is agreed in this case, that Moses Bixbe, in his lifetime, took possession of the premises in the declaration mentioned, claiming title to the same. That he used and occupied them a a short time himself, and afterward by his tenants, who paid him the rent in mon. ey, &c. The plaintiff also, during the occupancy by Bixbe, claimed title to the same premises, and, from time to time gave notice to Bixbe that the premises were his. It is admitted, that the legal title to the said premises was in the plaintiff, and still is in him, and that he took possession under a habere facias, having recovered in an action of ejectment. If the plaintiff is entitled to recover under this statement of facts, then a jury shall assess the damages; if not, there shall be a judgment of non-suit, &c."

It seems well settled that a plaintiff, after a recovery in ejectment, cannot, in assumpsit, for use and occupation, recover rents and profits, accruing after the date of the demise in the declaration. 1 Ter, R. 378. 3 Ohio Rep. 264. Woodfall's Ter. L. 432. Bixbe entered claiming title, and not as tenant. This action, by statute 11 Geo. 2 c. 19, s. 14, lies upon an implied agreement to pay To create the relation of landlord and tenant, an agreement, either express or implied, must exist. Presumptive evidence will do, such as that the defendant holds over after the expiration of his lease by parol. Osgood, v. Dewey, 13 John. Rep. 240. 3 Stark. E. 1516. 13 John. R. 297.

rent.

But the facts must shew, expressly, or impliedly, that the defendant occupies as tenant of the plaintiff. In the case of Smith, v. Stewart, (6 John. R. 46) the defendant took possession of lands, as a purchaser, from the plaintiff, and by his consent, but afterwards refused to pay, and abandoned the contract.— The court say, as the defendant did not enter under the relatio of tenant, but under a contract for a deed, the plaintiff could not recover in this form of action. The same principle was decided in the case of Bancroft, v. Wardell, 13 John. R. 489. 1 Esp. N. P. 20. Woolfall's Term Law, 432. 3 Serg. & Rawl. 500. 17 Mass. R. 299. 2 Green. 337. 1 Mun. 407. 3 Dall. 503. These authorities establish the principle, that when a person occupies the land of another, not as a tenant, but adversely, or, where the circumstances under which he enters, shew that he does not recognize the owner as his landlord, this action will not lie. The remedy is trespass for mesne profits, after a recovery in ejectment. It has been determined, that a defendant cannot, in this action, dispute the title of the plaintiff, and that nil habuit tenementis, is a bad plea. Lewis, v. Willis, 1 Wil. 314. Cook, et al. v. Loxley. 5 Term. R. 4. 2 Wils. 208. In the

principal case, the facts admit that Bixbe entered claiming title. This surely, rebuts the implication of the relation of landlord and tenant.

There is no express contract to pay rent; consequently the plaintiffs cannot recover on the facts before the court.

Judgment of nonsuit.

ABRAMS v. KOUNTS, ET AL.

Where a bond recites, that the obligors "are held and firmly bound in the penalty of 1000 dollars for the performance of a marriage contract, which H. K. engages to perform with M. A." the 1000 dollars, is to be deemed a penalty and not liquidated damages.

Upon such a bond covenant will not lie.

This case was adjourned here for decision from the county of Columbiana. It was an action of covenant founded upon a sealed writing, in the following words:

"Know all men by these presents, that we, Hiram Kounts and John Quinn, of the county of Columbiana, and state of Ohio, are held, and firmly bound, in the penalty of one thousand dollars, for the true performance of a marriage contract, which the said Hiram Kounts engages to perform with Maria Abrams of Brooke county, Virginia, against the 8th day of February next. The conditions of the above obligation are such, that if the above bound Hiram Kounts, docs well and truly perform the above obligation, this obligation to be void, otherwise, &c." Dated January 22, 1827.

The declaration contained six counts. In all, the capacity of the Plaintiff, as a feme sole, to make a contract of marriage is averred. In some, a promise on the part of the plaintiff to marry the defendant Kounts, is averred, in one this is omitted: in one a mutual promise is set out, and in the second count it is averred, in addition, that the defendant Kounts, by promise of marriage, had seduced the plaintiff, in consequence whereof, at the time of making the contract, she was pregnant. As no exception was taken to the form of the declar

ation, it seems unnecessary to describe it more minutely.

To all the counts but the second, the defendant demurred generally, and the plaintiff joined in demurrer. To the second count, the defendants pleaded, three separate pleas, alleging that Kounts was imprisoned by the plaintiff, and by duress, was induced to make and execute the bond. Upon these replications the plaintiff joined issue. This cause was adjourned here for decision upon the demurrers.

Loomis and Metcalfe, in support of the demurrers. Goodenow, contra.
By the COURT.

We are of opinion that the penalty of the bond, in this case, cannot be regarded as liquidated damages, and that the instrument is not one upon which covenant can be maintained. The demurrers are therefore sustained.

WATERS, ET AL. v. LEMMON.

Upon a writ of error, to a decree in chancery, nothing is examinable, but the bill, answer, and exhibits made part of them, the decree itself and such matter as may be made part of the case, by a bill of exceptions; the court do not rehear the cause upon its merits.

A decree, rescinding a contract of purchase, and directing the purchase money to be refunded, and leaving the vendee in unconditional possession of the premises, is erroneous.

This was a writ of error brought to reverse a decree in chancery, pronounced against the plaintiffs in error, by the Court of Common Pleas, of the county of Brown, in a suit wherein the plaintiffs in error were respondents, and the defendant in error, complainant. It was adjourned here for decision from Brown county.

The material facts of the case were as follow: On the 15th of January, 1816, the Waters' executed a penal bond to Lemmon, in the sum of three thousand dollars, conditioned that they should get a good and sufficient collector's deed, for twenty acres of land, described in the bond, and specifying that the title was derived from a sale of taxes; or, that they should make, or cause to be made, a quit-claim deed for the same. No time was fixed for procuring and making these deeds:

On the 18th day of January, 1816, Wm. Waters entered into another contract in writing, with Lemmon, specifying, that in consideration of the sum of two thousand dollars, paid one part in goods, and the residue in three annual payments from the date, W. Waters sold to Lemmon, forty acres of land, adjoining the twenty, and bound himself; when the last payment, became due, to make Lemmon a general warranty deed, and to warrant and defend the same to said Lemmon. This article also contained a reference to certain personal property sold by Waters to Lemmon. Lemmon entered into possession, which he still retained.

The bill charged that the purchase was made with reference to a mill seat, which was on the twenty acres: that the whole purchase was made from Wm. Waters, and the two thousand dollars specified in the article as the purchase money of the forty acres, was the purchase money of the whole. It further states, that Lemmon entered into possession, and erected on the twenty acres a grist mill, house, and stable, which cost him upwards of seven thousand dollars: that no deed was procured for the twenty acres, and that after the improvements were made, he was informed that the title was worth nothing, and that W. Waters made a fraudulent representation as to the character of the sale for taxes, well knowing that the title was defective. The bill further stated, that the lands sold for taxes had been redeemed by the heirs. It further stated, that of the purchase money of two thousand dollars, about fourteen hundred dollars had been paid to said Waters, and that Waters had obtained a judgment, and levied an execution on Lemmon's property for the balance. An amended bill charges, that at the time of the purchase, W. Waters produced a Collector's deed which was defective upon account of certain blanks, which