M’Cay and Haywood, Judges.
This action was commenced in the county court of Northampton, and the defendant pleaded in chief, and a trial was had there, and a less sum than twenty pounds found for the plaintiff; whereupon the court nonsuited him. We cannot direct the jury now to find what was the value of the demand at the time the action commenced in the county court, for we cannot see upon this record that the jurisdiction is questioned, and of course the cause must be tried as other causes are, and the jury must find the value of the demand at this time ; should their verdict be for a less sum than twenty pounds, possibly the court may then see that the court below had no jurisdiction, Salk. 202; the words of 1786, ch. 14, sec. 7, are, “ provided that no suit shall be commenced in the “ first instance, returnable to any court for any sum under r.wen-4t ty pounds.” The court has no jurisdiction, if at the time of the action commenced, it is apparent that the demand independent pf set offs is of a less value. — .Here the demand by the accruing of interest, between the time of commencing the action and the present time, has become of more value, though under the value of twenty pounds when the action was commenced» The defendant should have pleaded that the sum really due to the plaintiff, was under twenty pounds ac the time of the action commenced, and then the jury would have been bound to find the value at the commencement of th'e action, as well as the value at this day, and the judgment of the court would be against or in favor of the plea; according with the verdict, such plea would have admitted the execution of the instrument, and questioned only the quantum; but then the defendant could not have made set offs. 1 Wils. 19, 20. The plaintiff could not know before-hand, whether he would set off or use a cross action ; and it shall not be at the option of the defendant by using or not using the set off to give jurisdiction or not to the court, for at that rate the plaintiff could never recover; when before a court the defendant would reduce the demand by a set off under twenty pounds ; when before a justice of peace the set off would not be used, and the demand would be too large, and so no recovery at all to be had before either jurisdiction ; had the plaintiff taken a writ of error upon the judgment of non-suit hi. the county court, the court now could examine the record to see whther they had given a proper judgment, and would confirm it as this case is circumstanced ; hut having appealed, it is to be taken that the complaint against the decision below, regards some mistake of the jury, ansi then there can only be a new trial by a jury here. The safest way therefore, must be to plead to the jurisdiction, and tie up the enquiry to the value of the demand at the time when the action is commenced ; for if that is nos done, and by the accruing of interest, the sum rises *72to above twenty pounds before the causa is tried*, here the court-is. bound to give judgment accordingly.