and prayed judgment for the latter sum. Reference must be had both to the debt claimed and to the damages alleged, or the prayer for judgment. The damages or prayer for judgment must be regarded, inasmuch as the plaintiff may seek a recovery for less than the sum to which he appears entitled by the allegations in the body of the declaration. Taking in the present case the certificate of the judge below as correct, the amount in controversy-that is, the debt alleged in the original declaration-did not exceed one thousand dollars; the jurisdiction is not therefore acquired by this court from the amendment in the amount of the damages claimed. The writ of error is dismissed. GRAY v. BLANCHARD. Reported in 97 U. S. 564. MR. CHIEF JUSTICE WAITE delivered the opinion of the court: This is a writ of error sued out by the defendant below, when the judgment against him upon money demand was for only $1,118.71. Prima facie this is the measure of our jurisdiction in favor of the present plaintiff in error; but he still thinks we must retain the cause, as the record shows that, having pleaded the general issue, he gave notice of set-off, claiming $10,000. It is true that such notice was given, but it is shown affirmatively by the record that the only dispute upon the trial under the notice was as to a single item, of the amount of $446. In short, the bill of exceptions shows distinctly that the only controversy between the parties was in respect to a claim by the plaintiff below of about $2.000, and by the defendant (plaintiff in error) as to this item of set-off. In his application for the removal of the cause from the state court to the circuit court, the plaintiff in error made this statement, to wit: "The matter in dispute exceeds, exclusive of costs, the sum of $500, and is of the value of $2.000;" and the judge, in his charge to the jury, alluded to the fact that the amount in controversy was not sufficient to entitle the parties to a review in this court. In Lee v. Watson (1 Wall. 337), it was held that "in an action upon a money demand, where the general issue is pleaded, the matter in dispute is the debt claimed; and its amount, as stated in the body of the declaration, and not merely the damages alleged, or the prayer for judgment, at its conclusion, must be considered in determining whether this court can take jurisdiction." To the same effect is Schacker v. Hartford Fire Insurance Co. (93 U. S. 241), where we dismissed a case in which it appeared that the action was upon a policy of insurance for $1,400, because, although damages to our jurisdictional amount were claimed, it was apparent from the whole record that there could not be a recovery for more than the amount of the policy, and a small sum in addition for interest. The principles upon which those cases rest are decisive of this. While in the absence of any thing to the contrary the prayer for judgment by the plaintiff, in his declaration or complaint, upon a demand for money only, or by the defendant in his counterclaim or set-off, will be taken as indicating the amount in dispute, yet if the actual amount in dispute does otherwise appear in the record, reference may be had to that for the purpose of determining our jurisdiction. Ordinarily this will be found in the pleadings, but we need not necessarily confine ourselves to them. We hear the case upon the record which is sent up, and if, taking the whole record together, it appears that we have no jurisdiction, the case must be dismissed. Here it is affirmatively shown that the value of the "matter in dispute" is less than our jurisdictional amcant. The motion to dismiss will therefore be granted, and it is so ordered. LEWIS MERCANTILE CO v. KLEPNER. Reported in 176 Fed. 343, 100 C. C. A. 285. IN error to the circuit court of the United States for the southern district of New York. Action by Annie Klepner against the O. J. Lewis Mercantile Company. Judgment for plaintiff, and defendant brings error. Affirmed. On writ of error to the circuit court of the United States for the southern district of New York to review a judgment entered on the verdict of a jury in favor of the plaintiff for $1,649.05. The interest and costs, amounting to $881.98. made the total amount of the judgment $2,531.03, which was entered November 11, 1908. Upon a former trial a verdict was directed in favor of the defendant, this judgment was reversed and a new trial ordered by this court, the opinion being reported in 159 Fed. 94, 86 C. C. A. 284. * # COXE, Circuit Judge: *** The contention that the court has no jurisdiction because the amount involved is less than $2,000 proceeds, we think, upon a mistaken interpretation of the Judiciary Act (Act March 3, 1875, c. 137, 18 Stat. 470) as amended in 1887-88 (Act March 3, 1887, c. 373, 24 Stat. 552; Act August 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508]). Section 1 provides that the circuit courts shall have original cognizance of certain designated suits at common law "in which the matter in dispute exceeds, exclusive of interest and costs, the sum of two thousand dollars." "The amount in dispute"-says the defendant's brief-"was legally determined at the trial, at less than $1,868.25 exclusive of interest and costs.' If the amount of the recovery were to settle the question it would never be possible, in an action where the damages are in the discretion of the jury, to ascertain whether the court has jurisdiction until the jury has reported. The question isdid the court have jurisdiction in limine, had the plaintiff a cause of action upon which he might recover more than $2,000? This question must be answered by an examination of the pleadings. The fact that the verdict was for less than $2,000, that plaintiff, after she discovered that the goods were being sold at ruinous prices, was willing to take less than that sum in settlement, and the fact that the theory of the recovery was changed at the trial to conform to the proof and thus was limited to a sum less than the jurisdictional amount, are not, in our opinion, germane to the question. It would produce a grotesque and an intolerable condition if the law were interpreted so as to permit the jurisdiction to depend upon the decision of the court or jury upon disputed questions of fact. In her amended complaint the plaintiff "demands judgment against the defendant for the sum of $2,550 with interest." Of course it is not pretended, if on the face of the complaint it clearly appears that the plaintiff can not recover more than $2,000, that the mere demand in excess of that sum will give the court jurisdiction. If, on the other hand, the demand is made in good faith and is justified by a fair and reasonable interpretation of the facts it is the true criterion. The rule is well stated in Peeler v. Lathrop, 48 Fed. 780, 1 C. C. A. 93, as follows: "It is not the amount a plaintiff is able to prove he is entitled to that determines the amount in dispute for the purpose of jurisdiction, for otherwise the failure of a plaintiff to recover would oust the court of jurisdiction. The amount in dispute or matter in controversy, which determines the jurisdiction of the circuit courts in suits for the recovery of money only, is the amount demanded by the plaintiff in good faith." In Washington County v. Williams, 111 Fed. 801, 811, 49 C. C. A. 621, 631, it is said: "The amount claimed in the declaration or complaint, not the amount of recovery, is the test of jurisdiction, and the fact that a sum in excess of $2,000 exclusive of interest and costs, was claimed, gave the trial court jurisdiction to render a judgment for a less amount unless this court is able to find that a demand for a sum in excess of $2,000 was interposed in bad faith, for no other purpose than to give the federal court jurisdiction." The theory of the complaint was that when the defendant violated its obligations under the contract, the plaintiff was entitled to recover, not the invoice value or cost price of the goods, but the actual value, as measured by the highest market value at the time of the breach, which was alleged to be $3,000. There is nothing to indicate bad faith in this demand, indeed, from the plaintiff's point of view it was the reasonable demand to make and was justified by the facts. The trial court, against the plaintiff's objection and exception, limited the recovery to the prices stated in the invoice, but we can not say that this ruling establishes the bad faith of the plaintiff in demanding the full value of the property of which she had been deprived by alleged unlawful conduct of the defendant. Again, the defendant interposed a counterclaim and, having invoked the jurisdiction of the court for its own benefit, is now estopped from denying it. Merchant's Co. v. Clow, 204 U. S. 286, 27 Sup. Ct. 285, 51 L. Ed. 488. We have examined the other exceptions argued and are of the opinion that none of them is well taken. The cause was fairly submitted to the jury and no prejudicial error was committed. The judgment is affirmed with costs. WILSON v. DANIEL. Reported in 3 Dallas, 401.. IREDELL, Justice: I differ from the opinion which is entertained by a majority of the court, on the second exception; though, if the merits of the cause had been involved, I should have declined expressing my sentiments. As, however, the question is a general question of construction, and is of great importance, I think it a duty, briefly, to assign the reasons of my dissent. The true motive for introducing the provision, which is under consideration, into the Judicial Act, is evident. When the legislature allowed a writ of error to the supreme court, it was considered that the court was held permanently at the seat of the national government, remote from many parts of the Union; and that it would be inconvenient and oppressive to bring suitors hither for objects of small importance. Hence, it was provided, that unless the matter in dispute exceeded the sum or value of $2,000, a writ of error should not be issued. But the matter in dispute here meant, is the matter in dispute on the writ of error. In the original suit, indeed, I agree, that the demand of the party furnishes the rule of valuation; but the writ of error is of the nature of a new suit; and whatever may have been formerly the question on the merits, if we think the plaintiff is not entitled to recover more than $1,800, the court has not jurisdiction of a cause of such value, and can not, of course, pronounce a judgment in it. At common law, indeed, the penalty of the bond was alone regarded; and though, in a case like the present, only one shilling damages should be given by the jury, the judgment at common law would be rendered for the whole penalty; so that the suffering party would be obliged to resort to a court of equity for relief. The legislature, however, has deemed it expedient to guard against the mischief, and at the same time, to prevent |