that nothing in it warranted any such finding. It appeared clearly that the Pendleton pasture, which the plaintiff sought to recover against all the defendants, was of a value much in excess of the jurisdictional amount. There was not a word of evidence reflecting upon the plaintiff's good faith in bringing the action, in joining the defendants, or in framing his petition. He doubtless preferred to try his controversy in the Federal courts, and whatever the motive of his preference may have been, he had the right to act upon it. Blair v. Chicago, 201 U. S. 400; Chicago v. Mills, decided February 4, this term, ante, p. 321. Therefore the validity of the order of dismissal must be considered, after an elimination of the finding that the plaintiff's claim was fraudulently made.

The plaintiff's claim, which we now assume to have been made in good faith, was that the defendants, acting together, took and held from him land of the value of $5,000, and at the same time inflicted damages upon him of $2,000. Upon any possible theory of law this claim states the plaintiff's side of a controversy, which is unquestionably within the jurisdiction of the Circuit Court. When it is duly put in issue by the defendants' pleadings the record upon its face discloses a controversy between citizens of different States, in which "the matter in dispute exceeds two thousand dollars in value," and, therefore, one which is within the exact words of the act conferring jurisdiction upon that court. It is legally possible for the plaintiff to recover the full amount of all the land and the full amount of the damages claimed. We know of no case that holds that in such a situation the judge of the Circuit Court is authorized to interpose and try a sufficient part of the controversy between the parties to satisfy himself that the plaintiff ought to recover less than the jurisdictional amount, and to conclude, therefore, that the real controversy between the parties is concerning a subject. of less than the jurisdictional value, and we think that by sound principle he is forbidden to do so. In exercising the authority to dismiss the action conferred by the act of 1875

the judge may proceed upon motion of the parties or upon his own motion, and, if he chooses, without trial by jury. Williams v. Nottawa, 104 U. S. 209; Wetmore v. Rymer, ub. sup. Such an authority obviously is not unlimited, and its limits ought to be ascertained and observed, lest under the guise of determining jurisdiction the merits of the controversy between the parties be summarily decided without the ordinary incidents of a trial, including the right to a jury. For it must not be forgotten that where in good faith one has brought into court a cause of action, which, as stated by him, is clearly within its jurisdiction, he has the right to try its merits in the manner provided by the Constitution and law, and can not be compelled to submit to a trial of another kind. This was clearly stated by Mr. Justice Matthews in Barry v. Edmunds, 116 U. S. at page 565, who said: "In no case is it permissible for the court to substitute itself for the jury, and compel a compliance on the part of the latter with its own view of the facts in evidence, as the standard and measure of that justice, which the jury itself is the appointed constitutional tribunal to award." In applying these general principles for the purpose of ascertaining the limits of the authority to dismiss summarily for lack of jurisdiction the circumstance that in this case a jury was waived by the parties is without significance, because if the judge had authority to adopt this summary method he could dispense with the jury, whether the parties agreed to it or not.

The error into which the judge in the court below has fallen is shown by an analysis of his findings. He did not find that the land which the plaintiff claimed to recover was not of a value in excess of $2,000, but that parts of that land, which each defendant claimed that the plaintiff ought only to recover against him, were each of less than the value of $2,000. As the plaintiff alleged and the defendants denied that the defendants jointly took and held his whole lot of land, the judge, on the conceded value of the plaintiff's land, in order to have arrived at the conclusion that the case should be dismissed,

must have found that the defendants had not jointly taken and held the whole of the plaintiff's land. In doing this we think he exceeded his authority under the statute, and in determining the jurisdiction, in effect, decided the controversy between the parties upon the merits. In deciding that the defendants had not acted jointly, as the plaintiff alleged and the defendants denied, he determined not a jurisdictional fact, but an essential element of the merits of the dispute upon which the parties were at issue.

An assumption which underlay the action of the court below in dismissing the case evidently was that if the defendants, as they asserted in their pleadings, had, each, acting by virtue of a separate and independent title, taken and held a part only of the plaintiff's land, each part being less than the jurisdictional amount, although the whole was of more than the jurisdictional amount, there was no controversy within the jurisdiction of the Circuit Court. The correctness of this assumption of law has been argued before us by the parties. We do not deem it necessary to decide that question. There is certainly respectable authority which tends to show that in such a case the plaintiff, being the owner of a single lot of land, may maintain one action against all the defendants and that the measure of jurisdiction is the value of the plaintiff's land, and not the value of the part held by each defendant. The appropriate rule, however, to be applied to the facts of this case can be better determined in a trial on the merits, where instructions on their varied aspects may be given to the jury, subject to the review provided by law.

Because the Circuit Court erred in dismissing the case for want of jurisdiction, its action must be reversed.

The judgment of the court below is therefore reversed and the cause remanded to that court with directions to take such further proceedings therein as the law requires and in conformity with this opinion.

MR. JUSTICE BREWER dissents.

204 U.S.

Statement of the Case.

CUNNINGHAM v. SPRINGER.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF NEW

MEXICO.

No. 146. Argued January 10, 1907.-Decided February 25, 1907.

The excepting party should make it manifest that an error prejudicial to him has occurred in the trial in order to justify an appellate court in disturbing the verdict.

Where defendants deny liability for services rendered by plaintiff on the ground that the amount was fixed by contract and paid, and the jury after instructions to find only for plaintiff in case there was no contract and the value of services exceeded the amount paid, find a verdict for defendant, all expert testimony as to the value of plaintiff's services based on the assumption that there was no contract, becomes immaterial; and as, in view of the verdict, adverse rulings in regard to its admission were not prejudicial to the plaintiff, even if error, they become immaterial and do not afford grounds for reversal.

Where plaintiff did not object below to instructions of the judge limiting expert evidence, he cannot claim on appeal that it was admissible for a broader purpose.

While § 2992, 3022 of the Statutes of New Mexico provide that all instruc

tions to the jury must be in writing and that the jury may take the instructions with them, this court will not presume in the absence of the record affirmatively disclosing such a fact that the jury did not take with it the written instructions as finally corrected by the court.

A judge is not bound to charge the jury in the exact words proposed to him by counsel, and there is no error if he instructs the jury correctly and in substance covers the relevant rules of law proposed by counsel.

THE plaintiffs brought an action in the District Court in the Territory of New Mexico, in which they sought to recover $75,000 as the reasonable value of the services of the plaintiff Jones, as an attorney at law, rendered to the defendants at their request. For answer the defendants pleaded a general denial and payment. The jury returned a verdict for the defendants. The plaintiffs alleged exceptions to certain rulings of the judge who presided at the trial, which were overruled by the Supreme Court of the Territory, and are here

Argument for Plaintiff in Error.

204 U.S.

upon writ of error to that court. The exceptions are stated in the opinion.

Mr. Neill B. Field, for plaintiff in error:

Where there is a dispute as to the terms of an alleged contract, evidence of the value of the subject-matter of the contract is admissible as tending to show whether such a contract was or was not probably entered into. Barney v. Fuller, 30 N. E. Rep. 1008; Flagg v. Reilly et al., 48 N. Y. Supp. 544; Whitney Co. v. Stevenson, 45 N. Y. Supp. 552; Walker v. Johnson, 46 N. Y. Supp. 864; Allison v. Horning, 22 Ohio St. 146; Swain v. Cheney, 41 N. H. 232; Roberts v. Roberts, 91 Iowa, 231; Paddleford et al. v. Cook, 74 Iowa, 433; Johnson v. Harder et al., 45 Iowa, 677; Kidder v. Smith, 34 Vermont, 291; Bradbury v. Dwight, 44 Massachusetts, 31; Baxter v. Wales, 12 Massachusetts, 365; Leland v. Stone, 10 Massachusetts, 459.

The contract price and the value of property or services may be so variant that the mere disparity will raise a presumption of fraud, and while mere inadequacy of price is not ordinarily sufficient to defeat the enforcement of contracts at law if their existence be clearly established, yet a glaring inadequacy of price affords strong presumptive evidence that the contract if oral was never entered into, and if written was obtained by circumvention and fraud. Hume v. United States, 132 U. S. 414, 415.

Paragraph 13 of the charge of the court was clearly erroneous. The plaintiffs in error sought to recover as upon a quantum meruit the reasonable value of the services of Jones; the defendants in error by their answer allege that they had, prior to the institution of the suit, paid Jones for those services. They did not plead the special five hundred dollar contract, as perhaps in strictness they ought to have done, but they sought to show by evidence in support of their plea of payment, that there was such a contract. Proof of the payment of five hundred dollars, without proof of the special contract relied on, would not maintain the plea of payment. The whole defense