WILSON VERSUS DANIEL

But the court were clearly of opinion,- that the-verification of the record v as defective; and that they could not, confidently with the judicial adt, difpenfe with a return of the o“ riginal citation, -fubferibed by the Judge himfelf.

. The caufe • Was, then, continued, upon an agreement be-* tween theeounfel, that the Defendant in error might either ara gue it upon the record, in its prefent ftate;.or alledge in diminution of the record, and iliue a certiorari. The latter mode was adopted; and the diminution" alledged was, that •“ there is not certified the judgment of the faid Circuit Court, -rendered on infpedtioh óf the record of a Diftri.dt Court, of the Commonwealth of Virginia, held in the town of Dumfries, awarding to the faid Thomas Daniel his cofts againft-John Nollingfworih, William. Merle and William Miller, on the .difmiffion "of a certain attachment by them againft him fue.d forth, which record of the faid DHindi Court, is ftated in the declaration of the faid Thoma's Daniel) filed in the faid Circuit-Court, and is again ftated in the replication of the faid Thomas Daniel,, ir, the faid Circuit Court, with an averment, that hé was ready to verify the fame, by a tranfeript thereof, certified under the hand,óf a proper officer; to which faid replication,. the.feid William Wilfon, in the, faid Circuit Court, rejoined, that there was no fuchrecórd.” The clerk of the.Circuit Count returned the certiorari, with a certificate indorfed, “ that there « "is not remaining on the rolls and records, the judgment of the * faid Circuit Court, on the infpe£tion of the tranfcript of the a -judgment in it. ,

At common law, indeed, the penalty of the bond-was alone regarded ; and though, in a cafe like the prefent, only on? ihilling damages ihould be given by the Jury, the judgment at common law would be rendered for the whole penalty; fo that the fuffering party would be obliged to refort to a Court of Equity for relief. The Legiflature, however, has deemed it expedient to guard againft the mifchief, and, at the fame time, to prevent a circuity of a ¿lion, by impowering the common law Courts to render judgment, in caufes brought to recover the forfeiture annexed to any articles of agreement, covenant^ bond, or other fpecialty, for fo much as is due, according to equity. From the time of pafling the aft, the Plaintiff can; recover no more under the penalty of the bond, than the damages affeffcd, or adjudged ; and’ if a Court of common law' is thus empowered to regard the matter in difpute, independent of the ftrift-common law forfeiture. of the penalty, this ought to be deemed, to every legal intent, the proper mode of fettling ánql afcer'taining the" value,- or. amount, to which'the words of the' law ft all be applied, in the cafe of a Writ of Error. Theobjeftion, which feemed, principally, to operate againft this doftrine, in the mind of the Court, as well as of the Bar, was its tendency to entitle one party to. a Writ of Error, and -to.exclude the other: but the objeftion-cannot arife-inthis Cafe,as-both parties would be alike eftoppedby the infufficiency of the fum. A new law, however, ..of-a fcope fo extenfive, cannot be expefted to provide for every poflible cafe; and it is. no -reafon why a plain provifion ftoiild rjót'operate, that another •provifipn may be^neceffary to'avoid an' inconvenience, orto eftablift equality between the parties."

I muff, therefore, repeat.my opinion, that although the Plaintiff’s.demand is to be regarded' in the'original aftion ; yet, that the fum aftually rendered by the Judgment, is to'furrjift the-rule for fixing the matter in difpute upon a Writ of Error, And the fum aftually rendered,' being-lefs than 2000 dollars, the Court cannot, I think, exercife a jurifdiftion in the pre-fent caufe.

.Chase, JuJiice.

Qn the firft exception to this record, there is no diverfity of opinion ; -and,!, alfo, agree with the majority of the Court in-the dccifioh upon the fecond exception, . though' for reafons different fromthofe that have been aliigned.

This is a' queftion of jurifdiftion.; and the. law .veils, the jurifdiftion, if the matter in' difpute between the parties exceeds the fum, or value, of 2000 dollars. Whenever the objeftion arifcs on the'amount of the matter in difpute, it is not, in my! opinion, to be fettled here, by what appears on the Writ of Error, but it is to be fettled in the inferior Court,, according to the circumftances appearing there, in each particular , cafe. There is no comftion, uniform, rule that can be applied to the fubjedt. I do not think, that the demand of the Plaintiff ought to be made the foie criterion ; for, then, every Plaintiff might entitle himfelf, in every Cafe, to a Writ of Error, by laying his damages proportionally high and I think that the amount rendered by the judgment would be found, in the far greater number of cafes, to be the true rule. It muft be acknowledged, however, that in a ¿lions of tort, or trefpafs, from the nature of the fu'its, the damages laid in the declaration afford the only pradticable teft of the value of the controverfy.

Enquiring, therefore, what was in difpute in the prefent Cafe,we find, that the aélion was brought on a bond, with a condition for performing two a¿ls, and the non-performance of both a£ts conftitutes the breach afligned. The record is diftorted by great irregularities; but every part of the pleadings, verdí¿l, and judgment, that is not conformable to the common law, I rejedl as not belonging to the cafe; which is neither founded on the ftatute of 8 & 9 TV. 3. c. 10. nor on the a£l of the Affembly of Virginia. Corifidered, therefore, as an a£lion.at common law, the penalty is forfeited on the non-performance pf either of the a£ls, which are the fubje¿l of the condition. The judgment of the Court is rendered for that penalty; and though it is ftated, that the judgment íhall be difeharged, on payment of a fmaller fum; fuch a ftipulation is inconfiftent with the nature of a common law j udgmsnt; it muft be treated as mere furplufage; and in this view of the cafe, I am of opinion that the . Court has ju-rifdi£lion.

•Elsworth, Chief fvflice.

It was not intended to fay, that on every fuch quefiion of iu* rifdidlion, the demand of the' Plaintiff is. alone to be regarded j but that the value of the thing put in demand furniihed the rule. The nature of the cafe muft certainly guide the j udgment of the Courtand whenever the law makes a rule, that rule muft be purfued. Thus, in an adtion of debt on a bond for f roo, the principal 'and intereft are put in demand, and' the Plaintiff can . recover no mo're, though he may lay his damages at f 10,000. The form of the a£tion, therefore, gives in that cafe the. legal rule. But in an a£tion' of trefpafs, or affault and battery, where the.law.prefcribes no limitation as to the amount to he recoyerV ed, and the Plaintiff has a right' co-cftimate his damages at .any. fum, the damage ftated in the declaration is the thing put in; demand; and prefents the only criterion, to which, from the mature of the afldon, we can refort in fettling the queltion of iu-rifdiitipn.

The propolltion then is limply this : Where the law gives no rule, the demand of the Plaintiff mull: fur'nilh one ; but where the law gives the rule, the legal caufe of aftion, and not .the Plaintiff’s demand, muff be regarded.

The objeétions over-ruled, and

Judgment affirmed.*

*

1 D;U1. 358-Cafit temp-Hard. %

*

Bcfides the exceptions above ftated, feveral errors \yere afligned, xvhich had been argued at a former term, in the abfenceof the Chief/af-$ce. Thve Court, after-deciding the queftion O'fjurifdiiStion, ea-lled’on '«the Coutiíh) to proceed in the argument on thole errors ; but E• TUghman obferved, that the Court hod beenfo evideutly.againft him,thathe would riot pre/s the fubjeft further*