
    Lewis v. Long.
    Saturday, March 14th, 1812.
    1. Court of Appeals Juris diction ;il Amount.~In an action of debt, in a County Court, on a single bill for more than one hundred dollars, if the jury find for the plaintiff, the debt in the declaration mentioned, to be discharged by less than one hundred dollars; and, upon a writ of superse-deas, at the instance of the defendant, the judgment be reversed; the plaintiff cannot appeal to the Court of Appeals from such judgment of reversal.
    2. Bonds — Assignment—Evidence—Confession of Assignor. — Quaere, whether proof of any confession by the assignor of a bond, after the assignment that the money had been paid to him before the assignment, can be given in evidence against the assignee?
    This was an action of debt, in the County Court of Harrison, by Asher Lewis, as-signee of Daniel Richmond, against David Long. The declaration was on a “writing obligatory,” under seal, for two hundred and fifty dollars, “to be paid in trade such as is to be had, deer skins, furs, flax, snake root, beef, pork, bacon, &c. for value received.” The defendant, without praying oyer of the writing obligatory, pleaded “payment;” and, secondly, that he paid the debt in the declaration mentioned, to the obligee, before notice of the assignment. At the trial, the defendant offered evidence to the jury, that in the spring of the same year, (after the action was ^brought,) Richmond, the obligee and assignor of the note, confessed to the witnesses, that the defendant paid him the iull amount of the debt in the note mentioned, before the assignment thereof; also an account stated, between the said Richmond and the defendant, with a certificate thereto annexed, under the hand and seal of the said Richmond, (dated since the institution of this suit,) acknowledging that account to be just and right, “and that David Long was to have credit, on his notes, for the same, to wit, the note that Asher Lewis holds against him, and another which I now give up;” and proof that the same was signed by the said Daniel Richmond. To all which evidence, the plaintiff objected, and the Court declared the same inadmissible; whereupon the defendant filed a bill of exceptions. A verdict was found in the following words: “We, the Jury, find for the plaintiff, the debt in the declaration mentioned, to be discharged by the payment of forty-six dollars and fifty-nine cents, debt, with interest thereon from the sixth day of March, in the year 1804;” and judgment was entered accordingly; but a writ of supersedeas was awarded, on the defendant’s motion, by order of the District Court holden at Morgan town; and the judgment was reversed, on the ground that the evidence offered had been improperly rejected. The cause was therefore remanded to the County Court, to be further proceeded in, with instructions to receive the evidence aforesaid. From this judgment of reversal, the plaintiff appealed to this Court.
    Wickham, for the appellant.
    The declarations of Richmond, the assignor, made while the suit was pending, and after the obligor had full notice of the assignment, could not be evidence against the assignee. Had he been brought forward as a witness, he should have been rejected, as attempting to prove his own turpitude; for, if he assigned a negotiable paper, when he knew it had been páid, he was guilty oj a fraud. The authorities *on this point are reviewed in Baring v. Reeder, 1 H. & M. 154.
    Williams, .contra,
    submitted the question, whether this Court had jurisdiction; the verdict being for less than one hundred dollars, and the suit upon a single bill.
    If the suit had been in the name of Richmond, his acknowledgment would have been evidence. He stands indifferent between the present parties; being equally responsible to both. In Walthall v. Johnston, 2 Call, 275, declarations by the mortgagee, under whom the defendant claimed, that the mortgage was paid off, were admitted as evidence on the part of the plaintiff. I consider that case decisive of this.
    Wickham, in reply.
    The declaration is the rule of jurisdiction. In that, the debt is stated as 250 dollars, which, therefore, is, properly, the sum in controversy. The bond is no part of the record; oyer not having been prayed.
    On the merits; Richmond’s confession was offered, either as an act, or as evidence. If as an act, it was not obligatory on the assignee; since he, as assignor, had parted with his interest in the bond. If as evidence, he ought to have been personally in Court.
    The case of Walthall v. Johnston, is no authority in this case. It is not completely reported; the manner in which the objection was taken to the testimony not being stated. The authorities cited in Baring v. Reeder, show, that, under some circumstances, the endorser of a negotiable paper may be received to prove it was paid; but not under circumstances proving his own turpitude.
    Williams. Mr. Call’s Report of Wal-thall v. Johnston, is verbatim from the Record.
    
    *Tuesday, March 24th, a further argument took place, by desire of the Court, on the single question of jurisdiction.
    Williams then contended, that the verdict in this case was erroneous in point of form but the judgment should, in substance, be considered as only for the balance found by the jury to be due. The writing obligatory described in the declaration is evidently a single bill. The jury, therefore, ought not to have found the sum originally due, but the balance only; the form adopted by them being proper, only, where there is a penalty.  In Smith v. Harmanson, 1 Wash. 6, even though the action was on a bond, the jury found, “that the defendant doth owe to the plaintiff, 11471. 18s. 4d., parcel of the debt in the bill aforesaid mentioned;” and this Court affirmed the judgment. That decision turned, indeed, upon the principle, that the defendant being the appellant, could not take advantage of the failure to give continuing interest till payment; which error tended to his benefit: but the form of the verdict appears to have been approved by this Court; except as to the omission in relation to the interest. I consider that case to have settled the point concerning the form of the verdict.
    The old doctrine that, in debt, the plaintiff must recover the exact sum laid in the declaration, has long been exploded.
    
    But, however this may be, the jurisdiction of the Court of Appeals is limited by the actual “matter in controversy;” not the penalty. A similar expression, in the act establishing the Federal Courts,  has been construed by the Supreme Court of the United States, in the manner I contend for, 
    
    *Wickham,
    in support of the appeal. A writing “obligatory,” must be understood, a bond with a penalty. But, admit it to be a single bill: the plaintiff must always declare for the sum originally due; and the judgment must conform to the ■declaration. It was therefore properly entered for 250 dollars to be discharged by the ¡balance found by the jury. But the verdict does not fix the “matter in controversy.” If they found too little, the plaintiff might recover more on the new trial. The moment the Appellate Court reversed the judgment, the whole subject was again in controversy; both parties being left at large. Another jury might find the original sum to be still due; or that the whole was paid.
    I am confident, the penalty of the bond, and not the balance due, has always been the measure of jurisdiction in this Court. The case of Smith v. Harmanson has no application; the point now in debate not having been touched.
    Williams, in reply.-
    Mr. Wickham’s complaint is against the Superior Court of Law, for setting aside the verdict, and awarding a new trial. The matter in controversy, in that Court, was the amount of the verdict only. If the judgment had been affirmed, I hold it clear, the defendant could not have appealed to this Court. It follows, that when it was reversed, the plaintiff could not.
    
      
      Appellate Practice — Jurisdictional Amount. — Although the action is for more than the amount required to give the appellate court jurisdiction, if the verdict is for less than that amount, the appellate court will not take jurisdiction upon the appeal of the defendant. Duffy v. Mggat, 80 Va. 680, citing principal case; Gage v. Crockett, 2? Gratt. 735; Har-man v. City of Lynchburg. 33 Gratt. 37; Barton’s Oh. Prac. 1110; Batchelder v. Richardson, 75 Va,. 835; Campbell v. Smith, 82 Gratt. 288; Buckner v. Metz, 77 Va. 107; Cmbarger v. watts. 25 Gratt. 177. To the same effect the principal case is cited in Hawkins v. Gresham, 85 Va. 85, 6 S. E. Rep. 472; Hartsook v. Crawford, 85 Va. 416, 7 S. E. Rep. 538; Rymer v. Hawkins, 18 W. Va. 316. The principal case is also cited in Greathouse v. Sapp, 26 W. Va. 88; Hutchinson v. Kellam, 3 Munf. 216: Joot-note to Harman v. City of Lynchburg, 32 Gratt. 37.
      See further, monographic note on "Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
      Same Jurisdiction- Matter in Controversy-Meaning of the Phrase. — The matter in controversy is that which is the essence and substance of the judgment, and by which a party may discharge himself. This construction of the phrase, “matter in controversy.” as used in the statute relating to the appellate jurisdiction of the court of appeals has been approved in Clark v. Brown, 8 Gratt. 551, 552; Buckner v. Metz, 77Va. 125; Hmbargerv. Watts, 25Gratt. 177; Thompson v. Adams, 82 Va. 677; Rymer v. Hawkins, 18 W. Va. 318; Skipwith v. Young, 5 Munf. 286.
      See further, foot-note to Harman v. City of Lynch-burg, 33 Gratt. 37; monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
    
      
      Bonds — Assignment-Evidence—Confessions of Assignor. — In Dade v. Madison, 5 Leigh 405, it is said: “In Lewis v. Youna, 3 Munf. 136, one judge was of opinion, that the confessions or declarations of the assignor after the assignment made, were not evidence; and this seems consistent with the rule which admits the confessions of a party, made when he is interested, to be evidence, but does not admit his confessions made after he has parted with his interest. Burton v. Scott, 3 Rand. 399, 408; Pocock v. Billing', 2 Bing. 269, 9 Eng. C. L. R. 409. Indeed, even this rule seems to confine the admissibility of the confession, to the case of the party being dead at the time of trial, or to the case of a party identified in interest.”
      See further, monographic note on Bonds” appended toward v. Churn, 18 Gratt. 801; mono-graphic note on “Assignments” appended to Rags-dale v. Hagy, 9 Gratt. 409. , ^ _ ,
      , ^ _ , Bonds — Payable in Money or Equivalent — Declaration. —"In Minnick v. Williams, 77 Va. 76X, it is said, “When the obligation is to pay money with a mere privilege to the obligor to pay in some other article on or before a certain day, it is unnecessary to take any notice of such privilege in the declaration if the day passes without payment of the money or the delivery of the other equivalent article. Lewis u. Lona, 3 Munf. 136; Butcher v. Carlile, 12 Gratt. 620. ” The principal case is also cited in Dungan v. Hen-derlite, 21 Gratt. 151,152. , _ .
      , _ . Appellate Practice — Dismissal of Appeal — Costs.—In Ayres v. Lewellin, 3 Leigh 616. Judge Tucker, in his dissenting opinion, cites the principal case as one in which an appeal was dismissed, but no costs allowed. See further, monographic note on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.
    
    
      
      Note. The Record of the case of walthall v. Johnston, is exactly conformable to Mr. Call's Report. — Note in Original Edition.
    
    
      
       Rev. Code, vol. 1, p. Ill, c. 76, sect. 21.
    
    
      
       2 Selwyn’s N. P. 470, 2 W. Bl. Rep. 1221, Aylett v. Lowe; lDoug.6 (3d ed.), walker v. Witter; 1 H. Bl. 249, M’Quillin v. Cox.
    
    
      
       I,. IT. S. vol. 1, p. 62.
    
    
      
       United States v. M’Dowell, 4 Cranch, 316.
    
    
      
      Note. See the case of Minor v. Goodall, 3 Call, 393, in which it was a ecided, that although a decree in Chancery he for less than one hundred dollars: yet, if the matters in dispute exceed that sum, the Court of Appeals has jurisdiction. — Note in Original "Edition.
    
    
      
      Note. Jtjdgu CtoAiiTBTt observed, that in that case, a special breach of the condition of the bond was laid in the declaration; whereby the sum “in dispute," was limited to 328 dollars; being less than the lowest sum for which the Supreme Court can entertain jurisdiction. — Note in Original ¡Edition.
    
   Tuesday, March 31st, the Judges delivered their opinions, seriatim.

JUDGE COALTER.

The first question is, as to the jurisdiction of this Court.

The action is on a single bill for 250 dollars. There are two pleas; 1st. Payment generally, and 2d. Payment ^before notice of assignment: and the jury find for the plaintiff, the debt in the declaration mentioned, to be discharged by the payment of 46 dollars and 59 cents, with interest thereon from the 6th of March, 1804, till payment; and judgment was entered accordingly.

The judgment, therefore, in this case is, de facto, for 250 dollars; and the main question then, is divided into two: 1st. Whether the judgment ought to have been in the form in which it is; and, 2d. Whether, if it ought, the Court ought not to look to the substantial, not to the formal recovery, in ascertaining their jurisdiction.

As to the first, it may suffice to observe, that although the late decisions in England are, that in actions of debt on simple contract, judgment may be entered for the sum proved to be due; as, in detinue, for the goods proved to be detained; yet, I apprehend, no case can be found, where the debt arises by specialty, in which the judgment is not entered for the entire sum.

In cases of simple contract, the defendant may plead nil debet; but before the statute giving the plea of payment, where such payment was made after the day mentioned in the condition, the bond was considered as discharged of its condition, and the defendant could not, either on a bond or single bill, plead payment, without, at the same time, pleading an acquittance; and that he must have pleaded with aprofert; it being under seal; agreeably to the common law maxim, that a contract must be dissolved by an instrument of equal dignity with that which created it. If there is a condition, or defeasance, by which the party may discharge himself by the payment of a less sum within a given time, he might avail himself of this condition by craving oyer thereof, and pleading that he had performed it; in other words, he might plead solvit ad diem. In consequence of this strictness of the common law, the parties were compelled, where payment had not been made according to the condition, by reason of which, the bond became, as it were, single, and the plaintiff had a right to judgment *for the penalty, to resort to the Courts of equity to be relieved from the penalty: to avoid this inconvenience, therefore, the statute in this country (similar to which, is the statute of 4 and 5 Ann, c. 16, in England) provides, that where judgment shall be entered on a bond, conditioned for the payment of money, the judgment shall be entered for the penalty, to be discharged by the payment of the principal sum due, with interest thereon, and costs; in other words, giving the Common Law Courts a right to relieve against the penalty. I don’t understand this act as giving the right to enter judgment for the penalty; (that would have been the entry before the act;) but as permitting the entry to go further; that is, to have a condition annexed to it that it may be discharged by payment of the principal sum due, &c. ; and this clause of the act provides for those cases where no payment had been made, either before or after the day. This, however, was not the only inconvenience arising from the strictness of the Common Law, in this respect; a person indebted by bond may have made payments after the day specified in the condition of such bond, to the full amount of the principal sum, with all interest due; yet, such payments being made after the day, and no acquittance being obtained, payment ad diem could not be pleaded; or he may have paid off a single bill without procuring an acquittance; in such cases he was bound by the rules of the Common Law, to plead payment with an acquittance, as before stated; which not being obtained, the parties were again forced into the Courts of equity: to remedy which, the statute further provided, that in case of a bond, &c. conditioned for the payment of money, the defendant might avail himself of the performance of the condition after the day limited therein for the payment; in other words, that he might plead payment post diem; and I have-no doubt but that the legislature intended to extend the right of pleading payment without acquittance to cases of single bills, according to the clear provisions of the statute of Ann, although *they are not so explicit as that statute is, or as could be wished. It is sufficient, however, in this case, that the statute, concerning assignments, gives a clear right to the defendant, to set up all payments made to the original obligee before notice of assignment.

The plea, according to these provisions, was, that the party, after the day, had paid the principal and all interest due, &c.: (a payment of part could not be pleaded:) and if he made good his plea, he succeeded; if not, the plaintiff still recovered the entire sum, but to be discharged by the sum found; the plea being falsified. But in consequence of some difficulty, or doubt, as I apprehend, whether partial payments, or mutual debts, could be introduced, or in consequence of the danger of surprise on the parties, the statute of Geo. II, “concerning discounts and off-sets,” was enacted in England; and a like doubt, in this Country, whether the practice which prevailed, of allowing payments, or off-sets in part, in the nature of a discount, and of entering up judgment to be discharged by the balance found really to be due, was correct, produced our statute concerning discounts. That course is again confirmed by the act concerning interest, which directs, that the jury shall find the sum that is really due, and say from what time interest shall run, if they shall allow interest; and the judgment is still given for the debt in the declaration mentioned, as also for the interest, by the jurors in their verdict found; and which interest is in the nature of damages.

None of these laws were intended, I presume, to change the Common Eaw forms of entries, or mode of bringing suits, and declaring. But may be said, that if a single bill has been due a considerable time, and a small part only has been paid, so that the balance, with the interest thereon, will far exceed the amount declared on, the condition annexed to the judgment, to wit, that it is to be discharged by the payment of a larger sum, would be nugatory and improper.

*This objection, I think, may easily be obviated- by attending to the regular forms of entries.

I will first instance a bond for 100 dollars, conditioned to pay SO dollars, which has been due for twenty-five years, and admitted to be a subsisting debt. If there is a judgment by default in this case, the Court wilt render a judgment for the 100 dollars, and will not annex a condition, under the act of assembly, allowing a running interest, inasmuch as the party would not be bound to pay the greater sum mentioned in the condition, and might discharge himself by the payment of the 100 dollars. And so the regular entries are for the 100 dollars without condition.

But the plaintiff wants his interest be-3rond the twenty years; and, having claimed damages for the detention of the debt, he either takes his writ of inquiry, or the jury are charged on the defendant’s plea of payment, if there was a plea, and they assess, the damages beyond the twenty years; and then the judgment will be for the penalty,, together with these damages, as though the bond were single. This would have been the course before the late act of assembly authorizing the jury, if they allow interest, to say from what time it shall run, &c. j and as to what would be the proper entry, since that law will be considered hereafter.

I will now take the case of a single bill for 110 dollars. I will suppose 10 dollars of it to have been paid at the time the bill fell due; and that the balance had been on-interest for five years; and will inquire what would have been the proper verdict and judgment, as well before, as since, the act concerning interest above mentioned.

The verdict, if before the act, when drawn out in full form, would be, “We, the jury, find that the defendant hath not paid the debt in the declaration mentioned, as. the plaintff, by replying, hath alleged, but that 100 dollars, part of the said debt, is, yet due, and owing to the plaintiff, and we assess the plaintiff’s damages by reason *of the detention of said debt, to 30 dollars, beside his costs:” And the judgment on this verdict would be, “therefore it is considered by the Court, that the plaintiff recover against the defendant 110 dollars, the debt in the declaration mentioned, together with 30 dollars, the damages by the jurors in their verdict assessed, and his costs: But this judgment may be discharged by the payment of 100' dollars debt, together with the damages, aforesaid, and the costs.”

Since the act- concerning interest, the verdict, in the above case, would be: “We, the jury, .find that the defendant has not paid the debt in the declaration mentioned, as the plaintiff, by replying, has alleged, but that he yet owes to the plaintiff 100 dollars, part thereof, with interest thereon from the day of , until payment:” and the judgment thereon would be entered thus: “That the plaintiff recover against the defendant 110 dollars, the debt in the declaration mentioned, together with interest on 100 dollars, part thereof, from the day of , until payment, as by the jurors, in their verdict aforesaid, allowed, and his costs: But this judgment may be discharged by the payment of 100 dollars debt, with interest thereon as aforesaid, and costs. ”

The Act of Assembly has only changed the damages from interest, found in a gross, sum, to a running interest.

This was done for the benefit of the creditor, and will not, by implication, be intended to alter his Common Law mode of recovery, or further to change the nature of his judgment, and the form of his recovery, than is necessary to effectuate the objects of the law; and being intended for his benefit, will not be construed so as to subject his specialty contract to the hazard,, in this respect, of a simple contract, by giving him a judgment only for the sum found due, and thereby subjecting him to the danger of a non-suit, &c.

*Would not the contrary doctrine be extremely hard in such a case as this? The plaintiff is assignee of a single bill; he is, at his peril, to notice the payments made to his assignor, and bring his suit for the balance; otherwise, if it turns out that the balance is below a given sum, he is non-suited!!

But even as to the original parties, credits may be claimed and set up, which are really unjust, or which the party expected were to be adjusted another way; in fact, the defendant may, or may not, make his discounts; he may elect a cross suit. X think, in this country, the defendants are sufficiently favoured in being permitted to offer their discounts, without notice: and I see no reason for now altering a practice which, I believe, has been uniform in all the Courts, for the great length of time, during which, many of these laws under which the change is now called for, have existed. I believe such a decision would produce incalculable mischief, by subjecting a vast number of just judgments to reversal, of which the parties never thought of complaining.

The verdict and judgment therefore are, in my opinion, substantially, in correct form.

If this be true, then this case, as to the jurisdiction of the Court, will stand upon the same ground, I apprehend, as the cases of bonds above 100 dollars, conditioned to pay a sum below 300 dolls. ; or where the payments proved, reduce the sum actually due, as in this case, to 46 dolls. 59 cents. I would not refuse jurisdiction in one of these cases, unless I would in both. The larger sum, in both cases, is that which is recovered according to the forms of law, and may be said to be nominal; the smaller is the real sum recovered. I at first inclined to think that we ought, in both cases, to regard this latter, as the sum on which our jurisdiction would depend. I am told, however, in cases of bonds, the penal sum has always formed the criterion, and I incline to think, that this is proper, and ought not now to be departed from.

*Had this suit originated in the District Court, if I am righf on the first point, that Court would have had jurisdiction, and would not have nonsuited the plaintiff, although the sum really due was found to be but 46 dollars 59 cents.

The debt claimed and found by the jury, is 250 dollars; the plaintiff, if required, is bound to establish his debt to that amount. Suppose there had been also a plea of non est factum, the whole sum would have been in contest. The plaintiff would have proved the sealing, and recovered the entire sum; but the law authorizes the Court to annex a condition to their judgment. This act, though, will not, without express words, oust that Court of a jurisdiction, which it unquestionably has, according to the principles of the Common Law. But if that Court would have had original jurisdiction, I presume, for the same reasons, it would have had appellate jurisdiction: indeed, it has taken appellate jurisdiction ; that Court having such jurisdiction, where the debt, or damages, or other thing recovered or claimed, exclusive of costs, is of the value of 100 dollars: and I think that Court was correct in taking such jurisdiction. But if this Court has not jurisdiction, that Court had none. The 14th section of the act constituting the Court of Appeals, says, that appeals may be granted, heard, and determined, by the Court of Appeals, to and from any final judgment of the District Courts, in the same manner, and on the same principles, as they are to be granted by the District Courts, to and from final judgments of the County Courts. According to this law, I apprehend, this Court has heretofore taken jurisdiction in cases of bonds, where the penalty has exceeded 100 dollars, although the principal sum really due was less. Seeing no reason to distinguish this case from cases on bonds; and believing that the course of this Court, as to them, has hitherto been correct, and ought not to be changed; I think we have jurisdiction in this case. This brings us to consider whether the judgment of the Superior *Court of law, reversing that of the County Court, was correct.

I do not think it necessary, or proper to decide, positively whether the assignment of the bill in this case, could have been examined as a witness, on the ground that he stood equally indifferent to the parties, or rather, that his interest either way was equal; that point not arising, though X am strongly inclined to think that he might, on the principles stated in the case of Jordaine v. Lashbrooke, reported in 7 T. R. 601.

I am, however, clear, that to permit his oral or written declarations, made after the assignment, (and which he might not be willing to verify on oath,) to be given in evidence, would be opening a door to fraudulent combinations between the assignor and his former creditor, that would be of very dangerous tendency. I think, therefore, that the judgment of the County Courts, rejecting such declarations, was correct, and must be affirmed, and that of the Superior Court reversed.

JUDGE CABELL. It has been long and repeatedly settled, that the plaintiff, in debt or simple contract, may support his action by proof of a sum different from that claimed in the declaration, (unless there be a variance in the description of a written instrument; and that his recovery will be according to his proof, and not according to his claim. In such cases the action of debt may be assimilated to the action of assumpsit. In the case before the Court, the action was founded on a single bill, and the jury having found for the plaintiff the debt in the declaration mentioned (250 dollars) to be discharged by the payment of 46 dollars and 59 cents, with interest thereon from the 6th day of March, 1804, the County Court entered up a judgment, pursuant to, and almost in, the words of the verdict. Not having heard the first argument in this case, I shall give no opinion except on the general questions, growing out of the second ^argument, as to the proper manner of entering up the judgment, and as to the jurisdiction of this Court.

The foundation of the action being a written instrument, plainly and distinctly set forth in the declaration, it is very evident, on general principles, that the action could not be sustained, but by the exhibition of the very writing declared on. This writing would show that the certain and precise sum claimed was originally due; and if there should be no other evidence in the cause, judgment would necessarily be given for the whole sum thus claimed. But since the act of 1748, it has been always competent to the defendant in an action like the present, to make, on the trial, all the discount he can; “and upon proof thereof, the same shall be allowed in Court.” If such discount be “allowed,” it operates as an extinguishment of so much of the plaintiff's demand; and on what principle is it that the Court can give a judgment for the part thus legally extinguished, and standing on no better ground than if it had never existed. It cannot be necessary for identifying the cause of action, so as to prevent a future suit for the same thing; for that is sufficiently done by the declaration. I can'perceive no rule of law which requires it, nor any principle of justice which authorizes it. These remarks do not apply to the cases of bonds having conditions that the penalty shall become void on the payment of a smaller sum. There the law requires the judgment to be entered for the penalty which serves as a security to the plaintiff for the sum really due with its interest. But where the parties have created no penalty, and where the law does not annex one, what right has the plaintiff, or the Court, to give to the sum originally due, but since partly discharged, all the effect of a penalty? Such a course, would, in many cases, be materially injurious to the defendant, by subjecting him to the costs of a suit in the Superior Court, if there remained due one cent only; and even if that fact should appear by the receipts endorsed on the single bill, as exhibited by the plaintiff himself. *1 am, therefore, clearly of opinion that the County Court erred in the form of entering up the judgment.

But the question of jurisdiction now presents itself, founded on the objection that the sum really due, and in controversy between the parties, is of less value than 100 dollars. I was, on the first view of this subject, strongly inclined to believe that, as the judgment of the County Court was in form, for a sum sufficiently large, this Court' might, on that account, take cognizance of the case, and proceed to affirm a reverse. But on further consideration, and particularly on a more attentive examination of the clause of the Act of Assembly defining the jurisdiction of this Court, (1 vol. Rev. Code, p. 60,) I have abandoned that impression. It is evidently the intention of the legislature to exclude from this Court causes of minor importance;, and, therefore, its jurisdiction, in cases at law, is confined to causes where the matter in controversy, shall be equal in ■value, exclusive of costs, to 100 dollars. In the case presented by this record, I consider the matter in controversy between the parties, to be the sum of 46 dollars and 59 cents, found by the jury, and not the nominal sum of 250 dollars, for which the Court, in pursuance of their own ideas of form, have entered the judgment. The plaintiff was obliged to demand, in his declaration, the 250 dollars; that being the amount of his single bill; but that is not the matter in controversy; for the jury, substantially, found only the sum of 46 dollars and 59 cents, with which he is content, but to which the defendant objects as being too much. This sum is, therefore, the real matter in controversy, and decides the question of jurisdiction. I am, therefore, of opinion, that the appeal be dismissed, as having been improvidently granted.

JUDGE BROOKE. The judgment in this case is for 250 dollars, to be discharged by the payment of 46 dollars and 59 cents, the amount of the verdict of the jury.

Whether the judgment was correctly entered, it is not *now necessary to decide. My - impression is, that it ought to have been rendered for the sum found by the jury, and no more. That sum, I consider, in the present case, to be the true criterion of the amount of the matter in controversy in this Court; and, of consequence, that it cannot take cognizance of the appeal in question. The case in 4th Cranch, (which has been relied upon) is, in principle, analogous. There, the judgment of the inferior Court was correctly entered for the penalty of the bond, which amounted to more than enough to give the Court jurisdiction ; but the damages claimed being less, the Court refused to take cognizance. I am not prepared to say, however, that, in the case of a judgment (for a penalty) on a bond, that case would be conclusive here. There may be something in the Act of Assembly in relation to judgments on bonds which might change the rules of decision. In other respects, it appears to me that there is no substantial difference between that section of the Act of Congress, upon which the decision alluded to was bottomed, and that section of the Act of Assembly which defines the jurisdiction of this Court. I am therefore of opinion that the appeal be dismissed.

JUDGE ROANE. This is an action of debt brought by the appellant against the appellee in the County Court of Harrison. It was an action for money, although it was cotemporaneously agreed and stipulated in the bill itself, that deer skins, and other articles would be received in payment. In 2 Bac. 278, we are told, that in the case of a bill for 201. to be paid in watches, an action of debt must be brought for the money, and not for the watches, because they are of uncertain value. It is also an action upon a single bill for 275 dollars, and not on a bond or bill penal for that sum. Although the single bill, which is contained in the record, not being set out upon oyer, cannot be resorted to, to show this, and the words “writing obligatory,” contained in the declaration, standing singly, would perhaps more properly import a bond or bill penal *than a single bill, I infer irresistibly that the instrument on which it is founded was of the latter, and not of the former, character. I infer this from the general structure of the declaration, from its being therein stated that the promise was to pay the same sum in deer skins, and other articles, (which would seem to exclude the idea of the payment of a smaller sum in money,) and from the omission to aver in the declaration, as is usual in those on bonds, that the party acknowledge himself bound in the sum in question, but only that he promised to pay it.

In this action upon a single bill for 250 dollars, the jury found a verdict for the plaintiff, for “the debt in the declaration mentioned, to be discharged bj' the payment of 46 dollars and 59 cents, debt, with interest thereon from the 6th of March, 1804;” on which the County Court gave judgment “that the plaintiff recover of the defendant the sum of 250 dollars, to be discharged by the payment of 46 dollars and 59 cents, with interest thereon from the 6th of March, 1804, and his costs.” To this judgment the defendant obtained a su-persedeas from the Superior Court, where the judgment was reversed on the gro'und that certain evidence offered by the defendant was, in its opinion, improperly rejected ; and the same Court ordered a new trial to be had in which such evidence was to be received by the County Court. From this judgment of reversal, the appellant (the former plaintiff) appealed to this Court.

The first question which arises is, whether this Court can take jurisdiction in the case, so as to decide whether the said judgments, or either of them be erroneous. This is an inquiry which is always antecedent to, and exclusive of, every other. In making this inquiry, I beg to be understood as confining my remarks exclusively to the case now before us; that of a judgment rendered on a single bill, as if it were a bond with a penalty, and in which the sum, by the payment of which the defendant may discharge himself, is below the limits of the jurisdiction *of this Court, although the penalty affixed, or assumed by the judgment is above it.

In chalking out the jurisdiction of the several Courts of this Common wealth, there is a relative gradation in point of the value of the subject of controversy, beginning at the lowest, and ascending to the highest, with the exception of certain subjects; as freeholds and franchises, for example, as to which, on account of their dignity and importance, the standard of value is entirely disregarded. Thus, the County Courts had jurisdiction in all cases of more value than five dollars, (since extended to a larger sum;) as to which those Courts proceed in general according to the course of the common law: but where the debt, or penalty, or goods detained, &c. were not of greater value than twenty dollars, they were to proceed in a summary way by petition ; with a provision that, if any person should bring any other action than a petition, and it should appear, by his own showing, or by the verdict of a jury, that he might have brought a petition, he should be nonsuit. Thus, it was the sum found by the jury in cases of recovery, and the sum sued for in other cases, which determined whether the jurisdiction should be sustained by way of action.

In relation to appeals from the County Courts to the District Courts, the same principle seems to be studiously kept in view, though under a varied form of expression. Thus, it is first said, generally, that appeals will only lie in this case where the causes amount to 301. or 3,000 pounds of tobacco; but lest this general criterion might be liable to misconstruction, the law afterwards adds, that appeals will lie to the District Courts “where the debts or damages, or other things recovered or claimed, shall be of the value of 100 dollars,” &c. I incline to think that this expression recovered or claimed, is to be taken distributively, as in the above clause relative to petitions, the former applying to cases of recoveries, in which the amount recovered must be of the value required by the Act, and the latter applying to cases in *which the plaintiff fails to recover any thing, if, upon his own showing, or the statement of his claim, he is entitled to come into the District Court. On any other construction, a plaintiff wholly failing to recover would be without any remedy by appeal. This principle, expressly enacted as to petitions, as aforesaid, and supposed to be kept up in relation to appeals from the County Courts to the District Courts, will, it is supposed, lose none ot its force when applied to tne Supreme Court of the Commonwealth, deeply engaged as that Court is in settling the principles of our jurisprudence, and deciding causes of considerable value, the legislature might with great propriety confide the inferior ones to the exclusive decision of the other tribunals. Is there any thing in the act establishing the jurisdiction of this Court which impairs the force of this principle? Quite the contrary. That act declares that appeals shall lie to this Court from decrees of the High Court of Chancery, and judgments of the General or District Courts, if the matter in controversy be equal in value, exclusive of costs, to 100 dollars, &c. or be a freehold or franchise. What is the matter in controversy in the case before us? That which is the essence and substance of the judgment, and by which the party may discharge himself; that is, 46 dollars and 59 cents with interest; and which is below the value required to give jurisdiction either to this Court or the Superior Court of Daw. The form of the judgment holding up (I think erroneously in this case) a larger sum, as the sum for which the judgment is formally given, will not elude or evade those land marks by which controversies of small value are withheld from the cognizance of this Court.

But if the expressions in the act constituting this Court were even less definite than those contained in the other acts, as aforesaid, it will not readily be conceded, that a principle, running clearly through every other part of the system, would be lightly lost sight of, in relation to that Court to which it is more important • than to any *other. If it be said that this construction would repel from the jurisdiction of this Court matters of great amount which have been illegally reduced by the inferior Court, below the limits of our jurisdiction; I answer, 1st. That this is an inquiry which is posterior and foreign to the inquiry whether this Court has jurisdiction, which depends only on the judgment, or declaration, as the case may be; 2dly. That this objection was urged and overruled in the case of Hepburn v. Lewis, and many other cases in this Court; 3dly. That this objection is also expressly overruled in the aforesaid provision in the petition law, and also by the similar construction I have assigned to the act allowing appeals to the District Courts; 4thly. That a contrary construction would whittle down the jurisdiction of this Court to matters of the smallest amount; and, Sthly. That it is better that a particular mischief should ensue, than a general inconvenience, breaking down the barriers wisely erected between the several departments of the judiciary, and prostrating, as to one of them, a principle expressly applied by law to the others.

In strict conformity to this idea has been the decision of the Supreme Court of the United States, in the case of the United States v. M’Dowel, 4 Cranch,'316. That case is even infinitely stronger than the case before us; 1st. In being the case of a bond, in which a contrary principle might have prevailed, in consequence of the provision of the general law requiring judgments in such cases to be entered for the penalty; and, 2dly. In this, that it depended upon a solitary provision in the judicial act of Congress, in substance precisely similar to the one in our act giving jurisdiction to this Court, whereas our act is corroborated and explained, as to the point now in question, by various other acts as aforesaid, forming one judiciary system.

*For these reasons, I am of opinion, that this Court has no jurisdiction in the Appeal before us, and that it should be dismissed.

Understanding this to be the opinion of a majority of the Court, I ought, here, regularly, to stop. It is not important to inquire whether the judgment of the Superior Court should be reversed for having directed improper evidence to be admitted on the future trial, or for not having reversed the decision of the County Court, so far as it gave a judgment for the penalty. If it were necessary, I might, perhaps, be of opinion, that this last error, being, possibly, beneficial to the defendant, by limiting a sum, (a very remote one, indeed,) which might curtail the amount of interest recovered against him, should not, in his favour, be considered as a ground to reverse the judgment. As to these points, I mean not to give a decided opinion, as being unnecessary. The same remark applies to the question whether the judgment was legally entered in this case for the penalty: but, as that question is very important, and has been considered by the judges, I will give my present opinion upon it.

In the case of bonds with penalties, a judgment similar to the one before us, is not only called for by the express provisions of the statute, but establishes that standard of damage which (as was said by Judge Lyons, in the case of Pane v. Elzey, 2 Wash. 143,) was agreed upon by the parties themselves: whereas, in the case of a single bill, this last circumstance is not only entirely wanting, but such a judgment erects into a penalty, without any statutory requisition, a sum which, in event, abridges the principal and interest actually found due by the jury. I will put the case of an action on a single bill for 301. in which the jury finds a verdict for 291., with interest from a period five years antecedent thereto; if,- in such case, the judgment is entered for the 301. to be discharged by the payment of the 291. and interest, the defendant may elect to pay the 301. and thereby ^abridge the sum actually found due by the jury. What is there in the nature of this action that leads, in the case of a single bill, to such a consequence? It is true, that it was formerly held that in an action of debt you must recover the whole sum claimed, or nothing. Without going into the reason of that doctrine, or stating the particular exceptions to it, the doctrine now is, that you may recover less, or, as Blackstone says, (vol. 3, 154,) if the defendant shows that he has discharged any part of the debt, the plaintiff shall recover “the residue.” Throwing all other considerations out of the question, this result is clearly justified by the statutes of set-off in England, and the analogous acts concerning discounts in this country. Formerly, on a failure of payment, of any part of the sum due, at the day, the whole bond was forfeited, at law, and the defendant was forced to go into equity for relief: then came the statute allowing a plea of payment of the whole sum after the day; but that still not being sufficient, the statutes of set-off were passed in England, giving the defendant the benefit of partial payments, by pleading or giving in evidence his discounts. On general principles, as a payment of the whole sum might be pleaded in bar, and would extinguish the action, a payment of part (it would also seem) would extinguish it pro tanto and turn the plaintiff, in the foregoing language of Blackstone, to recover only “that residue.” But this matter does not rest merely on the general principle. It is provided b3r the English statute of 8 Geo. II, concerning set-offs, that the judgment shall be entered “for no more than is justly due to the plaintiff,” after setting off the mutual debt, or, in other words, striking a balance; and as it is held, tinder this statute, that setting oft is equal, and only equal, to an actual payment. I infer also, irresistibly, that in the case of a partial payment also, judgment is to be rendered for the balance only. Our act of discounts, (2 Rev. Code, 117,) is equally extensive with the English statute of set-off, to say the least. The words of that act on the ^subject of discounts are extremely latitudinary; being that “the defendant shall have liberty to make all the discounts he can; and on proof thereof, the same shall be allowed in Court.” How is it allowed, if the judgment is still to cover and comprehend the sum actually discounted under the act? As, therefore, in the case of bonds with penalties, there is not only an express legislative declaration that the judgment shall be entered for the penalty, and not the sum mentioned in the defeasance, which may be also very important, since the act has been held to extend to bonds conditioned to pay money by instalments ; and as, on the other hand, there seems to be a counter legislative declaration, that in the case of discounts, or payments, the judgment shall be rendered only for the balance that is justly due, subject to the exception in the case of bonds as aforesaid, how can this judgment, on a single bill, be justified?

In the case of Ross v. Gill, 1 Wash. 91, the sentiments of this Court, on the point in question, may be clearly perceived. In that case, which was debt for rent, and a judgment given for a certain sum, to be discharged by the payment of a smaller sum, this Court decided that this last was no part of the judgment, “for that, as there was no penalty in the case, the law does not warrant such an entry.”

In the case of Ashberry v. Calloway, ibid. 72, this Court, so far from extending the principle now in question, so as to embrace the case of single bills as well as bonds, actually refused to apply it in the case of a bond with a penalty. In that case a judgment was given in the Court below, on a motion on a Sheriff’s bond, for the penalty of the bond, to be discharged by a stated sum found due by the defendants. On an appeal to this Court, that judgment was reversed (inter alia) on the ground, “that the law, directing judgment to be entered for the principal sum with which the under sheriff is chargeable, and the damages, and not for the penalty, to be discharged by such payment, and being a new law introducing *a new remedy contrary to the course of the Common Haw, ought to be strictly pursued.” This last reason was assigned, only because the 'motion was founded on a bond with a penalty: in the case of a single bill it would have been wholly unnecessary. The first reason equally applies to the case before us under the modern doctrine of recovering less than the sum demanded in an action of debt, and especially under the construction I have given to the act of discounts as aforesaid. I am inclined to think, that this construction conforms to the practice in this country. I judge so from the forms in Robinson’s Book of Entries, in which the judgment is rendered for the balance only.

I repeat it, therefore, as my opinion, that the appeal be dismissed.

JUDGE) FLEMING

concurring, the appeal was dismissed. 
      
       1 Morg. Vade Mecum, 277, 8, 9; 2 Salk. 508, 519.
     
      
       See 2 Burr. 826, Collins v. Collins.
     
      
       See Hepburn v. 'Lewis, 2 Call, 497.
     
      
       Douglas’s Report, p. 6; 2 Sir Wm. Blackstone, 1221; 1 H. Black. 249, 550; 12 MoS. 72, and 2 Ld. Eaym. 816.
     
      
       Virgr. Laws, Ed. of 1769, p. 249.
     
      
       2 Call, 497.
     
      
      Note. At this time, the case of Newel v. Wood, 1 Munf. 555, if published, was not recollected; in which it was decided by this Court that in the case of bonds, the Court has jurisdiction, if the penalty be sufficient. — Note in Original Edition.
     
      
       6 Bac. 186, Bull. N. P. 179.
     
      
       2 Burr. 876.
     
      
       Bonafous v. Rybot, 3 Burr. 1370.
     