
    *Andrew Heath and James M’Kim, Executors of Andrew Heath, Deceased, v. John Blaker and Daniel Kimbler.
    Penal Bond —Debt —Jurisdiction.—Debt on a Bill Penal for $100, conditioned to pay $47. The Defendant moved the Court to stay proceedings, because the penalty was inserted for the purpose of giving the Court a jurisdiction which the Law withheld. Decided, that the Superior Court ought not to sustain the motion, but declined deciding whether the fact alleged would avail, if pleaded.
    The Plaintiffs brought Debt in the Superior Court of- Loudoun, against the Defendants, upon'a Bill Penal, for $100, conditioned to pay the principal sum of $47 77. At the April Term, the cause being on the Office Judgment Docket, the Defendants appeared and moved the Court “to stay all further proceedings in the case, because, as they alleged, the sum actually due by the Penal Bill set forth in the Declaration, would not, if covered by a fair penalty, give this Court jurisdiction of the case; and because, as they alleged, the penalty of $100 was inserted in the said bill for the purpose of giving to this Court a jurisdiction which the Law has withheld from it, and in fraudem legis.” That Court being of opinion, that the practice in this respect ought to be settled, adjourned to the General Court this question : “Under the foregoing circumstances, hath this Court jurisdiction over this Case ?”
    Notes of an argument by Counsel accompanied the Case.
    Por the Plaintiffs, it was urged, that the Superior Court had jurisdiction, although the penalty was more than double the sum secured by that penalty. In 5 Bacon, 156, it is said, that bonds are usually entered into with penalties, which are to be considered as a compensation for breach of the contract, but it is no where said that a debt shall not be secured by a greater sum than- double its amount. In same volume, title “Prohibition,” there are some very ancient cases recited, but they do not relate to Bonds, and therefore do not apply. Moreover, the reason of the prohibition was, that the sum was split up, with intent to defraud the Court of jurisdiction. In this Case, there is no evidence whatever that such intent existed. *But suppose such intent did exist. Would it be competent to prove such intent, when, if proved, it would not amount to such a fraud as would avoid the contract ? Counsel referred to 1 Munf. 555, in which the Court of Appeals say, “that they have jurisdiction to revise any judgment on a bond, provided the penalty amounts to the sum limited by Law.”
    Por the Defendants, reference was made, and reliance had on the Case of Hutson v. Lowry & Newell, in the General Court. (Ante, 42.)
    
      
      See monographic note on “ Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   The Court “not deciding .whether the fact alleged, that the penalty was increased in fraudem legis, would be available when pleaded, are unanimously of opinion, that the Superior Court of Loudoun, under the circumstances stated in the record, had jurisdiction of the Case.”  