
    *Fine’s Adm’r, &c. v. Cockshut & al.
    [April, 1806.]
    Bonds — Action on — lnterest—Instruction.—The court, in an action upon a bond, may Instruct the jury with regard to the interest.
    Appellate Practice — Failure of Lower Court to Regard Instructions of Superior — Second Appeal — Disposition of Cause. — £f the county court disregard the instruction of the district court, the latter court ought, upon the second appeal, to retain the cause for trial before themselves, and not send it back to the county court.
    The appellees brought debt against the appellant in the county court upon a bond. Plea, Payment, and issue. Upon the trial of the cause, the plaintiff’s counsel moved the court to instruct the jury, that not more than eight years interest ought to be deducted, there being no evidence that any part of the principal or interest was paid; but there was no instruction given. Verdict and judgment for the principal debt, with interest from the 1st of April, 1797. The district court reversed the judgment, because the instruction was not given to the jury, and remanded the cause for a new trial, with a direction to give the instruction. The county court, being divided in opinion at the second trial, the instruction was again refused, and a similar verdict and judgment were had : which the district court again reversed, and sent back the cause to the county court, with the same direction. The defendant appealed to the court of appeals.
    Botts, for the appellant.
    Whether the interest had been paid? or whether any part of it was to be deducted? were questions of fact; and proper for the jury, and not the court, to decide. 1 Call, 139, 140, 146.
    Williams, contra.
    There is nothing stated to shew that interest was to be deducted ; for it is not like M’Call v. Turner, 1 Call, 133, because the bill of exceptions in that case stated the absence of the creditor out of the commonwealth. The court had a right to decide upon the interest; or, at least, to instruct the jury with regard to it; because it was a matter of law, and not of fact, as the appellant’s counsel supposes. Picket v. Morris, 2 Wash. 2S5.
    *Botts, in reply.
    It makes no difference, that the bill of exceptions does not state any circumstances relative to the interest ; for the court had no right to interfere with regard to it.
    Cur. adv. vult.
    
      
      Bonds. — See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
       Interest. — The principal case is cited in foot-note to McCall v. Turner, 1 Call 133, to the point that it is the province of the jury to decide upon interest. See monographic note on “Interest” appended to Fred v. Dixon, 37 Gratt, 541.
    
    
      
      Appeals, — See monographic note on “Appeals.”
    
   TUCKER, Judge.

The appellant’s counsel insisted, that it was the province of the jury to decide upon the interest, and that the court had no right to instruct them concerning it. But the act of assembly is a law to both ; and M’Call v. Turner, 1 Call, 133, settles the principle on which the jury may deduct it, to wit, that the plaintiff was absent from the country, and had no agent here to whom payment could be made. Nothing of that sort, however, appears in the present case ; and, if there was any other ground upon which the deduction should have been made, the defendant ought to have shewn it. Besides, the bill of exceptions states the case inper-fectly, and therefore this court ought not to decide upon it. Barrett v. Tazewell, 1 Call, 215. I think, therefore, that the district court was right in directing the instruction to be given ; but as the county court had disregarded the former instruction, the cause ought not to have been sent back to them ; but should have been retained for trial in the district court. I am consequently of opinion, that the judgment of the district court ought to be affirmed, with a direction to retain the cause for trial before themselves.

CARRINGTON, Judge, and LYONS, President,

concurred, and the following judgment was entered :

“The court is of opinion, that there is no error in. the judgment of the district court; which is therefore affirmed with costs: And it appearing that the county court refused to instruct the.jury on the trial, that not more than eight years interest ought to be deducted from the debt sued for, according to the opinion and judgment of the district court, upon the former appeal to that court, as stated in the proceedings *in this cause, it is ordered, that the cause be retained by the district court for a new trial to be had there, instead of the county court; and that the order for sending the cause back to the county court be set aside by the district court, and an order made for a new trial to be had in the said district court.”  