
    *Harman v. City of Lynchburg.
    March Term, 1880,
    Richmond.
    1. Matter in. Controversy. — The terms “matter in controversy” as used in reference to the jurisdiction of the Court of Appeals in § 2, art. VI, of the Virginia Constitution, means the “subject of litigation, the matter for which suit is brought, and upon which issue is joined.”
    3. Appeal — Jurisdiction—Amount.— When the plaintiff seeks a revision of the judgment below, if he claims in his declaration money or property of the value of not less than five hundred dollars, the Court of Appeals has jurisdiction, although the judgment may be for less, or for the defendant. But where the revision is sought by the defendant, the amount ■ or value of the judgment at its date, determines the jurisdiction. This is the general rule. For exceptions to it, see 32 Gratt. 288; and the onus is upon the party seeking the revision, to establish the jurisdiction of the appellate court.
    
      3. Municipal Corporations — Liability for Unauthorized Acts of Policemen. — A city is not responsible for property destroyed by its police force, without any authority from the city, . or its governing power.
    4. Appeal — Presumption as to Correctness of Judgment. — The judgment of a court of competent jurisdiction is always presumed to be right; and a party in the appellate court, alleging error in the court below must show it in the regular way in the record, or the presumption in favor of the correctness of the judgment will prevail.
    ,5. Exceptions — Form of Bill — When exception is taken to the admission or exclusion of evidence, or the granting or refusing of instructions, or indeed to any other ruling of the court below at the trial, the bill should be so framed, by the insertion of proper matter as to make the error, if any, apparent; otherwise the exception will generally be unavailing.
    In July, 1869, B. Desha Harman brought his action on the case against the city of Lynchburg, to recover *from the city the value of one hundred and sixty-nine gallons of whiskey, worth $672.00, which he had stored in the said city in April, 1865, with his commission merchants and which he alleged (although this was not shown in the record in the appellate court) the city, through its legally constituted authorities, took possession of, and without the consent of the plaintiff or his consignees, poured it into the streets of said city; so that by the wrongful act of the defendant the said whiskey was wholly lost to the plaintiff. Damages $1,500.
    The cause came on to be tried in the circuit court of Lynchburg in November, 1873, when the jury found a verdict for the defendant; and the plaintiff moved the court to set aside the verdict and grant him a new trial. This motion seems to have been based upon an exception taken to an instruction given to the jury. That exception is set out in the opinion of Judge Burks. The court overruled the motion, and rendered a judgment upon the verdict; and the plaintiff obtained a writ of error.
    Edward S. Brown, for the appellant.
    Kirkpatrick & Blackford, for the appellee.
    
      
      Matter in Controversy.” — The first head note is approved in Atlantic & D. R. Co. v. Reid, 87 Va. 119.
      In Rewis v. Long, 3 Munf. 136, Judge Roane says: “The matter in controversy is that which is the essence and substance of the judgment, and by which the party may discharge himself.” Umbarger v. Watts, 25 Gratt. 167; Duffy & Bolton v. Figgat, 80 Va. 664,
      In Skipwith v. Young, 5 Munf. 276, Judge Brooke defined it as “that for which the suit is brought, and not that which may or may not come in question.”
      So where there is a suit to set aside several deeds on the ground of fraud and to subject the lands thereby conveyed to the debt of the complainants, the debt is the matter in controversy. Fink, Brother & Cd. v. Denny, 75 Va. 663.
      The first headnote was followed in Taney v. Woodmansee, 23 W. Va. 714. See also Arnold v. County Court, 38 W. Va. 145, where the principal case is cited in support of the proposition that the interest is a part of the matter in controversy.
      As bearing on this question, see generally, Buckner v. Metz, 77 Va. 107; Batchelder & Collins v. Richardson, 75 Va. 835; Campbell v. Smith, 32 Gratt. 288; Norfolk & W. R. Co. v. Clark, 92 Va. 118.
    
    
      
      
        Appeal — Jui’isdiefion—Amount involved. —In several cases, the court of appeals, following the decision of the Supreme Court of the United States, has held that where the plaintiff in his bill or declaration claims money or property of greater amount or value than $500, but by the ruling of the court obtains a decree or judgment for less, he is entitled to his appeal or writ of error, because as to him the matter in controversy is the sum or amount claimed and he may, upon a reversal or a new trial, obtain a decree or judgment for the whole amount so claimed. Gage v. Crockett, 27 Gratt. 735; Campbell v. Smith, 32 Gratt. 288; Fink, Brother & Co. v. Denny, 75 Va. 663; McCrowell v. Burson, 79 Va. 290; Duffy & Bolton v. Figgat, 80 Va. 664; Hawkins v. Gresham, 85 Va. 34 and cases cited; Hartsook’s Adm’r v. Crawford’s Adm’r, 85 Va. 413. See generally Buckner v. Metz, 77 Va. 107. But where, on a money demand, the difference between the amount decreed to the appellant in the lower court, and the amount of the claim asserted by him in that court, is not sufficient to give the court of appeals jurisdiction, the appeal will be dismissed; and if the actual amount in dispute does not otherwise appear, the court will look to the whole record for the purpose of determining the jurisdiction. Batchelder & Collins v. Richardson, etc., 75 Va. 835.
      And where the judgment or decree is for less than the jurisdictional amount at the date of the decree, and the defendant applies for appeal the court of appeals has no- jurisdiction. Hawkins v. Gresham, 85 Va. 34 and cases cited; Cook v. Bondurant, 85 Va. 47; Hartsook’s Adm’r v. Crawford’s Adm’r, 85 Va. 413; Kendrick v. Spotts, 90 Va. 148.
      So where Smith moved the court below to quash an execution issued against his effects on a judgment of a little more than $500, recovered by Campbell on the ground that he had paid it, and the court allowed a credit to the amount of $421, from which Campbell appealed to the court of appeals, it was held that the appeal being by Campbell, it was the amount of the credit which was the matter in controversy,-and that the court did not have jurisdiction. Campbell v. Smith, 32 Gratt. 288.
      The fact that the amount of the judgment at, the date of writ of error awarded by the court of appeals is over $500, does not give the court jurisdiction, if, at the time the judgment was rendered, it was exclusive of costs, for less than $500. Gage v. Crockett, 27 Gratt. 735.
      Upon a decree against several judgment creditors, none of whose judgments amounted to $500, dismissing their bill, the court of appeals has no jurisdiction to allow or hear an. appeal from the decree, though the united judgments amounted to more than $500. Umbarger v. Watts, 25 Gratt. 167; Thompson v. Adams, 82 Va. 672; Cook v. Bondurant, 85 Va. 47; Hartsook’s Adm’r v. Crawford’s Adm’r, 85 Va. 413.
      As to> jurisdiction of suits in equity by same creditors against same defendants, which are each for less than $500, but have been consolidated by order of lower court, see Devries & Co. v. Johnston & Wolfe, 27 Gratt. 805; Craig v. Williams, 90 Va. 500; Cox v. Carr, 79 Va. 28; Peters & Reed v. McWilliams, 78 Va. 567.
      A trustee in an assignment for the benefit of creditors, may, as representative of the whole fund, appeal from a decree if aggrieved thereby, though none of the debts secured separately amount to the minimum jurisdictional amount. Saunders, Trustee, v. Waggoner & Co., 82 Va. 316; Atkinson v. McCormick, 76 Va. 791.
      likewise in the case of an administrator, though the amount decreed to each ward or distributee is below the jurisdictional amount, the aggregate being the amount in controversy. Martin’s Adm’r v. Fielder, 82 Va. 455; Updike’s Adm’r v. Dane, 78 Va. 132.
      That the onus is upon the plaintiff in error to show by the record that the appellate court has jurisdiction, see also Saunders, Tr., v. Waggoner & Co., 82 Va. 316; Commonwealth v. Chaffin, 87 Va. 545; Buckner v. Metz, 77 Va. 107; Martin’s Adm’r v. Fielder, 82 Va. 455.
    
    
      
      Lial>ility of City. — The third headnote was followed in Brown v. Guyandotte, 33 W. Va. 302.
    
    
      
      Jn.dgrmetn.ts and Decrees — Conclnsiveness. — The principle stated in the fourth headnote is reasserted in Womack v. Tankersley, 78 Va. 242; Hill v. Woodward, 78 Va. 765; Neale v. Farinholt, 79 Va. 54; 4 Min. Inst. (2nd Ed.) 971, 972 and cases cited; Forrer v. Coffman, 23 Gratt. 871-2; Saunders v. Griggs’ Hill v. Woodward, 78 Va. 765; Wright v. Smith, 81 Va. 777; Wynn v. Heninger, 82 Va. 172; Ferguson’s Adm’r v. Teel, 82 Va. 690; Shipman v. Fletcher, 91 Va. 473; Gresham v. Ewell, 85 Va. 6; Joslyn v. State Bank, 86 Va. 287; Early v. Commonwealth, 86 Va. 921; Fry v. Leslie, 87 Va. 269; Stevens v. Brown, 20 W. Va. 463; McManus v. Mason, 43 W. Va. 198. See also Mann v. Bryant, 12 W. Va. 516; Miller v. Shrewsbury, 10 W. Va. 115; Tayloe v. Baughner, 16 W. Va. 327; Nease v. Capehart, 15 W. Va. 300; Johnson v. Jennings, 10 Gratt. 1; McDowell v. Crawford, 11 Gratt. 387.
      But the presumption of jurisdiction may be overcome by the record. Blanton v. Carroll, 86 Va. 539; Dillard v. Central Virginia Iron Co., 82 Va. 734; Wilcher v. Robertson, 78 Va. 602.
    
    
      
      Appeal — Assignments of Error. — Where error is assigned in the admission or exclusion of evidence, or in the giving or refusing of instructions, the error must be made* apparent in the bill. Valley Mut. Life Ass’n v. Teewalt, 79 Va. 421; 4 Min. Inst. (2nd Ed.) 973; Roanoke Nat. Bank v. Hambrick, 82 Va. 135; Coleman v. Commonwealth, 84 Va. 7; Curtis v. Commonwealth, 87 Va. 589. See also Cluverius v. Commonwealth, 81 Va. 787; Womack v. Tankersley, 78 Va. 243; Wright v. Smith, 81 Va. 777.
    
   BURKS, J.

Objection is made by the defendant in error to the jurisdiction of this court to review the judgment of the court below, on the ground that the matter in controversy, exclusive of costs, is less in value or amount than five hundred dollars. Constitution of Virginia, Art. 6, § 2; Code of 1873, ch. 178, § 3.

The language, “matter in controversy,” employed in our Constitution (Art. 6, supra) is of the same import as the terms, “matter in dispute,” found in the "act of Congress, commonly called the judiciary act, (Rev. Stat. of U. States, 2nd Ed., § 690), regulating the appellate jurisdiction of the Supreme Court, and the construction of the two phrases has been the same.

“By ‘matterin dispute,’” says Mr. Justice matterforwhich the suit isbrought — and upon Field, “is meant the subject of litigation — the which issue is joined, and in relation to which jurors are called and witnesses examined.” Lee v. Watson, 1 Wall. U. S. R., 337, 339.

Where there has been a judgment against the defendant in the suit, which he seeks to have reviewed on appeal or writ of error, the judgment is the “matter in controversy” as to him, and the amount or value of it, at its date, determines the jurisdiction of the appellate tribunal. Gage v. Crockett, 27 Gratt., 735, 736. Such is the general rule. It is subject, however, to some exceptions or qualifications, as may be seen by reference to' the opinion in Campbell v. Smith, 4 Va. Law Journal, 42; 32 Gratt., 288.

In Troy v. Evans, 97 U. S. R. (7 Otto), 1, it was held, that the amount of the judgment below against a defendant in an action for money is prima facie the measure of the jurisdiction of the Supreme Court in his behalf. and this prima facie case continues until the contrary is shown; and, if jurisdiction ’ is invoked because of the collateral effect a judgment may have in another action, it must appear that the judgment conclusively settles the rights of the parties in a matter actually in dispute, the sum or value of which exceeds the amount fixed by law as the minimum limit to the appellate jurisdiction. In this court, such sum or value must not be less than five hundred dollars, exclusive of costs.

When the plaintiff by appeal or writ of error seeks a revision of the judgment below, if he claims in his *declaration or bill money or property of value not less than five hundred dollars, this court has jurisdiction, although the judgment may be for less or for the defendant. Gage v. Crockett, supra. See also Shacker v. Hartford Fire Ins. Co., 93 U. S. R. (3 Otto), 241; Walker v. United States, 4 Wall. U. S. R.. 163, 164, and cases cited; Lee v. Watson, supra.

The onus probandi is upon the party seeking a revision of the case, to establish the jurisdiction, 10 Peters R., 160; and when the jurisdictional value does not appear by the record, affidavits to show such value, taken on notice to the opposite party, have been allowed in some cases by the Supreme Court. Williamson v. Kincaid, 4 Dall. R., 20; Course v. Stead and ux. and als., Id. 22; Rush v. Parker, 5 Crouch R.. 287; The Grace Girdler, 6 Wall. U. S. R., 441. But where the value is stated in the pleadings or proceedings of the court below, affidavits in the Supreme Court have never been received to vary or enhance it, in order to give jurisdiction. Richmond v. City of Milwaukie, 21 How. U. S. R. 391. 393.

In the light of these decisions, the jurisdiction in this case seems clear. The cause of action set out in the declaration is the alleged illegal destruction by the defendant of a quantity of whiskey, the property of the plaintiff. The value of the whiskey at the time it was destroyed is the measure of the daim, and that value is stated in the declaration to be $672, an amount more than sufficient to give this court jurisdiction. No special damages are claimed. The general damages are laid at $1,500.

The only assignment of error by the plaintiff’s counsel is based on the following bill of exceptions, signed, sealed and made a part of the record:

“Memorandum. — That, on the trial of this case, evidence having been offered tending to prove that the *whiskey in the declaration mentioned had been destroyed by a lawfully organized police force of the city of Lynchburg, the defendant by counsel moved the court to instruct the jury as follows:

“ ‘That even if the jury believe from the evidence that the whiskey in the declaration mentioned was destroyed by a lawfully organized police force of the city of Lynch-burg, yet, if the jury further believe from the evidence, that there was reasonable ground to believe and apprehend that the city was in danger from the presence of large numbers of fugitive soldiers and other persons riotously disposed, and that there was danger of the immediate occupation of the city by a hostile soldiery, and that the presence of intoxicating liquors was a serious danger to the citizens and the property of the city, and that such danger was so imminent and great as to amount to an overruling necessity, then the destruction of the said whiskey was justifiable as a means of insuring the public safety, and the city is not liable in this action:’

“To which the plaintiff bv counsel objected; but the court overruled the objection, and gave the instruction; to' which the plaintiff excepted, and prayed that this his bill of exceptions be signed and sealed by the court, which is done accordingly.”

I perceive no error in this instruction, certainly none to the prejudice of the plaintiff. The evidence is not spread upon the record. This court cannot know judicially what it was. The only reference to it is in the bill of exceptions which has been copied. It is there stated, that there was evidence tending to show a particular fact, namely, the destruction of the whiskey in the declaration mentioned by a lawfully organized police force of the city of Lynchburg. If there was any other, what it was, or what its purport, is matter of the merest conjecture. The unauthorized ^destruction of the plaintiff’s property by the police, though lawfully organized, could impose no liability on the city. As well might it be contended, that the city would be liable for a wanton assault and battery committed by its police. 2 Dillon on Mun. Corp., (2nd Ed.), § 773. There was not a scintilla of evidence, so far as the record shows, to connect the city with the destruction of the liquors, either by previous order or subsequent ratification. The court therefore might well have instructed the jury absolutely upon the evidence, as far as we are judicially informed of its purport, that the city was not liable for the act of the police force. It was not essential to a verdict for the city, that such unauthorized act should have proceeded from an overruling necessity induced by the circumstances hypothetically stated in the bill of exceptions. So much of the instruction therefore as made the exemption of the city dependent upon the existence of that necessity, to be deduced by the jury from the circumstances, was more favorable to the plaintiff than the evidence, as far as we can discover from the record, warranted: for, as already stated, the bill of exceptions does not indicate, that there was any evidence whatever tending to prove, that the act of the police force was by authority of the city or its governing power.

True, it is stated ih the petition for the writ of error, that it was proved on the trial that on the 12th of April, or some time prior thereto, the plaintiff had in the hands of McDaniel & Irby, commission merchants in the city of Lynchburg, for sale, a quantity of whiskey; that, in consequence of the surrender of the Confederate army at Ap-pomattax Courthouse, some twenty miles distant, danger was apprehended that the city would be sacked and burned by the Federal army, and that disbanded soldiers from the Confederate army and *disorderly citizens would become riotous, and to guard against such danger, the city council ordered its police force to search for whiskey aitd destroy all they could find; that under these orders, the city police found the plaintiff’s whiskey, and took it, without the plaintiff’s consent, or the consent of McDaniel & Irby (the commission merchants), and poured it into the streets.

Such are the statements in the petition, but no part thereof is to be 'found in the record, except the brief reference in the bill of exceptions to the evidence tending to prove that the liquors were destroyed by the lawfully organized police force of the city. Of course,_ this court can consider and decide this cáse only as it is presented by the record. The plaintiff cannot supply omissions by oral statements, nor supplement the record by his petition. Whatever was proved on the trial necessary to be known here to establish error ought to have been embodied in the bill of exceptions.

The judgment of a court of-competent jurisdiction is always presumed to be right until the contrary is shown, and a party in an appellate court, alleging error in the court below, must show it in the regular way, or the presumption in favor of its correctness must prevail. When exception is taken to the admission or exclusion of evidence, or the granting or refusing of instructions, or indeed to any other ruling of the court at the trial, the bill should be so framed by the insertion of proper matter as to make the error, if any, complained of, apparent, otherwise the exception will generally be unavailing. This court has. occasionally reversed a judgment and remanded the cause for new trial, on "account of ambiguity or obscurity in instructions given, calculated to confuse and mislead the jury; but the instruction in the present case is not open to any such objection.

*In a late case decided by the House of Lords, cited in Broom’s Legal Maxims, 946 (marg. p.), Lord Wensleydale thus indicates the degree of weight attributable to a judgment of court of competent jurisdiction when brought under review: “I take it to be perfectly clear,” remarks his Lordship, “that when a court of error is considering a former decision on appeal, that decision is not tobe ove.rturnedunlessthe:courtoferror is perfectly satisfied that the decision is wrong. Prima facie it is to be considered a right decision, and is not to be deprived of its effect unless it is clearly proved to the satisfaction of the judge that the decision is wrong; but he must consider the whole circumstances together, and if he still feels satisfied upon the whole of the case that the decision is wrong, he ought undoubtedly to overturn it; it is only to be considered as prima facie right. The onus probandi lies on the opposite party to show that it is wrong, and, if he satisfies the conscience of the judge that it is wrong, it ought to be reversed.” Mayor, &c., of Beverly v. Attorney-General, 6 H. L. Cas. 310, 332, 333.

It is not necessary to express any opinion upon the instruction applied to the case as stated in the petition of the plaintiff in error, as the case there stated is not the case made by the record.

I am of opinion to affirm the judgment of the court below.

The other judges concurred in the opinion of Burks, J.

Judgment affirmed.  