
    Barrett & Co. v. Tazewell.
    [Saturday, April 21st, 1798.]
    Bill of Exceptions — Imperfect Statement of Pacts — Reversal of Judgment. — Judgment reversed; because the bill of exceptions stated the facts imperfectly.
    Debt on Bond — Interest—Tender of Less Than Due— Tender Ref used — Effect.—Quaere. If, in an action- of debt upon a bond, the defendant brings in the principal, and a lesser sum than is calculable on the face of the bond, with costs, and the plaintiff refuses to accept it, the Court can, upon motion, decide whether more interest is due, or whether there ought not to be an issue and trial by Jury?
    Barrett & Co., as assignees of Emanuel Walker & Co., who were assignees of Theodorick Bland, brought an action of debt in the District Court of Williamsburg, upon a bond, given by Tazewell to Bland, for payment of 9001. on or before the 25th day of December, 1786, under the penaltyof 18001.; which bond bore date the 13th day of March, 1785; was assigned to Walker & Co. on the 10th of May, 1786; and, by them, to Barrett & Co. upon the 20th day of March, 1787. There were endorsements as follows: May . 24th, 1795 — Received in
    cash, ¿276 16 2%
    
    An order on Rev. S. M.
    M’Croskey, when paid, ¿276 16 2%
    
    ¿553 12 5
    Cr. ~- — —
    By a judgment against Tay- ) loe’s executors, settled up to >- ¿400 10 10 the 4th of May, 1792, )
    Before any plea pleaded by the defendant, he brought into Court 5391. 10s. 5d. and tendered it in discharge of the bond, which the plaintiffs refused to accept. The defendant moved for a dismission of the suit at his costs, he having, (as the record stated,) brought into Court the principal sum due, with interest thereon from the 20th day of March, 1793; and prayed to be discharged from the interest which accrued on the said bond from 216 *the 25th day of December, 1786, the time the said bond was payable, till the 20th day of March, 1793. The motion was continued three terms, and, finally, an order to that effect was made by the Court.
    The plaintiffs filed a bill of exceptions, setting forth the bond and endorsements in hasc verba; and stating further, that a motion was made by the defendant to have the suit dismissed with costs against him, on paying into Court the principal and interest. That, the defendant brought into Court the principal and interest upon the bond, from [the 20th March, 1793, and prayed to be discharged from the interest which accrued on said bond from] the 25th of December, 1786, the time when the bond aforesaid was payable, till the said 20th March, 1793; and, to support the motion, that the defendant gave, in evidence, the process of York County Court, sitting in Chancery, which issued on the 19th of May, 1786, against the defendant and Bland, and was served on the defendant the 24th of the same month, in behalf of the executors of Theodorick Bland, deceased: and, an order made by the said Court of York, on the 21st of May, 1787, restraining the defendant from disposing Of any debts or effects, in his hands, belonging to Bland, the original obligee. That, the said suit was dismissed, as to the defendant, on the 20th day of March, 1793. That the defendant had notice of the assignment to Walker & Co. before the bond became due, but subsequent to the process of York Court being served upon him.
    
      The plaintiffs refused to accept the money brought into Court, claiming the interest from the 25th of December, 1786, till March, 1793; but the Court was of opinion, that the money ought to be received, without such interest, and directed a dismission of the suit. At the end of the bill of exceptions, these words were added: “And, for as much as the whole case could not appear, the parties agreed to the within statement of facts.” The plaintiffs appealed to this Court from the judgment, of the District Court.
    *Washington, for the appellants.
    The first question is, whether the claim for full interest ought to have been disallowed? It is unnecessary to discuss the question, whether in any case interest shall stop at law, from a debt due from the garnishee, and decreed by a Court of Equity to be paid to an attaching creditor. For, be that question how it may, there is no ground for the decision made in this case; because, the bond being assigned to Miller on the 10th May, 1786, the debt, from that time, was due to him. The order only restrained Tazewell from paying away debts, in his hands, due to Bland; but, at this time, that is to say, on the 24th of May, 1786, this was not a debt due to Bland; and, therefore, might have been paid without any contempt of the order. The want of notice did not make it less a debt due to "Walker, although, it might perhaps have protected Tazewell, in respect of any actual payments made by him to Bland. But, if it were otherwise, still it should not have stopped interest longer than the time when Tazewell had notice, which was. before the 25th of December, 1786. If interest could be stopped upon any ground, it must be upon shewing that the defendant h^d not been in fault. But, if he did not chuse to enquire who owned the bond, he took upon himself the risque of an unnecessary obedience to the order. As interest was not demandable until the 25th day of December, 1786, before which, he had notice, he cannot shelter himself against interest under an order not affecting this debt; which had been previously assigned. But, at any rate, the defendant should shew that.he had not contributed to the delay, which, he sa3’-s, produced a suspension of the payment. He was served with the process on the 19th of May, 1786, and might have immediately answered, stating that the money was not due to Bland, and procured a dismission of the suit, as he ultimately did. In justice; the defendant ought to pay the .whole interest; for, he had the use of the money, and we ought not to lose it, by the act of a third person, over whom we had no controul.
    *But, supposing, the claim for full interest, ought to have been disallowed, then the question will be, whether the Court did right in dismissing the suit?.
    The practice of bringing money into Court, existed long before any statute upon the subject; but, on a bond, it was necessary to bring, in .the .penalty. 5 Bac. Abr. 29, [Gregg’s Case;] Salk. 597. To remedy this, the statute of the 4 Ann. c. 16, was made; from which our act of Assembly is copied almost verbatim: And, the only alteration produced by the statute is, that of permitting the principal and interest, instead of the penalty, to be brought in. The practice in England, is to strike out of the declaration, what is paid into Court: If the plaintiff will accept it, he is entitled to costs to that time; if not, then he proceeds for the balance at the peril of the subsequent costs, should he not recover more. But, still he may proceed if he pleases. Under our act of Assembly, if •.the defendant pays in the principal and interest due, he is to be discharged; and, judgment is to be rendered for the costs only. But, who is to determine, whether all is paid or not? The jury surely; for no power is given the Court for that purpose, and the trial by jury, ought not to be ousted by mere implication. Watson v. Alexander, 1 Wash. [356,] in this Court. In the present case, many points of investigation were necessary, in order to ascertain what was due. For, credits were endorsed, which required explanation, and were open to proof; and, therefore, the Court could not, in a summary way, prevent the trial by jury, and dismiss the suit. For, it is laid down by Eord Mansfield, that, in such a motion the law arises upon the fact; and, if the sum demanded be certain, or capable of being ascertained by mere computation, without leaving any other sort of discretion to be exercised by. the ju^, the Court may strike so much of the plaintiff’s demand out of the declaration, and if the plaintiff will not accept it, he must proceed at his peril. [Hallet et al. v. East Ind. Co.] 2 Burr. 1120. So, that the Court cannot discharge the defendant, and compel the plaintiff to accept of the principal and interest, 219 unless it be a case of *mere computation. But here, as before observed, a further investigation was necessary; and, therefore, the Court could not interpose and dismiss the suit.
    Wickham, for the appellee.
    It ought, not to be presumed, that there was any other debt due to Bland but this; and, therefore,' the order of York Court necessarily related to it. Great" frauds may happen under the doctrine contended for upon the other side, as antedated assignments may be procured, and other steps taken to defeat the "attaching creditor. It would have been a contempt to York Court for Tazewell to have paid this money to'the assignee before the decision there; especially, if it had turned out, that the assignment was antedated. An attachment, levied before notice, will bind the debt, and the plaintiff, in equit3', will obtain priority. Barrett might have come into York Court, and interpleaded; for, he is presumed to have had notice. Interest is in lieu of damages, and here the penalty was not forfeited until a demand and refusal after the. order was taken of, M’Call v. Turner, [ante, 133,] in this Court. The practice of suffering the plaintiff to proceed, after the money is brought into Court, is confined to actions on the case, where the amount is uncertain, and facts are to be enquired into. But here, the point in controversy was a matter of law, not proper, for the jury to decide, as the claim for interest depended on the effect of the proceedings in York Court, which being a point of law, it was proper that the Court should decide it. The case of Watson v. Alexander, was not like this; for there, the jury were to assess the damages.
    
      
      BiII of Exceptions — Indefinite—Reversal of Judgment. —It has been held repeatedly, that when a bill of exceptions is so indefinite as not to stow whether an instruction or evidence was proper or not, tie judgment should be reversed. Strader v. Goff, 6 W. Va. 264, citing the principal case: Beattie v. Tabb, 2 Munf. 254; Brooke v. Young, 3 Rand. 106; Thompson v. Cumming, 2 Leigh 321; Bowyer v. Chesnut, 4 Leigh 1.
      For this proposition, the principal case is also cited with approval in Lynch v. Thomas, 3 Leigh 689; Carr v. Anderson, 2 H. & M. 366; Fine v. Cockshut, 6 Call 17; Brooke v. Young, 3 Rand. 117; McDowell v. Crawford, 11 Gratt. 398; Moss v. Moss, 4 H. & M. 308. See also, Tazewell v. Barrett, 4 H. & M. 259.
      The principal case; Beattie v. Tabb, 2 Munf. 254; Brooke v. Young, 3 Rand. 106; Thompson v. Cumming, 2 Leigh 321, are cases in which exceptions were taken to instructions given or refused by the court. In ail these cases, as has been stated, the judgments were reversed on the ground that the statement of facts in the bill of exceptions was too imperfect to enable the appellate court to determine the question.
      See monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
   ROANE, Judge.

The act of 1748, c. 5, § 6, [c. 8, 5 Stat. Larg. 511,] which, as well as that of 1792, c. 76, g 21, [C. 128, § 83, R. C. p. 509, ed. 1819,] is the same in substance with the English statute of the 4 & 5 Ann. ch. 16, ought to have a liberal construction ; and Courts of Baw and Equity ought to exercise their own authority to extend the spirit and reason of it.

*By that act it was meant, that in case of penalties, by way of security, the final justice of the case should be attained in Courts of Baw. That is to say, that Courts of Baw should, with respect to the object of that act, stand in the place of Courts of Equity. This construction is adopted by the Court of King’s Bench, upon the English statute, in the case of Bonafous V. Rybot, 3 Burr. 1370; and I accord entirely with that opinion, in respect to the interpretation of our own act of Assembly.

Previous to the statute, there is not a shadow of doubt, but that a Court of Equity would have relieved against a penalty, by decreeing that less than the principal and nominal interest was a satisfaction of the penalty, if, from principles operating upon such Court, the whole nominal interest should not be considered as demandable. In such a case, the whole of the nominal interest could not, in the language of the act of Assembly, be considered as due; but only such parts thereof, as, according to the principles of equity, ought to be paid. This doctrine of applying equity to a Court of Baw, by virtue of the act of Assembly, is an answer to Mr. Washington’s argument, that the principal and interest, being commuted for the penalty, the latter is to remain in full force until the principal and whole interest, calculable on the sum mentioned in the bond, shall be paid. But a party coming into Court under the provisions of this act, must, by the case which he makes, shew the Court that the whole nominal interest is not justly due, or the Court is not authorised to make him any abatement. In the present case, although admitting the assignment to have been bona fide, of which the contrary does not appear, the debt due by the bond in question was not a debt due to Mr. Bland at the time of issuing the process of York Court against the appellee; and, although the appellee had notice of the assignment before the bond became due, yet it doth not appear from the case stated in the bill of exceptions, either that he had reason to doubt of the validity of such assignment, or that he took any yearly measures, if any such 221 were in his opinion necessary, *to procure the judgment of a Court, in order to ascertain who wás his true creditor, or to exonerate himself from the restraint imposed on him by the process of York Court. Indeed, it was justly argued, that laches on his part in this respect is prima facie inferable from the lateness of the period when he was discharged, as to this debt, by the judgment of the Court. Without, therefore, undertaking to say, whether any circumstances which may, in fact, exist in favor of the present appellee, shall demand of the Court to adjudge that some part of the nominal interest is not due, I consider that the bill of exceptions has not stated such circumstances as would warrant such an opinion, but that it is, as to those circumstances, a mere naked case.

This view of the subject precludes the necessity of my giving any opinion with regard to the rectitude of the judgment of the District Court; as it respects a dismission of the cause, without the finding of a jury; as to which, whatever my present impressions may be, I have formed no deliberate opinion. But, if a dismission upon the merits was illegal, supposing the Court to have had jurisdiction to decide in a summary way; it follows a fortiori, that the judgment is illegal, when the Court has so decided without the intervention of a jury, if the objection to the jurisdiction is well founded.

It would give me. satisfaction, and promote the real justice of the case, as it respects the interest in question, if a reversal of the opinion of the Court, for the reasons above assigned, should not preclude the appellee from bringing forward in future, before the same Court, circumstances, if any such exist in his favour, to justify the abatement of the interest: And, my impression at present is, that it will not. Upon the whole, for the reasons already assigned, I think the judgment of the District Court must be reversed.

CARRINGTON, Judge. Concurred, that the judgment should be reversed, and the cause sent back for further proceedings.

*PENDBETON, President. The counsel for the plaintiff objects, that as the plaintiff insists more money is due than the defendant admits, and brings into Court, the judgment of discharge ought not to be entered; but, an issue, if one be not before joined, ought to be made up and tried by a jury to determine what is really due at the time, agreeable to the practice in pleas of tenders out of Court, and the ancient principle of equity, when, before the statute, that Court was resorted to, for relief against the penalty.

This general position, (modestly mentioned indeed, from respect to a former decision of this Court,) , “that Courts and juries, under this and a former part of the clause, are restrained from. enquiring, .whether interest in the whole’or in part, be due or not; that the judgment for the penalty -can only be discharged by. the payment of the whole interest; and, therefore, that the discharge of the Court cannot be entered, but upon the 'terms of the defendants bringing in full interest,” he will, surely,' on further consideration, acknowledge to be incorrect; for, suppose the whole or part . of the interest tie actually paid,' must the defendant, in either case, pay it over again to procure his discharge?

The word due in the act, applies to interest as well as principal, and authorises an enquiry, What is really due of one, as well as of the other. But, how that enquiry is to be made in such k case as • the present, is a question of considerable difficulty, not however necessar3r to be decided in this cause, for reasons which will appear hereafter.

Our present impressions are, that the act .though general and pretty strong, contemplated the payment of the whole claimed by the pláintiff: and, did not mean to give a power to the Court in that hasty manner upon motion, to decide a contest between the parties about the quantum of the demand, but that if hot already in issue, it ought to be put so, and tried by a’jury, as a general practice; though, we do 223 not mean to be bound by *this opinion, when a proper case shall bring it before us.

In the present case, the dispute was'about a certain liquidated sum of interest, depending on facts connected with a record of the County Court óf York, and its legal effects. So, that had a jury been impanelled, it would have been the duty of the Court, by direction to the jury, or on a special verdict, to have, decided what were those legal effects. And, for this or other reasons, perhaps, to avoid delay, the plaintiff probably chose to have a decision of the Court at once. But the exception does not state that he did submit it.to the Court; neither does it state that he applied for an issue to be made up, and tried by a jury,' as he should have done, to support the present objection. On the contrary, the exception seems to be to the judgment on the merits; and, passing over this, we come to that question.

Cases are supposed, which never happened, but might, with propriety, be put and reasoned upon by way of illustration. Tacts, too, are supposed, on both sides, which may be true, though not stated; and, if so, they are important on the question of interest, which cannot be justly decided on the statement made in the bill of exceptions.. The record of York Court may probably supply the defects. And, therefore, the Court reverses the judgment, and remands the cause to the District Court for further proceedings to be had therein, from the payment into Court, and the motion for discharge.

The entry of the judgment is as follows:

“The Court is of opinion,-.that ’the.facts .in the bill of exceptions are too imperfectly' stated, to enable the Court to decide the question of interest, between the parties, upon just principles; and, therefore, that there is error in the District Court’s having proceeded to judgment upon such state. Therefore, it is considered that the said judgment be reversed, &c., and that the cause be remanded to the said District Court for further proceedings to be had therein, from the payment of the mone3r into Court, and the motion of the appellee to be discharged.”  