
    Payne v. Ellzey.
    October Term, 1795.
    Damages — Verdict in Excess of Ad Damnum. — In debt upon a bond with a collateral condition, the jury may assess damages beyond those laid in the declaration, if the penalty be sufficient to cover them.
    This was an action of debt brought in the County Court of Fairfax by Payne against Ellzey upon a prison bounds bond, given to the sheriff by Ellzey, as surety for Gardner, in the penalty of ¿24: 8: 3, and 28041bs of tobacco. The damages laid were ¿10.
    On oyer of the bond and condition, the defendant pleaded “that he was not guilty of the premises laid to his charge.” Replication, protesting that the defendant is guilty, and assigns as a breach of the condition of the bond, “that the said Gardner did not constantly keep himself within the bounds of the jail until he paid the debt and costs in the condition mentioned, according *to the force and effect thereof. ’ ’ Rejoinder, that the said Gardner is not guilty of breaking the bounds of the said jail without paying the said debt and costs according to the form and effect of the condition of the said bond and tenders an issue which is joined. Verdict “that the defendant is guilty, for that the said Gardner did not constantly keep within the bounds of the jail till he paid the debt and costs in the said condition mentioned,” and assess the plaintiff’s damages to ¿34:10:8
    A motion was made in arrest of judgment, because the damages assessed exceeded those laid in the declaration. The errors being disallowed, judgment was entered for the penalty of the bond, to be discharged by the payment of the damages and costs, from which the defendant appealed to the District Court of Dumfries where the judgment was reversed and the verdict set aside, from which decision Payne appealed.
    Washington for the appellant.
    The principal error assigned as cause for arresting the judgment is, that the jury gave damages exceeding those laid in the declaration. If this had been an action sounding altogether in damages, the objection would have been a substantial one, unless a release of the excess had been entered upon the record. But this is an action to recover the penalty of the bond, and by the act of 1748, the judgment is to be entered for the penaltj’. But there being, a collateral condition, if the damages assessed by the jury be less than the penalty, the defendant may by paying the former, be discharged from the latter. The demand in this case was for the penalty, and the verdict is for a smaller sum.
    Dee for the appellee.
    This is an action truly sounding- in damages. The appellant says, that he has sustained damages in consequence of Gardner’s having broken the prison bounds to the amount of ^’10. As he has himself ascertained the value of the injury, the jury have no power to give him more. I cannot discover that this case is distinguishable upon principle, from an action on the case brought to recover damages.
    
      
       Damages — Verdict In Excess of Ad Damnum. — See foot-notes to Johnston v. Meriwether, 3 Call 523; Hook v. Turnbull, 6 Call 85.
      The principal case is cited with approval in Peerce v. Athey, 4 W. Va. 28; Winslow v. Com., 2 Hen. & M. 465; Lewis v. Long, 3 Munf. 156.
      See Cloud v. Campbell, 4 Munf. 214.
    
   ROANE, J.

By the act of 1748, (Body of laws p. 181,) the judgment in cases like the present is to be for the penalty, tho’ it may be discharged by the sum assessed by the jury. If this construction of the act wants any support, it may be derived from the case of Collins v. Collins 2 Burr. 824, upon the construction of the stat. 8 and 9 W. 3. ch. 11. which is precisely similar to our act as to the point in question. The penalty therefore, is that for which the plaintiff sues, and any sum below it is within the sum declared for. One reason why a judgment *is erroneous, which is entered for more damages than the plaintiff has declared for, is, that he best knows the extent of the injury of which he complains, and consequently can best estimate the measure of the compensation.

This reason does not hold in the present case, because the sum recovered is less than the penalty of the bond. The judgment I think ought to be reversed.

CARRINGTON, J.

This is a plain case, and I entirely concur in the opinion which has been delivered.

DYONS, J.

There are two reásons assigned in arrest of judgment. The first is, that the proceedings are irregular. This is true; the proper plea was, ‘ ‘conditions performed,” but the issue is substantially the same and is cured by the verdict.

The second was noticed at the bar. I have always been of opinion, that in actions upon bonds for the payment of money, the laying of damages was unnecessary, for the act of Assembly declares, that the penalty may be discharged by the payment of the principle, interest and costs, saying nothing of the damages. The point was so determined in this court in a question which respected the jurisdiction of a Corporation Court.

The demand of the plaintiff in actions upon bonds of this sort, is for the penaltj-; the parties have agreed to make that the standard of the damages, and the judgment is entered for it, tho’ by the law the obli-gee is compelled to receive less than the damages thus agreed upon, if less be assessed by the jury. The breach laid is for the non-payment of the penalty, and not of the damages really sustained. The plaintiff therefore may recover less, tho’ not more than the penalty

I am authorised bv the President to say, that he entirely concurs in this opinion.

The judgment of the District Court must be reversed, and that of the County Court affirmed.  