
    Spotswood v. Pendleton.
    [April Term, 1800.]
    Assumpsit — Promise—Dismissal of Appeal. — If the appellant promise the appellee, that if the latter will agree to have the appeal dismissed the appellant will pay him the full amount of the debt, damages and costs then due upon the appeal, and ..the appellee consents thereto and the appeal is dismissed agreed, the appellee may maintain assump-sit on this promise.
    Same — Same—Same—Damages. — The Court may leave the question of damages in such a case to the jury.
    In an action on the case, brought by Pen-dleton against Spotswood in the District Court, the declaration was as follows, “Benjamin Pendleton complains of Alexander Spotswood in custody &c. of this, to wit, that whereas, first day of October 1790 there was an appeal from a judgment of the County Court of Spotsylvania, depending in the District Court holden at Fred-ericksburg, in which appeal the said Alexander Spotswood was. appellant, and the said Benjamin was appellee, when and where it was agreed by said Alexander Spotswood that if the said Benjamin Pen-dleton would agree to have the said appeal dismissed, that he the said Alexander would pay him the full amount of the debt, damages and costs then due on said appeal, and the said Benjamin avers that he did agree to have the said appeal dismissed and it was in consequence dismissed, and he doth moreover aver that the amount of the debt, damages *and costs then due upon the appeal was £222. 5. 7 Of which the said defendant had notice, by reason of all which premises the said defendant became liable to pay to the said plaintiff the said £222. 5. 7%- > and being so liable he afterwards, to wit, on the day and year last mentioned, at the county aforesaid, in consideration thereof, undertook and faithfully promised that he would pay the said £222. 5. 7%. to the said Benjamin whenever he should be afterwards thereto required. Nevertheless the said Alexander, altho’ often required hath not yet paid the said £222. 5. 7J¿. to the • said Benjamin, but hitherto to pa3>- the same hath refused and still doth refuse to the damage of the said plaintiff of sixty pounds and therefore he brings suit &c. ” Plea non assumpsit; and issue. Upon the trial of the cause the defendant filed a bill of exceptions which stated that, ‘ ‘The defendant moved the court to instruct the jury, that the 10 per cent before the appeal was dismissed was not due, and was not included in the contract stated in the declaration. It appearing also, from the record, that the appeal mentioned in the declaration was dismissed in the year 1791; but the court, being divided, did not instruct the jury, for the following reasons, because it depended upon the evidence, what the parties agreed was due, at the time the contract was made for the dismission, and because the jury were the judges of the sajd contract, which was verbal.”
    There is a copy of the order for dismissing the appeal, copied by the clerk into the record, which is in these words, “Fred-ericksburg District Court April 30th 1791. Alexander Spotswood appellant against Benjamin Pendleton appellee, upon an appeal. This suit being agreed between the parties, it is dismissed.”
    There was a verdict and judgment for the plaintiff; and the defendant appealed to this court.
    *Wickham for the appellant.
    The judgment is not described with sufficient precision, as it is the foundation and git of the action. But if it was, still the action could not be maintained; because it is assumpsit for matter of record. Which will not lie, as the party has a higher remedy; Consequently if it were true that it lay for the damages, it would not for the judgment itself. Besides the Court left the question of damages to the jury improperly: 1. Because the evidence did not correspond with the declaration; which ought to have stated the amount of the damages: 2. Because the amount of the damages was a question of law; and therefore should have been decided by the Court.
    Randolph contra.
    The justice of the case has certainly been attained, and therefore every thing is to be presumed in favour of the judgment. The assumpsit was not in consideration of the judgment, but of the dismission; and the judgment was gone by the appeal, having been dismissed agreed. The description is particular enough; because it is sufficient notice to the defendant. The evidence does correspond with the declaration; for' it is averred, that the defendant promised to pay the amount of the damages, in consideration that the plaintiff would suffer a dis-mission of the appeal.
    There was nothing improper in leaving the question, concerning the damages, to the jury; because it was a matter of calculation, more than of law.
    Wickham i-n reply. It is not true that the former judgment was gone by the dismission ; for that only means that the parties relinquished the question concerning the errors, but the judgment remained.
    Cur. adv. vult.
    
      
      See monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
   LYONS, Judge.

Delivered the resolution of the Court, that there was no error in the judgment. *That the consideration of the assumpsit was sufficient, and well enough laid. That the evidence was proper upon the declaration. And that there was no impropriety in leaving the question concerning the damages to the jury.

Judgment affirmed.  