seen, was most obviously erroneous. It is true, that under these orders the plaintiffs took steps to prove their side of these accounts, and had special statements made by the commissioner, and took numerous depositions. This of course they were compelled to do; for the court by its opinion had indicated, that if they failed to do this, a decree would be rendered against them for whatever amount the defendant, Taylor, could show he was entitled to on his statement of the account and the evidence offered by him. Surely no inference could be drawn from this conduct of the plaintiffs before the commissioner, that they acquiesced in the propriety of the settlement of these accounts. It is obvious, that the circuit court did not regard these settlements as made by the consent of parties, for in its final decree made October 26, 1877, it says: "It appearing to the court, that the parties plaintiff and the defendant, James Taylor, have mutually entered into a general settlement of their accounts, as appears by the papers in this cause, and have submitted their said accounts to the said commissioner, who has fully and minutely investigated and reported upon the same in pursuance of the directions of this court, the court is of opinion," &c. This shows, that the court well understood, that these settlements were made by its commissioner pursuant to the directions of the court and not in pursuance of any consent of the parties. It regarded these settlements as full and complete, and that all parties had entered into them and been fully heard, and doubtless it was correct in this conclusion; but though this were true, yet the fact, that the parties obeyed fully the order of the court and entered fully into these settlements so ordered by the court and produced all their vouchers and took many depositions, does not in any degree tend to show, that they acquiesced in the propriety of the court's requiring such settlements to be made and in no manner justified the court in entering up a decree based on these settlements, the making of which it ought never to have ordered.

The whole of the decree therefore of October 26, 1877, must be reversed, set aside and annulled, excepting only that portion of it, whereby it was further "adjudged, ordered and decreed, that the injunction heretofore awarded in this cause be, and the same is hereby, dissolved," and that portion of

said decree, whereby it was decreed, "that the defendant, James Taylor, recover against the plaintiffs his costs by him about his suit in this behalf expended." It may be onerous on the plaintiffs to have to pay the large amount of costs incurred in taking depositions and in settling these accounts before the commissioner, but inasmuch as they arose from no fault of the defendant, Taylor, and can be ultimately traced to their institution of this suit, when they had no grounds for so doing, they must pay these costs. The amount, to which these costs have been swollen by the improper taking of these accounts, may be judged by the fact, that the record consists of nearly three hundred manuscript pages, when it ought not to have exceeded fifteen pages. The appellants must however recover of the appellee, James Taylor, their costs expended in this Court, and the bill should be dismissed.

JUDGES JOHNSON AND HAYMOND CONCURRED.

DECREE ANNULLED IN PART.

BILL DISMISSED.

Wheeling.

MARION MACHINE WORKS v. CRAIG.

Decided November 12, 1881.

1. The amount in controversy in an action or suit, so far as the plaintiff is concerned, is the amount really claimed by him, which amount is to be ascertained according to the circumstances of each case from the pleadings, the evidence before the court or jury, or from affidavits.

2. As to the defendant the amount of the decree or judgment is the test in all cases of the amount in controversy.

3. Where it does not appear by the record in an action at law, that pleas were filed and issues joined, the verdict of the jury is erroneous and should be set aside.

4. A bill of exceptions states, that "The defendant offered evidence on the plea of nil debet and other pleas tending to prove and sufficient in the opinion of the court, if true, to destroy the legal validity of the note described in the plaintiff's declaration." This is not sufficient to show, that pleas were filed and issues joined in the case.

5. Agreement of counsel, that pleas were used and treated as filed upon the trial of the cause, and that issues were made up in due form upon said pleas, and that such pleas and issues may be treated as a part of the transcript of the record in the Appellate Court, cannot be regarded in this Court; the record alone must determine what pleas were filed and what issues were joined.

Writ of error and supersedeas to judgments of the circuit court of the county of Preston rendered on the 17th day of April, 1877, and on the 6th day of April, 1880, in an action in said court then pending, wherein the Marion Machine Works was plaintiff, and Charles C. Craig was defendant, allowed upon the petition of said Craig.

Hon. John Brannon, judge of the sixth judicial circuit, rendered the judgments complained of.

The facts of the case sufficiently appear in the opinion of the Court.

Brown & Monroe for plaintiff in error cited the following authorities: 4 Call 580; 2 H. & M. 308; 3 H. & M. 237; Const. Art. VIII, § 27; 3 Munf. 136; 5 Munf. 276; 8 Gratt. 549; 4 Cranch 316.

James Morrow, Jr. for defendant in error cited the following authorities: 3 Dall. 401; 3 Pet. 33; Id. 469; 2 How. 73; 4 Wall. 163; 6 Pet. 349; 1 Wall. 66; Iả. 337; 3 Otto 241; 7 Otto 1; 4 Min. Inst. 857, pt. 1; 27 Gratt. 735; Acts 1872-3, ch. 17, § 22.

PATTON JUDGE, announced the opinion of the Court:

The Marion Machine Works brought an action of debt in the county court of Preston county on the 16th day of March. 1875, against Charles C. Craig to recover from him the amount of a note for the sum of $240.00 with interest from the 11th day of September, 1872. A jury was empanelled in the case and retured a verdict in favor of the plaintiff for $20.00; whereupon the court upon motion in arrest of judg ment "being of opinion, that it has no jurisdiction of this case, it is therefore considered, that the plaintiff take nothing by its suit, and that the defendant recover from the plaintiff his costs here expended." From this judgment the plaintiff took an appeal to the circuit court of Preston county on the

17th day of April, 1877. This appeal was heard in that court, which being of opinion that there was error in the judgment of the county court, reversed the same with costs and retained the cause for further proceedings to be had therein. Subsequently the defendant in the said circuit court filed four pleas, upon which issue was joined; and the cause was on the 25th day of March, 1880, submitted to a jury, who found a verdict for the plaintiff for the sum of $200.00. Upon this verdict the court entered a judgment for that sum with interest thereon from the 3d day of April, 1880, and the costs. To the last trial there was no bill of exceptions, motion for a new trial or any error assigned; but the defendant applied for and obtained a writ of error and supersedeas to this Court.

The ground of error assigned is, that the circuit court erred in awarding a new trial in its court; that its power was limited in reversing the judgment of the county court to entering up such judgment, as the county court ought to have entered.

It is true, that an Appellate Court in case of the reversal of the judgment of the court below can only enter up such judgment, as the court below ought to have entered. The question then is: What judgment ought the county court to have entered up in this case? There was no bill of excep tions, motion for a new trial, or any error assigned, which would affect the merits of the case or show, that the verdict of the jury for the sum of $20.00 was really all, that upon the trial of that case the plaintiff was entitled to recover. If then there was no irregularity or error in the case preceding the verdict, I can see no other judgment, that the county court could have rendered but a judgment in favor of the plaintiff for the sum of $20.00 and costs; and in reversing the judgment of the court, which instead of entering judgment upon that verdict gave judgment against the plaintiff, the circuit court should have entered a judgment for that

sum.

The county court gave judgment for the defendant, upon the ground that it had no jurisdiction of the case. There is nothing upon the record to show a want of jurisdiction in the county court, unless the verdict of the jury being for $20.00

is considered conclusive of what was the amount in controversy, in which case under Article VIII, section 27 of the Constitution, and section 3, chapter 13 of the Acts of 1872-3, page 35, which provides: "The county court shall have original jurisdiction in all actions at law, where the amount in controversy exceeds $20.00," the county court would have had no jurisdiction, and its judgment for the defendant was right, and it should have been affirmed. But is the verdict. of the jury the test of the amount in controversy? Obviously not, so far as the plaintiff in an action is concerned; but it is the test as to the defendant. The very ground of complaint and of appeal in many cases is, that a large sum was due and claimed, but was not allowed in the court below, but a verdict and judgment were rendered for the defendant. In the case of Rymer v. Hawkins, supra, the question of jurisdiction as to the amount in controversy was considered by the court; and Judge Haymond in delivering the opinion of the court says: "If the sum decreed to be paid to a plaintiff in chancery be less than the amount requisite to give jurisdiction to the Court of Appeals, but the matter in controversy in the suit be equal thereto, the court may take jurisdiction of an appeal from that decree by the complainant. Minor v. Goodall, 3 Call 393. This is not true of the defendant in any case, where judgment or decree has been rendered against him for less than $100.00 exclusive of costs, no matter what the amount claimed may have been, for in such a case the controversy for the requisite amount is not continued in the Court of Appeals."

In the case of Gage v. Crockett, 27 Gratt. 736, Judge Staples says: "According to the decisions of the Supreme Court of the United States in order to determine" the matter in controversy "recurrence must be had to the subject, for which the suit is brought, and on which issue is joined. Where the plaintiff sues for money and claims in his declaration more than $2,000.00, but by the ruling of the court obtains a judgment for less, he is entitled, to an appeal because as to him the matter in controversy is the sum claimed, and upon a new trial he may obtain a recovery for that sum or more."

In the case of Scott v. Lunt's adm'r., 6 Pet, 349, it was held, that where "the plaintiff claimed in his declaratlon the sum of