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Wilson 2. Daniel. 3 D. ever less than $2,000 was found, a defendant could have no relief against the most erroneous and injurious judgment, though the plaintiff would have a right to a removal and revision of the cause; his demand, which is alone to govern him, being for more than $2,000. It is not to be presumed that the legislature intended to give any party such an advantage over his antagonist; and it ought to be avoided, as it may be avoided, by the fair and reasonable interpretation which has been pronounced.

IREDELL, J. 1 differ from the opinion which is entertained by a majority of the court on the second exception; though, if the merits of the cause had been involved, I should have declined expressing my sentiments. As, however, the question is a general question of construction, and is of great importance, I think it a duty, briefly to assign the reasons of my dissent.

The true motive for introducing the provision, which is under consideration, into the judicial act, is evident. When the legislature allowed a writ of error to the supreme court, it was considered, that the court was held permanently at the seat of the national government, remote from many parts of the Union; and that it would be inconvenient and oppressive to bring suitors hither for objects of small importance. Hence it was provided, that unless the matter in dispute exceeded the sum, or value, of $2,000, a writ of error should not be issued. But the matter in dispute here meant, is the matter in dispute on the writ of error. In the original suit, indeed, I agree, that the demand of the party furnishes the rule of valuation ; but the writ of error is of the nature of a new suit; and whatever may have been formerly the question on the merits, if we think the plaintiff is not entitled to recover more than * $1,800, [ * 406 ] the court has not jurisdiction of a cause of such value, and cannot, of course, pronounce a judgment in it.

At common law, indeed, the penalty of the bond was alone regarded ; and though, in a case like the present, only one shilling damages should be given by the jury, the judgment at common law would be rendered for the whole penalty; so that the suffering party would be obliged to resort to a court of equity for relief. The legislature, however, has deemed it expedient to guard against the mischief, and, at the same time, to prevent a circuity of action, by empowering the common law courts to render judgment, in causes brought to recover the forfeiture annexed to any articles of agreement, covenant, bond, or other specialty, for so much as is due, according to equity. From the time of passing the act, the plaintiff can recover no more under the penalty of the bond, than the damages

Wilson v. Daniel. 3 D.

assessed, or adjudged; and if a court of common law is thus empowered to regard the matter in dispute, independent of the strict common law forfeiture of the penalty, this ought to be deemed, to every legal intent, the proper mode of settling and ascertaining the value, or amount, to which the words of the law shall be applied, in the case of a writ of error.

The objection which seemed, principally, to operate against this doctrine, in the mind of the court, as well as of the bar, was its tendency to entitle one party to a writ of error, and to exclude the other; but the objection cannot arise in this case, as both parties would be alike estopped by the insufficiency of the sum. A new law, however, of a scope so extensive, cannot be expected to provide for every possible case; and it is no reason why a plain provision should not operate, that another provision may be necessary to avoid an inconvenience, or to establish equality between the parties.

I must, therefore, repeat my opinion, that although the plaintiff's demand is to be regarded in the original action, yet that the sum actually rendered by the judgment is to furnish the rule for fixing the matter in dispute upon a writ of error. And the sum actually rendered being less than $2,000, the court cannot, I think, exercise a jurisdiction in the present cause.

Chase, J. On the first exception to this record, there is no diversity of opinion; and I also agree with the majority of the court in the decision upon the second exception, though for reasons different from those that have been assigned.

This is a question of jurisdiction; and the law vests the jurisdiction, if the matter in dispute between the parties exceeds the sum,

or value, of $2,000. Whenever the objection arises on the [ * 407 ] amount of the matter in dispute, it is not, in my * opinion,

to be settled here, by what appears on the writ of error, but it is to be settled in the inferior court, according to the circumstances appearing there, in each particular case. There is no common, uni. form rule that can be applied to the subject. I do not think that the demand of the plaintiff ought to be made the sole criterion; for then every plaintiff might entitle himself, in every case, to a writ of error, by laying his damages proportionably high ; and I think that the amount rendered by the judgment would be found, in the far greater number of cases, to be the true rule. It must be acknowledged, however, that in actions of tort, or trespass, from the nature of the suits, the damages laid in the declaration, afford the only practicable test of the value of the controversy.

Inquiring, therefore, what was in dispute in the present case, we

Wilson v. Daniel. 3 D.

find that the action was brought on a bond, with a condition for performing two acts, and the non-performance of both acts constitutes the breach assigned. The record is distorted by great irregularities; but every part of the pleadings, verdict, and judgment, that is not conformable to the common law, I reject as not belonging to the case, which is neither founded on the statute of 8 and 9 W.3, c. 10, nor on the act of the assembly of Virginia. Considered, therefore, as an action at common law, the penalty is forfeited on the non-performance of either of the acts which are the subject of the condition. The judgment of the court is rendered for that penalty; and though it is stated, that the judgment shall be discharged on payment of a smaller sum, such a stipulation is inconsistent with the nature of a common law judgment; it must be treated as mere surplusage; and in this view of the case, I am of opinion that the court has jurisdiction.

ELLSWORTH, C. J. I will repeat and explain one expression, which was used in delivering the opinion of the court, and which seems to have been misunderstood.

It was not intended to say, that on every such question of jurisdiction, the demand of the plaintiff is alone to be regarded; but that the value of the thing put in demand furnished the rule. The nature of the case must certainly guide the judgment of the court; and whenever the law makes a rule, that rule must be pursued. Thus, in an action of debt on a bond for 1001., the principal and interest are put in demand, and the plaintiff can recover no more, though he may lay his damages at 10,000). The form of the action, therefore, gives in that case the legal rule. But in an action of trespass, or assault and battery, where the law prescribes no limitation as to the amount to be recovered, and the plaintiff has a right to estimate his damages at any sum, the damage stated in the declaration is the thing put in * demand, and presents the only criterion, to which, [ * 408 ] from the nature of the action, we can resort in settling the question of jurisdiction.

The proposition then is simply this: Where the law gives no rule, the demand of the plaintiff must furnish one; but where the law gives the rule, the legal cause of action, and not the plaintiff's demand, must be regarded.

The objections overruled, and judgment affirmed.1

3 P. 33; 11 H. 522.

Besides the exceptions above stated, several errors were assigned, which had been argued at a former term, in the absence of the chief justice. The court, after decid

VOL. I.

25

Ex parte Hallowell. 3 D.

[ * 409 ]

*FEBRUARY TERM, 1799.

On the opening of the court a commission, dated the 20th of December, 1798, was read, appointing Bushrod Washington, one of the associate judges of the supreme court of the United States, and he was qualified according to law."

DEWHURST v. COULTHARD.

3 D. 409.

This court will not take cognizance of any suit, or controversy not brought before them by

regular process of law.

An action was pending in the circuit court for the district of New York, and E. Tilghman presented to the court an agreed statement of facts, and prayed the opinion of the court thereon. The par. ties had agreed that judgment should be entered in the circuit court, in conformity with that opinion.

1* 410) * The Court, on the ensuing morning, returned the state

of the case, declaring that they could not take cognizance of any suit or controversy which was not brought before them by the regular process of the law.

Motion refused.

Ex parte HALLOWELL.

3 D. 411.

MR. HALLOWELL had been admitted, originally, as an attor[* 411 ] ney of this court; but now Lewis moved, that his * name

should be taken from the roll of attorneys, and placed on the list of counsellors.

The Court directed the transfer to be made ; and Mr. Hallowell was qualified, de novo, as counsellor.

ing the question of jurisdiction, called on the counsel to proceed in the argument on those errors; but E. Tilghman observed, that the court had been so evidently against him, that he would not press the subject further.

The appointment of Mr. Washington was in the room of Wilson, J., deceased. Chase, J., was prevented by indisposition from attending the court during the whole of the present term.

Fowler v. Lindsey. Fowler v. Miller. 3 D.

FOWLER et al. v. LINDSEY et al. Fowler et al. v. MILLER.

3 D. 411.

The fact that the land demanded in a suit was granted by and is claimed under a State, does not make the State a party to the suit, within the meaning of the second section of the

third article of the constitution. Nor does an issue upon the point whether the land demanded is within the limits of the State. A certiorari does not issue to remove a cause, on account of want of jurisdiction in the court

in which it is pending.

A RULE had been originally obtained in these actions, which were depending in the circuit court for the district of Connecticut, at the instance of the defendants, requiring the plaintiff to show cause why a venire should not be awarded to summon a jury from some district other than that of Connecticut or New York; but it was changed by consent, into a rule to show cause why the actions should not be removed by certiorari into the supreme court, as exclusively belonging to that jurisdiction. On showing cause, it appeared that suits, in the nature of ejectments, had been instituted in the circuit court for the district of Connecticut, to recover a tract of land, being part of the Connecticut Gore, which that State had granted to Andrew Ward and Jeremiah Hasley, and by whom it had been conveyed to the plaintiffs. The defendants pleaded that they were inhabitants of the State of New York; that the premises for which the suits were brought lay in the county of Steuben, in the State of New York ; and that the circuit court for the district of New York, or the courts of the State, and no other court, could take cognizance of the actions. The plaintiffs replied that the premises lay in the State of Connecticut; and issue being joined, a venire was awarded. On the return, however, the defendants challenged the array, because the marshal of the district of Connecticut, a resident and citizen of that State, had arrayed the jury by his deputy, who was also a citizen of Connecticut, and interested as a purchaser or claimant in the Connecticut Gore, under the same title as the plaintiffs. The plaintiffs prayed oyer of the record and return, averred that the deputy marshal was not interested in the question in issue, and demurred to the challenge for being double, and contrary to the record, which does not show that the jury was returned by the deputy marshal. The defendants joined in demurrer. The court overruled the challenge, as it respected the general interest of the marshal and his deputy, owing to their being citizens of Connecticut; but allowed it, and quashed the array, on account of the particular *interest of the de- 1 * 412 ]

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