The verdict or judgment does not ascertain the value of the
matter in dispute between the parties. To determine this,
recurrence must be had to the original controversy -- to the matter
in dispute when the action was instituted. The descriptive words of
the statute regulating the jurisdiction of the Supreme Court in
cases of writs of error and appeals point emphatically to this
criterion, and in common understanding the thing demanded, as in
the case before the Court, the penalty of a bond, and not the thing
found, constitutes the matter in dispute between the parties. The
nature of the case must guide the judgment of the Court, and
whenever the law makes a rule, the rule must be obeyed.
On the return of the record, it appeared that the district judge
had endorsed the following fiat on the petition and assignment of
errors, presented by the plaintiff in error:
"Let a writ of error and supersedeas issue agreeably to the
prayer of the petition on the petitioner's entering into bond with
security in the penalty of $3,600, conditioned as usual in such
case. Cyrus Griffin."
A writ of error accordingly issued, but it would seem that only
a copy of the writ was transmitted with the record (to which the
seal of the circuit court was affixed, though the writ itself was
not said to be under the seal of the court), and the copy was
signed by "William Marshall, Clerk," who added in the margin the
following memorandum in his own handwriting, not subscribed by the
judge: "Allowed by Cyrus Griffin, Esq., Judge of the Middle Circuit
in the Virginia District." The original citation to the defendant
in error was likewise, omitted, and only a copy accompanied the
record, with an affidavit subjoined that the deponent, "did on 24
Sept., 1796, deliver to Thomas Daniel, within named, a citation
whereof the above is a true copy." There was no certificate of the
judge or clerk of the court that the record was returned in
obedience to the writ, though at the end of the paper, purporting
to be the record, the clerk subjoined the following minute: "Copy.
Teste, William Marshall, Clerk."
Page 3 U. S. 402
In February term, 1797, E. Tilghman, for the defendant in error,
objected to the return of the writ that it was not said to be
issued under the seal of the court; that the seal affixed to the
record was not stated to have been affixed by order of the court;
that the original writ was not transmitted; that the paper
purporting to be a citation, being a mere copy, did not appear from
the signature or any other proof to have been signed by the judge,
which the act of Congress expressly requires; 1 Vol., s. 22, p. 62,
and that there was not even any certificate of the clerk of the
court that the entire record had been annexed and transmitted with
the copy of the writ of error.
Lee (the Attorney General) and Ingersoll answered that the
district judge had in effect allowed the writ of error by directing
it to issue when security was given; that the seal being actually
affixed, it was unnecessary to state that the writ was under the
seal of the court; that the seal implies and authenticates the
fact, that the citation had been signed, as well as the writ of
error allowed, by the judge, and that the clerk having asserted
that the proceedings transmitted were a copy, it must be presumed
to be an entire copy of the record unless diminution is
alleged.
But the court was clearly of opinion that the verification of
the record was defective and that they could not, consistently with
the Judicial Act, dispense with a return of the original citation
subscribed by the judge himself.
The cause was then, continued upon an agreement between the
counsel that the defendant in error might either argue it upon the
record in its present state or allege in diminution of the record
and issue a certiorari. The latter mode was adopted, and the
diminution alleged was that
"There is not certified the judgment of the said circuit court,
rendered on inspection of the record of a district court of the
Commonwealth of Virginia held in the Town of Dumfries awarding to
the said Thomas Daniel his costs against John Hollingsworth,
William Merle, and William Miller on the dismission of a certain
attachment by them against him sued forth, which record of the said
district court is stated in the declaration of the said Thomas
Daniel filed in the said circuit court, and is again stated in the
replication of the said Thomas Daniel in the said circuit court
with an averment that he was ready to verify the same, by a
transcript thereof, certified under the hand of a proper officer,
to which said replication the said William Wilson in the said
circuit court rejoined that there was no such record."
The clerk of the circuit court returned the certiorari with a
certificate endorsed
"That there is not remaining on the rolls and records the
judgment of the
Page 3 U. S. 403
said circuit court on the inspection of the transcript of the
record of the District Court of Dumfries awarding the said Thomas
Daniel his costs against John Hollingsworth and others on the
dismission of a certain attachment against him by them prosecuted,
nor did the said circuit court ever enter up their judgment
thereon."
The circumstances, which now became material on the record were
as follow:
It appeared by the declaration that an action of debt was
brought in the circuit court by Thomas Daniel, a British subject,
against William Wilson and others upon a bond dated 11 October,
1791, for the penal sum of $60,000; that the bond had been taken as
an indemnity from the defendants below in an attachment brought by
them against the plaintiff in a state court, and that the
attachment was dismissed by the court and the plaintiffs adjudged
to pay the costs. The present plaintiff laid his damages in
consequence of the attachment at $20,000.
The sole defendant below, William Wilson (the other defendants
being dead or not being arrested on the process) pleaded 1.
performance of the condition of the Bond; 2. that no costs had been
awarded to the plaintiff below in the attachment suit, nor had any
damages been recovered by him against the parties, for suing out
the attachment.
The plaintiff below replied 1. that the defendant had not
performed the condition of the Bond; 2. that the court did award
costs in the attachment suit to the plaintiff below, which he was
ready to verify by a transcript of the record; and 3. the plaintiff
demurred to so much of the defendant's plea as respects
Damages.
The defendant below rejoined, 1. as to the judgment for costs in
the attachment suit
nul tiel record, and 2. as to the
replication upon the question of damages, joinder in demurrer.
The Record then proceeds:
"The parties by their attorneys, being fully heard, it seems to
the court that the said second plea of the defendant and the matter
therein contained are not sufficient in law to bar the plaintiff
from having and maintaining his action against the said defendant.
Therefore it is considered that judgment be entered for the
plaintiff on his demurrer to that plea."
"And at another day, to-wit, etc., came the partied, etc. And
thereupon also came a jury, etc. And now, etc., the jury aforesaid
returned into court, and brought in their verdict in these words:
'We of the jury find for the plaintiff the debt in the declaration
mentioned to be discharged by the payment of $1,800 damages.'"
"Therefore it is considered by the court that the plaintiff
recover against the defendant �60,000 of the value of
$200,000, his debt aforesaid, and his costs by him about his suit
in this behalf expended. And the said Defendant in mercy, etc. But
the judgment is to be discharged by the payment of the said $1,800
and the costs."
At the present term as well as in February Term, 1797, two
questions were made and argued, independent of the objection to the
form of issuing and returning the writ of error:
1. Whether the judgment below was so defective that a writ of
error would not lie on it inasmuch as no judgment was given upon
the plea of
nul tiel record.
2. Whether the Supreme Court had jurisdiction of the cause,
inasmuch as the real and operative judgment of the circuit court
was only for $1,800, and the Judicial Act provides that there shall
be no removal of a civil action from the circuit court into the
Supreme Court unless the matter in dispute exceeds the sum of value
of $2,000 Dollars. On the first point no opinion was given by the
court at the former argument, but on the second point, CHASE,
PATERSON, and CUSHING, JUSTICES, concurred in considering the
judgment as a judgment at common law, for the penalty of the bond,
and therefore that the Court had jurisdiction. WILSON, JUSTICE,
dissented, and IREDELL, JUSTICE (who had presided in the circuit
court) declined taking a part in the decision. The second point
was, however, reargued at the instance of E. Tilghman, who was
answered by Lee and Ingersoll, and the opinion of the Court was
given to the following effect.
Page 3 U. S. 404
MR. CHIEF JUSTICE ELLSWORTH.
There have been two exceptions taken to the record in the
present case:
1. That the judgment of the inferior court is so defective that
a writ of error will not lie upon it. It is evident, however, that
the judgment is not merely interlocutory, but is in its nature
final and goes to the whole merits of the case. Though imperfect
and informal, it is a judgment on which an execution could issue,
and as the defendant below might be thus injured by it, we are
unanimously of opinion that he is entitled to a writ of error.
2. The second exception is that the judgment is not for a sum of
sufficient magnitude to give jurisdiction to this Court. On this
exception there exists a diversity of sentiment, but it is the
prevailing opinion that we are not to regard the verdict or
judgment as the rule for ascertaining the value of the matter in
dispute between the parties. By the judicial statute it is provided
that certain decisions of the circuit courts in certain
Page 3 U. S. 405
cases may be reversed on a writ of error in the Supreme Court,
but it is declared that the matter in dispute must exceed the sum
or value of $2,000. To ascertain, then, the matter in dispute, we
must recur to the foundation of the original controversy to the
matter in dispute when the action was instituted. The descriptive
words of the law point emphatically to this criterion, and in
common understanding the thing demanded (as in the present instance
the penalty of a bond), and not the thing found, constitutes the
matter in dispute between the parties.
The construction which is thus given not only comports with
every word in the law, but enables us to avoid an inconvenience
which would otherwise affect the impartial administration of
justice. For if the sum or value found by a verdict was considered
as the rule to ascertain the magnitude of the matter in dispute,
then whenever 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, JUSTICE.
I 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
Page 3 U. S. 406
$1,800, 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 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, JUSTICE.
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
amount of the matter in dispute, it is not, in my
Page 3 U. S. 407
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 uniform 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 proportionally 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
find that the action was brought on a bond with a condition for
performing two acts, and the nonperformance 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
& 9 W. III, 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 nonperformance 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.
MR. CHIEF JUSTICE ELLSWORTH.
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 $100, 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
Page 3 U. S. 408
demand, and presents the only criterion to which, 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.
ELLSWORTH, CHIEF JUSTICE. 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, from
the nature of the action, we can resort for settling the question
of jurisdiction.
