1816. Skipwith V. Young, same Act, which applies to another class of cases, the words DECEMBER, in the 24 section are susceptible of a clear and precise meaning. The general expressions in the 14th section cannot control the particular expression in the 2d section; nor can the cases, heretofore decided under the operation of those general expressions, by any inference from them affect the construction of the 2d section, which applies strictly to the case now to be decided. It is enough to say that none of those cases are analogous to the present one. The words of that Section are, "the said Court shall have jurisdiction, if the "matter in controversy be equal in value, exclusive of Costs, "to $100, if the judgment sought to be reversed shall be ren"dered in the District Courts, or $150, if in the General "Court or High Court of Chancery, or be a freehold or fran"chise." If those words were not, however, as clear and precise, as is supposed, the case of Hutchinson v. Kellam has settled their meaning as to similar cases. The exposition given by that case is, that, if damages are claimed, and are to be the only object of the action, they are the subject in controversy; and unless the amount recovered be at least $100, exclusive of Costs, this Court cannot take jurisdiction. In the case now before the Court, the recovery of Damages is the only direct object of the suit, and the amount recovered by the Judgment, exclusive of Costs, is the only criterion, by which to test the jurisdiction of this Court. It is insisted, though, that this case differs from the case of Hutchinson v. Kellam in this, that a franchise is put in issue, and that in another action the Appellant would be estopped to insist on her legal right to erect the Dam, the erection of which is complained of in the Declaration. Whether this difference really exists, or not, it is not now material to inquire it is not now necessary to decide whether the Certificate, or the Case referred to, that the freehold came in question, would be equal to the finding of a Jury to the same effect, and if pleaded would be an estoppel in another action; because that Case was not decided on the ground that the Judgment would not operate as an estoppel in another action, but under the force of the expressions in the 2d section of the Act before recited. The Legislature, certainly, when it became its duty to revive the laws in 1792, had the power to give or to take away ju 1816. Skipwith V. DECEMBER, risdiction. In the exercise of that power it gave some jurisdiction to the County Courts, a higher jurisdiction to the General and District Courts, and a still more exalted jurisdiction to this Court, except in criminal cases; the boundaries of which are designated in the several Acts establishing the several Courts. In the 53d section of the Law establishing the District Courts, which gives to those Courts appellate jurisdiction, there is a marked difference. The expression, in that section, applicable to the present inquiry is," or where the title or bounds of Lands shall be drawn in question." In the section of the Law constituting this Court, before cited, the expression is, "the matter in controversy," &c. It was thought unsafe to confide to the County Courts (for reasons that are very obvious) the final decision of the cases described in the section, though the damages or sum recovered amounted to only one cent; but in relation to cases decided in the General or District Courts, constituted by Judges, elected by the Legislature, there was less of error to be apprehended, and, in allotting to this Court its appellate jurisdiction, the words, "Title or bounds of lands shall come in question," are dropped, and the words, "the matter in controversy," are substituted. The matter in controversy is that for which the suit is brought, and not that which may or may not come in question. In the case relied on in 3d East, Lord Ellenborough says the Judgment is the fruit of the action, and can only follow the particular right claimed, and injury complained of. The injury in the case before the Court, I think, is emphatically the matter in controversy, though other matters may have been put in issue, the finding of which by the Jury may, if pleaded, estop the party in another action. In the case of Long v. Lewis, I referred to a case in Cranch, in which the Supreme Court of the United States, under the influence of similar expressions in the Act of Congress referred to, take jurisdiction under cover of the penalty of the Bond, which was sufficient in amount to give jurisdiction, because I presume the Condition, substantially, was the matter in controversy. That case, it is true, is no authority here, but ought to have weight, considered as the exposition of eminent Judg es of the words in the section of our Act, on which I rely: nor is it material, according to my view of the case, that no other Statutes in pari materia were before them. If this Court 1316. Skipwith V. Young. is to take jurisdiction by consequence; that is, if an Appeal DECEMBER, will lie here from the indirect decisions of the inferior Courts, in which matters may have come in question, though not in controversy, between the parties, according to the foregoing exposition of that expression; few cases will escape the jurisdiction of this Court. In an action of assumpsit, if enough is claimed in the Declaration, and the Judgment is for one cent, it may be said that the sum denied by the Judgment was large enough to give this Court jurisdiction. So, also, in Slander, Assault and Battery, &c. Yet such a pretension has never been urged here, either on the ground that the party was estopped by the Judgment, or on any other. It would be difficult to define the jurisdiction of this Court, if it is to look to consequences out of the Judgment to be revised, under the authority given by the 2d section of the Act before referred to. Whether the supposed Estoppel in the present case will ever be relied on in another action it is impossible to know: it is not now the matter in controversy in the action. I conclude, therefore, both upon the Law, and the authority of the case of Hutchinson v. Kellam, that this Court has no jurisdiction of the case before it, and that the Appeal must be dismissed. Judge ROANE. I consider that this Case, on the point of jurisdiction, has been settled by the Cases of Lymbrick v. Selden, and Hutchinson v. Kellam. I therefore concur with the two last Judges that the Appeal be dismissed. Appeal dismissed, as having been improvidently allowed. Stone against Pointer. STOKELY TURNER, having sued out a fi. fa. against Nathaniel Jones, put it into the hands of Stone, Sheriff of Halifax, who, by Turner's direction, levied it on three slaves; the sale Decided, December 7th, 1816. 1. Under the Act of Assembly concerning of Sheriffs, (Rev. Code, 28 Vol. received the bond of indemnity, is bound to sell the property taken in execution, whether it belongs to the debtor, or not. 2. In such case, there is no implied warranty by the Sheriff of the title to the property sold, nor implied promise to refund the purchase money if the buyer be evicted. 1816. Stone V. Pointer. DECEMBER, which being forbidden, Stone demanded an indemnifying bond, which was given accordingly, and returned to the Clerk's office; whereupon, the Sheriff sold the property to Pointer, "who bid for and bought the same, with full knowledge of all "the circumstances of the title of the party who afterwards "recovered them." The Sheriff immediately paid over the money to Turner. An action of Detinue was brought against Pointer for the slaves, so purchased by him; and they were recovered of him. He then brought an action of Assumpsit against the Sheriff, to recover of him the purchase money, and expenses incurred in defending the title. The Declaration contained two Counts; one stating the circumstances specially, and charging a promise to pay; the other, in the usual form, for money had and received. Plea non assumspsit, and issue. The Jury found a verdict for the plaintiff, subject to the Court's opinion, on a case, which presented the above facts, but did not state any promise by the defendant. The Superior Court of Law gave judgment for the plaintiff; and the defendant appealed to this Court. Leigh, for the Appellant, insisted, that, where there is neither an express, nor implied promise of re-payment, an action for (a) Bull. N. P. money paid and advanced, or had and received, does not lie ;(a) 130; 1 Term and that from the facts, stated in this case, it was not possible Rep. 20. to imply a contract binding the Sheriff to warrant the title, or to refund the purchase money. Bouldin, contra, relied on the general proposition, that a seller of personal property warrants the title. There is no reason for making a difference in this respect, between a Sheriff's sale, and other sales. The act of levying a fi. fa. is a strong declaration, by the Sheriff, that the property belongs to the defendant. The policy of the country requires that the purchaser should consider the Sheriff responsible for the title. There is no privity between the purchaser and the creditor. It is contended that the Sheriff is compelled to pay over the money to the creditor: but the law does not compel him to levy the execution on property, not belonging to the defendant, though shown to him as his property. The Act of As The 1816. Stone V. sembly (a) does not prevent him from putting it upon the par- DECEMBER, ties to try their title, as the Court, in Baird v. Rice, (b) said he might. The right of the creditor to give an indemnifying bond does not compel the Sheriff to levy the execution. Sheriff acts at his peril. If he be not responsible to the pur- (a) Rev. Code, chaser, he may, by a little tampering with a claimant, raise 2d Vol ch. 129, money by execution, out of property, that does not belong (b) 1 Call. 22. to the debtor. A more serious question in this case is, whether the purchaser's having notice of the existing claim shall deprive him of remedy. But in the nature of the case, there was, I contend, an express warranty by the Sheriff. The purchaser's being induced by the Sheriff to purchase, and being injured, is sufficient consideration to raise an assumpsit. The Sheriff, too, is indemnified; so that the creditor, who has improperly received the money, is ultimately responsible to him. Assumpsit for money had and received, is the proper form of action, where the seller affirms the property to be his, and it turns out not to be so. (c) Leigh in reply. I do not controvert the general rule of law, that the seller is responsible for the title; but I find no instance where this rule has been applied to a public officer, who is compelled to sell, and compelled to pay over the money. The Sheriff, when the creditor shews him the property, and offers the bond of indemnity, is bound to levy the execution, and to sell. The bond is given to protect the Sheriff against the right of the person claiming the property, not against the suit of the purchaser to recover his money back. Besides, under the Act of Assembly, the person authorized to sue upon the bond, is not the Sheriff, but the claimant of the property. There would be greater propriety in the purchaser's suing the creditor, (to whom the money has been paid over,) than the Sheriff. December 7th, 1816, Judge ROANE pronounced the following opinion of the Court. This is an action of Assumpsit, brought by the Appellee against the Appellant, as Sheriff of the County of Halifax. The Declaration contains two Counts. The first states, in Pointer. P 160. (c) 1 Esp. N. P. 11. |