2.

"the debt in the declaration mentioned, and one cent dama- THOMPSON "ges, by the jurors aforefaid, in form aforefaid affeffed, "and alfo his cofts by him about his fuit in this behalf JAMESON. "expended, and the said defendant in mercy, &c. But "this judgment (damages and cofts excepted,) is to be "discharged by the payment of 2544 dollars and 49 "cents."

To reverse this judgment, the defendant below fued out the present writ of error.

Swann, for plaintiff in error.

E. J. Lee, and Key for defendant.
Swann.

ift. The declaration does not fhew any obligation on Thompson, upon which this or any other action will lay.

2d. If it does, it is not such an one as will support an action of debt.

3d. If an action of debt will lay, ftill this action will not, because it is brought for part of the debt only.

4th. The action is brought for fterling money, whereas it ought to have been brought for Virginia currency.

5th. If properly brought for fterling money, the court below ought to have rated the exchange.

ift. The record fimply states, that "the faid Jonah "(Thompson) in open court became fecurity;" but does not ftate how; whether by bond, by parol, or by matter of record. It is only a record declaration that he became fecurity.

2d. The record ftates, that he became fecurity that Hadfield would perform the decree of the court, if against him; and not that Thompson would pay the debt, or that he undertook to pay any fum of money whatever. Nor does it state that he became bound in any particular fum. It does not state that he undertook to pay the debt

THOMPSON if Hadfield did not. There is nothing to fupport an action v. of debt. It is, if any thing, a collateral undertaking; and JAMESON. if any action will lay, it must be covenant. To support

an action of debt, there must be a direct obligation on the part of the defendant, moving to the plaintiff, to pay a Bertain fum, or a fum which may be rendered certain.

3d. The declaration is for £.860. 12. 1. fterling of the value of £. 1032. 14. 6. Virginia currency, equal to 3442 dollars and 41 cents, United States currency. This is not the whole debt due by the decree. You must fue for the whole debt, or if you fue for a part, you must state the refidue to be fatisfied.

The decree of the court of Fairfax was rendered on the 19th of November, 1799, and was, that the complainants recover against Hadfield the fum of £.860. 12. 1. fterling, (to be fettled in Virginia currency at the rate of 20 per cent. exchange) together with intereft on the fame at the rate of 5 per cent. per annum from the 8th of March, 1795, until the day of pronouncing that decree, (19th November,) 1799, and alfo his cofts by him expended in the prosecution of his bill. The debt was compofed of the principal fum reduced to Virginia currency at 20 per cent. exchange, and intereft thereon at 5 per cent. per annum, calculated from 8th of March, 1795, to the 19th of November 1799, and cofts. But the declaration is only for the principal. It is therefore only for a part of the debt, and does not state the refidue to be fatisfied. A debt cannot be divided, and the reafon of the law is, that a multiplicity of actions may be prevented. 3 Modern 41. Marsh v. Cutler. Cro. Iac. 498, 499, Pemberton v. Shetton.

4th. The debt was originally due from Hadfield in fterling money, but the debt due by the decree is a current money debt. The decree has changed it from fterling to currency.

It is an exprefs command that it fhall be fettled in current money, at a certain rate. It is no longer a sterling debt. If an action of debt will lay for it, it must be laid as a debt due in Virginia currency.

5th. But if it is a sterling debt, then the court below, ought, under the act of the Virginia assembly (revised code,

V.

121. ch. 77. § 6.) to have fixed the rate of exchange. THOMPSON The verdict ought to have been simply for the fterling debt and damages; but the jury have gone on and faid JAMESON. that the debt should be discharged by the payment of 2544 dollars and 49 cents; and the court have rendered judgment in the same manner, without fixing the rate of exchange.

6th. The declaration ftates the decree to have been made on the 19th of November, but does not say in what year. This omiffion was fatal on the plea of nul tiel record.

E. J. Lee, for defendant in error.

ift. The record ftates the obligation of Thompson in the very words of the act of Affembly. It is the highest obligation which he could have entered into. It is an acknowledgment on record, and is stronger than his bond. Its meaning is evident from the intention of the act of Affembly; and is fimply this, that Hadfield should pay the money decreed to be due, and if he did not, that Thompson would pay it for him.

2d. To the objection that this is not fuch an obligation as will fupport an action of debt, the answer is, that it is in the nature of a recognizance in chancery, and an action of debt will lie on fuch a recognizance, 1 Efp. N. P. 216.

3d. The cafe in 3. Mod. does not apply to the prefent. There the action was upon a judgment. Here it is upon the obligation or recognizance of Thompson. We have declared for as much as was due from Hadfield and no more. The obligation of Thompson was to pay what Hadfield should fail to pay. Our action is for this. The record of Fairfax court, which is made part of the declaration, shows how the refidue was discharged.

4th. The court of Fairfax did not convert the debt into Virginia currency. They only fixed the principles on which the exchange should be made. The decree is for fterling to be discharged in current money at a certain rate of exchange.

THOMPSON

5th. It is the province of the jury and not of the court to fix the value of fterling money. 1. Wafb. 373. 378. JAMESON. Barnet and al. v. Watson and al.

6th Although the year of the decree is not stated in the declaration, yet enough is stated to render it certain.

Key was to have argued on the fame fide, but on examination of the record of the decree in Fairfax, and comparing it with the declaration; and finding the decree to be for £.860. 12. 1. fterling with intereft from a certain day to the day of paffing the decree, and the declaration being only for the principal, he confidered the variance as fatal. He had not before noticed accurately the words of the decree, but had fuppofed the intereft did not ftop at any certain day, but was, by the decree, to run till the time of payment. He did not understand that this point had been made in the court below, and therefore had not before examined the record with a view to it.

The court gave no opinion upon the other points, but confidering this variance as fatal,

Reversed the judgment.

The chief justice obferved, that there was no clause in the declaration ftating that Thompfon undertook to pay if Hadfield did not, and therefore an action of debt would not lay.

MANDEVILLE & AL.

v.

RIDDLE

& AL.

In Virginia, an indorfee of a

promiffory note

MANDEVILLE AND JAMESON

บ.

JOSEPH RIDDLE AND CO.

ERROR from the circuit court of the diftrict

can not main of Columbia fitting at Alexandria, in an action on the tain an action cafe brought by the defendant in error for money had and against a remote received, which was the only count in the declaration; want of privity, and to which the defendant pleaded the general iffue.

indorfer, for

RIDDLE & AL.

The evidence offered and admitted to fupport the de- MANDSclaration was a promiffory note made by Vincent Gray, VILLE & AL. dated at Alexandria on the 2d of March 1798, by which he promised to pay fixty days after date to the order of Mandeville and Jamefon 1500 dollars for value received, negotiable at the bank of Alexandaia. This note was indorfed by Mandeville and Jamefon to James McClenachan, and by him to Jofeph Riddle and co. the defendants in error. The protest of a notary public made on the fifth May 1798, attefting that he had on that day demanded payment of the note of the maker, who refufed, and of Mandeville and Jameson the first indorfers, who also refused, and that James McClenachan the other indorfer did not dwell in his district. The record of a suit on the fame note brought by Jofeph Riddle and co. on the 14th of June 1798, againft Vincent Gray, the maker, profecuted to final judgment and execution, upon which execution he was committed to jail and took the oath of an infolvent debtor and was discharged, on the 6th of Febru ary 1799.

The present action was commenced in July 1801.

A bill of exceptions was taken by the defendants below, ftating these facts, and that they prayed the opinion of the court,

Ift. Whether, this action could be fuftained by the prefent plaintiffs against the prefent defendants, there be "ing an intermediate indorfer between them," and,

2dly. "Whether if the faid action is fuftainable, the "faid evidence is admiffible upon a fingle count for money “had and received;" and that the opinion of the court below was that the action might be sustained, notwithstanding the intermediate indorfer; and that the evidence was admiffible upon the fingle count for money had and received. Verdict and judgment for the plaintiffs for 1919 dollars and cofts, to reverfe which, the defendants below fued out the prefent writ of error.

E. J. Lee and Swann, for plaintiffs in error.

Simms, for defendants.