dissenting, said:
On the 10th day of July, 1811, the defendant in error, Z. I. Stokes, was indebted to the plaintiff in error, JohnD. James, in the sum of $126.13, for goods sold by the latter to the former. The said John I). James was desirous of having payment of said debt from said Stokes, and was about to institute a suit against Stokes to enforce the same, when said Stokes agreed that if the said James would indulge him for sixty, ninety, and one hundred and twenty days for different parts of the sum of money, so due by open account, that he would close the open account by giving his bonds for different parts of the sum of money so due from him, and would pay the bonds as they should fall due; and that thereupon and in consideration of this agreement and in pursuance thereof, the said Stokes did, on said 10th day of July, ISYiT, execute and deliver to him, the said James, his three bonds—one for $42.24, payable sixty days after date ; one for. $42.24, payable ninety days after date; and the third and last for $42.25, payable four months after date. The said Stokes failed to pay any part of either of said bonds as they fell due; and afterwards, on the 2d day of November, 1811, the said James delivered said three bonds to a constable for collection; *235and on tlie 28th day of November, 1871, R. S. Saunders, a justice of Goochland county, on the application of said constable, issued three separate warrants—one for each of said three bonds—which being regularly served and returned by said constable, John J. Oheatwood, the said justice rendered a judgment on each of the said three bonds, and issued execution's thereon, which executions were delivered to said constable for levy, and that levy was made, and $15 collected by virtue thereof by said constable. On the 17th day of August, 1878, two debtors of said Stokes—0. F. Harris and Henry Harris—having been regularly proceeded against in this cause for the enforcement of said judgments, by process of garnishment, judgments were rendered against them, and executions issued, &c.
Upon these facts the said Stokes, the debtor, and also said garnishees, O. F. Harris and Henry Harris, respectively applied to the circuit court of Goochland county for a writ of prohibition. In their petitions they allege that said justice had no jurisdiction in the premises, for the reason that said several judgments are for parts of one debt, and in the aggregate amount to a sum exceeding the jurisdiction of a justice of the peace. Upon these petitions a rule was directed to be issued by said court, and was issued, requiring the parties, said John D. James, said justice and said constable to appear, forthwith, before said circuit court to show cause why the writs of prohibition, as prayed for by the petitioners, should not be awarded.
The rule was served on the fourth day of September, 1879, and on the next day, September the 5th, this cause was heard upon the said petitions and answers, and evidence, and thereupon said circuit court gave judgment, awarding the writs of prohibition as prayed for. And thereupon the plaintiff in error, said John D. James, applied to and obtained from said circuit court a certificate of the facts proved at said trial, signed, sealed and made a part of the record in said causes. The facts thus certified are those already stated. They amount to this: the defendant in error, said Stokes, was indebted to the plaintiff in *236error in $126.73 ; the plaintiff in error wanted, and was entitled to have, his money, and was about to proceed to institute suit to recover it; the defendant in error wanted further indulgence, and it was extended to him by taking his three bonds for the amounts, and payable at the times before stated.
After getting this indulgence for his own accommodation, and on his own terms, the defendant in error failed to pay said bonds, or either, or any part of them; and all remaining unpaid, the plaintiff in error, after being thus delayed for a period, in which he might have made his entire debt had he proceeded as he first intended to do, proceeded to collect the same through a constable upon warrants before a justice. And when he had obtained his judgments severally upon his said separate and several evidences of debt, and had by proper proceedings against said Stokes and his debtors in effect' secured his debts, the defendants in error shelter themselves under the commonwealth’s writ of prohibition, not upon any meritorious, but rrpon the technical and presumably patriotic plea, that a court of record, to-wit: the said circuit court of Goochland county was attempted to be ousted of its rightful jurisdiction. Gan it be true that the said judgment of the circuit court is warranted by either the letter, or spirit of any statute, or adjudicated case in Virginia? It is claimed that said judgment is borne out by the case of Hutson v. Lowry, 2 Virginia Cases, 42, decided by the general court in the year 1816, and then with three of the nine judges sitting dissenting. The state of the law in Virginia then, regulating the jurisdiction of justices of the peace, was widely different from what it is at this time. Then the state itself was in its infancy; then the jurisdiction of a justice upon a claim for money did not exist where the demand, even by one cent, exceeded the sum of twenty dollars. When this proceeding was had, the jurisdiction of a justice had been extended, in a qualified way, to fifty dollars, and has since been extended to one hundred dollars. All this has been done to meet the demands of the times. The public *237necessities required a cheaper and more speedy mode of settling the great mass of plain ordinary demands between citizen and citizen than it was possible to have in the courts of record. Hence the increased jurisdiction of justices of the peace, the palpable benefits of which enure, beyond question, more to the advantage of the debtor than to the creditor class. These very cases illustrate the fact. The costs in each of them, as disclosed by the record, was one dollar. Had the same suits been brought in the circuit court, or had all three of the bonds in question been consolidated in one suit, the costs, without appearance by the defendant, would have been, most likely, five times as much. This, of itself, in the absence of any statute or rule of law, absolutely excluding all claim to jurisdiction on the part of the magistrate, ought to suffice to show the great impropriety of the judgment of the circuit court of Goochland.
Is there any such statute or rule of law? There certainly is not. Let us, then, look to the case of Hutson v. Lowry, before referred to, and if it does not give countenance to said judgment, then there is no warrant therefor in Virginia. In that case the creditor’s claim was eighty dolllars, and he split it up into four claims of twenty dollars each; and thereby, it is palpable that he would, but for the intervention of the superior court, have ousted it, not only as to the original debt of $80, but also of each part, when so split up. The several bonds here were each for a sum within the jurisdiction of the circuit court, and could have been sued on in that court separately, subject only to the discretionary power vested therein, of consolidating them. So, in this case each of the bonds was within the prescribed jurisdiction of the justice, subject only to the limitation in favor of the right of trial by jury, by which the debtor, each claim exceeding twenty dollars, had by statute the right to have each case removed to the county court—a court of record—where, by statute, he could demand and have a jury to try each case. See § 1, chapter 147, and § 8, chapter 164, Code 1873.
*238Surely, then, there is no sufficient reason for saying the circuit court was ousted of its jurisdiction, or could he by the proceedings taken by the plaintiff in error before a single justice ■; because, not only could the debtor have removed each and all three of the cases to the county court, with the privilege of trial by jury there, but each demand against him being in excess of $20, he could, if aggrieved theré, have appealed to the circuit court, as has been expressly decided by this court in the recent case of Carter’s adm’or v. Kelly, Judge, 28 Grat. 787. That case serves well to illustrate the danger of employing on slight ground the summary remedy by prohibition. It was a claim of $43, prosecuted before a justice, and by the defendant removed to the county court, where judgment was rendered for the plaintiff, and an appeal was taken to the circuit court of Scott county; and thereupon application was made to this court for a writ of prohibition to restrain and prohibit tire Hon. John A. Kelly, judge of said circuit bourt, from taking cognizance or jurisdiction of said appeal. In delivering the opinion of the court .Judge Christian said (p. 189): “ It is urged by counsel for the petitioner here that the words in the second section of the act of April, 1814, ‘exclusive jurisdiction of causes removed from a justice,’ takes away the right of appeal to the circuit court. We cannot give this construction to the statute. That would he to declare that the general law regulating appeals, which gives the right of appeal in all cases from judgments of the county court, except the single case of a judgment rendered on an appeal from a judgment of a justice, was repealed by the words, ‘exclusive jurisdiction in this act.’ ” The words “ exclusive jurisdiction ” are very broad in their signification; they would certainly seem to afford greatly more reason for the remedy by writ of prohibition in that case than can be derived from the case of Hutson v. Lowry {supra), as authority for the action of the circuit court of Goochland in the case now under consideration.
The fact is, that Hutson v. Lowry is not authority applicable here. The cases are by no means alike. In that case, unsatis*239factory as it was in the then state of the law, it is apparent that the creditor must have split his demand for the purpose of ousting the superior court of jurisdiction, specially lodged therein by law, and under circumstances which would have cut the debtor off from trial by jury. Hot so in this case;, for while the claim was divided into three several distinct claims, and several and distinct bonds taken, it was done at the instance and for the accommodation of the debtor—-it was an indulgence asked for by him; and because it would seem the creditor extended more indulgence than was asked for, by waiting until all the bonds were due, when he had beyond all question the right to sue either in the circuit court or before a justice upon each bond separately in succession as they fell due, it is claimed in effect that his indulgence must be visited upon him as a penalty. Surely it ought to require some inflexible rule to work such gross wrong to the creditor without any earthly benefit to the debtor. I know ■ of no such rule, and if such a one existed, it would be “more honored in the breach than in the observance.”
Again, it is said that the law as laid down by Mr. Minor in the fourth volume of his admirable work, at page 206, part the first, sustains the action of the circuit court. He says : “ Where an entire claim exceeds $20, and has been divided into several parts, each not exceeding $20, and separate securities are taken therefor, and all are due, the better opinion seems to be that the courts of record cannot thus be deprived of their jurisdiction, nor the defendcmt of his right to trial by jury.” Observe, Mr. Minor makes the whole question turn upon the fact that no part of the claim, split up, exceeds $20, by which the debtors right to a trial by jury is lost.
It is too apparent, to admit of further discussion, that each claim in this case does exceed $20, and that the right of trial by jury was not and could not be defeated if desired, and that the law, as stated by Mr. Minor, is flatly opposed to the action taken by the circuit court in the judgment complained of, and that *240there is no sanction therefor in the case of Hutson v. Lowry, before referred to.
Again, the case of Hendricks v. Shoemaker, 3 Grat. 197, very clearly, upon principle, settles the law differently from the principle claimed to have been laid down in Hutson v. Lowry. In that case (Hendricks v. Shoemaker) a creditor proceeded hy one joint notice for several claims against a constable and his sureties for several defalcations in not paying over money collected; all of which defalcations were described in one and the same notice, and aggregated over $600. The magistrate gave a separate judgment as to each claim, and the defendants obtained a writ of prohibition from the superior court of Bussell county. The case came here upon a writ of error, and in delivering the opinion of this court Judge Baldwin said: “The jurisdiction thus conferred upon a justice does not in anywise depend upon the value of the execution or of the judgment upon which it has been issued; nor can it be at all affected by the circumstance that the party prosecuting such motion is, at the same time, entitled to and actually prosecuting other motions against the same constable and his securities, before the same or any other justice, ****** &c. The remedy being given for each separate default of the officer, the jurisdiction of the justice cannot in any instance he ousted by the number or aggregate amount of the several defaults; and that the judgments being separate and distinct, the circuit court ought not to have awarded the prohibition,” &c., &c.
The well known and salutary rule against splitting up claims for the purpose of ousting a court of law, by fraud, of its jurisdiction, has been distorted by the circuit court of Goochland into a meaning never before attached to it. Many English cases might be cited to illustrate the true, application of the rule as here contended for. The' king against the sheriff of Hereford-shire, 1 B., and Adol. 672, referred to by counsel for the plaintiff in error, is exactly in point. In a note to that case it is said, “If there be one entire contract above forty shillings, and a man *241sues for it in a court baron, severing into divers small sums under forty shillings, a prohibition shall be granted, because this is done to defraud the court of the king;” citing 11 Hen. 6, 54. Thus the English doctrine, as I contend here, makes the splitting into parts less than the jurisdiction of the court of record, the offense against which the rule is intended to guard. It is plain, therefore, that the action of the circuit court was unauthorized, and ought to be reversed and annulled. Eor these reasons I cannot concur in the opinion of the majority of the court.
Judgment aeeirmed.