¶1Where there is a penalty in an agreement under seal, the party injured, may, at common law, sue for the whole penalty, and must be satisfied with it; or he may bring covenant, and recover in damages more or less than the penalty. See 4 Burrows, 2225; 6 Brown, Parl. Cas. 470. If, in the latter case, the sum. stipulated to be paid is not a penalty, but intended as a compensation for non-performance, it must govern the jury in the assessment of damages. But that is not the present case; and yet more, it is unimportant on the present motion, which is to nonsuit the plaintiff for want of jurisdiction. The action sounds in damages. The declaration claims more than 500 dollars; and by the decisions in the supreme court, the amount of the plaintiff’s claim laid in the declaration, furnishes the rule for testing the jurisdiction of the federal courts. Motion overruled.
¶2Ingersoll endeavoured to prove a receipt of defendant, by comparison of hands.
¶3PER CURIAM. This kind of proof is inadmissible.
¶4*907Ingersoll, having proved the Virginia treasury price of a land warrant, closed the opening.
¶5Dallas insisted, that the plaintiff had not proved delivery of the land warrant, and therefore was not entitled to recover. That the acknowledgment of having received it, in the first part of the instrument, was contradicted by the latter part, which says, that "on receipt of the warrant, the defendant shall proceed to locate,” &c.
¶6PER CURIAM. The defendant cannot, against an express acknowledgment of the receipt, do it away by these expressions, which at most amount only to an implication of the contrary.
¶7THE COURT, after stating to the jury that the only proof exhibited was the articles and the price of a Virginia land warrant at the treasury, left the question of damages upon this proof to the jury.