The PRESIDENT.-The case of Meriweather and Johnson is expressly in point. The judgment must therefore be affirmed. be in common form, except that it did not | which are now urged; and upon full considrecite the amount of the debt due by the eration, the court determined, that an acexecution the pleas were, 1st, Conditions tion of debt upon the bond might be performed. 2dly, That the plaintiff had sustained. in pursuance of the act of Assembly moved the court at a former term for judgment upon the bond which was over-ruled, the court being of opinion that the bond was insufficient. 3dly, That the bond was taken by the sheriff under colour of his office and contrary to the statute &c. To the 1st plea, the appellee replied generally. To the 2d, that the motion was made under the act of Assembly of 1769 entitled "an act to amend an act entitled an act declaring the law concerning executions and for relief Contracts--Presumption as to Usury.-The Court will of insolvent debtors" which said act being construed strictly in motions, an award of execution upon the said forthcoming bond was refused for some inaccuracy in the condition of it. To the 3d plea, the appellee replied, that the bond was taken in pursuance of the act of 1769 upon an execution &c. Edward M'Guire v. Warder Executor of October Term, 1784. never presume a contract to be usurious unless the usury be proved. Same-Usury*-What Constitutes-Case at Bar.-Upon a mortgage for a sum of money payable in Pennsyl vania currency, stipulating interest generally, if a decree be entered by consent for six per cent. interest, it will be considered as a Pennsylvania contract, and not usurious; Aliter, if the decree was so entered in consideration of forbearance. The parties agreed the following case; that the bond in the declaration mentioned was taken by the sheriff upon an execution issued at the suit of the appellee, condi- ered tioned for the forthcoming of property 368 seized by the said sheriff under that 369 execution. That the property was not delivered according to the condition of the bond, nor the money paid. That a motion was made for an award of execution upon the said bond, which was over-ruled and the motion dismissed with costs, on account of the insufficiency of the bond. That afterwards another motion was made by the appellee to quash the execution which was also rejected. Judgment was entered below for the appellee. Wickham for the appellant. This bond was taken under the act of 1769, but not pursuing that act in reciting the execution, and the amount of it, it is utterly void. The law requires forthcoming bonds to be returned to the clerk's office and to have the force of judgments; but if the bond be not made in conformity with the law, it can have no greater force than a defective judgment or recognizance, upon which no recovery could be had. An irregular judgment may be set aside upon motion, and if this be considered as such, the appellee could not elect to take it as a thing in pais and bring an action upon it. But if he had such an election, he has made it, and a regular judgment has passed against him upon his motion. Marshall for the appellee. This question has been fully settled by this court, in the case of Meriweather and Johnson. In that case the objection to the bond was: that it was taken payable to the sheriff, instead of the creditor, as the law required; but the principal decided in that case is strictly applicable to the present. In that case, as in this, a motion for judgment upon the bond had also been made and overruled. In short, the very same objections were there stated and argued, The president stated the case, and delivthe opinion of the court to the following effect. In June 1764, the *appellant mortgaged a tract of land lying in Virginia, to the testator of the appellee then a resident of Philadelphia for the purpose of securing the payment of £88: 12: 61⁄2, Pennsylvania currency, with lawful interest thereon from the 5th day of March preceding. 1773 the appellee institued a suit in Chancery, in the County Court of Frederick, to foreclose the equity of redemption in the mortgaged premises, and for a sale thereof, towards satisfying the principal debt and i terest. was In admitted the execution of the deed of mort- interest thereon after the rate of six per It is probable that this decree was entered by the consent of parties, as it varies from the answer in two circumstances, *Usury. The principal case is cited in Watkins v. Taylor. 2 Munf. 436. See monographic note on Usury" appended to Coffman v. Miller, 26 Gratt. 698. Upon an appeal, the High Court of Chancery reversed the decree, and directed a new trial of the issue, on which, the receipt was not to be admitted in evidence, unless the appellant could give other proof that Hogg was the attorney of the appellee, than what appeared in the record. From this decree M'Guire has appealed to this court. 1st, in changing the rate of interest from five or six per cent. and 2dly in altering the time agreed upon for the sale of the property. If the change in the rate of interest were made from a consciousness in the parties, that the debt originated in a contract made in Pennsylvania, it was lawful and just that the decree should be for six per cent. If on the contrary, the interest was increased with a view to procure In both Courts, the cause appears to have the two years indulgence, it would have been discussed upon the question, whether been usurious and void. This court pre- Hogg, as attorney for the appellee, could sume the former for many reasons. 1st, properly receive the money, and discharge The residence of the creditor usually fixes the appellant. But we deem it unnecessary the place of the contract. Money-lenders to decide that point. We are satisfied from or vendors of goods, do not generally travel to seek for borrowers, or purchasers, but the reverse. 2dly, the payment is stipu- 371 lated to be made in Pennsylvania money. But 3dly and principally, this court will never presume a contract to be usurious unless it be proved; especially in this case where such a presumption, would be at variance with the decree of a court, which it is not to be supposed would sanction such a contract. We therefore consider the 370 decree for six per cent. *to have been entered by consent, upon the ground of the creditor being entitled to it, by his original contract. the record, that the receipt was either fictitious and without actual payment, or if genuine, that all its effects *were done away by the return of the money to the appellant in October 1778, (above ten years before the sci. fa. was sued out.) and therefore that the payment could not be considered as obligatory upon the appellees at that time, although it should be admitted, that Hogg had authority to receive it. That the receipt was merely colourable, is highly probable from the general complexion of the evidence. We do not find Hogg in any instance endeavoring to convey the money to the appellees, but on the The next point in the cause which de- contrary, it appears always to have reserves attention, is a receipt given in May mained in the possession of the appellant; 1777 by Hogg (the attorney of the appellee who delivered it to Mr. Jones in 1778 to tho' he does not stile himself such) to the carry to Philadelphia, and who paid it into appellant, for £117: 12: Virginia money, the treasury for the use of the appellee. being the amount of principal and interest This indeed was after the date of the apdue upon the mortgage. In September pellant's receipt to Hogg in October 1778. 1778, the appellant sent the money by Mr. But that receipt, so far from removing the Jones to Philadelphia, requesting him to suspicion, strongly confirms it. If Hogg pay it to the appellee, but it was not paid, had really received the money as attorney in consequence of the absence of the appel- for the executor, and in consequence of his lee, and the money was returned to the ap- refusal to accept it, he had intended to pay pellant. In October 1778 the appellant it into the treasury, under the act relating gave to Hogg a receipt in the following to debts due to British subjects; it was words, viz. "Received of Capt. Hogg Hogg's business to have paid it in, and not 117: 12, to be paid into the continental to have returned it to the debtor for that loan office, for the executors of Richard purpose. The money was not paid into the Parker of Philadelphia, by me Edward treasury for fifteen months after the date M'Guire." The appellant acknowledged of the receipt, and from the evidence in the to the executor of Hogg, that he had given cause it is clear that it was not entrusted such a receipt, and that he had paid into to the appellant by Hogg, as an immedithe treasury of Virginia in January 1780, ate bearer of it, but for some other purpose the sum of 380 dollars for the executors of which it is not difficult to develope. Richard Parker, for which payment, a receipt was given by the treasurer, as for so much received from the appellee, without noticing by whom it was paid. In March 1789 a sci. fa. issued at the suit of the appellee to revive the decree, to which the plea of payment was filed and issue taken upon it. The trial of the issue being referred to a jury to be empanelled on the law side of the same court, Hogg's receipt of May 1777, was admitted as evidence, and the jury found for the appellant. An exception was taken to the admission of the receipt, because Hogg had no authority, nor warrant of attorney from the appellee to institute, or to prosecute that, or any other suit for him, and because no process had issued to enforce the decree prior to the receipt given by Hogg. The County Court dismissed the sci. fa. with costs. It is observable that M'Guire's receipt is dated the 9th of October 1778, immediately after Mr. Jones's return from Philadelphia, when Hogg probably suspecting, that the appellee wished to avoid receiving the money, began to reflect upon the consequences which might result to himself from his former fictitious receipt, and therefore secured himself by a counter receipt equally fictitious, no money passing at either time. In this view of the case, we are of opinion, that the receipt ought not to be admitted as evidence of a payment, altho' it should be proved, that Hogg had a legal authority to receive the money, and so far we reverse the Chancellor's decree. In all other respects it is to be affirmed, and as the appellees have prevailed, they are to recover costs. 372 *Barnett & Woolfolk v. Watson & Urquhart. October Term, 1794. "the parties aforesaid came, as also a jury, who say upon their oaths, that the defendants have not paid the debt in the declaration mentioned, as in pleading they have Assumpsit*-Sterling Money—Finding of Jury.—Indeb- alledged, and assess the plaintiff's damages, itatus Assumpsit for 1711. 5s. 4d. sterling, of the by occasion of the non-performance of value of 2281. 7s. current money of Virginia, for so that assumption, to £294: 12, current much advanced by the plaintiffs to F. and S. at the money." Upon this verdict, judgment was request of the defendants, &c. laying the damages entered for the appellees. Barnett and in current money. Verdict in current money. Woolfolk filed a bill of exceptions to the The jury were right in finding the value of the opinion of the court, which admitted the sterling money instead of leaving it to the court. deposition of Benjamin Stoddart to be read Same Against Some Members of Firm-Failure of in evidence at the trial; the objection was Plea to Declare Other Members of Firm-Effect.-made upon the score of incompetency. The Declaration against Barnett, Woolfolk, & Co.-W. substance of the deposition (which is spread appears and pleads non assumpsit: afterwards B. at large upon the record) is, that Barnett, against whom the suit had been entered abated, Woolfolk & Co. shipped to Forest and Stodentered himself a defendant, and without filing a dart 16 hogsheads of tobacco, and drew on plea, united in defending the action. Judgment them for £240 sterling, in favor of the apagainst B. and W. only. The judgment is proper pellees, who remitted the bill, and requested against those two, as they did not discover by a that it might be honoured, though the toplea in abatement who were the other partners.bacco should not produce that sum, agreeB. by entering himself a defendant, and going to trial, bound himself to abide by the plea of his 373 partner. Same-Verdict-Sufficiency of.-Upon non assumpsit witness. Witness-Interest.—What degree of interest disqual ifies a witness. This cause which was argued at the last court, and being continued to be re-argued, came on again, at the present term. It was an action on the case brought by the appellees in the County Court, against Barnett, Woolfolk & Co. The declaration states, "that the defendants were indebted to the plaintiffs in the sum of £171: 5:4, sterling money of Great Britain, worth in Virginia currency £228; 7, for so much advanced by the plaintiffs to Forest and Stoddart, at the special instance and request of the said Barnett, Woolfolk & Co. and being so indebted they assumed to pay &c. The damages are laid at £500. The writ being served upon Woolfolk, he pleaded separately the general issue; and an abatement of the suit was entered as to Barnett, who was returned "no inhabitant." An order was made for taking the deposition of Benjamin Stoddart on the part of the appellees, and at a subsequent term, and after a jury had been sworn upon the above issue, and withdrawn, Barnett, as the record states, "came into court, and entered himself a defendant at the suit of Watson and Urquhart, and the said defendants acknowledged legal notice, as to the taking of the above deposition, and on the motion of the defendants, the suit was continued at their costs." At another day, (it is stated) *The principal case is cited in Moss v. Moss, 4 Hen. & M. 301, 302; Williams v. Ewart, 29 W. Va. 670, 2 S. E. Rep. 887. See monographic note on "Assumpsit" appended to Kennaird v. Jones, 9 Gratt. 183. ing to be answerable themselves to the drawees for the deficiency, if any. In consequence of this request, Forest and Stoddart paid the bill, although the tobacco netted only £68: 14: 8 sterling; that Forest and Stoddart have since demanded and received from the plaintiffs the balance due from Barnett, Woolfolk & Co. The deposition was not signed by Stoddart and was excepted to, for this reason also. The magistrates who took the deposition certified, “that in pursuance of a commission, they had examined the said Benjamin Stoddart, a witness, as well on the part of Watson and Urquhart, as on behalf of Joseph Woolfolk, in a suit depending in Orange Court, the witness_being first duly sworn." The defendants Barnett and Woolfolk moved for a new trial, which being refused, they excepted for that reason likewise, stating as the ground of it, that a material witness was absent; that the damages were excessive, being a few pounds more than the debt in the declaration mentioned, and that the court would not permit them to urge any other reasons for a new trial, except the two above stated. Upon an appeal to the District Court of Fredericksburg, the judgment of the County Court was affirmed; and a writ of superby one of the judges of this court. sedeas to this latter judgment was awarded Warden for the appellants. I rely upon the following errors in the judgment of the County Court. 1st, The plaintiff in his declaration claims a sterling money debt, of the value of so much in current money, whereas the demand should have been made in sterling money only. In support of this objection, the case of Scott's executors v. Call, (ante 115) is fully in point. 375 3d. There is no issue as to Barnett, and that all are not joined. If there be any yet a verdict and judgment is rendered thing in the objection now insisted upon, against him. The plea of Woolfolk is sev- a recovery can never be had upon a parteral, that he did not assume, and Barnett, nership contract where some of the firm, who was not bound to state his defence are not named, but included under the upon this issue, might have chosen to put in a special plea but instead of his having an opportunity to do so, a verdict was rendered upon the plea of Woolfolk alone, against Barnett as well as Woolfolk, tho' the former was in truth no party to the suit, and probably was not, nay could not, be defended upon any special ground, which he might have chosen, distinct from that taken by Woolfolk. 374 general stile of the company, if the members will only keep their own secret. For if, as in this case, the suit is brought against Barnett, Woolfolk & Co. it is objected, that a judgment cannot be obtained against Barnett and Woolfolk only; and it is clear that it cannot be rendered against the whole if the unnamed partners be unknown, since they cannot be made parties to the suit. You cannot sue *4th, The deposition of Stoddart the known partners only, for then the condoes not go to prove that the appel-tract must be stated to be made by them, lants assumed, or that the money was paid and if this be done, then it would be variby Watson and Urquhart, at their request. ant from the real one, which would be 5th, Stoddart appears clearly to have been clearly fatal. So that, if the present objecan interested witness. Barnett and Wool- tion, be a good one, the plaintiff, in a case folk considered their tobacco as having been like this, would be without any remedy at either disposed of at an under value, or as all at law, whereas on the other hand, the having been sold at a higher price than defendants may discover who are the conthat stated by Forest and Stoddart, and cealed partners by a plea in abatement, they would have been entitled, in case For- and ought to do so, if they mean to make est and Stoddart had sued them on their it a joint burthen. bill, (and which was alone prevented by the officious interference of Watson and Urquhart) to oppose the demand by proofs of improper conduct in the sale of their tobacco. Stoddart therefore was a very improper witness, to prove the price at which the tobacco sold. 6th, The deposition not being signed by Stoddart, it ought not to have been read, since if perjury had been committed, a prosecution could not have been instituted against the witness in consequence of this omission. 1 Morg. Ess. 124. Duval on the same side. For any thing which appears in the record, the bill drawn by Barnett, Woolfolk & Co. may yet be in circulation, and may at some future time rise up against the drawers, for it does not appear, that Watson and Urquhart took it up. Upon the third objection made by Mr. Warden, he cited 3 Morg. Ess. 10. Washington for the appellees. The first objection is, that the current money value of the sterling debt ought not to have been stated, in the declaration; and in support of this, the case of Scott's executors V. Call, is relied upon. That was an action of debt for a specific sum, where the jury failed to ascertain the value of the money, tho' that subject was rendered by the pleadings an essential part of the matter in issue. This is an action on the case, sounding entirely in damages, and the jury have assessed those damages in current money, leaving nothing for the court to do. There is more difficulty in the next objection, than in any which has been mentioned. To understand it, we must consider the real nature and end of pleading. A plea consists of two parts; the first is the making of defence, and the other is the extension of that defence, under all the various modifications of which the case admits. Making defence, is the denial of the plaintiff's demand as he has stated it. 3 Blac. Com. 296. If the defendant mean not to rely upon a bare denial, but would go farther and oppose the plaintiff's claim by something not necessarily growing out of the defence, but quite collateral thereto, he must state such other ground in the form of a plea. Thus in assumpsit, the defendant by making defence, and consequently denying the plaintiff's demand set forth in the declaration, substantially says, that he did not assume; because the affirmation being that he did assume, the negation must be that he did not assume, which forms a compleat issue: but if the defendant would go farther, and say, for instance, that he did not assume within five years, he must plead that special matter, (because this is not necessarily implied by a mere negation,) so as to give the plaintiff notice of the real ground of defence, which is the primary and only end of pleading. In this case then, Barnett, by entering himself a defendant which is tantamount to defending the force and injury, denies the assumpsit charged, as much, as if he had said so, in a more regular plea. But what puts this question beyond doubt is, that his co-defendant had regularly pleaded non-assumpsit, to a joint demand, and therefore Barnett, by entering himself defendant, going to trial on the plea, and actually defending the suit in all its stages, as the record shews he did, made Woolfolk's plea his own, and after a verdict against him, to be permitted to set it aside, In answer to the second objection let it be premised, that contracts by partners are joint and several. If the action be not brought against all, those who are sued may plead in abatement, discovering the names of the other partners, so as to prevent the plaintiff from making more than one mistake. But if they do not plead in abatement, they cannot afterwards object ought not 4th, This objection, as well as that made by Mr. Duval, may be answered together, by observing that the whole evidence is not stated. This is not a demurrer to evidence, where all the testimony is spread upon the record, but it is merely an exception to the admissibility of a particular deposition. So that this court cannot say that evidence was not produced of the assumpsit, or of the request, or that the bill was taken up by Watson and Urquhart. Besides, as to the first, the law creates the assumpsit, and as to the latter, the bill not having been protested never can charge the appellants. because he had neglected to put in a Campbell in reply. The objections upon 376 formal plea. The *want of a similter which I rely, are 1st, That no plea is put appears from the case of Cooper v. in by Barnett, and yet judgment is entered Spencer. 1 Str. 641 cited in 3 Morg. es- against him. But it is contended that says, p. 10, to have been considered as there is a plea. I ask what is it? Is it fatal, and not aided by the statute of Jeo-payment? Non assumpsit? The act of limfails, yet after defence made, the objection itations, or what? For if there be a plea, is removed. 21 Vin. p. 480. it may be all or either of those which I have mentioned. The oath administered to the jurors is, that they shall well and truly try the issue joined. But if there be no plea, there can be no issue, and consequently the jury cannot answer to their charge. It is essential that the pleadings should be so far formal at least, as to submit some point or other to the consideration of the jury, for otherwise, the court cannot even presume, that the matters in difference between the parties have been settled by the verdict. We know, that wherever an immaterial point is put in issue, a repleader will be awarded, and for the very reason which I have mentioned, namely, that the 5th, Stoddart can neither gain, nor lose rights of the parties were not involved in by the event of this cause, and this is the the issue, and therefore could not have touchstone by which to try the interest of been decided by the jury. There is cera witness. The claim of Forest and Stod- tainly a great distinction between makdart, against Watson and Urquhart, was ing defence, and pleading. The former independent of Barnett, Woolfolk & Co. It is no more than an introduction to the arose from their special undertaking, they did that without suit, which they might have been compelled to do. They could not defend themselves, by alledging an injury done by Forest and Stoddart, to Barnett, Woolfolk & Co. nor are they precluded by this judgment, nor by the payment made by the appellees from contesting that point with Forest and Stoddart, who could not in such a suit avail themselves of any benefit from the evidence given in this cause. If Forest and Stoddart has injured the appellants, it is nothing to the appellees, who only claim the money advanced for them, and to prove the amount of that advance, the receiver is a proper and often the only witness. 6th, This objection is supported neither by authorities, nor by principle. 2 Str. 920, which is referred to, does not warrant the doctrine contended for, and the reason assigned for it, is totally unfounded. The signing of the deposition cannot be necessary, even for the purpose of furnishing evidence of the oath, since upon a prosecution for perjury, it would be requisite to prove, that the evidence stated in the deposition and signed by the witness was sworn to by him. The certificate of the magistrate would not be sufficient. The signature, if proved, (for this too must be done,) might be evidence of his having deposed what is there written; but, that he deposed it upon oath, would still remain to be proved. So that after all, other evidence must be resorted to, in order to sustain the prosecution. If the false oath were 377 not committed *to writing, yet upon proving it, the witness might suffer for perjury, and surely it is not less perjury if it be committed to writing, because it is not signed. latter, and although it imports a general denial of the plaintiff's right to recover, it does not disclose the ground upon which that right is opposed, so as that it may appear whether the question decided by the jury, was upon a point material to the merits of the cause or not. Co. Lit. 127, b. The truth is, that no defence in this case, according to the technical meaning of the word, was made, the appellant Barnett having done no more than enter his appearance to the suit, so as to dispense with the necessity of process being served upon him. But if any particular plea can be presumed to have been intended by Barnett, the probable one would be the general issue; and if so, it may properly be objected 2dly, that the verdict is totally immaterial, since it is neither for nor against the appellants. The jury have found that the defendants have not paid the debt in the declaration mentioned;" now they may not have paid the debt claimed, and yet they may never have assumed to pay it. The former may be the consequence of the latter, and the jury have not found that he did assume. So that the very gist of the issue (if there be any) is still left undetermined. 3 Salk. 374. 3d, Stoddart was certainly an interested witness. If the tobacco sold for a price equal to the sum drawn for by the 378 appellants, then Forest and Stoddart had no right to demand any thing from either the drawers, or endorsers of the bill, and an action, for money had and received, might have been maintained against them by the appellees, in case they had failed in this suit, upon the ground of the tobacco having sold for a greater price than that credited by Forest and Stoddart. The success of the appellees, was consequently interesting to Stoddart. |