Several of the cases reported were argued before the appointment of a Reporter, which will be an excuse for there being no arguments published in some that are important: that of Taylor v. Bruce, was of such novelty and interest, and the law not being settled by the decision, that the Reporter was at the trouble to obtain the notes of one of the Judges, that the arguments as far as practicable might be exhibited: he regrets that even with that diligence, he has not been able to detail the authorities and reasoning of the appellee's counsel, or of Mr. Call, so fully as their ability, and the great moment of the question deserved. The Reporter is fortunately relieved from a great portion of his responsibility, by the circumstance of the Judges having selected the cases to be reported; and in every case writing their own opinions at large. He wishes the counsel could have taken the same trouble with their arguments, which have embarrassed him most. To give them at length, was the only way to do justice to their ability, but that would have made the volume a book of speeches rather than of reports. To omit them altogether, would have excluded many valuable references; he chose therefore, to insert just enough to embrace the law adduced on each case. No idea can be formed of the ability, and much less of the eloquence of the respective counsel, from their arguments as now presented. This course has left to the reporter scarcely any other duty, than to state with couciseness and accuracy the facts and pleadings of the cases. With every disposition to retrench, the number and length of seriatim opinions has enlarged the volume beyond his expectation or control. Baker [Treasurer] v. Preston and others 235 Lane v. Tidball.. Barnett v. Sam. Battaile and Metcalfe.. Bennett v. Maule's adm'x. 232 Lawrence v. Dempsey. 305 Long v. Colston.... 305 Kile's adm'r and Rowt's adm'r. 202 153 Knight v. Yarbrough.. 27 341 Kownslar v. Ward... 127 130 333 331 98 Blanton v. Taylor... Bourke v. Granberry. Brown and Lyons. Bruce and Taylor adm'r of Holloway 42 209 Lyons v. Brown.. 105 Same 105 Maule's adm'x and Bennet.. 149 Metcalfe v. Battaile. 305 191 9 Miller v. M'Luer. 338 145 M'Luer and Miller. Ib. 159 Moore v. Fenwick. 214 196 Mosby v. Taylor. 172 98 M'Rae and Nadenbousch. 228 Cole v. Fenwick.. Commonwealth and Preston. Early v. Early.... Fanny and Griffith.. Farley and Williamson.. Granberry and Bourke.. George v. Richardson Guerrant v. Tinder... Hallam v. Jones... Hill v. Bull... Holloway's adm'r v. Bruce. How's adm'r and Tomlin's adm'r. Hooper and Didlake Jacobs v. Sale... Jones and Hallam 1 Ward and Kownslar... 127 305 CASES IN THE COURT OF APPEALS OF VIRGINIA. John How brought assumpsit in the year 1809 in the county court of Richmond, against John W. Tomlin, administrator of Walker Tomlin. The declaration contained a general indebitatus assumpsit for 901. 2. 24 the price of How's interest in the brig Juno which he sold to Walker Tomlin 24th October 1782, which Walker Tomlin assumed to pay on 1st January 1783 subject to a deduction of 10 per cent. ; and also a count on an insimul computassent for the same sum, subject to a like deduction, payable on the same date. 2 made and at another term set aside. In March 1816 both the plaintiff and defendant being dead, the cause was revived by scire facias, in the name of the appellee administrator of How, against the appellant administrator de bonis non of Walker Tom *A submission to arbitration was lin. In August 1816 the defendant pleaded the general issue and there was a trial, at which the plaintiff moved the court to instruct the jury, that the defendant having pleaded the general issue could not rely on the presumption of payment arising from lapse of time. The court was divided on the motion, the instruction quently not obtained, and the plaintiff excepted. The Jury found a verdict for the plaintiff for 901. 2. 24 with interest from was conse Bonds-Presumption of Payment-In Sadler Kennedy. 11 W. Va. 193. it was said: "When an action is brought on a bond if twenty years elapse between the time of its becoming due and of the institution of the action, the defendant may (without pleading the statute of limitations) rely upon presumption of payment, and upon issue joined on plea of payment. payment may be inferred by the jury, from circumstances coupled with the lapse of a shorter period than twenty years. Perkins' Adm'r v. Hawkins' Adm'r. 9 Gratt. 656: Wells v. Washington's Adm'r, 6 Munf. 532: Tomlin's Adm'r v. How's Adm'r, Gilm. 8; Hunt v. Bridgham etc., 2 Pick. 581: Jackson v. Pierce, 10 Johns. 414; Telghman v. Frieher, 9 Watts. 442." To the same effect, see the principal case cited in Booker v. Booker, 29 Gratt. 609. See further on this subject, foot-note to Booker v. Booker, 29 Gratt. 605; monographic note on "Bonds" appended to Ward v. Churn, 18 Gratt. 801. The principal case was also cited in Hunter v. Snyder, 11 W. Va. 216. 24th October 1782. The court granted a new trial. The plaintiff excepted to the opinion of the court granting a new trial, and in his bill of exceptions spread the whole evidence on the record, consisting of 1. A transcript of the account between How and Walker Tomlin concerning the Juno, with an agreement subjoined dated October 24, 1782, by which Tomlin agreed to pay 901. 2. 234 &c. 2. A receipt dated 1801 executed by I. 261. 16. 412, paid by How in part of money W. Tomlin for Walker Tomlin to How, for lent him by Walker Tomlin. The plaintiff offered to release 10 per cent. of the verdict. But the court granted a new trial. asked leave of the court to add the plea of At the August term 1817 the defendant the statute of limitations to the former plea. The court refused. trial, the Jury found for the plaintiff $737 37, and costs. And on the new The Superior court of Richmond granted the defendant a supersedeas, and at the April term 1818 affirmed the Judgment. The appeal was from that Judgment. Leigh for the appellant. 3 *Acknowledging that the plea of the statute of limitations regularly concludes with a verification, and not the country, and that it is improper to tender an issue on that plea, contended that it was nevertheless an issuable plea within the meaning of the act of assembly, requiring the defendant on setting aside an office judgment, to plead to issue immediately. (a) It had been formerly held that this is not an issuable plea. (b) But a contrary opinion prevailed, and it was decided, that the statute of limitations is an issuable plea, or what is the same thing a plea to the merits, and withal not an unconscientious plea. (c) In the opinion of the late President Pendleton, any plea which is designed as a just defence and not intended for delay, ought in sound discretion to be allowed as an issuable plea. (d) If therefore this plea had been offered at first on setting aside the office judgment, it should doubtless have been allowed, and such is the constant practice. Ought the court then, in the exercise of a sound discretion to have allowed the plea at the time and under the circumstances in which it was offered? In the case of Backhouse v. Jones' executor(e) this court held, that the plea of (a) 1 Rev. 508. (b) 2 Strange, 1242; 1 Wm. Black. 35; 2 T. R. 391. (c) See Rucker v. Hanna. 3 T. R. 124: Maddocks v. Holmes, 1 Bos. & P. 228. It is stated as a settled point. 1 Chit. Pl. 505. (d) 1 Wash. 28. (e) In this court spring of 1805. This case which is referred to, was one in which the appellant 4 But in the statute of limitations ought is offered by an administrator. *not to be allowed at any term subse- Backhouse v. Jones the plea was also offered quent to that at which the office judg- by an executor, yet the court held the plea ment ought to have been set aside, unless inadmissible because no good cause was some sufficient cause appeared to excuse the shewn for allowing it. In that case the neglect of pleading it in due time. Did court admitted there might be cases where any such sufficient cause appear in this the plea should be received. But those case? for this is the only question. cases it is presumed must depend on circumstances which originally prevented the defence, and not on the nature of the claim itself. For this court cannot now judicially know what is the nature of the plaintiff's demand. And it would be to prejudge his case, to allow a defence to be made to it, on the supposition that it is unjust. The defendant had gone to trial on the general issue, thinking that the lapse of time would furnish a legal presumption of payment, and in point of law according to the recent decision in Wills v. Washington's administrator he was right. But on this point the county court divided and gave no opinion. So the defendant was never apprized of the necessity of pleading the statute 'till the Jury found against the presumption on the first trial. Here then is his excuse for failing to plead it at first, and for offering it afterwards. He pressed with earnestness, that this was not an unjust plea to avoid a just demand, but a just and honest defence to a claim not only stale but iniquitous. Not only the great length of time furnished presumption of payment but there was actual proof of payment, on the first trial. The defendant too was an administrator and it was his duty to put in this plea, and the statute in one case recognises the difference between persons suing in their own right and in a representative character. For it is the duty of the court to inforce the statute of limitations to protect the estate of decedents whether the executor plead it or not. (f) The defendant in this case was as well entitled to amend his plea, as if the plea offered had been plene administravit, 5 *and it has been adjudged error to refuse that plea, if tendered at any time before trial. (g) But amendments to the declaration are allowable in favor of justice even after a trial and a juror withdraw, (h) and surely the rule should be reciprocal, and the defendant should have the same opportunity | to amend his pleadings. Stanard, contra. Admitted the statute of limitations to be an issuable plea and is allowable when offered at the term after office judgment is entered. But the question here is, shall it be allowed after the lapse of years of continuances, and indeed after an actual trial and verdict. It is contended that the plea should have been allowed, because it is admissible within the sound discretion of the court, and this is a proper case for admitting it. As to the staleness of the demand furnishing a presumption of payment; allowing the full force of the argument, the defendant should at least have offered this plea when the new trial was granted, and not on the instant of the second jury's being sworn. Neither party *should be permitted to change the pleadings so as to alter the evidence at the moment of trial. 6 Plene administravit, is unlike other pleas, for that is protected by the statute enacting, that no administrator or executor shall be chargeable beyond assets for any mispleading, &c. Besides, that plea is wholly affirmative and so requires of the plaintiff no new evidence. He insisted strenuously, that the court below could not inquire into the nature of the plaintiff's demand as a preliminary step to deciding on the admissibility of this plea. If the court allow such evidence, either party might adduce it, and thus in every case decide the merits of the cause on the facts by the judgment of the court, when in truth they can be ascertained only by the verdict of a Jury. And if this course was allowable, it does not appear in this case that there were facts in the case to condemn the plaintiffs claim; For whatever may be on the record, it does not appear but that the plaintiff proved his claim to be both just and honest. Besides, there is a general verdict for the plaintiff, and it is going too far to presume against the truth and justice of a verdict. Leigh replied. That he had contended the plea should have been received as an act of justice resulting from many considerations combined, and it has been said that not one of these considerations taken singly is sufficient. That, he thought was not the proper manner of treating such a question; It is a question addressed to the discretion of a court of justice; and though such discretion must ever be regulated by law, it certainly is not by any positive rules of law but rather by the general spirit of law. In such cases, the considerations deducible from convenience, from substantial justice, and from the particular circumstances of each particular case should be The first argument offered to shew this a proper case for allowing the plea is, that it brought case, at July rules 1799, the office judgment was entered and a writ of inquiry awarded. When called for trial in October 1800, the defendant moved to set aside the writ of inquiry, and plead the stat: ute of limitations, to which the plaintiff objected: the court below overruled the objection, and allowed the plea. The court of Appeals 1805 reversed the judgment. Because no sufficient reason ap-7 peared to excuse the delay in pleading the statute. and because the plea relied on 5 years before the plea as a bar, instead of 5 years before suit brought. This case is considered as being overruled by that of Tomlin's administrator v. How's administrator, it was decided by the court of Appeals April 17th 1805 before LYONS. CARRINGTON, ROANE, & TUCKER, Judges.-Edition 1821. (f) 1 Rev. 492. (g) Chisholm v. Anthony, 1 H. & M. 27. (h) Jude v. Syme, 3 Call 352. allowed their full and combined effect. *The objection that the plea might have produced a continuance of the cause, is completely answered by the decision in Chisholm v. Anthony, and the argument is repelled by the considerations of convenience mentioned by Judge Pendleton. (i) (i) 1 Wash. 28. ROANE, Judge.* The court is of opinion, that the plea of the act of limitations is an issuable plea and such an one as ought to be received in setting aside an office judgment. It is issuable, because the plaintiff may immediately take issue upon it, although under some circumstances he may omit to do it and reply some of the exceptions of the statute. The court is also of opinion, that it is often and, most probably, is in this case, a very honest and conscientious plea: it may often be the only means of sheltering the defendant from paying an unjust debt. In the case before us however, the office judgment was not set aside on the terms of pleading this plea: it was set aside on the plea of non assumpsit, and the defendant in offering to add this plea stands on the common ground of applying to add another plea deemed necessary to the defence of his cause. This liberty will not be denied unless the application be unreasonably delayed, and has a tendency to delay the plaintiff in his trial: it will not even then be denied, if it be essential to the justice of the case, and a good reason be shewn for not having pleaded it sooner. That this plea is or may be essential to the justice of the case before us, so far as can be discerned from the facts shewn on the first trial taken in relation to the case made by the declaration, cannot be doubted. The defendant had also a good reason for not offering it sooner. He had a right to suppose that the end of the plea would be attained by the legal presumption arising from the staleness of the claim. The 8 Jury however *found against that presumption on the first trial, and that without any evidence to shew an acknowledgment of the debt within twenty years. On the second trial they also found against the defendant, either without such last mentioned evidence, or in consequence of such evidence being produced. April, 1820. Wrongful Attachment-Action on Case DeclarationAverments.*-The declaration in a special action on the case, for suing out a foreign attachment, must aver both malice and want of probable cause, either expressly or by equivalent words. Bussard brought a special action on the case against Marshall, in the Superior court of Spottsylvania, charging that the plaintiff was entitled to 1245 bushels of barley, then laden on board a vessel lying in the river Rappahannock, within the jurisdiction of the court and of the Superior court of Chancery for the Fredericksburg district, and then being in the possession of M. Dawson, the master of the said vessel, for the purpose of being forwarded to the plaintiff at Georgetown, in the district of Columbia, and the defendant knowing the premises, falsely pretending that the said plaintiff, together with a certain Renner, was indebted to him in a large sum of money, for which he had no remedy but by subjecting the said barley to an attachment from the Superior court of Chancery of Fredericksburg, did, on, &c. sue forth from the office of the said court of chancery a subpoena to attach the goods In the first view the Jury may have mis- and effects of the plaintiff and of the understood the law, on this point relative said Renner to simple contract debts, and thus have in- said Dawson, master of the said vessel, jured the defendant without any default in which subpoena was served on Dawson, and him. And if evidence of an acknowledg- he thereby compelled to keep and withhold ment of the debt was produced on the last the barley from the plaintiff for a long trial, still it may be, that the plaintiff is time, during which it was spoiled and benot entitled to recover. The presumption came of no value, and was wholly lost to may have been repelled by such evidence the plaintiff; and afterwards, to wit, within the twenty years, but beyond the *&c. said suit was dismissed by the five years embraced by the act of limitadefendant as appears by the record tions. In this last case nothing but the &c. "wherefore the said plaintiff says, that plea of the act could avail the cause of the by reason of the said unjust and improper defendant. Although a reliance on the pre-suing forth the said attachment without sumption therefore would in most cases be good cause therefor and the consequent atsufficient for the defendant, and excuse him tachment and detention of the said barley, for not pleading the bar of the statute, it in the hands of the said Dawson, he has may not have that effect in all cases. In been greatly injured and hath sustained the case before us, that plea is or may be damage" &c. essential to the defendant's cause, and the court in its discretion ought to have al lowed it. As to the lapse of time which had taken place in this case, a part thereof is accounted for. by the order of reference to arbitrators, and another part by the death of the first administrator, and the probable delay in introducing the appellant as his successor. And as to the verdict which was first *BROOKE absent. 10 in the hands of the The defendant pleaded "not guilty" and also pleaded specially. That on the 19th October 1814, and long before, the plaintiff and a certain Daniel Renner, trading under the firm of Raynard and Bussard, were indebted to the defend (k) 2 Call, 527. *The principal case is cited in Olinger v. M'Chesney, 7 Leigh 687. See also, monographic note on 'Attachments" appended to Lancaster v. Wilson, 27 Gratt. 624. ant in the sum of $793 04, which debt was But however it may be in England, the contracted in Georgetown, in the district point is already settled in Virginia; of Columbia: and that the plaintiff and (in the case of Young v. Gregory (a) Renner on the 19th October 1814, and before 12 *the court held, that justifiable was and ever since resided without the commonnot equivalent to probable cause; and wealth of Virginia, to wit, in Georgetown, in Kirtley v. Deck (b) it was decided, that in the district of Columbia, and being so the words false and malicious were insuffiout of the commonwealth and the said Daw- cient, but there must also be added, without son having in his possession the said bar- probable cause. In the present case thereley belonging to the plaintiff, the defendant fore, the words “without good cause," are sued out his subpoena to summon the said surely no better, than without justifiable plaintiff and Renner and Anthony cause; indeed, they are not so strong; and Buck and M. Dawson to appear &c. and the a declaration charging the suit to be withsaid subpoena was endorsed by the defend-out justifiable cause, has already been deant's counsel with the words "to attach cided to be vicious. But in Kirtly v. Deck the effects of the defendants Renner and the court was of opinion, that both malice Bussard, in the hands of the other defend- and the want of probable cause must conants Buck and Dawson, so that they do not cur, and here there is no allegation of dispose of them until the further order of malice. court," which subpoena was served on the Again, the special plea of the defendant said Dawson, of which the plaintiff had sets forth, that the defendant had a large notice, and the defendant avers the said bill claim on Renner and Bussard, partners, to have been filed for the purpose of recov- &c. and finding property in Virginia beering the $793 04 aforesaid, and of attach- longing to that firm, the defendant had ing the effects of Renner and Bussard in sued out his attachment, the indorsement the hands of Buck and Dawson, for the pay-on which, was the act of Marshall's counsel. ment of the said demand. And the defend- Now the demurrer to this plea admits the ant, on the 19th January 1815, by the truth of the plea, and so there is a good cause judgment of the circuit court of the district for suing out the attachment admitted of Columbia, held in the city of Washing- upon record. (c) ton, to wit, at the county of Spottsylvania, recovered against the plaintiff and Renner the sum of $1600 and *$17 57 costs, to be discharged by the payment of $793 04 with interest &c. which said judgment was for the same debt aforesaid, and the plaintiff afterwards, to wit, on &c. dismissed his said bill in chancery, absque hoc, the deft. sued out no other bill in chancery &c. 11 To this plea, there was a general demurrer, on which demurrer a joinder. The court gave judgment for the demurrant, and a jury was sworn to try the general issue, which was found for the plaintiff and $1148 09 damages. At the trial, Marshall's counsel filed a bill of exceptions, setting forth at large the record of the proceedings on the attachment in Chancery, the indorsement on the subpoena signed by Marshall's counsel in Chancery, in the words before mentioned. The bill states, that Dawson and Buck the garnishees have on their hands a parcel of barley belonging to Renner and Bussard (or if the partnership be dissolved to Bussard one of the firm" and prays it may be attached &c. upon which, Marshall's counsel moved the court to instruct the Jury, that Dawson the garnishee was not bound by the indorsement on the subpoena to retain the property in his hand if it belonged to Bussard solely. This instruction the court refused to give, Marshall excepted and appealed. The fact of the indorsement being the act of the counsel, excludes the idea of there being malice in Marshall. And the indorsement on the subpoena, did not require the garnishee to retain any property, which was not the joint property of Bussard and Renner; and therefore, Marshall was not liable to Bussard, for any damage resulting to him, from the seizure and detention of property belonging to Bussard solely. Stanard contra. Denied that special actions on circumstances like these, were governed by 13 the same principles, which control *suits for malicious prosecution; and therefore, the authorities applicable to such cases, could not govern this. In this case the declaration and plea must be taken together, and it is a rule of pleading, that when the matter of the plea is incorporated into the declaration, and a good cause of action is made out between them, the plaintiff's action may be sustained. The English cases are generally brought for the want of probable cause, and not as this is, because there is already another action pending; but where a party is twice arrested for the same matter, it is in itself good cause of action, whether there be probable cause or not, for either of the actions separately. (d) But the declaration in this case is sufficient of itself. The English cases shew malice and want of probable cause are not Leigh for the appellant. The declaration is fatally defective in not the only words which will give cause of action; but that any equivalent words will stating, that the attachment was sued out, support the declaration. Here, the plaintiff "maliciously and without probable cause, says the defendant "falsely pretended he or by equivalent words. At first he had had claim" &c. and that suing out the atthought those words, by the English prac-tachment was "unjust, improper and withtice, necessary only in actions for malicious prosecution; but farther consideration convinced him, that even in the English courts, they were equally indispensable in actions of this kind. (a) 3 Call 446. (b) 2 Mun. 10. (c) 2 Wils. 302; 2 Esp. N. P. 526. |