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https://www.courtlistener.com/api/rest/v3/opinions/8481416/ | DANIEL, J.,
delivered the opinion of the Court.
Where a contract is made for the purchase of an article hereafter to be delivered and paid for, so long as any act remains to be done by the vendor in order to put it in a state of readiness for delivery, or the amount of the purchase money remains yet to be ascertained, ■ by the enumeration, measurement, or weighing of the article, the general rule is, that the property does not pass to the buyer, but still remains at the risk of the seller.
It does not seem to the Court that there is anything in the case before us to exempt it from the influence of this rule.
Here the contract was for the purchase of an article yet to be prepared. The appellant by his agent Palmer, contracted with the appellees, for the purchase of all the tobacco stems they might prize during the year 1832, (with the exception of a number of hogsheads not exceeding twenty, which the appellees reserved to themselves the right to send to their father in Baltimore,) at one dollar and seventy-five cents per hundred pounds, and seventy-five cents per hogshead storage. There was nothing in the terms of the contract to bind the appellees to prepare any given quantity of stems, and had they at any time after the contract was made, consulting their own interests alone, discontinued the manufacture of tobacco and thus failed to have any stems prepared, the appellant, however much disappointed thereby, would have had no legal ground of complaint against them. And though it appears that Palmer was in the habit of occasionally ^advancing to the appellees money on account of stems • before the bills were presented, there is nothing in the terms of the contract to shew that he was bound to do so, or could be called upon to make any payment, until notified in some way that stems were prepared, prized, weighed and ready for his acceptance.
At the time when the fire occurred fifty-six hogsheads of stems had been prepared, prized, and set apart in the storing room of the appellees attached to their factory, as stems designed for the appellant; and they had been pointed out to Palmer, as such, when on a visit to the factory a short time before the fire, which he made with a view to ascertain how far the preparation of the stems had progressed. The hogsheads however had not been marked as the stems of the appellant, nor had the stems been weighed.
What was the state of the accounts between the parties at the date of the fire does not appear. As, however, the demand is asserted only for the price of the fifty-six hogsheads, estimating them at a supposed average weight, and their storage, and there is no other reference in the pleadings and proofs to the state of accounts, the inference is, there was not any balance on account of the previous dealings in the stems on either side.
It appears that the wishes of Palmer were consulted, and the benefit of his principal to some extent promoted by the habit which seems to have prevailed with the appellees, of deferring the weighing of the hogsheads till Palmer might be ready to ship them. But there is nothing to shew that such habit originated in any obligation imposed by the terms of the contract, or that the appellees did not have a perfect right to have weighed the stems as soon as they were prized, and to have then demanded their price.
It thus seems to the Court that there is no feature in the case to distinguish it favourably for the pretensions *of the appellees from the ordinary case of a contract for the purchase by weight of goods to be thereafter prepared and delivered and paid for on delivery, in which the weighing had not taken place at the period to which the questions of property and of consequent risk are to be referred.
*97The Court is therefore of opinion that at the date of the fire the stems in question were not the property of the appellant, remaining with the appellees on account of and at the risk of the appellant, but were still the property of the appellees; and consequently that the Circuit court erred in rendering a decree in favour of the appellees for the price.
Decree reversed with costs, and bill dismissed. _ | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481970/ | STAPLES, J.,
delivered the- opinion of the court.
The appellee, White, purchased the land in controversy under a decree of the county court of Russell. He complied with the terms of sale bv making the cash payment and executing his bonds for the deferred installments, *and there is every reason to believe he would have paid them off at maturity but for the obstacles interposed hv third persons. The sale was reported to the court by the commissioner, and was regularly confirmed without objection. The question now arises, whether there was any such irregularity in the sale or in the proceedings of the commissioner, or in the conduct of the parties, as to warrant this court in setting aside the sale and vacating the title of the purchaser. In the first place, it is insisted that the land was sold at a very inadequate price, and that the commissioner, in violation of the terms of the decree, made sale of the whole tract, when the sale of part only was necessary to satisfy the judgment creditor.
There is not in this record, nor in the record of the proceedings of the district court of the United States, any evidence tending to sustain either of these allegations. The upset bid made in the latter court by Duff, the debtor, is not evidence of the value of the land, because, as was said by counsel, Duff being entitled to the surplus proceeds after the_ payment of all his debts, and these debts being greatly less than two thousand dollars, the amount of the appellee’s purchase, he might well afford to bid twice the value of the land. The district court of the United States in setting aside the sale made to the appellee, did not base its decree upon either of the grounds now suggested. The evidence shows that the land was asses=ed in 1872, the year in which the sale was made, at nine hundred and seventy dollars. Duff, himself, in his deed of homestead filed in 1873. estimates it at eleven hundred and sixty dollars.
Tn the face of these facts, without a scintilla of proof to the contrary, it is impossible, with any show of reason, to say that two thousand dollars was an inadeauate price. The presumption is precisely the reverse.
The decree directed the commissioner to sell the land in the bill and *proceedings mentioned, or so much thereof as was necessary, to discharge the plaintiff’s debt. The commissioner sold the whole ninety-seven acres. It may be that a sale of part would have been sufficient, and could have been made without detriment to any one. This depended upon the nature, quality and condition of the property. It may be that the land was not susceptible of partition, and that its chief value consisted of buildings and other appurtenances which could not be conveniently sold in parcels. Upon these points the record furnishes no information, and we are now dealing with the rights of a bona fide purchaser, after a confirmation of the sale without objection, and after the lapse of more than three years before the-bill of review was filed. The district court of the United States, when it undertook to set aside the sale made to the appellee under the decree of the county court of.Russell, at the instance of Duff himself, certainly with his consent, entered a decree for the sale of the entire tract. Surely the county court could do substantially the same thing, by confirming a sale at an adequate price, made in the interests of all the creditors.
When the decree of the district court just allu'ded to was reversed by the circuit court of the United States at Lynchburg, upon the ground that the whole matter properly belonged to the state court, which alone had jurisdiction, the circuit court made the fol*185lowing provision in its decree of reversal: “The district court is advised to direct the assignee of said Duff to take such proper proceedings in the circuit court of Russell county as may be necessary to secure the surplus of the proceeds of sale of said lands for the benefit of the bankrupt’s estate, if any there be.” It is very true the same decree contains a reservation of the right to Duff, the bankrupt, also to institute in the state court any proceedings he may deem necessary to the protection of his interests.
He, however, has instituted no proceedings *of any kind; he is not a party in this record except as a defendant in the original suit. The appellant, the assignee in bankruptcy, in filing this bill to set aside the sale, seems therefore to have gone beyond the instructions given him in the bankrupt court. His duty was not to ask for a vacation of the sale, but to secure the surplus of the proceeds for the benefit of the bankrupt’s estate. It is worthy of observation that in his bill of review he neither avers that the land was sold for an inadequate price, nor that the commissioner had violated his duty in selling the whole tract instead of a part. If the purpose was to impeach the sale on these grounds, the matter ought to have been put in issue by proper averments in the bill, and thus afford the appellee an opportunity of meeting the points by his answer and his proofs. Under all these circumstances the proposition cannot for a moment be entertained to set aside the sale to the appellee upon the ground of inadequacy of price, of irregularity in the sale, or in the conduct of the commissioner who made it.
The ground mainly relied on in the bill of review for vacating the sale, is that upon Duff’s becoming a bankrupt the suit of Cecil, the creditor, abated, and no further proceedings could be lawfully had therein affecting his rights or the rights of his creditors, until the suit was properly revived against the assignee in bankruptcy. Now it will be seen that the bill does not charge that White, the purchaser, either at the time of the sale or of its confirmation, had any notice of the bankruptcy. He is not charged with fraud or improper conduct in any respect, and there is no reason for attributing to him anything of the kind. The decree for the sale was rendered before the adjudication in bankruptcy, and the sale was made before the assignee was appointed. No suggestion of the bankruptcy was made on the record, nor was the matter brought in any manner to the attention *of the court, although there was ample time to do so before the sale was confirmed. If the assignee failed in his duty in this particular the purchaser cannot be affected bv his neglect or misconduct in the absence of all proof showing that injustice was done. The mere fact of the bankruptcy of the debtor could not of itself prevent the sale or its confirmation. It might render proper the introduction of a new party on the record, when properly suggested to the court, but it could not prevent or in any manner interfere with the execution of a valid decree. Upon this point the case of Eyster v. Graff et als., decided by the supreme court of the United States (1 Otto, U. S. R, 531) is a direct authority. In that case, Mr, Justice Miller, delivering the opinion of the court, said: “At the time the suit was commenced the mortgagor, McClure, was vested with the title, and was the proper and necessary defendant. But for the bankruptcy of McClure there can be no doubt that the sale under the foreclosure decree and the deed of the master would have vested the title in ! the purchaser, and that this would have related back to the date of the mortgage. Nor can there be any question that the suit having been commenced against McClure when the title or equity of redemption was in him, any person who bought of him or tools; his title or any interest he had, pending the suit, would have been bound by the proceedings and their rights foreclosed by the decree and sale. These are elementary principles. Is there anything in the bankrupt law, or in the nature of proceedings in bankruptcy, which takes the interest in the mortgaged property acquired by the assignee out of this rule?”
The learned judge then proceeds to show there is not. and that no reason existed why the same principle should not apply to the transfer made by a bankruptcy proceeding. He lays down the proposition that where an assignee in bankruptcy is appointed during the pendency of proceedings *in a state court for the sale of mortgaged property, he stands as any other purchaser would stand on whom the title had fallen after the commencement of the suit, a purchaser pendente lite, and if there be any reason for interposing, the assignee should have himself substituted for the bankrupt, or be made a defendant on petition. But if he fail to do so, it does not invalidate the proceedings. And further, that a state court cannot take judicial notice of the proceedings in bankruptcy, and it is its duty to proceed as between the parties before it. until by some proper pleadings in the case it is informed of ; the changed relations of the parties to the subject matter. These citations are given j because they are directly in noint, and because they are conclusive of the question, if the decisions of the supreme court of the United States are authority in such cases.
In the present case, if the assignee did not choose to object to the sale, there was nothing to prevent the debtor himself from doing so. He was interested in the question of homestead, and he was interested in the surplus remaining after the claims of creditors were satisfied. He had the right, notwithstanding his bankruptcy, to go forward and object to the confirmation of the sale, or to suggest his bankruptev, and require his assignee to be brought before the court and to take care of his interests. Instead of this, he filed his petition in the United States court some eight or ten months after the sale was confirmed, with a view to oust the jurisdiction of the state court, to set aside the sale and to have his entire estate set apart as a homestead. This petition was dismissed. *186and he was again remitted to his remedies in the state courts. But instead of pursuing them, after the lapse of nearly two years, he again applies to the United States courts to interpose in his behalf.' He at last succeeds in July, 1875, in obtaining a decree vacating the sale *iriade to the appellee, not upon any of the grounds now suggested, but because, in the opinion of the district judge, it did not appear the rents and profits of the land would not pay off the'judgment lien within five years, and because there was no return of nulla bona upon the execution before the land was decreed to be sold. This decree practically assumed for the district court of the United States appellate jurisdiction to revise the proceedings and _decrees of a state court. As already stated, it was afterwards reversed by the circuit court of the United States. And now, after all this delay, contention and expense, the state courts are asked to set aside a sale made in 1873, and regularly confirmed in February, 1873, without a particle' of evidence impeaching its fairness, or the good faith of the purchaser.
It must not be forgotten that while a purchaser at a judicial sale acquires by his bid and itSi acceptance no independent right to have his purchase completed, but is merely a preferred proposer until confirmation, after confirmation by the court, his condition is very materially changed. His contract is then executed, and he is regarded as a complete purchaser, with all the rights incident to that position. Against him the courts are never disposed to interfere, unless for very grave and substantial errors in the decrees and proceedings upon which his title is founded.- See Zirkle v. McCue, 36 Gratt. 517, and cases there cited.
With respect to the objection that no decree for a sale of the land ought to have been entered without an enquiry to ascertain whether the rents and profits would pay off the debt within five years, it is sufficient to say that the bill contains a direct averment that the rents and profits are not sufficient for that purpose.
No answer being filed by the defendant, the bill was taken for confessed, and a decree for the sale entered ^before the adjudication in bankruptcy. And even now the record contains no evidence upon the subject, nor is the matter put in issue by the pleadings. Even though it appeared that the county court of Russell plainly erred Upon this point, this court would not for that cause now set aside°a sale fairly made for an adequate price, when it is manifest a sale is rendered necessary by the bankruptcy of the debtor, and when this court, if it should set aside the sale already made, would be compelled immediately to order a resale in the interest of all parties concerned.
One other objection remains to be considered, which might more properly have been noticed in the beginning, and that is, that the county court of Russell was not authorized to decree a sale of the land until it appeared that the debtor had no personal estate upon which an execution could be levied. It appears that an execution was issued and levied upon certain effects of the debtor which were claimed by him under a homestead exemption. The creditor was under no obligation to contest this claim. He might, if he pleased, acquiesce in it and apply at once to a court of equity to enforce the lien of his judgment. It does not lie in the mouth of the debtor now to assert that his claim was unfounded; that the creditor .'ought tp have disregarded it and insisted upon a sale of the property under the execution. This is a sufficient answer to the objection that the land was not liable. Another is found in the circumstances already mentioned, that the sale yvas made under a pro confesso decree, confirmed without exception, and no objection ever made until the bill of review was filed in this case.
But even though no execution had ever issued, the court had power to decree a sale under the statute. Upon this point it is only necessary# to refer to the opinion of *this court delivered by Judge Burks, in the case of Price v. Thrash, supra, p. 531.
Upon the whole, there is no error in the decree of the circuit court, and the same must be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481974/ | CHRISTIAN, J.,
delivered the opinion of the court.
Statement of the Case.
This was a case of caveat in the circuit court of Augusta county. The caveators are the appellants, A. D. Trotter, *James I. A. Trotter, Thomas N. Kinney, and other heirs at law of Jefferson Kinney. On the 10th day of December, 1873, they filed in the office of the register of Virginia land office their caveat to prevent the issuing of a grant to the appellees, Isaac Newton and Major D. Vines, for forty-seven and one-half acres of land situated in said county of Augusta, on the water of Mary’s creek (now called Smith river), surveyed for said Newton and Vines on the 4th day of June, 1873, by James M. Silling, assistant surveyor of John D. Dilley, surveyor of Augusta county.
The specific grounds upon which they file their caveat are set forth as follows:
“Said caveators respectfully represent that in the year 1854 said A. D. Trotter purchased of one David L. Young and William Kinney, commissioners in the cause of Harnesbarger’s adm’r v. Dowell’s heirs, in the circuit court of Augusta county, a tract of 4,660 acres of land, in which said tract of land the said 47J4 acres now sought to be entered by the said Newton was embraced, and went to make up said 4,660 acres; that a short time after said purchase said James I. A. Trotter and Jefferson Kinney, who was then living, became associated with said A. *199D. Trotter in said purchase and joint owners of said tract of land; said A. D. Trotter was placed in possession of said land, and immediately upon his said purchase, and he and said James I. A. Trotter and Jefferson Kinney held exclusive and uninterrupted possession of said tract of land, including said 47)4 acres, up to the day of the death of said Jefferson Kinney, and said caveators have held like possession ever since. The sale of said tract of land made by said commissioners, Young and Kinney, was ratified by decree of circuit court of Augusta rendered in the above-named cause, and by a subsequent decree rendered therein said commissioner, Young, was required to convey said land to said caveators by a good !|!and sufficient deed; and said commissioner has so conveyed said tract of land to said caveators by deed duly recorded in the clerk’s office of county of Augusta. From the time said tract of land was sold to said A. D. Trotter as aforesaid, up to the present date, the taxes assessed against it have been promptly paid up. Said caveators object to the issuing of a grant to said Newton for said 47)4 acre tract of land—
“1st. Because said Newton and Vines, and each of them, well know that said caveators were in the possession, use and enjoyment of said land, and had had the same in possession ever since the purchase by said A. D. Trotter from Commissioners Young and Kinney, as aforesaid, and yet wholly failed to notify said caveators of their intention to file an application for a grant thereof. (See § 13 of ch. 112 of Code.)
“2d. Because the law has not been complied with by said applicants upon filing their said application, in this, that they have wholly failed to make and have endorsed upon the survey filed by them an affidavit such as is required from all persons applying for a grant of lands, under an act of assembly approved February 21, 1871, (see Session Acts of 1870-71, page 136) ; and in this, that they have wholly failed to have the affidavit of the surveyor of the county endorsed on said survey, as by said act above cited they are required to do.
“3d. Because said tract of land is not liable to entry. The survey filed by said applicants, shows that said land has been surveyed and entered by Thomas Fulton and John Dougherty, March 10, 1795; there is no evidence to show that said land has been forfeited, or that it has in any wise become liable to re-entry.
“4th. Because the plat and survey returned by said Newton was made by the surveyor without any authority for so doing. It nowhere appears that said survey was *made by virtue of a land office treasury warrant, issued from your office, and is therefore void.
“Said caveators have had full and complete possession of said land for twenty years under color of title derived by decree in the above-named chancery cause, and for that time they have paid all taxes against said land; this it is insisted should make their claim superior to the claim of any party seeking a grant at this late day, and for reasons above set forth by said caveators, pray that the application of said Isaac Newton may be rejected, and said caveators left in the quiet and peaceable possession of said land; and as in duty bound they will ever pray, etc.
“A. D. Trotter,
“James I. A. Trotter,
“Thomas N. Kinney,
“And the other heirs at law of Jefferson Kinney, deceased.”
To these specific grounds of caveat thus set forth, the caveatee filed his answer and pleas in the words and figures following, to-wit:
“This day came the defendant, Isaac Newton, by his attorneys, 'Sheffey & Bumgardner, and saith that the plaintiffs their caveat aforesaid ought not to have and maintain against the said defendant by reason of the matters and things in said caveat alleged, because said defendant, as to the first alleged cause for which a grant for the premises in said caveat mentioned should not issue to said defendant, saith:
“1. That said defendants. Isaac Newton and Major D. Vines, did not know that the caveators were in the possession, use and enjoyment of the said land in said caveat mentioned, or that said caveators had had the same in possession ever since the alleged purchase thereof by A. D. Trotter, one of said caveators, from Commissioners *Young and Kinney, and therefore, said defendant, in his own right, and assignee of said Major D. Vines, was well justified in applying for a grant for said land without giving notice to said caveators, or either of them.
“2. That as to said second cause or reason why said grant should not issue to said defendant, he saith, that the law has been complied with by said defendant, upon filing his said application, and that he did cause to be made and endorsed upon the survey filed by said defendant proper affidavits according to law.
“3. That as to said third cause or reason why said grant should not issue to said defendant, he saith, that, in fact, said caveators claim title and interest in said land mentioned in said caveat, under and by virtue of a grant issued by the commonwealth of Virginia to a certain Major Dowell; and said defendant further, in fact, saith, that said caveators have no title or interest in, and to tlie land in said caveat mentioned, and that said caveators have no title thereto, under and by virtue of any grant from the said Thomas Fulton and John Dougherty, or either of them, or from any person or persons whatsoever. claiming by, through or under the said Thomas Fulton and John Dougherty, or either of them.
“4. That as to said fourth cause or reason why said grant should not issue to said defendants, he saith, that the plat and survey returned by said defendants was in fact made by the surveyor in pursuance and by authority of law; that said survey was in fact made bv virtue of land office treasury warrants, duly issued according to law, and *200that it so appears by certificate of said surveyor on said survey and plat.
“5. That as to said last or fifth cause cr reason why said grant should not issue to said defendant, he saith, that said caveators, or either of them, have not had full and complete possession of said lands for twenty years, under color of title, as alleged in said caveat; that in *fact, said caveators have not had full and complete possession of said land at any time, and specially, that they did not have actual possession of said land at the time said defendant and said Major D. Vines made the entry upon, and by virtue of which said survey was made and said grant is demanded.
“Whereupon, said defendant prays judgment that said caveat be dismissed, &c.
“Sheffey & Bumgardner,
“For defendant.”
Upon these issues thus made up in said circuit court of Augusta county (a jury being waived and all questions of law and fact being referred to the court), and upon the examination of evidence, documentary and oral, the said circuit court pronounced its judgment, and to this judgment a writ of error was awarded by one of the judges of this court.
Opinion.
The court is of opinion that there is no error in the judgment of the circuit court. • While cases of this kind are now of rare occurrence in this court, the rules which govern them are well defined by the decisions of this court and may be stated as follows:
First. In every caveat founded on the alleged better right of the caveator to the land in controversy, the first enquiry is as to his title or interest in the subject. He cannot recover upon the mere infirmity of the title of the caveatee; for however defective that may be, no one has a right to-interpose for the purpose of preventing him'from carrying his entry into grant, unless he have a better right, legal or equitable, in himself.
Second. The caveator must state in his caveat the grounds on which he claims the better right to the land in controversy, and he will not be permitted to abandon *on the trial the right which he has set out in his caveat, as that under which he claims, and prove a different right. See Walton v. Hale, 9 Gratt. 194; Carter v. Ramey, 15 Gratt. 346; Harper, &c., v. Baugh & al., 9 Gratt. 508.
Let us now apply these principles to the case before us.
The caveators claim title to the land in controversy (the 47Ji-acre tract) upon two grounds — First, as purchasers under a decree of the circuit court of Augusta county, rendered on the 7th November, 1856, directing a sale of the real estate of pne Major Dowell. The sale was made by Young and Kinney, commissioners of said court, and at the sale the appellants (the caveators) became the purchasers. Under .this purchase they claim title to the land in controversy. Second. They claim that they- had the actual and uninterrupted possession of said land under a claim and color of title for the period of twenty years.
As to their claim as purchasers from Young and Kinney, commissioners, it is plain that they acquired at that sale only such title as was in Major Dowell. That was all the commissioners sold and conveyed, and that was all the purchasers acquired.
The record in this case conclusively shows that Major Dowell, under whom the appellants claim as purchasers at the judicial sale referred to, founded his claim to the lands sold by Young and Kinney, commissioners, upon a grant of the commonwealth issued by letters patent on the 9th day of February, in the year 1796. But in this very patent, containing the lands sold by said commissions, and purchased by the appellants, the 47Já acres (the land in controversy), is expressly excluded. That patent contains the following clause: “But it is always to be understood that the survey upon which this grant is founded includes forty-seven and a half acres of prior claims surveyed for Thomas Fulton and John Dougherty, *the 10th of March, 1775, exclusive of the above quantity, &c., which having a preference by law to the warrants and rights upon which this grant is founded, liberty is reserved that the same shall be firm and valid and may be carried into grant; and this grant shall be no bar in either law or equity to the confirmation of the title to the same as before-mentioned and reserved.” And accordingly we find that on the 11th of April, 1798; a grant by letters patent, reciting warrant issued on 13th day of August, 1783, was issued to the said Thomas Fulton and John Dougherty, for the said forty-seven acres of land, which is the same land now in controversy. It is plain, therefore, that Dowell never having the legal title in him, the purchasers at the sale of his lands acquired no title. And it being conclusively shown that the legal title was in Fulton and Dougherty, derived by them from the commonwealth, and the appellants not connecting their title with them; they have failed to. show any legal title in themselves.
But failing in this, the appellants (who are the caveators) rely upon an equitable title based upon actual adverse possession for twenty years under a color of title, which they insist has now ripened into a perfect title. Let us now examine this claim of the caveators. If they succeed in asserting their claim as caveators against the caveatees, it must be upon the ground that they have the better title, derived not from any legal title in them, or in Dowell, under whom they claim, but upon the ground that they have had an adverse possession for the period of the prescriptive bar of the statute, which gives to them the better title against the caveatees.
Judge Baldwin, in the leading case of Taylor’s devisees v. Burnside, 1 Gratt. 165, 190, followed by this court ever since, has succinctly stated the rule governing a claim of title under adverse possession, as follows:
“When we look to the elements of an adversary possession *in reference to conflicting claims and the statutory *201prescriptive bar, we find it to consist of an exclusive, actual, continued possession, under a colorable claim of title.” It must be: first, exclusive; second, it must be actual as contrasted with constructive possession; and, third, such exclusive and actual possession must continue in the claimant or those utjder whom he claims for the period prescribed by the statute. These three things must concur in order to constitute a valid title founded on a claim of adverse possession.
Applying these principles to the case before us, it is clear that the caveators have not shown by the evidence such acts of actual and exclusive possession as entitle them to claim the land in controversy. The land which they purchased at the sale made by Commissioners Young and Kinney was an extensive boundary of wild mountain land, described by one of their own intelligent witnesses. Major Hotchkiss, “as a perfect wilderness, and did not look (in 1868) as if a human being had ever visited them.” There is some evidence, it is true, to show that cattle had been grazed on some parts of the land so purchased, and that brush fences had been placed upon some portions of the same, but even these temporary fences have gone down years ago and not a trace of them was left when the entry was made by the caveatees ; nor is there any evidence showing that the forty-seven and one-half acre tract in controversy was so grazed, or that it was ever enclosed. Indeed, one of the caveators, who was examined as a witness, admits that the fences on the land were two miles from the forty-seven and one-half acre tract; that the lands were wild mountain lands, and that the fences spoken of were only at such points in the mountains as was necessary to keep stock from leaving the lands in certain directions; that the mountains most generally themselves made a fence.
There was evidence also proving that one of the caveators *had frequently sent his son and others to get specimens of ores from the forty-seven and one-half acre tract, which had been sent to various parts of the United States, accompanied by maps he had. made of these lands. And he admits he had no other possession, except by sending for specimens of ores, and by such fencing and grazing as above described.
The court is of opinion that such acts of ownership and possession on the part of the caveators as are proved by the evidence in the record, are not sufficient to constitute the elements of an adversary possession, which in order to give title must be exclusive, actual and continuous, under a color of title, for the period of the statutory prescriptive bar. This would be true if the case stood alone upon the uncontradicted evidence of the caveators. But the evidence is conflicting and contradictory. Tt is proved by the caveatees that there was no actual possession by any one, and that the ore banks on the forty-seven and one-half acre tract were once mined by one Bryan, who had made or repaired a road in 1835; that all the work ever done on the forty-seven and one-half acre tract was done by Bryan, who died in 1832 or ’3; that no one had been in possession of the property since; that the whole was a vast wilderness of mountain land, over which cattle ranged generally, and it was ne sign of separate ownership that cattle ranged over these mountains; and that caveatees never knew of any claim of ownership or possession on the part of caveators, who were never in actual possession.
Now, in this case a jury being waived, the court tried both questions of law and fact, and there being a certificate of the evidence, this court will treat it as a demurrer to evidence. So treating it, it is impossible to conclude upon the evidence set out in the record, that the caveators have established, as against caveatees, a better right to the land in controversy.
*As to the second and fourth grounds of caveat set out by the caveators, it is sufficient to refer to the following agreement of counsel found in the record of the trial in the court below:
“It was agreed by the counsel for the caveators that the requirements of the statute. objected to in the specifications of the caveat, had been complied with, and these objections were waived.”
With respect to the third specifications, to-wit: “3d. Because said tract of land is not liable to entry. The survey filed by said applicant shows that said land has been surveyed and entered by Thomas Pulton and John Dougherty, March 10th, 1795. There is no evidence to show that said land has been forfeited, or that it has in anywise become liable to re-entry,” it is sufficient to say that the caveators do not profess to claim under Fulton and Dougherty; and it is no concern of theirs that the land has been surveyed and entered by the latter, unless they can show a better right in themselves. They cannot rely on any infirmity in the title of the caveatees, but can only succeed upon showing a better legal or equitable title in themselves. Carter v. Ramey, 15 Gratt., supra.
In his petition for a writ of error, the learned counsel for the caveators relies upon the fact that they had also located a warrant on the land in controversy, and claims that they (the caveators) are protected by the provisions of the 14th section of chapter 108, Code 1873. That provision is as follows: “If any person not having such possession and claim shall locate a warrant on such land without having given such notice, then the person having such possession and claim, may, at any time before a grant issues to the person thus failing to give such notice, locate a warrant on such lands and file with the ^register a caveat to prevent the issuing of a grant to the person thus failing to give such notice.” Now, in taking this position, for the first time in his petition here, the learned counsel assumes that the caveators were in actual possession of the land of controversy. This assumption, as has been seen, is not sustained, but is disproved by the record. But it is sufficient to say the point was not made in the court below. It was not alleged in the *202specifications as one of the grounds of caveat; it was not put in issue in the circuit court, and cannot be considered for the first time in the appellate court.
In Harper, &c., v. Baugh, &c., 9 Gratt. 508, it' was held by this court that the caveator must state in his caveat the grounds on which he claims the better right to the land in controversy, and he will not be permitted to abandon in the trial the right which he has set out in his caveat as that under which he claims, and prove a different right.
Judge Allen, delivering the opinion of the court in that case, says: “The law requires the caveat to express the nature of the right on which the plaintiff claims the land. The object of the caveat is, in part, to notify the cáveatee of the grounds on which the caveator claims the better right, that he come prepared to controvert it; and it would be surprise on him to permit the caveator to abandon at the trial the right which he had set1’ forth in his caveat, as that under which he claimed, and prove a different right. Such a course would lead to injustice, and is in conflict with the terms of the statute, which requires the nature of the better right to be expressed in the caveat.”
Upon the whole case, we are of opinion that there is no error in the judgment of the circuit court of Augusta county, and that the same be affirmed.
*ANDERSON, J.
The question is not whether the caveator has a good title against the world, but whether he has a better right than the caveatees. It is a comparison of their rights. The caveatees have no right at all. Their own survey, for which they seek to obtain a grant from the commonwealth, shows upon its face that the same land had been previously located by Fulton and Dougherty, and the record shows, had been carried into grant by them, by patent bearing date as far back as 1798. That being so, it is not waste and unappropriated land, and it has not been forfeited to the commonwealth. There is not a particle of evidence to show that it has been forfeited. There are no other lands, than such as fall within one or the- other of these two descriptions, that are subject to location by land office treasury warrant, or to grant by the commonwealth, except inclusive surveys. The commonwealth having previously parted with her title to other parties, she is invested with no title which can pass by her grant to others. And the statute expressly prohibits the register of the land office from receiving ■“into his office any plat and certificate of survey, which evidently comprehends the rights of any other than him for whom such survey is made, notwithstanding any deductions or reservations;” and it declares that “every such survey shall be void.” It evidently appears on the face of the survey itself, which the caveatees returned to the register’s office for a patent, that it comprehends the rights of others, for it says “it is the same land formerly surveyed to Thomas Fulton and John Dougherty, March the 10th, 1795, and reserved in the survey of Major Dowell’s 15,100 acre survey of May 1, 1795, containing 47j^ acres.” It may be said that the foregoing does not show that the survey returned to the register’s office “evidently comprehends” the1 rights of others, because the surveyor omitted to state that Fulton and Dougherty afterwards obtained a patent for their *said survey. It seems to me that what is stated does evidently show that the caveatees’ survey comprehends the rights of others. Fulton and Dougherty had rights, because they are reserved to them in Dowell’s patent; and this appears on the face of the caveatees’ survey. The prohibition is not made to depend upon evidence that the survey comprehends another’s legal title, but “rights” of others, which may be acquired by entry and survey. But the register has in -his office the patent which emanated to Fulton and Dougherty in 1798, a copy of which is filed in this cause. By turning to which, registered in his office subsequent to the date of the survey which is given, which he should do, he will find conclusive evidence that the survey for which he is asked to issue a patent to the caveatees, evidently comprehends the rights of others. And having this evidence on the face of the survey, and in his own possession, it seems to me that he could not issue a grant to the caveatees without violating a plain provision of the law; and that a grant so issued, by the express terms of the statute, would be void.
It was plainly the intention of the legislature to prevent the issuing patents for land, which evidently comprehended the rights of any other than him for whom the survey was made, in order to prevent the disturbance of titles to land and litigation and strife. And this is further shown by the next (the 43d) section, which prohibits the issuing a grant upon the survey returned to the register’s office, “unless there be endorsed on such survey the affidavit of the person applying for the grant, as well as that of the surveyor making the survey, that they verily believe that the land embraced in the survey has not been previously appropriated, or that it was at the time of the entry thereof liable to entry.” &c. The first they could not make, it is reasonable to presume, because they knew it had been previously appropriated. *But- if they knew it had been previously appropriated, or had such knowledge of it that they could not swear that they believed it had not been previously appropriated, it cannot well be perceived how they could make affidavit that they believed it was liable to entry at the time of the entry thereof. I do not mean to say or intimate, that they had not some views of their own which justified them in their own minds in that belief, but I cannot conceive what they were. Certainly under the law, if the land had been theretofore appropriated by others, it was no't subject to their entry, unless it had been forfeited to the commonwealth; and they have furnished not the slightest evidence of a forfeiture to justify their belief.
Of one thing I think there can be no question or contrariety of opinion, and that is, if a grant is issued to these caveatees, it de*203feats the purpose and intention of the legislature by these enactments.
These conclusions are well supported by authorities cited by Judge Fultz in the clear and forcible presentation of the case for the appellants in their petition. In Carter v. Ramey, 15 Gratt. 346, cited by him, the court said: “In this case it is agreed that the land embraced in the caveatees’ survey lies wholly within the boundaries of the tract of 4,000 acres, granted to one Richard Smith by patent bearing date 21st of February, 3768, and that the 4,000 acre tract had never been forfeited to the commonwealth, under her revenue laws or otherwise. Thus it is not liable to entry, either as waste or unappropriated or as forfeited land, and the entry of the caveator, so far as it embraced the land of the caveatee, being wholly unauthorized by law, was simply void, and could confer no equity whatever. And a grant founded upon such void entry would pass nothing, there being nothing in the commonwealth upon which the grant could operate.” In Levasser v. Washburn, 11 Gratt. 572, *the court held that, “in the absence of a statutory provision authorizing the location of forfeited lands, no title could be acquired to such land by entry and survey, and a patent obtained for them would be merely void.” Hannon v. Hannah, 9 Gratt. 146, is to the same effect.
If the grant for lands which have been previously appropriated, and which have not been forfeited, is void, surely the same causes which would avoid and annul it after it has been issued are sufficient to prevent the issuing of it.
But it is said that this may all be true; but how does it concern the caveators? They have no interest in the land, and no rights which can be affected by the issuing of the grant, and have no right to come into court to resist the issuing of the grant to the caveatees. Is this so? Have they no interest in the subject and no rights involved in the question?
They were the innocent purchasers of the identical land for which the caveatees seek to obtain a grant from the commonwealth under a decree of the circuit court of Augusta in 1854, about twenty-three years ago. The sale of them was confirmed by a subsecment decree of the court, and a commissioner (D. S. Young) appointed to convey the land to them, which conveyance he made, and the deed was recorded. The land they purchased contained 4,660 acres, and is part of a tract of 15,100 acres granted by the commonwealth to Major Dowell, upon a survey which included 47y2 acres of prior claims surveyed for Thomas Fulton and John Dougherty, which is reserved to them by the said grant. The land purchased by the caveators was laid off and surveyed from the main tract by the county surveyor, and no reservation made by said survey of the 47J4 acres. And no reservation of it is made in the decrees of sale and confirmation, or in the deed conveying the title to the caveators.
There is no evidence in the cause that they *knew that the 47J4 acres reserved by the patent was within the boundary sold and conveyed to them, or in fact that they were aware that any reservation at all was made by the patent, or that they had even seen the patent; and if they had seen it they could not have learned from that that any part of it was within the boundaries sold to them; and no reservation being made by the survey which was made under the supervision of the court, and the same being decreed to be sold without any reservation, and sold under that decree to them without any reservation, and so conveyed to them, they are the purchasers of all the land within the boundary sold to them, which embraces every foot of land embraced in the caveatees’ survey. And they are the purchasers of the same, and have held it under the decree of the court for more than twenty years, and by subsequent conveyance. And having purchased the whole tract of 4,660 acres by the acre, they have held the 47Ri acres precisely as they have held the balance of the tract ever since the purchase, and have paid for every acre of it. They allege that two of their joint purchasers, immediately after their purchase, took possession of it, and grazed cattle upon the whole tract, and fenced a portion of it, and that they have held peaceable and uninterrupted possession of it ever since, for more than twenty years.
There is no proof that these purchasers have ever had any visible occupation and improvement of any part of the forty-seven and a half acres, except the taking samples of ore from the ore banks upon it, and including the same in the maps of the 4,660 acres which Major Hotchkiss made for them and which were given to the public, and unless they can connect themselves with Elisha Bryan’s possession, I think that they have not proved such a possession as would, in a controversy between them and Fulton and Dougherty, or persons claiming under *their title, bar their better title. But I need not stop to pursue that enquiry, as it is not a question of title between them and the holders of the outstanding better title; that is not involved in this suit, but it is a controversy between them and the caveatees, which has the better right. It is not necessary that they, the caveators, should show a better title than Fulton and Dougherty. There is no controversy between them. Nor can the caveatees rely on an outstanding better title than another, with which they do not and cannot pretend to connect themselves. By so doing they show that they themselves have no rights. All that it is necessary for the caveators to show is, that they have a better right than the caveatees have, and that they have an interest which entitles them to object to the issuing of a grant to the caveatees.
They have such an interest. They have better right than the caveatees, which involves a comparison of rights, and consequently leads to an enquiry as to what are the rights of the caveatees as well as the caveators. The former, we have seen, have no rights *204whatever, but are attempting to acquire what the law prohibits to them. The latter, as we have seen, is a purchaser of the identical forty-seven and. a half acres of land under a decree of the court more than twenty years ago, and have paid for it, and have held such possession of it as would be good against the caveatees who had no title, nor color of title, the possession of a part being the possession of the whole as to them, though it might not be good against the holder of the better title, to bar which it would be necessary to have uninterrupted and exclusive possession, pedis possessionem, of a part of the forty-seven and a half acres, which cannot, however, benefit the caveatees; they have no connection with said title, and do not claim under it, but against it. It seems to me that the caveators have had such possession under color of title as Would have clearly entitled them to have maintained an action of trespass against *the caveatees, and consequently to maintain this caveat; and having shown that they have better right to the land than the caveatees have, as they bought and paid for it more than twenty years ago. have held it ever since under a decree of the court, and for years under a deed in execution of said decree, uninterruptedly until the present time, and paying the taxes upon it; that although they may not have as good a title as Fulton and Dougherty, they have a better right than the caveatees, and therefore I am of opinion to reverse the decree of the circuit court.
Judgment 'affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481975/ | MONCURE, P.,
delivered the opinion of the court.
On the 14th day of December, 1874, Juan E. Sherman, administratrix of Nathan G. Sherman, deceased, brought an action of trespass on the case against the Baltimore and Ohio Railroad Company, in the circuit court of Shenandoah county. The action was brought under the provisions of the act of 1870-71, ch. 29, p. 27, §§ 1, 2, 3 and 4, which are embodied in the Code of 3873, p. 996, ch. 145, §§ 7, 8, 9 and 10, which are as follows:
“7. Whenever the death a person be caused by the wrongful act, neglect or default of any person or corporation, and the act, neglect or default is such as would (if death had not ensued), have entitled the party injured, or if she be a married woman, her husband, either separately, or together with her, to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable if death had not ensued, *shall be liabli to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony, provided that in no case shall the recovery exceed the sum of ten thousand dollars.
“8. Every such action shall be brought by and in the name of the personal representative of such deceased person, and within twelve calendar months after his or her death. The jury in any such action may award such damages as to it may seem fair and just, and may direct in what proportion they shall be distributed to the wife, husband, parent and child of the deceased,
“9. The amount recovered in any such action shall, after the payment of costs and reasonable attorneys’ fees, be paid to the wife, husband, parent and child of the deceased. in such proportion as the jury may have directed, or if they have not directed, according to the statute of distributions, and shall be free from all debts and liabilities of the deceased; but if there be no wife, husband, parent or child, the amount so received shall be assets in the hands of the personal representative, to be disposed of according to law.
“30. Rights of action under this act shall not determine, nor shall such actions, when brought, abate by death of the defendant.” The declaration contains five counts, and is, in substance, as follows:
Tn the first count, it is charged that the defendant on the 3d day of September, 1874, on the track of a certain railroad running through the corporate limits of the town of Edinburg in said county, and within the corporate limits of said town, then and before the committing of the grievances thereinafter mentioned, in the possession and use of, and operated by said company, for the purpose of running steam locomotive engines and coaches on and over the same, did carelessly and negligently, and *with great force and violence run and drive its engines and coaches upon and against said Nathan G. Sherman, there then being, and thereby, then and there, with said engine and coaches, did so greatly wound said Nathan G. Sherman, that by reason thereof he then and there died, and his death was caused by said wrongful act, neglect and default of said railroad company, wherefore the plaintiff, administratrix aforesaid, says she is entitled to recover damages to the amount of $10,000 under the laws of Virginia for such cases made and provided, and therefore she brings suit, &c.
In the second count it is, among other things, charged' that the defendant did so carelessly and negligently manage and conduct a train of cars, that by reason thereof the -rear car of said train became detached and separated from the other cars of same, and being so detached and separated, ran with great force and violence against said Nathan G. Sherman there then being, and thereby did so greatly wound him that by reason thereof he then and there died, &c.
In the third count it is, among other things, charged that the defendant did so carelessly and negligently manage and conduct a train of cars, that by reason thereof the rear cars.of the same became detached and separated from said train while it was in rapid motion, and being so detached and separated ran with great force and violence against said Nathan G. Sherman, who was walking within the corporate limits of said town of Edinburg on the track of said railroad, in the same direction that said train was running, and who had stepped on said track after said train passed him, and in the interval between said train and said detached rear cars, and thereby with said cars then and there did so greatly wound said Nathan G. Sherman, that by reason thereof he then and there died, &c.
In the fourth and fifth counts it is, among other things, ’^charged that the said injury complained of was done “on the track of a certain railroad in Shenandoah county,” instead of “a certain railroad running through the coroporate limits of the town of Edinburg in said county,” as charged in the other counts.
The defendant demurred to the declaration, and to each count thereof, and the plaintiff joined in the demurrer. The defendant also put in the plea of not guilty, on which the plaintiff joined issue.
On the 25th day of August, 1875, the demurrer being argued, was overruled, and a jury was sworn to try the general issue joined between the parties, but being unable to agree after being together several days, a j uror was withdrawn and the cause continued.
On the 8th day of December. 1875, anothey jury was sworn to try the case, which, after being several days engaged in such trial, at length found a verdict in these words: “We, the jury, find for the plaintiff upon the issues joined, and ascertain the damages of said plaintiff at the sum of $3,000.” And on the 20th day of December, 1875, a judgment was rendered in favor of the plaintiff against the defendant for the said sum of $3,000, with legal interest from the 18th day of December, *2061875,- until paid, and the costs of plaintiff in that behalf expended.
To the said judgment the defendant applied to a judge of this court for a writ of error and supersedeas; which was accordingly awarded.
The first assignment of error in this case is that the court erred in overruling the demurrer to the declaration and each count thereof.
We are of opinion that the circuit court did not err in this respect. Neither is the whole declaration, nor is any count thereof, demurrable. The defendant is sued as a corporation, and there is no affidavit in the case denying such incorporation. In such case it is expressly made ^unnecessary, by statute, to prove the fact of the incorporation. Code, p. 1094, ch. 167, § 40. Much less is it necessary to aver such fact in the declaration. 3 Robinson’s Pract. (new edition), p. 524, and the cases cited. This court as well as the court below will, ex officio, take notice of the fact.
The second assignment of error is that the court erred in allowing the evidence of the witness, Hockman, to go to the jury in reference to the family left by the deceased, N. G. Sherman, after objection.
This assignment of error is founded on the first and second bills of exceptions taken in the case. The first states that upon the trial of the cause, after the jury .was sworn to try the issues joined, the plaintiff, before she had completed the examination of her witnesses in chief, called C. Hockman as a witness in her behalf, and propounded to him the following question, after having examined him as to other matters: "State whether N. G. Sherman left at his death a widow, and whether she is still living?” To which question the defendant objected, but the court overruled the .objection and allowed the witness to answer the same, who thereupon answered: “That the said Sherman left a widow who is now living, and who is the plaintiff in this suit;” to which said ruling of the court the defendant excepted. The second bill of exceptions states that upon the trial of the cause the plaintiff, before she had completed the examination of her witnesses in chief, called C. Hockman as a witness in her behalf and amongst other questions, propounded to said witness the following: “State if the said N. G. -Sherman left any children that 'are now living?” To which question the defendant objected, but the court overruled the objection and allowed the witness to answer the question, and said witness thereupon answered that the said Sherman left five children now living, aged respectively twelve, ten, eight, six, four or five years — the *first, second and fourth being girls, and the third and fifth boys; to which ruling of the court the defendant also excepted.
We are of opinion that the circuit court did not err in allowing- the said evidence of the witness, Hockman, to go to the jury. The facts to which said evidence relates are pertinent and material in regard to the ascertainment and apportionment by the jury of the amount of damages to be allowed under the statute (Code, p. 996, ch. 145, §§ 7, 8 and 9); and there is no necessity to make any averment in regard to the same in the declaration, as the right of action is not dependent thereon, but only the quantum and distribution _ of the damages are affected thereby. It is not necessary to defer the introduction of such evidence until after the finding by the jury of the right of action in favor of the plaintiff; but all the evidence in the case, not only in regard to the mere right of action, but also in regard to the quantum and distribution of the damages, may properly be introduced together, and before the jury retire to consider of their verdict. See Halt. & Ohio R. R. Co. v. Whitman’s Adm’r, 29 Gratt. 431.
The third assignment of error is, that the circuit court erred in overruling the motion of the defendant to set aside the verdict and grant a new trial on the ground that the verdict was contrary to the evidence, contrary to the law. and contrary to the instructions given by the court, as stated in the third, bill of exceptions.
The question presented by this assignment of error is, by far, the most important one arising in the case, being in effect, whether upon the merits, the verdict ought not to have been in favor of the defendant. even conceding the correctness of the decision, by the court of all the other questions decided in the case.
The facts proved on the trial of the cause are certified in the said third bill of exceptions. According to the facts' *as. so certified the plaintiff’s intestate was killed on the track of the defendant’s railroad by the cars of the defendant, which ran over him while on his way from his home to his place of business in the town of Edinburg, the two places being distant from each other about three-quarters of a mile. It is not pretended that the act which caused the death was wilfully done by the defendant. It was certainly the result of an accident, but whether such accident was occasioned by the neglect of the defendant, and whether there was contributory negligence on the part of the plaintiff’s intestate in producing the occasion, and whether, if there was, the negligence of the defendant was such and so gross as, notwithstanding any such contributory negligency, to render the defendant responsible for the damages sustained by the plaintiff from the accident aforesaid, are the questions upon which this most important assignment of error seems to depend.
The facts of this case, as certified in the third bill of exceptions, are as follows:
“That N. G. Sherman, the plaintiff’s intestate, on the morning of the 3d of September. 1874, at an early hour, left his home, distant some three-fourths of a mile from the phosphate works in Edinburg, for the purpose of going to said phosphate works, where he was employed as a workman; that his home was some five hundred yards outside the limits of the corporation of Edinburg, and that he traveled a path leading across a partially plowed field to the rail*207road, and which path crosses said road near the mouth of the cut situated about seven hundred and seventy-five yards northeast of the railroad depot at Edinburg; that when said Sherman got to the railroad he started down the track, either between or outside the rails, in the direction of said phosphate works, which are situated a short distance from the railroad depot at Edinburg, on the southeast side of said ^railroad; that he traveled two hundred and three yards in the direction of said phosphate works along the railroad track until he reached a point where he was killed, designated on the map by a red mark, which is two hundred and three yards from the point where he first came upon the track, and three hundred and eighty-nine and one-third yards from the said phosphate works; that he was a man of sober and industrious habits, and that he was a man of ordinary intelligence, and had been a schoolteacher — had taught a country school for a few months; that he was a man of fair English education; that he provided well for his family and gave them every attention for a man in his condition of life.
It was further proven that the defendant’s cars, known as the through freight train, consisting of engine No. 159, a camel-back ten-wheel engine and tender, and eleven freight cars, with a passenger car in the rear, left Sandy Hook, on the Baltimore and Ohio Railroad, at Ll:15 o’clock on the night of September 2d, 1874, in charge of Conductor Lewis Earr, with George Riley as brakeman, John C. Dempsey as engine-man, Lewis Beard as pilot, and William Donnovan as fireman; that when the train reached Winchester, which is about thirty-five miles northeast of Edinburg, one of the said freight cars was taken from said train, and another car was added to the train at Strasburg Junction, a station seventeen miles from Kdinburgj that said last named car was the seventh car from the engine; that when the train reached Woodstock, a station five miles northeast of Edinburg, the train was behind time, and just below said town of Woodstock, the train became uncoupled on an up grade by the breaking of a coupling-pin, which had been put in at Strasburg Junction in the bumper of the car which had been attached to the train at that point, and the engine with the six front cars ran past the depot at Woodstock to a point some one hundred and fifty yards southwest *of said depot, which breaking was not remembered by any of the hands on the train except George Riley, who coupled it up; that it then backed and was coupled to the rear part which had been left some eight hundred yards northeast of said depot, by said George Riley, brakeman; that the train then went on after taking on a passenger at Woodstock. Mr. W. W. Logan, who was going to Staunton; that the train ran slowly up the grades until it crossed a point known as the summit, which is about one and one-half miles northeast of Edinburg depot, and from which point to the depot at Edinburg, the railroad is down grade at the rate of thirty-four feet to the mile; that there are two cuts through which said railroad passes between the summit and Edinburg, one of them being about one hundred and fifty or two hundred yards long, the other about one hundred and fifty or two hundred yards long, and the southwestern mouth of the one nearest Edinburg being situated two hundred and thirty-six feet from the point where said N. G. Sherman came upon said railroad, out of the plowed field over which he came; that the railroad runs on a considerable curve through said cut, and that about the time the engine gol to the mouth of the cut next to Edinburg, the fireman discovered that the six rear cars had become detached from the rest of the train, and were about thirty yards in rear of same; that he immediately told the engineman_; that the engineman immediately blew his whistle for brakes to be put down on the rear part which had become detached; that he also opened his valves and ran away from the rear part; and that he ran with the engine and other cars past the depot and water station at Edinburg, and stopped his engine about the bridge across Stoney creek, which bridge is one hundred and forty-five yards from the depot; that as soon as the whistle was blown for brakes, the conductor, who was in the passenger car in the rear of the detached section, responded to the ^signal and went to the brake on the front part of the passenger car, which was a double brake that operated on the front and rear of the car at the same time, and which he put down; the brakeman was out on the platform when the signal was given and immediately went forward on the train, putting down the brakes, and that they checked the speed of the said detached section of cars within from one hundred to two hundred yards from the mouth of the cut and before they reached the point where said Sherman was killed; but the evidence was conflicting as to the rate of speed at which both section were running from a point on the line of the road about one hundred yards north of the point on said road opposite Sherman’s house to the point where Sherman was killed. At the first-named point the testimony of the defendant fixed the rate of speed at from six to twelve miles per hour — that of the plaintiff at thirty miles or passenger rate, and from the mouth of the cut next Edinburg to and beyond the place where Sherman was killed, the evidence of the defendant fixed the rate of speed from four to eight miles per hour, and the evidence of the plaintiff was that the running was very rapid and twice as fast as their usual rate of speed at and along that part of the line; that said Sherman got out of the way or was not injured by the eng’ue and front part of the train, but that he stepped on the track just as the detached section reached the point where he was killed, and that he was run over and killed by s',;d detached section of cars, and was found lying on his back with his head towards Woodstock and his feet towards the Ed'n-burg depot, with his body and right leg inshle the track between the rails, on the east side, *208and his left leg and arm outside the rail; that the engineman, pilot and fireman on the front part of the train did not see him as they passed, and that neither the conductor nor brakesman who had charge of the detached *section saw nor knew he was on or near the track; that none of said employees knew that he was killed until the train arrived at Harrisonburg, a point on the road about thirty-four miles southeast of Edinburg; that the rear part of the train which had become detached, was let gradually run down to a -point near the depot at Edinburg, and that when it got there the engine and other cars were backed and coupled to it, and that the engine took water and went on with the train in the direction of Harrisonburg; that when the rear part came down to the point near the depot an old hat was discovered on the bumper near the left-hand side — going west — of the car, which was the front car of said detached section, and which was a house car; and that George Riley, brakeman, saw the hat, and it was where the party coupling it up could see it, but no one about the depot knew that any one was hurt or killed until after the train had left the depot and started to Harrisonburg, when it was reported that a man had been killed; that there were some hands in the employ of the railroad company at the depot -who, with others, went back in tire direction where the deceased was lying, and took charge of his remains and brought them to the phosphate house; that a telegram was' sent by the telegraph operator at Edinburg, to Mr. J. H. Averill, the assistant supervisor of the railroad, who was at the time at Sandy Hook, and that he telegraphed to the conductor of the train at Harrisonburg that his train had killed a man, which was the first information any of the employees bn the train had of the accident; that the accident occurred about sunrise on the morning of September 3d, 1874; that the weather had been dry for some time before; that it was a little foggy, and that the engine threw down considerable smoke, as is usual with freight camel-back engines; that from the point where said
Sherman came upon the track to where he was killed, a *distance of two hundred and three yards, the track is perfectly straigh and runs on a high embankment or fill, in some places forty feet high, with nothing to obstruct the view; that there was a path on either side of the track and ample room for a train to pass without injuring a person walking in either path; that there was also a path on either side of the embankment which would lead to the phosphate works, and a wagon road from a point northeast of where he was killed to the phosphate works, near the foot of said embankment; that there was a path across the railroad about two hundred or two hundred and twenty-five yards south of the point where he was killed, but no path across the road near where he was killed; that Sherman took the route of the railroad to the phosphate house on his way to and from his work; that on Sunday people from the villages would walk out on that part of the track; that people going to Edinburg from Taylortown and that direction, frequently walked that route, and Hockman, a witness for plaintiff, who had lived on the road from the time it was built, had during that time met as many as one hundred people on said railroad, and that cattle passing on said road would walk the paths at either side of the track, and to some extent the road had been used by country people — one or two families going to the stores in Edinburg from the northwest, the route from Taylortown that way being five hundred yards nearer to the depot and adjacent stores; that the point where the deceased was killed was within the corporate limits of Edinburg, a town of five hundred inhabitants, two hundred and eighty-one yards within said corporate limits, but some- distance .from that part of the town which is built up, and some distance from any street or alley; that there were no houses near the point and none between the places where he came upon the track and the phosphate works, except one small house at the right or west *side of the road, designated on the map; that the engine was a camel-back ten-wheel engine, not as pawerful as some engines of her make, but strong and powerful enough for the purposes for which she was used; that the track from the north end of the cut next to Woodstock to the mouth of the cut next to Edinburg was in its usual condition; that considerable work had been done to it since the Baltimore and Ohio Ráilroad Company took possession of the road in September, 1873, and that although some of the cross-ties were sometimes found loose, and some of the joints of the rails were sometimes lower than at other points (some dipped as much as an inch lower), yet it was regarded by the track-walker and supervisor of the track and the hands employed to keep it in order, as the best part of their track, and regarded by all those who had any connection with the road as in good order and perfectly safe for trains; that the corporate limits of the town of Edinburg embraces a large quantity of farming land, some of it very rough and comparatively inaccessible, and a portion of this rought land lies adjacent to a part of the line of the railroad within the said corporation, and that it is three-fourths of a mile long by three-eights of a mile wide, parallel with the Valley turnpike; and the corporate limits of Edinburg was only proven after a survey by an engineer, run according to the corporate lines heretofore established as the limits of said town as far back as 1857, and that the depot agent who was in charge of the depot when Sherman was killed, was present at said survey, but who was examined by the plaintiff and did not know at the time of the re-survey where the lines of the corporation west of the railroad ran — and by no other testimony; that from the point at which said Sherman was killed a person could see in the direction from which the train came one thousand and fifty-six feet, or three hundred and *fifty-two yards, *209along the line of said railroad track, there being no intervening object, and into the mouth of the cut, the distance to the mouth of the cut being eight hundred and forty-five feet; that one witness, at the distance of four hundred yards, and at an angle of forty-five degrees from said Sherman, observed him step upon the track just as the train struck him; that another witness at a distance of about ninety yards, and at right angles to him, also observed the train strike him, as it was afterwards shown by his finding the body of said Sherman on the track at a point where he had seen something white fly down the bank, which he took to be a paper thrown off by a train hand, but which proved to be a cloth around his. Sherman’s dinner, which he had in a basket, which was also found at the foot of the embankment. Said witness, upon going to the foot of the embankment, found the basket, and then went up to the track and found the body; that the attention of all the parties who observed the train that morning (except Isaac Ruby, the witness who was ninety yards at right angles, as aforesaid, from Sherman), being some six or eight in number, was called to the train by the unusual whistling of the engine as it came out of the cut, and before it reached said Sherman and after it had become detached. It was also proven that freight trains always carried a passenger car or conductor’s car, commonly called a caboose, at the rear end of every train; that the attention of Charles Holtzman and G. W. Miley, two of plaintiff’s witnesses, who were one hundred yards off, was attracted to the fact that the train, as it passed the depot at Woodstock, after it had broken loose as aforesaid, had no passenger car or caboose attached — the same having become uncoupled before it got to Woodstock, and the witness, Logan, who was at the depot observed the same thing; that it was the duty of the engineman, when he discovered his train was uncoupled, to blow for brakes and then to run far ^enough away to keep the rear or detached part from running into his train; that it was also the duty, under the rules of the company, of those in charge of the rear part, to run it forward gradually to connect with the train, or to move forward to a point where a safe view could be obtained front and rear.
It was also proven that there was no brake on the front part of the foremost car of the detached section, but the brake was at the rear of said car, and that freight cars generally had but one brake; that the cause of the train becoming uncoupled after it passed the summit was the jumping out or breaking of a coupling-pin between the same two cars which became uncoupled near Woodstock, but not in the same bumper, but no part of the pin was found in the bumper, where it it always found if the pin is broken; that said coupling-pin was a regular Baltimore and Ohio Railroad pin, at least ten inches long, of usual length and thickness, which had been placed in the bumper by the brakeman, George Riley, before the train left Harper’s Ferry; that the usual length of the Baltimore and Ohio Railroad pin was not less than ten inches, and not less than one and one-fourth inches in diameter. It was further proven that pins came out from other cause than those named — from being too short or worn smooth; that a pin of greater length than that used would take longer in coming out, but that the pin used was as long as the pins usually used by other roads, and longer than that of the Chesapeake and Ohio, and Washington City, Virginia Midland and Great Southern railroad, and was considered safe; but that the Manassas and Chesapeake and Ohio railroads used smaller pins; that the coupling used between said cars was the regulation coupling of the Baltimore and Ohio Railroad, a straight link coupling thirteen inches long and one and one-quarter inches in diameter, and that it was a safer link and better *than the crooked link, the only other used by railroads, and the pin was a regulation pin, and that the regulation pin was considered a safe and good ldnd of pin by railroad men; that the two which became uncoupled were both house cars — one was known as a high bumper, the other as a low bumper car, which bumpers varied in height ten inches, and that the pin broke in the lower bumper casting at Woodstock, and the pin that jumped out or broke was in the high bumper casting, near Edinburg; that said last named pin was the largest and best pin the brakesman could get at Harper’s Kerry; that it was a sound and good pin, and was examined by the brakes-man before he put it in the casting at Harper’s Ferry; that the rear part of the train which became detached, and which ran over Sherman, consisted of a passenger car, four gondolas and a house car, the passenger car being the hindmost one, and, the house car the foremost one; that both freight and passenger trains are liable at all times to become uncoupled by the breaking or jumping out of coupling pins; that such accidents are of very frequent occurrence on railroads, and that no means has yet been discovered or devised to prevent it; that all the hands on the said train were proven to be competent hands, and of general good character as prudent and diligent hands; that the engineman, John C. Dempsey, was an experienced engineman, and had been in the employ of the company for some time, but had only made a few trips over the road from Harper’s Perry to Harrisonburg, commencing on the 26th August and continuing until after the 3d of September, 1874, to-wit: to October 24th; that the pilot, L. Beard, was an experienced brakesman who was acquainted with the road, and who was put on the engine with said John C. Dempsey to show him the road, and had been with said engineman as pilot from the 26th August, 1874, on every trip he made over said road up to and in-eluding ^September 3d, 1874; that the fireman was an old and experienced fireman, and that the conductor and brakes-man were experienced and careful men, who understood their business, but the conductor *210had only been running over the road from Strasburg to Harrisonburg from the 20th of August, 1874, but the brakesman had been on said part of the road since September, 1873; that when the train crossed the summit‘the engineman shut off steam and ran down the grade; that after they crossed the summit one or two brakes were put down-on the rear part of the train; that the brakesman’s duty was to attend to the brakes and also to any baggage, and also the company’s mail, both of which he received and delivered at stations, and it was proven that W. W Logan was the only passenger.
It was further proved that there was a wagon road leading from Sherman’s home to the phosphate house, which was proven by Isaac Ruby, one of the plaintiff’s witnesses, to be always travelled when he lived in said house and worked at said phosphate works, which he did just previous to said Sherman’s occupancy of said house.
It was further proven that the track-walker on the road between Edinburg and Woodstock passed over the road from Edinburg to Woodstock, through the two cuts, on the day before- Sherman was killed, and also on the same day after he was killed, and that he found the road on both days in good order..
It was also proven by plaintiff that said Sherman left a widow and six children, one of whom has since died; that he was a man about thirty-five years of age.
Defendants also gave in evidence the map or diagram of the locality of the accident, which was proven to be a correct diagram made from actual measurement, and also profile maps of the same made from actual measurement, which maps are marked “A,” “B” and “C.”
*It was also proved that from eight to ten trains pass over said railroad every day, and have done so since 1873.
It was also proven that said Sherman had worked for his board and twelve dollars per inonth, and this was the only evidence of the value of his services.
Plaintiff also gave in evidence to the jury the map of the town of Edinburg, which is recorded in the deed book of said county of Shenandoah (a copy of which is marked “D” — Clerk).
It was further proven that after the remains of the deceased were taken to the phosphate house, the deceased was examined by Dr. D. W. Prescott, one of his employers and one of the owners of the phosphate works, but which fact was proven by another person introduced as a witness; that at the two points where the train became detached on the morning of September 3d, 1874, George Riley, the brakesman, was the only person who examined into the cause of the breaking loose of the train, and he coupled up the detached sections both at Woodstock and Edinburg; that it was the general duty of the conductor to see to the coupling of his train, he being responsible for it, in person or by his subordinates, for whose conduct he is responsible.
It was proven that the schedule time of the said train was an average for the whole distance, from Sandy Hook to Harrisonburg, of twelve and one-half miles per hour; that the train was behind time, but as to what length of time the evidence was conflicting; that between Woodstock and Edinburg, on the morning of September 3d, 1874, the conductor and brakesman who had been running the train during the whole night appeared to be sleepy and drowsy in appearance and movement before the train was discovered to be detached, but that they were in and out of the car, and when the train was discovered to be uncoupled one of them was at the brake *on the passenger car; that it was the duty of the brakesman to be on the outside of the train on starting down a grade.
It was proven that a detached train of six cars going down a grade of thirty-four feet to the mile could be stopped within three hundred.and fifty yards by the active exertions of, a conductor and brakesman by the application of all the brakes, and that it was the conductor’s duty to aid in putting down the brakes; that when the rear part of the train was seen coming around the phosphate house, by the parties at the depot, it was coming, slowly and gradually, and stopped before it got to the water tank; that the length of an ordinary railroad car is thirty-two feet, and that the length of an engine and tender is fifty feet from pilot or cow-catcher to the end of tender. Passenger cars average forty feet in length; that the railroad company were not in the habit of using bell-ropes on freight trains- or such trains as the one hereinbefore described, and had not used them for several years, the same having been discarded as being too inconvenient and impracticable for freight trains, and that there was no bell-rope on this train connecting the rear car with the bell upon the engine; that such ropes would frequently but not always give notice of the separation of a train at the time when is occurred, but that it was difficult of use on freight trains on account of the frequency of their getting out of place, becoming fastened, and sometimes ringing the bell by accident and not by design, and because the company regarded them as useless, and that they have been generally discarded by railroads.
It was further proven that the train was first discovered by the men on the engine and by the conductor on the detached portion of the train, and by the blowing for the brakes, to be broken loose at a point somewhere between a point opposite Sherman’s house and the north end of *the cut next to Edinburg, which cut it between one hundred and fifty and two hundred yards long.
It was further proven that the trains uniformly stopped at Edinburg, and that the trains were allowed, under special orders, to run fifteen miles per hour, but not to exceed that rate. It was proved that the penalty of the violations of the rules of the Baltimore and Ohio Company by its employees was suspension or dismissal.
First. Was the accident which produced the death of the plaintiff’s intestate, Nathan *211G. Sherman, occasioned by the neglect of the defendant,, the Baltimore and Ohio Railroad Company?
The defendant’s cars which occasioned the damage, were known as the through freight train, consisting of a camel-back ten-wheel engine and tender and eleven freight cars, with a passenger car in the rear; and was under the charge of Lewis Farr as conductor, George Riley as brakesman, John C. Dempsey as engineman, Lewis Beard as pilot, and William Donnovan as fireman. It is not pretended that the number of hands in charge of the train was not ample for its safe and proper management, nor that they were not properly distributed among the necessary portions of the work. It is certified as part of the facts proved in' the cause, “that all the hands on the said train were competent hands, and of general good character as prudent and diligent hands; that the engineman, John C. Dempsey, was an^ experienced engineman, and had been in the employ of the company for some time, but had only made a few trips over the road from Llarper’s Ferry to Harrisonburg, commencing on the 26th August, and continuing until after the 3d of September, 1874, to-wit: to October 24th; that the pilot, L. Beard, was an experienced brakesman, who was acquainted with the road, and who was put on the engine with said John C.' Dempsey to show him the road, and had been with said engineman as pilot from *the 26th August. 1874, on every trip he made over said road up to and including September 3d, 1874; that the fireman was an old and experienced fireman, and that the conductor and brakesman were experienced and careful men, who understood their business; but the conductor had only been running over the road from Strasburg to Harrisonburg from the 20th August, 1874, but the brakesman had been on said part of the road since September, 1873.”
It does not appear that any of the hands, thus proved to have been sufficient in number and competency for the duties thev had to perform on the occasion referred to, were remiss in performing the duties which devolved upon them on the special occasion referred to. Such an uncoupling of cars as occurred on that occasion, was proved to have been a matter of common, if not frequent occurrence, without any default on the part of the company. The certificate of facts on this subject being: “That the cause of the train becoming uncoupled after it passed the summit, was the jumping out or breaking of a coupling-pin between the same two cars which became uncoupled near Woodstock, but not in the same bumper, but no part of the pin was found in the bumper, which is always found if the pin is broken; that said coupling-pin was a regular Baltimore and Ohio Railroad pin, at least ten inches long, of usual length and thickness, which had been placed in the bumper by the brakesman. George Riley, before this train left Harper’s Ferry; that the usual length of the Baltimore and Ohio Railroad pin was not less than ten inches, and not less that one and one-fourth inches in diameter. It was further proved that pins came out from other causes than those named — from being too short or worn smooth; that a pin of greater length than that used would take longer in coming out; but that the pin used was as long as the pins .usually used by other roads, and longer than that of *the Chesapeake and Ohio, Washington City, Virginia Midland and Great Southern railroads, and was considered safe; but that the Manassas and Chesapeake and Ohio railroads used smaller pins; that the coupling used between the said cars was the regulation coupling of the Baltimore and Ohio Railroad, a straight link coupling, thirteen inches long and one and one-quarter inches in diameter, and that it was a safe link, and better than the crooked link, the only other used by railroads, and the pin was a regulation pin, and that the regulation pin was considered a safe and good kind of pin by railroad men; that the two which became uncoupled were both house cars; one was known as a high bumper, the other as a low bumper car, which bumpers varied^ in height ten inches, and that the pin broke in the low bumper casting at Woodstock, and the pin that jumped out or broke was in the high bumper casting near Edinburg; that said last named pin was the largest and best pin the brakesman could get at Harper’s Ferry; that it was a sound and good pin, and was examined by the brakesman before he put it in the casting at Harper’s Ferry; that the rear part of the train which became detached, and which ran over Sherman, consisted of a passenger car, ’ four gondolas and a house car, the passenger car being the hindmost one, and the house car the foremost one; that both freight and passenger trains are liable at all times to become uncoupled by the breaking or jumping out of coupling pins; that such accidents are of very frequent occurrence on railroads, and that no means have yet been discovered or devised to prevent it.”
It was proved that the railroad, at and near the place where the accident occurred, was in good order at the time it occurred, it being certified as a fact “that the ‘track-walker’ on the road between Edinburg and Woodstock, passed over that part of the road through the two cuts on the day before Sherman was killed, and also on ■ *the same day after he was killed, and that he found the road on both days in good order.” It does not appear that the discovery was not made on the train of the uncoupling of the cars near Edinburg in a reasonable time after it occurred, or that the best means were not used to restore their connection, or that it was not restored in a reasonable time after the separation occurred. It does not appear that there was any want of diligence on the part of any of the hands on the train in looking out, after being informed of such separation, for any persons who might happen to be upon the track, and warning them against danger. The deceased, though on the track when the front part of the train approached the place where he was walking, stepped off the track before it *212reached him, and thus saved himself at that time; but he stepped back upon the track after the front part of the train had passed, and precisely at the time of so stepping back he was struck by the rear part of the train and killed; so that none of the hands on the train had time to warn him of his danger even if they had seen him when he stepped back on the track, which they did not.
“The evidence was ' conflicting,” according to the certificate of facts, “as-to the rate of speed at which both sections were running, from a point on the line of the road about one hundred yards north of the point on said road opposite Sherman’s house, to the point where Sherman was killed. At the first-named point the testimony of the defendant fixed the rate of speed at from six to twelve miles per hour, that of the plaintiff at thirty miles, or passenger rate, and from the mouth of the cut next Edinburg to and beyond the place where Sherman was killed, the evidence of the defendant fixed the rate of speed at from four to eight miles per hour, and the evidence of the plaintiff was that the running was very *rapid and twice as fast as their usual rate of speed at and along that part of the line.”
If there was any neglect of duty on the part of the defendant which can be said to have occasioned, in whole or in part, the accident which produce the death of the plaintiff’s intestate, it must have been the undue speed at which the train was running when the accident occurred. Upon that question we have seen the evidence was conflicting; according to that of*the defendant, the speed was certainly not undue, but was very moderate. According to that of the plaintiff, such speed exceeded what had been prescribed by the regulations of the defendant, but whether it can be said to have been undue or not. so far as concerns this case, is, to say the least, very doubtful. These regulations are adopted for the convenience and safety of the defendant and of those who travel upon the road as passengers in the cars of the defendant, or those who cross the road at a place where they have a legal right to cross it, and not of those who may choose to walk upon the road for their own convenience or pleasure, and without any legal right so to use it. It was “proven that the trains uniformly stopped at Edinburg, and that the trains were allowed, under special orders, to run fifteen miles per hour, but not to exceed that rate. It was proved that the penalty of the violation of the rules of the Baltimore and Ohio Company by its employees was suspension or dismissal.”
But even if there was any neglect of duty on the part of the defendant which can be said to have occasioned, in whole or in part, the accident which produced the death of the plaintiff’s intestate, it is necessary to enquire:
Secondly. Was there contributory negligence on the part of the plaintiff’s intestate in producing the cause of his death? We think there certainly was. He chose to run the risk of walking on the railroad as a part of his *way from his home to his place of labor at the phosphate works, situated a short distance from the railroad depot at Edinburg. “He travelled two hundred and three yards in the direction of said phosphate works, along the railroad track until he reached a point where he was killed; which is two hundred and three yards from the point where he first came upon the track and three hundred and eighty-nine and one-third yards from the said phosphate works.” There was no right of way, public or private, along this part of the railroad track, except the public right of way of the Baltimore and Ohio Railroad Company. There was no necessity for using it as a private way, even if there was any convenience in so doing. There was a path on each side of the track which might just as well have been used for walking as the track, and just as conveniently, and with perfect safety. “It was further proved that there was a wagon road leading from the Sherman’s house to the phosphate house, which was proven by Isaac Ruby, one of plaintiff’s witnesses, to be always travelled when he lived in said house and worked at said phosphate works, which he did just previous to said Sherman’s occupancy of said house.” Sherman knew that trains travelled the railroad many times every day, and might travel it at unexpected times, and that trains might unexpectedly become uncoupled at any time, and that a person who chose to walk on the track instead of walking in one of the side paths or in the road at the foot of the embankment on which the railroad ran, must do so at his own risk, and must take care to look out for and avoid danger by stepping off the track in time.
It is true the place where the accident occurred was within the territorial limits of a town containing five hundred inhabitants; but it was not within the settled or improved part of the town, and was not in one of its streets; but was “some distance from that part of the *town which is built up, and some distance from any street or alley; there were no houses near the point, and none between the place where” Sherman “came upon the track and the phosphate works, except one small house.” “The corporate limits of the town of Edinburg embrace a large quantity of farming land, some of it very rough and comparatively inaccessible, and a portion of this rough land lies adjacent to a part of the line of the railroad within the said corporation.” “From the point at which said Sherman was killed, a person could see in the direction from which the train came 1,056 feet, or 352 yards, along the line of said railroad track, there being no intervening object, and into the mouth of the cut, the distance to the mouth of the cut being eight hundred and forty-five feet.” The attention of all the parties who observed the train that morning, except Isaac Ruby, “being some six or eight in number, was called to the train by the unusual whistling of the engine as it came out of the cut, and before it reached said Sherman, and after it had become detached. It was also proven that freight trains always carried a passenger car or conductor’s car, commonly called a *213caboose, at the rear end of every train; that the attention of Charles Holtzman and G. W. Miley, two of the plaintiff’s witnesses, who were one hundred yards off. was attracted to the fact that the train as it passed the depot at Woodstock, after it had broken loose as aforesaid, had no passenger car or caboose attached, the same having become uncoupled before it got to Woodstock; and the witness Rogan, who was at the depot, observed the same thing.
That the defendant did not prevent Sherman from walking on the track of the railroad, or object to his doing so, was merely a permission to him to do so at his peril. He knew the danger he thereby incurred, and how careful he would have to be to guard against it; *and if he chose to encounter it on his own responsibility, the defendant was willing that he should do so. It cannot be inferred from such permission that the defendant intended to impair or diminish in the least degree its right to the full use of the road. To have that effect the evidence of their consent, if it could be given at all, should at least be very clear. It is not pretended that there is any such evidence in this case.
The instinct of self-preservation seemed therefore to require that Sherman should use incessantly, while he was walking upon the track, both his eyes and his ears to discover any signs of danger, whether approaching from behind or before. Had he heeded this plain admonition he would certainly have escaped all danger. His walking upon the track instead of in one of the paths on the sides of it, and his not properly looking out or listening for danger while so doing, have been the chief, if not the only cause of death, and at least made him guilty of contributory negligence in regard to such results. It now only remains to enquire on this branch of the subject:
Thirdly. Was the negligence of the defendant, if any, such and so gross as. notwithstanding such contributory negligence, to render the defendant responsible for the damages sustained by the plaintiff from the accident aforesaid0
We think that a negative answer to this question plainly results from what has already been said, and we will therefore say nothing more on the subject, but to express our conclusion in regard to it, which is that the circuit court erred in overruling the motion of the defendant to set aside the verdict and grant a new trial.
We are therefore of opinion, that for that cause the judgment ought to be reversed and annulled, the verdict of the jury set aside, and the cause remanded for a new trial to be had therein according to the principles hereinbefore ’¡‘declared, which makes it unnecessary to consider or decide the questions presented by the remaining bills of exceptions.
We have not referred to any books or cases (with a single exception) in the foregoing opinion. The law on the subject, so far as material, can be found in Sherman & Red-field on Negligence, ch. 3, p. 23, “contributory negligence”; ch. 17, p. 332, “injuries causing death”; Wharton on Negligence, ch. 9 “contributory negligence”; and in the cases referred to in the notes to those chapters.
The judgment was as follows:
This day came again the parties by their counsel, and the court, having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the circuit court did not err in overruling the demurrer to the declaration and each count thereof; nor in allowing the evidence of the witness Hockman to go to the jury, in reference to the family left by the deceased (N. G. Sherman) after objection, as mentioned in the first and second bills of exceptions taken in the case.
But the court is further of opinion, that the circuit court did err in overruling the motion of the defendant to set aside the verdict and grant a new trial, on the ground that the verdict was contrary to the evidence, contrary to the law, and contrary to1 the instructions given by the said court, as stated in the third bill of exceptions.
Wherefore, without deciding whether or not the said circuit court erred in refusing to give to the jury the thirty-three instructions which were offered by defendant’s counsel, or any of them; or in giving to the jury *the twenty-eight instructions which were given by the said court, or any of them, as mentioned in the fourth bill of exceptions taken in the case; or in refusing to give to the jury the instructions Nos. 19; 26 and 33, and in lieu thereof giving to the jury the twenty-eight instructions aforesaid, as mentioned in the fifth bill of exceptions taken in the case; the decision of the said questions, or any of them, being wholly immaterial and unnecessary to the determination of this case, in the view taken of it by this court, that according to the facts certified in the record to have been proved on the trial, the law is plainly in favor of the defendant in the court below, the plaintiff in error here, so that, if the facts proved on another trial be substantially the same as proved on the former trial, the case must then, according to the said view, be determined in favor of the plaintiff in error; it is considered, adjudged and ordered by the court, that for the error aforesaid the said judgment be reversed and annulled, and that the plaintiff in error recover against the defendant in error its costs by it expended in the prosecution of its writ of error aforesaid here, to be levied of the goods and chattels of her said interstate in her hands to be administered. And it is further adjudged and ordered, that the said verdict of the jury be set aside, and the cause remanded to the sa>d circuit court for a new trial to be had therein in conformity with the principles declared in the foregoing opinion and judgment; which is ordered to be certified to the said circuit court of Shenandoah county.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481976/ | MONCURE, P.,
delivered the opinion of the court.
In January, 1871, Abel Gibbons exhibited his bill in chancery in the county court’of Rockingham county, charging, among other things, “that on the 4th day of April, 1860, James M. Loffland and H. M. Loffland sold and conveyed by deed of general warranty, and John C. Woodson, trustee, conveyed by deed of special warranty, to David Armentrout, 488 acres, 2 roods and 4 poles of land lying in the .county of Rockingham, in consideration of $23,500, of which $7,833.33^ was paid in hand, and the balance to be paid as follows, to-wit: $2,000 annually on the 1st day of April, 1861, 1862, 1863, 1864, 1865, 1866, 1867, and $1,666.66^ on the 1st day of April, 1868, for which deferred payments the said David Armentrout executed his bonds to Henry M. Loffland, and to secure the deferred payments a lien was expressly reserved in the deed conveying the said land;” that on the-day of -, in the year'186-, (in August, 1867,) the said David Armentrout died, leaving a will whereby he appointed B. F. Armentrout *215and H. B. Armentrout his executors, who proved the will, a copy oí which was filed with the bill; that two of said bonds of $2,000 each, to-wit: one falling due April 1st, 1866, and one falling due April 1st, 1867, have been transferred to complainant; that there yet remain unpaid and due upon said *bonds the following amounts, to-wit: on the bond which became due on the 1st day of April, 1866, the sum of $828.51, with interest thereon from the 17th day of March, 1870, and on the bond which became due on the 1st day of April, 1867, the sum of $2,000, with interest thereon from the 1st day of July, 1870; that the personal estate of said David Armentrou! has been exhausted, and is insufficient to pay said debt due to complainant, who by reason of the lien retained in said deed, has a right to have it paid out of the proceeds of the sale of said land, lie therefore prays that, the widow, executors and devisees of said David Armentrout, be made defendants to said bill; that so much of said land as might be necessary should be sold for the payment of said debt, and for general relief.
Besides a copy of said will there were filed with said bill as Exhibit C, the said two bonds which were transferred to complainant, on each of which is endorsed an assignment in these words: “I assign the within to C. E. Kirtley, December 11th, I860. H. M. Foffland.” On the bond due in 1866 is also endorsed an assignment in these words: “For value received I assign the within to Abel Gibbons, April 18, 1861. C. F. Kirtley, pr. Alfred Welsh, agt.” And credits in these words: “Credits received April 16, 1866, by order on Joseph Andrew for sixty dollars. $100: Paid on within one hundred dollars, October 6, 1866. $100: Paid on within one hundred dollars, February 18, 1867. Credit, July 15, 1867, by $900. Credit by cash one hundred anti one dollars and thirty-six cents, April 1st, 1869. Credit as of July 1st, 1869, by $14.81 interest. Credit March 17, 1870, by $200, paid by B. F. Armentrout.” And on the bond due in 1867 is also endorsed an assignment in these words. “November 26, 1865. I assign the within note to Abel Gibbons, for value received. C. E. Kirtley, per Alfred Welsh.” And credits in these words: “Cr. by *cash one hundred and twenty dollars, April, 1869. By one year’s interest April 1st, 1868. Cr. by one hundred dollars July 30, 1870. Cr., Sept. 19, ’70, by $20.”
In July, 1872, on motion of the defendants. B. F. Armentrout, II. B. Armentrout and A. D. Armentrout, leave was given them to file their answers to said bill, which was accordingly clone, to which answers the replied generally.
In the joint answer of B. F. Armentrout and H. B. Armentrout, in their own right and as executors of David Armentrout, they say in substance, among other things, that they admit the truth of the allegations of the bill in regard to the conveyance of the said land to the said David Armentrout for the price payable as aforesaid, for which a lien was reserved in the deed, and in regard to his death and will and appointment of executors and their qualification. They say they believe his personal estate is sufficient to pay all his debts; “that said bonds of $2,000 each, falling due the 1st of April, 1866 and 1867, were assigned by H. M. Foffland to C. E. Kirtley, December 11, 1860, as was also the bond for $1,666.6644, falling due April 1st, 1868, as will appear from the endorsements on said bonds; and the endorsements show that the said two bonds were assigned to the complainant — the first on the 18th of April, 1861, the other on the 26th November, 1865 — ■ but whether these endorsements are correct or not, respondents do not know or admit, and call for proof thereof. The bond for $1,666.6644 was paid by respondent, B. F. Armentrout, as executor of David Armentrout, to C. F. Kirtley, the holder thereof, in different payments, the last of which was made on the 12th of May, 1869, as will appear from the bond and endorsements thereon, marked X, and filed with said answer. The bonds of $2,000 each, falling due in April, 1861, 1862, 1863, and 1864, were all paid by David Armentrout in his lifetime, and he made *some payments on the bonds falling due in 1865 and 1866. The bond falling due in 1865 was assigned to Z. Shirley and lost during the war, and since the war, as respondents believe, the said David Armentrout, at the instance of said Shirley, executed a new bond, being a duplicate of the original, in order that he might have evidence of the debt, but without any purpose of changing the debt or in any way affecting the rights or responsibilities of the parties, which bond is now held by said Shirley. It is true that a lien was reserved in the deed to said David Armentrout to secure the payment of all the bonds mentioned, and there could have been no difficulty in the payment of any of said bonds but for the fact that within the last few months one T. D. Collins has instituted a suit in this court, on the chancery side thereof, claiming that he held a prior lien on the said land for the sum of $1,204.93)4; with interest thereon from the 26th day of August, 1861, due by the bond of said H. M. and J. M. Foffland, executed to Mary K. Foffland, for the same land, and assigned to said Collins, which bond purports to be executed on the 26th day of August, 1856, and to be secured by a lien in the deed from Mary K. to H. M. and J. M. Foffland of the same date, all of which will fully appear from the record of said suit;” of which a copy is made a part of said answer. “Respondents do not admit that said debt of $1,204.93)4 and interest is a lien upon said land sold to David Armentrout but if it is (as seems most likely at present), they claim that the amount thereof must be deducted from the bonds of $2,000 now held by complainant and Z. Shirley, as the said David Armentrout in his lifetime, and respondents since his death, have paid all the residue . of the purchase money for said tract of land, without any knowledge or intimation of the lien of said Collins or any other lien thereon, the evidence of which was lost by the burning of the records *in 1864, and only accidentally discovered by complainant about the 1st of *216January, 1871. Respondents since the death of their father had no means of knowing the existence of said lien (as the .records were destroyed), and they are satisfied that David Armentrout never knew of it in his lifetime.” “Respondents claim that as all the purchase money for said land has been paid in good faith and without notice of any prior equities or liens except the bonds held by complainant and Shirley, and as the said land was conveyed to said David Armentrout by deed with general warranty, if the lien of said Collins upon the land is established, the burden of it must fall upon complainant and Shirley, who stand in the place of their assignors, and no decree should be rendered against the land or these respondents until that question is decided, and if that lien is established, then respondents should receive credit on said bonds for the amount thereof, as the said H. M., J. M. and Mary Loffland are insolvent. Respondents further answer and say that a decree has been rendered in said suit of T. D. Collins v. Loffland, &c., by which the said land is ordered to be sold to pay to said Collins said debt of $1,204.93)4 and interest, a prior lien on said land,” as appears from the said copy of the said record, which is marked SS, and filed with the answer. Respondents insist that the existence of said prior lien constitutes a breach of the general'warranty of title in the deed for the same land from H. M. and J. F. Loffland to said David Armentrout, and the amount which^ has to be paid to extinguish the Collins’ lien is a good and legal offset against the bonds of said David given for said land, no matter in whose hands they are. Whatever was paid by David Armentrout in his lifetime, or by his executors since his death, was paid without the knowledge of the existence of the Collins’ lien, except certain small sums paid in 1871, without prejudice to &c.
*The answer of H. B. and 'A. D. Armentrout is to the same effect with the preceding.
By an order of the county court of Rockingham county, made in September, 1872, this cause was removed to the circuit court of said county.
There were filed with the answer of B. F. and H. B. Armentrout, as Exhibit X, the said bond for $1,666.66)4, with endorsements thereon in the words' and figures following, to-wit: “I assign the within to C. E. Kirtley, December 11, 1860. H. M. Loffland.” “Received payment in full, May 12. 1869. C. E. Kirtley.” And as Exhibit SS, a copy of the record of the said suit of T. D. Collins, plaintiff, v. H. M. Loffland, defendants.
The only evidence in the case was the deposition of -B. F. Armentrout, which was taken by consent of parties to be read as evidence in behalf of the defendants. He was one of the • executors and sons of the said David Armentrout. He testified, among other things, that he was familiar with his father’s business during the latter part of his life; he is satisfied H. M. Loffland has gone into bankruptcy, and believes Mary K. and J. F. Loffland are insolvent As far as he knows three of his father’s bonds given for said land remain unpaid. Mr. Abel Gibbons holds two of them, and Mr. Zack Shirley the other. When witness paid his father’s said bond for $1,666.66)4 he did not know and had not heard of any lien of T. D. Collins on said land, and first heard of it when process was served upon him in said Collins’ suit aforesaid, in January, 1871. Does not think his father, in his lifetime, had any knowledge of this Collins’ lien. His father died on the 3d of August. 1867. The amounts credited on the bond for $2,000, payable the 1st of April, 1866, were paid at the dates of said credits respectively. Those dated in the lifetime of his father were paid by him, except the $900 credited July 15, 1867, which was paid by witness for his father who was then sick. Being *asked by the plaintiff this question:
“The three unpaid land bonds, and the $1,666.66)4 bond were assigned by H. M. Loffland to Catharine E. Kirtley at the same time?” witness answered: “They were, so far as I know from the dates of the assignments endorsed on the bonds held by complainant, Abel Gibbons, and on the $1,666.66)4 bond, they were assigned at the same time. I have never seen the bond held by Z. Shirley.” And being asked by the same this question: “Do you know that the bond of your father which Shirley holds came to him from Loffland through Mrs. C. E. Kirtley?” he answered: “I think I heard Shirley say so.”
On the 11th day of October, 1872, the cause was heard on the said bill, answers, replication thereto, exhibits and evidence, when it was decreed-that the said executors of David Armentrout, out of the assets of their testator in their hands to be administered, do pay to the complainant $828.53. with interest thereon from the 17th day of March, 1870, and $2,000, with interest thereon from the 1st day of July, 1870, till paid, subject to a credit of $200 as of the 8th day of September, 1871, and his costs expended in the court below. And in case of default for sixty days in making such payment, the said land, or so much thereof as might be necessary, was decreed to be sold by commissioners appointed by said decree for the purpose, and in the manner and on the terms prescribed by said decree, which commissioners were directed to report their proceedings under said decree to the court.
From the said decree the sai.d executors and devisees of said David Armentrout obtained an appeal to this court. This court was of opinion, on the hearing of the cause, for reasons stated in writing and filed with the record, that the circuit court erred in disposing of the cause in the absence of Zachariah Shirley as a party, and therefore reversed and annulled the said decree, *with costs, and remanded the cause to the circuit court with instructions to that court to require the appellee, Gibbons,, to make said Shirle3r, or his personal representatives, parties to the cause, and to consider further the equity set up in the answer of Armentrout’s executors. The decision of *217this court in the case is reported in 25 Gratt. 271.
After the cause got back to the circuit court, the said Gibbons filed an amended and supplemental bill in the case, charging that the bonds for $2,000 each, falling due on the 1st of April, 1866, and the 1st of April, 3867, and the bond for $1,666.66%, falling due 1st April, 1868. in the original bill mentioned, were assigned to Catharine E. Kirtley by H. M. Loffland, the obligee therein, on the 11th day of December, 1860; that the said bond falling due 1st April, 1866, was by said Kirtley on the 18th day of April, 1861, for value received, assigned to the plaintiff, and the said bond falling due 1st April, 1867, was also by her on the 26th day of November, 1865, assigned to him for value received. The bond of $1,666.66%, was not assigned by said Kirtley at all, but payment thereof was received by her on the 12th day of May, 1869, from the executors of David Armentroul. who had full notice of the rights of the plaintiff concerning the same. Said bond showed on its face that it was for the last deferred instalment of the price of said land purchased by David Armenlrout from H. M. Loffland, and the personal representatives of said David well knew it when they paid the same. Zachariah Shirley claims to be the holder of the bond for $2,000 falling due the 1st of April, 1865, and there is still a balance due thereon which is a lien on the said land, but what was the nature and extent of the rights of said Shirley, plaintiff did not know, though he claimed that his rights were superior to those of said Shirley in regard to the *same. C. E. Kirtley had died, and Francis W. Kirtley was her administrator, but her estate and that of H. M. Loffland are insolvent and worthless. The representatives of David Armentrout and Zachariah Shirley, and the administrator of Catharine E. Kirtley were made defendants to said bill, and there was a prayer for general relief.
In April, 1875, the death of said Shirley having been suggested, the cause was revived against the executors of said Shirley as such, and in their own right, who thereupon filed their answer, and therein stated in substance, among other things, that in the latter part of 1860, or early part of 1861, before the late war commenced, their testator purchased from C. E. Kirtley, who assigned to him for value received, a bond bearing date the 4th of April, 1860, for the sum of $2,000, falling due. the 1st of April, 1865, being given as one of the deferred pavments on the laud sold by J. M. and IT. M. Loffland to David Armentrout. on which land said bond was a lien, and which bond was assigned to C. E. Kirtley by H. M. Loffland; that during the late war said bond was taken by the federal forces and, as respondents believe, was subsequently lost or destroyed: that immediatelv after the war, in the spring of 1S65, the obligor in said bond, D. Armentrout, executed and delivered to respondents’ testator a bond bearing even date with the lost bond, and falling due at the same date, and for the same amount, expressing upon its face that it was so made in lieu of the said lost bond, and so delivered, without intending thereby to change or affect in any manner the rights or responsibilities of any of the parties; that immediately after said delivery, said testator, for value received, transferred to respondents, S. P. and Thomas J. Shirley, for their own use, the bond aforesaid, which is now for their use, and is subject to certain credits endorsed thereon, a copy of which bond and ^credits, marked X, is filed with the answer. And respondents claim priority over the plaintiff in a right to satisfaction of said bond out of said land or the proceeds of sale thereof.
In the same month, April, 1875, the executors of David Armentrout answered said amended and supplemental bill. They admit that C. E- Kirtley and H. M. Loffland are insolvent, and they insist, as they did in their answer to the original bill, that the lien of Collins, which was unknown to them or their testator, and which they have been compelled to pay by decree of court, is a good and valid offset in their hands against the bonds of their testator given for said land, no matter in whose hands they are, and that respondents are therefore entitled to credit for the amount of said Collins’ debt on the bonds held by complainant and said Shirley or his assignees, no matter how those parties may be entitled inter sese.
The only evidence in the case upon the amended and supplemental bill is the deposition of Alfred Welsh, which was taken in behalf of the plaintiff. He testified, among other things, that he lived with Mrs. C. E. Kirtley, and attended to all her business from September. 1852, until the 1st of January, 1866. He assigned to Abel Gibbons on the 18th day of April, 1861, by the express authority of Mrs. C. E. Kirtley, the bond of David Armentrout to Henry M. Loffland, dated on the 4th of April, 1860, and payable on the 1st of April, 1866; and he assigned to said Gibbons on the 26th day of November, 1865, by like authority, a bond for same amount and same date, of same obligor to same obligee, and payable on the 1st of April, 1867; which bonds and the endorsements thereon are exhibited with the answer.
On the 15th day of June, 1876, the cause was again heard upon the papers formerly read, the decrees and orders before made in the said county and circuit courts, *the decree of the court of appeals, the amended and supplemental bill, answers thereto and replications to the same, and the deposition last aforesaid; when it was decreed that the said executors of David Armentrout, out of the assets of their testator in their hands to be administered, do pay to S. P. Shirley and Thomas J. Shirley the sum of $1,729.92, with interest thereon from the 3d of November, 1871. till paid; and to Abel Gibbons $813.76. with interest thereon from the 17th of March, 1870, till paid; and the further sum of $2.00t>, with interest thereon from the 1st of July, 1870. till paid, subject, however, to crech't for $200 as of the 8th of September, 1S71, *218and $100 paid 1st January, 1875, and his costs. And in case of default for sixty days in making such payments, so much of the said land as may not have been sold in the chancery cause of Collins v. Loffland, &c., to satisfy the Collins’ lien as may be necessary to satisfy this decree, was decreed to be sold by commissioners appointed by said decree for the purpose, and in the manner and on the terms prescribed by said decree; which commissioners were directed to report their proceedings to the court.
From the said dec'ree the said executors and devisees of David Armentrout obtained an appeal to this court.
1. The court is of opinion that the land conveyed by James M. and H. M. Loffland to David Armentrout, by deed with general warranty, bearing date the 4th day of April, 1860, being, at the time of such conveyance, subject to a vendor’s lien for $1,204.9354. with interest thereon from the 26th day of August, 1861, due by the bond of said H. M, and J. M. Loffland, executed to Mary K. Loffland for the same land, and assigned to T. D.. Collins, which bond purports to be executed on the 26th day of August, 1856, and to be secured by a lien in the deed from Mary K. Loffland to said H. M. . and *J. M. Loffland of the same date, the said David Armentrout was entitled to a credit on account of the purchase money due by him as vendee of the said land for the said sum of $1,204.9354. with interest as aforesaid.
2. The court is further of opinion, that this right of set-off of the said sum of money and interest as aforesaid could not be defeated or impaired by' assignment of the bonds of the said vendee for the purchase money, at least without his consent, as such assignee would be entitled to such bonds, only subject to all defences, legal or equitable, to which the obligor was entitled against the obligee.
3. The court is further of opinion, that the liability of such assigned bonds to such right of set-off is not in the order in which said bonds are payable, but in the inverse order of their assignment (preferring such assignments as are for value to such as are not), and that if some of the said bonds were assigned and some were not, the unassigned bonds would be liable to said right of set-off before the assigned bonds, even though the former were payable before the latter.
4. The court is further of opinion, that the said land remained liable in the hands of the said vendee to the said vendor’s lien for the said sum of $1,204.9354 and interest _ as aforesaid, notwithstanding the destruction of the record of the deed in which said lien was reserved, and notwithstanding the said David Armentrout, or his personal representatives, may have paid the full amount of the purchase money and interest agreed to be paid by him without actual knowledge of the existence of such lien at the time of such payment; the due recordation of the deed in which said lien was reserved being constructive notice to him and them of the existence of such lien, and just as operative and effectual in preserving it against him and them as actual notice of its existence would have *been, or as if there had been no such destruction of the said record.
5. The court is further of opinion, that if the said David Armentrout received notice of the assignment to C. E. Kirtley of his bonds to Henry M. Loffland for $2,000, payable on or before the first day of April, 1865; $2,000, payable on or before the first day of April, 1866; $2,000, payable on or before the first day of April, 1867; and $1,666.6654, payable on or before the first day of April, 1868, before he paid the bonds of $2,000 each, falling due in April, 1861, 1862, 1863, and 1864, respectively, in the proceedings mentioned, then such payment, to the extent of the said sum of $1,204.9354, with interest as aforesaid, was a payment in his own wrong, and there is no error in the decree appealed from; but if he received no such notice before such payment, then there is error in the said decree in not affording him relief to the extent of said last mentioned sum of money and interest,' and in not decreeing against him only the balance of the purchase money due by him after giving him credit for said sum of money and interest.
6. The court is further of opinion, that the said David Armentrout did receive such notice before he made such payment. The record shows that the four bonds of David Armentrout to H. M. Loffland, dated April 4, 1860, payable, one of them, on the 1st day of April, 1865, for $2,000, one on the 1st day of April, 1866, for $2,000 and one on the 1st day of April, 1867, for $2,000, and one on the 1st day of April, 1868, for $1,666.6654, were all assigned by H. M. Loffland to C. E. Kirtley on the same day, to-wit: December 11, 1860, the assignment on each being in precisely the same' words an.d figures, to-wit: “1 assign the within to C. E. Kirtley, December 11, 1860. H. M. Loffland.” It.appears that the said C. E. Kirtley assigned the said bond for $2,000, payable the 1st of April, 1865, to Zachariah Shirley in *the latter part of the year 1860, or the early part of 1861; the said bond for $2,000, payable the 1st of April, 1866, to Abel Gibbons, April 18, 1861; the said bond for $2,000, payable the 1st of April, 1867, to Abel Gibbons, November 26, 1865, per assignments endorsed on the said bonds, respectively — certainly on the last three which are in the record, and no doubt on the first also, though that is not in the record, having been lost during the war and replaced afterwards by another bond executed by David Armentrout, and substituted to the place of the one which was lost. There can be no doubt but that the said David Armentrout was informed of the said assignments very soon after they were made, respectively. The assignees, for their own protection, would be apt to give such information. Besides renewing the said bond assigned to Shirley, the said David Armentrout, in his lifetime, made payments on account of that bond, and the said bonds *219assigned to Gibbons, which shows that he knew of the said assignments. The said payments are credited on the said bonds, respectively. That the assignments by C. E. Kirtley to said Gibbons were made at their dates, respectively, is proved by a witness in the cause, Alfred Welsh, who lived with and acted as agent for said C. E. Kirtley, during the period of the said transaction. At the death of the said David Armentrout, to-wit: on the 3d day of August, 1867, the said bonds assigned to Shirley and Gibbons, respectively, by C. E. Kirtley, remained unpaid in the hands of said assignees; and there remained in the hands of the assignor, C. E. Kirtley, the bond for $1,666.66%, payable the 1st day of April, 1868, on account of which it appears that nothing had been paid. The amount of that bond was paid in full to C. E. Kirtley by David Armentrout’s executors on the 12th of May, 1869, per receipt endorsed by her upon tbe bond. B. F. Armentrout, a son, and one of the executors of David Armentrout, *and a witness in the case on behalf of said executors, being asked: “Did you have any reason for paying the $1,666.66% in full, while you only made small payments upon the others?” that is, upon the bonds assigned to Shirley and Gibbons, respectively, as aforesaid, answered: “Nothing more than Mrs. Kirtley seemed to stand in need of it, said she needed it, wanted it, while Mr. Gibbons and Shirley only seemed to want the interest.” The defendants, the executors and devisees of David Armentrout, do not deny that the assignments of said bonds were made at the times at which they purport to have been made, or that due notice of said assignments was not given to their testator. On the contrary, they say in their answer: “Respondents believe that said bonds of $2,000 each, falling due the 1st of April, 1866 and 1867, were assigned by H. M. Éoffland to C. E. Kirtley, December 11, 1860, as was also the bond for $1,666.66%, falling due April 1, 1868, as will appear from the endorsements on said bonds, and the endorsements show that the said two bonds were assigned to the complainant, the first on the 18th of April, 1861, the other on the 26th November, 1865, but whether these endorsements are correct or not, respondents do not know or admit, and call for proof thereof. This is all the denial of the said assignments or notice thereof contained in the answers, and this is much more than weighed down by the circumstances before stated, tending to show that such assignments were in fact made as they purport to have been, and that the obligor was duly and promptly informed thereof. Certainly the bond for $1,666.66% was subject to the set-off in question in preference to and in exoneration of the said bonds _ assigned to Shirley and Gibbons as aforesaid, and the amount of said bond was about equal to the amount of said set-off. The payment of that bond in full by the executors of said Armentrout, leaving the said set-off unpaid, would, ^therefore, of itself, subject the estate of said Armentrout to liability for the amount of said bonds assigned to Shirley and Gibbons free from any deductions on account of said set-off, even if the payment by said Armentrout of said bonds of $2,000 each, payable the 1st of April, 1861, ’2, ’3 and ’4. as aforesaid, would not have that effect, as w'e think we have shown that it would. The executors of said Armentrout doubtless did not in fact know of the existence of said set-off when they paid said bond of $1,666.66%, or they would not have made such payment if they had supposed that they might thereby subject the estate of their testator to liability for the amount of said set-off. But their testator and themselves were chargeable with constructive notice of said set-off by reason of the recordation of the lien as aforesaid, and the liability of said estate resulted from such notice.
7. The court is therefore of opinion that there is no error in the decree appealed from, and that the same ought to be affirmed.
But it is proper to notice in this opinion another assignment of error, being the one secondly and lastly assigned in the petition for an appeal: that “the circuit court erred in decreeing a sale of the land of David Armentrout. deceased. The personal estate of said Armentrout is ample to satisfy the debts, including the amount of said decree, and should be first exhausted ”
There was a decree for the payment of said amount by the executors of David Armentrout out of the assets of their testator, if any, in their hands to be administered. Tt was certainly not necessary that the appellees, Shirley and Gibbons, assignees of the bonds of Armentrout, should have a settlement' of an account of the personal estate of said Armentrout for the purpose of exhausting the same in the payment of his debts before *they could enforce the charge reserved on the said land for the payment of the purchase money as aforesaid. There is a specific lien on said land for said purchase money in virtue of said charge, which is just as valid and effectual as would have been a deed of trust on the land to secure said purchase money. Had there been such deed of trust, certainly the land could have 1 een sold under the deed for the payment of the purchase money without any necessity for first exhausting the personal estate in endeavoring to enforce such payment, and could have been so sold either in the lifetime of the debtor or after his death. For the same reason and on the same principle precisely may an express charge reserved upon the land, as in this case, be enforced specifically against it, without any such necessity for first exhausting the personal estate in endeavoring to obtain payment from that source of the amount of such charge. Whatever claim heirs or devisees may have against the personal estate for indemnity on account of the enforcement of such a charge against real estate, descended or devised, or even before such enforcement, and on the principle of quia timet, certainly a party in whose favor such a specific charge is expressly reserved cannot be delayed in the enforcement of such charge by being compelled first to exhaust *220his remedy against the personal estate of the debtor as a general creditor to the amount of the charge. He has a specific lien on the land, but none on the personal estate, in regard to -which he is'only a general creditor. The advantage of his position as a specific lienor is, that he may enforce his specific lien ■without being necessarily involved in a settlement of the general estate of the debtor among his creditors, devisees and legatees.
The court is therefore of opinion that the circuit court did not err in regard to the matter of the second and last any more than in regard to the matter of the first Assignment of error, and that the decree appealed from must be affirmed. The following authorities may be referred to as having a material bearing upon this case, most of which were cited in the argument, and some of which have been since decided, viz: Taylor’s adm’r v. Spindle, 2 Gratt. 44; McClintic v. Wise’s adm’rs, 25 Id. 448; Gordon v. Fitzhugh, 27 Id. 835; Burwell’s adm’r v. Fauber, 21 Id. 446; Long v. Weller’s ex’ors, 29 Id. 347; Justis, &c., v. English, &c.. supra, p. 565.
STAPLES, J., dissented.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481978/ | ANDERSON, J.,
delivered the opinion of the court.
At the January term, 1875, of the Rockingham circuit court, the appellee obtained two judgments against John F. Long and John Y. Long, partners in trade under the ■firm name of John F. Long &. Co.; which judgments on the 18th of March, 1875, it caused to be docketed in the county court of Augusta, and afterwards brought its bill in chancery to subject to the same, among other things, a tract of seventy-four acres of land, as the property of said John Y. Long, situate in the county of Augusta.
Prior to the said judgments, in the month of October or November, 1874, John Y. Long had by parol contract sold the said tract of land to the appellants, and received payment from them of about $1,700 of the purchase money, which appears to have been all that was coming to him, the liens upon the land amounting to the balance, which they undertook to pay, and delivered to them possession of the land, which they accepted in pursuance of said agreement, and were in possession when said judgments were rendered.
On the 4th of January, 1875, John Y. Long conveyed by deed the land in question to the said purchasers, the appellants, which he had previously sold to them by parol contract, but which deed was not admitted to record until the 19th day of April, more than sixty days after its acknowledgment, and more than fifteen days after the *docketing of said judgments; and the only question for our decision is, Was this tract of land subject to the appellee’s judgment liens? or is the parol sale to the appellants valid as against the subsequent judgments of the appellee?
The court below held that the judgments are liens on the said tract of land, they being docketed on the judgment lien docket of the county court of Augusta county within sixty days next after the date of said judgments, and more than fifteen days before the deed of conveyance to the appellants was recorded, and that the rights of the judgment creditor are superior to the rights of the appellants “under the parol or verbal contract between them and the said John Y. Long, in the fall of 1874, under which possession of the said tract of land was then delivered and accepted, and the purchase money paid,” and decreed that the said judgment liens be enforced against the said tract of land and the sale *225of the same, unless the judgment liens were satisfied and paid off within ninety days from the rising of the court.
The delivery and taking possession by the purchasers under the parol contract were unequivocally in consequence of the agreement, and in execution of it; and so was the delivering to the vendor his bonds, &c., in which the payment was made. These acts of part performance were done at the time of the purchase, and in pursuance of it. The possession of the purchasers was taken at the date of purchase, and although they were living on the place at the time, they were there as the sisters and brother of the vendor and in his service. It was not a continuing possession under a former interest, as tenants or otherwise. They had.no previous interest. They were in no sense tenants of the vendor, and had no sort of possession prior to their purchase; and the vendor upon their purchase immediately surrendered to them the possession, which they continued and held at the *date of the appellee’s judgments. The vendor, it is not shown, ever occupied the land or any part of it, or that he has evel set his foot upon it since the said sale. He was at that time residing in Harrisonburg and subsequently to his residence in Harrisonburg he removed to a farm belonging to his wife, where it is probable he still resides. It seems that he is now insolvent, and that if the sale which he made to the appellants was vacated they would be unable to get back their money, and that consequently his availing himself of the statute of frauds to avoid his contract would be a fraud upon his vendees. See 2 Minor’s Inst. p. 775, citing 2 Stor. Eq. §§ 760, 761. But there is no question raised as to the parol contract of sale or the acts of part performance, which are clearly proved, or as to the fairness of the transaction, and the same is admitted in fact by the decree itself, and the only question is as to how it is affected by the operation of our registration laws.
It is contended that the parol contract became merged in the deed, and thdt the deed not having been recorded within sixty days after its acknowledgment, and not within fifteen days after the docketing of the said judgments, the liens of the judgments attached to the land and superseded the appellants’ purchase. I cannot find from the record on what day of the month of January the term of the circuit court of Rockingham county, at which the judgments were rendered, commenced. If it was before, the fifth of January, the judgments would date prior to the execution of the deed, and at that date and after, the debtor, John Y. Eong, was neither possessed nor entitled to the land, and the judgments against him, by the terms of the statute, could not attach to the land which was not his, but which was in the possession of the appellants under a parol contract which was unaffected by the registration acts. (Code of 1873, ch. 182, § 6.) The subsequent conveyance of the title to them *by the debtor could not be construed as an acquisition of title by him, and consequently could not, by the terms of the statute, subject the lands to the judgment liens of his creditor.
But if the term of the court commenced subsequent to the 5th of January, so that the deed was executed prior to the judgments, it would, by the acts of registration, be void as to the judgment creditor; but the case would come within the principle of Withers v. Carter, 4 Gratt. 407, which is reaffirmed and applied to the case of a parol contract in Floyd, trustee, v. Harding. &c., 28 Gratt. 401. In that case it was held that parol contracts for the sale and purchase of land were unaffected by the recording acts. Judge Staples, in whose opinion the other judges sitting concurred, with regard to the case where the deed is executed after the judgment is recorded, observes, that if the title of the purchaser is good against the creditor when the judgment is recovered, the bare statement of the proposition that it becomes invalid by reason of a subsequent execution of a deed by the vendor, is its own refutation. He then speaks with regard to the case of yalid parol contract, so far executed as to pass the equitable title, and subsequently a deed of conveyance, which is not recorded, or if recorded at all, not until after a judgment recovered. This (he says) is the case as presented in Withers v. Carter, except there the contract was in writing, but the principle is the same. And he quotes Judge Baldwin as saying in that case: “No need of conveyance is necessary to confirm its validity (the executory agreement), and how an abortive attempt to obtain a valid conveyance can destroy the pre-existing title is beyond my comprehension. Nor can I conceive what merger there can be in regard to creditors of the equitable estate in. the legal title by force of a deed which as to creditors is a blank piece of paper.” Judge Staples also cites the case of Morton v. Robards, *4 Dana’s R. 258, a Kentucky case, in which the same doctrine is held. And he add.s, “it will not be denied that these principles apply with equal force to a preexisting equitable estate, acquired under a valid parol contract.” And in a later case, Eidson v. Huff & al., 29 Gratt. 338, this court held: “When there is a parol agreement under which the purchaser is in possession, and which is valid without a writing, the subsequent execution of a writing cannot invalidate the title previously acquired without it.”
For the foregoing reasons we are of opinion to reverse the decree of the circuit court, and to dismiss the plaintiff’s bill as to the appellants, with costs.
The decree was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said decree of the circuit court is erroneous, so far as it held that the judgments were a lien upon the tract of seventy-four acres of land situate in the county of Augusta, which was in the possession of the appellants, and *226which they held under a parol contract _ with John Y. Long, made anterior to said judgments, and that the rights of the judgment creditor were superior to the rights of the appellants, and that the judgment liens should be enforced against the said tract of seventy-four acres, and decreed the sale thereof, unless the judgment liens were satisfied and paid within ninety days from the rising of the court; and this court being of opinion that the purchase made by the appellants from the said John Y. Long of the said tract of seventy-four acres, in Ocfober or November, -, which has been subsequently conveyed to them by deed, was *valid against the appellee’s judgment, it is decreed and ordered that the said decree of the circuit court, so far as it invalidates the rights of the appellants under said purchase and subjects their land aforesaid to the satisfaction of said judgments, be and the same is hereby reversed and annulled, and that the appellants be quieted in the possession of the said tract of seventy-four acres of land. And it is ordered that the appellants recover against the appellee. The Hagerstown Agricultural Implements Manufacturing Company, their costs by them expended in the prosecution of their appeal and supersedeas aforesaid here, and also their costs by them expended in their defence in the said circuit court. It is further ordered that the plaintiff’s bill, as against the appellants here, be dismissed. And this cause is remanded to the circuit court of Rocking-ham county, for such further proceedings to be had therein in relation to other parties as may be deemed right and proper.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481979/ | CHRISTIAN, J.
This case is before us on appeal from a decree of the circuit court of Albemarle county. The foundation of the suit is a paper writing in the following words and figures, to-wit:
“Scottsville, Aug. 20, 1866.
“$1,805.76.
“On the 1st January, 1867, pay to Messrs. Mason, Martin & Co., eighteen hundred and five 76-100 dollars for value received, it being in full for the account of Daniel P. Lewis.
(Signed) “Geo. C. Gilmer,
“Agent for Dan. P. Lewis.
Addressed “To Jno. O. Lewis, Scottsville.”
This paper is endorsed across the face thereof: “Accepted.”
(Signed) “Jno. O. Lewis.”
On the 4th day of January, 1867, this writing was duly protested for non-payment by the acceptor, and notice of protest sent to George C. Gilmer, agent for Daniel P. Lewis, addressed to his proper post-office at Charlottesville.
In the year 1869 (Daniel P. Lewis having in the meantime departed this life), an action at law was instituted *against Daniel P. Lewis’ executor, on this writing, but upon demurrer was dismissed without prejudice to the right of any party interested to resort to a court of equity.
The present suit was brought by the executor of John S. Martin, who was a member of the late firm of Mason, Martin & Co., for the purpose of asserting the claim of the parties interested in said firm, to the sum^ of money due from the estate of Daniel P. Lewis, who it is claimed was responsible to said firm as drawer of the order or draft above referred to, and which was protested for non-payment by the acceptor.
The bill was dismissed by the circuit court, as to the executor of Daniel P. Lewis; and from this decree the plaintiff obtained an appeal from one of the judges of this court.
It does not appear in the decree of the circuit court upon what ground the plaintiff’s bill was dismissed. The defendant both demurred and answered, and much evidence was taken in the cause; that of the dc*228fendant being taken for the purpose of showing that there was a parol agreement at the time the paper writing was executed; that the firm, of which the acceptor, John O. Lewis, was a member, would receive the order of Daniel P. Lewis, when accepted by the former, in payment of the debt of $1,805.76 due to the firm by the latter, and that he, Daniel P. Lewis, was not to be held in any way responsible for said debt, whether John O. Lewis, the acceptor, paid it or not.
It does not. however, appear from the record, whether the case was considered by the circuit court upon its merits, and dismissed for want of equity in the bill, or whether it was dismissed upon the demurrer for want of jurisdiction. But it was argued at the bar here, that the bill was properly dismissed, because the plaintiff had a full, complete and adequate remedy at law. I cannot *give my assent to this view. I think the case was plainly one for adjudication by a court of equity. It was a debt due to a partnership. Any recovery had, would have to be distributed among the partners or their representatives, or go to the payment first of the partnership debts. The rights and equities arising between the partners, and between them and their creditors, could be adjusted and enforced only in a court of equity. The firm of Mason, Martin & Co., was composed of James W. Mason, Thomas Staples, John S. Martin and John O. Lewis.
At the time of the institution of this suit, -Thomas Staples and John S. Martin were dead, and James W. Mason and John O. Lewis were bankrupts. It would have been Improper, and might have been impossible, to have joined the personal representatives Of the dead partners and the assignees of the bankrupt partners as plaintiffs, in an action at law. I think it is clear that the proper form of proceeding was that which was adopted of bringing all the parties interested before a • court of chancery, making them joint defendants with the executor of Daniel P. Lewis. The plaintiff, it seems, had once brought her action at law upon the paper writing referred to, and upon dejnurrer, this suit was dismissed, but without prejudice to her right to proceed to assert her claim in a court of equity. The record in that suit is not before us, but no doubt the very difficulty above suggested as to a joinder of parties was the ground of dismissal of that action. However that may be, I think the bill, upon its face, shows sufficient ground for the exercise of the jurisdiction of a court of equity, and that the plaintiff did not have a complete and adequate remedy at law, and that the demurrer, for want of jurisdiction, ought to have -been overruled.
We come now to the main and important questions in the cause. First, what is the nature and legal effect of the paper writing above referred to? and, second, can ♦the parol agreement alleged to have been made (if proved as alleged) at the time of the execution of that paper, vary or in anywise affect the legal rights and obligations which grow out of and are fixed by law in the terms of the written paper?
It must be conceded that the paper before us is a bill of exchange. It comes within the very terms of the definition of a bill of exchange. It is an unconditional written order or request addressed by one person to another, desiring him to pay a certain sum of money to a certain person or persons.
Of this bill of exchange Daniel P. Lewis (through his agent Gilmer) is the drawer, Mason, Martin & Co. are the payees, and John O. Lewis is the acceptor. It has all the constituent elements of a bill of exchange, and was treated as such by the holders and payees. It was presented for acceptance, and was duly accepted. It was presented for payment, and upon non-payment was duly protested, and notice of protest given to the drawer. The legal rights and liabilities attaching to such a paper are definitely fixed by law. It was the right of the payees to present it for acceptance and payment, and upon non-acceptance or non-payment to have the bill protested, and look to the drawer for payment. It was the undertaking and obligation of the drawer, if the bill was not accepted and paid by the acceptor, to make it good, upon due notice, to the payees. The legal import of the paper, by its very terms, was to fix these rights and liabilities upon the parties to this written contract. Now it is proposed, as matter of defence in a court of equity, by the executor of the drawer of this bill, that although the sum of money for which the bill was drawn was justly due and never paid, and although the bill was duly presented to the acceptor and protested for non-payment, of which due notice was given, that there is no liability fixed on the drawer because of a contemporaneous *parol agreement, which totally varies the terms and legal effect of the written instrument.
This parol agreement, it is attempted to show by the evidence of the defendant’s witnesses, Duke and Gilmer, the agent of Daniel P. Lewis, the drawer of the bill of exchange, and who signed said bill, and who is the executor of Daniel P. Lewis. I extráct from the record Gilmer’s evidence, which was at the time excepted to, and which is as follows. He says:
“Soon after the surrender of General Lee, Mr. John S. Martin, of the firm of Mason, Martin & Co., came to my house to see myself and Mr. Daniel P. Lewis about the settlement of our accounts with the said firm, and proposed to take my individual note for the amount, I think upon five years’ time, which, owing to the condition of the country, 'I positively refused, but proposed to settle those old accounts out of any debts due Mr. Daniel P. Lewis, provided that settlement was final so far as Mr. Lewis and myself were concerned, and lie might select from the debts due Mr. Lewis, and I would give an accepted order for the full amount, which should «relieve Mr. Lewis and myself from any further obligations, as I was unwilling to renew old debts with any new *229obligations then. He looked over the accounts and selected Mr. John O. Lewis’; I agree to give it as soon as he would get Mr. John O. Lewis to agree to accept; for some year or more, I won’t be positive, I think it was, he got Mr. John O. Lewis to agree to accept it; I at once wrote to Mr. John O. Lewis to know if he agreed to accept it, and he wrote he did; I then got Mr. William J. Duke to go with me down to settle with Mr. Martin; they took the papers, made settlement, I not being present; Mr. William Duke then called me to them, saying they had made the settlement, and Mr. John S. Martin then handed me the paper which he had drawn for me to sign, which I thought might hold Mr. Lewis or myself *responsible, and I refused to sign it; that I would sign no paper that would hold myself or Mr. Lewis responsible, was our agreement; he then asked Mr. Duke to draw such a paper as would suit our agreement, and not hold Mr. Lewis or myself responsible: I then signed the paper which Mr. Duke drew, and took it to Mr. John O. Lewis, who accepted and then gave it to Mr. Martin, who took it and expressed himself as fully satisfied with it, and saying that we were no further bound for it.”
This testimony of Gilmer is confirmed substantially, if not literally, by the witness Duke.
Now, it is, to say the least, doubtful whether Gilmer and Duke are competent witnesses under the statute. They on one side and Martin on the other were the sole actors in this transaction; i. e., the agreement which they attempt to prove. Marlin is dead. It might well be said that in a certain sense this parol agreement is “the transaction under investigation,” and that Martin was a party to it. It might well be questioned whether both Gilmer and Duke do not come within the exceptions of the statute, and whether they ought not to be rejected as incompetent witnesses. But suppose they are competent witnesses, and accepting as proved the facts which they state, the question is: Is such evidence of a contemporaneous parol agreement admissible to contradict or vary that which is contained in a written instrument? The parol agreement attempted to be set up in this case wholly contradicts and totally varies the terms, legal import and effect of the writing between the parties. In the one the drawer binds himself to pay in the event that the acceptors does, not pay. By the terms of the parol agreement as proved, neither the drawer nor his agent was to be held responsible in any event.
I think it is clear that such evidence is wholly inadmissible. *The general principle that evidence of a contemporaneous parol agreement is not admissible to vary or contradict a written instrument, is too familiar and well established to require any citation of authority. It is a principle which has now become one of the axioms of jurisprudence, and is of the last importance in the administration of justice. Without this general principle there would be no certainty in written agreements, and no security in the most formal contracts and the most specific transactions among men. It ought not to be weakened or frittered away by nice distinctions and ingenious exceptions, to meet hardships, real or supposed, of particular cases. Where the parties have reduced their agreement to writing, that agreement cannot be overthrown by evidence of a parol agreement proved by interested witnesses, or dependent for its establishment upon the slippery memory of men; especially cannot it be done, as in this case it is attempted to be done, by the statement of parties to one side of a transaction, when the lips of the other party to that same transaction are sealed in death.
Now, the rule of exclusion of a parol agreement, above stated, applies as well to a written instrument, whose legal import is clear and definite (as to the rights and liabilities of the parties thereto), as to one where specific stipulations are fully written out. Between such instruments, distinctions which the courts have sometimes attempted to make, are not based on any just ground in principle. As was well said by Judge Joynes, in his able and exhaustive opinion in the case of Woodward, Baldwin & Co. v. Foster, reported in 18 Gratt. 200, 205: “When the legal import of a contract is clear and definite, the intention of the parties is, for all substantial purposes, as distinctly and as fully expressed as if they had written out in words what the law implies. It is immaterial how little or how much is expressed in words *if the law attaches to what is expressed a clear and definite import. Though the writing consists of only a signature, as in the case of an endorsement in blank, yet where the law attaches to it a clear, unequivocal and definite import, the contract imported by it can no more be varied or contradicted by evidence of a contemporaneous parol agreement than if the whole contract had been wholly written out in words. The mischiefs of admitting parol evidence would be the same in such cases as if the terms implied by law had been expressed.”
This rule, while applicable to all cases of written instruments, applies .especially to mercantile instruments. In Bank of United States v. Dunn, 6 Peters R. 51, Mr. Justice McLean, delivering the opinion of the court, said: “The liability of a party to a bill of exchange or promissory note has been fixed on certain principles which are essential to the credit and circulation of such paper. These principles originated in the convenience of commercial transactions, and cannot now be departed from.”
The principles thus stated have been recognized by the whole current of authorities, English and American. Only one case is cited by the learned counsel for the appellee in support of the proposition that the parol agreement, as stated by Gilmer, can be set up against a written paper, and relied on by him as a case exactly in point, and that is the case of Pike v. Street, reported in 1 Mood. & Malk. 226 (22 Eng. C. L. 299). It *230is sufficient to remark that the authority of that case is to a certain extent questioned in Foster v. Jolly, 1 Cromp. Mees. & Ros. 703, and seriously questioned by Judge Joynes in Woodward, Baldwin & Co. v. Foster (supra), and is reported by Mr. Bigelow in his volume of Overruled Cases. Whether expressly overruled or not, it is contrary to the unbroken current of authority both in ^England and in this country. See cases cited by Judge Joynes in case cited (supra); also, Brown v. Wiley. 20 How. U. S. R. 442; Specht v. Howard, 16 Wall. U. S. R. 564; Forsythe v. Kimbal, 1 Otto U. S. R. 291; Brown v. Spofford, 5 Otto U. S. R. 474; Cassidy v. Metcalf, The Reporter, Aug. No. 1878, p. 274.
The appellee, however, in avoidance of this general rule, now so universally recognized by the courts, seeks to shelter himself under that exception to the general rule which confers upon courts of equity the power to reform or rescind a written contract made under a mistake.
In this case, if there was any mistake shown, it was a mistake of law, and not of fact. I think it may be affirmed, upon the authorities, that mistakes of law, unless accompanied with fraud, misrepresentation, concealment, surprise or some similar peculiarity of circumstances, furnish no ground of equity jurisdiction. The elementary maxim ignorantia legis neminem excusat prevails in the administration of civil as well as criminal law, and is as potent in a court of chancery as in a common law court. I do not deem it necessary here to enter upon any elaborate discussion of the distinctions made by the courts between mistakes of fact and mistakes of law; nor to undertake the difficult, if not impossible, task of reconciling the numerous adjudged cases on this subject It is sufficient to refer to the opinion of Judge Staples in Zollman v. Moore, 21 Gratt. 313, the able review of this doctrine, and many adjudged cases by Judge Story, in the fifth chapter of his work on Equity Jurisprudence, and the notes to the leading case of Woollam v. Hearn, reported in White & Tudor’s Leading Cases in Equity, pp. 920, 980, et seq., where all the cases are collected, and to deduce from them the principles which must govern courts of chancery in the exercise of their powers in this branch of equity jurisprudence. *From this review of the authorities, it may be at least safely affirmed that the province of courts of chancery to correct mistakes of law is rarely exercised, and will not be exercised, unless the mistake is established beyond all reasonable doubt. The burden of proof is always on the party setting up the parol agreement, who must rebut the presumption that the writing speaks the final agreement, by the clearest and most satisfactory evidence. As was well said by Black, C. J., in Light v. Light, 9 Harris’ R. 407: “If contracts were binding only on those who knew what construction the courts would put upon them, very few would stand. No system of jurisprudence could bead-ministered for a year on this principle without falling to pieces. All codes have therefore adopted the maxim ignorantia legis neminem excusat. _ It is therefore a general, though not invincible rule, that in the absence of fraud and undue influence, one who executes an instrument with an opportunity of knowing what it contains, cannot rely on ail alleged misapprehension of its legal effect as a ground of equitable relief.”
In the notes to the leading case of Woollam v. Hearn, 2 Lead. Cases in Equity (supra), the learned annotators, after a most elaborate review of the numerous adjudged cases on this question, declare that “the reformation of a writing on the 'ground of a mistake in law is a transcendent exercise of judicial power requiring the utmost care and deliberation. The party asks that he may not be bound by words which he has made his own, by putting his hand to the instrument. He must, therefore, show how he came to adopt language which did not express his meaning. As between two parties, one of whom maintains that a writing which they executed conveys their intention, while the other contends that it does not, the burden of proof is obviously on the latter. The explanation should be so reasonable, probable and natural, as to satisfy the mind of the existence of the mistake, and-that *it can be rectified without injustice. It has been truly said that one who alleges that he understood that a note payable on demand, or in a year from date, was to be renewed indefinitely, or delivered up unpaid at the death of the promisee, ought not to be believed on any amount of testimony.
“Courts of equity do not sit for the protection of men who, having the full possession of their faculties, deliberately express themselves in language which does not convey their meaning.”
In a very recent case decided last year by the supreme court of the United States, and reported in 5 Otto 480, Brown v. Spofford, and which is a case exactly in point, Mr. Justice Clifford, speaking for the whole court, said: “Where a bill of exchange was drawn in the usual form and was protested for non-payment, the court held twenty years ago that parol evidence of an understanding between the drawer and the party in whose favor the bill was drawn, was inadmissible to vary the terms of the instrument. * * * Certain fixed principles govern the liability of parties to a bill of exchange or promissory note, which are essential to the credit and circulation of such paper. * * * Decided cases of the most authoritative character have determined that parol evidence of an oral agreement alleged to have been made-at the time of drawing, making or endorsement of a bill or note cannot be admitted to vary, qualify, contradict, or add to or subtract from the absolute terms of the written contract.”
Upon principle and authority, therefore, I am clearly of opinion that the evidence appearing in the record, tending to prove the alleged parol agreement in this case, is plainly inadmissible, that it ought to have been discarded by the court, and the estate of Daniel *231P. Lewis, the drawer, ought to have been held liable for the sum *of money for which the bill of exchange was drawn by him.
But there is still another ground upon which this evidence should have been excluded from any consideration by the court in this case. At the time of the alleged parol agreement the partnership of Mason, Martin & Co. had been dissolved. The debt due to the firm by Daniel P. Lewis had been set apart with other debts to meet the outstanding obligations of the firm. The claim here asserted under this parol agreement is asserted in a court of equity. It is not pretended that a dollar of this debt has been paid. It is a just debt, for which the defendant’s testator received full consideration. He asserts this claim under a parol agreement with Martin, one of the firm, which if carried out would be a palpable fraud on the other members, and the creditors of the firm. Tt was an arrangement, if carried out, which, without the consent of the other members of the firm, and in fraud of the rights of creditors, would be an attempt to satisfy a good debt due from a solvent party by an unpaid and protested order upon a man then failing, if not insolvent, and now a declared bankrupt. As was said in Harris v. Harris’ ex’or, 23 Gratt. 737, 746, we cannot allow a de- . fendant to be heard in a court of equity to say that his own act is to be avoided by his own fraud. By a stern but proper policy of the law, the party who alleges his participation in a fraud is excluded from the proof which would show it. See Harris v. Harris’ ex’or, 33 Gratt. 737, and cases there cited.
Upon the whole, I am of opinion that the decree of the circuit court dismissing the plaintiff’s bill was erroneous, and must be reversed.
MONCURE, P„ and BURKS, J., concurred in the opinion of CHRISTIAN, J.
*The decree was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the argument of counsel, is of opinion, for reasons stated in' writing and filed with the record, that the decree of the said circuit court dismissing the appellant's bills, original and amended, as to the executor of Daniel P. Lewis, was erroneous. It is therefore decreed and ordered that the said decree be to this extent reversed and annulled, and that the appellant recover of the appellee, George C. Gilmer, executor of Daniel P. Lewis, deceased, out of any assets of the estate of his testator in his hands to be administered, her costs by her expended in the prosecution of her appeal and writ of supersedeas here.
And this court now proceeding to render such decree as the said circuit court ought to have rendered, it is ordered and decreed that the appellee. George C. Gilmer, executor of Daniel P. Lewis, deceased, pay, out of any assets in his hands to be administered, to the appellant, Martha Ann Martin, executrix of John S. Martin, deceased, the sum of one thousand eight hundred and five dollars and seventy-five cents ($1,805.75), with lawful interest thereon from the 1st day of January, 1867, till paid, together with her costs by her expended in said circuit court up to the rendition of said decree of the 33d day of May, 1873.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481980/ | MONCURE, P.,
delivered the opinion of the court.
This is an appeal from certain decrees and orders of the circuit court of Roanoke county. The facts of the case, and the pleadings and proceedings in it, so far as it is material to state them, seem to be substantially as follows:
About the 26th of March, 1872, Shepherd Pollard contracted with John M. Brosius to purchase of the latter one steam saw-mill and fixtures, one wagon, one log carrier and one extra large saw; the first at $1,500, -the second at $145, the third at $125, and thp fourth at $20, all aggregated together, at $1,790 or thereabouts, all on time. The said property was to have been delivered on or before the 20th of April, 1872, but was not in fact delivered until the 11th of June, 1872, on which day the said Pollard executed his negotiable note at ninety days for $145, and his three bonds each, for $546.66, with interest thereon from the date thereof till paid, and payable eight, sixteen and twenty-four months after date, respectively. *The " said negotiable note was endorsed or assigned by said Brosius to John R. Steptoe, and the said bonds were made payable to said Steptoe — the said Brosius being, it seems, indebted to the said Steptoe on account of the said mill. On the same day on which^ the said property was delivered, and the said bonds were executed, to-wit: on the said 11th day of June, 1872, the said Pollard executed a deed of trust conveying the same property and a tract of land, two mares and two horses, to Robert S. Quarles, in trust to secure the payment of the said debts to the said Steptoe.
The said Pollard having, as was alleged, made default in the payment of a part of said debt, the said trustee, Quarles, on the 23d of June, 1874, in pursuance of the said deed of trust, advertised for sale the property thereby conveyed; but before it was sold, and on the day on which the sale was advertised to have been made, to-wit: the 14th of July, 1874, the said Pollard applied for and obtained an injunction of said sale from the judge of the circuit court of Roanoke county.
In the bill on which said injunction was obtained, the said Pollard, the complainant, charged, among other things, that “the said property was to be delivered on or before the 20th April, 1872, and to be delivered in good working order, all to be taken to pieces, overhauled, repaired, put in number one working order, and put up again so as to work in good condition on or before said 20th April, 1872, all whereof said Brosius guaranteed to complainant; that on the 11th June, 1872, the said property was all delivered, except a few parts of the wagons, which never were delivered; that the extra large saw never was put up and could not be got to work, but heated and bent and got. warped and limber, and would not work and was perfectly worthless, whereby complainant was damaged $145; that complainant wrote to said Brosius three different times requesting *him to take the said extra saw back or compensate complainant in some way, so that he would not be a looser thereby, but received no answer; that the engine had never been overhauled and repaired and put in good working order, as agreed upon, before its delivery to the complainant, but only blacked up, so that one of the flues was in such condition that it had to_ be plugged by the said Brosius himself after its delivery, and never has been and could not be used at all since its delivery, and that in other respects it was defective and out of order, so as greatly to impair its value to the amount of at least $350; that from the 20th April, 1872, complainant was expecting the said steam saw-mill and other property, and was induced so to expect it by frequent letters from the said Brosius promising to deliver same from week to week, and so was kept from farming and other business to his damage to the extent of at least $200; that complainant paid a negotiable note for $145, given on said purchase; that one bond executed by complainant for $546.66, due 11th June, 1874, was assigned to Charles E. Cocke, to pay which complainant has already made arrangements or has actually paid the whole; that soon after the delivery of said property complainant paid $65 in one milch cow to said Brosius; that complainant knew nothing of steam saw-mills and engines and fixtures at the time of the purchase and delivery thereof to him by said Brosius; that said Steptoe and Brosius were present together at the time of the sale of said property to complainant, but the latter was not aware of the connection of said Steptoe with the transaction until after-wards. “Complainant looked upon said Brosius as the actual owner of the said property, and gave the deed of trust as aforesaid merely to gratify him, and therefore let him have the cow at $65; that he was induced so to look upon said Brosius by the actions of said Brosius and said Steptoe; that it was not until *six months or more afterwards that complainant found out that the said Steptoe was the real owner of the said property,” &c., &c.
The said Steptoe, Quarles and Brosius were made defendants to the said bill and answered the same. The said Brosius in his answer, among other things, says: _ “That in March, 1872, this respondent being indebted to his co-defendant, John R. Steptoe, and desiring to make an arrangement to pay the debt by appropriating the proceeds of the sale of the property specified in the bill, met the plaintiff and said Steptoe at Salem depot some few weeks after having bargained with the plaintiff for a sale of said property, and on that day and at that place delivered the property to the plaintiff in the exact condition in which he had purchased it, and by agreement then and there between them the plaintiff executed his notes or bonds, not to this respondent, but to the said Steptoe, and to secure their payment, the plaintiff that day, in pursuance of an agreement then made at *233the depot with said Steptoe, executed the deed of trust in the bill mentioned. This respondent was no party to that deed, and is in no way interested in it, the same being matter of arrangement and contract between Pollard and Steptoe to their mutual satisfaction. This respondent denies most positively that there was any warranty of the engine or any of the machinery, and affirms that he refused to warrant it, but left the plaintiff to judge of its value. Tie denies that there was any delay in its delivery, as charged in the bill, but that the property was delivered at Salem depot on the day the notes or bonds and deed of trust were executed, and was there and then received and hauled away by the plaintiff without objection or complaint of any kind,” &c., &c. “Respondent denies that any of this property was owned by his co-defendant, Steptoe, when sold to the plaintiff, but was the bona fide property of this respondent, and Steptoe, as a creditor of ^''respondent, agreed to take the notes or bonds of the plaintiff, properly secured, and give respondent credit therefor. Respondent denies the allegation that the plaintiff sustained damage in his farming operations by any delay in receiving the mill, but on the contrary, told respondent if he had had it sooner than he got it. he could not have used it by reason of other engagements. Respondent denies that there was any partnership between himself and said Steptoe up to and at the time of these transactions, or in the ownership of said property.” “This respondent denies in toto every allegation of the bill imputing fraud, misrepresentation, covin or deceit to him, and insists that when the plaintiff received the property he had purchased from respondent, and recognized the transfer of the price by respondent to said Steptoe, and executed his notes or bonds to said Steptoe, and a deed of trust to secure them, it terminated all interest on the part of this respondent in the subject.”
The answer of Quarles is not material to be stated.
In the answer oí Steptoe he says, among other things, which need not be here repeated, “that he has read the answer of his co-defendant, John M. Brosius, to the bill in this cause, and he hereby adopts the same as a part of this answer, so far as the statements thereof are applicable to his defence.”
Many depositions were taken and filed in the cause on the side both of the plaintiff and defendants. They are very conflicting in their statements; those of the plaintiff tending strongly to sustain the allegations of his bill, while those of the defendants tend strongly to sustain the contrary. It is not material to repeat here the details of the testimony, which is all set out in the record.
On the !)lh of October, 1875, the cause came on to be heard upon the bill and exhibits, answers, depositions and motion of defendants to dissolve the injunction, and was argued by counsel; on consideration whereof, the *court overruled, for the present, the motion to dissolve the injunction, and decreed “that a jury be summoned to try, on the common law side of this court, the issue, and determine what amount of damage, if any, the complainant, Pollard, has sustained by any breach of warranty or misrepresentations falsely made by the defendant, John M. Brosius; said Brosius, at the time of making said representations, knowing them to be false as to the condition of the steam saw-mill sold by the defendant, Brosius, to the complainant, btiepherd Pollard; upon the trial of which issue, the said Pollard is to hold the affirmative and the defendant the negative.”
The said issue was accordingly tried by a jury which, on the 7th day of October, 1876, found a verdict in these words: “We, the jury, find for the plaintiff and assess his damages at six hundred dollars;” which verdict was ordered to be certified to the chancery side of the court.
On the trial of the issue, the defendants excepted to an opinion of the court given upon said trial, and tendered a bill of exceptions, which was accordingly signed and sealed by the court and made a part of the record; from which it appears “that on the trial of the issues in the cause, testimony having been introduced tending to show that the defendant, Brosius, sold to plaintiff, Pollard, the mill and engine in the proceedings mentioned; that the defendant, Steptoe, who was surety for defendant, Brosius, for the purchase money for the said steam saw-mill, and who was authorized (as well as was defendant. Brosius), to sell the same, and who was anxious to sell the same," and was looking around for a purchaser of the same, accompanied the complainant, Pollard, and the defendant, Brosius, from Liberty to the place where the steam saw-mill then was, a distance of eight miles, in order to effect the sale of the same, and was present pending part of the negotiations for the sale of the same, but was not present at the conclusion of the said sale; *that the said Brosius was the owner of the said engine, and at the time of sale agreed that he would put the engine in repair so that the same should be as good as new; that the engine and mill was to be delivered at the Salem depot on the Atlantic, Mississippi and Ohio rajlroad; and that the said Brosius should set and start the said steam saw-mill in good running order; that subsequently the engine and mill was brought to said depot, and that said Brosius, the defendant, Steptoe, and complainant being present, the said mill and engine was delivered to and received by the complainant, who, accompanied by said Brosius, took same to Frautz’s farm, where the same was to be set up and started in good running order; but before the same was delivered, the plaintiff asked Brosius if he had put the engine in good order, and was told by him that he had not, but that he would do so; that it was then agreed between Brosius, Pollard and Steptoe that the said plaintiff (Pollard), should execute his bonds to said Steptoe, who was a creditor of said Brosius for the purchase money of said mill and engine, and a deed of trust to secure the payment of the same; that accordingly the plaintiff did execute and *234deliver his. bonds to the said Steptoe for the payment of the purchase money, and did execute the deed of trust to secure the payment of the same, the said Steptoe being then and there a creditor of said Brosius, who accepted said bonds and deed of trust in payment of said indebtedness of said Brosius to him. The plaintiff then asked a witness to state and detail conversations and declarations made by said Brosius at the said depot before the execution of the said bonds and deed of trust, and in the absence of said Steptoe, and on Frautz’s farm whilst Brosius was engaged in setting and starting the said steam saw-mill under the said contract of sale, after the execution of the said bonds and deed of trust, and in the absence of the said Steptoe, in respect to the condition and contract in regard to said ^engine; to which testimony, giving the declarations of said Brosius after the execution of the bonds and deed, of trust, and in the absence of said Steptoe, as to what were the terms of said contract, and how far said contract had been performed, the defendant, Steptoe, by counsel, objected; but the court overruled the objection and permitted said testimony to be given to the jury; to which opinion of the court the defendant, Steptoe, excepted.”
_ A verdict having been found for the plaintiff on the issue as aforesaid, the defendant, Steptoe, moved for a new trial of said issue, because:—
1. The verdict was contrary to the law and the evidence.
2. The court admitted improper and illegal testimony to go to the jury, in this, that the admissions and statements of John M. Brosius as to the terms of sale, and his failure to comply with his part of the contract made after the execution of the bonds and deed of trust, were allowed to be given in evidence to affect the rights of said Steptoe.
3. The verdict is not responsive to the issues directed.
,4. The damages are excessive.
On the 14th of October, 1876, the cause came on again to be heard upon the papers formerly read and the certified verdict of the jury upon the issue aforesaid and the said motion for a new trial of said issue, and was argued by counsel; upon consideration whereof the court overruled said motion and decreed that one of the commissioners of.the court should take an account of the payments made by the complainant, or any one for him, in discharge of his indebtedness for the steam saw-mill aforesaid, and the balance due upon said purchase, and make report, &c. And by consent of parties the court further decreed that the sheriff of the county should be appointed receiver in the cause to take charge of. the steam saw-mill *and sell the same, either privately or by public auction, as in his judgment, would best promote the interests of all concerned, upon a credit of twelve months, except as to so much as was necessary to defray the expenses of sale which might be required in cash; and said receiver was directed to advertise the sale and report his proceedings to the court. And exception being taken by the defendants to the opinion of the court overruling their motion for a new trial of the issue by a jury as aforesaid, and a certificate of the facts asked for, the court declined to give such certificate because the evidence was conflicting, but certified the evidence to have been as set forth in the certificate contained in the record, marked “certificate of evidence.”
Commissioner Palmer made a report in pursuance of said decree of the 14th of October, 1876, to which report sundry exceptions were taken by the plaintiff; and the receiver appointed by said-decree also made his report in pursuance thereof, showing that after advertising the said steam saw^ mill in the Salem Register for sixty daysj and no bidders appearing to buy at the public sale so advertised, he sold the same to John R. Steptoe privately, by. and with the consent of Shepherd Pollard, for the sum of $350, of which sum $28 was paid in cash, and for the balance ($322) bond was taken from said Steptoe, with surety on twelve months’ time.
On the 20th of June, 1877, tine cause came on to be heard upon the papers formerly read, the report of Commissioner Palmer and the exceptions thereto, on consideration whereof the court decreed that the said verdict be approved and confirmed, that the plaintiff’s first exception to said report be sustained, and his other exceptions thereto overruled. “And the court being of opinion that the damages found by the jury are for breach of warranty or misrepresentation at the time of the contract, the amount found by the jury should be *entered as a credit to the complainant as of the date of the contract, and the court having the report of Commissioner Palmer corrected by said commissioner in accordance with this opinion, as appears by statement marked ‘A,’ filed as part of the decree; and it appearing from said corrected statement that the amount due and unpaid by complainant to said Steptoe for said saw-mill, &c., was the sum of $602.06, as of April 1st, 1877, with interest on $524.62, part thereof from said date, which sum is to be reduced b'r $307.16, the worth at the time of the bond for $322 executed 19th January, 1877, by said Steptoe as purchaser of the said steam sawmill, and payable at twelve months, shows as follows: An indebtedness of $602.06 less $307.16, or $294.90 as the balance remaining unpaid from the said complainant to the said Steptoe, as to which amount the injunction heretofore granted is dissolved, and as to the residue of the claim of the said Steptoe, said injunction is perpetuated; and it is decreed that the said Steptoe do recover of the complainant the said sum of $294.90, with interest thereon from the 1st day of April, 1877, till paid; and it is further decreed that unless the sum of $294.90, with its interest aforesaid, be paid by the complainant to the said Steptoe within sixty days from this date, then said Quarles, as trustee as aforesaid, shall proceed to enforce the deed of trust in the bill and pro*235ceedings mentioned as to the property in said deed mentioned (besides the steam saw-mill), so far as it may be necessary to pay the said sum of $294.90, with its interest and the cost and expenses of sale. And the bond of $322 executed by Steptoe having been directed to be credited on his claim against the complainant, Special Receiver W. W. Brand is directed to cancel said bond and deliver it to said Steptoe.” And there was then a decree for the complainant’s costs against the defendant Steptoe. and that *they may be set off against the said sum of $294.90, and its interest aforesaid, so far as the same may extend.
The appellant complains of being aggrieved by the orders and decrees made in this case, and especially the decree of the 20th day of June, 1877, and assigns the following errors in the same, which will be noticed in their order of assignment:
‘T. The injunction should have been dissolved upon the motion first made, because it appeared that said complainant executed the bonds to your petitioner and the deed of trust to secure their payment, and thereby promised to pay said sums to your petitioner after said steam saw-mill had been received, and without informing your petitioner of any warranty or representation made by said Brosius, and without making known to him any claim, contingent or otherwise, against said Brosius, to be set of by said complainant against said bonds, and said complainant is thereby estopped from setting up any such claim against your petitioner.” 2 Rob. Prac. p. 267 (old ed.), and cases cited.
The court below did not err in this respect. The case is palpably different from the cases cited and relied on by counsel in support of this assignment of error. In those cases there was a manifest intention on the part of the debtor, in becoming bound to the third party, to waive any defences, legal or equitable, he may have had against the original creditor. The transaction with the new. creditor, was, in effect, a novation of the debt, whereas in this case there was no intention of the parties to novate the debt, nor that any right of either of the original contracting parties, inter se, should be surrendered. Shepherd Pollard was willing, and he so declared, to pay any debt he might owe in the transaction to John M. Brosius, or any other person he might designate. It was immaterial to him to whom he paid it. Pie *might have given his bonds to Brosius, who might have assigned them to Steptoe. Had he done so, he would in the absence of a special agreement to the contrary, certainly not have surrendered any of his defences, legal or equitable, to the assignee. The actual transaction was in effect the same thing. Instead of giving his bonds to Brosius to be assigned to Steptoe, he gave them directly to Steptoe. Pie derived no benefit whatever from that mode of settlement, while Steptoe was thereby himself greatly benefited. Instead of having Brosius alone for his debtor without any security for the debt, he acquired the bonds of Pollard secured by deed of trust, not only on the saw-mill and fixtures, but also on a large additional estate, real and personal, and Brosius himself remained still bound for the debt, but not as assignor. The negotiable note for $145 was payable to Brosius, who endorsed it to Steptoe, and the bonds would no doubt have been payable and assigned in the same way, but that the course actually pursued was more direct and simple. Pollard says that he considered Brosius as still the owner of the debt, notwithstanding the bonds were payable to Steptoe; which he supposed was induced by a purpose which he named. But whether that be true or not, the effect is the same, in the absence of a clear intention to the contrary. Instead of which, it is manifest from all the surrounding facts and circumstances, that Pollard intended by the form of the transaction to surrender no defence, legal or equitable.
The distinction between this case and the cases cited on this branch of the subject by the counsel for Steptoe is manifest. Those cases are Buckner, &c., v. Smith, 1 Wash. 296; Hoomes, ex’or of Elliott, v. Smock, Id. 389; Davis’ adm’r v. Thomas, &c., 5 Leigh 1; Pettit v. Jennings, &c., 2 Rob. R. 676. But it is needless to state and review these cases, and we will proceed to consider the next assignment of error, which is:
*“2. It was error to direct an issue in said cause, because it was clear from the evidence that the mill had been delivered in good order, and that the complainant was fully satisfied with it and made repeated promises to comply with his contract to pay off his bonds long after he received said mill.”
The grounds of defence relied on in the injunction bill were palpable, if true. Had they been confessed by the answers, they would certainly have entitled Pollard to the relief which he claimed. They were denied by the answers of Brosius and Steptoe, to which the plaintiff replied generally. The evidence on each side was conflicting. The evidence of the plaintiff fully sustained the allegations of his bill, while that of the defendants, Brosius and Steptoe, was to the contrary. What, in such a state of doubt and difficulty, was the court to do but to direct an issue to be tried by a jury? which was accordingly ordered. That it was proper so to order, is manifest, and such propriety is shown by the cases cited by the counsel for the appellees, if any citation of authority can be necessary on such a question. Those cases are Isler, &c., v. Grove, &c., 8 Gratt. 257; Mettert v. Hagan, 18 Id. 231; Hord’s adm’r v. Colbert, 28 Id. 49. The complainant’s repeated promises to make payment, referred to in this assignment of error, no doubt had reference to what he actually owed after deducting all the discounts to which he was entitled. But even if they referred to the whole original debt they would not estop him from making any defence to which he might otherwise have been entitled, as such promises were made without consideration. We think the court did not err in ordering an issue.
*236. “3. If an issue was proper, your petitioner should not have been made a party defendant, and required to defend the same for the reason that the issue to be tried was solely a matter between the said complainant and the ’'Isaid Brosius, as by his contract the said Pollard, in effect, agreed to look to said Brosius alone for reparation in case he was injured, and your petitioner agreed to look to said complainant alone for the amount of said bonds, and said Brosius was relieved from his indebtedness to your petitioner to the amount of said bonds.”
We think this assignment of error is wholly unfounded in fact, as plainly appears from what we have already said in regard to the first and second assignments of error, and nothing more need therefore be said in regard to it. The next assignment of error is—
“4. If your petitioner was to be affected by said verdict found upon said trial, then it was error in said court to allow to go to the jury as evidence the declarations made by said Brosius after said contract was entered into, and in the absence of your petitioner.”
There are several reasons why we think this assignment of error is not well founded. In the first place, Brosius and Steptoe were both interested in the sale made by Brosius to Pollard. But Brosius was the vendor and made the contract of sale for the benefit of himself and Steptoe. Steptoe was sometimes present and sometimes absent, pending the negotiation between vendor and vendee, and before and at the execution of the bonds and deed of trust. The transaction was not concluded on the last-mentioned occasion; after the delivery of the property and the execution of the bonds, note and deed of trust, something still remained to be done by Brosius and Pollard in execution of the contract. The mill was to be set up and set in motion under thfe superintendence and direction of Brosius, who was a machinist and had full experience in the matter, while Pollard was ignorant and knew nothing on the subject, as he declared to Brosius. Immediately after the delivery of the property and the execution of-the bonds and deed of trust at, Salem, Brosius and Pollard went together to Frautz’s *farm with the saw-mill to set it up and start it, under the said contract of sale. The “declarations of said Brosius, at the said depot, before the execution of the said bonds and deed of trust, and in the absence of said Steptoe. and on Frautz’s farm, whilst Brosius was engaged in setting up and starting the said steam saw-mill, under the said contract of sale, after the execution of the said bonds and aced of trust, and in the absence of said Steptoe, in respect to the condition and contract in regard to said engine.” were parts of the res gestae, and as such were admissible evidence. Steptoe trusted to Brosius to make and execute the contract, and in effect made him his agent for that purpose. Pollard supposed that Brosius alone, and not Steptoe also, was interested in it, notwithstanding the form of the bonds and deed of trust. But even if he knew what was the interest of Steptoe in the transaction, he was yet warranted in dealing with Brosius as he did till the transaction was closed by setting up and starting the saw-mill as aforesaid. In the second place, it does not appear what were the declarations of Brosius which were objected to, and therefore it does not appear ^that they were material, or that Steptoe could have been injured by admitting them as evidence. And in the third place, the question arose upon the trial of an issue out of chancery, and it devolved on the court to render a decree upon the proper pleadings and proofs in the case, which it might do without regard to any improper evidence introduced on the trial of the issue, or even to the verdict itself, the only object of which is to inform the conscience of the court, which may be otherwise sufficiently informed. In this case we think the decree is fully sustained by the evidence, even if the portion which was objected to had been excluded. Indeed, that portion seems to be only cumulative.
This court had occasion in Brockenbrough’s ex’ors v. Spindle’s adm’rs, 17 Gratt. 21, 27, 28, and in Powell & *wife v. Manson, 22 Id. 177, 191, 192, to comment on the nature of an issue directed by a court of chancery in an ordinary suit, and the effect of the verdict on such an issue. In the latter case, in which one of the questions was whether the court below erred in refusing to grant a new trial of an issue out of chancery, upon the ground that the verdict was contrary to law and the evidence, which was set out in a bill of exceptions, Judge Staples, in an opinion in which the other judges concurred, said: . “This court having before it this evidence, all the depositions and exhibits read at the hearing, is competent to decide whether the purposes of justice required another trial to be had. The rule in such cases is well settled. The court will consider not merely whether the evidence adduced before the jury warrants the verdict, but also whether, having regard to the whole case, further investigation is necessary to attain the ends of justice. And although there may have been a misdirection, or evidence may have been improperly rejected, it will not grant a new trial if the verdict appears to be right upon a consideration of all the evidence, including that which was rejected.” And among other references which he made was one to Barker v. Ray, 2 Russ. R. 63, in which Lord Eldon’s language is very pertinent to the present subject. In George & als. v. Pilcher & als., 28 Gratt. 299, this court reversed the decree of the court below on the ground that the court erred in not ordering a new trial of the issue which had been directed and tried in the case, on the ground of the improper exclusion of evidence offered on the said trial. But in that case the evidence introduced on the trial was not certified in the record, and it was impossible for this court to say that the party complaining was not injured by the exclusion of evidence aforesaid.
We are therefore of opinion that the court below did *not err, at least to the prejudice of the appellant, in re*237spect to the matter of the fourth assignment of error; and now as to the fifth.
“5. The court erred in overruling the motion of your petitioner for a new trial, for the reason assigned in the fourth assignment or error; and further, because the verdict was not responsive to the issue, being too general and indefinite, and because the damages were excessive. All the evidence as to damages was of so general and indefinite a nature, that the jury could arrive at no sum but by guessing it, except as to damage arising from the defects in the property, and the complainant himself does not claim in his bill on this account more than $350, nor is it anywhere proven to have been over $500; and moreover the issue by its terms confines the enquiry to damages arising from defects of the property.”
We are of opinion that the court below did not err in this respect. The certificate is of evidence only, and not the facts proved. If the evidence in favor of the appellee when in conflict with that in favor of the appellant be credited in deciding the case in the appellate court, which is the true rule on the subject, we think there can be no room for doubt on the question, and that though the evidence objected to on the issue be excluded, is as shown in considering the fourth assignment of error. We think the verdict was responsible to the issue, and was not too general or indefinite, and that according to the evidence, especially that in favor of Pollard, the damages were not excessive. And now in regard to the last assignment of error.
“6. It was error to allow the sum found by the jury to be set off against the demand of your petitioner, for the reason that it was admitted by the complainant and proven by other witnesses, that before he executed the bonds and deeds he was told by said Brosius that he had not done all he promised as to repairing the said steam *saw-mill, but (hat he. would do whatever might be necessary to put it in good running order; and relying upon this promise, complainant afterwards executed his bond to your petitioner and promised to pay them as they became due, said complainant well knowing at the time that your petitioner by receiving said bonds released said Brosius from his indebtedness to him to the full amount of said bonds.”
We have already fully shown that this assignment of error is groundless, by what we have said in regard to the other assignments of error, and therefore think the court below did not err in this respect. And upon (he whole, we think there is no error in any of the orders and decrees complained of, and that they ought to be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481981/ | CHRISTIAN, J.,
delivered the opinion of the court.
This is an appeal from a decree of the circuit court of Clarke comity.
A transcript of the record, presented with the petition for appeal, discloses the following facts:
In the year 1854, one Peter Cain conveyed to Bowen, trustee, a tract of land in the county of Clarke, containing about 258 acres, in trust to secure to John Pierce, Jr., executor of Samuel Stipe, deceased, the payment of certain notes held by him as assignee of Hardesty, and to William F. Knight certain bonds executed by said Cain, and payable to said Knight.
*238Afterwards, Barnett was substituted trustee in place of Bowen. Barnett, the substituted trustee, being required by Knight, one of the parties secured by said deed, to make sale of the land, advertised the sale thereof as required by the terms of said deed, but was enjoined from making said sale by order of the circuit court of Clarke or the judge thereof, upon a bill filed-by Peter Cain, to which William F. Knight and Neill Barnett, the trustee, alone were made parties.
Upon the hearing, the circuit court directed a sale of the land, and appointed Barnett a special commissioner to execute this decree of sale. At this sale Knight became the purchaser; and upon being reported to the court, the sale was approved and confirmed.
This decree of confirmation contains the following provision: “And said Barnett is further directed to take said Knight’s bond for the deferred payments of said purchase money, and thereupon execute and deliver to said *Knight a good and sufficient deed for said land so purchased by him, in said report mentioned, taking from said Knight at the same time a deed of trust to secure the payment of said deferred payments.”
It is further shown by the record, that on the 1st November, 1863, Barnett, the special commissioner, conveyed by deed executed on that day, the said tract of 258 acres to the purchaser. Knight, describing said land as the tract of land in the bill and proceedings mentioned in the suit- between Peter Cain, plaintiff, and Neill Barnett and William F. Knight, defendants, in the circuit court of Clarke county. In the same month, if not on the same day, Knight conveyed this land to Wood and Smith, the appellants in this suit. In that deed the land is described as the same land which was conveyed to said Knight by Neill Barnett, special commissioner.
It further appears 'that Commissioner Barnett, for some reason not stated in the record, instead of taking a deed of trust from Knight on this land -to secure the deferred payments at the same time (as directed by the court) that he conveyed it to Knight, took from Knight a deed of trust on another tract of land known as the George Knight tract, of which William Knighf was then seized and possessed as the devisee of said George Knight, his father.
It was this unauthorized act of Special Commissioner Barnett, that produces all the difficulty in the case, and from which has arisen harrassing and expensive litigation.
It turns out that this tract of land was charged in the hands of the devisee with certain legacies, which together with certain debts of William F. Knight, so encumbered it with liens prior to the deed of trust aforesaid, that it cannot be considered as any security whatever for the deferred payments due on the land sold by said special commissioner.
*There is a deed filed with the record, proper to be noticed here, before we proceed further. It is a deed executed by William F. Knight conveying the land purchased by him of Barnett, special commissioner. at the judicial sale above referred to, to Moore, trustee, to secure the deferred payments due from said Knight. But how this paper comes to be in the record, by whom it was produced and filed, or for what purpose, does not appear. It is noted by the clerk that “no acknowledgment or certificate thereof, or certificate of recordation, appears upon this paper.” If, as it may be, this deed was intended originally as the security for the deferred payments, it is plain this intention was never carried out. It was not filed with the record in the case of Cain v. Barnett and Knight, nor was it returned by Special Commissioner Barnett with his report. It was never acknowledged and never recorded, and may be regarded as out of the case. Certain it is, that both the commissioner and the purchaser, Knight, regarded the deed of trust on the George Knight land as the security given and taken for the deferred payments due on the land sold by said special commissioner.
Now, it will be remembered that in the deed of trust of April, 1854, which originally created a lien upon the tract of land sold by Commissioner Barnett in the suit of Cain v. Barnett and Knight, that deed secured first of all a debt due from Peter Cain to John Pierce, Jr., executor of Samuel Stipe, who was assignee of one Hardesty. This debt, thus secured, was assigned to Isaac Krebbs, the appellee in this suit. Not a dollar of this debt has ever been paid.
Krebbs filed his bill in the circuit court of Clarke to enforce his lien against the land (conveyed to secure his assignor in 1854), and of record in the clerk’s office of the county court of Clarke. To this bill the executors of Special Commissioner Barnett (he being dead), William *F. Knight, Wood and Smith, the appellants, and purchasers from Knight, are made parties. The bill sets forth the facts above detailed, and insists that the land purchased by Wood and Smith of William F. Knight, no matter to whom conveyed, is liable for the debt of which Krebbs is the owner, secured by the trust deed of 1854. To this bill Barnett’s executors demurred. The court sustained their demurrer, and put the plaintiff to his election, whether he would proceed against the executors of Barnett or against the purchasers, Wood and Smith, Barnett’s exec-plaintiff electing to proceed aghinst the purchasers’ Wood and Smith, Barnett’s executors were dismissed from the suit.
Wood and Smith answered the bill. In said answer they affirm “that they have no knowledge or information (other than the statement in said bill) respecting the indebtedness of Peter Cain, deceased, to James M. Hardesty, or as to the former giving his bond for $400, or for any other sum to the latter, or as to the assignment of such bond to John Pierce, Jr., executor of Samuel Stipe, deceased, or as to its subsequent assignment by said John Pierce, Jr., to the plaintiff— or as to what payments have been made thereon, either for principal or interest, or what *239was the consideration of said bond, or that it or any other debts of said Peter Cain were secured by a deed of trust to Archibald Bowen, trustee, upon the tract of land mentioned in said bill; or that Neill Barnett was at any time substituted as a trustee in the place of said Archibald Bowen, or that as such substituted trustee he ever advertised the said land for sale; or that he had been restrained by any injunction from making such sale; or that any such injunction suit had at any time been instituted in this court; of what orders or decrees were made, or proceedings had in such suit; or who were, or were not parties to such suit, save that as they aver, these defendants were not, nor was either *of them, parties thereto. They, and each of them, are wholly ignorant as to the said matter, and as to all the other statements made in said bill of complaint, except such as they shall hereinafter plainly make answer to, and have no information in respect thereto, save what they have obtained from said bill of complaint. Further answering, these defendants say that some little while before the 3d day of November, 18(52, William F. Knight offered to sell them the tract of land in said bill mentioned, of which they had understood and believed that he was seized in absolute right, but they declined to make the purchase without having the records examined to ascertain if said land was free from all incumbrances and liens; that at that time, it being during the progress of the late civil war, it was not the habit of either of them to visit Berryville, the county seat of the county in which said land was situated, and neither of them did go there at that time, or about this matter of business; they therefore refused to buy unless he would obtain and produce to them a -certificate of the clerk of the county court of said county of Clarke, showing that said land was wholly unencumbered, so that they might safely buy and safely pay the purchase money thereon. These defendants further say that the said clerk did examine the records of his office, and did give a certificate that, so far as the records of his office showed, the only lien or incumbrance upon the lands proposed to be sold to them by said William F. Knight, was one in favor of the heirs of Francis O. Byrd, upon the small tract of twenty-nine acres, sixteen poles (embraced in said Knight’s deed to them, and which parcel is entirely distinct from the tract of land in the plaintiff’s bill of complaint mentioned), and that with this exception the said lands were entirely free from all lien or incumbrance.”
They affirm that such certificate of the clerk was produced *by Knight, and that they relying thereon, and with the full belief that the land was free from claim or incumbrance of any sort, concluded the purchase, received from Knight his deed, and paid to him the whole of the purchase money. Their claim, therefore, is that they are bona fide purchasers without notice of any prior lien, and that having paid all the purchase money, they are entitled to the land free from the lien asserted by the plaintiff, Krebbs.
They admit that they did not make any examination of the records of Clarke county, either by themselves or through their counsel, but living at some distance from the court-house, then quite inaccessible to them, they relied upon and acted upon the certificate of the clerk that there was on record no lien or incumbrance on said land.
The circuit court held, by its decree entered at its November term, 1876, that the land in the bill and proceedings mentioned is subject in the hands of the purchaser, “to the lien of the deed of trust executed by Peter Cain on the 3d day of April, 1854, to secure the several bonds therein named, payable to James M. Hardesty, one of which bonds is that due complainant, and filed as an exhibit with his bill.” From this decree Wood and Smith applied for and obtained an appeal from one of the judges of this court.
The court is of opinion that there is no error in this decree. We think that this case must be governed by the principles declared in Burwell’s ex’ors v. Fauber & als., 21 Gratt. 446, and Long et al. v. Weller’s ex’or et als., 29 Gratt. 347. Tn the former case the president of this court, with whom all the judges concurred on this point, said: “The purchaser (as in the case before us), claims to be entitled as a bona fide purchaser. Certainly a bona fide purchaser for value, and without notice, is a great favorite of a court of equity, and that court will not *disarm such purchaser of a legal advantage. But we must not permit ourselves to be mislead by words or maxims in this matter. Other persons are entitled to the protection and the favor of a court of equity, as well as purchasers. Creditors are such persons. * * * Purchasers are bound to use a due degree of caution in making their purchasers, or they will not be entitled to protection. Caveat emptor is one of the best settled maxims of the law, and applies exclusively to a purchaser. He must take care to make due enquiries or he may not be a bona fide purchaser. He is bound not only by actual, but also by constructive notice, which is the same in effect as actual notice. He must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has no right to shut his eyes or his ears to the inlet of information, and then say he is a bona fide purchaser without notice.” And in Long et als. v. Weller’s ex’or (supra), Judge Burks, in discussing the doctrine of constructive notice. says: “Wherever enquiry is a duty, the party bound to make it is affected with knowledge of all, which he would have discovered had he performed the duty.” And he quotes from Mr. Justice Strong in Cardova v. Hood, 17 Wall. U. S. R. 1, in which that eminent judge thus tersely and concisely states the same principle: “Means of knowledge, with the duty of using them, are, in equity, equivalent to knowledge it*240self.” See also Brush v. Ware, 15 Peters 93, 114, and Le Neve v. Le Neve, and notes thereon; 2 Lead Cases, pt. 1, 109, 127, top 23 (Marg.).
Now, applying the doctrines of these cases to the case before us, I think it is plain that the appellants, Wood and' Smith, had constructive notice of the complainant’s lien.
The deed' from Knight to them refers in terms to the *deed from Barnett, special commissioner, to Knight, and the latter refers directly to the proceedings in the suit of Cain v. Knight and Barnett. The proceedings in that suit pointed directly to the deed of trust from Peter Cain to Bowen, trustee, for whom Barnett was substituted. conveying this very tract of land, first to secure a debt of which Krebbs was the remote assignee, and second,to secure a debt to Knight. This very deed was filed as an exhibit with that bill. An inspection of that record, to which their title deed unerringly pointed, would have informed them that the first lien on this land was in favor of Hardesty’s assignee, who was not made a party to that suit, Knight and Barnett, trustee, being the sole defendants. They would further have discovered that the special commissioner, Barn’ett, was directed, when he delivered a deed conveying it to Knight, at the same time to take a deed of trust on this land (we say upon this land, for upon no just construction of the decree could any other land have been referred to), to secure the deferred payments. Upon looking to the records they would have found that no such deed was taken, but a deed, unauthorized by the decree, was taken on other land already covered by pre-existing lien, and that the deed by the special commissioner having been delivered without authority, was void.
Knowledge of all these facts would have been brought home to them, if they had used ordinary diligence in seeking that knowledge which was pointed to by the very title papers under_ which they held the land from Knight-. It is insisted, however, that the appellants did refuse to receive the conveyance from Knight, or to pay the purchase money until'Knight had produced a certificate of the clerk that there was no lien or incumbrance, and that they had thus used due diligence in enquiring into the state of the title. But this was not sufficient to release them as bona fide purchasers without notice. The *certificate of the clerk is not of itself sufficient; for a clerk may be careless, or ignorant, or even corrupt, or he may give an erroneous opinion as to whether there be liens or not existing. We mean, of course, to cast no reflections on the clerk in this case, but we speak generally, and simply affirm that of itself such a certificate of a clerk, as the one produced, does not excuse the parties from further enquiry. The same sources of information and 'knowledge were open to them or their counsel, through the public records, as were open to the clerk. If they did not choose to examine into the sources of their title .either themselves, or through counsel, they have sustained loss by their own negligence, from which a court of equity will not relieve them. As was said by Mr. Justice McLean in Brush v. Ware (supra) : “No principle is better established than that a purchaser must look to every part of the title which is essential to its validity. The law requires reasonable diligence in a purchaser to ascertain any defect of title. But when such defect is brought to his knowledge’’ (as in this case it would have been done if the records to which his deed pointed had been properly examined), “no inconvenience will excuse him from the strictest scrutiny.”
Upon the whole case, we are of opinion that there is no error in the decree of the circuit court, and that the same be affirmed.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481982/ | STAPLES. J.
The books abound with discussions and decisions upon the subject of domicile, habitancy, and residence.
In Thorndike v. City of Boston, 1 Metc. R. 242, Shaw, C. J., said, “that the questions of residence, inhabitancy, or domicile, for although not in all respects precisely the same, they are nearly so, and depend much upon the same evidence, are attended with more difficulty than almost any other which are presented for adjudication.”
There is, however, a wide distinction between domicile and residence, recognized by the most approved authorities everywhere. Domicile is defined to be a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited lime. To constitute a domicile, two things must concur— first, residence; secondly, the intention to remain there. Pilson, trustee, v. Bushong, 29 Gratt. 229; *Mitchell v. United States, 21 Wall. U. S. R. 350. Domicile, therefore, means more than residence. A man may be a resident of a particular locality without having his domicile there. He can have but one domicile at one and the same time, at least for the same purpose, although he may have several residences. According to the most approved writers and lexicographers, residence is defined to be the place of abode, a dwelling, a habitation, the act of abiding or dwelling in a place for some continuance of time. To i-eside in a place is to abide, to sojourn, to dwell there permanently or for a length of time. It is to have a permanent abode for the time being, as contra-distinguished from a mere temporary locality of existence. In the matter of Wrigby, 8 Wend. R. 134, 140; 1 Amer Lead. Cases, 899, 953.
Notwithstanding these definitions it is extremely difficult to say what is meant by the word residence as used in particular statutes, or to lay down any particular rules on the subject. All the authorities agree that each case must be decided on its own particular circumstances, and that general definitions are calculated to perplex and mislead.
It is apparent that the word residence, like that of domicile, is often used to express different meanings, according to the subject matter. In statutes relating to taxation, settlements, right of suffrage, and qualification for office, it may have a very different construction from that which belongs to it in the statutes relating to attachments. In the latter actual residence is contemplated. as distinguished from legal residence. The word is to he construed in its popular sense, according to the definition already given, as the act of abiding or dwelling in a place for some continuance of time. Crawford v. Wilson, 4 Barb. R. 504, 533; Isham v. Gibbons, 1 Bradf. R. 69, 84; Drake on Attachment, §§ 61-3.
While on the one hand the casual or temporary sojourn *of a person in this stale, whether on business or .pleasure, does not make him a resident of this state within the meaning of the attachment laws, especially if his personal domicile be elsewhere, so on the other hand it is not essential he should come into this state with the intention to remain here permanently to constitute him a resident. In the matter of Fitzgerald, 2 Caine’s R. 318; Jackson v. Peery, 13 Mon. R. 231; Rayness v. Tayloe, 10 Louis. R. 726.
Whatever doubt or ambiguity there may have been in former laws on the subject, it is clear that since the revisal of 1849, a party cannot be proceeded against under the foreign attachment law unless he be actually a non-resident of the state at the time. Kelso v. Blackburn, 3 Leigh 299; Daniel on Attachments, p. 242. The question is not as to the place of his domicile, but his place of abode — his dwelling place. This branch of the attachment law is based upon the idea that a debtor is living — dwelling—beyond the limits of the state, but has effects or debts due him within the state. As he cannot be served with process, there is no mode of reaching his property according to the course of the common law; or if coming into the state temporarily on business or pleasure, he should be served with process, he may, at any time, depart, taking with him his effects, before execution can be had against him. When, however, the debtor is within the state amenable to process and doing business here, *242the proceeding against him by foreign attachment ought to be carefully watched by the courts, because the proceeding is not merely ruinous to the debtor, but tends to give one creditor undue preference over the others. This is no hardship upon the creditor, because, if after suit is brought and process served, or before suit is brought, the debtor attempts to remove his effects, the most ample remedy is afforded the creditor by the second *and third sections of chapter 151, Code of 1860, which authorizes attachments where the debtor intends to remove or is removing his effects out of the state. The provisions of these two sections relieve us of the necessity of giving any strained construction to the first section of the same chapter, where the proceeding is against one within the state, and amenable to process here.
Applying these principles to the case in hand, I think the circuit court did not err in holding that the defendant, Ryan, was, at the time of suing out the attachment, a resident of the state of Virginia, and that the attachment against him was sued out on false suggestion. The defendant having demurred to the plaintiff’s evidence, upon familiar principles, must be held to have waived all evidence on his part which conflict with that of the plaintiff, and to admit all inferences of fact that may be fairly deduced from that of his adversary. Trout v. Va. & Tenn. R. R. Co., 23 Gratt. 619; Barton’s Law Prac. 222. Looking then to the testimony of the plaintiff, and such of the defendant’s as is not in conflict with it, it appears that Ryan had his domicile and residence in Washington city from 1855 to 1868. In December, 1868, he obtained a contract from the Winchester and Strasburg railroad company to construct three sections of their road in this state, the work to be completed by the first of September, 1869. The defendant, however, agreed to do any additional work in the way of masonry, bridges, culverts and the like, the company might require, within such extended time as the chief engineer might allow. The defendant commenced his work the first of January, 1869, and proceeded wkh it until arrested by the attachments against him. In April he brought his family to Newtown, Virginia, consisting of his wife, two daughters. and two sons. Another daughter was left in Washington, being an employee in the treasury department. ' Shortly after the removal of the family to Virginia, the *house _ in _ Washington, belonging to the wife, was rented out. The two sons worked with the father on the railroad, and the two daughters assisted the mother in keeping a boarding house in Newtown. In the month of June, while the defendant .was thus engaged, these attachments were sued out and levied upon his effects, and his work arrested and never resumed.
It was proved that during the time the defendant was engaged in his work, he> always claimed Washington city as his place of residence, and declared he intended to return to that place so soon as his contract was completed, unless he could get work elsewhere, and that he expected to get a contract on a Pennsylvania or a Maryland road. These are substantially the facts about which there is no controversy.
In the first place, I cannot think that the declarations of the defendant, so much relied on, are entitled to much consideration. Such declarations are not of much weight, unless they accompany and are explanatory of acts done at the time. They are often loosely and carelessly made, and as often misunderstood or misconstrued by the hearer. It is very probable the defendant did consider Washington city as his domicile, as his wife’s property was there; for he might have a domicile in Washington and still be a resident of Virginia.
As already stated, the house in Washington had been rented, the family brought to Virginia with all the means of the defend-, ant. It was impossible to say how long he would remain in Virginia, for although he was under obligations to complete his work by the 1st of September, 1S79, it was by no means certain he would do so, and at all events he had undertaken to do other work, if required by the company, which would extend his contract indefinitely. It seems that the excavation on section eight, part of defendant’s work, was not completed until April, 1870. So that the stay of the defendant in *the state was wholly uncertain and indefinite. His family were here; his business and means were here; his dwelling was here, and I think it is impossible to resist the conclusion that his residence, for the time being was here.
From the earliest period the proceeding by attachment has been carefully watched by the courts. Barnett v. Darnielle, 3 Call 416. In Mantz v. Henley, 2 Hen. & Munf. 308, Judge Fleming said, that the attachment jaw, though sound in principle and salutary in operation when properly administered, had been, in the course of his experience and’observation, oftener perverted and more abused than any law in our whole statutory Code; that instead of promoting justice it was often made the engine of injustice and oppression, and that being a summary proceeding unknown to the common law, the strict letter of the statute ought to be adhered to in all cases. The same view was taken by Judge Carr in Jones & Ford v. Anderson, 7 Leigh 308. In Claflin & Co. v. Steinbock & Co., 18 Gratt. 842, Judge Joynes said: “This extraordinary remedy is not only harsh towards the defendant himself, but its operation is harsh towards the other creditors of the defendant, over whom the attachment creditors obtain priority. It is susceptible of great abuse, and has often been greatly abused. It is therefore closely watched, and will never be sustained unless all the requirements of the law have been complied with.” Daniel on Attachments, 24-5. The wisdom of these remarks is, I think, shown in the present case. Whether the defendant would in any event have completed his contract is a mere matter of conjecture. One thing is certain: his work was suspended and his business destroyed by *243the levy of these attachments. There was no difficulty at any time serving him with^ process, and as little difficulty in obtaining judgment and execution while he was in the state. If he had attempted to remove his effect *the remedy of the plaintiff was ample under the second and third sections already adverted to. For these reasons I think the judgment of the circuit court should be affirmed.
The other judges concurred in the opinion of STAPLES, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481983/ | MONCURE, P.,
delivered the opinion of the court. After stating the case he proceeded:
There is but a single assignment of error in the petition for an appeal in this case, which is in these words:
“The# single error complained of is in overruling the demurrer to the bill of the complainants, and thereby permitting the complainants to proceed in one bill against *several persons in regard to matters entirely distinct and independent, and as to which the defendants had no common or related interest.”
And the petitioners proceed as follows in their said petition:
“The bill charges (page 5) that Abraham Nulton, by deed of 24th June, 1869, conveyed to Joseph A. Nulton, one of the petitioners, certain real estate in trust for Sarah Nulton. And that this deed was wholly without consideration, and was illegal and void; that on the 10th of November, 1869, and on the 23d February, 1870, the said Abraham Nulton conveyed to Joseph A. Nulton certain other pieces of real property ‘for which no adequate consideration hath been given him;’ and the said Joseph A. Nulton is required to make discovery of the settlement referred to *247in the deeds to him, and to exhibit a full settlement of his partnership accounts with his father, the said Abraham Nulton.
“And the prayer of the bill is, that the deed to Sarah Nulton and the two deeds to Joseph A. Nulton may be set aside, and that he be required to settle his accounts as partner of his father.
“Petitioners are advised that this bill is decidedly multifarious — Joseph A. Nulton protesting that he has nothing to do with the property conveyed to Sarah Nulton, and by her devised to his co-petitioners, and the other petitioners protesting that they have no interest or concern in the two deeds to Joseph A. Nulton, or in the settlement of his partnership account with his father. 1 Daniel, Ch’y Pr. p. 334; Story’s Eq. Pl. § 271; Dunn v. Dunn & als., 26 Gratt. 291; Sawyer v. Noble, 55 Maine 227.”
The court is of opinion that the circuit court did not err in overruling the demurrer to the bill, and that the same is not multifarious. This, we think, plainly appears from *the authorities referred to in the petition and the notes of argument. Story’s Eq. Pl. §§ 271, 285-6; Segar, &c., v. Parish, &c., 20 Gratt. 672; Jones’ ex’ors v. Clark & als., 23 Id. 662, 676; Dunn v. Dunn & als., 26 Id. 291; Brenkerhoff v. Brown, 6 Johns. Ch. R. 139; Fellows v. Fellows, 4 Cow. R. 682. It is true, as was said by Lord Cottenham in Campbell v. Mackey, 1 My. & Cr. 603, in the passage quoted from his opinion in that case by the counsel for the appellants: “To lay down any rule applicable universally, or to say what constitutes multifariousness as an abstract proposition is, upon the authorities, utterly impossible. The cases upon the subject are extremely various, and the court in deciding them, seems to have considered what was convenient in particular circumstances, rather than to have attempted to lay down any absolute rule.” Yet, in most cases there is little or no difficulty in deciding the question whether or not multifariousness exists in the particular case, and such, in our opinion, is this case.
The complainants, William B. Isaacs & Co., claimed to be creditors of Abraham Nulton, under assignments to them of several of his notes by the Bank of the Valley in Virginia and the Farmers Bank of Virginia; and they brought their suit to enforce the payment of their claim out of the estate of their debtor. He had little or no personal estate, and all his real estate he had' conveyed to and for the use of his wife, Sarah Nulton, and his son, Joseph A. Nulton, which conveyances were charged by the said creditors to be voluntary and fraudulent and void as to his creditors, and especially the complainants. They, therefore, sought by their said suit to remove these obstructions out of their way, without which they could not possibly obtain satisfaction of their claims, and for that purpose they had, necessarily, to make not only the administrator of Abraham Nulton, but also the claimants under the said alleged fraudulent conveyances, "'defendants to the bill; and as Joseph A. Nulton claimed to have become the purchaser of the property conveyed to him by his father, the said Abraham Nulton, by means of a balance alleged to have been due to him on a settlement of a partnership account between them, the complainants prayed in their bill that the defendant, Joseph A. Nulton, might “make a complete discovery of the consideration upon which the two deeds to him were based, and if essential to the proper understanding of the same, that his account as late partner of the decedent may be settled.” We think that all the persons made defendants to the suit were proper and necessary parties, and that the conditional prayer for a settlement of the partnership account was proper and unobjectionable, if not necessary. We have said so much on this subject, not because we had any difficulty about it, but because the learned counsel for the appellants made it the chief, if not the only ground of complaint. at least in the petition for an appeal. We will now proceed to consider whether there be any error in any other portion of the decree, which was complained of as being erroneous, though in different respects, in the arguments of the counsel, both of the appellants and appellees.
The court is further of opinion, that the circuit court did not err in decreeing that the property conveyed by Abraham Nulton to Joseph A. Nulton, in his own right by the two deeds, of which copies marked Ñ and O, are filed as exhibits with the bill, is not liable for the payment of the complainants’ claims.
If the orders of the circuit court of the United States in the record mentioned for the payment of three out of the four claims of the complainants had been valid judgments, and liens as such on the real estate of the debtor, Abraham Nulton, notwithstanding they were never registered, then the said property would have been liable *for the payment, at least oi the said three claims, whether the said two deeds were voluntary and fraudulent or not.
But the court is of opinion, that the said orders of the circuit court of the United States were not valid judgments against the said Abraham Nulton. The said court would have had no jurisdiction to render such judgments, even if actions of debt had been brought in the said court by the Bank of the Valley in Virginia against the said Abraham Nulton for the recovery of the said claims, as both parties, plaintiffs and defendants, resided in the state. We do not mean to say that judgments rendered in such actions would have been regarded as void in any collateral proceeding. But we are of opinion that where, as in this case, the creditors, instead of proceeding by the common law action of debt to recover their claims, obtain an order for their payment on a mere summary rule to show cause — such order, though no defence be made to the rule, has not the force and effect of a judgment, and is not a lien on real estate, whether registered or not. The order is void on its face as a judgment. The defendant is entitled to the benefit of a *248common law action in which he can regularly make his defence, and have the benefit of a trial by jury; and he is entitled to be sued in the courts of his own state, and is not_ suable in the federal courts, even in an action brought against him alone. Much less can he be proceeded against by a mere summary rule and order in,a suit brought in one of the federal courts against his creditor by another person or corporation. An order might, no doubt, have been made in that suit for the collection of debts due the defendant and liable to the claim of the plaintiff. But such collection, if it could not be made without legal proceedings, would have to be made by action at common law in a court of competent jurisdiction, just as if such debts 'had not been assigned or were still *due to the original creditor. The debtor would lose none of his rights of defence by the assignment.
The true doctrine of the law on this subject is, in our opinion, correctly laid down in the opinion of the supreme court of the United States, delivered by Mr. Justice Field in Windsor v. McVeigh, 3 Otto R. 274. “The doctrine invoked by counsel,” said the court in that case, page 282, “that where a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition; but like all general propositions, is subject to many qualifications in its application. All courts, even the highest, are more or less limited in their jurisdiction; they are limited to particular classes of actions, such as civil or criminal, or to particular modes of administering relief, such as legal or equitable,” &c. “Though the court may possess jurisdiction of a cause, of the subject matter and of the parties, it is still limited in its mode of procedure, and in the extent and _ character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law. If, for instance, the action be for a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, _ has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for a libel or personal tort, the court cannot order in that case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. Instances of this kind show that the general doctrine stated by counsel is subject to many qualifications. The judgments mentioned, given in the cases supposed, would not be merely erroneous, they would be absolutely void, because the court in rendering them would transcend the limits of its authority in those *cases.” “So a departure from established modes’ of procedure will often render the judgment void; thus the sentence of a person charged with felony, upon conviction by the court, without the intervention of a jury, would be invalid for any purpose. The decree of a court of equity upon oral allegations, without written pleadings, would be an idle act of no force beyond that of an advisory proceeding of the chancellor; and the reason is, that the courts are not authorized to exert their power in that way.”
According to the principles thus laid down, the orders in question have not the force and effect of judgments. There is nothing in those principles at all in conflict with the opinion of this court, delivered by Judge Christian, in the case of Lancaster v. Wilson, 27 Gratt. 624. The distinction between the two is sufficiently obvious without any comment upon them here.
If the orders aforesaid were judgments, a very interesting question would aris.e, whether registration of those orders would have been necessary to make them liens on the real estate of the debtor; but as they are not judgments, it is unnecessary to consider that question.
It follows, therefore, from what has been said, that the property conveyed to the said Joseph A. Nulton, as aforesaid, is not liable for the payment of the complainants’ claims. His answer in response to an allegation of the bill positively denied that the deeds were executed with fraudulent intent, and set out the valuable consideration on which he alleged that they were founded, and there is no proof on the other side. The court, therefore, rightly considered that there was no fraud in the said deeds, and decreed accordingly.
The court is further of opinion that the circuit court did not err in the opinion that from the evidence the conveyance from Abraham Nulton to Joseph A. Nulton; as trustee for Sarah Nulton, which is filed as exhibit H *with the complainants’ bill, was voluntary and without consideration, and in, therefore, decreeing that the said conveyance be set aside so far as the claims of the complainants are concerned, and that the property thereby conveyed be subjected to the payment of said claims. Blow v. Maynard, 2 Leigh 29.
The court is further of opinion that, there is no error in the said decree, and that the same ought therefore to be affirmed, which ir ordered accordingly.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481984/ | CHRISTIAN, J.
This case is brought up by appeal from a decree of the circuit court of Rockingham.
The original bill was filed by the executor of J. W. Blose, who sued for himself and all other creditors of Jacob Miller who might make themselves parties to the suit.
Its object was to subject the real estate in the hands of the heirs of Jacob Miller to the payment of his debts. The bill sets out certain judgments recovered against his administrator after his death, and the executions issued thereon, returned by the sheriff, “no assets in the hands of administrator”; and after alleging that the said Jacob Miller died seized of considerable real estate, now in the hands of his heirs, and that the rents and profits of the real estate for five years will not pay these judgments, asks that the same may be sold and the proceeds applied to the payment of these judgments. The bill further charges that the administrators have never settled any account of their administration on the estate of said Jacob Miller, and asks for a decree compelling a settlement of such account, and that an account may also be taken of the debts of the decedent. The heirs and administrators are made parties to this suit.
The heirs of Jacob Miller were his son, William H. Miller, and his daughter, Mary, who intermarried with John C. Walker. William H. Miller and Walker had ^qualified as administrators of Jacob' Miller. They answered the bill. They allege in their answers that they had settled up the personal estate of their intestate, and *250that there was not enough of the personal estate to pay his debts; that the personal effects which came into their hands were sold in October, 1863, for Confederate currency, and that in many instances the creditors refused to receive that currency. They admit that Jacob Miller left a tract of land containing 732 acres, but affirm that the rents and profits would be sufficient to pay his debts in five years. This was the only issue made’ by the original bill and answers thereto. The circuit court, at its September term, 1870, rendered a decree directing one of its commissioners to “take an account of the outstanding liabilities of the estate of Jacob Miller, deceased, and their priorities, if any, and also to settle the administration accounts of the defendants, Walker and Miller, as administrators aforesaid, and to ascertain the real and personal assets belonging to said estate.”
A commissioner of the court duly proceeded to execute this decree, and upon the return of this report, it was excepted to by the defendants, Miller and Walker, by various exceptions filed by them. The only one now necessary to notice, is that which relates to the report as to the real estate of the decedent. This is excepted to upon the ground that the tract of 732 acres was not, in whole, the property of the said Jacob Miller; but that he was the owner of only one-half thereof. The defendants filed with their exceptions a deed from Stevens and wife, conveying the said tract of land to Jacob Miller and one William Kite, jointly, bearing date August, 1831. Upon this report and exceptions thereto, the circuit court, at its May term, 1871, directed a partition of said land, and appointed commissioners to make division and allotment of said land'— one-half to the heirs of Sarah Miller (who was the daughter of William Kite, and wife of-Jacob *Miller), and the other to the creditors of Jacob Miller. But before the action of these commissioners had been confirmed, the cause, “for reasons appearing to the court,” was remanded to rules, and leave given to complainant to file an amended and supplemental bill.
The amended and supplemental bill was accordingly filed at December rules, 1871. In this bill it was alleged by way of supplement and amendment, that in the year 1843, the heirs of William Kite (of whom Sarah. Miller, the wife of Jacob Miller, was one), made partition of all of the real estate of said William Kite among themselves, and executed and delivered to each other various deeds to carry out this partition. These several deeds are all made exhibits with this amended bill. Among them is a deed executed by all the heirs of Kite (six in number), except Mrs. Sarah Miller, conveying the 732 acre tract in fee to Jacob Miller for the consideration expressed on the face of the deed, of $8,000. The ■ bill charges that the whole of this tract, instead of one-half thereof, as charged in the original bill, is subject to the debts of said Jacob Miller; and that the rents and profits of the same for five years will not be sufficient to pay the debts. This amended bill is answered by the heirs and administrators of Jacob Miller. The respondents, although they had admitted in their answer to the original bill that the 732 acre tract was the property of Jacob Miller, and in their amended answer to said original, they admit that one-half of said land was owned in fee by said Jacob Miller, they now, in answer to the amended bill, deny that he was ever seized in fee of any part of the 732 acre tract; they deny that he ever paid any part of the purchase money of said land during the lifetime of William Kite or after-wards; they aver that the greater part of the purchase money was paid by William Kite in his lifetime, and the residue thereof by his administrators after his death; they allege that the equitable *title to said land never was vested in said Miller, and that the legal title which vested in him, was a trust for the benefit of his wife and children; they insist that as Jacob Miller paid no part (as they allege) of the purchase money, the 732 acre tract was a part of the real estate of William Kite, and was so treated in the partition of that estate among his heirs; they admit the execution of the deeds exhibited with the amended bill by the heirs of William Kite, but insist that Mrs. Miller still held an equitable estate in the 732 acre tract; and that although the deeds of the Kites conveyed to Jacob Miller the legal title, he held the land subject to a trust in favor of his wife and her heirs, and that therefore the land is not subject to his debts.
Depositions were taken by the defendants to sustain these averments of the answer to the amended bill; and the cause coming on to be heard at the October term, 1873, the court held “that the children of Sarah Miller, wife of Jacob Miller, deceased, are entitled by descent from their mother, Sarah Miller, deceased, to a one-fourteenth interest in the said 732 acre tract of land in the bill and proceedings mentioned, and that the remainder thereof is subject to be sold to pay the debts of said Jacob Miller, deceased; that he died seized and possessed of the remainder (thirteen-fourteenths) of said land in fee simple, and that there was no resulting trust in said land for the benefit of said children of Sarah Miller.” And the decree then directs commissioners appointed for that purpose to make partition of said land, assigning one-fourteenth thereof to the heirs of said Sarah Miller, as and for their inheritance in said land, free from all demands of. whatever nature against Jacob Miller, deceased, and the residue thereof to said children of Sarah Miller as and for their inheritance and interest in said lands through their father, the said Jacob Miller, subject to be sold to meet and pay off all just demands against his *estate. The commissioners were directed to report their proceedings under this decree to the court for its further order.
From this decree an appeal was allowed by one of the judges of this court on partition of the heirs of Mrs. Sarah Miller.
*251I am of opinion that there is no error in the decree of the circuit court.
Jacob Miller and his heirs had been in possession of the tract of land now claimed as the trust property of Mrs. Miller, for forty years and upwards. That possession was held under two deeds, one recorded in 1831, and the other in 1843. By both deeds the title is conveyed to Jacob Miller. Upon the face of these deeds no trust is created in favor of Mrs. Miller or any one else. They are absolute, and convey the property to Miller without condition or reservation. The deed executed and recorded in the year 1831, is a deed from Stevens and wife, conveying 732 acres of land to William Kite and Jacob Miller, jointly, “in consideration of the sum of seven thousand eight hundred and eighty-four dollars, to them in hand paid by the said William Kite and Jacob Miller.” The deed executed and recorded in 1843, was executed by the heirs of William Kite, by which they conveyed their interest in said land “for the consideration of eight thousand dollars, to them in hand paid by said Jacob Miller,” “to the only proper use and behoof of him the said Jacob Miller, his heirs and assigns forever.”
Now, after the lapse of nearly forty-five years, it is claimed that this land, though held by Jacob Miller for this great length of time, under deeds absolute on their face, and which have been on record nearly half a century, informing his creditors and the world who chose to deal with him that the property was absolutely his, it is now claimed that he simply held the naked legal title, and that he was but a trustee for his wife and children, *and that his creditors cannot subject it to the payment of their debts.
The evidence to establish such a claim in the face of absolute deeds so long of record, must be very clear and explicit, and such as to leave no doubt as to the character of the transaction. The basis of the claim of the appellants, that Miller held the land in trust for his wife and her heirs, is that the whole of the purchase money was paid by Kite in his lifetime, and by his administrators after his death.
Where the trust does not arise upon the face of the deed, but is raised upon the payment of the purchase money, which creates a trust which is to override the deed, the proof must be very clear, and mere parol evidence ought to be received with great caution. Bank of U. S. v. Carrington, 7 Leigh 581.
A resulting trust must arise at the time of the execution of the conveyance. Payment or advance of the purchase money before or at the time of the purchase, is indispensable; a subsequent payment will not by relation attach a trust to the original purchase, for the trust arises out of the circumstances that the moneys of the real and not the nominal purchaser formed at the time the consideration of that purchase, and became converted into land. See 1 Lead. Cases in Eq. p. 177, and cases there cited. In Botsford v. Burr, 2 John. Ch. R. 405, 414, Chancellor Kent said: “The trust must have been coeval with the deeds, or it cannot exist at all. * * * The trust results from the original transaction at the time it takes place, and at no other time; and it is founded on the actual payment of money, and on no other ground. It cannot be mingled or confounded with any subsequent dealing whatever.” Now, the ground of a resulting trust is, that payment of the purchase money is an equity to have the land. But the mere fact of payment will not always be sufficient to raise a clear presumption of a ’'Trust. But evidence of intention must often enter into the fact whether that payment is such an equity under the circumstances. The payment by the father of purchase money of land conveyed to his son, or to his nephew, or to his son-in-law, or to any one else towards whom the party stands in loco parentis, would not, of itself, create a resulting trust. See 1 Lead. Cas. Eq. 179, and cases there cited. So that if William Kite had paid the whole of the purchase money for the whole tract of 732 acres, and the whole tract had been conveyed in fee to Jacob Miller, who had married his daughter, this would not of itself have created a trust in favor of William Kite and his heirs. It would have been regarded only as a gift to one towards whom the grantor stood in loco parentis.
But there is no proof in the record to show either that the whole of the purchase money was paid by Kite, or that if so paid, it was under such circumstances as would create a resulting trust at the time of the execution of the conveyance. Indeed, the only evidence as to how or by whom the purchase money was paid, (except the deed itself, which acknowledges payment of the whole of the purchase money in cash by Kite and Miller), is a receipt endorsed on the back of a $600 bond showing that a balance of $200 on that bond was paid by the administrators. How, when, or by whom, the balance of the purchase money was paid, there is literally no evidence to contradict the receipt set out in the deed.
It is true there are in the record the depositions of two witnesses taken more than forty years after the execution of the deed, but they utterly fail to prove anything as to the payment of the purchase money. Neither of these witnesses knew anything, nor do they say anything, about the payment of the purchase money by Kite. One of them expresses the opinion that he did not think that from Miller’s pecuniary condition he could *have paid for any considerable amount of real estate; though he said he made considerable money, and he knew of his borrowing money about that time from witness’ father. He says of Kite that he was a punctual man, and competent to pay such contracts as he made; and he estimates his property as worth $60,000. He does not pretend to say that Kite paid the whole of the purchase money, or what part he paid, or what part Miller paid; he knew nothing about it. The other witness does not even *252speak of the pecuniary condition of Miller, and is totally ignorant of any facts tending to show how and by whom the purchase money was paid. Surely upon this vague testimony, taken forty years after the transaction, this court will not assume without proof, and in the face of the deed of the parties, that Kite paid all the' purchase money, and raise upon such evidence as this a resulting trust in favor of the heirs of Kite, to the exclusion of the creditors of Jacob Miller, who held this land for forty years under a deed of record ever since October. 1831. If a resulting trust can be set up under these circumstances, there would be no security of title to any lands in this commonwealth.
But it is insisted that whatever may have been the interest of Jacob Miller, under the deed of 1831, from Stevens and wife to Kite and Miller, in the 733 acre tract, yet that in a petition of the real estate of William Kite, made among his heirs in 1843, one moiety of this tract was regarded by Jacob Miller and his wife and the other heirs of William Kite, as an advancement by said Kite in his lifetime to his daughter Sarah Miller; and that the same was surrendered and thrown into hotchpot with the rest of the estate of said William Kite, and the said Sarah Miller thereby came in for equal distribution of said estate with the other heirs of said Kite; and it is argued that although the deed -executed by the heirs of *William Kite Conveys this land in fee to Jacob Miller for a consideration paid by him, as expressed by the deed, that he in fact held it under the deed .of 1843 in trust for his wife, it being her land descended from her father, and of which she never divested herself.
Now, all this is mere theory and conjecture, not supported by any reliable or certain testimony, but contradicted by the terms of the deed under which for forty years Jacob Miller has held this land. Much stress is laid by the learned counsel for the appellants upon the answers of the defendants. These answers, as to the transactions alleged with reference to the partition of the real estate of William Kite, are not responsive to the bill, but in this respect are merely affirmative allegations, which they must prove.
It must be remembered that'these answers are the answers of the personal -representatives of Jacob Miller, the one a son-in-law, who, at the time of the transaction in 1843, was a stranger to the family, the other a son, who was then an infant, if, indeed, he was then in being at all. Their averments were of matters of which they could have no possible personal knowledge, and to which they were not called upon to answer or make discovery; but were affirmative, not responsive, and must be regarded only as maicing up issues, but not as evidence in themselves. Lyons v. Miller, 6 Gratt. 427. Now, looking to the record, we find that the deed of 1843 is a deed of bargain and sale between the heirs of Kite and Jacob Miller, by which the said heirs convey the land therein described to Jacob Miller for and “in consideration of the sum of $8,000 lawful money in hand paid them by the said Jacob Miller, to the only proper use and behoof of him, the said Jacob Miller, his heirs and assigns forever.” The answers allege that the expressed consideration was not the true consideration, and that this conveyance was intended to convey the land to Jacob Miller iri trust for *Mrs. Sarah Miller. This allegation is not sustained by any sufficient proof in the cause. There is only one witness who speaks at all upon the subject. After stating that there was a partition and allotment of the real estate of William Kite, shortly after his death, and that Jacob Miller and all the heirs treated the 733 acre tract as part of the real estate of William Kite, he makes the following answer to the following' leading questions put to him by counsel:
_ Question. “At said partition and division did Jacob Miller set up a'claim to any other interest in said lands, except through his wife, as one of the heirs of said Kite, and did not he receive and accept said 733 acre tract of land as his wife’s interest in William Kite’s estate?”
Answer. “He did not claim any more than that; that was allotted to 'him at that time. He claimed this piece of land; when they divided they agreed that he should take this piece of land; he received and accepted it as his wife’s interest in William Kite’s estate; he had it in his possession until his death.” Now, this is all the evidence on the subject. If this evidence was in direct contradiction of the terms of the deed, it would certainly not be sufficient to prove a different consideration from that stated in the deed, or to create a trust estate in favor of Mrs. Miller, and divert the title from Jacob Miller and his heirs, which the plain terms of the deed convey to him absolutely. But in point of fact this evidence' is perfectly consistent with the deed. Miller, no doubt, did not claim any more land than the witness says was allotted to him. No doubt he was satisfied to receive the moiety of the 733. acres as the full share of his wife in Kite’s estate, but the deed was made to him by the heirs because he had relinquished to them his life estate in four tracts of land, and it may be his whole interest in the personalty, which was larger.
Taking every word of this witness, spoken upwards of thirty *years after the transaction took place, as true, his evidence is not inconsistent with the deeds exhibited -by the plaintiff. The consideration named in the deed is $8,000. This $8,000, it may be, consisted of the estimated value of the life estate of Miller in the seventh of the balance of the real estate, and the right to have assigned to him in fee one-seventh of the personal estate. The personal estate must have been very large. Kite’s whole estate is estimated by appellants’ witness at sixty thousand dollars, and the appellants estimate in their answer the real estate at $35,000. This would leave $35,000 of personalty to one-seventh of which Miller was entitled. Mrs. Miller was entitled to one-seventh of each of the four tracts in which *253she united in deeds of her husband to the other heirs. The estimated value of all these interests might have well made up the sum of $8,000. But the appellants claim that this 732 acre tract was the inheritance of Mrs. Miller, derived from her father, and that she never divested herself of her title therein by any act of hers, and that the title conveyed to her husband was intended for her benefit, and that though in form it conveyed the fee, it was intended by the parties to the partition that it should be held by Jacob Miller in trust for his wife. This claim of the appellants is founded on a total misconception of the record evidence in the case, as well as’ of the effect of the decree of the court below. That decree does secure to the heirs of Mrs. Miller all of the real estate which she inherited from her father, and which she had not conveyed in her lifetime in the mode prescribed by law, to-wit: by deed and privy examination.
Mrs. Miller was entitled to one-seventh of the real estate of her father, William Kite. This consisted of four tracts of land, besides a moiety of the 732 acre tract. She surrendered her interest in all these lands, and united with her husband in deeds to the other heirs. These deeds are all in the record, and in each there is certified, *in regular form, her privy examination. There is no proof, nor even charge, that any fraud or misrepresentation was practiced upon her by her husband or her co-heirs, who were her brothers and sisters. We cannot presume that she did not understand the legal effect of her uniting in these deeds. On the contrary, we must presume, in the absence of all evidence to the contrary, that these deeds were fully explained to her. and that she executed them with a full knowledge of their legal effect. No doubt she would have united with the other heirs in the deed to Jacob Miller, but that Jacob Miller was her husband, and she could make no conveyance to him. She, no doubt, was perfectly willing that the legal title to the whole 732 acre tract should be conveyed to her husband instead of to herself. There might have been the strongest considerations why this should be done. For aught we know, he might have promised, or did actually settle upon her the personal estate, or other real estate. After thirty years have elapsed, and the records destroyed, it is impossible to say what were the motives or considerations which induced her to enter into this arrangement. It is all left now to mere. con j ecture. There might have been cogent reasons and the best consideration why she should have consented that her co-heirs should convey their interest to her husband instead of to her sole use and benefit. But however this may be, she did divest herself, in the mode prescribed by the statute, of her title to all the real estate she inherited from her father, except her interest in the 732 acre tract. She made no objection, so far as this record shows, to the conveyance of the land to her husband. These deeds have been of record for upwards of thirty years, and no question in all these years has been made as to the title or possession under them. It is too late now to assail them. Whatever may be our sympathies, in a controversy between creditors and the heirs of a married woman *who has permitted her inheritance to be conveyed to her husband, it would be dangerous to the last degree to establish a principle, upon which, on the vague and uncertain testimony of witnesses, taken thirty years after the transaction, the recorded titles of over a quarter of a century are to be overthrown.
The decree of the court below carefully secures to Mrs. Miller so much of the land as she did not convey away in the mode prescribed by law. In doing this, it has done all that can be legitimately asked for her and her heirs.
It is a noteworthy fact, and one of great significance, that the claim now asserted by her heirs, was never asserted by Mrs. Miller in her lifetime, though she lived years after the death of her husband. It was not even asserted by the heirs in their answer to the original bill. Tt is now asserted to defeat the just demands of creditors.
Upon the whole case, I am of opinion that there is no error in the decree of the circuit court, and that the same should be affirmed.
ANDERSON, J.
The appellee, Jacob Blose’s executor, in 1870, brought a creditor’s bill against John C. Walker and William H. Miller, administrators of Jacob Miller, deceased, and John C. Walker and Mary C., his wife, and William H. Miller, the said Mary C. and William H. being the children and heirs of Jacob Miller, deceased, for the settlement of the administration accounts and an account of the intestate’s debts, and to subject the personal estate, if any, and also the'tract of seven hundred and thirty-two acres of land in controversy, to the payment of said debts.
Jacob C. Walker first answered the bill. Then J. C. Walker and William H. Miller filed an amended answer. The plaintiff then filed an amended bill. And J. C. Walker and Mary C., his wife, and William H. Miller, *in their own right, and J. C. Walker and W. H. Miller, as administrators of Jacob Miller, filed an answer to the original and amended bills. This last answer, which is the only one in which Mary C. Walker joined, sets forth clearly, and I think the evidence shows, with substantia1 correctness, the true history and material facts of the case; and it seems to me that the said Mary C. nor her brother should be held responsible for any statements which are made in the previous answers in conflict with it, which were evidently made by J. C. Walker in ignorance of what was the true state of the case.
The tract of seven hundred and thirty-two acres of land in controversy was conveyed by Edward Stevens jointly to William Kite and Jacob Miller, his son-in-law, for the consideration of $7,884. There is no evidence that any part of it was intended by William Kite as an advancement to his son-in-law. On the contrary, the idea of an advancement to him is inconsistent with the transaction itself. It was their joint pur*254chase, and Jacob Miller was equally bound with William Kite for the purchase money. William Kite may have intended to give his daughter, Mrs. Miller, his moiety of the land as an advancement, which is most probable, but expected Jacob Miller to pay for the other moiety, as he bound himself to do. He was entitled to the other moiety, not as a gift or advancement from his father-in-law, but by purchase from Stevens, if he paid for it, which he did not do.
The evidence, direct and circumstantial, shows satisfactorily and conclusively to my mind, that Miller failed to pay his part of the purchase money, and that all that had been paid in the lifetime of William Kite, or at least nearly all, was paid by him, and the residue after his death was paid by his personal representatives, as is evidenced in part by the bonds which fell due after the death of William Kite, and were paid by his administrators. ^Miller’s undivided moiety of the land was bound for his part of the purchase money, so that in the partition of the land and negroes belonging to the estate of William Kite, in 1839, soon after his death, he and S. B. Jennings, who had intermarried with Annie Kite, another daughter of William Kite, and to whom other lands (five hundred and fifty-nine acres) had been conveyed jointly with William Kite, about a year before his death, and for which he paid no part of the purchase money, agreed that said lands in their entirety might be treated as lands belonging to the estate of William Kite, and be taken into the partition. And if any amount had been paid by Jacob Miller on the purchase in the lifetime of William Kite, which it would seem must have been very inconsiderable, if any, it evidently was accounted for to him out of the estate of which he yvas one of the administrators.
The real estate of William Kite as valued by his heirs for partition, was worth a little over $35,000, and his whole estate, real and personal, at least $60,000, which would give to each of his seven children a fraction over $8,571, after the death of the widow. She died on the 1st of January, 1843, and shortly after her death a final partition of the real and personal estate was made, and deeds were mutuallynexecuted by the heirs to each other of the lands which had been allotted to them respectively, in the parol partition of 1839, except that the lands allotted to Mrs. Miller were conveyed by the heirs to her husband, in which neither she nor Joseph H. Kite, who was a minor, united; and the lands which were allotted to Mrs. Jennings were conveyed to her husband, in which she and the said minor did not join. As will be seen the share of each heir in the real estate, if it had been equally divided amongst them, would have been of the value of $5,000. But it was a partition and division of real and personal estate together, as is '^authorized by the statute, and the lands allotted to Mrs. Miller being valued at $8,000, it exceeded her aliquot portion of the real estate $3,000, and was a charge on her interest in the personal estate to that amount, which left, however, a balance due her of over $500 in the personal estate.
The personal as well as the real estate is the property of the wife, but the personal estate of the wife becomes the absolute property of the husband after he has reduced it to actual possession. The only doubt I have, is whether the sum of $3,000, which was charged upon her interest in the personal estate to be used in equalizing the other heirs with her, who had received no land, or less land, was a reduction pro tanto of so much of her personal estate by her husband into possession. The conclusion least favorable to Mrs. Miller and her heirs which I have reached is, that she was entitled to at least five-eighths of the seven hundred and thirty-two acres of land in question.
Has she ever parted with that right? It is true that she might have done so. She might have united with her husband in a deed, and conveyed it to a trustee for his benefit. We held in a recent case, Sayers & als. v. Wall & als., 26 Gratt. 354, that a direct bona fide conveyance from a husband to a wife might be supported in favor of the heirs of the wife against subsequent creditors of the husband.
But there is no evidence that she ever parted with her right to the said land, or any part of it. Her uniting with her husband and her co-heirs in deeds of conveyance of other portions of the land which descended to the heirs of William Kite, really in consideration of their allotment to her of the land in question, could not divest her of her title thereto. Nor could the Conveyance of it to her husband by the other heirs after it had been *allotted to her in the parol partition, and thereby giving her a right to it in severalty, divest her title. It is said that we may presume that she consented to the conveyance; but the statute has prescribed the mode, and the only mode, by which a married woman can convey her freehold estate, or consent to be divested of it. Much has been said about security of titles: what security is there to the title of a married woman, if it can be taken from her upon a mere presumption of her consent to it?
But all the foregoing positions are vindicated, in my opinion, in Jennings v. Shaclclett, post, p. 765, to which I beg leave to refer. I will only add a few remarks in relation to the staleness of the demand, and the effect of maintaining it upon the rights of creditors, and the argument that Mrs. Miller and her heirs have lost their rights, because of the long lapse of time since Jacob Miller took possession and held it till his death.
The possession of Jacob Miller was lawful, and not inconsistent with the title asserted by the heirs of his wife. The wife being the owner in fee, he was entitled to possession by the marital right; and having had issue by her, he was tenant by the curtesy initiate. And if he had survived her, tenant by the curtesy, and invested with an estate for life, and with the right to the possession of the whole. He died in 1863. Up to that time his possession was lawful and perfectly con*255sistent with an estate in his wife in fee. And immediately upon his death, his wife surviving, she was in possession of the whole as her fee, if she was entitled to a fee in the whole; if only to five-eighths, she was in possession thereof as of her fee, and of the residue as dower until her dower therein was assigned her. She lived until 1868, and it was not until after her death that her children, the appellants, became invested with her title.
What laches are they chargeable with? They have *been in the quiet and undisturbed possession of their property. It is true under an ancient title, but that I imagine is not to its disparagement. What more could they do than they have done to assert and protect their title, which was unassailed? If there has been any laches it has been by the assailants, who have lain by and made no attempt to overturn this ancient title of Mrs. Miller, which she has enjoyed uninterruptedly and peacefully through her husband while he lived, and after his decease, through her own direct agency, as her own property, until her death in 1868, and which she transmitted to her children and heirs at law. This suit to subject the lands to the plaintiffs’ debt, though it had accrued in 1860, was not brought until after the death of Jacob Miller in 1863, and not until after the death of Mrs. Miller in 1868. During that long period in the lifetime of Jacob Miller and of his wife, we hear of no claim of right by creditors to subject this land to the payment of their debts, and not until most of those who were familiar with these transactions had gone down to their graves.
It is true, there were two deeds of record which vested title in these lands in Jacob Miller — one of them as far back as in 1831, which conveyed to him the lands jointly with William Kite, his father-in-law, and the other in 1843, which conveyed the whole to him, but in which his wife did not unite. If notice to creditors were necessary that those lands were not held by Jacob Miller in absolute right, there was enough on the face of the deeds themselves and the known facts to have awakened enquiry, and to have charged creditors with constructive notice. But such notice was not necessary. With as much reason could a mortgage be resisted upon the ground that the deed was absolute on its face. Yet every day are parties permitted to prove, even by parol evidence, that a deed, though absolute on its face, was intended to *be a mortgage. And in the recent case of Snavely v. Pickle, 29 Gratt. 27, this court established a deed to be a mortgage by parol evidence, though the party in whom the legal title was vested on the face of the deed had been, in possession since 1845. Prom the best considerations I have been able to give this case, I cannot concur in the opinion of the majority, and am constrained to dissent.
MONCURE, P-, and STAPEES, J., concurred in the opinion of CHRISTIAN, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481985/ | CHRISTIAN, J.
The principles affirmed in the case of Miller & als. v. Blose’s ex’or & als., in which a motion for a rehearing has to-day been overruled, must govern the case before us. It arose out of the same transactions, and the nature of the evidence is *256almost precisely the same. In both cases an effort is made by the defendants to set up a resulting trust, by parol testimony, against a deed absolute on its face. In both cases the evidence is of so vague, uncertain and unsatisfactory a character as cannot, after so long a lapse of time, upon the principles which govern courts of equity, convert deeds absolute on their face into mere trusts, depriving the grantees, and those who claim under them, of all beneficial interest in the estates conveyed, and transferring it to others not named in the conveyances.
It is not necessary to repeat, in this case, a discussion and application of these principles and the authorities upon which they are founded. It is sufficient to refer to the ^opinion in the case of Miller & als. v. Blose’s ex’or, delivered at the September term, 1876, of this court, and reaffirmed to-day by overruling the motion for a rehearing.
A brief reference to the facts of this case before us will show that it must be determined upon the principles declared in the former case.
William Kite died intestate in the year 1839, possessed of a large real and personal estate. He left surviving him a widow (who died in 1843,) and seven children — four sons and three daughters. Among several tracts of land of which the said William Kite died seized, was one which was conveyed to William Kite and Jacob Miller, jointly, by Stevens and wife in 1831, and one conveyed by Jacob Conrad to William Kite and S. B. Jennings, jointly, in the year 1837. The consideration expressed on the face of the deeds was in the one case $7,000. and in the other $8,000.
These deeds were duly recorded shortly after their execution, and copies of the same are filed with the record. Sarah, daughter of William Kite, intermarried with Jacob Miller, and Ann, another of his daughters (and the mother of the appellants in this case), intermarried with S. B. Jennings.
It is admitted by the heirs of Mrs. Jennings in their answer that after the death of William Kite’s widow, to-wit: in 1843, there was a partition of his real estate among his heirs — whether made by the heirs, or by commissioners appointed by the court, does not appear. It must be taken, however, as a conceded fact, proved if not admitted, that in 1843 an arrangement was made by which Jacob Miller was to have assigned to him in the division of the said real estate, that portion which had been conveyed to him and William Kite jointly by Stevens and wife in 1831. and that S. B. Jennings was to have assigned to him that portion of the real estate *which had been conveyed to him and William Kite jointly by Jacob Conrad, in 1837. In pursuance of this arrangement, and to carry out the partition then agreed upon, deeds were executed by Jacob Miller and wife and the other heirs at law o'f William Kite (except Joseph, who was a minor), conveying all their interest in the tract of land of which Kite and Jennings were the joint owners to S. B. Jennings, and a similar deed was executed by Jennings and wife and. the other heirs of Willlia.m Kite (except Joseph Kite, who was a minor), conveying all their interest in the lands of which William Kite and Miller were the joint owners to Jacob Miller. In these deeds both Mrs. Miller and Mrs Jennings united. There was a privy examination of both duly made and certified, and the deeds duly recorded. Under these deeds Jacob Miller and S. B. Jennings took possession of said lands and held the same under this recorded title for more than forty years.
It is now claimed, after the lapse of forty years, that these deeds thus executed and recorded did not convey an absolute title to Miller and Jennings, but that they took the title in the same as trustees for their wives, and that though the real estate so conveyed by said deeds was conveyed to them absolutely, yet being the real estate descended to their wives from their father, it was held by their husbands in trust for the benefit of their wives and their heirs. Now, the evidence mainly relied on in the case before us to establish this trust is that of S. B. Jennings, the father of appellants, given in a suit in which his creditors are seeking to assert the lien of their judgments against land which he has held under a recorded title and possession for forty years. It must be noted here that the answers of his children, the defendants, to the bill of his creditors, are not responsive to the bill, but set up, by affirmative allegations, the defence upon which they rely. These answers are entitled to no *weight, and their allegations, unless sustained by proof clear and certain, can have no effect in determining the existence of the trust which thev now assert.
The whole evidence relied upon by the appellants to establish a resulting trust in the face of deeds absolute upon their face, are the depositions of their father, S. B. Jennings, and their mother’s brother, Hiram A. Kite.
As to the deposition of the former, leaving out of view and without comment the interest which an insolvent father would have in securing his estate to his children instead of his creditors, it is to be noted that it is the deposition of an old man in feeble health, who says his “memory is not clear,” testifying as to transactions which occurred more than thirty years before. His deposition shows, not only that his memory is not clear, but totally defective when tested as to very recent and important events. He does not remember statements made in his answer filed in a suit in the county court just three years before he was examined, nor does he remember the facts that he ever signed or swore to such an answer. He has no recollection of having ever seen an important paper which he filed as an exhibit with his answer, and which shows the basis of the division of the real estate of William Kite among his heirs, and which paper, itself, shows that the theory now advanced after thirty years, that Miller and Jennings were to hold the land conveyed to them in such division, in trust for their *257wives and children, had no existence at that time.
So much for the evidence of Jennings, the father. The only remaining evidence to support this so-called resulting trust, is that of Hiram Kite, a brother of Mrs. Jennings. He proves literally nothing in support of this claim. On the contrary, his evidence is in favor of the claim of the appellees. He proves that there was a partition of the real estate among the heirs after assigning dower to his mother, and that *the deeds executed by their heirs of Jennings and to Miller were made after that partition, and to carry it out. He says, whether this partition was made by commissioners of the court or the adult heirs, he does not remember.
In answer to a question very suggestive and leading in its character, to-wit: “Were these tracts of land valued and allotted to S. B. Jennings and Jacob Miller on account of the interest which their wives held in the estate of William Kite?" he says, “in part, I suppose.” Tn answer to another question, to-wit: “You say that S. B. Jennings got the land mentioned in the deed to him (Exhibit A) ; how did he get. these lands ?” he says: “There was a price set upon all the lands at the time, and all over what was coming to him on the divide he bought from the heirs ”
These are the depositions upon which the defendants alone rely to maintain the claims set up in their answer. I think they fall very far short of proving a resulting trust. Indeed, the evidence of Hiram Kite, taken in connection with the admissions in the answers of the defendants, strongly supports the claim of the appellants, that the lands they seek to subject to their liens were held, as they purport on the face of the deed to be held, as the absolute property of S. B. Jennings. It is admitted that the real estate of William Kite was sufficient to give to each of his heirs between four and five thousand dollars, and that the personal estate was large enough to give each between two thousand five hundred and three thousand dollars. They were each entitled, after the death of their mother, to real estate valued at $6,800. Now, when they came to divide the real estate, it was natural that they should pursue that mode indicated by the old paper writing marked X, produced and filed by Jennings, and no doubt written as a memorandum of that partition, and assign to Jacob Miller that portion of the real estate *upon which he resided, and which was conveyed to him and William Kite, jointly, in 1831, and to S. B. Jennings that portion of the land on which he resided, and which had been conveyed to him and William Kite, jointly, by Conrad, in 1837.
No doubt these parties made up out of the personal estate coming to their wives, and of which this appropriation was a reduction into possession, the shares of the other heirs equal. This is indicated by the fact that in this very suit is filed a bond of Jennings to Malinda Kite, which he admits was given to equalize the division of Kite’s estate. At any Tate, these all united (except one who was not of age) in conveying their interests in these two tracts of land respectively, to Jacob Miller and S. B. Jennings. In the deed to Miller Mrs. Jennings united with her husband, and in the deed to Jennings Mrs. Miller united with her husband. Both deeds are duly recorded with certificates, in due form, of the privy examination of the wife in each case.
These deeds, absolute on their face, will not be converted into trusts in favor of the wife, except upon the most clear, positive and satisfactory proof. No such proof is furnished in this case, but on the contrary, the evidence is, in my opinion, as above shown, so vague, contradictory and uncertain, as to furnish no foundation upon which a court of equity can erect a resulting trust.
In Phelps v. Seely, 22 Gratt. 573, Judge Bouldin delivering the opinion of the court, said: “A resulting trust may be set up by parol testimony against the letter of a deed, and a deed absolute on its face may be like testimony be proved to be only a mortgage. But the testimony, to produce these results, must in each case be clear and unquestionable. Vague and indefinite declarations, made long after the fact, have always been regarded, with good reason, as unsatisfactory and insufficient.” The same principles, enforced by numerous *authorities, were reaffirmed in Blose’s ex’or v. Miller, decided upon facts growing out of the same transaction, and almost entirely similar (certainly no stronger) with those in this case.
It would be grossly inequitable and subversive of all security of rights, if upon the vague and uncertain testimony of witnesses taken thirty years after the transaction, the recorded titles of over a quarter of a century are to be overthrown.
The court below has confirmed to Mrs. Jennings’ heirs all the real estate to which she was entitled. She was one of seven children of William Kite, and entitled to one-seventh of the tract of land which the other heirs conveyed to her husband by the deed filed with the record. That has been secured to them by the decree appealed from. •
Upon the whole, I am of opinion that there is no error in said decree, and that the same ought to be affirmed.
ANDERSON, J.
This record throws light upon the case of Miller v. Blose’s ex’or, and the two causes ought to have been heard together. I had not looked into it until after that case was decided; and I find much in it to strengthen and confirm the views I had taken of that case.
William Kite was the owner of a very considerable estate in land and slaves and other personal property, in the county of Rockingham. He died in the year 1838, intestate, and Conrad, his son, and Jacob Miller, his son-in-law, qualified as administrators of his estate. He left a widow, Elizabeth Kite, and seven children; Sarah, wife of Jacob Miller; Malinda Kite; Anne Jennings, wife of Dr. Simeon Jennings; William C. Kite, Conrad H. Kite, Hiram 'A. Kite, and Joseph H. Kite, the latter a minor.
*258The appellants, the heirs of Mrs. Jennings, aver that *soon after the death of William Kite, a partition was made of his estate. In proof thereof, Hiram A. Kite testifies that soon after the death of William Kite the heirs made a division of the land and negroes amongst themselves. He thinks it was in January, 1839. He says another partition was made in 1843, after the death -of the widow, when they executed deeds to each other severally, for the lands which had been allotted to them in the partition. The heirs of Mrs. Anne Jennings allege that the real- estate of William Kite was composed of a number of different tracts, and was valued by his children and heirs at law preparatory to a partition of the same; and they set out specifically the valuation which was put on each tract, amounting in the aggregate to thirty-five thousand and sixteen dollars. His personal estate they say was valuable,-and his whole estate was said to be worth not less than $60,000. He was not indebted (if at all, very inconsiderably), beyond what he was still owing for lands purchased from one Stephens in 1831, and conveyed jointly to him and his son-in-law, Jacob Miller; and for lands purchased in 1837, and conveyed jointly to himself and his son-in-law, Simeon B. Jennings. According to this valuation, Mrs. Jennings and each of his children were entitled to a share in the same, of not less value than $6,000.
In the first partition all the lands’ were parcelled out and disposed of. Seven hundred and thirty-two acres were allotted to Mrs. Miller, valued at $8,000; four hundred and fifty-eight acres to Conrad Kite, valued at $8,000; five hundred and fifty-nine acres allotted to Mrs. Jennings, and valued at $7,000; two tracts to William C. Kite, the value not expressed in the deed, but proved by Hiram Kite to be $800; and two tracts to Hiram Kite, for which a deed was doubtless executed, but which I do not find in the record, which he testifies were valued together at about $3,720; and the residue of the lands *were assigned to the widow as dower, and were valued at $7,666, and after her death were sold to Conrad and Hiram Kite at that price, doubtless to raise a fund to be used with the personal estate in equalizing the heirs in partition' — the whole real estate aggregating $35,186.
This evidence conclusively shows that the lands were valued by the heirs, as alleged in the appellants’ answer, at $35,016, at least, and there is no ground for the imputation that it was manufactured for the occasion. It is then an established fact in this cause that the real estate of William Kite, of which he died seized, and which descended to his heirs subject to the widow’s dower, was estimated by the heirs, amongst themselves, to be worth $35,000, which would give to each of them in severalty lands to the value of $5,000. Whether they were worth so much or not, is immaterial, if, in the partition, the heirs agreed to this valuation. But they do not appear to have been overestimated, for Conrad sold to Price the lot which had been allotted to him for $8,000, the price at which it had been allotted to him; and the price at which Conrad and Hiram, after the death of the widow, purchased the land which had been assigned for dower, was, as is proved, the price fixed by the heirs.
Mrs. Elizabeth Kite, the widow of William Kite, deceased, died on the 1st of January, 1843, and a deed from the heirs of William Kite, except Sarah Miller, and Joseph Kite, a minor, conveying to Jacob Miller seven hundred and thirty-two acres, was acknowledged before William B. Yancey and Jacob Rush, justices of the peace for the county of Rockingham. A similar deed was executed by the heirs of William Kite, deceased, except Anne Jennings and Joseph Kite, a minor, conveying three tracts of land, containing together five hundred and fifty-nine acres, to Simeon B. Jennings, for the consideration expressed on the face of the deed of $7,000, which bears date on the 21st of January, 1843, and is *acknowledged the same day. A similar conveyance is made by deed bearing date 18th of January, 1843, by all the other heirs, except Joseph, conveying lands to William C. Kite. And on the 18th of January, 1843 — the same day —a deed of conveyance was made by the other heirs, except Joseph, to Conrad H. Kite and Hiram A. Kite, of the lands which had been assigned to the widow, now deceased, for her dower, which deed was acknowledged before the same justices on the 21st of January, 1843, before whom, on the same day, all the foregoing deeds were acknowledged.
Where the lands conveyed by the foregoing deeds allotted to the parties respectively to whom they are conveyed in the partition of the estate, real and personal, of William Kite, deceased, or were they acquired by purchase? Were the deeds executed as the results of a partition of the decedent’s lands and personal estate amongst his heirs, or were they executed to the grantees as purchasers?- To narrow the enquiry and to bring it home to the case in hand, did Jennings acquire the land conveyed to him by virtue of a contract of sale and purchase, the consideration moving from him, or was there a parol partition of the lands and negroes of the decedent amongst his heirs and distributees? And in such partition were the lands which were subsequently conveyed to Jennings allotted to his wife? I propose briefly to pursue these enquiries.
And first, there was a parol partition made of the lands and negroes, and probably a partial division of other personal property, in 1839, which was not completed until after the death of the widow, on the 1st of January, 1843. Such a parol partition was valid. Deeds of partition between parceners are not absolutely necessary. They may mark and establish the dividing line between them, and prove it by other competent evidence, and will, from the time of establishing the liríe, be seized *in severalty. Coles v. Wooding, 2 Pat. & Heath, 189; Lomax Digest, 134; 2 Min. Inst. 2d ed. 707; Va. Code, ch. 112, § 1; ‘Jones’ devisees, v. Carter, 4 Hen. & Munf. 184; Bryan *259v. Stump, 8 Gratt. 241; 2 Min. Inst. 488; 2 Bl. Com. 188-9; see 9 Gratt. 1; 4 Kent’s Com. 4th ed. 366-7. And where there are several tracts, as in this case, each heir is not entitled to have his share laid off in each tract. Litt. § 251; Earl of Clarendon & als. v. Hornby, 1 P. Wms. 446; Hagar v. Wiswall, 10 Pick. R. 152. But the real estate at $35,000, and Mrs. Jennings’ share would be $5.000, and the lands allotted to her were consequently valued at $2,000 above her aliquot share of the real estate.
But was there a partition? Hiram Kite, who has no interest in this controversy, testifies that they made a division soon after his father’s death of the land and negroes, there having been a sale of the personal estate. He is asked if the division was made at the time the deeds were made, January 21st, 1843? He answers: “They made a division of the land and negroes soon after my father’s death, I think in January, 1839.”
There are several other witnesses who testify to the same effect, but there is other evidence which does not depend on slippery memory, which it seems to me ought to be conclusive of this question. It is the deed of all the heirs of William Kite, except the minor, to George W. Price, which purports to bear date on the 1st of January, 1843. but is acknowledged on the same day (the 21st of January) the other deeds are acknowledged, and before the same justices. The certificate of acknowledgment describes it as bearing date the 18th of January, and either that, or the date of the deed as it appears in the copy in the printed record, must be a mistake. Be that as it may, it is not material to the purpose for which I refer to it. The deed is a conveyance by all the heirs of William Kite, deceased, to the said George *W. Price, in the following language: “A certain tract or parcel of land containing four hundred and fifty-eight and a half acres, be the same more or less, lying, &c., * * it being the tract that was allotted to the said Conrad H. Kite by the legatees of William Kite, deceased, and bounded as follows,” &c. The consideration is “the sum of $8,000, current money of Virginia, to them in hand paid by the said George W. Price,” &c.; also the interest, (fifteen-sixteenths, it is presumed to be, the last syllable having been obliterated by the burning,) which all the heirs of William Kite held in “Swift Run turnpike, it being also allotted to him, the said Conrad PT. Kite (evidently the words ‘said Conrad’ being obliterated by the burning), by the legatees of William Kite, deceased.” It appears then, that previous to the date of this deed, there had been a partition of the lands of William Kite, deceased, and that lands to the value of $8,000 had been allotted to Conrad Kite, and that in addition to the lands, fifteen-sixteenths of his interest in the Swift Run turnpike, the value of which does not appear, had also been allotted to him. The deed does not state when the partition and allotment was made, but it was evidently anterior to the deeds, and it is corroboratory of the parol proof, that it was made in January, 1839, soon after the death of William Kite. This was a partition in fact, though incomplete, of the real and personal estate, estimated to have been worth not less than $60,000, making each share worth $8,571 and a fraction. It was not completed until January, 1843, after the death of the widow.
It is true that the lands conveyed to Jacob Miller were conveyed in 1831 by one Stevens, from whom they were purchased, to William Kite and Jacob Miller jointly, and possession was given to Miller and wife, and the lands conveyed by the heirs to S. B. Jennings had been ^conveyed by one Conrad, from whom they were purchased in 1837, the year before the death of William Kite, to William Kite and Jennings jointly, and possession was given to Jennings and his wife. Yet the proof is that in the partition, Miller and Jennings both being present, those lands were treated as lands belonging to the estate of William Kite. Jennings, in answer to an interrogatory propounded to him by the plaintiffs in that suit (appellees here), testifies with regard to the lands conveyed to him and William Kite jointly, that all the purchase money was paid by William Kite, and by his administrators since his death; and in the division of William Kite’s estate, which occurred in 1839, .the said lands being held and considered as a part and parcel of his real estate, were allotted (he says), “to my wife, the daughter of said Kite, as her interest in the real estate of her father. And the deed from Jacob Miller, &c., as legatees of William Kite, was made to me in consideration of my wife’s said interest — all of the legatees making deeds of exchange to those to whom lands were allotted in said division.” I have not a doubt that this is a truthful representation of the case. Tt is in perfect harmony with the whole transaction, and with the testimony In this case, and in the case of Blose v. Miller. Why would Miller be charged in the. partition with $8,000, the value of the entire tract, if the half of it was his? And why would Jennings be charged with $7,000, the value of the entire tract allotted to to him in the partition of William Kite’s estate, if the half of it was his, whilst Conrad was charged with just the lands he got from the estate, valued at $8,000 ? That it was a partition of William Kite’s estate is shown by the deed from the heirs to George W. Price, and Miller and Jennings were charged with the value of the entire lands conveyed to them severally, just as Conrad Kite was charged with the value of the entire lands which were conveyed by the heirs to George *W. Price, his vendee. The lands conveyed to the two former, in their entirety, were treated as parcels of the estate of the decedent, just as the lands were which were allotted to Conrad Kite. And why would the heirs have undertaken to convey lands in their entirety, and Miller and Jennnigs have consented to take a conveyance from them, if half the lands were theirs truly and justly and beneficially, by the conveyances of 1831 and 1837 respectively?
*260The conveyances made by the heirs to them is an assertion by the deeds, that the lands were, in their entirety, a part of the estate of William Kite, and their acceptance of the conveyances is an acknowledgment by deed on their part, that they were, and more es-specially as they are not charged with only a moiety of the price of them respectively, but with the entire price. I am of opinion, therefore, that the transaction, as evidenced by the deeds, fully sustains the testimony of Dr. Jennings, which is also in harmony with the testimony of Hiram Kite, a disinterested witness. But there is nothing in this record to impeach Dr. Jennings’ veracity, if it were competent for the appellees to impeach their own witness, and upon whose testimony they rely for another purpose, to-wit: to prove the consideration of Malinda Kite’s bond. He is not even an interested witness. If he has any pecuniary interest it is with the appellees, for it is the interest of a debtor to pay his "debt;;. Unless it is right to hold that a man is not to be credited because his testimony will benefit his children, there is no ground to discredit this witness. There is not a particle of testimony in this cause tending to impeach the character of Dr. Jennings. It Is his misfortune to be unable to pay his debts — a misfortune, I regret to say,-that has befallen many of our most upright citizens. He seems to be desirous that whatever property is rightly and lawfully his, shall be subject to *the payment of his debts, but is unwilling to appropriate the property of his children, which they justly and lawfully derived from their deceased mother and not from him, to the payment of his debts. I do not hesitate to say that I can perceive no cause in that to discredit him.
But it is said that his deposition taken by the plaintiffs (the appellees here), on the 29th of August, 1873, nearly four months after his answer to the plaintiffs’ interrogatories, shows such a failure of memory as to divest his testimony of moral weight. The defendants’ counsel objected to the plaintiff retaking this witness’ deposition without leave of the court, on the ground that his deposition had been taken on two previous occasions. But the plaintiffs persisted in retaking his deposition, and I am free to admit that it exhibits a melancholy failure, if not wreck of memory, since his previous depositions were taken, and I do not rely upon it at all in the investigations which I have made of the cause, and in the opinion I have formed.
The plaintiffs, in the examination of their witness, call his attention to a paper which he exhibited with his answer to the bilj of Annie E. Jennings and others against him, designated by the letter X, and ask him if it is in his handwriting, and when it was made. He answers that he thinks it is in his handwriting, but is not positive, but has no idea when it was made. He seems to have 'no recollection of it, and to know nothing in relation to it now. In his answer to the appellants’ bill against him in the county court, filed on the 4th day of September, 1871, nearly two j^ears before, he refers to this paper as an old memorandum in .his handwriting, which he exhibits as a part of his answer for a pretty correct setting forth of the matter. This paper is in these words: “Jacob Miller, Jr., and S. B. Jennings, have this day had the following propositions made to them (it relates to the time of the partition ‘this day’): Jacob Miller is *to take the land on which he now .lives at $8,000, the half he now holds at $4,000, and he (and all the rest of the legatees who shall have received $4,000 in hand, either in land or other effects,) shall pay to the rest of the legatees, who shall be deficient, the lawful interest on the deficiency until all are made equal in the sum of $4,000. Then he shall, twelve months thereafter, pay $800 down, and $800 annually to the estate, until the sum of $4,000 is paid. S. B. Jennings is to take the land on which he lives at $7,000, and paid in the same manner of Jacob Miller’s, with this difference, that he is to pay $600 annually.”
This paper seems to be greatly relied on by the appellees, but it is no evidence against the appellants. It is exhibited with the answer of the defendant, S. B. Jennings, to the plaintiffs’ bill, with the affirmative allegation that it is an old memorandum in his handwriting, and he exhibits it as “a pretty correct setting forth of the matter.” It was no evidence against the plaintiffs in that suit, and was entitled to no weight against them, unless proved; and the plaintiffs in this suit could not make it evidence against them by transferring the record of that case to this suit, and making it a part of their bill. But if said paper had been signed by Dr. Jennings, or had been proved to have been a proposition made to Jacob Miller himself by the other heirs and accepted by them, it falls far short of sustaining the appellees’ pretensions. I beg to riiake the following comments on.it:
First. It implies in the offer by the heirs that he may take the land on which he lives at $8,000, that no part of it rightfully belongs to him, but that it all belongs to the estate, although half he holds.
Second. But that half which he holds he is to take at $4,000, as so much of the real estate of William Kite as is then apportioned to him, but shall pay interest, as all the other legatees who shall have received $4,000 in *hand. either in land or other effects, shall be required to do, to the legatees who have not received $4,000, on the amount they are deficient, until all are made equal in the sum of $4,000.
Third. And for the other half of the land which is apportioned to him, he shall, after twelve months, pay to the estate $800 down and $800 annually until the sum of $4,000 is paid, which covers the value put upon the entire tract — $8,000, the exact value of lands Conrad received.
Fourth. The payment of interest to the heirs who have not received $4,000, on what they are deficient, until all are made equal in the sum of $4,000, is an assertion that the moiety of the land which he holds is an apportionment from the estate of $4,000, and that he holds it, not by virtue of the deed *261from Stevens to the decedent and himself jointly, but in right of his wife’s interest in the real estate of her father; and
Fifth. The payment by him of $800 annually to the estate until he has paid $4,000 for the remaining moiety of the land, is to raise a fund for further distribution or partition, it being required to be paid to the estate. And his wife’s interest in the whole estate, real and personal, being at least $8,000, there need be no actual transfer of money, as it would be to pay it to the estate just to be paid back to him. The whole paper shows, as to Miller, that he had no beneficial interest in the seven hundred and thirty-two acres of land on which he lived, in his own right, but that he got it in the right of his wife, for her interest in her father’s estate. And the provision made for Jennings is liable to exactly the same construction and the same results. And this paper, which is introduced by the plaintiffs in this suit, and relied upon by them, and consequently may be accepted by the appellants as evidence, in my opinion fully sustains the testimony of Jennings and the pretensions of the appellants.
*But it is contended that the deeds show upon their face (except, I presume, the deed to Price) that it was a sale and purchase, by which the grantees became severally invested with these lands, and not a partition, because, first, they purport to be deeds of bargain and sale, and do not purport to be deeds of partition, and secondly, because they purport expressly to be for a monied consideration. It must be considered that these deeds were evidently not prepared by a lawyer, for they designate the heirs as legatees, which no lawyer would have done. But to ascertain what was the intention of the parties to them, they should be read together, and in the light of the surrounding circumstances. They are all made by heirs of William Kite, and dispose of all the real estate which they inherited from him by conveying it in parcels to heirs and to the husbands of two of his heirs. No part of it is conveyed to a stranger, except in one instance, and all the heirs except the one who was in his minority, unite in a deed conveying to him. George W. Price, not lands then belonging to the estafe, but the lot which had been allotted to Conrad Kite, and which had become his property in severalty by virtue of the parol partition which is proved to have been made in 1839. doubtless because he had sold the lot to Price and desired the heirs to convey directly to his grantee, instead of to himself, and these facts appear on the face of the deed, and cannot, [ think, be reconciled with any hypothesis which negatives the fact of a partition. It was not only a partition of real estate, but also of the valuable personal estate, together, which our statute authorizes; and not only no stranger gets land in the disposition of it bv the heirs, but no grantee gets more land than the value of each heir’s share in the real and personal estate. If it had been intended to be a sale, and not a partition, it is fair to presume that some parcels of the land would have been sold to strangers outside of the *family, and that the grantees would' not have been limited not to exceed ia any instance the value of each heir’s share in the real and personal estate. It being a partition of real and personal estate, it is very natural that some of the heirs would be willing to take their whole interest in real estate, some of them part in real and part in personal,, and others altogether in personal; and it is-not important for us to know how or when they were equalized. The presumption is that the partition was completed at the time these deeds were executed, which vas more than five years after the death of the intestate, and his administrators were present and participated in the partition. But how or when that was done it is not material for us to enquire. That it was done, and to the satisfaction of all, we may well presume, for we hear of no complaint; all have acquiesced in what was done, even Joseph Kite, who was then in his minority, as appears from his answer in this cause.
It seems that one of them, and only one, Malinda, has not received all that was due to her. It seems that she chose to take the bond of Dr. Jennings for what she was entitled to receive from his wife’s share of the personal estate with which it was chargeable ($540.47), to equalize her with the rest of the heirs, instead of receiving it in money from the personal representatives. Great stress has been laid upon this circumstance to show that Dr. Jennings was the purchaser of the lands allotted to his wife, valued at $7,000, I think the conclusion is not a logical one. The-bond was executed on the 19th of March, 1839, long before the deed was executed, and being a charge upon the land which Mrs, Jennings got, as the amount she was to contribute for the equalization of Malinda with the rest of the heirs, the partition must have been made prior to the date of the bond; and it strongly confirms the testimony of Jennings and Hiram Kite that it was made in January, 1839, and the logical ^inference-is, not that Dr. Jennings purchased the-whole of his wife’s interest, worth $7,000, but that he had used $540.47 of his wife’s personal estate, and had reduced that much of it to possession, and gave his bond for it to Malinda Kite, which he never paid.
But now to return. In the light of all the circumstances surrounding the execution of these deeds, can we say that they show upon their face that they were executed to carry into effect contracts of sale and purchase, and not in pursuance of a partition made between the heirs themselves, because they are not written as a lawyer would have prepared them, setting out the partition in terms, but are written as deeds of bargain and sale are ordinarily written3 It is probable the drafts-man would not have known how to draft a formal deed of partition. The object of the deeds was to vest in each of the grantees in severalty, title to a specific parcel of all the lands which they had before held in common, or cooarcenary. And this was as effectually done by the deeds as they were framed, as if they had been most formally worded as deeds of partition. These deeds are as effectual to *262carry into effect the partition as they would be to carry into effect a sale and purchase. We cannot logically or reasonably conclude, therefore, that they are incompatible with the fact of a partition, especially when all the surroundings show that it was a partition and not a sale and purchase.
Nor, secondly, is the circumstance that they express the value in money in each case except one, as the consideration of the conveyance that the heirs had agreed should be the valuation of the land conveyed, incompatible with the fact that they were executed to carry into effect the parol parti-’ tion. It is no contradiction of the face of the deed to say, that the consideration which passed from Dr. Jennings to the heirs, his grantors, *was five thousand dollars, the value of his wife’s undivided interest in the real estate of her father, which she contemporaneously conveyed to other heirs, and two thousand dollars of her interest in the personal estate, which the administrators, being present and parties to the partition, were authorized to pay over to such of the heirs as it was determined and agreed should be entitled to receive it. And the bond to Malinda for $540.47, is a very strong circumstance to show that the definite amount which each one was to pay, and who was Jo receive it, was determined. And the administrators were bound to pay these several sums to the heirs and distributees, who were entitled, respectively, to receive them, as was determined in the settlement and partition amongst the heirs themselves. And the fact that Malinda chose to take Dr., Jennings’ bond for the amount that was coming to her from his wife, would operate as a release to the administrators from their obligation to pay it to her, and would authorize them to pay it to Dr. Jennings, and so would be a reduction to his possession, or rather a purchase of that much of his wife’s personal estate. It would be a very slight circumstance from which to infer that he had purchased and paid $7,000 for the five hundred and fifty-nine acres allotted to his wife. Such an hypothesis, also involves other insuperable difficulties. His wife was entitled to $5,000 of the $7,000 in real estate. He might become the absolute owner of her personal estate by reducing it to possession, but could not of her real estate. Well, she had, by uniting in the deeds, conveyed her undivided interest in the real estate worth $5,000, in part consideration for the five hundred and fifty-nine acres which had been allotted to her, and for the balance of the consideration had surrendered $2,000 of her interest in the personal estate. Now, suppose her husband, by reducing to possession her personal estate, could pay two thousand dollars of the consideration *for the land . conveyed to him, how did he pay the $5,000, the residue, if he did not pay it in his wife’s land? He would hardly have paid it out of his own pocket if he had had the money, which it seems he had not, when his wife was entitled to it in land. And if he had, to whom would it have been due but to his wife? It is not pretended that he paid $5,000 to her. But if he could have lawfully made a contract with her for the purchase of her land which she inherited from her father, where is the evidence of such contract of purchase? I have always been under the impression that a married woman could only part with her real estate in the mode prescribed by the statute, upon a privy examination; and that her consent to its transfer could not be shown by her declarations in any other mode, much less be inferred or presumed from her acquiescence in the claim of her husband, for however long a period. Here there is no evidence that she ever parted with her inheritance to her husband in the only mode under the statute by which she could have parted with it; or, in fact, that she in any way consented to or acquiesced in the claim to her land now set up by her husband’s creditors.
She united, it is true, in the deeds conveying to her co-heirs the parcel of the real estate set apart to them respectively, which had descended from her father; and that she did, in consideration of the parcels of land which had been allotted to her. The consideration of the deed made of her land to her husband, is stated in the deed to be $7,000. It does not say in money, and the heirs — the grantors — acknowledge the receipt of it. That is not inconsistent with the fact. They had received it in Mrs. Jennings’ undivided interest in the lands, valued at $5,000, which, by contemporaneous deeds she had conveyed to her co-heirs, and in $2,000 of her interest in the personal estate which she had surrendered for equalizing the heirs with her who had received less land *and those who had received no land. The consideration for the land which was allotted to her, and which was conveyed to her husband, was her interest in the real estate of her father, and so much of her interest in the personal estate as would make it $7,000. I don’t think there ought to be a doubt of that.
The evidence in this record, documentary and oral, I think, plainly shows that Mrs. Jennings was entitled to at least five-sevenths of the land which was conveyed to her husband, and to the whole of it, unless her husband had reduced to his possession her interest in the personal estate, which was the consideration of the remaining two-sevenths. The evidence does not establish satisfactorily that Jennings ever reduced to possession his wife’s interest in the personal estate with which he paid partly for the land conveyed to him. There is .some ground for the assumption in the deposition of Hiram Kite in answer to the question how S. B. Jennings got the lands conveyed to him. He says, “there was a price set upon the lands at the time, and all over what was coming to him in the divide he bought from the heirs.” Well, five-sevenths was coming to him, or rather to his wife, in the divisions of the real estate. It could not be coming to him in any sense, except .in the right of his wife, and the excess, which was two-sevenths, he bought, according to this witness; and as it was doubtless paid for out of his wife’s *263personal estate, it may be considered as evidence of the reduction of his wife’s personal estate to his possession. But whether so or not, if he bought it and paid for it, two-sevenths would be liable to the debts of his creditors. And upon this theory, that he bought the two-sevenths, we may conclude that he gave his bond to Malinda in part payment of it. The most, I think, that can be claimed for the creditors of Dr. Jennings is the two-sevenths of the five hundred and fifty-nine acres of land, and his life estate, by the curtesy, in the live-sevenths and "the fifty acres which are no part of the aforesaid tracts, and are not claimed by the heirs of Mrs. Jennings. This, I think, is a most liberal disposition of the case for the creditors of Dr. Jennings. I have not a doubt as to the right of the heirs of Mrs. Jennings to five-sevenths of the lands in controversy, subject to their father’s life estate by the curtesy. Upon what just principle it is reduced by the decree to an undivided fourteenth interest in the five hundred and fifty-nine acres, I cannot comprehend. Mrs. Jennings was undoubtedly entitled to one-seventh of the whole real estate of which her father died seized. She has been induced to unite in deeds, with the other heirs, in conveying her interest, which was an undivided one-seventh in all the other lands, to the heirs to whom they were parcelled out in the partition or settlement, in consideration that (ivc-sevenths of the lands in question, which would be her proportion according to the value of her undivided interest in the real estate, should be allotted to her in severalty; and to hold now, that she is entitled to only one-seventh in the five hundred and fifty-nine acres, valued at $8,000, would be to give her only one-seventh in the five hundred and fifty-nine acres for the one-seventh which she was clearly entitled to by inheritance in all the lands which descended from her father, estimated to have been worth at least thirty-five thousand dollars. She has parted with all her interest in the other lands to other heirs, upon consideration that she was to have her whole interest concentrated and vested in the lands in question. And the decree holds her to the commences of her undivided interest in the lands worth $5,000, but takes from her or her heirs the_ consideration on which alone she united in those conveyances. The decree makes it one-fourteenth instead of one-seventh, of course upon the idea that her husband ivas a joint owner with her father in the said laud, a claim which her husband had not the conscience *to make for himself when the lands were partitioned, when it would
have been made, one would think, if it could have honestly been made, the joint conveyance having been made to him and his father-in-law not two years before this partition, and when the whole transaction was known to all the heirs and fresh in their recollection. No such claim was then made by Dr. Jennings, but absolutely renounced by him and disclaimed to this day, and yet this decree gives it to him.
It was contended that a moiety of the lands was an advancement by the father to the husband of his daughter. But I do not think_ that can be maintained. He did not take it as an advancement from his wife’s father;_but he took it as a joint purchaser with him from Jacob Conrad, the grantor. There is nothing in the transaction or the proofs to show an intention of the father to advance him with a moiety of the land. On the contrary, there is everything to repel such a presumption; it was his intention that Dr. Jennings should pay for a moiety of the land, which he admits and testifies that he failed to pay any part of it. And the same having been paid by William Kite, or his representatives, it was a charge upon his moiety of the land. And being so, it is very reasonable, as he and Hiram Kite both testify is the fact, that when the lands were partitioned he consented that the entire lands so conveyed to him and William Kite jointly, should be valued and partitioned as lands of William Kite’s estate.
If these transactions had occurred shortly before the death of Mrs. Jennings, which occurred in 1865, the rights of her heirs could hardly have been questioned. And yet;> she being a married woman, the lapse of time cannot affect the right of her heirs, they having instituted suit in a reasonable time after her death. Lapse of time will not be laches, if the party was under disability.
(Perry on Trusts, 1st ed. § 230). The husband has been *in possession, but his possession was not inconsistent with his wife’s claim of right, set up by her heirs; and if it was, acquiescence cannot be imputed to a married woman. Her husband had possession under the deed from the heirs of William Kite, which was of record, and not under the joint deed to decedent and himself of 1837, which was renounced by him when he consented that the entire tract so conveyed should be valued and taken into the partition as a part of the decedent’s lands, and actually accepted it at the price put on the entire tract, not upon a moiety, as and for a part of his wife’s share of her father’s estate. For the decree after this, and when Dr. Jennings to this day disclaims any right or title under the joint deed, and has never claimed any since the death of William Kite, but as we have seen disclaimed it when the lands were partitioned amongst the heirs, T confess is incomprehensible to my mind. This deed made to Dr. Jennings by the heirs of (William Kite, except the minor and his wife, who did not unite in it, was sufficient to charge even a subsequent purchaser with constructive notice of the wife’s right.
The fact of the deed being of record for thirty or forty years cannot affect the rights of Mrs. Jennings, she being under disability during that whole period, nor her children, they having instituted suit against S. B. Jennings to assert their rights within the time limited by law after the death of their mother, when their rights became vested.
Unless Mrs. Jennings or her heirs are barred by the execution of the deed to her *264husband by her co-heirs, I cannot apprehend the shadow of a doubt as to the right of her heirs to at least five-sevenths of the land in question, subject to their father’s life estate by the curtesy. As we have seen, she is not a party to the deed that conveys the land to him, and has never acknowledged on privy examination the conveyance of her title, which was clear *and unquestionable, if not to the whole, to at least five-sevenths of these lands. It is true that she united in the other conveyances, and it is very probable she would have united in this too if she had been told to do so. We all know how readily a dutiful and trustful wife is disposed to confide all business matters to the disposal of her husband, and to do whatever he and the men who have it in charge direct. And if she had been joined in the deed to her husband she would doubtless have considered it all right, and would have acknowledged that too. But she did not do it. She was clearly entitled to at least five-sevenths of the land, which had been four or five years before allotted to her in the partition. But the deed was made by the other heirs to her husband, for five-sevenths of which he had not even a pretext of title. It was evidently done without knowledge as to its effect upon the rights of the wife, or without due consideration. I have no idea that there was any intention of any of the parties to defraud Mrs. Jennings of her rights. But if it was not a conveyance to the husband as to at least five-sevenths, in trust for his wife, it was an actual fraud upon her rights, and a court of equity would hold the husband a trustee for his wife. Brown v. Lynch, 1 Paige Ch. R. 147; Barnesly v. Powell, 1 Ves. Sr. R. 283; Young v. Peachy, 2 Atk R. 254; Thymn v. Thymn, 1 Vern. R. 296. Constructive trusts arise (says Professor Minor) independently of the intention of the parties by constructio'n of law, being fastened on the conscience of him who has the legal estate, in order to prevent what otherwise would be a fraud. They occur not only when property has been acquired by fraud or improper means, but also where it has been fairly and properly acquired; but it is contrary to the principles of equity that it should be retained, at least for the acquirer’s own. benefit. 2 Min. Inst. (1st ed.) 206, 207, citing 1 Lom.
Dig. 233; 1 Spence’s Eq. Jur. 511-12. *A court of equity will construe a deed so made to the husband, the consideration moving exclusively from her, as made in trust for her, and will regard the husband as trustee for the wife. We set up a trust in Snavely v. Pickle, 29 Gratt. 27, though the grantee had been in possession under the deed since 1845. And a court of equity will be vigilant to secure to the wife her rights. Even if Mrs. Jennings had been divested of her inheritance, in the mode by which a married woman may under the statute part with her real estate, a court of equity will closely scrutinize the act. Judge Moncure, in Statham v. Ferguson’s adm’r & als. 25 Gratt. 28, 43. When land is sold for the purpose of partition, the share of the proceeds belonging to a feme covert will be treated as land, and cannot be paid to the husband except with her assent upon a privy examination. Hughes ex parte, 1 Dev. Ch. 118; Snell v. Jamison, 2 Dev. & Bat. Ch. 2 Hill Ch. 646; 5 Iredell Eq. 396. There is nothing in the case of Phelps v. Seely which is in conflict with the foregoing. From my recollection of that case it was an attempt to raise a resulting or implied trust against the purchaser of the property in favor of the party claiming the trust, although the consideration did not move from him, but from the purchaser; whilst in this case the consideration of the deed vesting the legal title in the husband, moved unquestionably from the wife.
From every view I have been able to take of this case, my mind has been brought to a clear conviction that the appellants, the heirs of Mrs. Jennings, are entitled to at least five-sevenths of the lands in controversy. The only doubt I have is, whether they are not entitled to the whole. My brethren think otherwise, which is the only circumstance that could cause a doubt as to the correctness of my conclusion. But it has not changed my conviction as to the right of the case. I must therefore ’’’adhere to . my opinion, though with diffidence and regret that I have to dissent.
MONCURE, P„ and STAPLES, J., concurred in the opinion of CHRISTIAN, J.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481315/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00146-CV
___________________________
ERIKA JOHNSON, Appellant
V.
SUNSET POINTE HOUSING PARTNERSHIP, LTD., Appellee
On Appeal from County Court at Law No. 1
Tarrant County, Texas
Trial Court No. 2022-000753-1
Before Sudderth, C.J.; Kerr, Birdwell, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION AND JUDGMENT
Appellant’s brief was due on August 19, 2022. On September 9, 2022, we
notified Appellant that her brief had not been filed as the Texas Rules of Appellate
Procedure require. See Tex. R. App. P. 38.6(a). We warned that we could dismiss the
appeal for want of prosecution unless, within ten days, Appellant filed a brief and an
accompanying motion reasonably explaining the brief’s untimeliness. See Tex. R. App.
P. 10.5(b)(1), 38.8(a)(1), 42.3(b).
On the tenth day, we received a motion requesting an extension. But the
motion did not comply with the Rules of Appellate Procedure.1 See Tex. R. App. P.
10.5(b)(1). We notified Appellant that her motion was noncompliant, we listed out
the noncompliant aspects, and we warned that we could return the filing or deny the
motion unless Appellant corrected the deficiencies within ten days. More than thirty
days have passed since then—and more than sixty days have passed since the original
deadline for Appellant’s brief—but we have not received a response.
Because Appellant has failed to file a brief, we dismiss the appeal for want of
prosecution. See Tex. R. App. P. 38.8(a)(1), 42.3(b), 43.2(f).
Per Curiam
Delivered: November 3, 2022
1
Appellant’s motion lacked, among other things, a certificate of conference, a
certificate of service, and a signature. See Tex. R. App. P. 9.5, 10.1(a).
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481337/ | USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 1 of 18
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10305
____________________
IN RE: ZANTAC (RANITIDINE)
PRODUCTS LIABILITY
LITIGATION
___________________________________________________
9:20-cv-80555
ARTHUR CARTEE,
Plaintiff-Appellant,
versus
BOEHRINGER INGELHEIM PHARMACEUTICALS, INC.,
PFIZER, INC.,
GLAXOSMITHKLINE LLC,
Defendants-Appellees.
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 2 of 18
2 Opinion of the Court 21-10305
____________________
No. 21-10306
____________________
IN RE: ZANTAC (RANITIDINE)
PRODUCTS LIABILITY
LITIGATION
__________________________________________________
9:20-cv-80512-RLR
MARILYN WILLIAMS,
Plaintiff-Appellant,
versus
BOEHRINGER INGELHEIM PHARMACEUTICALS, INC.,
BOEHRINGER INGELHEIM USA CORPORATION,
WALGREENS BOOT ALLIANCE, INC.,
Defendants-Appellees.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-md-02924-RLR
____________________
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 3 of 18
21-10305 Opinion of the Court 3
Before JORDAN and LAGOA, Circuit Judges.*
PER CURIAM:
The appellants, Arthur Cartee and Marilyn Williams, are
two of the thousands of plaintiffs alleging personal injury claims in
In re Zantac (Ranitidine), MDL No. 2924. Because there is no final
district court decision with respect to the amended complaints of
Mr. Cartee and Ms. Williams, we dismiss their appeals for lack of
appellate jurisdiction.
I
Mr. Cartee and Ms. Williams both alleged that they took
ranitidine products to treat mild heartburn. Starting in 2006, Mr.
Cartee began taking both prescription and over-the-counter ge-
neric ranitidine. He developed prostate cancer in 2012. Ms. Wil-
liams started taking Zantac, an over-the-counter brand-name drug,
in 2011. She was diagnosed with abdominal and ovarian cancer in
2016.
A
On February 6, 2020, the U.S. Judicial Panel on Multidistrict
Litigation created an MDL in the Southern District of Florida—
MDL No. 2924—for purposes of centralizing pretrial proceedings
in actions alleging that ranitidine, the active ingredient in Zantac,
* After oral argument, Judge Luck recused himself from this case. This opinion
is therefore issued by a quorum. See 28 U.S.C. § 46(d); 11th Cir. R. 34-2.
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 4 of 18
4 Opinion of the Court 21-10305
breaks down to form an alleged carcinogen known as N-Nitrosodi-
methylamine (NDMA).
After the MDL was created, Mr. Cartee and Ms. Williams
each filed separate federal lawsuits—Mr. Cartee in Illinois and Ms.
Williams in Alabama—alleging that ranitidine caused their cancers.
Their actions were transferred to the MDL.
A few months after the transfers, the parties filed a proposed
order coordinating the filings of master complaints. This order,
known as Pretrial Order # 31, was adopted and entered by the dis-
trict court.
The Order required the personal injury plaintiffs to “file a
Master Personal Injury Complaint [or MPIC] on behalf of all Plain-
tiffs asserting personal injury claims in MDL No. 2924.” MDL D.E.
876 at 2. The Order stated that “[a]ll claims pleaded in the [MPIC]
will supersede and replace all claims pleaded in any complaint pre-
viously filed in or transferred to MDL No. 2924 . . . .” Id.
In addition, the Order directed the personal injury plaintiffs
to attach a Master Short Form Complaint (or SFC) to serve as a
template “for each individual case.” Id. The individual plaintiffs
were to provide certain information, such as their names, injuries,
places of residence, and the defendants being sued. See id. The
SFCs took the form of a worksheet that allowed each plaintiff to fill
in the blanks as to who was being sued and to check boxes for
which claims were being asserted. See id. The SFC also contained
a clause indicating that it incorporated all allegations from the
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 5 of 18
21-10305 Opinion of the Court 5
MPIC. See id. The Order stated that, “[f]or each action directly
filed in or transferred to MDL No. 2924 subject to this Order, the
[MPIC] together with the Short Form Complaint shall be deemed
the operative Complaint.” Id. at 3. 1
Shortly thereafter, the personal injury plaintiffs filed the
MPIC. The MPIC named no individual plaintiffs. Instead, it incor-
porated them by reference. The MPIC states it “is not intended to
consolidate for any purpose the separate claims of the individual
Plaintiffs in this MDL,” and that it “does not constitute waiver or
dismissal of any actions or claims asserted in those individual ac-
tions.” MDL D.E. 887 at 2. The MPIC refers to the plaintiffs’ cases
as individual “actions” throughout. See id. at ¶¶ 216, 434–35.
As directed, Mr. Cartee and Ms. Williams both filed short
form complaints to go with the MPIC.
In his SFC, Mr. Cartee sued four brand-name manufacturers
(Boehringer, GlaxoSmithKline, Sanofi, and Sanofi-Aventis) and
1 MDL No. 2924 therefore “employe[d] the device of a master complaint, sup-
plemented by individual short-form complaints that adopt the master com-
plaint in whole or in part.” In re Zofran (Ondansetron) Products Liability
Litig., MDL No. 1:15-md-2657-FDS, 2017 WL 1458193, at *6 (D. Mass. Apr. 24,
2017). The master complaint contained allegations common to all plaintiffs
asserting the same types of claims, while the short-form complaints contained
allegations specific to each individual plaintiff. See In re Taxotere (Docetexel)
Prod. Liab. Litig., 995 F.3d 384, 387 (5th Cir. 2021). See also Manual for Com-
plex Litigation (Fourth) § 40.52 (Fed. Jud. Ctr. 2004) (providing sample case
management order governing mass tort claims using master and short-form
complaints).
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 6 of 18
6 Opinion of the Court 21-10305
two retailers (Walgreens and Walmart). He checked the boxes for
Counts I–XIII of the MPIC, leaving out only Count XIV (a survival
action) and Count XV (a wrongful death claim). As discussed be-
low, he filed an amended SFC shortly thereafter, dropping the
Sanofi entities from the list of brand-name defendants from which
he sought to recover.
In her SFC, Ms. Williams sued two brand name manufactur-
ers (Boehringer Ingelheim Pharmaceuticals and Boehringer Ingel-
heim USA) and one retailer (Walgreens), and she indicated that any
distributors and repackagers she might sue were then unknown.
She checked the boxes for five different counts in the MPIC, includ-
ing those asserting claims for strict products liability, failure to
warn, and breaches of warranties. Like Mr. Cartee, and as dis-
cussed below, Ms. Williams later amended her SFC.
B
The district court dismissed the entire MPIC without preju-
dice as a shotgun pleading. See MDL D.E. 2515 at 13. In a separate
order, the court also held that any claims “based on an allegation
that a brand-name drug’s FDA-approved formulation renders the
drug misbranded” were preempted by the Food, Drug, and Cos-
metics Act, 21 U.S.C. § 301 et. seq., “because the drug’s manufac-
turer cannot independently and lawfully change a drug formula-
tion that the FDA has approved.” MDL D.E. 2532 at 24. The court
ordered the personal injury plaintiffs to omit misbranding allega-
tions if they amended the MPIC. Id. at 25.
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 7 of 18
21-10305 Opinion of the Court 7
In another order, the district court ruled that any state with-
out a supreme court decision supporting the plaintiffs’ “innovator
liability” theory of negligent misrepresentation (i.e., any state other
than Massachusetts and California) would not recognize a duty by
brand-name manufacturers to consumers of generic ranitidine. See
MDL D.E. 2516 at 14. The district court granted plaintiffs who
brought such claims against defendants in courts outside of Califor-
nia and Massachusetts leave to amend “to plead a prima facie case
of personal jurisdiction in California or Massachusetts.” Id. at 8, 24.
The district court did not dismiss any individual SFCs.
After the MPIC was dismissed and before any amended
MPIC was filed, Mr. Cartee filed a second amended SFC. This SFC
only checked the box for Count VIII, asserting negligent misrepre-
sentation, against three of the brand name manufacturers
(Boehringer, GlaxoSmithKline, and Pfizer). The second amended
SFC eliminated all other claims and deleted the retailer defendants.
It also added the following paragraph:
Plaintiff is suing for injuries related only to generic
consumption. Plaintiff’s sole theory of liability is that
Boehringer Ingelheim Pharmaceuticals, Inc., Glax-
oSmithKline LLC, and Pfizer, Inc. negligently misrep-
resented the safety of ranitidine through their labeling
of branded Zantac, that it was foreseeable that ge-
neric manufacturers of ranitidine would copy those
misrepresentations, and that Plaintiff and his doctor
relied on those misrepresentations in consuming and
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 8 of 18
8 Opinion of the Court 21-10305
prescribing the ranitidine that caused Plaintiff’s can-
cer and other injuries.
Cartee D.E. 19 ¶ 13. Significantly, Mr. Cartee’s second amended
SFC still purported to incorporate the allegations in the then-dis-
missed MPIC.
On the same day that he filed the second amended SFC, and
without obtaining any further ruling from the district court, Mr.
Cartee filed a notice of appeal. He cited the district court’s innova-
tor liability claims order and stated that the order “was made final
with respect to Plaintiff Arthur Cartee on the 27th day of January,
2021, when Plaintiff amended his Short Form Complaint to elimi-
nate all claims for which repleading was permitted by the Court’s
Orders.” Cartee D.E. 20. In his appeal, Mr. Cartee seeks reversal
of the district court’s rulings with respect to innovator liability un-
der Illinois law.
Ms. Williams pursued a similar strategy with one additional
wrinkle. First, she filed an amended SFC after the dismissal of the
MPIC and before the filing of an amended MPIC. In her amended
SFC, she only checked the box for the MPIC’s strict products liabil-
ity design defect claim and eliminated any suggestion that she
might sue yet-unknown distributors and repackagers. She also
added the following paragraph:
Plaintiff’s sole theory of liability is that the ranitidine
she consumed was defectively designed under state
law, and that these same design defects made
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 9 of 18
21-10305 Opinion of the Court 9
ranitidine dangerous to health when used as in-
structed on the label such that it was misbranded un-
der federal law. The ranitidine Plaintiff consumed
was illegal to sell under federal law, and requires com-
pensation under state design defect tort law.
Williams D.E. 12 at ¶ 13. Ms. Williams’ amended SFC also incor-
porated the allegations in the then-dismissed MPIC.
On the same day that she filed her amended SFC, Ms. Wil-
liams voluntarily dismissed it without prejudice pursuant to Fed-
eral Rule of Civil Procedure 41(a)(1)(A)(i). Ms. Williams then filed
a notice of appeal, indicating that she wished to appeal the district
court’s orders granting the defendants’ motions to dismiss “on
preemption grounds,” and asserted that “[t]hese [o]rders were
made final with respect to Plaintiff Marilyn Williams on the 27th
day of January, 2021, when Plaintiff amended her Short Form
Complaint to eliminate all claims for which repleading was permit-
ted by the Court’s Orders.” Williams D.E. 14 at 1. On appeal, Ms.
Williams argues that where a plaintiff pleads a design defect in a
drug based on post-approval scientific evidence never presented to
the FDA, that state-law claim is not preempted by the FDCA. 2
After Mr. Cartee and Ms. Williams filed their notices of ap-
peal, the personal injury plaintiffs filed an amended MPIC. The
2The district court subsequently deconsolidated Ms. Williams’ case from the
MDL proceeding in light of her notice of voluntary dismissal.
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10 Opinion of the Court 21-10305
district court has subsequently granted Rule 54(b) judgments in fa-
vor of some defendants on some or all of the claims against them,
including Walgreens—the retailer Ms. Williams is suing. A second
amended MPIC remains pending against the brand-name defend-
ants.
II
Courts of appeals have subject-matter jurisdiction over “ap-
peals from all final decisions of the district courts of the United
States.” 28 U.S.C. § 1291. Under § 1291, “[a] ‘final decision’ is one
by which a district court disassociates itself from a case.” Gelboim
v. Bank of Am. Corp., 574 U.S. 405, 408 (2015) (internal quotation
marks omitted). “[T]he statute’s core application is to rulings that
terminate an action.” Id. at 409.
The defendants ask us to dismiss the appeals of Mr. Cartee
and Ms. William for lack of appellate jurisdiction because the or-
ders dismissing the MPIC—which they argue merged the personal
injury cases against them—are non-final and non-appealable. Mr.
Cartee and Ms. Williams respond that the personal injury plaintiffs’
actions are merely consolidated and their individual rights to ap-
peal are unaffected by the structure of this MDL.
A
We conclude that we lack jurisdiction to consider Mr. Car-
tee’s appeal. Simply stated, there is no final decision in the district
court against Mr. Cartee.
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 11 of 18
21-10305 Opinion of the Court 11
Under § 1291, “an order that disposes of fewer than all of the
claims against all of the parties is not immediately appealable.”
Commodores Ent. Corp. v. McClary, 879 F.3d 1114, 1126 (11th Cir.
2018) (emphasis added). See also Fed. R. Civ. P. 54(b) (when an
action involves multiple claims or parties, an order “that adjudi-
cates fewer than all the claims or the rights and liabilities of fewer
than all the parties” ordinarily “does not end the action as to any of
the claims or parties”). “[A]n order dismissing a complaint with
leave to amend within a specified time becomes a final judgment if
the time allowed for amendment expires without the plaintiff seek-
ing an extension.” Auto. Alignment & Body Serv., Inc. v. State
Farm Mut. Auto. Ins. Co., 953 F.3d 707, 719–20 (11th Cir. 2020).
But if a plaintiff chooses to file an amended complaint, that party
may not also appeal the dismissal order at that time. See Fuller v.
Carollo, 977 F.3d 1012, 1014 (11th Cir. 2020) (dismissing appeal of
qualified immunity order for lack of jurisdiction where the plain-
tiffs elected to file an amended complaint after the ruling); Lobo v.
Celebrity Cruises, Inc., 2009 WL 6353884, at *1 (11th Cir. Dec. 16,
2009) (“The district court’s [dismissal order] is not final or immedi-
ately appealable because the plaintiffs elected to file an amended
complaint prior to filing their . . . notice of appeal.”).
As explained earlier, Mr. Cartee’s operative complaint in-
cludes two documents: the MPIC and his SFC. After the MPIC was
dismissed, Mr. Cartee filed a second amended SFC eliminating all
but one of his claims and adding language clarifying the scope of
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 12 of 18
12 Opinion of the Court 21-10305
his action. At the time he filed the second amended SFC, it pur-
ported to incorporate the allegations of the MPIC, but there was
no operative MPIC to incorporate because the MPIC had been dis-
missed. The personal injury plaintiffs filed an amended MPIC,
which restructured the claims and eliminated certain factual allega-
tions, but they did so after Mr. Cartee filed a notice of appeal. A
second amended MPIC remains pending in the district court today,
as does Mr. Cartee’s second amended SFC. Indeed, Mr. Cartee
could file a third amended SFC today incorporating the second
amended MPIC and selecting a new combination of claims to as-
sert.
An individual plaintiff like Mr. Cartee does not necessarily
need to wait for the resolution of the entire MDL to appeal. The
district court could dismiss his amended SFC sua sponte (or on mo-
tion) in light of its rulings on the MPIC, but it has not done that.
The district court could also enter a Rule 54(b) judgment against
Mr. Cartee or in favor of the defendants Mr. Cartee is suing. But it
has not done that either and Mr. Cartee has not asked for a such a
judgment. See Ryan v. Occidental Petroleum Corp., 577 F.2d 298,
302 (5th Cir. 1978) (“But where the claim is complete in itself and
where the adjudication of that claim is also complete, Rule 54(b)
certification is the appropriate channel for assuring appealability.”).
Mr. Cartee claims that his individual case is “conclusively
over.” Cartee Jurisdictional Response at 9. He predicts that, if the
district court looked at his second amended SFC, it would
acknowledge that his remaining claim is due to be dismissed under
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 13 of 18
21-10305 Opinion of the Court 13
its rulings on innovator liability claims outside of Massachusetts
and California. See id. at 8–9. That prediction may turn out to be
correct, but the district court had no opportunity to enter any final
judgment because Mr. Cartee filed a notice of appeal the very day
he filed the second amended SFC and at a time when there was no
MPIC to incorporate. He cannot unilaterally declare his second
amended SFC dead when the district court has not done so, and he
cannot deny that this SFC is still alive and pending in the district
court. See, e.g., Occidental Petroleum Corp., 577 F.2d at 302
(“[T]hese partial rulings on his complaint, considered together with
the purported voluntary dismissal of [one paragraph of the com-
plaint], do not amount to a termination of the litigation between
the parties.”). Because there is no final ruling against his operative
complaint—the combination of the MPIC and his SFC—to put the
last nail in the coffin of his action, we lack jurisdiction to consider
Mr. Cartee’s appeal.
B
Ms. Williams’ voluntary dismissal of her own amended SFC
did not have the effect of creating a final judgment. We therefore
also lack jurisdiction over her appeal.
A “Rule 41(a)(1) voluntary dismissal without prejudice is not
ordinarily appealable.” Univ. of S. Ala. v. Am. Tobacco Co., 168
F.3d 405, 408 n.1 (11th Cir. 1999). See also 15A Charles Alan
Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3914.8 (2d ed. &
April 2022 update) (“[A] voluntary dismissal without prejudice gen-
erally fails to achieve finality.”). But “[o]ur precedent splinters in
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 14 of 18
14 Opinion of the Court 21-10305
multiple directions on whether voluntary dismissals without prej-
udice are final.” Corley v. Long-Lewis, Inc., 965 F.3d 1222, 1228
(11th Cir. 2020). Compare, e.g., State Treasurer v. Barry, 168 F.3d
8, 13 (11th Cir. 1999) (“[V]oluntary dismissals, granted without
prejudice, are not final decisions themselves . . . .”), with, e.g., CSX
Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1328–29 (11th
Cir. 2000) (concluding that a voluntary dismissal without prejudice
was final when “there was no attempt to manufacture jurisdic-
tion”). In Corley, we held that “an order granting a motion to vol-
untarily dismiss the remainder of a complaint under Rule 41(a)(2)
‘qualifies as a final judgment for purposes of appeal.’” 965 F.3d at
1231 (citations omitted).
In this case, however, Ms. Williams is seeking to appeal mat-
ters related to the very claim she voluntarily dismissed through
Rule 41(a)(1). She wants to challenge the district court’s preemp-
tion ruling regarding the “misbranding” theory of design defect li-
ability. And she argues that the district court’s preemption orders
“terminated her entire action.” Williams Jurisdictional Response
at 6. But there is no final order from the district court on Ms. Wil-
liams’ design defect claim. There is also no final order dismissing
the design defect claims in the later-filed second amended MPIC.
That MPIC remains pending in the district court and includes two
design defect claims—one based on the drug’s warnings and pre-
cautions and another based on allegedly improper expiration dates.
See MDL D.E. 3887 at 230–312.
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 15 of 18
21-10305 Opinion of the Court 15
Like Mr. Cartee, Ms. Williams filed an amended SFC incor-
porating allegations from the MPIC which had been dismissed. She
then dismissed that very same amended SFC without any further
action or acknowledgement from the district court. Because Ms.
Williams’ amended SFC was pending when she voluntarily dis-
missed it and because there was no operative MPIC in place to
combine with the amended SFC, there was necessarily no final
judgment against Ms. Williams. Ms. Williams’ subjective belief
that the district court would dismiss her amended SFC—which
merely checks the box for the dismissed MPIC’s design defect claim
and purports to base itself solely on the MPIC’s misbranding the-
ory—does not make a final judgment. We find it hard to classify
Ms. Williams’ voluntary dismissal of her amended SFC as anything
other than an attempt to “manufacture jurisdiction.” See CSX
Transp., Inc., 235 F.3d at 1328.
Ms. Williams also argues that her Rule 41 dismissal rendered
the district court’s preemption rulings final as against her because
the district court placed “stringent conditions” on her ability to re-
plead her only remaining theory at that time—a preempted design
defect claim based on the “misbranding” theory of liability. See
Williams Jurisdictional Response at 6–9. But the district court’s or-
der did not place conditions on Ms. Williams’ filing of an amended
SFC. It placed conditions only on the MPIC, which was in fact later
amended and refiled. And, like Mr. Cartee, Ms. Williams—who
voluntarily dismissed her amended SFC without prejudice—could
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 16 of 18
16 Opinion of the Court 21-10305
file a second amended SFC today, checking the boxes for a different
line-up of claims.
As the Corley concurrence explained, “Rule 41(a) is a poor
mechanism to accelerate appellate review.” Corley, 965 F.3d at
1236 (Pryor, C.J., concurring). It “contemplates the voluntary dis-
missal of ‘an action,’ which, we have explained, refers to ‘the whole
case’ instead of particular claims.” Id. (internal citations omitted).
See also Perry v. Schumacher Grp. of Louisiana, 891 F.3d 954, 956
(11th Cir. 2018) (“Rule 41(a)(1), according to its plain text, permits
voluntary dismissals only of entire ‘actions,’ not claims. Thus, the
invalid joint stipulation did not divest the District Court of jurisdic-
tion over the case.”). All of that is particularly true in the context
of an MDL like this one where the parties have filed an operative
master complaint. The rulings that Ms. Williams seeks to appeal
impact not only her claims, but also the claims of many of her fel-
low personal injury plaintiffs.
Ms. Williams could seek and possibly obtain a tailored Rule
54(b) judgment to break away from those other plaintiffs with the
district court’s permission, but she has instead acted unilaterally to
dismiss her own amended SFC. A Rule 41(a) voluntarily dismissal
cannot manufacture finality under such circumstances. See, e.g.,
Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1715 (2017) (“Plaintiffs in
putative class actions cannot transform a tentative interlocutory or-
der . . . into a final judgment within the meaning of § 1291 simply
by dismissing their claims with prejudice—subject, no less, to the
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 17 of 18
21-10305 Opinion of the Court 17
right to ‘revive’ those claims if the denial of class certification is re-
versed on appeal[.]”); Perry, 891 F.3d at 958 (“The existence of
[other] procedural vehicles [like a Rule 15 amendment or a Rule
54(b) partial judgment] confirms that the purpose of Rule 41(a) is
altogether different from that sought by the parties in this case.”).
After these appeals were filed, the district court entered a fi-
nal judgment in favor of all the retailer defendants, including
Walgreens, under Rule 54(b). See MDL D.E. 4665 at 1 (entering a
final judgment “on behalf of all Retailer/Pharmacy . . . Defendants
. . . against any Plaintiff who has entered a claim against [them] as
to Counts I through VI and Counts VIII through XII of the Master
Personal Injury Complaint, . . . all previously dismissed by the
Court. . .”). Ms. Williams argues that “[e]ven presuming a mono-
lithic MDL action, [that] Rule 54(b) certification has rendered the
district court’s preemption order final against Walgreens.” Wil-
liams Jurisdictional Response at 9.
We disagree. It is true that “a subsequent Rule 54(b) certifi-
cation cures a premature notice of appeal from a non-final order
dismissing claims or parties.” Nat’l Ass’n of Boards of Pharmacy v.
Bd. of Regents of the Univ. Sys. Of Georgia, 633 F.3d 1297, 1306
(11th Cir. 2011). But that does not mean that Ms. Williams’ appeal
against Walgreens has been perfected. This later Rule 54(b) judg-
ment does not change the fact that Ms. Williams voluntarily dis-
missed her amended SFC (which could not be partnered with any
viable and pending MPIC) against Walgreens. It does nothing to
revive the amended SFC that Ms. Williams voluntarily dismissed.
USCA11 Case: 21-10305 Date Filed: 11/07/2022 Page: 18 of 18
18 Opinion of the Court 21-10305
III
Mr. Cartee and Ms. Williams argue that their actions are
more or less dead given the district court’s rulings dismissing cer-
tain claims from the MPIC. But “[t]here’s a big difference between
mostly dead and all dead. . . . Mostly dead is slightly alive.” The
Princess Bride (Act III Communications 1987). It may be that the
claims remaining in their amended SFCs—once paired with a via-
ble and pending MPIC—have little hope of surviving given the dis-
trict court’s rulings. But at the moment there is no final ruling put-
ting their operative complaints—the combination of the MPIC and
their individual SFCs—to rest. For that reason, we lack jurisdiction
to consider their appeals. The defendants’ motions to dismiss these
appeals are granted.
APPEALS DISMISSED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481338/ | IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48904
STATE OF IDAHO, )
) Filed: November 7, 2022
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
PETER FRANKLIN GOULLETTE, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the First Judicial District, State of Idaho, Bonner
County. Hon. Barbara A. Buchanan, District Judge.
Judgment of conviction for felony vehicular manslaughter, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Justin R. Porter, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GRATTON, Judge
Peter Franklin Goullette appeals from his judgment of conviction for felony vehicular
manslaughter. Goullette alleges the district court erred by failing to ensure there was a strong
factual basis for his Alford1 plea, and failed to inquire after there was obvious doubt as to his guilt
during sentencing. The State responds the record supports that there was a strong factual basis for
the plea, and that contradicting evidence does not suggest obvious doubt as to guilt during
sentencing. The district court did not err because the record shows there is a strong factual basis
for Goullette’s plea and Goullette did not provide information that showed obvious doubt of his
guilt. The judgment of conviction for felony vehicular manslaughter is affirmed.
1
North Carolina v. Alford, 400 U.S. 25, (1970).
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2016, Goullette was driving with his minor child in the backseat. Goullette struck
two pedestrians, killing one and injuring the other. Goullette admitted to responding officers that
he was looking towards the back seat of his vehicle immediately before the collision. The State
charged Goullette with felony vehicular manslaughter, alleging Goullette drove in “a grossly
negligent manner” by exceeding the posted speed limit (twenty-five miles per hour), exceeding a
reasonable and prudent speed, failing to maintain visual contact with the roadway, and failing to
exercise due care to avoid colliding with a pedestrian. The State also charged Goullette with
misdemeanor reckless driving.
In April 2018, the district court held a change of plea hearing. Goullette intended to plead
guilty to both counts pursuant to Alford, with open sentencing recommendations by the parties.2
During the change of plea hearing, there was no discussion about the actual facts which formed
the basis for Goullette’s guilty plea. Instead, the district court acknowledged this was an Alford
plea and confirmed with Goullette that by pleading guilty he agreed there was a strong factual
basis to support the guilty plea. The district court then accepted Goullette’s guilty plea.
Prior to sentencing, Goullette filed an accident reconstruction report with the district court.
During sentencing, the district court reported having reviewed the updated presentence
investigation report (PSI) and Goullette’s accident reconstruction report. The surviving victim
provided a victim impact statement and then the prosecutor stated: “Your Honor, I can’t say any
more than [the victim] just said. What I can do is summarize that in one phrase. A lack of
conscience.” Next, Goullette’s counsel argued there was no malice or criminal intent and stated:
“[W]e don’t agree that this is gross negligence.” Without discussing the nature of the collision,
the district court sentenced Goullette. The judgment of conviction was entered and Goullette’s
counsel withdrew as counsel of record without filing a notice of appeal or motion pursuant to Idaho
Criminal Rule 35.
In June 2019, Goullette filed a pro se petition for post-conviction relief arguing ineffective
assistance of trial counsel. The district court granted the State’s summary disposition, and
Goullette appealed to this Court. See Goullette v. State, Docket No. 47576 (Ct. App. March 3,
2
Goullette pled guilty to two counts but is only challenging his plea to felony vehicular
manslaughter on appeal. Therefore, we will only reference the one guilty plea.
2
2021) (unpublished). This Court determined the district court erred and remanded the case. On
remand, the district court concluded Goullette was denied his constitutional right to effective
assistance of counsel at a critical stage in the proceedings. Goullette’s judgment of conviction was
vacated and re-entered to allow him to seek direct appellate review. Goullette timely appealed.
II.
STANDARD OF REVIEW
Whether to accept a defendant’s guilty plea is reviewed for an abuse of discretion. Schoger
v. State, 148 Idaho 622, 627, 226 P.3d 1269, 1274 (2010); State v. Jones, 129 Idaho 471, 474, 926
P.2d 1318, 1321 (Ct. App. 1996). When a trial court’s discretionary decision is reviewed on
appeal, the appellate court conducts a multi-tiered inquiry to determine whether the trial court:
(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such
discretion; (3) acted consistently with any legal standards applicable to the specific choices before
it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429
P.3d 149, 158 (2018).
III.
ANALYSIS
Goullette presents two issues on appeal. First, he argues the district court erred by
accepting his Alford plea without finding a strong factual basis for the plea. Second, he argues the
district court erred at sentencing when the court failed to inquire about the factual basis of the plea
after being presented with information that raised an obvious doubt as to his guilt.
A. Alford Plea
Goullette argues the district court erred by not expressly finding a strong factual basis for
the plea prior to accepting Goullette’s Alford plea. The State contends that first, Goullette invited
any error; second, the record before the district court provided sufficient evidence of a strong
factual basis for the plea; and, lastly, the State argues the finding of a strong factual basis was
implicit in the district court’s acceptance of Goullette’s plea.
Prefatorily, we note that in Idaho there is no general obligation to inquire into the factual
basis of a plea. State v. Coffin, 104 Idaho 543, 546, 661 P.2d 328, 331 (1983). However, such an
inquiry should be made if a plea of guilty is coupled with an assertion of innocence or, if the court
receives information before sentencing raising an obvious doubt as to guilt. Schmidt v. State, 103
Idaho 340, 345, 647 P.2d 796, 802 (Ct. App. 1982). It is well settled that if a defendant pleads
3
guilty while denying a particular element of the offense, such as intent, the plea nevertheless may
be accepted if there is a strong factual basis for the plea. Sparrow v. State, 102 Idaho 60, 61, 625
P.2d 414, 415 (1981).
A strong factual basis need not be established by proof beyond a reasonable doubt. A
guilty plea is not the occasion for a mini-trial of the case. Rather, the object of ascertaining a
factual basis is to ensure that the defendant’s plea is made knowingly, intelligently, and
voluntarily. See, e.g., North Carolina v. Alford, 400 U.S. 25 (1970).
By determining that a strong factual basis for the plea exists, the trial court ensures
that the defendant is pleading guilty because he believes that the state could, and
more likely than not would, prove the charges against him beyond a reasonable
doubt; and thus the defendant is entering the plea knowingly and voluntarily
because he believes it to be in his best interests to do so, despite his continued
assertion of innocence.
State v. Ramirez, 122 Idaho 830, 834, 839 P.2d 1244, 1248 (Ct. App. 1992).
Prior to entry of his plea, Goullette signed a guilty plea advisory form indicating that he
intended to plead guilty to both counts, with open sentencing recommendations by the parties. In
the pretrial settlement agreement, the State agreed to dismiss counts in other cases in exchange for
Goullette’s guilty plea in this case. Goullette signed an Alford plea acknowledgement form, in
which Goullette’s initials appear next to the statement, “That there exists a strong factual basis for
the guilty plea.”
Goullette claims it was err for the district court to ask Goullette whether there was a strong
factual basis for the plea but not also conducting its own inquiry. The following exchange occurred
during the change of plea hearing:
Court: And you’re entering what’s called an Alford plea. An Alford plea, by
doing this you’re agreeing that there’s a strong factual basis to support
a guilty plea. And you’re asking the Court to enter the plea for you so
that you can take advantage of the offer that the state has made in all
of your pending cases, is that true?
Goullette: Yes, ma’am.
Court: And you understand that when you’re sentenced, even though you
haven’t said you’re absolutely guilty and entered the guilty plea,
you’ll be sentenced by me as if you pled guilty?
Goullette: Yes, ma’am.
Court: Do you want to go forward today and enter what is called an Alford
plea to the charge of vehicular manslaughter?
Goullette: Yes, ma’am.
Court: And also to the charge of reckless driving?
Goullette: Yes, ma’am.
4
Court: I will accept your pleas, enter them pursuant to the North Carolina v.
Alford decision, find that they are knowingly and voluntarily made
with a full understanding of the potential consequences.
Goullette argues that the district court was required to conduct an independent inquiry of
the factual basis for the plea at the change of plea hearing. The language used in our prior cases
is that “such an inquiry should be made if a plea of guilty is coupled with an assertion of
innocence.” Schmidt, 103 Idaho at 345, 647 P.2d at 802 (emphasis added). Therefore, even though
it is preferred for the lower courts to make express factual findings during the plea, it is not
absolutely required because an Alford plea “may be accepted if there is a strong factual basis for
it.” Sparrow, 102 Idaho at 61, 625 P.2d at 415 (emphasis added). Accordingly, even though the
strong factual basis may not have to be expressly found upon independent inquiry into the facts
during the plea, it must exist to ensure the plea is knowing and voluntary.
In Ramirez, 122 Idaho at 833, 839 P.2d at 1247, the appellant claimed it was manifestly
unjust for the lower court to deny his request to withdraw his guilty plea because the trial court
failed to determine whether there was a factual basis for the plea. This Court said, “[i]n
determining whether a factual basis for a guilty plea exists, we look to the entire record before the
trial judge at the time the plea was accepted.” Id. at 834, 839 P.2d at 1248. We noted that the trial
judge who accepted Ramirez’s guilty plea was not the same judge who presided over the
preliminary hearing, and there was no indication the trial judge had received or reviewed the
preliminary hearing transcript. Id. Yet, based solely on a brief statement of facts made by
Ramirez’s counsel during the plea and the acknowledgement of a factual basis for the plea by
counsel3 (as opposed to the defendant himself, as here), this Court concluded that the trial judge
did “ascertain that there was a strong factual basis for the plea, and that Ramirez did enter his plea
knowingly and voluntarily.”4 Id. We cannot say that a contrary result obtains here.
There are significant similarities between Ramirez and this case. First, as in Ramirez,
Goullette notes that the judge who accepted his Alford plea was not the same judge who presided
over the probable cause or preliminary hearings. Second, in both cases the trial judge may not
3
The trial judge inquired, “Are you satisfied there is a factual basis to support a plea
of guilty to this charge?” to which counsel replied, “Yes, Your Honor.” State v. Ramirez,
122 Idaho 830, 834, 839 P.2d 1244, 1248 (Ct. App. 1992).
4
The Ramirez Court also pointed out that other charges were dismissed. The same is true
here.
5
express findings regarding the factual basis for the plea. Third, while Ramirez’s counsel
acknowledged some of the underlying facts and that there was a factual basis for the plea, here,
Goullette himself twice acknowledged a strong factual basis for his plea. Fourth, like in Ramirez,
the district court here ascertained there was a strong factual basis for the plea when it elicited
acknowledgment from Goullette that there existed a strong factual basis.
In Ramirez, this Court acknowledged that determining that a strong factual basis for the
plea exists ensures that the plea is entered knowingly and voluntarily. Id. In this case, Goullette
acknowledged that his plea was entered knowingly and voluntarily and that the district court found
that the plea was entered knowingly and voluntarily. Moreover, Goullette makes no claim that his
plea was not knowingly and voluntarily entered but, instead, simply claims that the district court
should have ensured that evidence of the factual basis had been placed on the record at the change
of plea hearing (despite his admissions that it existed) and such evidence expressly acknowledged
by the district court.5
In this case, the record as acknowledged by Goullette demonstrates a strong factual basis
for the plea. As a result, we affirm Goullette’s judgment of conviction for felony vehicular
manslaughter.
B. Sentencing
Goullette argues the district court erred when the court failed to inquire about the factual
basis for the plea at sentencing because Goullette’s accident reconstruction report raised obvious
doubt as to guilt.
A [court has an] obligation to conduct such an inquiry if-after a plea is entered but
before sentence is imposed-the court receives information raising an obvious doubt
as to whether the defendant is in fact guilty. In such circumstances, the trial court
should inquire into the factual basis of the plea, either to dispel the doubt or to allow
the defendant to plead anew.
Schmidt, 103 Idaho at 345, 647 P.2d at 801.
5
Goullette argues the district court erred through a procedural oversight but fails to explain
how this truly effected his guilty plea or caused harm to his substantial rights. Even assuming
error, not all I.C.R. 11 violations invalidate a guilty plea. Idaho Criminal Rule 52 provides, “[a]ny
error, defect, irregularity or variance which does not affect substantial rights shall be
disregarded.” We have previously recognized that some technical violations of I.C.R. 11(c) do
not rise to the level of manifest injustice. See Nellsch v. State, 122 Idaho 426, 432, 835 P.2d 661,
667 (Ct. App. 1992); accord United States v. Timmreck, 441 U.S. 780, 784-85 (1979).
6
Goullette contends the accident reconstruction report he filed with the district court prior
to sentencing raised an obvious doubt as to his guilt.6 Goullette’s report concluded: the heavy
braking skid marks near the site of impact were not made by Goullette’s vehicle; Goullette’s speed
was 26.5 miles per hour at the time of the collision (speed limit twenty-five miles per hour);
Goullette did not have time to avoid the collision; and the pedestrians who were struck were not
in compliance with Idaho law--walking southbound in the southbound lane. Goullette argues that
this report contradicts the allegation that he was driving grossly negligent when he hit the
pedestrians. Furthermore, Goullette finds it important that his trial attorney told the district court
they did not agree he was grossly negligent.
Goullette was aware of the contents of the Skelton report before he entered his guilty plea.
If the report raised an obvious doubt as to guilt, Goullette could have rejected the plea agreement
and taken the case to trial. Goullette chose not to do that. Instead, he entered a guilty plea to the
charges and despite the contents of the report, testified under oath that there was a strong factual
basis for his guilty plea. Goullette notes the district court stated she reviewed his accident
reconstruction report and the updated PSI, but this was the same judge from the change of plea
hearing, not the judge who presided over the probable cause or preliminary hearings. As a result,
Goullette argues the only evidence the district court had was his accident reconstruction report and
his attorney’s denial he was grossly negligent, which raised obvious doubt as to guilt of felony
vehicular manslaughter. That is not entirely true. The district court also had Goullette’s own
testimony that there was a strong factual basis for his guilty plea made after Goullette knew about
the contents of the report. Thus, Goullette’s plea negated any alleged doubt the report may have
cast upon his plea.
The State responds that the record available to the district court, including court minutes,
establish Goullette drove in a grossly negligent manner by exceeding the speed limit, by exceeding a
reasonable and prudent speed under the conditions, by failing to maintain visual contact with the
roadway ahead of his moving vehicle, and by failing to exercise due care before he struck the
pedestrians. The State argues that conflicting evidence does not rise to the level of obvious doubt and
6
The Skelton report was provided to the State, but not the district court, about two months before
Goullette pled guilty.
7
there remains evidence of grossly negligent driving that Goullette’s accident reconstruction report does
not contradict.7
We agree with the State. The preliminary court minutes establish that Goullette was not
looking at the road immediately prior to the collision. After the collision, Goullette admitted to an
officer that he had not been looking at the road, distracted by his child who was in the back seat. A
witness reported prior to the collision, Goullette drove rapidly and crossed over the centerline while he
appeared to have his head down rather than on the road. Moreover, contradictory information provided
by Goullette would be grounds for a factfinder but does not immediately suggest obvious doubt as to
guilt.
Lastly, Goullette’s trial attorney’s denial of gross negligence is not significant. First, the
district court was aware Goullette denied gross negligence; it is precisely why Goullette chose an
Alford plea. Second, the denial of gross negligence was not an attempt to show obvious doubt as to
guilt because Goullette entered his plea after the report had been disclosed to the State and the trial
attorney thereafter never asked for a withdrawal of the guilty plea or for the district court to reconsider
the factual findings for the plea. Instead, the denial of gross negligence was for mitigation purposes at
sentencing. Overall, the accident reconstruction report and trial attorney’s denial of gross negligence
did not provide obvious doubt of guilt. For that reason, the district court did not err during sentencing.
IV.
CONCLUSION
A strong factual basis for Goullette’s guilty plea was ascertained and supported by the
entire record. Goullette did not provide information that raised obvious doubt as to his guilt during
his sentencing hearing. Accordingly, Goullette’s judgment of conviction for felony vehicular
manslaughter is affirmed.
Judge HUSKEY and Judge BRAILSFORD CONCUR.
7
We note the State asserts that this issue was not preserved. The State points out that for the
first time on appeal, Goullette claims that the district court abused its discretion by failing to inquire
into the factual basis for his plea during the sentencing hearing in light of the Skelton report and his
trial counsel’s denial of gross negligence. First, when filing the Skelton report with the district court
prior to sentencing, Goullette noted that it was “for the Court[’s] consideration at sentencing.” Second,
during the sentencing hearing, Goullette’s counsel referenced the Skelton report only for mitigation,
not to claim obvious doubt of guilt or to ask for further factual inquiry from the district court or plead
anew. Finally, Goullette has made no responsive argument that the claim is preserved. While the issue
is not preserved in the traditional sense, we will address the merits of the claim.
8 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481986/ | ANDERSON, J.
By an act of the general assembly approved March C, 1874, the plaintiff in error, David A. Plecker, was authorized to erect a toll-bridge across North river at Mount Crawford, in the county of Rockingham, at or near the site of the former bridge; and for that purpose he is expressly authorized “to purchase or condemn, in the mode prescribed by law, a lot of ground not exceeding one acre for the erection of a toll-house, and so much land as may be necessary for the abutments and the construction of said bridge, and a convenient pass-way over the same.” The land on the west side of the river, where he proposed to erect the bridge, was owned by the defendant in error, Jackson Rhodes, and being unable to purchase from him the land necessary for the purpose, he says he instituted proceedings in the county court of Rockingham to have so much as was necessary con«demned in pursuance of the said act, which were resisted by the said Rhodes, but resulted in the judgment of the court in his favor, and in the condemnation of so much of the said defendant’s land as had been laid off and set apart by the commissioners of the court for the purpose. And he says that he thereupon proceeded with the work of constructing and erecting the bridge, and had it nearly completed when the said defendant in error obtained a writ of error and supersedeas to the judgment of the county court from the circuit court of Rockingham county, and the reversal of the same. And he comes to this court by writ of error and supersedeas to the judgment of the said circuit court for relief.
At the very threshold of the case we are confronted with the declaration that the legislature had not the *power to subject private property to such a purpose. The police of a state embraces in its system of internal regulations, among others, interior communication. Chief Justice Shaw said in Commonwealth v. Alger, 7 Cush. R. 53, 84: “We think it a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.” And Redfield, Chief Justice, another eminent judge, 'says in Thorpe v. Rutland & Burlington R. R. Co., 27 Verm. R. 140. 149. by this “general police power of the state, persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the state; of the perfect right in the legislature to do which, no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.” These eminent authorities are cited by Cooley in his work on Constitutional Limitations, p. 572-3, in support of this well-established doctrine, and he cites other numerous authorities, to which I need only refer.
On page 592, after saying that the state may authorize the construction of bridges over navigable waters, notwithstanding they may, to some extent, interfere with the right of navigation, he observes: “The legislature must always have power to determine what public ways are needed,” &c. This power of granting authority to individuals to erect toll-bridges has been exercised by the legislature of the state from a period perhaps coeval with the foundation of the government. We have instances of it in the construction of Mayo’s bridge over James river at Richmond, the bridge at Eredericksburg, over the Rappahannock, the bridge over James river at * Lynchburg, and over the same stream at Buchanan in Botetourt county. The first of the bridges I remember to have heard of at or near Buchanan, was Beale’s bridge, which was erected, I suppose, before I was born.
But it is assumed by defendant’s counsel that the act authorizing the erection of the bridge in question is for private benefit, and that section 14, article 5, of the constitution of this state, by implication, prohibits the taking the private property of one individual for the private use or benefit of another. In general that may be sound in principle, but we do not think it is implied by the clause of the constitution referred to, or that it is a constitutional prescription. There are certainly exceptions to it, and when it comes in conflict with the maxim sic utere tuo ut alienum non laedas, it is not true. One citizen is entitled to a right of way through his neighbor’s land, if it is the only way by which he can have access to his mill or to his courthouse, &c. Nor is it sound if the conferring the privilege or benefit upon the individual, will be for the public benefit and convenience. The charter of companies for making turnpike roads and railroads, with special privileges, is for the benefit of the private individuals who undertake the enterprise, else they would not undertake it. But they are works which will be for the benefit of the community, or the state, or supposed to be, otherwise the legislature would not grant the charter. And so the establishment of ferries is for the benefit of the individuals, to whom the franchise is granted. And in like manner the authority given to an individual for the construction of a toll-bridge across a river, is a franchise which is to benefit the individual to whom it is granted, else he would not undertake it; but it is granted to the individual in consideration of the convenience and benefit it will be to the public. All these exercises of the functions *266of sovereignty by the legislature, and the bestowment *of franchises upon individuals, are designed to be for the public benefit, and rest upon the same principle. Whether they will be beneficial to the public, when the application is made to the legislature, to grant them, is a question addressed to that body, and unless they are satisfied that the public will be benefited by their construction, the franchise will not be granted. When the application is made to the courts, it is for the courts to determine whether the work will be beneficial to the public, as in the establishment of roads and landings, the power to do which is vested in the courts by statute, chapter 52, Code of 1873; and the mode of procedure is prescribed by which the courts may determine whether the proposed road or landing, will be of public benefit, and also the advantage and disadvantage to individuals, and by which individuals and private parties may be compensated for their property which it may be necessary to appropriate to the attainment of the projected improvement. But when the franchise, as the construction of toll-bridges, is granted as in this case directly by the legislature, the benefit it will be to the state or the public is the basis upon which the franchise is granted; and if granted, it is upon the ground that the legislature is satisfied that it will be of public benefit, and hence in such cases the law requires no enquiry to be made by the courts with regard to the benefit it will be to the public. But if in the construction of the work it is necessary to take private property, or private parties are damaged, then it is necessary that the enquiry should be maded by the courts as to the value of the property, or the amount of damage sustained, and to award compensation. That has to be done in the case of railroad companies. When a charter is granted to a company or an individual to construct a rail or turnpike road, no action or enquiry is required to be made by the courts as to whether the work will be *beneficial to the public or not; that question has been decided by the legislature itself, when it granted the charter. And just so when the legislature grants to an individual or company a franchise to construct a toll-bridge, there is no law requiring the question to be submitted to the courts whether it will be beneficial to the public or -not; that question has already been decided by the legislature.
In accordance with this principle, the act of March 6th, 1874, was enacted, granting to D. A. Plecker authority to erect the toll-bridge in question, and investing him with franchises therein. Whilst the act authorizes him to “purchase, or condemn in the mode prescribed by law, a lot of ground, not exceeding one acre, for the erection of a toll-house, and so much land as may be necessary for the abutments and the construction of the said bridge and a convenient pass-way over the same,” it directs no enquiry to be made by the courts as to the public benefits which would accrue from the erection of said bridge. There is no proof in the cause, if it would have been competent for the defendant to have offered such proof, that it would not be beneficial to the public. But if it were proper to go into such an enquiry, there is very strong presumptive evidence that it would be a very great convenience and benefit to the public. The bridge is to be erected over North river, a very considerable stream near the town of Mount Crawford, to furnish a pass-way over said river upon a public highway, near the site of a former bridge upon said highway, which is not now standing, and a slight change to be made in the old road so as to pass over the proposed new bridge. These facts tend strongly to show that it would be a great public convenience and benefit, and it must have been so regarded by. Plecker or he would not have undertaken to construct it; for in proportion to the use and benefit to the public, 'it would be beneficial to him. *We do not think that there is any ground of error in the assignment that the commissioners made no report as to the public benefits, and that no such enquiry was directed by the court.
But' it is objected that the plaintiff proceeded under chapter 56 of the Code, and not under chapter 52. The act of March, 1874, which authorizes him to condemn the land, does not require him to proceed under chapter 52 or 56, but to condemn it in the mode prescribed by law. Chapter 56 does prescribe the mode whereby the lands of private parties may be condemned for such purposes, and that mode was pursued in this case. But that 'act only authorizes a company incorporated for a work of internal improvement, the court of a county or the council of a town to condemn the land. It may with much force be argued that the plaintiff by the act of 1874 is chartered as a sole corporation for a work of internal improvement. He is invested with important chartered privileges as a sole corporation. He and his legal representatives are invested with power to collect tolls on all travel and transportation over said bridge, and the rate of the tolls is regulated by the act. And it is expressly reserved to the legislature to change and regulate hereafter the rate of tolls “prescribed by this charter.” The act calls it a “charter.” And it moreover provides that “all laws in force regulating toll-bridges shall apply to this act.” Those laws may be found in Code of 1873, ch. 64, §§ 25, 26, 27, 28, 29, 30; and they show that the proprietor of the toll-bridge is in some sense a public character, and that he holds the franchise under responsibilities to the state and under the regulations of law, and that the erection of a toll-bridge is not a matter exclusively of private interest, but that it is a work in which the public has an interest, and which is subject to state control.
*But this view is not necessary to warrant this, proceeding. Although chapter 56 of the Code does not give to D. A. Plecker authority to proceed in this prescribed mode, but gives such authority only to a company, &c., as before recited, we think the *267act oí 1874 is cumulative in this respect, and gives like authority to D. A. Plecker so to proceed. It expressly gives him authority to condemn, which chapter 56 of the Code does not, if he is not a sole corporation, and to condemn in the mode prescribed by law. And this is the mode prescribed by law to condemn land for such purposes. We are of opinion, therefore, that the proceedings in this ease under chapter 56 of the Code, and by authority of the act of March, 1874, were warranted.
There are other assignments of error, which we are of opinion are unsustained. We need only notice one of them — that the act of March 6, 4 871, required D. A. Plecker to begin the bridge within six months from its date, and the time had expired before he gave notice to Rhodes of the motion in this proceeding. The said notice was not necessary to the commencement of the bridge. That may have been commenced within six months. The getting of timbers or other material, we think, would have been a commencement within the meaning of the act. And before the twelve months had expired, within which time the bridge was required to be completed, the act was amended and re-enacted, to-wit: on the 15th of January, 1875, requiring the bridge to be completed within two years. .If it was not entirely completed within that time, which is not shown by the evidence certified, the work was most probably retarded by the obstruction interposed by the defendant in error. The progress of the work was probably obstructed by him until the judgment of the county court against him and in 'favor of the plaintiff, on the 20th of May, 1875. He seems from thence to have made no opposilion, and *from anything that appears to liave acquiesced and remained silent, whilst he saw the plaintiff prosecuting the work, and probably at great expense, until the 3d of March, 1877, when he applies for and obtains from flic circuit court a supersedeas to any further prosecution of the work — not two years from the time the plaintiff was released from his obstructions by the judgment of the county court. We think under the circumstances he ought not to be allowed to insist upon a forfeiture by the plaintiff of his franchise, because of his not completing the bridge within two years. If it be a delinquency on the part of the plaintiff, he is in all probability more to blame for it than anybody else, and it is not for him to derive a benefit from it. Tt is a matter between the plaintiff and the commonwealth, or the legislature, whether the latter would under the circumstances subject the former to a forfeiture of his franchise because he had failed to comply with the strict terms of the proviso, to complete the bridge within two years. The plaintiff says the bridge was nearly completed, when he was arrested again in the work by the defendant obtaining from the circuit court a supersedeas.
Upon the whole, we are of opinion to reverse the judgment of the circuit court, and to affirm the judgment of the county court of Rockingham county.
MONCURE, P., and CHRISTIAN, J.. concurred in the opinion of ANDERSON, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481309/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-22-00180-CV
IN THE INTEREST OF A.P., B.P., D.P., § On Appeal from the 322nd District Court
AND A.P., CHILDREN
§ of Tarrant County (322-701923-21)
§ November 3, 2022
§ Memorandum Opinion by Justice Womack
JUDGMENT
This court has considered the record on appeal in this case and holds that there
was no error in the trial court’s judgment. It is ordered that the judgment of the trial
court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By /s/ Dana Womack
Justice Dana Womack | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481311/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-21-00112-CR
TAYTON SETH FINLEY, Appellant § On Appeal from County Criminal Court No. 5
§ of Tarrant County (1607688)
V. § November 3, 2022
§ Opinion by Justice Walker
THE STATE OF TEXAS § (p)
JUDGMENT ON REHEARING
After reviewing the State’s motion for rehearing, we grant the motion. We
withdraw our September 22, 2022 opinion and judgment, and substitute the following.
This court has considered the record on appeal in this case and holds that there
was error in the trial court’s judgment. It is ordered that the judgment of the trial
court is reversed, and this case is remanded to the trial court for a new trial.
SECOND DISTRICT COURT OF APPEALS
By /s/ Brian Walker
Justice Brian Walker | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481318/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-22-00040-CR
BENJAMIN ANDREW COLE, Appellant § On Appeal from the 432nd District
Court
§ of Tarrant County (1583879D)
V. § November 3, 2022
Memorandum Opinion by Justice
§ Bassel
THE STATE OF TEXAS § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that there
was no error in the trial court’s judgments. It is ordered that the judgments of the
trial court are affirmed.
SECOND DISTRICT COURT OF APPEALS
By /s/ Dabney Bassel
Justice Dabney Bassel | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481529/ | Daniel, J.
It appears that the negro girl Maria, *398the subject of this suit, was born after the death of the testator, and in the lifetime of Henley Cullins: And by the terms of the will the bequest of freedom to the slaves Nancy, Jane, Ann, Sally, Judith and America was to take effect only at the death or marriage of both of the testator’s daughters Henley and Polly, of whom Henley was the survivor.
Such a bequest, according to the decisions of this court, confers no right of present freedom on the legatee. On the contrary, the well established doctrine is, that where a person by deed or will declares his slave to be free at any particular age, or on the termination of a particular estate, or after a given period of servitude, or on the event of any contingency, the condition or status of the slave remains unaltered until such age is attained, or estate is terminated, or period of servitude has expired, or event has happened: And that any child born during such temporary servitude of the mother, follows the condition of the latter at the time of its birth, and is a slave. Maria v. Surbaugh, 2 Rand. 228; Crawford v. Moses, 10 Leigh 277; Henry v. Bradford, 1 Rob. R. 53; Ellis v. Jenny, 2 Rob. R. 597.
The cases of Elder v. Elder, 4 Leigh 252, Erskine v. Henry, 9 Leigh 188, and Lucy v. Cheminant's adm’r, 2 Gratt. 36, are not at all in conflict with these decisions. In each of these last mentioned cases the children born before their mother’s right to freedom accrued, were adjudged to be free, not because of the prospective gift or bequest of freedom to the mothers, but because of some clause, in the deed or will, construed by the court, as extending the gift or bequest of freedom to the children themselves. In other words, the children derived their title to freedom not by descent but by purchase, as donees or legatees under the same instrument which gave freedom to their mothers.
Martha having been born during the servitude of *399her mother Nancy, was consequently born a slave. And there being no clause in the will which, by any fair construction, can be taken as intending a bequest of freedom to her, she remains a slave. And as all the property remaining at the death or marriage of the survivor of the two daughters of the testator, is given over to the freedwomen, it would have been necessary, in order to determine the title to Martha, to enquire into the nature and extent of the estate given to the two daughters, and the validity of the title which the appellant Taylor asserts under the deed.from Henley Cullins of the 26th June 1846, were it not for the provisions of the act of assembly of the 15th March 1832. But by the third section of this act, (see Sessions Acts 1831-2, pagé 21,) it is declared that no free negro or mulatto shall thereafter be capable of purchasing or otherwise acquiring permanent ownership, except by descent, to any slave, other than his or her husband, wife or children; and all contracts for any such purchase are thereby declared to be null and void.
Nancy, the mother of Martha, was the only one of the legatees in remainder who (upon the supposition that the bequest was in other respects good) could, under the exception in the statute, have acquired any title to Martha by virtue of said bequest. As she died in the lifetime of Henley Cullins, it is obvious that the other freedwomen have no legal concern about or interest in the title to Martha. None, as legatees in remainder, because of the provisions of the statute, and none by descent as next of kin to Nancy, inasmuch as she died before any right to freedom or property under the will accrued.
It seems to me, therefore, that there is manifest error in so much of the decree of the 12th of July 1853, as decrees Taylor to deliver to Stratton, administrator de bonis non with the will annexed of John Cullins, the slave Martha, and any other of the chil*400dren of the emancipated slaves born since the death of said John Cullins and before the death of Henley Cullins, which he may now hold: And that instead of so much of said decree, the Circuit court ought to have rendered a decree dissolving the injunction, and dismissing the bill as to Taylor, with costs to Taylor.
Ho one but Taylor has appealed; and it is therefore unnecessary to express any opinion as to the other portionl of the decree, with which he has no concern.
The other judges concurred in the opinion of Daniel, J.
The decree was in conformity with the opinion. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481530/ | Samuels, J.
The statutes of Virginia in force prior to the 1st of July 1850, afforded to a judgment creditor the means of obtaining satisfaction of his claim out of the estate, real, personal or mixed, of the judgment debtor. On and after the day named, when the Code of Virginia went into operation, whilst the creditor retained his right to satisfaction, the process by which he was to attain it was greatly changed by the Code. It is only necessary in this case to advert to the rights and remedies of the creditor in regard to debts due from other persons to the judgment debtor, inasmuch as the subject in controversy here is a debt due from J. J. Daly to Richard H. Daly, the judgment debtor. Under the law as it stood before July 1, 1850, a subject of this nature was reached by causing the debtor to be arrested under a writ of capias ad satisfaciendum, and committed to jail, there to remain until discharged under the insolvent laws. Before such debtor could be so discharged, he was required to surrender every thing of value (with a few specified exceptions) owned by him, including debts due to him, to be applied in a designated mode to the satisfaction of the creditor’s demand. If the debtor failed to surrender his estate as the law required, still, by mere operation of law he was divested of all title thereto, and the estate applied, in a way pointed out, to discharge the debt. Section 2, ch. 188, abolishes the writ of ca. sa. in all cases except those provided for in § 1, of which the claim before us is not one.
It was obviously the purpose of the general assembly to save to the creditor the rights which he might have acquired if the former laws had continued to exist, and to give him a new and adequate remedy to enforce Ms rights. The revisors in their report to the *408general assembly, p. 926, say, that “ This chapter (188) is framed to provide for the creditor (in place of taking the debtor under a capias ad satisfaciendum, and compelling him to take the oath of insolvency) as efficient remedies (in cases not provided for by the 1st and 2d sections) against all estate not subjected to other process, as he now has when the debtor is discharged by taking the oath of insolvency.” The revisors accordingly reported a section of the statute giving the creditor the remedy indicated by them; and the general assembly in substance adopted the suggestion, which is found embodied in § 3, ch. 188. This section gives to the fi. fa. a capacity to bind mere choses in action, by making it a lien thereon, with some exceptions, not material in this case. Section 4 prolongs the lien beyond the return day of the fi. fa.; it is directed to cease “ whenever the right of the judgment creditor to levy the fi. fa. under which the lien arises, or to levy a new execution on his judgment, ceases or is suspended by a forthcoming bond being given and forfeited, or by supersedeas or other legal process.” Section 17 provides for repeated executions, without impairing the lien attaching under the first execution.
It clearly appears in the section last cited, that the legislature intended the lien to continue after the return day of the fi. fa.; otherwise, it would have been useless to provide for preserving a lien if the lien should be regarded as already lost. Looking as well to the intention as to the plain words of the statute, I am of opinion that the lien of Puryear’s fi. fa. was in full force when he filed his suggestions under section 10, to make it productive. This lien commenced December 10th, 1850, the day on which the fi. fa. was delivered to the sheriff.
The suit brought by Taylor against Richard H. Daly was brought 25th of October 1851; and on the same day he sued out an attachment under the statute, Code *409of Virginia, ch. 151, § 1. This attachment was served on J. J. Daly as garnishee October 27, 1851. Thus the liens of Puryear’s fi. fa. and Taylor’s attachment are brought in conflict. These liens are both given by statute, and are merely legal. It is perfectly obvious that Puryear’s lien, being first in point of time, must take precedence of Taylor’s. See Erskine v. Staley, 12 Leigh 406.
I am of opinion to reverse the judgment in favor of Taylor, and to render judgment in favor of Puryear.
The other judges concurred in the opinion of Samuels, J.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481532/ | Moncure, J.
I think that the-bequest of slaves and other property made by Mrs. .Rose to trustees for the use and benefit of . her daughter Mrs. Coupland, or her heirs, was of an absolute interest in the property, and not of a life estate only; and that the limitation over to her son Grustavus A. Rose or his heirs forever, in the event of the death of her said daughter without an heir or heirs of her body, is void for remoteness. The cases on this subject are very numerous; and it is unnecessary to review of even cite them; as, in the view which I take of this case, it is immaterial whether the said bequest be of an absolute or of a life estate. I will consider it, for the purposes of this case, as a bequest of an absolute estate.
I am of opinion that it is a bequest for the separate *428use of Mrs. Coupland. Among the words which have been held, per se, and independently of any contrary intention to be collected from other parts of the will, to create a trust for the wife’s separate use, are the following: “For her sole use and benefit;” “for her sole use;” “ for her livelihood;” “ for her own use and benefit, independent of any person;” “ that she should receive and enjoy the issues and profits.” 2 Roper on Legacies by White 1414. White’s Leading Cases in Equity, 65 Law Libr. 366, 376. But no particular form of words is necessary; and whenever it appears, either from the nature of the transaction, or from the whole context of the instrument, that the wife was intended to have the property to her sole use, that intention will prevail. 2 Bright on Husband and Wife 211. Though it seems that the intention to give her such an interest, in opposition to the legal rights of her husband, must be clear and unequivocal. Id. 206.
In the case under consideration, whether we look to the particular words used or the whole context of the will, the intention of the testatrix to exclude the marital rights of the husband, and secure the property to the separate use of the wife, is plainly apparent. In the first place, the property is given to trustees; which is a circumstance in favor of the intention to give it to the wife’s sejiarate use, though not of itself a sufficient evidence of such intention. 2 Roper 1415. In the second place, it is “ to be held by them in trust, only for the use and benefit” of the wife or her heirs. These words are at least as strong as some of those which, we have seen, have been held, per se, to create a trust for separate use. It is difficult to perceive any substantial difference between the words “ only for the use and benefit of the wife,” and the words, “for her sole use and benefit,” or the words “ for her own use and benefit, independent of any person.” In the third place, the testatrix expresses her “ will and desire to *429guard in the most ample manner against the imprudent sale or other disposition of the property” during the life of the wife; and for that purpose, wholly and solely confides it to the discretion of the trustees, in what manner the wife “ shall receive and enjoy the profits arising from the hire or other disposition of the slaves aforesaid.”
Here an intention is plainly indicated that neither the wife nor the husband should have a right to sell or otherwise dispose of the property; which is inconsistent with the idea of its being given, subject to his marital rights; in which case the jus disponendi would have been a necessary .incident. It is wholly and solely confided to the discretion of the trustees in what manner the wife (not the husband, nor even the husband and wife) “shall receive and enjoy the profits.” These are the very words which were used in Tyrrell v. Hope, 2 Atk. R. 558; and which the master of the rolls observed could admit of no other construction than that the property should be for the wife’s separate use. He asked to what end she should receive the profits if they were to be the husband’s property the next moment; and added, that the word “enjoy” was very strong to imply a separate use to the wife. 2 Bright 211. The intention to create a trust for the wife’s separate use is at least as plain in this case as is that of West v. West’s ex’ors, 3 Rand. 373, in which this court unanimously held that a separate estate was given. See also Scott v. Gibbon, 5 Munf. 86; Smith v. Smith’s adm’rs, 6 Id. 581; Markham v. Guerrant, 4 Leigh 279; Lewis v. Adams, 6 Id. 320; and Perkins’ trustee v. Dickinson, 3 Gratt. 335.
I am further of opinion that Mrs. Coupland has no power to alien her separate estate or any part of it. The jus disponendi is an inseparable incident of property held by a person who is sui juris. But nothing is now better settled than that it may be severed from *430the separate estate of a feme covert. 2 Bright, ch. vii, p. 274; Steedman v. Poole, 6 Hare’s R. 193, 31 Eng. Ch. R. 193; and other cases cited by Bright. In respect of her separate estate she is considered in equity as a feme sole. “ Her faculties as such and the nature and extent of them (says Lord Langdale,) are to be collected from the terms in which the gift is made to her, and will be supported by equity for her protection.”—“ If the gift be made to her sole and separate use without more, she has, during coverture, an alienable estate independent of her husband. If the gift be made for her sole and separate use, without power to alienate, she has during the coverture, the present enjoyment of an unalienable estate independent of her husband.”—“ The separate estate may, and often does, exist, without the restriction, but the restriction has no independent existence; when found, it is a modification of the separate estate, and inseparable from it.” Tullett v. Armstrong, 1 Beav. R. 1, 17 Eng. Ch. R. 132. “When the court first, established the separate estate, (says Lord Cottenham) it violated the laws of property between husband and wife; but it was thought beneficial, and it prevailed. It being once settled that a wife might enjoy separate estate as a feme sole, the laws of property attached to this new estate, and it was found, as part of such law, that the power of alienation belonged to the wife, and was destructive of the security intended for it. Equity again interfered, and by another violation of the laws of property, supported the validity of the prohibition against alienation.” Same Case, on appeal, 4 Mylne & Craig 377; 18 Eng. Ch. R. 405.
This is the doctrine in England. In the United States, the right to restrict the power of alienation of a separate estate is universally admitted. In many of the states it has even been held that the wife has no such power, unless it be given her by the instrument *431which creates the estate. It has been so held, it seems, in South Carolina, Pennsylvania, Tennessee and Mississippi. See the cases cited in the notes of Hare and - Wallace to White’s Equity Cases, 65 Law Libr. 370-378.
In the case of the Methodist Episcopal Church v. Jaques, 3 John. Ch. R. 77, Chancellor Kent was of opinion, that “instead of holding that the wife is a feme sole to all intents and purposes as to her separate property, she ought only to be deemed a feme sole, sub modo, or to the extent of the power clearly given by the settlement. Instead of maintaining that she has an absolute power of disposition unless specially restrained by 'the instrument, the converse of the proposition would be more correct, that she has no power but what is specially given and to be exercised only in the mode prescribed, if any such there be.”—“ Perhaps we may say, that if the instrument be silent as to the mode of exercising thé power of appointment or disposition, it intended to leave it at large to the discretion or necessities of the wife; and this is the most that can be inferred.” On appeal to the Court of errors this opinion was pronounced to be erroneous, and it was held that a feme covert may dispose of her separate estate as if she were a feme sole, unless specially restrained by the instrument under which she acquires it; and • that the specification of any particular mode of exercising her disposing power, does not deprive her of the right to pursue any other mode not expressly, or by necessary construction, negatived in the settlement. 17 John. R. 548. In Virginia, the right to restrain or interdict the power,'has been expressly recognized and affirmed in several cases. West v. West’s ex’or, 3 Rand. 373; Vizonneau v. Pegram, 2 Leigh 183 ; Williamson v. Beckham, 8 Leigh 20 ; Lee v. The Bank of the U. S. 9 Leigh 200. The only question seems to have been whether the specification of one mode of disposition in the settlement is an implied *432exclusion of the right to pursue any other: and that question seems not yet to be finally settled. Judge Tucker maintained the affirmative side of the question in the two cases last cited: and the decision of the first of the two cases, so far at least as he was concerned, was founded on that view. Judge Cabell, on the other hand, was decidedly of opinion that even in regard to personal property the weight of authority is the other way; but in regard to real estate, (which a feme covert may dispose of in the mode prescribed by the statute unless interdicted by the instrument which settles it upon her, and can dispose of only in that way unless authorized by such instrument to dispose of it in some other,) he maintained that the grant of authority to dispose of it in some other way does not, of itself, exclude the power to dispose of it in the statutory mode. He could not perceive the force of the argument which infers diminution of power from its extension; nor how the express grant of a power which the wife without such grant had not, can be made to take from her a power which she had, without the grant. He distinguished the case of Lee v. The Bank of the U. S. in which this opinion was given, from the case of Williamson v. Beckham, on the ground that in the latter an intention to exclude all other modes of alienation than that prescribed in the settlement was apparent upon its face. Judge Brockenbrough concurred in Judge Cabell’s opinion, which prevailed, the court being composed of three judges. See Woodson, trustee, v. Perkins, 5 Gratt. 345.
The right to restrain or interdict the power of alienation of a separate estate being thus established, the question now arises, whether such right was exercised by the testatrix in this case? I think that it was. It is not necessary that the power should be excluded in express terms. It may be excluded by implication. Its exclusion is often, if not generally, *433necessary to effectuate the objects of the settlement, and to protect the wife as well from her own weakness, as from the power and influence of her husband. The law therefore favors the intention to exclude it, and will give effect to such intention whenever it can be ascertained by a fair construction of the settlement. There can be no doubt, I think, of the intention of the testatrix in this case to exclude the power of alienation. Such a power would be inconsistent with the express terms, and the whole frame and purpose of the settlement. The testatrix expresses her wish and desire to guard in the most ample manner against the imprudent sale or other disposition, of the property during the life of the wife, and wholly and solely confides to the discretion of the trustees in what manner the wife shall receive and enjoy the profits of the property; which property, in the event of the death of the wife without an heir or heirs of her body, is directed to be given up to Grustavus A. Eose, or his heirs forever. Could plainer language have been used to show the intention of the testatrix that the wife should receive and enjoy only the profits, and should have no power to dispose of the property itself? Would not the existence of such a power be in conflict with the declared intention of the testatrix, not only in regard to the wife, but also in regard to Grustavus A. Eose ? Although the limitation to the latter may be void, it yet serves in part to show, if the fact be not otherwise sufficiently shown, that the power to dispose of the property was not intended to be given to the wife. It cannot be necessary to say any thing more on this branch of the subject.
If the power of disposition was not given by the will, it has not been acquired by any thing which has since happened in this case. It can arise, from no act or laches of the trustee; who, no more than the wife or her husband, can defeat the provisions of the settle*434ment. The possession of the husband and wife was consistent with the trust, and was a mode of enjoyment of the profits of the property which the trustees had a right to permit.
It results from what I have said, if it be well founded, that neither Coupland and wife nor Mrs. Coupland had any power to sell or convey the slave in controversy; and consequently that the plaintiff in error, who claims only under them, is not entitled to the slave. It now remains only to enquire whether the defendant in error is entitled.
The bequest was to three trustees jointly, of whom the defendant in error is the sole survivor. There can be no doubt but that the three trustees, if all alive, would be entitled to demand, recover and hold the slave in trust under the will. The interposition of trustees seems at one time to have been considered necessary to protect the wife’s separate interest. It has been long settled, however, that if no trustees be interposed by the settlement, the husband will be held in equity to be a trustee for the wife. Still, it is generally, if not always, better to have disinterested trustees; who will be appointed by a court of equity if necessary. The legal title remains in the trustees during the continuance of the trust; whether, in its general character, it be an active or a passive trust: for it is liable at any time to be stimulated to activity by any attempt to divert the property from the purposes of the trust. In this case a large discretion was given to the trustees in the management of the property. Though they were authorized, in their discretion, to permit the husband and wife to hold it, yet they had a right to take possession at any time, and it was their duty to do so whenever the safety of the property required it. Whether, the trust being joint, the defendant can alone perform it or not, the legal title to the property is in him by survivorship, and he *435has therefore a right to recover it at law. A right of action accrued to him for the slave in controversy at the time of the sale to the plaintiff in error, who became responsible for hires also from that time as a legal incident of property wrongfully withheld from the legal- owner. Whether the plaintiff in error is entitled to any, and if any, what relief in equity, is a question which it is unnecessary, and would be improper, to decide in this case.
I am for affirming the judgment.
The other judges concurred in the opinion of Mon-cure, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481307/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-22-00167-CV
IN THE INTEREST OF K.C. AND N.T., § On Appeal from the 158th District
CHILDREN Court
§ of Denton County (18-9648-158)
§ November 3, 2022
§ Opinion by Chief Justice Sudderth
JUDGMENT
This court has considered the record on appeal in this case and holds that the
trial court’s judgment should be vacated as void. We dismiss the Department’s suit
without prejudice to refiling and without prejudice to the trial court’s rendering a new
emergency order under Family Code Section 262.102.
.
SECOND DISTRICT COURT OF APPEALS
By /s/ Bonnie Sudderth
Chief Justice Bonnie Sudderth | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481323/ | ***********************************************
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***********************************************
DOUGLAS JAYNES v. COMMISSIONER
OF CORRECTION
(AC 44620)
Elgo, Suarez and DiPentima, Js.
Syllabus
The petitioner, who had been convicted of the crime of murder, sought a
writ of habeas corpus. The petitioner had previously filed numerous
habeas petitions that were either withdrawn or dismissed. The respon-
dent Commissioner of Correction filed a motion pursuant to statute
(§ 52-470 (d)) for an order to show cause as to why the petitioner’s
habeas petition should not be dismissed as a result of undue delay. The
petitioner did not dispute that the petition was untimely filed but claimed
that he suffered from a mental illness that impaired his ability to file a
habeas petition in a timely manner. The habeas court dismissed the
petition for the petitioner’s failure to demonstrate good cause to over-
come the statutory presumption of unreasonable delay. On the petition-
er’s certified appeal to this court, held:
1. This court declined to reach the merits of the petitioner’s claim that the
habeas court erred in dismissing his petition because it included a claim
of actual innocence, which, pursuant to § 52-470 (f), cannot be dismissed
for failure to meet the statutory deadline of § 52-470 (d), that claim
having been asserted for the first time on appeal: the habeas petition
did not use the phrase ‘‘actual innocence’’ and, at the show cause hearing,
because the petitioner did not assert a claim of actual innocence, the
court did not address it, instead, addressing the reason for the delay
on which the petitioner expressly relied, namely, claims of mental illness;
accordingly, the petitioner’s claim plainly reflected a strategic shift by
him to raise a new argument on appeal, and it would amount to nothing
more than an ambuscade of the habeas court for this court to consider
a newly raised argument that was neither raised by the petitioner nor
considered by that court at the time that the petitioner attempted to
demonstrate that the petition should not be dismissed as untimely.
2. The habeas court did not abuse its discretion by dismissing the habeas
petition, the petitioner having failed to demonstrate good cause for
an untimely filing pursuant to § 52-470 (e): the court found that the
petitioner’s testimony explaining his mental illness as the reason for
the delay consisted of bare assertions that, without more, did not over-
come the statutory presumption of unreasonable delay, and the record
contained ample support for the court’s conclusions, specifically, that,
during the show cause hearing, the petitioner stated that his mental
illness did not prevent from filing prior habeas petitions because he
received assistance in filing the prior petitions; moreover, the court
found that the petitioner’s testimony, insofar as he testified that his
mental illness or stress level was the reason for the delay in filing the
petition, was not credible, and, as a reviewing court, this court must
defer to the credibility findings of the habeas court based on its firsthand
observation of a witness’ conduct, demeanor, and attitude; furthermore,
even if the habeas court had found that the petitioner credibly testified
that he suffered from mental illness, it did not relieve the petitioner of
his burden of demonstrating that his delay in filing the petition was
attributable to his mental illness, which the petitioner failed to do.
Argued May 9—officially released November 8, 2022
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Oliver, J.; judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (petitioner).
Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Craig Nowak, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
SUAREZ, J. The petitioner, Douglas Jaynes, appeals,
following the granting of his petition for certification,
from the judgment of the habeas court dismissing his
petition for a writ of habeas corpus. The petitioner
claims that the habeas court erred in dismissing the
petition pursuant to General Statutes § 52-470 (e)
because (1) it includes an allegation of actual innocence
which, pursuant to § 52-470 (f), cannot be dismissed
for failure to meet the statutory time limit codified in
§ 52-470 (d), and (2) he demonstrated good cause for
the untimely filing of his petition under § 52-470 (d).1
We affirm the judgment of the habeas court.
The following facts and procedural history, as found
by the habeas court or otherwise undisputed in the
record, are relevant to the present appeal. On July 6,
1992, the petitioner was convicted, after a jury trial, of
murder in violation of General Statutes § 53a-54a (a)2
and sentenced to fifty-five years of incarceration. This
court affirmed the petitioner’s conviction on his direct
appeal. State v. Jaynes, 36 Conn. App. 417, 432, 650
A.2d 1261 (1994), cert. denied, 233 Conn. 908, 658 A.2d
980 (1995).
Thereafter, the petitioner filed his first habeas peti-
tion, which was denied. Subsequently, the petitioner’s
uncertified appeal to this court was dismissed, and our
Supreme Court denied the petitioner’s petition for certi-
fication to appeal from this court’s dismissal. Jaynes
v. Commissioner of Correction, 61 Conn. App. 404, 406,
764 A.2d 215, cert. denied, 255 Conn. 945, 769 A.2d
58 (2001). The parties agree that the petitioner filed
numerous additional habeas petitions that were either
withdrawn or dismissed. On August 7, 2019, as a self-
represented party, the petitioner filed the habeas peti-
tion at issue in this appeal.
On September 28, 2020, the respondent, the Commis-
sioner of Correction, filed a motion pursuant to § 52-470
(d) for an order to show cause as to why the petitioner’s
habeas petition should not be dismissed as a result of
undue delay. Specifically, the respondent asserts that,
pursuant to § 52-470 (d), the petitioner had until Octo-
ber 1, 2014, to file a habeas petition subsequent to a
judgment rendered on a prior petition challenging the
same conviction, and, therefore, the habeas petition had
to be dismissed unless the petitioner could demonstrate
good cause for the delay. On October 22, 2020, the
habeas court, Oliver, J., granted the motion for a show
cause hearing. On February 4, 2021, the habeas court
held a hearing on the respondent’s motion. At the hear-
ing, the petitioner did not dispute that his habeas peti-
tion was untimely. Instead, he sought to show that there
was good cause for the delay in filing the petition
because he suffered from a mental illness that impaired
his ability to file a habeas petition in a timely manner.
At the hearing, the petitioner testified that he had been
diagnosed as ‘‘paranoid schizophrenic’’ and had been
prescribed antidepressants. He claimed that his mental
illness left him ‘‘very confused and mixed up about a
lot of things . . . .’’ On cross-examination, however,
the petitioner admitted that his mental illness did not
prevent him from filing habeas petitions. Rather, he
claimed that his mental illness was ‘‘[s]ometimes’’ the
reason for withdrawing his prior petitions, but other
times it was due to his frustration with the legal system.
Following the hearing, in a memorandum of decision,
the habeas court dismissed the habeas petition for the
petitioner’s failure to demonstrate good cause to over-
come the statutory presumption of unreasonable delay
as established in § 52-470 (d) and (e). The habeas court
specifically stated that it took judicial notice of the
previous habeas filings and their dispositions, consid-
ered the evidence adduced at trial, and applied the
factors set forth in Kelsey v. Commissioner of Correc-
tion, 202 Conn. App. 21, 34–35, 244 A.3d 171 (2020),
aff’d, 343 Conn. 424, 274 A.3d 85 (2022). The habeas
court found that the testimony of the petitioner was
not credible. Additionally, the habeas court found that
the petitioner’s testimony regarding his mental illness
‘‘consisted of bare assertions.’’ Ultimately, the habeas
court found that the petitioner’s ‘‘assertions, without
more, rendered the petitioner’s evidence too loose and
equivocal to overcome the aforementioned statutory
presumption.’’ Thereafter, the petitioner sought certifi-
cation to appeal, which the habeas court granted. This
appeal followed. Additional facts will be set forth as
necessary.
I
The petitioner asserts, for the first time on appeal,
that the habeas court erred in dismissing his habeas
petition because it includes a claim of actual innocence,
which, pursuant to § 52-470 (f), cannot be dismissed
for failure to meet the statutory deadline of § 52-470 (d).
In response, the respondent avers that ‘‘the petitioner
never asserted a claim of actual innocence in his peti-
tion nor did he do so at the ‘show cause’ hearing.’’
Therefore, according to the respondent, ‘‘the habeas
court could not have abused its discretion with respect
to a claim that the petitioner never raised below.’’ We
agree with the respondent.
Our review of the habeas petition reveals, and the
petitioner does not appear to dispute, that in the petition
filed by the petitioner as a self-represented party, he
did not use the phrase ‘‘actual innocence.’’ In the space
provided for question five on the state supplied form
for bringing the habeas petition, which was utilized by
the petitioner in this case, the petitioner was asked to
set forth the reason why his conviction was illegal. The
petitioner wrote that ‘‘the arrest was unsupervised by
[the police],’’ he had an impaired mental state at the
time of trial, and he ‘‘was never given the chance at
[his] probable cause hearing to do questioning.’’3
The petitioner argues that it was unnecessary for
him to have used the phrase ‘‘actual innocence’’ in his
habeas petition, and that the habeas court should have
recognized a claim of actual innocence based on state-
ments in the habeas petition such as ‘‘I did not murder
the male’’ and ‘‘life is priceless.’’ The petitioner further
alleged that he did not own the clothes a witness
claimed the assailant was wearing, and that he was ‘‘in
a[n] after-hours place drinking around the time of the
incident.’’ The petitioner asserts that it is well estab-
lished that courts should not interpret habeas petitions
in a hypertechnical manner but should, instead, con-
strue pleadings broadly, and that ‘‘Connecticut courts
[are] to be solicitous of [self-represented] litigants . . .
when it does not interfere with the rights of other par-
ties.’’ (Internal quotation marks omitted.)
The respondent argues that the present claim is unre-
viewable because it was raised for the first time on
appeal and, therefore, the habeas court could not have
abused its discretion. In the alternative, the respondent
argues that, even if the petitioner relied on the existence
of an actual innocence claim at the show cause hearing,
the habeas petition does not contain such a claim. The
petitioner does not address the respondent’s arguments
with any authority, nor are we aware of any, that abro-
gates his obligation to preserve this claim for appellate
review by distinctly raising it before the habeas court.
We carefully have reviewed the transcripts of the
show cause hearing. At the hearing, the petitioner, then
represented by counsel, did not argue that the habeas
petition should not be dismissed because it included a
claim of actual innocence. Because the petitioner did
not assert an actual innocence claim at the show cause
hearing, the court did not address it. Instead, in its
order, the court addressed the reason for the delay
on which the petitioner expressly relied, namely, his
mental illness.
‘‘Our law is well settled that a party may not try its
case on one theory and appeal on another. . . . Argu-
ments asserted in support of a claim for the first time
on appeal are not preserved. . . . Our Supreme Court
has stated that shift[s] in arguments [on appeal are]
troubling because, as [the court] previously ha[s] noted,
to review . . . claim[s] . . . articulated for the first
time on appeal and not [raised] before the trial court,
would [be nothing more than] a trial by ambuscade of
the trial judge.’’ (Citations omitted; internal quotation
marks omitted.) Bharrat v. Commissioner of Correc-
tion, 167 Conn. App. 158, 181–82, 143 A.3d 1106, cert.
denied, 323 Conn. 924, 149 A.3d 982 (2016); see also
Bligh v. Travelers Home & Marine Ins. Co., 154 Conn.
App. 564, 577, 109 A.3d 481 (2015) (‘‘[o]rdinarily appel-
late review is not available to a party who follows one
strategic path at trial and another on appeal, when the
original strategy does not produce the desired result’’
(internal quotation marks omitted)).
We are persuaded that the petitioner’s claim, which
relies on an allegation of actual innocence, plainly
reflects a strategic shift by the petitioner to raise a new
argument on appeal. It would amount to nothing more
than an ambuscade of the habeas court for us to con-
sider this newly raised argument that was neither raised
by the petitioner nor considered by the court at the
time that the petitioner attempted to demonstrate that
the petition should not be dismissed as untimely.
Accordingly, we decline to reach the merits of this
claim.
II
The petitioner next claims that the habeas court erred
in dismissing the habeas petition because he demon-
strated good cause for the untimely filing of his petition
under § 52-470 (e). We are not persuaded.
The petitioner argues that, at the show cause hearing,
he presented sufficient evidence with respect to his
mental illness to establish good cause for the delay
under the four factors set forth in Kelsey v. Commis-
sioner of Correction, supra, 202 Conn. App. 34–35.4
Consistent with Kelsey’s analytical approach, the peti-
tioner argues: (1) his ‘‘mental health is outside of his
control, which causes him confusion [and] stress and
that his illness is severe,’’ and he lacked ‘‘control over
his mental health medication regime’’; (2) the record is
bare as to whether he or his counsel was the reason
for the untimely filing; (3) there was evidence of which
the habeas court took judicial notice, such as a decades
old diagnosis of mental illness, that supports a finding
that his mental illness was the cause of the delay; and
(4) although the habeas petition was filed almost five
years after the deadline, he has filed and withdrawn
numerous habeas petitions during that time period. The
petitioner argues further that the habeas court’s dis-
missal of the habeas petition he filed as a self-repre-
sented party is contrary to what he characterizes as
Connecticut’s ‘‘historic efforts to preserve the Great
Writ.’’
Additionally, the petitioner contends that the habeas
court abused its discretion because, he claims, ‘‘[his]
. . . significant mental health issues cannot reasonably
be disputed.’’ In support of his claim that his mental
illness constitutes good cause for the delay in filing the
petition, the petitioner asserts that the entirety of his
first habeas proceeding was related to his trial attor-
ney’s alleged failure to investigate issues related to his
mental illness, and he points to his ‘‘sprawling and at
times rambling [self-represented] petition’’ in the pres-
ent case.
The respondent argues that the habeas court did not
abuse its discretion in finding a lack of good cause for
the delay in filing the habeas petition. The crux of the
respondent’s argument is that the habeas court found
the petitioner’s testimony at the show cause hearing,
that his mental illness was the cause of delay, not to
be credible. This finding of fact, the respondent asserts,
cannot be disturbed by this court. Therefore, the
respondent argues that, on the basis of this finding, it
was reasonable for the habeas court to conclude that
there was no good cause for the delay.
We begin by setting forth the applicable standard of
review and legal principles that guide our resolution of
this claim. ‘‘[A] habeas court’s determination regarding
good cause under § 52-470 (e) is reviewed on appeal
only for abuse of discretion. Thus, [w]e will make every
reasonable presumption in favor of upholding the trial
court’s ruling[s] . . . . In determining whether there
has been an abuse of discretion, the ultimate issue is
whether the court . . . reasonably [could have] con-
clude[d] as it did.’’ (Internal quotations marks omitted.)
Kelsey v. Commissioner of Correction, 343 Conn. 424,
440, 274 A.3d 85 (2022).
‘‘[T]o rebut successfully the presumption of unrea-
sonable delay in § 52-470, a petitioner generally will be
required to demonstrate that something outside of the
control of the petitioner or habeas counsel caused or
contributed to the delay. . . . [I]n evaluating whether
a petitioner has established good cause to overcome
the rebuttable presumption of unreasonable delay in
filing a late petition under § 52-470, the habeas court
does not make a strictly legal determination. Nor is the
court simply finding facts. Rather, it is deciding, after
weighing a variety of subordinate facts and legal argu-
ments, whether a party has met a statutorily prescribed
evidentiary threshold necessary to allow an untimely
filed petition to proceed. This process is a classic exer-
cise of discretionary authority, and, as such, we will
overturn a habeas court’s determination regarding good
cause under § 52-470 only if it has abused the consider-
able discretion afforded to it under the statute.
‘‘In reviewing a claim of abuse of discretion, we have
stated that [d]iscretion means a legal discretion, to be
exercised in conformity with the spirit of the law and
in a manner to serve and not to impede or defeat the
ends of substantial justice. . . . In general, abuse of
discretion exists when a court could have chosen differ-
ent alternatives but has decided the matter so arbitrarily
as to vitiate logic, or has decided it based on improper
or irrelevant factors. . . . [Reversal is required only]
[i]n those cases in which an abuse of discretion is mani-
fest or where injustice appears to have been done . . . .
[A] habeas court’s determination of whether a petitioner
has satisfied the good cause standard in a particular
case requires a weighing of the various facts and circum-
stances offered to justify the delay, including an evalua-
tion of the credibility of any witness testimony. . . .
‘‘It is well settled that this court does not disturb the
factual findings of the habeas court unless they are
clearly erroneous. . . . [T]o the extent that factual
findings are challenged, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous . . . . [A] finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Citations omitted;
emphasis omitted; footnote omitted; internal quotation
marks omitted.) Ortiz v. Commissioner of Correction,
211 Conn. App. 378, 384–87, 272 A.3d 692, cert. denied,
343 Conn. 927, 281 A.3d 1186 (2022).
Bearing in mind our standard of review, we now
examine the decision of the habeas court. The habeas
court concluded that the petitioner ‘‘failed to demon-
strate good cause to overcome the statutory presump-
tion of unreasonable delay . . . .’’ Specifically, the
habeas court noted that it did not find the petitioner’s
testimony regarding his reasons for the delay to be
credible. Furthermore, the habeas court found that the
petitioner’s testimony explaining his mental illness as
the reason for the delay consisted of bare assertions
that, without more, did not overcome the statutory pre-
sumption.
The record contains ample support for the habeas
court’s conclusions. During his direct examination at
the show cause hearing, the petitioner testified that the
underlying petition was untimely because he was ‘‘going
through a whole lot of different issues . . . mentally
wise and physically.’’ The petitioner testified that he
was experiencing ‘‘stress’’ from being incarcerated. He
also testified that he was experiencing ‘‘pain and suffer-
ing . . . from what happened to [him] in 2017.’’5 He
testified that he was diagnosed with paranoid schizo-
phrenia and that he was taking medication. He testified
that he had been experiencing mental difficulties,
including ‘‘racing thoughts, delusions, hearing voices,’’
but that these issues had resolved when he received
treatment beginning one month prior to the show cause
hearing.
As the respondent points out, during the show cause
hearing the petitioner stated that his alleged mental
illness did not always explain his litigation history with
respect to filing habeas petitions. For example, during
his cross-examination by the respondent’s counsel, the
petitioner testified that his mental illness did not pre-
vent him from filing prior habeas petitions because he
received assistance in filing the prior petitions and did
not do it by himself. The petitioner testified, ‘‘I’m still
able to do it, but not without help.’’
During his redirect examination, the petitioner’s
counsel asked him whether his ‘‘mental health’’ was the
cause of his withdrawal of prior petitions. The peti-
tioner testified: ‘‘Sometimes. Sometimes. Not all of the
time. Sometimes I get so frustrated, the legal system,
and all I’ve been through that it’s best for me to fall
back rather than just, you know, just totally just give
up, you see. . . . [I]t’s just that sometime you got to
fall back. You have to fall back, you know. You have
to . . . fall back the stress . . . especially the stress
level. The stress level is not good. I just talked to the
doctor about that the other day.’’
The habeas court found that the petitioner’s testi-
mony, insofar as he testified that his mental illness, or
stress level, was the reason for the delay in filing the
petition, was not credible. As a reviewing court, we
must defer to the credibility findings of the habeas court
based on its firsthand observation of a witness’ conduct,
demeanor, and attitude. See David P. v. Commissioner
of Correction, 167 Conn. App. 455, 470, 143 A.3d 1158,
cert. denied, 323 Conn. 921, 150 A.3d 1150 (2016). The
court’s unassailable assessment of the petitioner’s
uncorroborated testimony concerning the reason for
his late filing supported its finding that the petitioner
had not proven good cause for the delay. The petitioner
has failed to demonstrate that the finding was not sup-
ported by the evidence or that, when considering the
evidence as a whole, that a mistake has been committed.
To the extent that the petitioner argues that his men-
tal illness cannot reasonably be disputed, we observe
that the court, in its decision, states that his ‘‘assertions,
without more, rendered [his] evidence too loose and
equivocal to overcome the . . . statutory presump-
tion’’ of unreasonable delay. Even if the habeas court
had found that the petitioner credibly testified that he
suffered from mental illness, it did not relieve the peti-
tioner of his burden of demonstrating that his delay in
filing was attributable to his mental illness. See Ortiz
v. Commissioner of Correction, supra, 211 Conn.
App. 388.
The petitioner did not provide the court with credible
evidence sufficiently linking the claimed mental illness
to the late filing. The petitioner’s reliance on his uncor-
roborated testimony, which was found not to be credi-
ble, is unavailing. Because the record contains ample
support for the habeas court’s conclusion, the habeas
court did not abuse its discretion in finding that the
petitioner did not establish good cause sufficient to
overcome the statutory presumption of unreasonable
delay.
We therefore conclude the habeas court did not err
by dismissing the petition for a writ of habeas corpus.
The judgment is affirmed.
1
General Statutes § 52-470 provides in relevant part: ‘‘(d) In the case of
a petition filed subsequent to a judgment on a prior petition challenging the
same conviction, there shall be a rebuttable presumption that the filing of
the subsequent petition has been delayed without good cause if such petition
is filed after the later of the following: (1) Two years after the date on which
the judgment in the prior petition is deemed to be a final judgment due to
the conclusion of appellate review or the expiration of the time for seeking
such review; (2) October 1, 2014; or (3) two years after the date on which
the constitutional or statutory right asserted in the petition was initially
recognized and made retroactive pursuant to a decision of the Supreme
Court or Appellate Court of this state or the Supreme Court of the United
States or by the enactment of any public or special act. For the purposes
of this section, the withdrawal of a prior petition challenging the same
conviction shall not constitute a judgment. The time periods set forth in
this subsection shall not be tolled during the pendency of any other petition
challenging the same conviction. Nothing in this subsection shall create
or enlarge the right of the petitioner to file a subsequent petition under
applicable law.
‘‘(e) In a case in which the rebuttable presumption of delay under subsec-
tion (c) or (d) of this section applies, the court, upon the request of the
respondent, shall issue an order to show cause why the petition should be
permitted to proceed. The petitioner or, if applicable, the petitioner’s coun-
sel, shall have a meaningful opportunity to investigate the basis for the delay
and respond to the order. If, after such opportunity, the court finds that the
petitioner has not demonstrated good cause for the delay, the court shall
dismiss the petition. For the purposes of this subsection, good cause
includes, but is not limited to, the discovery of new evidence which materially
affects the merits of the case and which could not have been discovered
by the exercise of due diligence in time to meet the requirements of subsec-
tion (c) or (d) of this section.
‘‘(f) Subsections (b) to (e), inclusive, of this section shall not apply to (1)
a claim asserting actual innocence, (2) a petition filed to challenge the
conditions of confinement, or (3) a petition filed to challenge a conviction
for a capital felony for which a sentence of death is imposed under section
53a-46a. . . .’’
2
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person . . . .’’
3
The petitioner attached to the completed state supplied form twenty-
eight handwritten pages that we have also considered as part of the petition
for a writ of habeas corpus. Because we do not reach the merits of the
petitioner’s claim that the petition, in substance, set forth a claim of actual
innocence, it is unnecessary for us to describe these pages in detail.
4
In Kelsey, this court identified the following nonexhaustive list of factors
to aid in determining whether a petitioner has satisfied the issue of good
cause: ‘‘(1) whether external forces outside the control of the petitioner
had any bearing on the delay; (2) whether and to what extent the petitioner
or his counsel bears any personal responsibility for any excuse proffered
for the untimely filing; (3) whether the reasons proffered by the petitioner
in support of a finding of good cause are credible and are supported by
evidence in the record; and (4) how long after the expiration of the filing
deadline did the petitioner file the petition.’’ Kelsey v. Commissioner of
Correction, supra, 202 Conn. App. 34–35. In Kelsey v. Commissioner of
Correction, supra, 343 Conn. 441–42, our Supreme Court adopted these
factors and, after a consideration of relevant legislative history, added that,
‘‘although . . . the legislature certainly contemplated a petitioner’s lack of
knowledge of a change in the law as potentially sufficient to establish good
cause for an untimely filing, the legislature did not intend for a petitioner’s
lack of knowledge of the law, standing alone, to establish that a petitioner
has met his evidentiary burden of establishing good cause. As with any
excuse for a delay in filing, the ultimate determination is subject to the same
factors previously discussed, relevant to the petitioner’s lack of knowledge:
whether external forces outside the control of the petitioner had any bearing
on his lack of knowledge, and whether and to what extent the petitioner
or his counsel bears any personal responsibility for that lack of knowledge.’’
(Footnote omitted.) Id., 444–45.
5
The petitioner did not articulate further what occurred to him in 2017. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481333/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Central Valley School District, :
Appellant :
:
v. : No. 1323 C.D. 2021
: SUBMITTED: October 11, 2022
Central Valley Education Association, :
PSEA/NEA :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: November 7, 2022
Central Valley School District appeals from an order of the Court of
Common Pleas of Beaver County denying the District’s petition to vacate the
arbitration award that sustained the grievance of Rebecca Hall and reinstated Hall to
her teaching position with the District. Based on our limited and highly deferential
standard of review, we affirm.
The facts as determined by the arbitrator are as follows.1 In the fall of
2019, Hall was a third grade teacher at Todd Lane Elementary School in Monaca,
1
It is well established that an “arbitrator is authorized to make findings of fact to inform his
interpretation of the [collective bargaining agreement].” Millcreek Twp. Sch. Dist. v. Millcreek
Twp. Educ. Support Pers. Ass’n, 210 A.3d 993, 1006 (Pa. 2019). “An arbitrator’s findings of fact
are not reviewable on appeal, and as long as he has arguably construed or applied the collective
bargaining agreement, an appellate court may not second-guess his findings of fact or
interpretation.” Coatesville Area Sch. Dist. v. Coatesville Area Teachers’ Ass’n/Pa. State Educ.
Ass’n, 978 A.2d 413, 415 n.2 (Pa. Cmwlth. 2009). See also Millcreek, 210 A.3d at 1014.
Pennsylvania, and had been employed by the District or one of its predecessors for
over 15 years. On or about October 20, 2019, the District became aware of a video
posted to the social media platform TikTok in which Hall appeared with her minor
daughter, a ninth grade student in the District at the time. The video lasted
approximately 15 seconds and was accompanied by a song with explicit lyrics,
including several offensive words and referencing a sexual act. Hall can be seen at
two separate points in the video lip-syncing several lines of the song and using
“suggestive hand and body motions.” Original Record (O.R.), Statement of Charges,
at 544. It is undisputed that the video was recorded while Hall was off duty in her
home, it was not made using any District equipment, and there is nothing in the video
identifying Hall as a District employee or utilizing any indicia of the District. It is
further undisputed that Hall instructed her daughter not to post the video to social
media after it was filmed. Once Hall learned that her daughter had, in fact, posted
the video to TikTok, Hall told her daughter to remove it but failed to take affirmative
steps to ensure its immediate removal.
Hall was provided a Loudermill hearing,2 after which she was
suspended without pay effective November 1, 2019. The District subsequently
issued a Statement of Charges formally charging Hall with immorality,
incompetency, intemperance, and willful neglect of duties in violation of Section
1122(a) of the Public School Code of 1949 (School Code)3 based upon her
appearance in the TikTok video. The Statement of Charges explained:
2
Under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), “due process
requires that a public employee must receive a pre-termination hearing.” Bonatesta v. N. Cambria
Sch. Dist., 48 A.3d 552, 554 n.3 (Pa. Cmwlth. 2012).
3
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1122(a). That section provides,
in pertinent part:
(Footnote continued on next page…)
2
You engaged in such unacceptable and outrageous
behavior when you engaged in the above referenced
inappropriate conduct, which was widely disseminated to
the general school community, which has cast the []
District and yourself in a negative light and portrayed
yourself as a negative role model for the students and
families of the [] District based upon your conduct and
behavior described herein.
O.R., Statement of Charges, at 545. The Statement of Charges also notified Hall
that the District would recommend to the District Board of School Directors that she
be dismissed from her teaching position. The School Board voted unanimously to
terminate Hall’s employment at its next meeting, and a Termination Notice was
issued to Hall on December 9, 2019.
The Association filed a grievance on Hall’s behalf alleging that the
District violated the parties’ collective bargaining agreement (CBA) by suspending
her without pay and subsequently terminating her employment without just cause.
The case proceeded to arbitration with hearings spanning multiple days, during
which both parties presented the testimony of multiple witnesses. Notably, the
District presented testimony from the following witnesses, all of whom were District
employees: Sam Cercone, the District’s Director of Athletics and Transportation;
Shawn McCreary, the High School Principal; Edward Eimiller, the District’s
The only valid causes for termination of a contract heretofore or
hereafter entered into with a professional employe shall be
immorality; incompetency; unsatisfactory teaching performance . . .
; intemperance; cruelty; persistent negligence in the performance of
duties; wilful neglect of duties; . . . on the part of the professional
employe[] . . . .
Id.
3
Director of Technology; Christina Feragotti, the Principal of Todd Lane Elementary
School where Hall worked; Erin Park, the District’s Special Education Director; and
Dr. Nicholas Perry, the District’s Superintendent. All of the District’s witnesses
testified that they believed Hall’s actions with respect to the TikTok video offended
the morals of the community. Hall testified on her own behalf, as did her daughter.
In addition, three of Hall’s friends testified that they were not offended by the video
and/or that they had no concerns about Hall’s ability to serve as a positive role model
following the video. Notably, two of Hall’s witnesses had lived in the District for
approximately 20 years.
The arbitrator issued an opinion and award on April 16, 2021,
recounting in extensive detail the testimony of each of the above witnesses. The
arbitrator ultimately found that the District did not establish just cause for Hall’s
suspension and termination and, therefore, sustained the grievance. More
specifically, he found that the District failed to meet its burden of establishing that
Hall’s actions offended the morals of the community, a requirement for the charge
of immorality under Section 1122(a) of the School Code. The arbitrator noted that
the only witnesses to testify on behalf of the District were its own employees, such
as administrators and teachers, rather than members of the School Board who are
elected by the community. Further, the arbitrator stressed that the District failed to
demonstrate that the video was widely disseminated in the community and that it
never would have been viewed absent the actions of Hall’s daughter, whom he
described as presenting “a nonchalant or indifferent attitude toward her mother’s
wishes and interests” at the hearing. Reproduced Record at 99a. He noted that while
Hall’s participation in the video may have been inappropriate or unprofessional, this
was not enough to demonstrate a violation of Section 1122(a) of the School Code.
4
The Award reinstated Hall to her position as a teacher with the District and directed
that she be made whole for all lost earnings, seniority, and benefits.
The District then petitioned the trial court to vacate the award setting
forth 15 bases for vacation, including that the arbitrator’s decision: does not reflect
a proper interpretation of the CBA; incorrectly applies the CBA’s definition of just
cause; does not satisfy the essence test; and is contrary to law because it creates a
new standard for immorality. In its October 25, 2021, opinion, the trial court
specified that it did not agree with the arbitrator’s holding that the District had not
presented substantial evidence of the moral values of the community because its
witnesses all held administrative positions in the District and, specifically, that it
failed to call any School Board members to testify. Nonetheless, the trial court found
substantial evidence to support the arbitrator’s determination based on the lack of
wide distribution of the video or publicity or community controversy surrounding it,
and the fact that nothing in the video could connect the participants with the district
or identify Hall as a teacher. We agree with this analysis. Simply put, it is not
enough to prove that an act was committed which had the theoretical potential to
offend community standards or to have a bad influence on students. Rather, the act
must be done in such a circumstance as to pose a significant likelihood of doing so.4
4
It is undisputed that to establish a charge of immorality under Section 1122(a) of the School
Code, a district must prove “(1) that the alleged immoral act actually occurred; (2) that the act
offends the morals of the community; and (3) that the act sets a bad example for students.” Sch.
Dist. of Phila. v. Jones, 139 A.3d 358, 365 (Pa. Cmwlth. 2016) [quoting McFerren v. Farrell Area
Sch. Dist., 993 A.2d 344, 353-54 (Pa. Cmwlth. 2010)]. Like the trial court, we interpret the
arbitrator’s determination as a finding that the video, because of its very limited dissemination, did
not, in fact, offend the community or set a bad example for students. As noted above, we are
bound by the factual findings of the arbitrator. Here, both the trial court and the arbitrator stressed
that while Hall participated in the filming of the video, she did so within her own home; she did
not identify herself as an employee of the District nor was any indicia of the District used or seen
(Footnote continued on next page…)
5
Stressing the deferential standard of review in grievance arbitration matters, the trial
court denied the District’s petition to vacate.
On appeal to this Court,5 the District argues that the trial court erred in
refusing to vacate the award because (1) the award fails to draw its essence from the
terms of the CBA and is not a rational interpretation of the CBA; (2) the arbitrator
failed to properly apply the negotiated and defined just cause provision of the CBA;
and (3) the arbitrator’s opinion and award created a new standard and requirements
for a school district to prove a charge of immorality under the School Code.
Because the trial court ably addressed the District’s claims we affirm
based on the well written opinion of the Honorable James J. Ross.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
Judge Wallace did not participate in the decision for this case.
in the video; Hall specifically instructed her daughter not to post the video to social media; and the
video never would have been seen if Hall’s daughter had obeyed her wishes.
5
In its brief the District specifies that its appeal is limited to issues surrounding the charge of
immorality. District’s Br. at 11.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Central Valley School District, :
Appellant :
:
v. : No. 1323 C.D. 2021
:
Central Valley Education Association, :
PSEA/NEA :
ORDER
AND NOW, this 7th day of November, 2022, based on the foregoing
opinion and the opinion of the Court of Common Pleas of Beaver County (C.C.P.
Beaver, No. 10676-2021, filed Oct. 25, 2021) (Ross, J.), appended hereto, we
AFFIRM the Order of the trial court.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481327/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Save Our Saltsburg Schools, :
Appellant :
:
v. :
:
River Valley School District, Rick :
Harper, individually, and in his :
capacity as an elected member of :
Defendant District’s board, Anthony :
Canzano, individually, and in his :
capacity, as an elected member of :
Defendant District’s board, Molly Stiles, :
individually, and in her capacity as :
an elected member of Defendant :
District’s board, Connie Constantino, :
individually, and in her capacity as :
an elected member of Defendant :
District’s board, Holly Gibson, :
individually, and in her capacity as :
an elected member of Defendant :
District’s board, Mary Whitefield, :
individually, and in her capacity as :
an elected member of : No. 1140 C.D. 2021
Defendant District’s board : Argued: October 11, 2022
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: November 7, 2022
Save Our Saltsburg Schools (SOSS) appeals from the September 29,
2021 order of the Court of Common Pleas of Indiana County (trial court). The trial
court sustained preliminary objections filed by the River Valley School District
(District) and six members of the School Board (Board Members) (together,
Appellees). The effect of the trial court’s order was to uphold Appellees’ decision
to close Saltsburg Middle-High School (Saltsburg High) and consolidate its students
into Blairsville Middle-High School (Blairsville High). Upon review, we affirm.
I. Procedural & Factual Background
SOSS is a group representing Saltsburg area students, parents,
community members, and business owners. Reproduced Record (R.R.) at 40a.
SOSS filed an initial complaint against the District on June 7, 2021. R.R. at 19a.1
The District filed preliminary objections on June 29, 2021, and SOSS filed a second
amended complaint (Complaint) on August 9, 2021, adding the Board Members as
defendants. R.R. at 18a & 26a. The following facts are taken from the Complaint.
Until 2021, the District had two middle-high schools, Saltsburg High
and Blairsville High. R.R. at 42a. The District’s mission statement declares that the
District “has an obligation to ensure that all [District] students will have equal access
to a high-quality education[.]” Id. In February 2020, the Board Members voted to
schedule a public hearing to discuss closing Saltsburg High. Id. at 43a. Such
1
SOSS previously filed a complaint against the District in federal court in May 2021; that
court dismissed SOSS’s federal equal protection claims with prejudice for lack of merit and
dismissed SOSS’s additional state law claims without prejudice in order for SOSS to refile with
the trial court. Save our Saltsburg Schools v. Blairsville-Saltsburg Sch. Dist., No. 2:21-cv-601
(W.D. Pa. June 1, 2021).
2
hearings are required by Section 780 of the Public School Code of 1949 (Public
School Code).2 24 P.S. § 7-780.
The Complaint alleges that the Board Members never considered the
alternative of keeping Saltsburg High open and closing Blairsville High, which is an
older building; that before the Section 780 hearing, some Board Members made
public statements about the proposed closure based on what SOSS characterizes as
faulty information; that SOSS asked the Board Members to provide more
information but the Board Members declined to do so; that Board Members
repeatedly indicated publicly before the hearing that the closure was moving
forward; and that the Board Members “did not care” about the impact of the closure
on Saltsburg High’s students. R.R. at 43a-44a.
The Section 780 hearing was held virtually, due to the COVID-19
pandemic, on January 13-14, 2021. R.R. at 44a. The Complaint states that the
hearing should have been an occasion for community input before a decision was
made, but instead began with a statement by the District’s superintendent that the
District planned to close Saltsburg High, convert it into a charter school for younger
students, and consolidate its students into Blairsville High. Id. Saltsburg students,
alumni, parents, business owners, and community members voiced opposition to the
plan, including the projected impact of lengthier commutes to Blairsville High on
Saltsburg area students’ educational and extracurricular experiences. Id. at 45a.
On April 9, 2021, SOSS provided the District with a report setting forth
similar and additional concerns. R.R. at 45a. Nonetheless, on April 22, 2021, the
Board Members voted to close Saltsburg High and proceed with the consolidation at
2
Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-
101 – 27-2702. Section 780 of the Public School Code was added by the Act of April 4, 1984,
P.L. 190, 24 P.S. § 7-780, effective September 1, 1984.
3
the end of the 2020-21 school year.3 Id. The Complaint states that in July 2021, the
District superintendent stated on a local radio show that the District was
commissioning a study and report on developing a new athletic facility. Id. at 46a.
The Complaint alleges that the Board Members improperly decided to
close Saltsburg High before the Section 780 hearing and without public commentary
or oppositional information. R.R. at 45a-46a. The Complaint adds that plans for a
new athletic facility were not discussed or voted on publicly by the Board, but that
those plans, rather than the best interests of students, formed the true motivation for
closing Saltsburg High. Id. at 47a. As such, SOSS believes its procedural due
process rights under the Pennsylvania Constitution were violated and that the Board
Members breached a fiduciary duty to SOSS and the Saltsburg community. Id. at
47a-49a. The Complaint requests a jury trial and seeks money damages and
injunctive and/or declaratory relief. Id. at 49a.
After SOSS filed the Complaint, Appellees renewed their preliminary
objections, asserting that the Complaint failed to establish a due process right to
education at the school of one’s choice, that no fiduciary duty existed between SOSS
and the Board Members, and that the Board Members were immune from SOSS’s
suit under both the doctrine of high public official immunity and Pennsylvania’s
Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. §§ 8541-8564.
Trial Ct. Op. at 6; R.R. at 31a. Argument was held before the trial court on
September 15, 2021. R.R. at 18a. On September 29, 2021, the trial court issued its
3
The only high school currently listed on the District’s website is River Valley High School
(formerly Blairsville High). There is also a River Valley Middle School next to the high school
and the District announced that the opening ceremony for a STEAM (Science, Technology,
Engineering, and Mathematics) Academy at the former Saltsburg High location would take place
on September 28, 2022. See https://www.rivervalleysd.org/ (last visited November 4, 2022).
4
opinion and order sustaining Appellees’ preliminary objections, after which SOSS
timely appealed to this Court. Id. at 18a & 26a-36a.
II. Discussion
In ruling on preliminary objections, this Court accepts as true all well-
pleaded allegations of material fact, as well as all inferences reasonably deducible
from those facts. Key v. Pa. Dep’t of Corr., 185 A.3d 421, 423 n.3 (Pa. Cmwlth.
2018). However, this Court need not accept unwarranted inferences, conclusions of
law, argumentative allegations, or expressions of opinion. Id. For preliminary
objections to be sustained, it must appear with certainty that the law will permit no
recovery. Id. Any doubt must be resolved in favor of the non-moving party. Id.
A. Procedural Due Process
Article I, section 1 of the Pennsylvania Constitution states that “[a]ll
men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.” PA. CONST. art. I, § 1. A plaintiff’s first hurdle in
maintaining a procedural due process challenge is to establish the deprivation of a
protected property or liberty interest. Miller v. Workers’ Comp. Appeal Bd. (Pavex,
Inc.), 918 A.2d 809, 812 (Pa. Cmwlth. 2007). Once a protected interest has been
identified, “the basic elements of procedural due process are adequate notice,
opportunity to be heard, and the chance to defend oneself before a fair and impartial
tribunal having jurisdiction of the case.” Lawson v. Pa. Dep’t of Pub. Welfare, 744
A.2d 804, 806-07 (Pa. Cmwlth. 2000).
5
Article III, section 14 of the Pennsylvania Constitution states: “The
General Assembly shall provide for the maintenance and support of a thorough and
efficient system of public education to serve the needs of the Commonwealth.” PA.
CONST. art. III, § 14. The right to free public education has been held to include due
process protection. Mullen v. Thompson, 155 F. Supp. 2d 448, 452 (W.D. Pa. 2001),
aff’d, 31 F. App’x 77 (3d Cir. 2002) (unreported).4 However, “a state law that
establishes purely procedural rules for the granting or denial of a benefit does not,
standing alone, create a constitutionally recognized liberty or property interest in that
benefit.” Mullen, 155 F. Supp. 2d at 452.
Section 780 of the Public School Code states: “In the event of a
permanent closing of a public school or substantially all of a school’s facilities, the
board of school directors shall hold a public hearing on the question not less than
three (3) months prior to the decision of the board relating to the closing of the
school.” 24 P.S. § 7-780.
In Mullen, the plaintiffs were Pittsburgh public school students. 155 F.
Supp. 2d at 450. The district’s superintendent and board failed to properly advise
the public or otherwise comply with Section 780 before voting to close the schools
the plaintiffs were attending, which led the plaintiffs to sue in federal court alleging
violations of both the United States and Pennsylvania Constitutions. Id. The federal
district court concluded that Section 780 is procedural in nature and places no
substantive limitations on school authorities’ discretion to close schools. Id. at 452
(citing Section 1311(a) of the Public School Code, 24 P.S. § 13-1311(a), which states
that a school board “may, on account of the small number of pupils in attendance, or
4
“Generally, decisions of federal district courts and courts of appeals are not binding on
this Court, . . . but they may have persuasive value. Unreported federal court decisions may also
have persuasive value.” Nagle v. Trueblue, Inc., 148 A.3d 946, 959 n.15 (Pa. Cmwlth. 2016).
6
the condition of the then existing school building, or for the purpose of better
graduation and classification, or for other reasons, close any one or more of the
public schools in its district[.]”) (emphasis added). This Court has explained that
Section 1311(a) . . . gives broad discretionary power to
school boards to close public schools within their districts.
The decision to close a school, therefore, is within a
board’s discretion unless its action is fraudulent or
arbitrary and capricious. Moreover, an equity court will
grant relief only if it can be clearly shown that the board
acted in such a manner. We must conclude, therefore, that
the appellants’ complaint was properly dismissed, for it is
clear to us as it was to the court below, that the complaint
alleges no facts which would justify a court in exercising
jurisdiction. The allegations do demonstrate a difference
of opinion as to the desirability of closing the Brown’s
Mill Elementary School; but, as we will reiterate, “Only in
those instances wherein arbitrariness, caprice or
wrongdoing characterize a board’s act will a court
interfere.”
Beegle v. Greencastle-Antrim Sch. Dist., 401 A.2d 374, 375 (Pa. Cmwlth. 1979)
(citations omitted).
Here, the trial court concluded that because of the inclusion of “[i]n the
event of a permanent closing of a public school” in Section 780, “a plan to close a
school, even in a preliminary stage, would necessarily exist prior to the scheduling
of a hearing.” R.R. at 30a. The trial court explained that the January 2021 Section
780 hearing “provided a forum for public opinion, comment, and the sharing of
information by both proponents and opponents of the plan[,]” but the actual
adjudication occurred in April 2021 when the Board formally voted to close
Saltsburg High. Id. Therefore, according to the trial court, SOSS’s Complaint failed
to plead a viable procedural due process challenge based on the hearing. Id. The
trial court added that SOSS had not pleaded an underlying protected interest, either,
7
because the right to a public education in Pennsylvania has never included the right
to education at the school of one’s choice. Id. (citing Mullen).
SOSS asserts that a Section 780 hearing is meant to provide the
community an opportunity to provide input and express concerns before the decision
is made to close a school. SOSS’s Br. at 11. SOSS argues that the District and
Board Members predetermined the closure of Saltsburg High for personal reasons,
including seeking new athletic facilities, and not in the best interests of the students
and community; therefore, the hearing was a “sham” and violated the procedural due
process rights of SOSS and the community. Id. at 11-13 (citing, inter alia, D’Angelo
v. Winter, 403 F. App’x 181, 182 (9th Cir. 2010) (opining that “[a] hearing with a
predetermined outcome does not satisfy due process”)).
Appellees respond that Section 780 sets forth procedural requirements
for school closures, all of which were followed here, and does not prohibit board
members from forming or even expressing opinions prior to the hearing. Appellees’
Br. at 8. They add that a Section 780 hearing cannot be scheduled without a vote,
which requires that board members take at least a tentative position before a hearing
can be held. Id. They observe that Section 780 hearings are not adjudicatory
proceedings, but rather vehicles for school boards to obtain community input before
voting. Id. They note, as did the trial court, that Section 780’s first phrase is “[i]n
the event of a permanent closing of a public school”; therefore, the statute itself
implies that some level of consensus towards closure has likely already been reached
prior to the hearing. Id. at 10. They explain that the superintendent’s opening
statement at the Section 780 hearing was the expression of a plan in the event the
Board voted to close Saltsburg High after the hearing, not a statement reflecting that
the matter had already been decided, which Appellees deny. Id. at 10-11. They add
8
that the gist of SOSS’s Complaint is not the Section 780 hearing, but the subsequent
vote to close Saltsburg High, which was within the District’s discretion and did not
violate SOSS’s due process rights because there is no right to public education at the
school of one’s choice. Id. at 5-7.
The trial court did not err in concluding that SOSS failed to assert an
established constitutional right subject to a due process challenge. In Mullen, the
federal district court found that Section 780 “establishes only a procedure to guide
school officials in the manner that schools are to be closed. Therefore, it does not
create for the students affected by the closure any constitutionally recognized
property interest in an education at that school.” Id. at 452. The district court added
that there is no federal due process right to a public education at the school of one’s
choice.5 Id. at 452-53. Although in Mullen the plaintiffs raised a substantive due
process challenge, for a procedural due process challenge like SOSS’s to succeed,
an underlying and established substantive right must still be asserted. See Penjuke
v. Pa. Bd. of Prob. & Parole, 203 A.3d 401, 418 (Pa. Cmwlth. 2019) (concluding
that the Prisons and Parole Code, 61 Pa.C.S. §§ 101-7301, vests a technical parole
violator with a “statutory entitlement to street time credit sufficient to constitute a
right deserving of protection under the Due Process Clause and the procedural
safeguards necessary to ascertain and confirm that the state-created right is not
arbitrarily abrogated[.]” (quotation marks omitted)).
SOSS is correct that a “sham” hearing with a predetermined outcome
violates procedural due process. SOSS’s Br. at 12-13 (citing, inter alia, D’Angelo,
5
Although constitutional protections provided by states may be greater than those at the
federal level, “the due process provisions of the United States and Pennsylvania Constitutions are
generally treated as coextensive. This Court’s due process analysis, therefore, is the same under
both federal and state law.” Kovler v. Bureau of Admin. Adjudication, 6 A.3d 1060, 1062 (Pa.
Cmwlth. 2010) (citation omitted).
9
Bakalis v. Golembeski, 35 F.3d 818 (7th Cir. 1994), Washington v. Kirksey, 811 F.2d
561 (11th Cir. 1987), and Matthews v. Harney County, 819 F.2d 889 (9th Cir. 1987)).
However, we agree with Appellees that this premise pertains to hearings that are
adjudicative in nature and in circumstances where procedural due process rights
have already been recognized, such as hearings in criminal proceedings or before
termination of civil employment. Appellees’ Br. at 9 n.3. As Appellees point out,
SOSS relies on cases involving criminal matters, prison disciplinary proceedings,
and hearings on termination of an individual’s employment. See SOSS’s Br. at 12-
13. In those instances, the right at issue and the hearing were directly correlated.
By contrast, nothing in Section 780 or related case law suggests that a
Section 780 hearing entails an established due process right to influence, much less
dictate, whether a district may close a public school. Districts have broad discretion
to close public schools and are only bound to “obtain community input at a duly
advertised public meeting at least three months before voting to permanently close
a school[.]” Save Our Sch. v. Colonial Sch. Dist., 628 A.2d 1210, 1213 (Pa. Cmwlth.
1993) (emphasis added). We therefore agree with the trial court that Section 780
hearings do not implicate procedural due process rights and conclude that the trial
court correctly sustained Appellees’ preliminary objection in this regard.
B. Breach of Fiduciary Duty
Our Supreme Court has set forth the contours of fiduciary relationships
as follows:
A fiduciary duty is the highest duty implied by law. A
fiduciary duty requires a party to act with the utmost good
faith in furthering and advancing the other person’s
interests . . . . This highest duty will be imposed only
10
where the attendant conditions make it certain that a
fiduciary relationship exists.
In some types of relationships, a fiduciary duty exists as a
matter of law. Principal and agent, trustee and cestui que
trust, attorney and client, guardian and ward, and partners
are recognized examples. . . .
Where no fiduciary duty exists as a matter of law,
Pennsylvania courts have nevertheless long recognized the
existence of confidential relationships in circumstances
where equity compels that we do so. Our courts have
found fiduciary duties in circumstances where the relative
position of the parties is such that the one has the power
and means to take advantage of, or exercise undue
influence over, the other. The circumstances in which
confidential relationships have been recognized are fact
specific and cannot be reduced to a particular set of facts
or circumstances. We have explained that a confidential
relationship appears when the circumstances make it
certain the parties do not deal on equal terms, but, on the
one side there is an overmastering influence, or, on the
other, weakness, dependence or trust, justifiably reposed.
Yenchi v. Ameriprise Fin., Inc., 161 A.3d 811, 819-21 (Pa. 2017).6 To prevail on
breach of fiduciary duty claims, a plaintiff must establish that a fiduciary or
confidential relationship existed between the plaintiff and the defendant, that the
defendant negligently or intentionally failed to act in good faith and solely for the
plaintiff’s benefit, and that the plaintiff suffered an injury caused by the defendant’s
breach of fiduciary duty. See Kaplan v. Cairn Terrier Club of Am. (Pa. Cmwlth.,
No. 218 C.D. 2017, filed June 26, 2017), slip op. at 5, 2017 WL 2729667, at *3
(unreported); see also Snyder v. Crusader Servicing Corp., 231 A.3d 20, 31 (Pa.
Super. 2020).
6
The trial court, SOSS, and Appellees have not distinguished between formal fiduciary
relationships and confidential relationships based on facts and equity. For purposes of this inquiry,
we will use the recognizable term “fiduciary.”
11
Here, the trial court construed SOSS’s claim as based on the District’s
mission statement that the District “has an obligation to ensure that all [District]
students will have equal access to a high-quality education[.]” R.R. at 42a. The trial
court cited federal cases stating that such statements are generally aspirational in
nature and therefore insufficient to create a fiduciary relationship. Id. The trial court
added that SOSS’s allegations also failed to aver that any individual students or
community members relied on or trusted the Board Members to the high level
embodied in a fiduciary relationship or that any Board Members received or were
motivated by personal gain, despite expressing an interest in upgraded athletic
facilities. Id. at 33a. The trial court therefore found the Complaint pleaded no
fiduciary relationship and, by extension, no breach of fiduciary duty on the part of
the Board Members. Id.
SOSS argues that a fiduciary relationship existed because the Board
Members were elected by District citizens to run the public schools, a role that entails
significant power, including the authority to close schools. SOSS’s Br. at 18. Once
the Board Members are elected and seated, the community cannot change or affect
the Board’s decisions. Id. Likewise, the community places complete trust in the
Board to act in the best interests of the community and its students. Id. SOSS asserts
that the Board Members breached their fiduciary duty and harmed the community
and students by closing Saltsburg High for personal gain, specifically the desire for
an enhanced football facility and program. Id. at 19. SOSS states that its claims are
not based on the District’s mission statement, but rather on the nature of the
relationship, and that the trial court mischaracterized its claims in this regard. Id. at
20-22.
12
Appellees respond that SOSS’s Complaint does not allege facts
sufficient to establish a fiduciary relationship or duty, much less a breach thereof.
Appellees’ Br. at 20-21. Appellees aver that fiduciary relationships are generally
direct and personal and cannot be extended to the connection between elected
officials and their constituents. Id. at 22 (citing Basile v. H & R Block, Inc., 52 A.3d
1202, 1211-12 (Pa. 2012), for the premise that confidential relationships are “not
amenable” to application to a non-individualized or unspecific class or group of
potential plaintiffs). Appellees assert that to the extent SOSS relies on the District’s
mission statement, such statements are aspirational rather than binding, and that
while SOSS now claims the trial court misstated its position, this was precisely the
argument SOSS made to the trial court. Id. at 21 n.10 (citing SOSS’s Complaint &
trial court brief in opposition to preliminary objections; R.R. at 42a-43a & 84a-85a).
Appellees again deny that the Board Members were motivated by or received
personal gain from closing Saltsburg High and that SOSS’s accusations are “mere
conjecture or speculation” unsupported by well-pleaded facts in the Complaint. Id.
at 22. Appellees criticize SOSS’s assertion of a fiduciary relationship as an attempt
to sidestep the extensive discretion regarding school closure placed in school boards
by Section 1311 of the Public School Code. Id. at 24-25.
SOSS’s Complaint asserted in Paragraph 12 that the Board Members
“had a fiduciary duty to the students and citizens of [the District] to act in the best
interests of each and every student of the [D]istrict to ensure that the students would
receive the best, safest and most efficient and effective education possible under the
circumstances.” R.R. at 41a. Paragraphs 16 and 17 quoted the mission statement
(“The [District] has an obligation to ensure that all [District] students will have equal
access to a high-quality education”) and asserted that the District had a fiduciary
13
duty to act in students’ best interests such that each receives “equal access to a high-
quality education.” Id. at 42a-43a. Paragraph 55 reiterated that the Board Members
have a fiduciary duty to act in students’ best interests and that the Board Members
breached that duty by voting to close Saltsburg High. Id. at 48a.
Whether SOSS’s assertion of a fiduciary relationship relies on the
District’s mission statement7 or the nature of the relationship between the
community and the elected Board members, the trial court did not err in finding no
basis in the law for such a relationship with regard to school closures. The extent to
which local school board members attain fiduciary status is limited to their capacity
to expend taxpayer funds to operate the schools. See Section 608 of the Public
School Code, 24 P.S. § 6-608 (providing that school officials shall be liable to
districts for public school funds expended outside purposes set forth in Public School
Code); Pa. Hum. Rels. Comm’n v. Sch. Dist. of Phila., 654 A.2d 96, 100 (Pa.
Cmwlth. 1995); see also Fegley v. Morthimer, 202 A.2d 125, 126-27 (Pa. Super.
1964) (defamation action against newspaper for asserting that plaintiff, a school
board member, breached fiduciary duty by overpaying public funds to buy property
from a political and personal ally). SOSS has made no allegations that Board
Members have improperly managed the District’s finances. Moreover, when school
board members are elected by a locality, their primary role may be the direction and
operation of schools in the best interests of students, but as stated above, they also
owe a fiscal duty to the community as a whole, and closure of a school, however
distressing to some, may be in the overall financial interest of the locality.
7
Federal cases suggest that mission statements, while largely aspirational and not binding,
may give rise to enforceable contracts if they constitute sufficiently specific promises. Vurimundi
v. Fuqua Sch. of Bus., 435 Fed. App’x 129, 133 (3d Cir. 2011) (discussing Minehan v. United
States, 75 Fed. Cl. 249, 260 (Fed. Cl. 2007)). However, SOSS has not alleged claims sounding in
contract. Laurel Rd. Homeowners Ass’n v. Freas, 191 A.3d 938, 949 (Pa. Cmwlth. 2018).
14
Moreover, the fiduciary relationship and duty SOSS posits with regard
to school closures conflicts with the clear legislative statements in Sections 1311 and
780 of the Public School Code. Local school boards must hold a properly noticed
public hearing at which the community may voice opposition to a proposed closure,
but regardless of that opposition, boards have significant discretion thereafter to vote
for and order a closure so long as the decision is not arbitrary, capricious, or
fraudulent. Mullen, 155 F. Supp. 2d at 452. The trial court correctly sustained
Appellees’ preliminary objection in this regard.8
III. Conclusion
In closing, we note and agree with the trial court’s expression at the end
of its opinion that it was sympathetic to SOSS’s desire to keep Saltsburg High open
and that it recognized the “impassioned efforts” SOSS took in that regard. R.R. at
36a. However, the trial court added that it was bound to apply the law to these facts
and sustain Appellees’ preliminary objections. As the trial court did not err in doing
so, we affirm.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
8
In light of concluding that the trial court correctly found the Board Members did not bear
a fiduciary duty to SOSS in this context, we do not reach the Board Members’ assertion of
immunity from SOSS’s breach of fiduciary duty claim.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Save Our Saltsburg Schools, :
Appellant :
:
v. :
:
River Valley School District, Rick :
Harper, individually, and in his :
capacity as an elected member of :
Defendant District’s board, Anthony :
Canzano, individually, and in his :
capacity, as an elected member of :
Defendant District’s board, Molly Stiles, :
individually, and in her capacity as :
an elected member of Defendant :
District’s board, Connie Constantino, :
individually, and in her capacity as :
an elected member of Defendant :
District’s board, Holly Gibson, :
individually, and in her capacity as :
an elected member of Defendant :
District’s board, Mary Whitefield, :
individually, and in her capacity as :
an elected member of : No. 1140 C.D. 2021
Defendant District’s board :
ORDER
AND NOW, this 7th day of November, 2022, the Order of the Court of
Common Pleas of Indiana County sustaining the preliminary objections of River
Valley School District and the individually named defendants and dismissing the
Complaint of Save Our Saltsburg Schools is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481332/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Drake Fleet, :
Appellant :
:
v. : No. 1025 C.D. 2021
: SUBMITTED: August 5, 2022
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: November 7, 2022
Licensee Drake Fleet appeals from an order of the Court of Common
Pleas of York County dismissing his appeal from a one-year suspension of his
operating privilege pursuant to Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S.
§ 1547(b)(1)(i),1 imposed by the Commonwealth of Pennsylvania, Department of
1
Section 1547(b)(1)(i) states:
(1) If any person placed under arrest for a violation of [S]ection 3802
[(relating to driving under the influence of alcohol or a controlled
substance)] is requested to submit to chemical testing and refuses to
do so, the testing shall not be conducted but upon notice by the
police officer, the [D]epartment shall suspend the operating
privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12
months.
(Footnote continued on next page…)
Transportation, Bureau of Driver Licensing because Licensee refused to submit to
chemical testing in connection with his arrest for driving under the influence of
alcohol or a controlled substance (DUI). Upon review, we affirm.
By notice mailed on October 2, 2020, the Department informed
Licensee that it was suspending his operating privilege for one year pursuant to
Section 1547(b)(1)(i) of the Vehicle Code for refusing a chemical test on September
16, 2020. Licensee appealed the suspension and the trial court held a de novo
hearing.
At the hearing, the Department presented the testimony of the arresting
officer, Trooper Dylan Adams of the Pennsylvania State Police, whom the trial court
found to be credible. Trooper Adams testified that he had been with the State Police
for over 4 years and had been involved in approximately 100 to 120 DUI arrests and
investigations. On September 16, 2020, Trooper Adams was on patrol driving
westbound on Dunkard Valley Road when he saw a black Nissan Ultima touch the
double yellow line once and then cross over the double yellow line twice while
negotiating curves. When the vehicle came to an intersection it failed to stop at the
stop sign, instead stopping beyond it within the crosswalk. Trooper Adams then
engaged his emergency lights and sirens and attempted to make a traffic stop;
however, the vehicle failed to stop and drove for approximately one mile before
stopping at Licensee’s residence.
Trooper Adams approached the car and ordered Licensee out of the
vehicle, but Licensee refused so Trooper Adams removed him from the vehicle.
Trooper Adams noticed that Licensee appeared “a little relaxed for the scenario[,]”
his eyes were bloodshot, and he tripped over his own feet when getting out of the
75 Pa.C.S. § 1547(b)(1)(i).
2
car. Notes of Testimony, 8/17/21 (N.T.) at 9. Trooper Adams also detected an odor
of marijuana emanating from both Licensee and the inside of the car.2
Based upon these circumstances Trooper Adams conducted a search of
Licensee’s vehicle. Counsel for Licensee objected to testimony regarding the results
of the search, arguing that because it was conducted without a warrant any evidence
found during the search was obtained unlawfully and in derogation of Licensee’s
protections against unreasonable search and seizure pursuant to Article 1, Section 8
of the Pennsylvania Constitution.3 The trial court overruled the objection and
Trooper Adams testified that during the search of Licensee’s vehicle he found rolling
papers on the front passenger floor; a scale in the rear passenger area; and a backpack
behind the driver’s seat which contained a clear mason jar with “marijuana crumbs.”
N.T. at 13. Trooper Adams explained that he was able to identify the substance as
marijuana through his training and experience with the State Police.
Trooper Adams then placed Licensee in his patrol car and transported
him to Central Booking for a blood test. After arriving at Central Booking, Trooper
Adams read the DL-26 form to Licensee verbatim, including the statement that
2
Trooper Adams explained that he was trained at the State Police Academy to identify the
odor of marijuana, and he was familiar with it through multiple DUIs involving marijuana and
arrests for possession of the drug.
3
Article I, Section 8 provides:
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things shall
issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by
the affiant.
Pa. Const. art I, § 8. While Licensee’s counsel also objected based upon the Fourth Amendment,
this ground has been abandoned on appeal. See Licensee’s Br. at 1.
3
Licensee was under arrest for DUI and warning that Licensee would lose his
operating privilege if he refused chemical testing. Trooper Adams then gave the
form to Licensee when he requested to read it for himself, after which Licensee
refused the blood test and refused to sign the DL-26 form. While Trooper Adams
was not able to remember Licensee’s exact words, he testified repeatedly that
Licensee refused the test. The Department also introduced into evidence a certified
packet of documents including Licensee’s driving history, the Department’s
suspension notice, and the DL-26 form read to Licensee and signed by Trooper
Adams, which noted Licensee’s refusal.4
For his part, Licensee testified that on the night in question, he called
his mother after realizing he was being followed, concerned about any interaction
with the police given that Licensee is African-American. She told Licensee to come
to the house and she and his father would make sure he was safe, and that is why
Licensee did not immediately pull his car over. Once parked at his residence,
Licensee heard aggressive banging on the car door and someone saying get out of
the car now. Licensee was then taken out of the vehicle and thrown on the ground.
While Trooper Adams handcuffed Licensee before searching his car, Licensee
claims that when he was placed in the patrol car he was not told he was under arrest
for DUI or that any testing would be done.
Licensee admits that right before entering the booking room Trooper
Adams told him that if he did not take the blood test right now his license would be
immediately suspended. He also admits that Trooper Adams read the DL-26 form
to him; however, Licensee asked to read the form himself because he looks at
4
While Licensee’s reproduced record includes the transcript of the trial court proceedings, it
does not include these documents. Further, Licensee’s reproduced record is not paginated pursuant
to Pa.R.A.P. 2173.
4
everything he signs. Licensee testified that he was confused, did not know what was
going on, and was reading the form really slowly. According to Licensee, he said
something along the lines of “do what you have to do,” after which Trooper Adams
took the form back and exited the room. N.T. at 47. Licensee claims he never said
no, he was not giving blood, and that his comment was intended as a consent to the
chemical test.
The trial court orally dismissed Licensee’s appeal on the record at the
conclusion of the hearing and subsequently entered an order to this effect. Licensee
then appealed to this Court. After receiving Licensee’s statement of errors
complained of on appeal (Statement), the trial court issued an opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a). Therein, the
trial court stated that there were reasonable grounds to arrest Licensee for driving
under the influence and to request that he submit to chemical testing given Trooper
Adams’ credible testimony. The trial court specifically credited Trooper Adams’
testimony that Licensee refused the test, even though he could not recall the exact
words used. Further, the trial court did not find credible Licensee’s claim that, in
response to the reading of the DL-26 form, Licensee stated “do what you have to
do.” Trial Court Opinion, 12/2/21, at 3. Notwithstanding, the trial court noted that
such a statement is not indicative of a positive response as Licensee “could have just
as likely been saying ‘I’m not going to give a sample, so do what you have to do.’”
Id. at 4.5
Before this Court, Licensee argues that the trial court erred in
determining that Trooper Adams had reasonable grounds to request a chemical test,
in part because it considered evidence that was allegedly obtained in violation of
5
We note that the trial court granted Licensee’s application for supersedeas and reinstated his
operating privilege pending this appeal.
5
Article I, Section 8 of the Pennsylvania Constitution. Licensee further maintains
that the trial court erred in finding that he was afforded a meaningful opportunity to
submit to a blood test and refused to do so, claiming his brief hesitation does not
constitute a refusal when considering the specific circumstances of the encounter.
Before delving into the merits, we must address the Department’s
contention that Licensee waived his argument regarding reasonable grounds and
Article I, Section 8 of the Pennsylvania Constitution because he failed to raise it in
his Statement. Licensee’s Statement provides the following four errors complained
of on appeal:
A. The [t]rial [c]ourt erred in dismissing the appeal of his
operating privilege[] because there was insufficient
evidence for the [c]ourt to find that dismissal of the appeal
and reinstating the suspension was appropriate based on
the record.
B. The [t]rial [c]ourt erred in finding that [Licensee] was
provided with a meaningful, reasonable, and sufficient
opportunity to make a knowing and conscious choice
between providing voluntary consent to a chemical test or
accepting the consequences that will follow from the
refusal because his reluctance to submit or brief hesitation
does not constitute refusal when viewing the specific
circumstances of the encounter.
C. The [t]rial [c]ourt erred when it determined that [Licensee]
refused to provide a chemical sample when [Licensee] in
fact did not say no to providing a sample and told the
Trooper to do what he had to do.
D. The [t]rial [c]ourt erred when it determined that the
protections of . . . Article I, Section 8 and the exclusionary
rule applied [sic] to civil proceedings.
O.R., Item No. 4, Statement of Errors.
6
The Department bases its argument on Pa.R.A.P. 1925(b)(4)(vii),
which provides: “Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.” The
Department’s argument, however, neglects the subparagraph immediately prior,
which states, in pertinent part: “Each error identified in the Statement will be deemed
to include every subsidiary issue that was raised in the trial court[] . . . .” Pa.R.A.P.
1925(b)(4)(v). Here, while the language used to frame the issues is not exactly the
same, Licensee’s first argument on appeal is subsidiary to issues A and D raised in
his Statement. This is especially true given the fact that Licensee argued in-depth
before the trial court that Trooper Adams lacked reasonable grounds to request the
chemical test because some of the evidence was obtained through a warrantless
search of his vehicle, in violation of Article I, Section 8. As such, we find that
Licensee did not waive this argument. See Desher v. Se. Pa. Transp. Auth., 212 A.3d
1179, 1185 (Pa. Cmwlth. 2019).
We now turn to the relevant law. Section 1547 of the Vehicle Code,
commonly referred to as the Implied Consent Law, permits chemical testing of
drivers under certain circumstances, including driving under the influence of alcohol
or a controlled substance. See 75 Pa.C.S. § 1547. Of note here, Section 3802(d)
precludes a licensee from operating a motor vehicle with “any amount” of a Schedule
I controlled substance, such as marijuana,6 in their system, or a metabolite thereof.
75 Pa.C.S. § 3802(d).
6
Marijuana is defined as a Schedule I controlled substance under Section 104(1)(iv) of The
Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as
amended, 35 P.S. § 780-104(1)(iv).
7
It is well established that to sustain a suspension of a licensee’s
operating privilege under Section 1547 of the Vehicle Code, the Department bears
the burden of establishing that the licensee:
(1) was arrested for DUI by a police officer with
reasonable grounds to believe the licensee was operating a
vehicle while under the influence of alcohol or a controlled
substance; (2) was requested to submit to chemical testing;
(3) refused to submit to chemical testing; and, (4) was
warned by the officer that h[is] license will be suspended
if []he refused to submit to chemical testing.
Park v. Dep’t of Transp., Bureau of Driver Licensing, 178 A.3d 274, 280 (Pa.
Cmwlth. 2018). The test for whether an officer had reasonable grounds 7 to believe
that a licensee was operating a vehicle while under the influence is not very
demanding, and it is not necessary for the officer to be correct in his belief. Gammer
v. Dep’t of Transp., Bureau of Driver Licensing, 995 A.2d 380, 384 (Pa. Cmwlth.
2010). Reasonable grounds are established when “a person in the position of the
police officer, viewing the facts and circumstances as they appeared at the time,
could have concluded that the [licensee] was operating the vehicle while under the
influence.” Banner v. Dep’t of Transp., Bureau of Driver Licensing, 737 A.2d 1203,
1207 (Pa. 1999). While there is no set list of behaviors that must be exhibited for an
officer to have reasonable grounds for making a DUI arrest, case law has identified
factors including swaying, staggering or falling down; slurred speech; uncooperative
behavior; glassy or bloodshot eyes; and the odor of alcohol. See, e.g., Farnack v.
Dep’t of Transp., Bureau of Driver Licensing, 29 A.3d 44, 48 (Pa. Cmwlth. 2011);
Pritchett v. Dep’t of Transp., Bureau of Driver Licensing, 267 A.3d 618, 622 (Pa.
7
“Whether reasonable grounds exist is a question of law reviewable by the court on a case by
case basis.” Banner v. Dep’t of Transp., Bureau of Driver Licensing, 737 A.2d 1203, 1207 (Pa.
1999).
8
Cmwlth. 2021). Moreover, an “arresting officer may rely on behavior that indicates
the presence of an entirely different chemical, such as a controlled substance, in
determining whether he has reasonable grounds to request a[] . . . blood test.”
Farnack, 29 A.3d at 48; see also Pritchett, 267 A.3d at 622 (noting the licensee
smelled of marijuana).
Here, even without considering the evidence obtained during the search
of Licensee’s vehicle, Trooper Adams had ample reason to believe that Licensee
was under the influence of alcohol or a controlled substance. Trooper Adams
credibly testified that Licensee’s vehicle touched and then crossed the double yellow
line twice; failed to stop at a stop sign, instead coming to rest within a crosswalk;
and failed to stop for more than a mile after Trooper Adams engaged his emergency
lights and siren.8 Additionally, Trooper Adams detected the odor of marijuana
coming from Licensee, and noted that his eyes were bloodshot and he was unusually
relaxed given the circumstances. Finally, Licensee tripped over his own feet while
exiting his vehicle.9 The trial court specifically found Trooper Adams’ testimony to
be credible. Questions of credibility are for the trial court to resolve as fact-finder,
and we will not disturb those determinations on appeal. Factor v. Dep’t of Transp.,
Bureau of Driver Licensing, 199 A.3d 492, 497 (Pa. Cmwlth. 2018). Based upon
8
Even if Licensee’s stated reasons for failing to stop until he reached his home were credited,
Trooper Adams’ perception of Licensee’s behavior is what determines his reasonable belief of
Licensee’s condition, not Licensee’s motives of which Trooper Adams was not aware.
9
Licensee maintains that he did not trip and was not unsteady on his feet, pointing to video
footage from Trooper Adams’ patrol car for support. First, we note that the trial court credited the
testimony of Trooper Adams in this regard, and not that of Licensee. Moreover, as noted in this
Court’s Order dated March 4, 2022, and our Memorandum and Order issued May 13, 2022, the
video from Trooper Adams’ patrol car was never introduced, let alone admitted into evidence
before the trial court. As such, it is not part of the record in this matter and was not considered in
our ruling. See Pa.R.A.P. 1921; Denver Nursing Home v. Dep’t of Pub. Welfare, 552 A.2d 1160
(Pa. Cmwlth. 1989).
9
these circumstances, Trooper Adams had reasonable grounds to believe Licensee
was driving under the influence of marijuana and to request the chemical test even
without considering what was found during the search of Licensee’s vehicle. Given
this holding, we decline to reach Licensee’s argument that the search of his vehicle
was unconstitutional and any evidence obtained therefrom should have been
excluded. See Commonwealth v. Herman, 161 A.3d 194, 209 (Pa. 2017) (noting
“the sound tenet of jurisprudence that courts should avoid constitutional issues when
the issue at hand may be decided upon other grounds”).
Next, we turn to Licensee’s claim that he did not refuse the chemical
test. “The question of whether a licensee refuses to submit to a chemical test is a
legal one, based on the facts found by the trial court.” Factor, 199 A.3d at 496.
Once a police officer provides the implied consent
warnings to a [licensee], the officer has done all that is
legally required to ensure the motorist is fully advised of
the consequences of h[is] failure to submit to chemical
testing. All that is required is that the officer read the
warnings to the licensee and that the licensee be given a
meaningful opportunity to comply with the Implied
Consent Law.
Park, 178 A.3d at 281. Of particular note, “Pennsylvania courts have long and
consistently held that anything less than an unqualified, unequivocal assent to submit
to chemical testing constitutes a refusal to consent thereto.” Factor, 199 A.3d at
497. Further, we must view the evidence in a light most favorable to the Department
as the party that prevailed before the trial court. Bradish v. Dep’t of Transp., Bureau
of Driver Licensing, 41 A.3d 944, 945 n.3 (Pa. Cmwlth. 2012).
Here, Licensee does not dispute the fact that Trooper Adams read him
the DL-26 Form. Licensee also admits that Trooper Adams gave him the form to
10
read for himself upon request, and that Trooper Adams told him that if he did not
submit to the chemical test his license would be immediately suspended. As such,
Trooper Adams did what was legally required with respect to the implied consent
warnings. See Park; see also Grogg v. Dep’t of Transp., Bureau of Driver Licensing,
79 A.3d 715, 719 (Pa. Cmwlth. 2013) (officer not required to spend time cajoling
licensee or waiting for him to change his mind). Licensee’s argument that he was
confused and was merely trying to clarify his rights by requesting to read the DL-26
Form himself is unavailing since “officers have no duty to ensure that a licensee
understands the consequences of refusing a chemical test.” McKenna v. Dep’t of
Transp., Bureau of Driver Licensing, 72 A.3d 294, 300 (Pa. Cmwlth. 2013) (further
noting that DL-26 Form “does not generate confusion” and “contains sufficient
information upon which a licensee can base a decision as to whether to submit to
testing”); see also Grogg, 79 A.3d at 719 (officers have no duty to ensure licensee
understands the warnings).
More importantly, Licensee failed to give an unqualified, unequivocal
assent to chemical testing. While Trooper Adams could not recall the exact response
Licensee provided, he repeatedly testified that Licensee refused to submit to the
chemical test, and his notations made on the DL-26 Form at the time of the incident
support this statement. See Factor, 199 A.3d at 497-98 (finding no abuse of
discretion in trial court’s determination that the licensee refused to consent where
officer could not recall the exact words used but testified repeatedly that it was a
refusal). Licensee’s arguments gloss over the fact that the trial court credited
Trooper Adams’ testimony that he refused the test, and specifically rejected
Licensee’s claim that he consented by saying something along the lines of “do what
you have to do.” As such, there are no credible facts of record to support Licensee’s
11
argument that he verbally consented to the chemical test or that his “overall conduct
demonstrated an overwhelming willingness to assent to testing.” Licensee’s Br. at
6. We decline Licensee’s request to reweigh the evidence presented and find no
merit in his argument that the trial court erred in this regard. See Factor.10
For the above reasons, the trial court properly denied Licensee’s license
suspension appeal. Accordingly, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
Judge Wallace did not participate in the decision for this case.
10
We note that Licensee’s reliance upon Petrocsko v. Department of Transportation, Bureau
of Driver Licensing, 745 A.2d 714 (Pa. Cmwlth. 2000) is misplaced as that case is factually
distinguishable. Petrocsko involved a licensee who initially consented to chemical testing after
being arrested for DUI, but subsequently became agitated and stated he would not do so when
confronted with a request from hospital staff to sign a form releasing the hospital from liability.
Here, Licensee did not initially consent to the chemical test, nor was he presented with a form to
sign other than the DL-26 Form.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Drake Fleet, :
Appellant :
:
v. : No. 1025 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 7th day of November, 2022, the order of the Court of
Common Pleas of York County in the above-captioned matter is hereby
AFFIRMED, and the suspension of Drake Fleet’s operating privilege, imposed by
the Commonwealth of Pennsylvania, Department of Transportation, Bureau of
Driver Licensing, is hereby REINSTATED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481328/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Estate of William R. :
Armor and the Armor Family Trust :
:
: No. 1241 C.D. 2021
Appeal of: Department of Revenue, : Submitted: October 11, 2022
Inheritance Tax Division :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: November 7, 2022
The Department of Revenue, Inheritance Tax Division (Department) appeals
the order of the Westmoreland County Court of Common Pleas (orphans’ court),
dated September 28, 2021, and entered October 4, 2021, which reversed an order of
the Department’s Board of Appeals (Board). The Board’s order denied a written
protest David W. Armor (Executor) filed challenging the Department’s assessment
of inheritance tax on a transfer of property held in trust between his parents, William
R. Armor (Husband) and Josephine S. Armor (Wife) (collectively, the Armors). The
Department argues Section 2107(c)(7) of the Inheritance and Estate Tax Act (Act)1
requires the imposition of tax. This Court recently addressed a similar dispute in In
1
Act of March 4, 1971, P.L. 6, as amended, added by Section 36 of the Act of August 4, 1991,
P.L. 97, No. 22 (Act 22), 72 P.S. § 9107(c)(7).
re Estate of Potocar, ___ A.3d ___ (Pa. Cmwlth. No. 662 C.D. 2020, filed
September 30, 2022) (en banc). Based on that decision, we affirm.
I. Background and Procedural History
The Armors created the Armor Family Trust (Trust) on August 17, 2004. The
Armors expressly created the Trust to qualify as a “grantor trust” under Section 676
of the Internal Revenue Code, 26 U.S.C. § 676.2 Reproduced Record (R.R.) at 48a.
In addition, the Trust provided that the Armors would be the trustors and trustees of
the Trust, and that property transferred to the Trust “shall be held by the [t]rustee[s]
for the benefit of the [t]rustors as tenants by the entireties.” Id. at 48a-49a. The
Trust granted the Armors power to revoke or amend the Trust, invade the Trust
principal, and transfer portions of the trust estate to others during their joint lifetimes.
If the Armors revoked all or part of the trust estate, the property subject to revocation
would “revert to both [t]rustors as joint tenants with right of survivorship.” Id. at
49a.
The Armors executed a First Amendment to the Trust on April 17, 2015. The
2015 amendment changed the revocation provision in the Trust to indicate that, if
the Armors revoked all or part of the trust estate, the property subject to revocation
would “revert to both [t]rustors as tenants by the entireties.” Id. at 35a. The 2015
amendment also eliminated language in the Trust providing for the option to create
a separate trust if one of the Armors died and the “[s]urviving [s]pouse effectively
disclaims all of his or her beneficial interest or interests in all or any specific portion
of the [t]rust [e]state comprising the [d]eceased [s]pouse’s interest.” Id. at 51.
2
Section 676 provides, in relevant part: “The grantor shall be treated as the owner of any portion
of a trust . . . where at any time the power to revest in the grantor title to such portion is exercisable
by the grantor or a non-adverse party, or both.” 26 U.S.C. § 676(a).
2
Husband died on June 6, 2016. Executor filed a Pennsylvania inheritance tax
return on September 8, 2017,3 which listed property totaling $3,606,143, the large
majority of which was held in the Trust. The return indicated that the property was
subject to a spousal tax rate of 0% and, thus, that no tax was due. On January 23,
2018, the Department issued a notice of inheritance tax appraisement, allowance or
disallowance of deductions, and assessment of tax. The notice divided the property
disclosed on the return, indicating $465,184 was subject to the spousal tax rate of
0%, but $3,140,959 was subject to the 15% rate that applied to all persons who did
not qualify for a lower rate by virtue of a specified family relationship. This resulted
in a tax due of $471,143.85, plus interest and penalties of $17,517.13, for a total of
$488,660.98.
The Department’s notice explained this assessment by citing a Trust provision
that enabled the trustee to “distribute principal to anyone during the lifetime of the
surviving spouse.” Id. at 5a. The notice stated: “In the absence of a request for a
future interest compromise, the Department has the right to assess tax at the highest
rate in the chain of potential distributions. Therefore, the tax has been assessed at
15% . . . .” Id.
Executor filed a written protest with the Board.4 He argued that all the Trust’s
property belonged to Wife, that no one other than Wife had an interest in the Trust,
and that Wife could amend or revoke the Trust at will. Thus, Executor argued Trust
3
Husband died testate. The Register of Wills granted letters testamentary to Executor and admitted
Husband’s will to probate on October 19, 2017, after the filing of the inheritance tax return.
4
The documentation relating to the protest to the Board, including the Board’s decision and order,
does not appear in the original record. The documentation does appear in the reproduced record,
however. Because the documentation’s accuracy is not in dispute, we consider it for the limited
purpose of describing the history of this matter. See Commonwealth v. Brown, 52 A.3d 1139, 1145
n.4 (Pa. 2012) (citing Commonwealth v. Killen, 680 A.2d 851, 852 n.5 (Pa. 1996)).
3
property was Wife’s “sole and separate property.” Id. at 3a. Because Pennsylvania
does not assess inheritance tax on transfers of property between spouses, he asserted,
the Department’s imposition of tax was improper.
On November 13, 2019, the Board issued a decision and order, denying the
protest. The Board cited Section 2107(c)(5) of the Act, which imposes inheritance
tax on transfers made during a transferor’s life and without adequate consideration,
if the transferor reserved for life or for a period not ending before death “possession
or enjoyment of, or the right to the income from, the property transferred, or the
right, either alone or in conjunction with any person not having an adverse interest,
to designate the persons who shall possess or enjoy the property transferred or the
income from the property . . . .” 72 P.S. § 9107(c)(5). The Board relied on portions
of the Trust providing that the trustee pay to the trustors the entire net income of the
Trust and as much of the Trust principal as they request, and that the trustors could
direct the trustee to transfer Trust property to others. Because Husband was both a
trustee and a trustor, the Board asserted, he had “the possession or enjoyment of, or
the right to the income from, all the Trust assets during his lifetime.” Id. at 82a.
Further, the Board reasoned, Husband could “essentially distribute the entire Trust”
to anyone at any time, such that “there is no way to quantify the range of possible
scenarios.” Id. The Board concluded it was appropriate to assess inheritance tax at
a rate of 15%, “the highest rate in the chain of potential beneficiaries.” Id.
Executor appealed the Board’s decision to the orphans’ court.5 Pertinently,
he argued there were several provisions in the Act “overriding” Section 2107(c)(5).
5
Although we refer to Executor throughout this opinion as the person challenging the assessment
of inheritance tax, the pleadings are somewhat inconsistent in this regard. Executor filed the initial
inheritance tax return, but it is not clear whether he had direct involvement with the protest to the
Board. R.R. at 1a-3a, 10a. The appeal to the orphans’ court lists the appealing parties as Executor
(Footnote continued on next page…)
4
According to Executor, these included Section 2111(m) of the Act.6 That section,
with limited exception, exempts from inheritance tax “[p]roperty owned by husband
and wife with right of survivorship . . . .” 72 P.S. § 9111(m). Executor also cited
Section 2113 of the Act,7 which provides deferred tax treatment for “sole use trusts.”
A transferor creates a “sole use trust” by transferring “property for the sole use of
the transferor’s surviving spouse during the surviving spouse’s entire lifetime . . . .”
72 P.S. § 9113(a). Finally, Executor cited Section 2116(1.1)(ii) of the Act,8 setting
the tax rate at 0% for “the transfer of property passing to or for the use of a husband
or wife . . . .” 72 P.S. § 9116(1.1)(ii). Executor argued once again that an assessment
of inheritance tax was improper because Wife had “complete control and ownership”
of the property in the Trust. R.R. at 102a, 144a.
in his capacity as executor of Husband’s estate, and both Executor and Wife in their capacities as
the co-trustees of the Trust. Id. at 86a, 92a. Wife reportedly appointed Executor as co-trustee after
Husband’s death. Id. at 93a.
Section 2136 of the Act, added by Act 22, 72 P.S. § 9136, governs who is responsible for
filing an inheritance tax return. It provides that the “personal representative of the estate of the
decedent” must file a tax return as to any of the decedent’s property “administered by him and
additional property which is or may be subject to inheritance tax of which he shall have or acquire
knowledge.” 72 P.S. § 9136(a)(1). The transferee of any property “upon the transfer of which
inheritance tax is or may be imposed” must also file a tax return, “including a trustee of property
transferred in trust,” but “[n]o separate return need be made by the transferee of property included
in the return of a personal representative.” 72 P.S. § 9136(a)(2). Sections 2186 and 2188 of the
Act, added by Act 22, 72 P.S. §§ 9186, 9188, govern protests and appeals to the orphans’ court.
These sections provide that “[a]ny party in interest, including the Commonwealth and the personal
representative” may challenge the Department’s tax assessment. 72 P.S. §§ 9186(a), 9188(a).
Here, because Executor filed the tax return and appears to have been the primary individual acting
on behalf of Wife and the Trust during the proceedings, we refer to him as the appellee.
6
Added by Act 22, 72 P.S. § 9111(m).
7
Added by Section 35 of the Act of June 16, 1994, P.L. 279, 72 P.S. § 9113.
8
Added by Act 22, 72 P.S. § 9116(1.1)(ii).
5
The Department responded to Executor’s appeal, contending that the “only
way” he could have avoided inheritance tax was by deferring it through a “sole use
trust” under Section 2113. Id. at 120a. The Department further contended, however,
that the Trust did not meet the requirements to be a “sole use trust.” The Department
emphasized Section 2102 of the Act,9 defining “transfer of property for the sole use”
as “[a] transfer to or for the use of a transferee if, during the transferee’s lifetime, the
transferee is entitled to all income and principal distributions from the property and
no person, including the transferee, possesses an inter vivos power of appointment
over the property.” 72 P.S. § 9102. The Department noted that Wife retained an
inter vivos power of appointment. The Department proposed that tax was due under
Section 2107(c)(7), which imposes tax on transfers made during a transferor’s life
and without adequate consideration, if, relevantly, “the transferor has at his death,
either in himself alone or in conjunction with any person not having an adverse
interest, a power to alter, amend or revoke the interest of the beneficiary . . . .” 72
P.S. § 9107(c)(7).
By order dated September 28, 2021, and entered October 4, 2021, the orphans’
court reversed the Board. The orphans’ court did not provide a thorough explanation
of its reasoning but, after summarizing the parties’ arguments, noted simply that it
was “constrained to agree with” Executor, and that it must “follow the established
legal principles that are applicable to this particular fact situation.” R.R. at 181a.
Thus, the court concluded no inheritance tax was due.
The Department filed an appeal to this Court. The orphans’ court directed the
Department to submit a concise statement of errors complained of on appeal, and the
Department complied. On appeal, the Department once again argues that the Trust
9
Added by Act 22, 72 P.S. § 9102.
6
is not a “sole use trust” under Section 2113 and, therefore, is subject to inheritance
tax under Section 2107(c)(7).
II. Discussion
The Department’s appeal requires us to interpret the Act and consider whether
the assessment of inheritance tax was improper. Statutory interpretation presents a
question of law for which our standard of review is de novo and our scope of review
is plenary. Meyer v. Cmty. Coll. of Beaver Cnty., 93 A.3d 806, 813 (Pa. 2014) (citing
Dechert LLP v. Commonwealth, 998 A.2d 575, 579 (Pa. 2010)). That is, we do not
defer to the orphans’ court when making a decision and may review the entire record
on appeal. Mercury Trucking, Inc. v. Pa. Pub. Util. Comm’n, 55 A.3d 1056, 1082
(Pa. 2012) (citing Heath v. Workers’ Comp. Appeal Bd. (Pa. Bd. of Prob. & Parole),
860 A.2d 25, 29 n.2 (Pa. 2004)).
As noted above, this Court addressed a very similar dispute in Potocar. That
matter involved facts nearly identical to this one, as it featured a husband and wife
who placed their assets in a revocable trust as joint tenants with right of survivorship.
Potocar, ___ A.3d ___, slip op. at 2. When the husband died, the wife filed a return
indicating that she did not owe any inheritance tax. Id. at ___, slip op. at 3. The
Department disagreed, setting off a series of appeals that resulted in this Court’s en
banc decision. Id. at ___, slip op. at 3-6. The parties’ attorneys in that matter were
the same arguing the case now on appeal, and they made largely the same arguments
that they do now. Ultimately, this Court rejected the Department’s position and
concluded that no inheritance tax was due.
In reaching our conclusion in Potocar, this Court agreed with the orphans’
court and both parties that the trust was not a “sole use trust” under Section 2113.
Id. at ___, slip op. at 7-10. Because Section 2102 defines “transfer of property for
7
the sole use” to prohibit any person from possessing an inter vivos power of
appointment, and the wife in Potocar retained an inter vivos power of appointment,
Section 2113 did not apply. Id. at ___, slip op. at 9-10.
We went on to explain, however, that the transfer of property in Potocar was
exempt from inheritance tax under Section 2111(m), which provides as follows:
(m) Property owned by husband and wife with right of survivorship is
exempt from inheritance tax. If the ownership was created within the
meaning of section 2107(c)(3), the entire interest transferred shall be
subject to tax under section 2107(c)(3) as though a part of the estate of
the spouse who created the co-ownership.
72 P.S. § 9111(m).10
We concluded that the husband and wife in Potocar “owned” the property in
their trust under Section 2111(m), and that exempting them from inheritance tax was
consistent with “the General Assembly’s consistent objective to spare a husband and
wife from inheritance tax on transfers to each other while imposing tax on others.”
Id. at ___, slip op. at 11-15. Further, we explained the specific exemption from
inheritance tax at Section 2111(m) controls over the more general language that
might arguably impose tax at Section 2107(c)(7). Id. at ___, slip op. at 12.
The only real distinction between the case now on appeal and Potocar is that
the Armors held the property in their Trust as tenants by the entireties rather than
joint tenants with right of survivorship. This distinction does not change the result.
“A tenancy by the entireties is a form of co-ownership of real or personal property
by husband and wife, by which together they hold title to the whole and right of
10
Section 2107(c)(3) imposes inheritance tax on transfers during the transferor’s life and without
adequate consideration, if the transfer was “made within one year of the death of the transferor . . .
only to the extent that the value at the time of the transfer or transfers in the aggregate to or for the
benefit of the transferee exceeds three thousand dollars ($3,000) during any calendar year.” 72
P.S. § 9107(c)(3).
8
survivorship, so that, upon death of either, the other takes whole to the exclusion of
the deceased’s heirs.” 11 Hill v. Dep’t of Corr., 64 A.3d 1159, 1165 n.4 (Pa. Cmwlth.
2013) (citing Johnson v. Johnson, 908 A.2d 290 (Pa. Super. 2006)) (emphasis
added). Spouses form a tenancy by the entireties when they “take identical interests
simultaneously by the same instrument and with the same right of possession, with
an essential characteristic being that each spouse is seized of the whole or the entirety
and not a divisible part thereof.” Farda v. Commonwealth, 849 A.2d 297, 298 n.1
(Pa. Cmwlth. 2004) (citing Commonwealth v. One 1988 Toyota Truck, 596 A.2d
1230 (Pa. Cmwlth. 1991)). Thus, just as in Potocar, the Armors owned the Property
in their Trust with right of survivorship, and “Husband’s death, and the continuation
of the Trust with Wife as the sole trustor and trustee, resulted in a transfer exempt
from inheritance tax under Section 2111(m).” Potocar, ___ A.3d at ___, slip op. at
11.
III. Conclusion
We conclude, therefore, that the Trust is not a “sole use trust” under Section
2113, but that the transfer that occurred at the time of Husband’s death was exempt
from inheritance tax under Section 2111(m). As a result, we affirm the order of the
orphans’ court dated September 28, 2021, and entered October 4, 2021.
______________________________
STACY WALLACE, Judge
11
The functional difference between these forms of ownership is that “a joint tenancy . . . with the
right of survivorship, unlike a tenancy by the entireties, is severable by the action, voluntary or
involuntary, of either of the tenants.” McArthur v. Dep’t of Pub. Welfare, 674 A.2d 779, 781 (Pa.
Cmwlth. 1996) (citing Yannopoulos v. Sophos, 365 A.2d 1312 (Pa. Super. 1976)) (emphasis
omitted); see also Maxwell v. Saylor, 58 A.2d 355, 357 (Pa. 1948) (Stern, J., dissenting).
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Estate of William R. :
Armor and the Armor Family Trust :
:
: No. 1241 C.D. 2021
Appeal of: Department of Revenue, :
Inheritance Tax Division :
ORDER
AND NOW, this 7th day of November 2022, the order of the Westmoreland
County Court of Common Pleas, dated September 28, 2021, and entered October 4,
2021, is AFFIRMED.
______________________________
STACY WALLACE, Judge | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481329/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hope House in Midland PA, :
A Non-Profit Corporation, :
Appellant :
: No. 145 C.D. 2022
v. : Argued: October 11, 2022
:
Borough of Midland, PA, :
A Municipal Corporation :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: November 7, 2022
Hope House in Midland PA (Hope House) appeals from the January 25, 2022
order of the Court of Common Pleas of Beaver County (Common Pleas) denying
Hope House’s appeal of the decision of the Borough of Midland, PA Council
(Borough), which denied Hope House’s request for a curative amendment to
Borough’s Zoning Ordinance (the Ordinance)1 to define and allow community living
arrangements as permitted uses in R-1 Zoning Districts. Upon review, we affirm.
I. Background
The Ordinance identifies Borough’s various zoning districts, which include
three separate residential districts: R-1 Single Family, R-2 Two Family, and R-3
1
Borough of Midland, Pa., Zoning Ordinance (1989), as amended.
Multi-Family. Reproduced Record (R.R.) at 163a, 166a (Ordinance, § 201, Table
201). The Ordinance also identifies various permitted uses, conditional uses, and
other requirements for properties in each zoning district. Id. at 166a. The Ordinance
allows accessory uses, single-family dwellings, and parks and recreation as
permitted uses in R-1, R-2, and R-3 districts. Id. The Ordinance also allows two-
family dwellings as permitted uses in R-2 and R-3 districts. Id. In R-3 districts,
which are the least restrictive, the Ordinance also allows garden apartments and
townhouses as permitted uses. Id. Similar to permitted uses, R-3 districts are the
least restrictive districts for conditional uses. Id. One of the conditional uses that
the Ordinance only allows in R-3 districts is a group dwelling. Id.
The Ordinance defines “single-family house” as “a detached building having
accommodation for and occupied by not more than one (1) family.” R.R. at 203a
(Ordinance, § 601). The Ordinance defines “family” as “either an individual, or two
(2) or more persons related by blood or marriage or adoption, or a group of not more
than five (5) persons not so related (not counting servants) occupying a premises and
living as a single housekeeping unit as distinguished from a group occupying a
boarding house, lodging house, club, fraternity or hotel.” Id. at 199a. The Ordinance
defines “group residence” as “a dwelling facility operated for not more than fifteen
(15) persons plus staff, living together as a single family or as a single housekeeping
unit.” Id. at 200a. The Ordinance also provides specific requirements for a group
residence as a conditional use, as follows:
Group residences and intermediate care facilities shall be at least five
hundred (500) feet apart from each other, shall not be located on lots of
less than six thousand (6,000) square feet, nor on lots having less than
four hundred (400) square feet for every sleeping room or for every two
(2) beds, whichever is greater. Such uses shall have side yards of not
less than ten (10) feet, and shall not be approved unless plans prepared
by an architect or engineer are submitted which clearly indicate that
2
adequate light, ventilation and fireproofing are provided, and that the
dwelling facility and its accommodations shall be functional and
convenient with regard to the specific needs of the group to be housed
in the facility. Group residences and intermediate care facilities shall
be approved only after Council has found that plans and programs for
management of the group residence or facility are adequate and
appropriate to the population to be housed and that adequate provisions
have been made to assure the safety and welfare of the residents of the
facility and of the adjacent neighborhood.
R.R. at 179a (Ordinance, § 401(M)).
Hope House is a nonprofit organization whose mission is to “empower women
who need resources, shelter and hope in Christ.” R.R. at 61a. In December 2020,
Hope House purchased a six bedroom, two and one-half bath home located at 117
7th Street, Midland (Property), which is located in one of Borough’s R-1 districts.
Id. at 61a-62a, 82a. Hope House’s Executive Director, Mandy Baker (Baker), stated
that Hope House wants to use the Property to “basically . . . operate a shelter for
women and children who need housing,” and that they would like to have up to 17
people, including 1 staff member, residing at the Property. Id. at 61a, 62a, 65a.
Hope House formally submitted a proposed curative amendment2 (Curative
Amendment), which, if approved by Borough, would modify the Ordinance to
2
Section 916.1(a)(2) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31,
1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329, provides that one
way a landowner can “challenge the validity of an ordinance or map . . . which prohibits or restricts
the use or development of land . . . [is] by submit[ting] the challenge . . . to the governing body . .
. together with a request for a curative amendment . . . .” 53 P.S. § 10916.1(a)(2). The landowner’s
application to the governing body for a curative amendment must contain a “written request” for
a hearing and “plans and explanatory materials describing the use or development proposed by the
landowner in lieu of the use or development permitted by the challenged ordinance or map.” 53
P.S. § 10916.1(c)(1). The governing body must then hold a hearing on the proposed amendment
within 60 days. Section 609.1 of the MPC, added by the Act of June 1, 1972, P.L. 333, 53 P.S. §
10609.1(a).
3
include a “Community Living Arrangement” as a permitted use in R-1 districts. R.R.
at 150a. The Curative Amendment proposed the following definition:
Community Living Arrangement means any residence, whether
operated for profit or not, that undertakes through its ownership or
management to provide or arrange for the provision of daily personal
housing, social or rehabilitative services, counseling, support, care or
treatment exclusively for two (2) or more handicapped or disabled
persons, including dependent children, not to exceed seventeen (17)
total residents who are not related to the owner or administrator by
blood or marriage and whose residential services are financially
supported, in whole or in part, by the owner, administrator and/or the
resident. Twenty-four (24) hour supervision by qualified staff shall be
provided. The terms handicapped and disabled as used in this section
include the definitions of those terms under State and Federal statutory
and caselaw including, but not limited to, the Fair Housing
Amendments Act and the Americans with Disabilities Act, and do not
include individuals who require hospitalization.
R.R. at 150a.
Borough held a public hearing on the Curative Amendment on May 13, 2021.
R.R. at 52a. Baker testified regarding Hope House’s proposed use of the Property
and stated that Hope House will provide residents with biblical counseling and
classes in discipleship, workforce development, financial management, and
household management during their time at Hope House. Id. at 69a. If residents
need additional services, Hope House will refer them to other community programs.
Id. Although Hope House does not have a limit for how long residents can stay
there, Baker stated she expects residents will stay for an average of four to five
months. R.R. at 68a. Thus, Baker acknowledged that Hope House would qualify as
transitional housing. R.R. at 97a.
Although Hope House is not limited to individuals with disabilities, Baker
stated that she “anticipate[s] that [Hope House’s] guests will deal with some mental
4
illness possibly, they will be in recovery from addictions, could have learning
disabilities as well as physical disabilities in terms of mobility and those kinds of
things, hearing, sight issues. So just a wide variety of individuals.” Id. at 62a-63a,
65a. Baker also stated that Hope House plans to give each family its own private
bedroom, with the exception of single women, who would share one bedroom. Id.
at 63a. All residents would share common living areas, including the living room,
dining room, kitchen, laundry facilities, bathrooms, and backyard. Id. at 62a, 64a.
Baker explained that Hope House will perform rapid screenings before
accepting new residents, and that Hope House would not accept residents unless they
are drug and alcohol free and do not have prior convictions for sexual offenses. R.R.
at 66a, 96a. Baker admitted that the Curative Amendment did not require any state
licensure or certification, nor did it require minimum parking, bathroom facilities,
space per person, or security measures. R.R. at 98a-103a.
Baker further explained that she reviewed the Ordinance and did not believe
Hope House’s proposed use of Property was permitted in any of Borough’s zoning
districts. R.R. at 85a. As a result, Baker contacted various Borough representatives
to discuss Hope House’s proposed use. Id. at 76a-84a. Baker informally submitted
requests to Borough for approval of Hope House’s proposed use. Id. at 79a.
Borough did not approve Hope House’s proposed use, however, so Hope House filed
the proposed Curative Amendment. R.R. at 80a-82a, 150a.
Owen Pella (Pella), who has been the Borough’s code enforcement officer for
the past five years, testified on behalf of Borough. R.R. at 117a. He opined that
Hope House’s desired use qualifies as a “group residence,” which is a conditional
use in R-3 districts, because Hope House’s residents would be living as a single
housekeeping unit. R.R. at 121a-23a, 131a. Although the Ordinance does not define
5
“single housekeeping unit,” Pella’s interpretation of the term and his knowledge of
Hope House’s desired use led him to conclude that Hope House’s residents would
be living as a single housekeeping unit. Id.
Pella stated that there are four sections of Borough that are designated as R-3
districts. Id. at 123a. Those four R-3 districts contain a combination of houses,
apartments, multi-family dwellings, and apartment complexes. Id. at 124a. Unlike
properties in Borough’s R-1 districts, properties in Borough’s four R-3 districts have
parking lots and off-site parking “to accommodate the extra cars that come with a
multi-family dwelling.” Id. at 124a.
Pella explained that Section 401(M) of the Ordinance establishes specific
criteria for the approval of group residences as conditional uses in R-3 districts and
permits Borough to review health and safety issues before approving a group
residence as a conditional use. Id. at 121a, 125a. If Borough were to amend the
Ordinance to make community living arrangements permitted uses in R-1 districts,
a landowner could open a community living arrangement in an R-1 district without
having to apply to Borough or comply with Borough’s health and safety regulations
for group residences. Id. at 126a.
Borough’s Planning Commission reviewed the Curative Amendment and
provided its opinion to Borough via letter dated April 30, 2021. R.R. at 153a-54a.
In that letter, Borough’s Planning Commission opined that the Curative Amendment
was too broad and that a community living arrangement should be classified as a
conditional use instead of a permitted use. Id. at 153a. Borough’s Planning
Commission explained that by making a community living arrangement a
conditional use, Borough would have additional oversight and could create
regulations to ensure safe living conditions for residents. Id. Borough’s Planning
6
Commission also opined that “many of these regulations are currently in place in
[the Ordinance] under Section 401(M) regarding approval for a Group Residence in
the R-3 Zoning District.” Id.
Borough denied the Curative Amendment. On July 7, 2021, Hope House
timely appealed3 Borough’s denial to Common Pleas. Common Pleas reviewed the
record of the proceedings before Borough and heard the parties’ oral arguments.
Thereafter, via order dated January 25, 2022, Common Pleas denied Hope House’s
appeal. Hope House timely appealed to this Court.
II. Analysis
On appeal, Hope House advances a variety of arguments as to why Borough
improperly denied the Curative Amendment, each of which relies upon the assertion
that the Ordinance is exclusionary because it does not allow Hope House’s proposed
use in any zoning district. Borough asserts many grounds for denying Hope House’s
arguments, each of which relies upon the assertion that the Ordinance is not
exclusionary because it does allow Hope House’s proposed use. Accordingly,
before we analyze Hope House’s various arguments, we must first determine if the
Ordinance excludes Hope House’s proposed use.
The parties’ disagreement revolves around whether Hope House’s proposed
use qualifies as a “group residence.” The Ordinance provides that a “group
residence”4 is a conditional use in R-3 districts, and the Ordinance defines a “group
3
Hope House alleges that it appealed from a deemed denial due to Borough’s failure to mail its
decision to Hope House within 45 days of the hearing date. See 53 P.S. § 10916.1(c)(7). We need
not address whether Borough’s written denial was timely, because Hope House’s appeal was
timely filed from either a deemed denial or the actual, written denial.
4
Many of the terms used in Table 201 of the Ordinance (which identifies permitted and
conditional uses in each zoning district) are not identical to the terms used in Section 601 of the
(Footnote continued on next page…)
7
residence” as “a dwelling facility operated for not more than fifteen (15) persons
plus staff, living together as a single family or as a single housekeeping unit.”
R.R. at 200a (emphasis added). Borough asserts that Hope House’s proposed use
qualifies as a “group residence,” because its residents will be living together as a
single housekeeping unit. Borough acknowledges that the Ordinance does not define
“single housekeeping unit,” and that the Ordinance does not otherwise provide for
Hope House’s proposed use. Hope House asserts that its residents will not be living
as a single housekeeping unit, because the term single housekeeping unit precludes
purely transient uses.
Hope House has presented a de jure exclusion claim, as Hope House alleges
that the Ordinance, on its face, totally excludes its proposed use of the Property. See
Bloomsburg Indus. Ventures, LLC v. Town of Bloomsburg, 242 A.3d 969, 978 (Pa.
Cmwlth. 2020) (citations omitted). “When a proposed use can be considered within
another zoning classification or, where the zoning ordinance is broad enough to
encompass the proposed use, there is no de jure exclusion.” Kratzer v. Bd. of
Supervisors of Fermanagh Twp., 611 A.2d 809, 812 (Pa. Cmwlth. 1992) (citation
omitted). In addition, “an ordinance which allows a use conditionally . . . is not de
jure exclusionary.” Id. at 814 (citations omitted).
“In examining whether a proposed use is covered by an ordinance, ‘we are
mindful that ordinances are to be construed expansively, affording the landowner
the broadest possible use and enjoyment of his or her land.’” Hatboro Borough v.
Ordinance (definitions). For instance, Table 201 of the Ordinance permits a “single family
dwelling” in all residential districts and a “group dwelling” as a conditional use in R-3 districts.
Section 601 of the Ordinance does not define either of these terms, but it does define “single-
family house” and “group residence.” Although not identical, “house” and “residence” are
synonymous with “dwelling,” and we, like Common Pleas, attribute the definitions in Section 601
of the Ordinance to the synonymous terms found in Section 201 of the Ordinance.
8
Buckingham Retail Properties, LLC, 245 A.3d 728, 737 (Pa. Cmwlth. 2020) (citation
omitted). Still, “a party challenging the lawfulness of an ordinance bears a heavy
burden as an ordinance is presumptively valid and constitutional.” Bloomsburg, 242
A.3d at 978 (citation omitted). “While the Statutory Construction Act[5] does not
specifically apply to our construction of zoning ordinances, we have nonetheless
applied [statutory construction] principles in our interpretive decisions.” Slice of
Life, LLC v. Hamilton Twp. Zoning Hearing Bd., 207 A.3d 886, 899 (Pa. 2019)
(citation omitted). “Thus, undefined words and phrases that appear in a zoning
ordinance are to be given their ‘plain and ordinary meaning.’” Id. “When
interpreting the meaning of a zoning ordinance, . . . [our] primary objective [is]
determining the intent of the legislative body that enacted the ordinance.”
Bloomsburg, 242 A.3d at 979 (citation omitted).
“The issue of whether a proposed use falls within a given category of
permitted use in a zoning ordinance is a question of law, subject to this Court’s
review.” Caln Nether Co., L.P. v. Bd. of Supervisors of Thornbury Twp., 840 A.2d
484, 491 (Pa. Cmwlth. 2004). Courts examine whether an ordinance is exclusionary
using a two-step analysis:
[W]e first consider whether the challenging party has overcome the
presumed constitutionality of an ordinance by showing it excludes [the
proposed use] as a use. If we determine the challenger has done so, we
then consider whether the municipality has salvaged the ordinance by
presenting evidence to show that the exclusionary regulation bears a
substantial relationship to the public health, safety, morality, or welfare.
Twp. of Exeter v. Zoning Hearing Bd. of Exeter Twp., 962 A.2d 653, 661 (Pa. 2009).
With these principles in mind, we now turn to interpreting the contested
language in this matter to determine if the Ordinance excludes Hope House’s
5
Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1501-1991.
9
proposed use. In In re Appeal of Miller, 515 A.2d 904 (Pa. 1986), our Supreme
Court evaluated whether a local zoning ordinance permitted a woman who owned a
home in a single-family zoning district to have seven boarders, who were not her
relatives, reside in her home. Id. at 905. Under the local zoning ordinance, “family”
was defined as “any number of persons living and cooking together as a single
housekeeping unit.” Id. (emphasis added). The evidence presented indicated that
the individuals living in the residence cooked together, ate meals together, shared in
household activities, and attended social and religious functions together. Id. at 908.
The home was “‘not a transient establishment but rather the residents usually
remain[ed] for substantial periods of time and move[d] only for health reasons or
personal preference.’” Id. at 909. Despite the fact that the residents paid the
homeowner $200 per month for room and board, our Supreme Court determined that
the residents were living as a single housekeeping unit, and the homeowner’s use
was permitted as a “single-family dwelling” under the local zoning ordinance. Id.
In Albert v. Zoning Hearing Board of North Abington Township, 854 A.2d
401 (Pa. 2004), our Supreme Court considered whether a “halfway house for
recovering alcoholics and drug-addicts . . . qualified as a ‘single-family detached
dwelling’ under the local zoning ordinance.” Id. at 402. Under that local zoning
ordinance, a “‘single-family dwelling’” was defined as “‘a detached building,
designated for or occupied exclusively by one family and containing not more than
one dwelling unit.’” Id. at 404 (emphasis added). The local zoning ordinance did
not define “family.” Id. In interpreting the meaning of the word “family,” our
Supreme Court, citing Appeal of Miller, determined that “‘single housekeeping
unit’ must be considered the plain and ordinary meaning of ‘family’ in the
zoning context.” Id. at 405-06, 407 n.5 (emphasis added). Our Supreme Court
10
further noted that “[w]hile this Court has never before explicitly stated that
transiency is incompatible with the notion of a single-family household, it is
undeniable that inherent in the concept of ‘family’ and, in turn, in the concept of
a ‘single-family dwelling,’ is a certain expectation of relative stability and
permanence in the composition of the familial unit.” Id. at 409 (emphasis added).
Because the halfway house’s residents’ average stay was only two to six months,
our Supreme Court determined that the halfway house’s use was purely transient and
it did not qualify as a single-family dwelling. Id. at 410.
In Slice of Life, our Supreme Court was evaluating whether a local zoning
ordinance permitted property owners to use their property as a short-term rental unit
when it was located in a single-family residential zoning district. The local zoning
ordinance in Slice of Life defined a “family” as “‘[o]ne or more persons occupying
a dwelling unit, related by blood, marriage, or adoption, living together as a
single housekeeping unit and using cooking facilities and certain rooms in
common.’” Slice of Life, 207 A.3d at 898 (emphasis added). Our Supreme Court,
relying on Albert and Appeal of Miller, noted that although “single housekeeping
unit” is not defined in the zoning ordinance, it “is a term of art that is widely used in
zoning ordinances,” and “[t]his Court has adopted the common definition of ‘single
housekeeping unit,’ used by courts throughout the country, as requiring the person
or persons residing in the home to function as a family and to be ‘sufficiently stable
and permanent’ and not ‘purely transient.’” Id. at 899 (quoting Albert, 854 A.2d at
409-10; Appeal of Miller, 515 A.2d at 907-09). Our Supreme Court concluded that
“by defining ‘family’ by requiring ‘a single housekeeping unit,’ the [o]rdinance
clearly and unambiguously excluded, in pertinent part, purely transient uses of
property in [a single-family residential district].” Id. (emphasis added).
11
Accordingly, the Court determined that the local zoning ordinance did not permit
the property owner to use its property for short-term rentals. Id.
Hope House asserts that our Supreme Court has established that a “single
housekeeping unit” cannot include purely transient uses. In Appeal of Miller, Albert,
and Slice of Life, however, our Supreme Court was interpreting the phrase “single
housekeeping unit” as part of the definition of a “family” for the purpose of
determining if uses were permitted in single-family residential zoning districts.
Here, we are interpreting the phrase “single housekeeping unit” in the definition of
a “group residence” for the purpose of determining if Hope House’s proposed use
qualifies as a conditional use in a multi-family residential zoning district. For the
reasons outlined below, the logic and reasoning used to interpret the meaning of
“single housekeeping unit” in the definition of a “family” cannot be extended to
interpret the meaning of “single housekeeping unit” in the Ordinance’s definition of
a “group residence.”
First, a single-family residence and a group residence are very different. In
Albert, our Supreme Court noted that “transiency is incompatible with the notion of
a single-family household” and that “inherent in the concept of ‘family’ and, in turn,
in the concept of a ‘single-family dwelling,’ is a certain expectation of relative
stability and permanence in the composition of the familial unit.” Albert, 854 A.2d
at 409. Group residences, unlike single-family households, do not have an inherent
expectation of stability. Group residences serve various functions, some of which
provide short-term rehabilitative services, others of which house individuals on an
extended basis. Although some residents may remain living in the same group home
for extended periods of time, transiency is a fact of life in group residence settings.
12
Second, Borough did not intend to adopt the definition of “single
housekeeping unit” that was developed by our Supreme Court in Albert and Slice of
Life. Borough enacted the Ordinance in 1989 and last revised the sections at issue
in this matter in 1993 (Section 601) and 1997 (Section 201 and Table 201). R.R. at
163a, 166a, 205a. Our Supreme Court issued its decision in Albert in 2004 and Slice
of Life in 2019. Accordingly, Borough could not have intended, in 1989, 1993, and
1997, to adopt our Supreme Court’s definition of “single housekeeping unit.”
Third, the Ordinance’s plain language indicates that “single housekeeping
unit” was not intended to be synonymous with “family.” The Ordinance’s definition
of “group residence” begins with the phrase “a dwelling facility operated . . . .” The
Ordinance does not use the word “facility” in its definition of “family,” and both the
word “facility” and the context within which it appears implies that business will be
conducted on the premises. In addition, the Ordinance’s definition of “group
residence,” in limiting the number of persons that may reside at the residence to 15,
adds “plus staff.” The Ordinance does not use the word “staff” in its definition of
“family,” which shows that Borough intended for separate “staff” members to
supervise group residences but not family residences.
Fourth, the Ordinance’s definition of “group residence,” by using the
disjunctive “or,” made “living together as a single family” and “living together . . .
as a single housekeeping unit” two separate and distinct concepts. In interpreting
the definition of “family,” our Supreme Court determined that “[t]his Court has
adopted the common definition of ‘single housekeeping unit,’ used by courts
throughout the country, as requiring the person or persons residing in the home to
function as a family and to be ‘sufficiently stable and permanent’ and not ‘purely
transient.’” Slice of Life, 207 A.3d at 899 (quoting Albert, 854 A.2d at 409-10;
13
Appeal of Miller, 515 A.2d at 907-09) (emphasis added). In Albert, Our Supreme
Court noted that “‘single housekeeping unit’ must be considered the plain and
ordinary meaning of ‘family’ in the zoning context.” Albert, 854 A.2d at 407 n.5
(emphasis added). If we interpret “single housekeeping unit” in the Ordinance’s
definition of “group residence” to be synonymous with “family,” it would result in
the Ordinance’s definition of “group residence” stating that the residents of a group
residence must be living together as a single family or as a family. This
interpretation would not give any meaning to the phrase “single housekeeping unit,”
and would, therefore, provide an absurd result. See 1 Pa.C.S. § 1922 (rules of
statutory construction require that we presume the legislative body did not intend a
“result that is absurd, impossible of execution or unreasonable,” and the legislative
body “intends the entire statute to be effective and certain”).6
For the reasons set forth above, we conclude that persons “living together . . .
as a single housekeeping unit” under the Ordinance’s definition of “group residence”
can include transient persons. As a result, Hope House’s argument that it cannot
qualify as a group residence because its residents are transient fails. Since Hope
House’s residents will have common living and dining areas and will participate in
similar programs and activities within the residence, Hope House’s residents will be
living together as a single housekeeping unit for purposes of qualifying as a “group
residence.” Thus, Hope House’s proposed use qualifies as a group residence under
Section 601 of the Ordinance, and the Ordinance “is not de jure exclusionary,”
because Table 201 of the Ordinance allows a group residence as a conditional use in
R-3 districts. See Kratzer, 611 A.2d at 814.
6
“Although the Statutory Construction Act . . . does not apply expressly to zoning and subdivision
ordinances, the principles in the act are followed in construing a local ordinance.” Tobin v. Radnor
Twp. Bd. of Comm’rs, 597 A.2d 1258, 1264 (Pa. Cmwlth. 1991) (citations omitted).
14
Having concluded that the Ordinance does not exclude Hope House’s
proposed use, we briefly turn to whether Borough abused its discretion or committed
an error of law in denying the Curative Amendment. Our Supreme Court aptly set
forth the validity of single-family zoning as follows:
To properly frame the matter before us, some background regarding the
underlying law is useful. A property owner has a constitutionally
protected right to the enjoyment of his or her property. Pa. Const. art.
I, § 1 (providing for the “inherent” right of “acquiring, possessing and
protecting property”); Newtown Square E., L.P. v. Twp. of Newtown,
. . . 101 A.3d 37, 51 ([Pa.] 2014). That right is permissibly limited by
a zoning ordinance that is substantially related to the protection of the
public health, safety, morality and welfare – commonly known as a
municipality’s “police power.” In re Realen Valley Forge Greenes
Assoc., . . . 838 A.2d 718, 728 ([Pa.] 2003) (quoting C & M Developers,
Inc. v. Bedminster Twp. Zoning Hearing Bd., . . . 820 A.2d 143, 150
([Pa.] 2002)).
The establishment of residential zoning districts has long been
recognized as a valid exercise of a municipality’s police power. They
serve to insulate areas intended for residential living from increased
noise and traffic, protect children living there and their ability to utilize
quiet, open spaces for play, and to maintain “the residential character
of the neighborhood.” Village of Euclid, Ohio v. Ambler Realty Co.,
272 U.S. 365 . . . (1926). Non-family uses, including fraternity houses
and boarding houses, have been found to be antithetical to the
“residential character,” as “[m]ore people occupy a given space; more
cars . . . continuously pass by; more cars are parked; [and] noise travels
with crowds.” Village of Belle Terre v. Boraas, 416 U.S. 1, 9 . . . (1974).
As the high Court explained,
A quiet place where yards are wide, people few, and motor
vehicles restricted are legitimate guidelines in a land-use
project addressed to family needs. This goal is a
permissible one within Berman v. Parker, [348 U.S. 26,
(1954) (discussing the broad concept of public welfare)].
The police power is not confined to elimination of filth,
stench, and unhealthy places. It is ample to lay out zones
where family values, youth values, and the blessings of
15
quiet seclusion and clean air make the area a sanctuary for
people.
Id.
Slice of Life, 207 A.3d at 888-89. The court continued: “[t]he permanence and
stability of people living in single-family residential zoning districts creates a sense
of community, cultivates and fosters relationships, and provides an overall quality
of a place where people are invested and engaged in their neighborhood and care
about each other.” Id. at 900.
In Borough’s single-family residential zoning districts (R-1), the Ordinance
only allows accessory uses, single-family dwellings, and parks and recreation as
permitted uses. The Ordinance does not allow a group residence, even as a
conditional use, in R-1 districts. In fact, the Ordinance does not allow a group
residence as a permitted use in any of its residential zoning districts, and the
Ordinance only allows a group residence as a conditional use in its least restrictive
residential zoning districts (R-3). By only providing for a group residence as a
conditional use, the Ordinance permits Borough to regulate group residences and
ensure that they comply with health and safety requirements before approval. The
Curative Amendment not only proposed that community living arrangements (which
are essentially group residences) be allowed in R-1 districts, but that they be
permitted uses in R-1 districts. Thus, if Borough adopted the Curative Amendment,
community living arrangements could be placed in Borough’s R-1 districts,
Borough’s most restrictive zoning districts, and Borough would not be able to
regulate them or ensure that they comply with health and safety requirements before
approval. Borough’s Planning Commission pointed out this distinction and opined
that the Curative Amendment was too broad. Under the circumstances, Borough did
16
not abuse its discretion or commit an error of law in agreeing with its Planning
Commission and denying the Curative Amendment.
We need not further evaluate Hope House’s arguments that Borough
improperly denied the Curative Amendment, because those arguments all rely upon
the false presumption that the Ordinance totally excluded Hope House’s proposed
use.
III. Conclusion
Like Common Pleas, we agree that Hope House’s purpose is admirable. It
also does not escape this Court that local government officials may have steered
Hope House in the wrong direction. Nevertheless, the Ordinance does not totally
exclude Hope House’s proposed use because it qualifies as a “group residence,”
which is a conditional use in Borough’s multi-family residential zoning districts (R-
3). As a result, we must affirm Common Pleas’ order denying Hope House’s appeal
of Borough’s denial of Hope House’s proposed curative amendment.
______________________________
STACY WALLACE, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hope House in Midland PA, :
A Non-Profit Corporation, :
Appellant :
: No. 145 C.D. 2022
v. :
:
Borough of Midland, PA, :
A Municipal Corporation :
ORDER
AND NOW, this 7th day of November, 2022, the January 25, 2022 order of
the Court of Common Pleas of Beaver County is AFFIRMED.
______________________________
STACY WALLACE, Judge | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481326/ | [Cite as In re Andrews, ___ Ohio St.3d ___, 2022-Ohio-3951.]
IN RE ANDREWS.
[Cite as In re Andrews, ___ Ohio St.3d ___, 2022-Ohio-3951.]
(No. 2022-1350—Submitted November 2, 2022—Decided November 7, 2022.)
ON CERTIFIED ENTRY OF FELONY CONVICTION.
____________________
{¶ 1} On November 2, 2022, and pursuant to Gov.Bar R. V(18), the director
of the Board of Professional Conduct filed with the Supreme Court a certified copy
of a judgment entry of a felony conviction against Amanda Ann-Carmen Andrews,
an attorney licensed to practice law in the state of Ohio.
{¶ 2} Upon consideration thereof and pursuant to Gov.Bar R. V(18)(A)(4),
it is ordered and decreed that respondent, Amanda Ann-Carmen Andrews, Attorney
Registration No. 0088814, last known business address in Port Clinton, Ohio, is
suspended from the practice of law for an interim period, effective as of the date of
this entry.
{¶ 3} It is further ordered that this matter is referred to disciplinary counsel
for investigation and the commencement of disciplinary proceedings.
{¶ 4} It is further ordered that respondent immediately cease and desist from
the practice of law in any form and that respondent is forbidden to appear on behalf
of another before any court, judge, commission, board, administrative agency, or
other public authority.
{¶ 5} It is further ordered that effective immediately, respondent is
forbidden to counsel, advise, or prepare legal instruments for others or in any
manner perform legal services for others.
{¶ 6} It is further ordered that respondent is divested of each, any, and all
of the rights, privileges, and prerogatives customarily accorded to a member in
good standing of the legal profession of Ohio.
SUPREME COURT OF OHIO
{¶ 7} It is further ordered that before entering into an employment,
contractual, or consulting relationship with any attorney or law firm, respondent
shall verify that the attorney or law firm has complied with the registration
requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23),
respondent shall refrain from direct client contact except as provided in Gov.Bar R.
V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust
funds or property.
{¶ 8} It is further ordered that pursuant to Gov.Bar R. X(13), respondent
shall complete one credit hour of continuing legal education for each month, or
portion of a month, of the suspension. As part of the total credit hours of continuing
legal education required by Gov.Bar R. X(13), respondent shall complete one credit
hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B)
for each six months, or portion of six months, of the suspension.
{¶ 9} It is further ordered that respondent shall not be reinstated to the
practice of law in Ohio until (1) respondent complies with the requirements for
reinstatement set forth in the Supreme Court Rules for the Government of the Bar
of Ohio, (2) respondent complies with this and all other orders issued by this court,
(3) respondent complies with the Supreme Court Rules for the Government of the
Bar of Ohio, and (4) this court orders respondent reinstated.
{¶ 10} It is further ordered by the court that within 90 days of the date of
this order, respondent shall reimburse any amounts that have been awarded by the
Lawyers’ Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further
ordered by the court that if after the date of this order, the Lawyers’ Fund for Client
Protection awards any amount against respondent pursuant to Gov.Bar R.
VIII(7)(F), respondent shall reimburse that amount to the Lawyers’ Fund for Client
Protection within 90 days of the notice of that award.
{¶ 11} It is further ordered that on or before 30 days from the date of this
order, respondent shall do the following:
2
January Term, 2022
{¶ 12} 1. Notify all clients being represented in pending matters and any
cocounsel of respondent’s suspension and consequent disqualification to act as an
attorney after the effective date of this order and, in the absence of cocounsel, also
notify the clients to seek legal services elsewhere, calling attention to any urgency
in seeking the substitution of another attorney in respondent’s place;
{¶ 13} 2. Regardless of any fees or expenses due, deliver to all clients being
represented in pending matters any papers or other property pertaining to the client
or notify the clients or cocounsel, if any, of a suitable time and place where the
papers or other property may be obtained, calling attention to any urgency for
obtaining such papers or other property;
{¶ 14} 3. Refund any part of any fees or expenses paid in advance that are
unearned or not paid and account for any trust money or property in respondent’s
possession or control;
{¶ 15} 4. Notify opposing counsel or, in the absence of counsel, the adverse
parties in pending litigation of respondent’s disqualification to act as an attorney
after the effective date of this order and file a notice of disqualification of
respondent with the court or agency before which the litigation is pending for
inclusion in the respective file or files;
{¶ 16} 5. Send all notices required by this order by certified mail with a
return address where communications may thereafter be directed to respondent;
{¶ 17} 6. File with the clerk of this court and disciplinary counsel of the
Supreme Court an affidavit showing compliance with this order, showing proof of
service of the notices required herein, and setting forth the address where the affiant
may receive communications; and
{¶ 18} 7. Retain and maintain a record of the various steps taken by
respondent pursuant to this order.
3
SUPREME COURT OF OHIO
{¶ 19} It is further ordered that respondent shall keep the clerk and
disciplinary counsel advised of any change of address where respondent may
receive communications.
{¶ 20} It is further ordered that all documents filed with this court in this
case shall meet the filing requirements set forth in the Rules of Practice of the
Supreme Court of Ohio, including requirements as to form, number, and timeliness
of filings. All case documents are subject to Sup.R. 44 through 47, which govern
access to court records.
{¶ 21} It is further ordered that service shall be deemed made on respondent
by sending this order, and all other orders in this case, to respondent’s last known
address.
{¶ 22} It is further ordered that the clerk of this court issue certified copies
of this order as provided for in Gov.Bar R. V(17)(E)(1) and that publication be
made as provided for in Gov.Bar R. V(17)(E)(2).
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
4 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481331/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Emmanuel Williams, :
Petitioner :
: No. 1176 C.D. 2021
v. :
: Submitted: March 25, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 7, 2022
Emmanuel Williams (Williams) petitions for review from the October 14,
2021 decision and order of the Pennsylvania Parole Board (Board) denying, in part, his
challenge to the Board’s order recommitting him as a convicted parole violator (CPV)
and recalculating his maximum sentence date without award of credit for time spent at
liberty on parole. Upon review, we affirm.
Background and Procedural History
On May 1, 2001, Williams was sentenced to 13 to 26 years’ incarceration
with a maximum sentence date of April 29, 2026.1 (Certified Record (C.R.) at 1.) By
1
Williams was charged with robbery and sentenced to 5 to 10 years. (C.R. at 1.) He is also
serving additional consecutive sentences of 5 to 10 years and 3 to 6 years for two other robbery
convictions. Id.
an order dated January 25, 2013, Williams was granted parole and released from
confinement on May 2, 2013. (C.R. at 7.)
From 2013 to 2020 while Williams was on parole, he was arrested
multiple times, for, among others, charges of driving under the influence (DUI) and
possession of controlled substances, none of which resulted in his parole revocation.
On September 10, 2013, Williams was discharged from Keystone
Community Corrections Center (Keystone CCC) for possessing contraband. (C.R. at
19.) On September 11, 2013, the Board issued a warrant to commit and detain Williams
for his discharge from Keystone CCC as this was a special condition of his parole.
(C.R. at 18, 36, 213.) He remained incarcerated solely on the Board’s warrant until
November 12, 2013. (C.R. at 18, 36, 213.)
On November 18, 2013, Williams was charged with possession of
controlled substance/contraband by inmate, controlled substance by person not
registered, and unlawful possession of drug paraphernalia, for which he was sentenced
to pay a fine. (C.R. at 45.) Again, on March 4, 2014, the Board issued a warrant to
commit and detain Williams. (C.R. at 26.) From March 4, 2014, to May 27, 2014, a
total of 84 days, Williams was detained solely on the Board’s warrant. (C.R. at 197,
213.) The Board noted the conviction and continued Williams on parole. (C.R. at 55.)
On October 20, 2015, Williams was arrested for multiple charges
stemming from a DUI. (C.R. at 60.) Williams was continued on parole pending the
disposition of his criminal charges. Id. On December 4, 2017, Williams pled guilty to
DUI and received six months’ probation. (C.R. at 75.) The Board noted the conviction
and continued Williams on parole. (C.R. at 88.)
On August 19, 2019, Williams was arrested for two DUI charges. (C.R.
at 91.) On February 21, 2020, the Board issued a warrant to commit and detain
2
Williams due to his DUI charges. (C.R. at 104.) From February 21, 2020, to April 24,
2020, a period of 63 days, Williams was detained solely on the Board’s warrant. (C.R.
at 197, 213.) On December 3, 2020, Williams pled guilty to two counts of DUI, second
offense, and was sentenced to two years of probation. (C.R. at 139.)
On January 28, 2021, Williams was detained by the Board’s warrant
because he produced a positive urine test and was found to have marijuana, drug
paraphernalia, and cash. (C.R. at 109.) Additionally, that same day, the Board
discovered Williams had pending charges for possession of a small amount of
marijuana and possession of drug paraphernalia. (C.R. at 118, 110.) The Board
detained Williams pending the disposition of his criminal charges. (C.R. 130, 133.)
The Board conducted a parole revocation hearing on March 26, 2021,
addressing Williams’ DUI convictions. (C.R. at 169-87.) The Board issued a
revocation hearing report on March 29, 2021, in which the hearing examiner
recommended that Williams be denied credit for all time spent at liberty on parole from
the date of his parole on May 2, 2013, as Williams demonstrated unresolved drug
and/or alcohol issues that warranted denying credit. (C.R. at 191.) The report
recommended Williams be recommitted as a CPV for 12 months when available due
to his DUI convictions. (C.R. at 194.) A second Board Member signed the report.
(C.R. at 195.)
Subsequently, the Board mailed an order on May 27, 2021, to recommit
Williams, which order denied him credit for time spent at liberty on parole because he
“committed a new conviction that is the same or similar to the original offense” and
“continues to demonstrate unresolved drug and/or alcohol issues.” (C.R. at 215-16.)
The order outlined that Williams was paroled on May 2, 2013, and at the time of release
owed 4,725 days on his original sentence. (C.R. at 213.) The Board credited Williams
3
146 days for time spent from September 11, 2013, to November 12, 2013, and from
March 4, 2014, to May 27, 2014. (C.R. at 213.) Additionally, the Board credited him
63 days for time spent from February 21, 2020, to April 24, 2020. Id. Subtracting the
209-day credit from 4,725 days remaining on his original sentence, the Board
determined Williams had 4,516 days remaining on his original sentence. Id. Adding
4,516 days to his return-to-custody date of January 28, 2021, the Board established
Williams’ new maximum sentence date as June 10, 2033. (C.R. at 215.)
On June 21, 2021, the Board received two requests for administrative
relief from Williams and Williams’ counsel, Kent Watkins, Esq., both filed on June 16,
2021. (C.R. at 224-28.) On October 14, 2021, the Board affirmed, in part, its decision
to recommit Williams as a CPV for 12 months of backtime and establish his parole
maximum date of June 10, 2033. (C.R. at 233.) The Board granted, in part, Williams’
request for administrative relief by modifying the decision to only include Williams’
unresolved drug and alcohol issues as its reason to deny credit for time spent at liberty
on parole. (C.R. at 231; 233-35.) This appeal followed.
Discussion
On appeal, 2 Williams argues that the Board failed to credit him with all
time served exclusively on its warrant. Williams also argues that the Board
recommitted him as a CPV to serve a period of backtime in excess of the codified
presumptive range.3
2
Review of a Board order is limited to determining whether constitutional rights were
violated, errors of law were committed, or findings of fact were not supported by substantial
evidence. Morgan v. Pennsylvania Board of Probation & Parole, 814 A.2d 300, 302 (Pa. Cmwlth.
2003).
3
In his brief, Williams adds a third issue, arguing that the Board abused its discretion by
failing to credit Williams for all time spent in good standing on parole. See Petitioner’s Br. at 4, 13-
14. However, Williams then concedes the issue in the argument section stating the Board did not
(Footnote continued on next page…)
4
Credit for Time Served on Board’s Warrant
In his first issue, Williams argues he is entitled to credit for time spent
exclusively on the Board’s warrant. Williams asserts he is entitled to credit for time
served from April 7, 2014, to April 24, 2020, a period of 2,209 days. (Petitioner’s Br.
at 13, 16.)
Importantly, we note that Williams does not contest the Board’s decision
to deny credit for time spent at liberty on parole, which was from May 2, 2013, to
January 28, 2021. Williams’ parole period overlaps with the time frame with which he
is presently requesting credit from April 7, 2014, to April 24, 2020, stating he was
incarcerated entirely for that time. (Petitioner’s Br. at 13.) As there is a disconnect
between Williams’ request and concession, we only address the periods outlined in
Williams’ brief regarding the times he was incarcerated solely on the Board’s detainer.
In the seminal case Gaito v. Pennsylvania Board of Probation and Parole,
412 A.2d 568, 571 (Pa. 1980), our Supreme Court held that if the parolee has met bail
requirements on his new charges but remains in custody solely on the Board’s detainer,
then the time the parolee spends in custody “shall be credited against [the] original
sentence.” On the other hand, if a parolee “remains incarcerated prior to trial because
[the parolee] has failed to satisfy bail requirements on the new criminal charges, then
the time spent in custody shall be credited to [the] new sentence.” Id.
Applying these rules here, the Board awarded Williams credit against his
original sentence for three periods he spent in custody solely on the Board’s detainer.
The Board credited Williams with 209 days for time served exclusively on its warrant
from: September 11, 2013, to November 12, 2013; March 4, 2014, to May 27, 2014;
and February 21, 2020, to April 24, 2020. Importantly, during Williams’ incarceration
abuse its discretion by denying credit for time spent at liberty on parole. (Petitioner’s Br. at 13-14.)
Accordingly, we will not address that issue.
5
period from September 11, 2013 to November 12, 2013, he was held solely on the
Board’s warrant due to a technical violation. (C.R. at 18.) During the period of March
4, 2014 to May 27, 2014, Williams was held on the Board’s warrant for violating
conditions of his parole. (C.R. at 55, 197.) Additionally, Williams was incarcerated
from February 21, 2020 to April 24, 2020, solely on the Board’s warrant for violating
conditions of his parole. (C.R. at 104.)
When Williams was originally paroled on May 2, 2013, he had 4,725 days
remaining on his sentence. Subtracting 209 days from the 4,725 days left on his
sentence, Williams had 4,516 days remaining on his original sentence. Williams was
detained by the Board on January 28, 2021, which means this is the date he became
available to serve his original sentence. Adding 4,516 days to Williams’ January 28,
2021 detention date yields a recalculated maximum sentence date of June 10, 2033.
Upon review, we discern no error in the Board’s calculation of Williams’ maximum
sentence date as the Board has credited Williams all the time he spent detained
exclusively on its warrant.
Backtime Imposition and Mootness
Next, Williams contends the Board recommitted him to serve a period of
backtime in excess of the codified presumptive range of his two DUI convictions and
requests that this Court vacate the Board’s order. The Board asserts Williams’
challenge to his recommitment backtime should be dismissed as moot because
Williams has served his entire backtime sentence. (Respondent’s Br. at 8.)
“[A]n appeal will be dismissed when the occurrence of an event renders
it impossible for the court to grant the requested relief.” Taylor v. Pennsylvania Board
of Probation and Parole, 746 A.2d 671, 674 (Pa. Cmwlth. 2000). We will refuse
dismissal only if the issue involved is capable of repetition yet likely to evade review
6
and is of important public interest, or where a party will suffer some detriment without
this Court’s decision. Id.
Here, Williams’ 12-month recommitment period began on January 28,
2021, and concluded on January 28, 2022. (C.R. at 213, 215-16.) Because Williams
has served the entirety of his backtime, it would be impossible for this Court to grant
relief to undo the alleged harm. Moreover, we find that this issue is not one that is
capable of repetition but likely to evade review. See, e.g., Heidelberg v. Pennsylvania
Board of Probation and Parole (Pa. Cmwlth., No., 661 C.D. 2016, filed January 20,
2017);4 Riede v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 337
C.D. 2015, filed March 30, 2017). As Williams is only challenging the length of
backtime imposed, this issue is moot. 5
Accordingly, we affirm the Board’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
4
Pursuant to 210 Pa. Code § 69.414, unreported decisions of this Court may be cited for their
persuasive value.
5
Nevertheless, even if this issue were not moot, we would affirm the Board. In its regulations,
the Board has presumptive ranges to impose for various parole violations. 37 Pa. Code §§ 75.2 &
75.4. When there are multiple offenses, the Board in its discretion may treat each offense separately
and aggregate the presumptive ranges to arrive at an applicable presumptive range. Corley v.
Pennsylvania Board of Probation and Parole, 478 A.2d 146 (Pa. Cmwlth. 1984). Importantly, this
Court will not interfere with the Board’s discretion so long as the backtime imposed is within the
applicable presumptive range. Smith v. Pennsylvania Board of Probation and Parole, 574 A.2d 558,
560 (Pa. 1990).
Here, Williams was convicted of two counts of DUI and recommitted to serve 12 months’
backtime as a CPV. The presumptive range for one count of DUI is three to six months. 37 Pa. Code.
§75.2. Thus, the aggregate range the Board could have imposed was six to twelve months’ backtime.
As Williams’ backtime does not exceed the aggregate range, his claim lacks merit.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Emmanuel Williams, :
Petitioner :
: No. 1176 C.D. 2021
v. :
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 7th day of November, 2022, the Order of the
Pennsylvania Parole Board dated October 14, 2021, is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481335/ | USCA11 Case: 22-10536 Date Filed: 11/07/2022 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10536
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DYMERANCE JERMAINE ODOM,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:10-cr-14097-KMM-1
____________________
USCA11 Case: 22-10536 Date Filed: 11/07/2022 Page: 2 of 3
2 Opinion of the Court 22-10536
Before WILSON, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Dymerance Jermaine Odom, a federal prisoner proceeding
pro se, appeals the district court’s denial of his motion for a sen-
tence reduction under Section 404(b) of the First Step Act. 1 Perti-
nent here, among his other claims, Odom provided a newly ob-
tained Psychological and Behavior Assessment (PBA) evaluation
form from the School District of Indian River County, Vero Beach,
Florida and requested the court re-evaluate his prior request for a
downward variance based on Diminished Mental Capacity. The
PBA form evidences his mental capacity—deemed within the Edu-
cable Mental Handicapped range—during his adolescence. The
District Court denied Odom’s motion for a sentence reduction.
Odom timely appealed.
The United States Supreme Court held “the First Step Act
allows district courts to consider intervening charges of law or fact
in exercising of their discretion to reduce a sentence pursuant to
the First Step Act.” Concepcion v. United States, 142 S. Ct. 2389,
2404 (2022). And, because district courts must “consider nonfrivo-
lous arguments presented by the parties, the First Step Act requires
district courts to consider intervening changes when parties raise
them.” Id. at 2396. District courts ruling on First Step Act motions
1 First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First Step Act”).
USCA11 Case: 22-10536 Date Filed: 11/07/2022 Page: 3 of 3
22-10536 Opinion of the Court 3
bear the “standard obligation to explain their decisions,” and ac-
cordingly must give a “brief statement of reasons” to “demonstrate
that they considered the parties’ arguments.” Id. at 2404.
Here, while the district court did address Odom’s argument
that he has since matured during his time in prison, the district
court failed to address Odom’s newly obtained PBA form or indi-
cate that it considered his claim for a diminished mental capacity
variance. Accordingly, we vacate and remand this case for further
consideration in light of Concepcion.
VACATED and REMANDED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481334/ | 21-2016
Macris v. Specialized Loan Servicing
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
7th day of November, two thousand twenty-two.
Present:
JOHN M. WALKER, JR.,
WILLIAM J. NARDINI,
BETH ROBINSON,
Circuit Judges.
_____________________________________
MARK K. MACRIS,
Plaintiff-Appellant,
v. 21-2016-cv
SPECIALIZED LOAN SERVICING, LLC.,
Defendant-Appellee,
EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendant.
_____________________________________
For Plaintiff-Appellant: BRIAN L. BROMBERG, Bromberg Law
Office, P.C., Brooklyn, NY. (Seth J.
Andrews, Law Offices of Kenneth Hiller,
PLLC, Amherst, NY, on the brief).
For Defendant-Appellee: BRIAN S. MCGRATH, Hinshaw & Culbertson
LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Western District of New
York (William M. Skretny, Judge) entered on July 22, 2021.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Mark K. Macris appeals from the grant of summary judgment by the
United States District Court for the Western District of New York to defendant Specialized Loan
Servicing, LLC (“SLS”). Macris previously jointly owned a mortgaged property with his ex-wife,
who assumed sole possession upon their divorce and, on August 14, 2012, removed Macris from
the deed. On March 6, 2015, U.S. Bank, the mortgagee, brought a foreclosure action against
Macris and his ex-wife regarding their former joint property. Macris established that he was no
longer an owner of the property, and upon SLS’s representation that he was not a necessary party,
the court removed him from the foreclosure action by an order of reference filed on November 20,
2015. While the foreclosure action was pending, SLS, the servicer of the mortgage note, contacted
Macris about catching up on his late mortgage payments, and reported the delinquent debt to
Experian, a credit reporting agency. The delinquent mortgage debt appeared on Macris’s credit
report dated May 19, 2016, which also stated that a “[f]oreclosure proceeding [had] started.”
Macris disputed this debt, which SLS investigated and confirmed as accurate. A copy of Macris’s
credit report following this investigation, dated July 27, 2016, continued to list the delinquent
mortgage debt, but also noted that the debt was disputed by the consumer. Macris sued SLS and
Experian, bringing claims against SLS under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
2
§§ 1681-1681x, 1681s-2(b) (Count I) and various provisions of the Fair Debt Collections Practices
Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p (Count V). Macris appeals the district court’s grant of
summary judgment for SLS on both counts. On appeal, this Court reviews a grant of summary
judgment de novo. Mario v. P&C Food Markets, Inc., 313 F.3d 758, 763 (2d Cir. 2002). We
assume the parties’ familiarity with the case.
Both claims turn largely on a single issue: whether releasing Macris from the foreclosure
action also simultaneously released him from liability under the mortgage note. The district court
correctly determined that it did not. Under New York law, a lender must elect to first pursue either
a foreclosure action or a deficiency action against a mortgage debtor; it cannot pursue both
simultaneously. N.Y. Real Property Actions and Proceedings Law § 1301. If a lender first
pursues a foreclosure action, a debtor must be “made a defendant in the [foreclosure] action, and
ha[ve] appeared or [ ] been personally served with the summons,” to be later pursued in a deficiency
action. N.Y. R.A.P.L. § 1371(1)–(3). The parties do not dispute that Macris was made a
defendant in the foreclosure action and was served with a proper summons. But Macris contends
that after the court dismissed him from the foreclosure proceeding, based on SLS’s representation
that he was not a necessary party, SLS was foreclosed from pursuing any future deficiency action
against Macris on the underlying debt, and therefore he did not owe the mortgage debt at the time
of the challenged reporting and debt collection activity. We disagree because whether or not SLS
could succeed in a deficiency action against Macris after his dismissal from the foreclosure action
is beside the point—nothing in the record indicates that SLS affirmatively released him from the
mortgage note when he was dismissed from the foreclosure action, and therefore he still owed the
mortgage debt at the time of the challenged disclosure and debt collection activity.
3
Summary judgment was appropriate on Macris’s FCRA claim because, having established
that Macris owed on the mortgage note, SLS did not inaccurately report the debt to a credit reporting
agency. Macris attempts to save his FCRA claim by arguing that SLS had a policy of never
reporting disputed credit events as disputed to credit reporting agencies. It is true that several other
circuits have held that failing to report a dispute can violate the FCRA’s requirement that furnishers
of credit information report “if an item of information disputed by a consumer is found to be
inaccurate or incomplete.” 15 U.S.C. § 1681s-2(b) (emphasis added). But they have also held that
a furnisher does not provide “inaccurate or incomplete” information when it fails to report a
meritless dispute. See Seamans v. Temple Univ., 744 F.3d 853, 867, 867 n.11 (3d Cir. 2014);
Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir. 2009); Saunders v. Branch
Banking & Tr. Co. of VA, 526 F.3d 142, 150 (4th Cir. 2008). Here, SLS investigated Macris’s
credit dispute and found it frivolous. Having found the dispute to be without merit, SLS had no
obligation to report the debt as disputed. Furthermore, even if SLS had an obligation to report the
item as disputed while responding to Experian’s notice that the item was disputed, the record
indicates that the dispute response SLS sent to Experian contained a dispute code and was clearly
labeled as a “dispute response.” App’x 608–09. Macris makes no argument as to why this form
does not constitute sufficient notice of the dispute. The district court therefore appropriately
granted SLS’s summary judgment motion as to the FCRA claim.
The FDCPA claim fails for similar reasons. Summary judgment was appropriate on the
portions of the FDCPA claim brought under 15 U.S.C. §§ 1692d, 1692e(2), 1692e(5), 1692e(10),
and 1692f because they are predicated entirely on SLS’s efforts to collect a debt that Macris alleges
he did not owe. But because Macris remained indebted on the mortgage note during the relevant
4
period, even after his dismissal from the foreclosure action, Macris did owe on that debt, and SLS
did not violate the FDCPA in trying to collect it through otherwise lawful means.
Macris’s FDCPA claim under § 1692e(8) warrants slightly more consideration. As with
his FCRA claim, Macris contends that SLS had an obligation to report the debt as disputed to credit
reporting agencies upon his filing of such a dispute. But even if this argument were correct, we
again observe that the dispute response form sent from SLS to Experian clearly indicated that the
account was disputed, App’x 608–09, and Macris has not explained why this notice was
insufficient. Accordingly, the district court properly granted SLS’s motion for summary judgment
as to the FDCPA claim.
Macris’s notice of appeal also includes the district court’s July 8, 2021, Decision and Order
denying his motion to strike an SLS witness. However, nowhere in his briefing does he press this
argument, and we therefore find it abandoned. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,
545 n.7 (2d Cir. 2005) (issues not raised in briefs are abandoned). We have reviewed the remaining
arguments and find them to be without merit. For the foregoing reasons, the order of the district
court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
5 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481339/ | USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 1 of 20
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10335
____________________
IN RE: ZANTAC (RANITIDINE)
PRODUCTS LIABILITY
LITIGAION
___________________________________________________
____
PLUMBERS & PIPEFITTERS LOCAL UNION 630
WELFARE FUND,
Plaintiff-Appellant,
versus
GLAXOSMITHKLINE LLC,
GLAXOSMITHKLINE (AMERICA) INC.,
GLAXOSMITHKLINE PLC,
BOEHRINGER INGELHEIM PHARMACEUTICALS, INC.,
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 2 of 20
2 Opinion of the Court 21-10335
BOEHRINGER INGELHEIM CORPORATION, et. al.,
Defendants-Appellees,
PAR PHARMACEUTICALS, INC.,
Defendant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-md-02924-RLR
____________________
Before JORDAN and LAGOA, Circuit Judges.*
PER CURIAM:
This appeal involves the dismissal of one of the master com-
plaints in In re Zantac (Ranitidine), MDL No. 2924. That complaint
was described below as the Consolidated Third-Party Payor Class
Complaint, and we will refer to it as the CTPPCC here.
* After oral argument, Judge Luck recused himself from this case. This opinion
is therefore issued by a quorum. See 28 U.S.C. § 46(d); 11th Cir. R. 34-2.
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 3 of 20
21-10335 Opinion of the Court 3
I
Three plaintiffs—Plumbers & Pipefitters Local Union 630,
the NECA-IBEW Welfare Trust Fund, and the Indiana Laborers
Welfare Fund—filed the CTPPCC.
Asserting a number of claims, the CTPPCC plaintiffs sued a
number of defendants on behalf of numerous purported nation-
wide and state classes. They alleged that they provide eligible
members with health and welfare benefits, including the payment
of and reimbursement for prescription drugs on behalf of their
members (and their dependents). Those members filled prescrip-
tions requiring reimbursement for Zantac and ranitidine products
in several states.
The CTPPCC divided the defendants into two main groups:
(a) the brand-name manufacturer defendants (who manufactured
and sold Zantac); and (b) the generic manufacturer defendants
(who manufactured and sold generic versions of Zantac containing
ranitidine as an active ingredient). The CTPPCC contained nine
claims: Count 1, a claim under the Racketeer Influence and Cor-
rupt Organizations (RICO) Act, was asserted against the brand-
name manufacturer defendants on behalf of nationwide and state
classes. Counts 2–9 (claims for breach of express warranties, breach
of implied warranties, violations of the Magnuson-Moss Warranty
Act, fraud, negligent misrepresentation and omission, violations of
state consumer protection laws, unjust enrichment, and
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 4 of 20
4 Opinion of the Court 21-10335
negligence) were asserted against the generic manufacturer de-
fendants and GlaxoSmithKline on behalf of a nationwide class. 1
A number of defendants moved to dismiss the CTPPCC.
One of the grounds they asserted for dismissal was that the
CTPPCC constituted an impermissible shotgun pleading under
Eleventh Circuit law. The district court agreed with the defendants
on this point, ruled that the CTPPCC was indeed a shotgun plead-
ing, and dismissed it without prejudice and with leave to amend.
See D.E. 2515 at 13 (summary of ruling: “The Court concludes that
the Class Complaints [including the CTPPCC] are both impermis-
sible shotgun pleadings. . . . [T]he Class Complaints are dismissed
without prejudice and with leave to amend.”); D.E. 2515 at 54 (dis-
missing the CTPPCC without prejudice and with leave to amend).
With respect to its shotgun pleading ruling, the district court
explained that the CTPPCC, like other class complaints filed in the
MDL, suffered from two problems. First, it lumped 67 related and
unrelated defendants across two groups, thereby creating confu-
sion and failing to provide a factual basis to distinguish the conduct
of individual defendants. See id. at 22. Second, it incorporated 519
background and factual paragraphs into every count, forcing the
defendants to sift out irrelevant matters and making it virtually im-
possible to know which factual allegations were intended to sup-
port which claims for relief. See id. at 22–23. The court noted that
1 Giventhe procedural basis for our decision, we dispense with further details
concerning the claims asserted by the CTPPCC plaintiffs.
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 5 of 20
21-10335 Opinion of the Court 5
its ruling might lead to longer class complaints but said that it could
not permit pleadings that did not comply with Rule 8, provided in-
adequate notice, and unduly burdened the parties. See id. at 23. It
expressed confidence that the plaintiffs, including the CTPPCC
plaintiffs, could replead with precision given its rulings and the ben-
efit of some discovery since the filing of the class complaints. See
id.
The district court explained that it could not definitively rule
on some of the standing questions because of the shotgun pleading
problems presented by the CTPPCC. See id. at 23–24. Neverthe-
less, it resolved some of the standing issues. For example, it ruled
that the named class plaintiffs—including the CTPPCC plaintiffs—
lacked standing to assert claims on behalf of putative class members
whose own claims arose under the laws of other states. See id. at
36. On this ground, the district court dismissed without prejudice
Counts 2, 3, and 5–9 of the CTPPCC to the extent they were
brought under the laws of certain states. See id. at 37–38. 2
In separate orders, the district court granted the motions of
several groups of defendants to dismiss certain claims (including
those asserted in the CTPPCC) on the basis of federal preemption.
Some of the dismissals on this ground were with prejudice, but
2These jurisdictions were Alaska, Arkansas, California, Connecticut, Dela-
ware, the District of Columbia, Hawaii, Idaho, Kansas, Massachusetts, New
Hampshire, New York, North Dakota, Oklahoma, Puerto Rico, Rhode Island,
South Dakota, Vermont, Virginia, Washington, and West Virginia.
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 6 of 20
6 Opinion of the Court 21-10335
others were without prejudice and with leave to amend. See gen-
erally D.E. 2512, 2513, 2516, 2532.
All three of the CTPPCC plaintiffs declined to amend their
complaint. See D.E. 2694 at 2. Of the three, only Plumbers filed a
notice of appeal.3
II
More than three weeks before Plumbers filed its initial brief,
the appellees (who were the defendants below) moved to dismiss
the appeal for lack of jurisdiction. Focusing on the orders and is-
sues identified in the notice of appeal, the appellees argued that the
appeal was moot because Plumbers apparently did not seek to ap-
peal one of the district court’s independent grounds for dismissal
of the CTPPCC—that it constituted a shotgun pleading. Because
that ground was apparently not going to be challenged, the appel-
lees asserted that nothing that this court could do on appeal could
revive the CTPPCC.
3 Plumbers admits that its notice of appeal erred in listing the district court’s
order on innovator liability claims, D.E. 2516, rather than the orders dismiss-
ing certain claims on preemption and standing grounds, D.E. 2515. See Ap-
pellants’ Resp. to Mot. to Dismiss at 8 n.2. But Plumbers is correct that, under
our precedent, “an appeal is not lost” if such a mistake does not “mislead or
prejudice the respondent.” Nichols v. Ala. State Bar., 815 F.3d 726, 730 (11th
Cir. 2016) (citations omitted). Here, Plumbers sufficiently indicated that it
wished to appeal the district court’s rulings on “‘preemption and standing
grounds.’”
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 7 of 20
21-10335 Opinion of the Court 7
In its initial brief, Plumbers challenged the dismissal of the
CTPPCC only with respect to the district court’s standing and
preemption rulings. See Appellants’ Br. at iii–iv (table of contents),
1–2 (statement of the issues), 23–26 (summary of the argument),
27–41 (argument on standing), 41–57 (argument on preemption).
Nowhere in that brief did Plumbers contest the district court’s rul-
ing that the CTPPCC constituted a shotgun pleading that was sub-
ject to dismissal.
On the same day that it filed its initial brief, Plumbers re-
sponded to the appellees’ motion to dismiss the appeal for lack of
jurisdiction. Plumbers explained that it had chosen not to amend
the CTPPCC as permitted by the district court, and as a result un-
der Eleventh Circuit law the dismissal without prejudice became
final at the end of the amendment period, thereby permitting it to
appeal. See, e.g., Schuurman v. Motor Vessel Betty K V, 798 F.2d
42, 445 (11th Cir. 1986). Plumbers also maintained that the shot-
gun pleading ruling made no difference to appealability because it
was barred from amending certain claims (e.g., those that relied on
a misbranding theory). The shotgun pleading ruling, Plumbers ar-
gued, only constrained the manner in which it was to replead any
theories left open by the preemption rulings. And because it had
chosen not to amend the CTPPCC, it would have no claims to al-
lege in an amended complaint that followed the court’s shotgun
pleading instructions. Finally, Plumbers disagreed with the appel-
lees’ mootness argument. According to Plumbers, the appeal was
not moot because if we reversed the standing and preemption
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 8 of 20
8 Opinion of the Court 21-10335
rulings, it could pursue those theories on remand and then would
follow the district court’s instructions as to how to remedy the
shotgun pleading problems.
III
A threshold issue is whether Plumbers has standing to pur-
sue its claims. See Bowsher v. Synar, 478 U.S. 714, 721 (1986). Ar-
ticle III standing has three components: (1) the plaintiff must have
“suffered an injury in fact, (2) that is fairly traceable to the chal-
lenged conduct of the defendant[s], and (3) that is likely to be re-
dressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,
578 U.S. 330, 338 (2016). “[A]t the pleading stage, the plaintiff must
clearly . . . allege facts demonstrating each element” of stand-
ing. Id. (internal quotation marks omitted).
A
Here, the first element of standing is generally undisputed.
Plumbers has alleged that the manufacturers of Zantac and other
ranitidine products caused them economic injury “because [it]
made payments or reimbursements for a product that was eco-
nomically worthless.” D.E. 888 at ¶ 14. Its alleged economic injury
satisfies Article III’s injury-in-fact requirement. See Debernardis v.
IQ Formulations, LLC, 942 F.3d 1076, 1084 (11th Cir. 2019) (“Cer-
tainly, an economic injury qualifies as a concrete injury.”).
We turn, then, to traceability. None of the defendants here
deny that they manufactured ranitidine products, but the CTPPCC
plaintiffs originally brought suit against dozens of defendants.
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 9 of 20
21-10335 Opinion of the Court 9
Plumbers listed 50 of those defendants in its notice of appeal, and
later clarified in its reply brief that it had “abandoned every claim
against any brand-name defendant,” Appellant’s Reply Br. at 4, so
we granted a joint motion to dismiss those defendants from this
appeal. Of the remaining defendants, Plumbers has only alleged
“exemplar payments for generic ranitidine” for, at most, 14 of the
22 named generic manufacturer defendants.4
Plumbers had to sufficiently allege how its injuries are trace-
able to the conduct of each defendant. See Wilding v. DNC Ser-
vices Corp., 941 F.3d 1116, 1126 (11th Cir. 2019) (concluding that,
because some plaintiffs had failed to allege whether or not they do-
nated to a political candidate before or after certain false statements
were made, they had failed to allege that their injuries were fairly
4 Those defendants are Par Pharmaceutical Inc.; Amneal Pharmaceuticals
LLC; Amneal Pharmaceuticals of New York, LLC; Teva Pharmaceuticals
U.S.A., Inc.; Glenmark Pharmaceuticals, Inc., USA; Glenmark Pharmaceuti-
cals Ltd.; Wockhardt USA LLC; Wockhardt, Ltd; Sandoz Inc.; Lannett Co.,
Inc.; Nostrum Laboratories, Inc.; Strides Pharma, Inc.; Dr. Reddy’s Laborato-
ries Inc.; and Dr. Reddy’s Laboratories, Ltd. The defendants originally argued
that Plumbers only alleged representative reimbursements for 11 entities.
That is true, but some of those allegations could implicate multiple compa-
nies. For example, Plumbers alleges that it reimbursed purchases for products
made by “Wockhardt” but it is unclear if that implicates both Wockhardt USA
LLC and Wockhardt, Ltd. See D.E. 888 at ¶ 219. These two entities are sub-
sidiaries of Wockhardt, Ltd., and the CTPPCC plaintiffs referred to them col-
lectively as “Wockhardt” when describing the generic manufacturer defend-
ants in their complaint. See id. at ¶¶ 112–16. And at least one of the alleged
reimbursements is to a company called “Akorn Hi Tech,” which is not a de-
fendant in this litigation. See id. at ¶ 219.
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 10 of 20
10 Opinion of the Court 21-10335
traceable to those false statements). Because Plumbers only al-
leged injuries traceable to 14 defendants, it only has standing to
pursue its claims against those 14. Plumbers cannot haul into court
parties that did not allegedly cause harm, even on behalf of un-
named class members. See Stevens v. Osuna, 877 F.3d 1293, 1311
(11th Cir. 2017) (affirming dismissal of claims against a government
official because the plaintiff had failed to allege sufficient facts to
demonstrate a constitutional violation by that official). The district
court seemed to acknowledge this problem in its order but did not
clearly rule on the question.
Given Plumbers’ continued pursuit of its claims, we make
clear that we affirm the district court to the extent that it dismissed
for lack of standing Plumbers’ claims against defendants who it did
not allege caused it financial (or other) injury. As to the 14 defend-
ants who did manufacture products allegedly purchased by Plumb-
ers’ members (and who were then reimbursed by Plumbers), they
do not dispute that such an economic injury is fairly traceable to
them as the manufacturers of those drugs.
Plumbers seeks redress for its injuries under two federal laws
and dozens of state laws. We assume those claims are meritorious
when assessing Article III standing. See Culverhouse v. Paulson &
Co., Inc., 813 F.3d 991, 994 (11th Cir. 2016) (citing City of
Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)). A favorable
decision on one of Plumbers’ claims—all of which stem from the
same pocketbook injury—“would likely redress that injury by
awarding [Plumbers] damages against” the responsible defendants.
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 11 of 20
21-10335 Opinion of the Court 11
See Fox v. Ritz-Carlton Hotel Co., L.L.C., 977 F.3d 1039, 1047 (11th
Cir. 2020) (citing Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th
Cir. 2012)). And because Plumbers has standing on at least one of
its claims, this “is sufficient to satisfy Article III’s case-or-contro-
versy requirement” with respect to its appeal. Cf. Rumsfeld v.
F.A.I.R., Inc., 547 U.S. 47, 52 n.2 (2006) (explaining that the pres-
ence of one party with standing is sufficient to establish a justiciable
matter on appeal).
B
Plumbers challenges another one of the district court’s
standing rulings on appeal: the dismissal of “claims on behalf of
class members whose claims arise under the laws of states in which
no named [CTPPCC plaintiff] reside[s] or purchased ranitidine
products.” D.E. 2515 at 34. Plumbers argues that its ability to raise
these claims for putative class members is one of representative ca-
pacity under Federal Rule of Civil Procedure 23—not one of con-
stitutional significance under Article III. We agree.
“[S]tanding is not dispensed in gross.” DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 353 (2006). A plaintiff “must demon-
strate standing separately for each form of relief sought,” and
“standing as to one claim [does not] suffice for all claims arising
from the same ‘nucleus of operative fact.’” Id. at 352. “Standing
requirements,” moreover, “apply with no less force in the class ac-
tion context.” Fox, 977 F.3d at 1046 (citing Lewis v. Casey, 518 U.S.
343, 357–58, 358 n.6 (1996)).
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 12 of 20
12 Opinion of the Court 21-10335
Article III has “two related, but distinct” requirements for
class representative standing. See id. (citing Mills v. Foremost Ins.
Co., 511 F.3d 1300, 1307 (11th Cir. 2008)). First, the class repre-
sentative must satisfy the “individual standing prerequisites” of Ar-
ticle III. See Mills, 511 F.3d at 1307. Second, the class representa-
tive “must also ‘be part of the class and possess the same interest
and suffer the same injury as the class members.’” Id. (quoting
Prado-Steinman ex. Rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th
Cir. 2000)).
Plumbers alleged that the unnamed class members all suf-
fered similar “economic losses” from the defendants’ “breaches of
express and implied warranties, wrongful acts, fraudulent misrep-
resentations and omissions, and negligence.” D.E. 888 at ¶ 491.
Recognizing that some of the class members’ claims may fall under
the laws of other states, Plumbers makes certain representations
about the similarities of some of its claims from state to state. For
Counts 2, 3, 7, and 9, Plumbers alleges that the laws of those states
are substantially similar to each other, or that the allegedly injuri-
ous conduct falls within the meaning of the laws of all relevant ju-
risdictions. With respect to the claims for common law fraud
(Count 5) and negligence (Count 6), Plumbers does not identify
any particular jurisdiction as the source of law underlying its
claims. Plumbers’ lack of specificity on this choice-of-law question
may present a merits problem, but we are unconvinced that it con-
stitutes an Article III standing problem.
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 13 of 20
21-10335 Opinion of the Court 13
The question the defendants raise—whether Plumbers itself
has causes of action under the dozens of state statutes it invokes—
is not a standing question at all. It is, instead, a Rule 12(b)(6) merits
issue. Four of our sister circuits have reached similar conclusions.
See Morrison v. YTB International, Inc., 649 F.3d 533, 536 (7th Cir.
2011); Langan v. Johnson & Johnson Consumer Companies, Inc.,
897 F.3d 88, 93, 96 (2d Cir. 2018); In re Asacol Antitrust Litig., 907
F.3d 42, 49 (1st Cir. 2018); Mayor of Baltimore v. Actelion Pharms.
Ltd., 995 F.3d 123, 134 (4th Cir. 2021).
In Morrison and Langan, the Seventh and Second Circuits
held that whether class members’ claims fall under another state’s
laws is a Rule 23 matter and not a standing issue. In Morrison, the
Seventh Circuit rejected the defendants’ argument that plaintiffs
residing outside the state of Illinois lacked standing to pursue a class
claim under the Illinois Consumer Fraud Act, explaining that “this
application of choice-of-law principles has nothing to do with
standing, though it may affect whether a class should be certified—
for a class action arising under the consumer-fraud laws of all 50
states may not be manageable, even though an action under one
state’s law could be.” 649 F.3d at 536. In Langan, the Second Cir-
cuit applied Morrison to a case more similar to this one and con-
cluded that “as long as the named plaintiffs ha[d] standing to sue
the named defendants, any concern about whether it is proper for
a class to include out-of-state, nonparty class members with claims
subject to different state laws is a question of predominance under
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 14 of 20
14 Opinion of the Court 21-10335
Rule 23(3)(b), . . . not a question of ‘adjudicatory competence’ un-
der Article III.” 897 F.3d at 93 (citations omitted).
The First and Fourth Circuits have been slightly more exact-
ing. The First Circuit agreed with the Seventh and Second Circuits
in In re Asacol, but only so long as “the named plaintiffs parallel
those of the putative class members in the sense that, assuming a
proper class is certified, success on the claim under one state’s law
will more or less dictate success under another state’s law.” 907
F.3d at 49. Finally, the Fourth Circuit explained in Actelion Phar-
maceuticals that a plaintiff may have failed to state a claim under a
state statute’s requirements by failing to reside in the state whose
law it invoked, but “[n]onetheless, the claims that the plaintiffs
made on behalf of class members who purchased [the drug at issue]
in States other than [the states in which the plaintiffs resided] need
not be stricken or disregarded;” those counts “define[d] class mem-
bers’ claims” and “may be considered in determining whether the
plaintiffs’ claims” satisfy the typicality and commonality require-
ments of Rule 23. See 995 F.3d at 134. 5
5 The Fourth Circuit reasoned that the defendants’ arguments against standing
sounded more in what it called “statutory standing,” Actelion Pharmaceuti-
cals, 995 F.3d at 134, or what the Supreme Court has characterized as an in-
quiry into the nature of a litigant’s cause of action to sue under a statute, which
is “not derived from Article III” at all. See Lexmark Intern, Inc. v. Static Con-
trol Components, Inc., 572 U.S. 118, 126 (2014). According to the Supreme
Court, these labels cover “three broad principles: the general prohibition on a
litigant’s raising another person’s legal rights, the rule barring adjudication of
generalized grievances more appropriately addressed in the representative
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 15 of 20
21-10335 Opinion of the Court 15
In sum, all circuits which have addressed whether a plaintiff
can represent unnamed class members whose claims fall under dif-
ferent states’ laws have concluded that it is a question that concerns
Rule 12(b)(6) or Rule 23—not Article III. A leading class action
treatise is of the same view. See William B. Rubenstein, 1 Newberg
on Class Actions § 2:6 (5th ed. & Dec. 2021 update) (“[W]hen a class
plaintiff shows individual standing, the court should proceed to
Rule 23 criteria to determine whether, and to what extent, the
plaintiff may serve in a representative capacity on behalf of the
class.”).
Our precedents do not dictate otherwise. In Prado, we ex-
plained that “it is well-settled that prior to the certification of a
class, and technically speaking before undertaking any formal typi-
cality or commonality review, the district court must determine
that at least one named class representative has Article III standing
to raise each class subclaim.” 221 F.3d at 1279. Accordingly, we
remanded and directed the district court to “ensure that at least one
named representative of each class or subclass ha[d] standing for
branches, and the requirement that a plaintiff’s complaint fall within the zone
of interests protected by the law invoked.” Id. at 126 (citation omitted). In
Actelion Pharmaceuticals, the Fourth Circuit held that “the plaintiffs did not
allege facts to show that they satisfied the statutory requirements of States
other than Maryland, California, and Florida” and consequently could “not
seek relief for their own injuries under those States’ statutes.” 995 F.3d at 134
(citing CGM, LLC v. BellSouth Telecomms, Inc., 664 F.3d 46, 52 (4th Cir.
2011) (“A dismissal for lack of statutory standing is effectively the same as a
dismissal for failure to state a claim.”)).
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 16 of 20
16 Opinion of the Court 21-10335
each proffered class or subclass claim.” Id. at 1280. But we did so
in the context of a Rule 23(f) interlocutory appeal and through the
lens of Rule 23(a). See id. at 1282–83. Nothing in Prado suggests
an Article III limitation on a class representative’s ability to repre-
sent unnamed class members based on the laws of states where
their similar injuries took place. To the contrary, Prado noted the
“fluid nature of class certification rulings” and explained that “ex-
tensive interlocutory review” of the standing objections seemed
“particularly inappropriate” given that the “factual record is not
fully developed” and “at worst several new named representatives
would have to be added to the class or several of the subclaims
would have to be amended or dropped.” Id. at 1278.
In Mills, we similarly “stress[ed] that the fact that the [named
plaintiffs] ha[d] standing as putative class representatives [was] an
issue distinct from whether they qualif[ied] under Rule 23 to repre-
sent the class.” 511 F.3d at 1307. So too here. Plumbers has stand-
ing to bring some of its claims, but whether it is ultimately an ap-
propriate class representative for individuals whose claims may
arise under the laws of other states is a question falling under Rules
12(b)(6) or 23 and one that has yet to be argued, much less decided.
Finally, in Fox we reasoned that the plaintiff had standing to
sue Ritz-Carlton for the conduct of restaurants he had never visited
because “Fox and the class members have suffered the same eco-
nomic injury from Ritz-Carlton’s gratuity and sales tax practices
across its properties in Florida,” and “[w]hile those injuries may
have occurred on different days at different restaurants, those facts
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 17 of 20
21-10335 Opinion of the Court 17
do not change what injuries Fox alleged those class members suf-
fered.” 977 F.3d at 1047. The same is true in this case. The fact
that the unnamed class members’ injuries may have occurred in
other states does not change things so long as the alleged injuries
and interests are substantially the same.
In sum, we conclude that Plumbers had Article III standing
to bring its claims against the defendants who allegedly sold
ranitidine products to its members and for which it provided exem-
plar reimbursements. For class representation purposes, “the
claims that the plaintiffs made on behalf of class members who [re-
imbursed purchases of ranitidine products in other states] need not
be stricken or disregarded,” as those claims “may be considered”
when determining the appropriateness of class certification under
Rule 23. See Actelion Pharmaceuticals Ltd., 995 F.3d at 134. The
district court erred in ruling otherwise.
IV
That said, the district court’s ruling that the CTPPCC con-
stituted a shotgun pleading was an independent basis for dismissal.
To recap, the district court concluded that the CTPPCC lumped
over 60 related and unrelated defendants across two groups,
thereby creating confusion and failing to provide a factual basis for
distinguishing the conduct of individual defendants. Moreover,
each count of the CTPPCC incorporated the same preceding 519
background and factual paragraphs, making it virtually impossible
to know which factual allegations are intended to support which
claim for relief.
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 18 of 20
18 Opinion of the Court 21-10335
As noted, Plumbers has not challenged the shotgun pleading
ruling in any way on appeal. And that is a problem, because “[t]o
obtain reversal of a district court judgment that is based on multi-
ple, independent grounds an appellant must convince us that every
stated ground for the judgment against him is incorrect. When an
appellant fails to challenge properly on appeal one of the grounds
on which the district court based its judgment, he is deemed to
have abandoned any challenge of that ground, and it follows that
the judgment is due to be affirmed.” Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). By not attacking the
shotgun pleading ruling, Plumbers has left us with no choice but to
affirm the dismissal of the CTPPCC.
Plumbers cannot avoid the effect of the principle articulated
in Sapuppo by arguing that the shotgun pleading concerns do not
matter because it is only seeking to appeal the standing and
preemption rulings and because it did not have the opportunity to
fix the shogun pleading problems. And it also cannot get around
Sapuppo by arguing it will remedy the shotgun pleading problems
on remand if we reverse the standing and preemption rulings.
There is no futility exception to Sapuppo. Had Plumbers wished
to preserve its ability to amend its complaint after an appeal, it
should have fixed the shotgun pleading problems prior to appeal-
ing.
The appellees argue in their motion to dismiss that Plumb-
ers’ failure to challenge the shotgun pleading ruling makes the ap-
peal moot, but we disagree. An appeal must be dismissed as moot
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 19 of 20
21-10335 Opinion of the Court 19
if an “event occur[ring] while [the] appeal is pending . . . makes it
impossible for the court to grant ‘any effectual relief whatever’ to
a prevailing party.” Church of Scientology of California v. United
States, 506 U.S. 9, 12 (1992) (citation omitted). Typically, that event
is external to the parties’ appellate litigation conduct. See, e.g.,
United States v. Juvenile Male, 564 U.S. 932, 937 (2011) (juvenile’s
appeal of supervision condition requiring registration as a sex of-
fender became moot when the order of supervision expired).
We recognize that some of our sister circuits have couched
the failure to appeal all alternative grounds in mootness terms. See,
e.g., R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 443 n.7
(6th Cir. 2005); Horizon Bank & Trust Co. v. Massachusetts, 391
F.3d 48, 53–54 (1st Cir. 2004). But the better approach, and the one
we have followed in cases like Sapuppo, is to treat that failure as
requiring an affirmance on the merits. See also Nagle v. Alspach, 8
F.3d 141, 143 (3d Cir. 1993); Williams v. Leach, 938 F.2d 769, 772–
73 (7th Cir. 1991); 5 C.J.S. Appeal and Error § 839 (March 2022 up-
date).
Mootness, according to the Supreme Court, is an Article III
concern, see, e.g., Arizonans for Official English v. Arizona, 520
U.S. 43, 67 (1997), and we have never suggested that an appellant’s
failure to challenge all alternative grounds on appeal leaves us with-
out a justiciable case or controversy. “[A]s long as the parties have
a concrete interest, however small, in the outcome of the litigation,
the case is not moot.” Knox v. Service Employees, 567 U.S. 298,
307–-08 (2012) (internal quotation marks and citation omitted).
The appellees’ argument “confuses mootness with the merits”
USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 20 of 20
20 Opinion of the Court 21-10335
because the “prospects of success are . . . not pertinent to the moot-
ness inquiry.” Chafin v. Chafin, 568 U.S. 165, 174 (2013). We there-
fore conclude that Plumbers’ failure to challenge the district court’s
shotgun pleading ruling does not deprive us of Article III jurisdic-
tion.
IV
Because Plumbers has allegedly been injured by some of the
defendants and those injuries are redressable by a favorable deci-
sion, it has Article III standing to pursue some of its claims. Its abil-
ity (or inability) to sue under the laws of states where it never re-
imbursed purchases of ranitidine by unnamed class members does
not implicate Article III standing, and the district court’s conclusion
to the contrary was mistaken. But Plumbers was put on notice,
before it filed its initial brief, that a failure to challenge the district
court’s shotgun pleading ruling could be problematic. By not con-
testing that ruling, Plumbers has given us no choice but to affirm
the dismissal of the CTPPCC.
DISMISSED IN PART, REVERSED IN PART, and
AFFIRMED IN PART. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481341/ | Case: 21-2142 Document: 36 Page: 1 Filed: 11/07/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TEELA NORRIS,
Petitioner
v.
DEPARTMENT OF COMMERCE,
Respondent
______________________
2021-2142
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-19-0724-I-3.
______________________
JUDGMENT
______________________
EJIKE OBINECHE, Obineche Law Firm, LLC, Greenbelt,
MD, argued for petitioner.
KARA WESTERCAMP, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY.
______________________
THIS CAUSE having been heard and considered, it is
Case: 21-2142 Document: 36 Page: 2 Filed: 11/07/2022
ORDERED and ADJUDGED:
PER CURIAM (DYK, TARANTO, and HUGHES, Circuit
Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
November 7, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481344/ | Case: 21-2327 Document: 36 Page: 1 Filed: 11/07/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE: ONE LOVE BREWERY, LLC,
Appellant
______________________
2021-2327
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
88407202.
______________________
JUDGMENT
______________________
KEVIN CHARLES CAIN, Sulloway & Hollis, PLLC, Bos-
ton, MA, argued for appellant One Love Brewery, LLC.
MARY BETH WALKER, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, ar-
gued for appellee Katherine K. Vidal. Also represented by
PETER J. AYERS, THOMAS L. CASAGRANDE, CHRISTINA J.
HIEBER, THOMAS W. KRAUSE, FARHEENA YASMEEN
RASHEED.
______________________
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
Case: 21-2327 Document: 36 Page: 2 Filed: 11/07/2022
PER CURIAM (DYK, TARANTO, and HUGHES, Circuit
Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
November 7, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481348/ | [Cite as In re R.H, 2022-Ohio-3961.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
IN RE:
R.H., CASE NO. 3-22-18
NEGLECTED CHILD.
OPINION
[CARL H. - APPELLANT]
[NICOLE H. - APPELLANT]
IN RE:
H.S., CASE NO. 3-22-19
ABUSED AND/OR NEGLECTED CHILD.
OPINION
[NICOLE H. - APPELLANT]
IN RE:
C.S., CASE NO. 3-22-20
ABUSED AND/OR NEGLECTED CHILD.
OPINION
[NICOLE H. - APPELLANT]
Case No. 3-22-18, 19 and 20
Appeals from Crawford County Common Pleas Court
Juvenile Division
Trial Court Nos. C 2215113, C 2215114 and C 2215115
Judgments Reversed and Causes Remanded
Date of Decision: November 7, 2022
APPEARANCES:
Adam Charles Stone for Appellants
Michael J. Wiener for Appellee
SHAW, J.
{¶1} Nicole H. and Carl H. (collectively “appellants”) bring this appeal from
the April 18, 2022 judgment of the Crawford County Common Pleas Court, Juvenile
Division, awarding legal custody of their child R.H. to Rhonda R. Nicole also
appeals the award of legal custody of her two other children, H.S. and C.S., to Chris
and Abbie L.
-2-
Case No. 3-22-18, 19 and 20
Background
{¶2} Nicole H. is the mother of three children: H.S., born in August of 2010,
C.S., born in June of 2008, and R.H., born in June of 2016. Michael S. is the father
of H.S. and C.S., and Carl H. is the father of R.H.
{¶3} On September 22, 2021, complaints were filed alleging that H.S and
C.S. were abused and neglected children pursuant to R.C. 2151.031(D), and R.C.
2151.03(A)(2), respectively. That same date a complaint was filed alleging that R.H.
was a neglected child pursuant to R.C. 2151.03(A)(2). Following the filing of the
complaints, a GAL was appointed for the children and Nicole was appointed
counsel.
{¶4} On October 18, 2021, the matter proceeded to an adjudication hearing
for all three children.1 Nicole and Carl were present for the hearing but Michael, the
father of H.S. and C.S., failed to appear despite receiving notice. The trial court’s
judgment entry reflects that Nicole admitted that H.S. and C.S. were abused and
neglected as alleged, and that Nicole and Carl both admitted that R.H. was neglected
as alleged. Based on Nicole and Carl’s admissions and their stipulation that the
evidence was sufficient to support the allegations, H.S. and C.S. were determined
to be abused and neglected children and R.H. was determined to be a neglected
child.
1
No transcript of this hearing was provided.
-3-
Case No. 3-22-18, 19 and 20
{¶5} The trial court’s judgment entry indicated that all parties consented to
proceed to the dispositional hearing immediately after the adjudication hearing.
Regarding the disposition, the trial court determined that it would not be in the
children’s best interests to have them returned to their prior home with Nicole and
Carl at that time. H.S. and C.S. were then placed in the temporary custody of
Christopher and Abbie L., a kinship placement. R.H. was placed in the temporary
custody of Rhonda R., a relative placement. The children’s services agency retained
protective supervision over the children. The cases were set for a review hearing on
January 4, 2022.
{¶6} According to a journal entry filed on January 4, 2022, a “review”
hearing was held on that same date as previously scheduled. The entry indicated that
all parties agreed to “maintain the status quo.” The next “review hearing” was
scheduled for April 12, 2022, at 9 a.m.
{¶7} On March 10, 2022, Nicole’s appointed counsel filed a motion to
withdraw. Within a week, that motion was granted. Nicole was appointed a new
attorney on March 16, 2022.
{¶8} Also on March 16, 2022, “Notice[s] of Hearing” were filed indicating
that a hearing would be held on the children’s cases on April 12, 2022 “for purposes
of Review.” (Emphasis added.)
-4-
Case No. 3-22-18, 19 and 20
{¶9} On March 28, 2022, the agency filed a “Semiannual Administrative
Review” in each child’s case. The documents indicated that the permanency goal
for all three children was to return the children to their parents. The documents
stated that the permanency goal did not need to be modified and that the estimated
date to achieve the goal was September 17, 2022. In the documents the agency
ultimately recommended that the children stay with their temporary custodians
while the parents were given more time to complete their case plan goals.
{¶10} On April 11, 2022, a new attorney filed a notice of appearance on
behalf of Nicole.
{¶11} On April 12, 2022, the cases proceeded to a “review hearing” as
scheduled. What follows is a transcript of what occurred at the “review hearing.”
THE COURT: * * * This matter came on for review at 9:00, it is
now 10:05. Attorney Brown had filed a notice of appearance
yesterday, but she has not shown, nor has her client shown. We’ve
been waiting an hour and five minutes. The Court’s aware now
that Miss Brown, for some reason, is in a three day jury trial,
which I think she would have known about that yesterday when
she filed her notice of appearance.
Let’s put on – we’re reviewing this case right now. What’s
going on?
MR. WEINER: Your Honor, I just ask to give a brief update as
to the status of the case for the Court –
BRITTANY BOWIN: So the parents have failed to allow me in
the house since December of 2021, therefore I have not been able
to monitor the home conditions. However, when I do show up to
make my visits, the outside of the home is still deplorable with
-5-
Case No. 3-22-18, 19 and 20
trash all throughout the yard. There’s still a trailer on the
property, so it’s not known if the family’s living in the house or
the trailer. When the case opened, they were living in the trailer.
At the time I believe the home was unlivable.
Parents have completed parenting classes, but they have
failed to show the knowledge they’ve learned in the parenting
classes. Carl – he is attending DV counseling, but he did get a
letter about two months ago for potential discharge for non-
compliance, him not showing up to his appointments. He’s not
consistent to the appointments. And Nicole is attending DV
counseling hopefully.
THE COURT: Okay. So also, I’m in possession – the Court wants
to take note that I’m in possession of an opinion written by Dr.
David Tennenbaum, dated January 28, 2022, which sort of
reiterates what you were saying, and the propensity of the parents
to comply with the case plan. Or the lack of their failure to comply
with the case plan.2
Mr. Flegm, what’s your thoughts?
MR. FLEGM: I’m aware and agreed with all of what the
caseworker, Brittany, has said. I also have spoken to all three of
the boys, but particularly the older two, who are the step children
of * * * Carl. And they have expressed repeatedly, as they again
did today, that they were in fear of Carl, [and] did not wish to go
back home. * * *
But there’s a pattern of physical and psychological abuse by
Carl of the two older boys. * * * I think it’s – their wellbeing and
best interest is not to be returned to the parents[.]
THE COURT: How are the boys doing in their present home
situation?
BRITTANY BOWIN: They’re doing really well. [R.H.] has
started displaying some behaviors in school, centralized [sic]
2
The report is not in the record.
-6-
Case No. 3-22-18, 19 and 20
behaviors. Rhonda is working with him on those behaviors. And
working to get him back into counseling. [H.S.] and [C.S.] are
doing really well. They’re attending counseling. * * * They’re
currently in sports and doing really well in school.
THE COURT: So Rhonda R[.] has [R.H.]?
BRITTANY BOWIN: Yes.
THE COURT: And he’s doing well?
BRITTANY BOWIN: Yes.
THE COURT: And it’s a stable home? And does [Rhonda] want
that legal and close?
BRITTANY BOWIN: Yes.
THE COURT: Are they here?
BRITTANY BOWIN: Yes.
THE COURT: Have they been advised of the – of – and they’ve
read the document we have presented them?
BRITTANY BOWIN: We have talked about legal custody during
the last two home visits * * * with both caregivers.
THE COURT: What about * * * [H.S.] and [C.S.]? They’re with
Chris and Abbie L[.]?
***
And they’re doing well as well?
BRITTANY BOWIN: Yes.
MR. FLEGM: Yes, they are.
-7-
Case No. 3-22-18, 19 and 20
THE COURT: And has Chris and Abbie L[.] expressed a desire
to have custody of those boys?
BRITTANY BOWIN: Yes.
THE COURT: And I guess, has Rhonda expressed a desire to
have custody of [R.H.]?
BRITTANY BOWIN: Yes.
THE COURT: And have they been explained that if they’d get
legal custody, it’s intended to be a permanent situation, even
though it’s not permanent, because anybody can come back and
review it?
BRITTANY BOWIN: Yes.
MR. WEINER: Are they here?
MR. FLEGM: They’re across the hall.
THE COURT: Why don’t we get ‘em in.
***
THE COURT: Okay. * * * I understand that these complaints
have been filed September 21st, 2021. So this has been a year and
a half.3
* * * [Temporary custodians enter the courtroom and the trial court
addresses them] * * *
THE COURT: Okay. The reason I brought you in here, is
because the Guardian has recommended that maybe we should
consider legal and close. And I think the – is that what your
thinking would be in the best interest of the children as well,
Michael?
3
This is inaccurate.
-8-
Case No. 3-22-18, 19 and 20
MR. WEINER: Yes, Your Honor.
THE COURT: Okay. Are you in the position to have legal
custody of these children?
[TEMPORARY CUSTODIANS]: Yes.
THE COURT: Do you want that?
[TEMPORARY CUSTODIANS]: Yes.
THE COURT: Do you understand it’s intended to be – if I do
that – it’s intended to be a permanent situation?
[TEMPORARY CUSTODIANS]: Yes.
THE COURT: I mean, nothing’s gonna be permanent, because
the rights of the parents still are in play. They can come back
down the road and ask for a review, based on a change of
circumstances or whatever.
But this Court finds that this case has been going on since
September 21st of 2000 – September 22nd, 2021, and I see no
improvement, or no ability to even consider returning these
children to the parents given the statements made by counsel and
the witnesses here.
There is a document that I want you to read, and if you want
to have these children, sign. You’re basically assuming
responsibility for the care, custody, and control of the children
involved respectively. And you’re telling me that’s what you
want?
[TEMPORARY CUSTODIANS]: Yes.
* * * [Temporary custodians sign the paperwork] * * *
THE COURT: * * * While [they are signing], Mr. Flegm, I want
you to reiterate what you told the Court off the record concerning
* * * where the agency wanted to go out to the home? * * *
-9-
Case No. 3-22-18, 19 and 20
And I think you said that the parents refused to allow it to
happen?
MR. FLEGM: I don’t know how many weeks ago it was, fairly
recent – three weeks ago. We had a family team meeting, and at
that meeting, Mr. Motter had been released, a new attorney had
been appointed by this Court. They refused to accept that new
attorney. They were gonna get their own counsel. I never received
anything, nobody ever received anything. The Court just got
notice of appearance just yesterday.
But at the hearing, because the caseworker had been unable
to get into the house for many, many months to check the status
of it, I said: Okay, we’re at this FTM, we’re all here right now,
let’s go out after this hearing. We’ll drive out, and we can inspect
the house.
Carl H[.] just, point blank, in not so many words, said no.
I’m going to consult – you can’t get in until I consult with an
attorney. Absolutely not.
THE COURT: Okay. So what I’m hearing then is the Ohio Job
and Family Services has been denied access for how many
months?
MR. FLEGM: December.
THE COURT: December. And wanted to go in three weeks ago,
and they were denied access again?
MR. FLEGM: Right.
THE COURT: And you as well, as Guardian?
MR. FLEGM: That’s correct.
THE COURT: Okay. Has the agreements been signed by
everybody?
BRITTANY BOWIN: Yes.
-10-
Case No. 3-22-18, 19 and 20
THE COURT: Okay. The record’s gonna reflect that Rhonda
R[.] has, in fact, signed a statement of understanding for legal
custody as well as * * * Abbie and Chris L[.] have also signed the
statement of understanding for legal custody.
The Court, on its own motion, is going to grant legal custody
to both sets of foster – or custodians, and close this file down. And
then if you wish to have child support, we can refer it to the Ohio
Job and Family Services, the CSEA, later on for child support. *
**
***
And I find it’s in the best interest to grant legal custody to the
respective custodians as we discussed in these matters and to close
this case.
So Michael, will you please prepare a Court order.
MR. WEINER: I’ll prepare the entry, Your Honor.
(April 12, 2022, Tr., 3- 13).
{¶12} On April 18, 2022, the trial court filed its final judgment entry
awarding legal custody of the children to their temporary custodians. The entry
began by summarizing the issues with Nicole’s attorney and by noting the fact that
Nicole and Carl were not present for what was originally styled as a review hearing.
{¶13} The entry then stated that the GAL “testified” that C.S. and H.S. were
afraid of Carl and that the children did not want to go home. The entry stated that
the GAL also “testified” that Nicole and Carl were not cooperative in this case. In
-11-
Case No. 3-22-18, 19 and 20
addition, the entry stated that the GAL “testified” that he thought it was in the best
interest of the children for legal custody to be awarded to the foster parents.
{¶14} The entry summarized the agency caseworker’s statements at the
hearing, but it incorrectly stated that the caseworker, too, “testified.” Further, the
entry stated that both sets of temporary custodians “testified” that the children were
doing well in their homes and that the custodians wanted to have the children
permanently.
{¶15} After reciting this “testimony,” the entry indicated that the trial court
was acting within its vested authority pursuant to R.C. 2151.417 to modify
disposition at any time. The trial court then granted legal custody of the children to
their respective temporary custodians, finding that it was in the children’s best
interests.
{¶16} However, after reaching its conclusion, the trial court noted that
Nicole’s attorney had filed a motion to continue in C.S.’s case (but not in the other
children’s cases), albeit belatedly. The trial court stated that even if the motion had
been timely filed and filed in all of the children’s cases, the trial court would not
have found good cause for a continuance.
{¶17} Nevertheless, the trial court stated that
the court may reconsider the award of legal custody to the foster
parents if within 14 days from the date of this entry Attorney
Brown requests an evidentiary hearing and attends the said
hearing to present evidence to this Court that would demonstrate
-12-
Case No. 3-22-18, 19 and 20
that any facts found herein are incorrect. At said hearing the
court would also accept evidence regarding custody and the best
interest of the children.
(Doc. Nos. 21, 20, and 21 in their respective files).
{¶18} On April 20, 2022, two days after the trial court’s entry was filed,
appellants filed a “Motion for Reconsideration or, in the Alternative, Motion to
Vacate Judgment Entry of Disposition.” The motion argued that the parents were
denied procedural due process when the trial court sua sponte converted a mere
“review hearing” into a legal custody hearing.
{¶19} On April 21, 2022, the trial court overruled the motion, determining
that R.C. 2151.417 provided the court with inherent authority to modify disposition
of the children at any time, even on its own motion. Further, the trial court reasoned
that the parents had notice of the review hearing, thus they had notice that a hearing
was proceeding.
{¶20} Subsequently Nicole and Carl filed the instant appeals, challenging the
trial court’s awards of legal custody of the children to their formerly temporary
custodians, asserting the following assignment of error for our review.
Assignment of Error
The trial court violated R.C. 2151.353(E)(2) [sic], as well as
Appellant’s Fifth and Sixth Amendment Rights to the United
States Constitution, made applicable to the States through the
Fourteenth Amendment and Section 16, Article I of the Ohio
Constitution by proceeding upon an oral motion for Legal
Custody made by the Court, and not a party to the proceedings,
-13-
Case No. 3-22-18, 19 and 20
at a scheduled Review Hearing without Appellants being
provided proper notice and an opportunity to respond.
{¶21} In their assignment of error, appellants contend that the trial court
erred by awarding legal custody of the children at a “review hearing” without proper
notice and an opportunity to be heard. For multiple reasons, we agree.
{¶22} First and foremost, we emphasize that no motion was filed with the
trial court requesting that legal custody of the children be granted to their temporary
custodians pursuant to R.C. 2151.353(A)(3) or Juvenile Rule 34. Both the statute
and the rule require a motion to be filed for legal custody to be granted. Revised
Code 2151.353(A)(3) reads as follows:
(A) If a child is adjudicated an abused, neglected, or dependent
child, the court may make any of the following orders of
disposition:
***
(3) Award legal custody of the child to either parent or to any
other person who, prior to the dispositional hearing, files a motion
requesting legal custody of the child or is identified as a proposed
legal custodian in a complaint or motion filed prior to the
dispositional hearing by any party to the proceedings. A person
identified in a complaint or motion filed by a party to the
proceedings as a proposed legal custodian shall be awarded legal
custody of the child only if the person identified signs a statement
of understanding for legal custody[.]
Similarly, Juv.R. 34(D)(3) reads: “If a child is adjudicated an abused, neglected, or
dependent child, the court may * * * [a]ward legal custody of the child to either
-14-
Case No. 3-22-18, 19 and 20
parent or to any other person who, prior to the dispositional hearing, files a motion
requesting legal custody[.]”
{¶23} Ohio Appellate Courts have held that “it is well settled that a nonparent
who seeks legal custody of a child must file a motion for legal custody pursuant to
R.C. 2151.353(A)(3).” (Emphasis added.) In re K.F., 12th Dist. Clermont No.
CA2020-10-061, 2021-Ohio-1183, ¶ 74, citing In re L.R.T., 12th Dist. Butler Nos.
CA2005-03-071 and CA2005-04-082, 2006-Ohio-207, ¶ 17 (stating that “[b]ecause
appellee failed to file a motion requesting legal custody of L.R.T. at least seven days
before the dispositional hearing, the trial court erred as a matter of law in awarding
legal custody to her,” and noting that compliance with procedural requirements of
R.C. 2151.353 and Juv.R. 34 “is mandatory”). The statute and the rule are clear in
requiring a motion, and in the absence of one, it was erroneous for the trial court to
award legal custody of the children to their temporary custodians.
{¶24} Notably, the trial court attempted to circumvent the controlling statute
and the juvenile rule by contending that it had inherent authority to review and
change its prior orders pursuant to R.C. 2151.417(A) and (B), which read as follows:
(A) Any court that issues a dispositional order pursuant
to section 2151.353, 2151.414, or 2151.415 of the Revised
Code may review at any time the child’s placement or custody
arrangement, the case plan prepared for the child pursuant
to section 2151.412 of the Revised Code, the actions of the public
children services agency or private child placing agency in
implementing that case plan, the child’s permanency plan if the
child’s permanency plan has been approved, and any other
-15-
Case No. 3-22-18, 19 and 20
aspects of the child’s placement or custody arrangement. In
conducting the review, the court shall determine the
appropriateness of any agency actions, the safety and
appropriateness of continuing the child’s placement or custody
arrangement, and whether any changes should be made with
respect to the child’s permanency plan or placement or custody
arrangement or with respect to the actions of the agency under
the child’s placement or custody arrangement. Based upon the
evidence presented at a hearing held after notice to all parties and
the guardian ad litem of the child, the court may require the
agency, the parents, guardian, or custodian of the child, and the
physical custodians of the child to take any reasonable action that
the court determines is necessary and in the best interest of the
child or to discontinue any action that it determines is not in the
best interest of the child.
(B) If a court issues a dispositional order pursuant to section
2151.353, 2151.414, or 2151.415 of the Revised Code, the court
has continuing jurisdiction over the child as set forth in division
(F)(1) of section 2151.353 of the Revised Code. The court may
amend a dispositional order in accordance with division (F)(2) of
section 2151.353 of the Revised Code at any time upon its own
motion or upon the motion of any interested party. The court shall
comply with section 2151.42 of the Revised Code in amending any
dispositional order pursuant to this division.
{¶25} Contrary to the trial court’s analysis of R.C. 2151.417, and the
appellee’s argument supporting the same, a plain reading of the statute establishes
that any changes have to be “based upon the evidence presented at a hearing after
notice to all parties[.]” Importantly, the parties here were never notified of a legal
custody hearing and there was no actual evidence4 presented. The “review hearing”
4
There was no sworn testimony presented at the hearing whatsoever. The legislature has mandated that
“[b]efore testifying, a witness shall be sworn to testify the truth, the whole truth, and nothing but the truth.”
R.C. 2317.30. The oath or affirmation is a prerequisite to the testimony of a witness and a trial court errs by
-16-
Case No. 3-22-18, 19 and 20
that was scheduled began with the government merely wanting to “give a brief
update as to the status of the case for the Court” before the trial court sua sponte
turned the matter into a legal custody hearing. The hearing that the appellants were
on notice for is entirely different than one where fundamental parental rights are at
issue.5
{¶26} Regardless, completely notwithstanding the prior point, the trial
court’s contention that R.C. 2151.417 gives it inherent authority to award legal
custody on its own motion, without notifying the parents that a legal custody hearing
is proceeding, and without taking any actual testimony, directly conflicts with the
specific stated requirements of R.C. 2151.353 and Juv.R. 34 cited above. “It is a
well settled rule of statutory construction that where a statute couched in general
terms conflicts with a specific statute on the same subject, the latter must control.”
Humphrys v. Winous Co., 165 Ohio St. 45, 48, State v. Taylor, 113 Ohio St.3d 297,
2007-Ohio-1950, ¶ 12. Thus we do not agree that R.C. 2151.417 controls here when
R.C. 2151.353 had not been complied with.
relying on unsworn testimony in reaching its decision. Allstate Ins. Co. v. Rule, 64 Ohio St.2d 67, 69-70
(1980).
5
Although “due process” lacks a precise definition, courts have long held that due process requires both
notice and an opportunity to be heard. In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 12,
citing Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 708, 4 S.Ct. 663 (1884); Caldwell v. Carthage, 49
Ohio St. 334, 348 (1892). “An elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652 (1950).
-17-
Case No. 3-22-18, 19 and 20
{¶27} We are mindful of the fact that the parents may have shown little
cooperation and that the trial court was attempting to do what it felt was in the
children’s best interests. Nevertheless, statutory procedures providing due process
must be followed before legal custody can be properly granted to the temporary
custodians. For all of these reasons we find that the trial court erred. Therefore,
appellants’ assignment of error is sustained.
Conclusion
{¶28} For the foregoing reasons, the appellants’ assignment of error is
sustained and the judgments of the Crawford County Common Pleas Court, Juvenile
Division, are reversed. These causes are remanded for further proceedings.
Judgments Reversed and
Causes Remanded
MILLER and WILLAMOWSKI, J.J., concur.
/jlr
-18- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481555/ | Lee, J.
Whether Campbell Tarr is to be regarded as having purchased the interests of the legatees of Barbara McGuire, now claimed by him, on his own account and for his own benefit, or as agent of his father William Tarr, and for the use and benefit of the latter, it was not improper he should be made a party in the case of Bebecca Bavenscroft, the object of which was to obtain a settlement of the estate of Barbara McGuire, and a decree for payment of the various legacies left by her will. Campbell Tarr had taken the assignments of the different legacies purchased in by him to himself in his own name, and was claiming them for his own use; and it appears that in making these purchases he had spent some time and labor, and had incurred various charges and expenses. It was right, therefore, that his claim to the legacies should be adjudicated, and that he should be bound by the decision; and if it should be held that the purchases were in fact for the benefit of his father, and that he held the assignments as trustee merely, still he could not be required to surrender them for the benefit of other persons except upon being reimbursed for his time, labor and expenses. It was therefore proper that he should be a party in this cause, so that the whole matter might be finally adjudicated, and the bill should not have been dismissed as to him when the case was heard and the reference directed.
It is clear that it was proper for William Tarr to convene the representatives of the personal and real estate of John Hendricks, by cross bill before the court, for the purpose of charging upon the real estate the amount for which it was properly responsible by reason of the cosuretyship of Hendricks with William Tarr in the administration bonds given by James and Bobert Marshel as administrators of Francis McGuire and Barbara McGuire. Hendricks, by the mortgage of the 18th of December 1843, had charged his land *650with reimbursement to William Tarr of one-half of all he might have paid as such surety; and by his will he had in effect charged all his estate with the payment of his proportion of any deficiency that might be made to appear upon the settlement of the administration accounts. This provision of course enured to the benefit of William Tarr, and his right therefore to come with his cross bill is beyond all doubt. Nor was there any impropriety in Campbell Tarr’s being joined with him as a complainant. Campbell Tan-had purchased the legacies and taken the assignments to himself in his own name. He claimed to have purchased them for his own use and benefit. This claim was recognized and acknowledged by William Tarr. Thus Campbell Tarr was apparently concerned in the proper disposition of the proceeds of the real estate of John Hendricks; and if others were interested to show that the purchases were in fact for the use and benefit of William Tarr, still Campbell Tarr might claim indemnity for his services and expenses in obtaining the assignments as the condition of his surrendering them for the benefit of those entitled. And having thus an interest in the subject, it was proper he should be a party. Story’s Eq. Plead. § 72, § 153, and n. 3, § 154; 1 Dan. Ch. Pr. 284, 291. The same reason therefore which forbad the dismissal of the original bill as to Campbell Tarr, applied also to the case of the cross bill of William and Campbell Tarr; but there was still another reason which rendered the dismissal of the latter, for the cause assigned, improper at the hearing. The administrators of Hendricks had in their answer to the original bill insisted that Campbell Tan-should not be allowed to recover any thing -by reason of the supposed assignments of the legacies to him, nor William Tarr to recover any thing by reason of any payments to Campbell Tarr as such assignee, without first filing their bill against the representatives *651of John Hendricks, and alleging and proving the assignments and giving the administrators an opportunity to contest them; and when the cross bill was after-wards filed, setting up the assignments, neither they nor any other of the representatives of John Hendricks made any objection for such supposed misjoinder by demurrer, plea or otherwise. The administrators of Hendricks answered, and the cause came on for final hearing on the merits. The objection not having been made in due time and in the proper form, should at this stage have been disregarded. 1 Dan. Ch. Pr. -399, 401; Story’s Eq. Plead. § 544. Raffity v. King, 1 Keen’s R. 601; Trustees of Watertown v. Cowen, 4 Paige’s R. 510; Dickenson v. Davis, 2 Leigh 401.
Upon the merits, I think there is as little room for doubt or difficulty.
Campbell Tarr was the son of William Tarr, and in his employment or engaged with him in business as a junior partner. He was, so far as appears, without means, except such as he derived from his father. The money with which the purchases of the legacies were made was supplied by his father, and the enterprise of hunting up the legatees and obtaining their assignments was undertaken at his suggestion. The idea that the money used by Campbell Tarr in making the purchases was loaned him by his father, is not supported by any competent testimony, but is repelled by the circumstances disclosed. In making the purchases Campbell Tarr appears to have had constant reference to his father, and speaks of it as his father’s business. He also speaks of the hardship of the case upon both of the securities) and states his object in making the purchases to be to save them as far as possible; and he uses this as an argument with the legatees why they should consent to an abatement of the amount due them; and the argument appears to have been successful. Looking to all the circumstances in proof, *652the concert of purpose between William Tarr and Campbell Tarr is plainly apparent. That the.latter was the mere agent of the former in making the purchases is, I think, beyond any reasonable doubt or question, and as such, for all the purposes of these causes, he must be regarded. The assignments being in his name, he is to be regarded as holding them in trust for his father, and for those, if any, who may be entitled to participate with him in the benefits of them, subject only to the right to demand a reasonable compensation for his services, and reimbursement of his expenses incurred in obtaining the assignments.
Regarding the purchases of these legacies as in fact made for William Tarr, the claim of the representatives of Hendricks to participate in the benefit of them cannot be successfully resisted. The doctrine of contribution among sureties is founded rather on principles of equity and natural justice than upon any notion of mutual contract, express or implied. Dering v. Earl of Winchelsea, 1 Cox R. 318; Craythorne v. Swinburne, 14 Ves. R. 160; per Lord Redesdale in Stirling v. Forrester, 3 Bligh’s R. 575, 590. It is true it may be enforced at law, although no positive contract between the sureties can be shown, but the principle and the measure of relief afforded in the court of equity are different from those of the law courts. Thus, if one of several sureties be insolvent, and another pays the debt, he can at law recover from the other solvent sureties only their original quotas without regard to the share of the insolvent surety. Cowell v. Edwards, 2 Bos. & Pul. 268; Brown v. Lee, 6 Barn. & Cress. 697; S. C. 9 Dow. & Ryl. 700. But in equity the share of the insolvent surety will be apportioned amongst those who are solvent. Hale v. Harrison, 1 Cas. in Ch. 246; Dering v. Earl of Winchelsea, 1 Cox R. 318; Peter v. Rich, 1 Ch. Rep. 34. So if one surety die, the remedy at law lay only *653against the survivors; hut a court of equity would compel contribution from the estate of the deceased surety. Primrose v. Bromley, 1 Atk. R. 89.
Sureties are not only entitled to contribution as between themselves personally, for moneys paid in discharge of the common debt, but they may also claim the benefit of all securities which any one of their number may have taken for his indemnity: And if a surety who seeks contribution has been reimbursed part of what he has paid, either by the debtor himself, or through a counter security, or from any source, he must give credit for the amount reimbursed, and can only claim contribution for the balance. Knight v. Hughes, 3 Carr & Payne 467; Swain v. Wall, 1 Ch. Rep. 80; 1 Story’s Eq. Jur. § 499; Theobald on Prin. and Sur. ch. 11, § 283, p. 267.
Prom these principles it follows, I think, as a necessary corollary, that if one surety purchases in the common debt for less than its nominal amount, he can only claim contribution of a cosurety for the amount actually paid by him. If it be unjust that one surety should bear the whole burden of a demand to which another, in common with him, has made himself equally liable, and from the payment of which he has derived an equal benefit, so it would be unjust to compel the latter to sustain more than his just and equal share of the necessary loss. The object of the whole doctrine is equity, and equality of burdens is equity.
In Blow v. Maynard, 2 Leigh 29, it was held that where a surety for a guardian compromised with the ward for a less sum than was actually due on a settlement of the guardian’s account, he could only demand indemnity from the guardian’s estate in equity, for the money actually paid to the ward in satisfaction of her claim. A fortiori, it should seem he could not demand contribution of a cosurety except for the amount thus actually paid. If the principal be only liable for *654the amount actually paid by a surety in discharge of the debt, then he could only be liable to any other surety for his quota of that amount; and if the latter could be called on for contribution according to the nominal amount of the debt, he would thus be liable to his cosurety for a greater amount than he could recover of the common principal.
I think, therefore, the estate of Hendricks was only liable to reimburse one moiety of the amount actually paid by William Tarr for the legacies purchased in by him or by Campbell Tarr for him, and one-half of what would be a just compensation to Campbell Tarr for his time and services and necessary expenses in looking up the legatees and obtaining their assignments.
I am of opinion to reverse the decree, and remand the causes for further proceedings.
The other judges concurred in the opinion of XjEE , Jo
Decree reverses. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481357/ | Opinion issued November 3, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00803-CV
———————————
IN RE HIWOT DINKALE, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Hiwot Dinkale, has filed a petition for writ of mandamus, challenging
the trial court’s rulings on motions to compel and a motion for continuance.*
We deny the petition for writ of mandamus. See TEX. R. APP. P. 52.8(a). We
dismiss any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Kelly and Hightower.
*
The underlying case is Hiwot Dinkale v. 4M Pharmaceuticals, L.L.C., RX
Compounding Solutions, L.L.C. d/b/a Pharmacare Plus Pharmacy, and Mohamed
M. Mokbel, cause number 2018-56873, pending in the 334th District Court of Harris
County, Texas, the Honorable Dawn Rogers presiding. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481350/ | [Cite as State v. Kapcar, 2022-Ohio-3959.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 21CA0049-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHRISTINE KAPCAR WADSWORTH MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 19CRB00531
DECISION AND JOURNAL ENTRY
Dated: November 7, 2022
CARR, Judge.
{¶1} Appellant, Christine Kapcar, appeals the judgment of the Wadsworth Municipal
Court. This Court affirms.
I.
{¶2} Kapcar was charged with six counts of animal cruelty involving six different horses.
Kapcar pleaded not guilty to the charges.1 The trial court proceedings were continued on multiple
occasions due to the COVID-19 pandemic. Kapcar also retained new counsel on a number of
occasions. The matter ultimately proceeded to a jury trial and Kapcar was found guilty of all six
counts. The trial court imposed a 90-day jail sentence which was suspended as
1
The parties initially entered into stipulated factual findings and agreed to have the trial
court decide the matter after briefing. The trial court issued a journal entry finding Kapcar guilty
after she failed to file a brief. Thereafter, Kapcar successfully moved to vacate the stipulated facts
and the finding of guilt and the matter eventually proceeded to a jury trial.
2
well as a five-year term of probation. The trial court ordered forfeiture of the horses in question
and further ordered that Kapcar could not own horses for five years.
{¶3} On appeal, Kapcar raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
KAPCAR’S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE AS
A MATTER OF LAW[.]
{¶4} In her first assignment of error, Kapcar argues that her convictions were not
supported by sufficient evidence. This Court disagrees.
{¶5} When reviewing the sufficiency of the evidence, this Court must review the
evidence in a light most favorable to the prosecution to determine whether the evidence before the
trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.
Id. at paragraph two of the syllabus.
{¶6} Kapcar was convicted of six counts of cruelty to animals in violation of R.C.
959.13(A)(1), which states, “[n]o person shall * * * [t]orture an animal, deprive one of necessary
sustenance, unnecessarily or cruelly beat, needlessly mutilate or kill, or impound or confine an
animal without supplying it during such confinement with a sufficient quantity of good wholesome
food and water[.]”
3
{¶7} “A violation of R.C. 959.13 ‘requires proof that the defendant acted with a reckless
state of mind.’” State v. Brooks, 9th Dist. Medina No. 07CA0111-M, 2008-Ohio-3723, ¶ 5,
quoting State v. Howell, 137 Ohio App.3d 804, 813 (11th Dist.2000).
{¶8} Pursuant to R.C. 2901.22(C), “[a] person acts recklessly when, with heedless
indifference to the consequences, the person disregards a substantial and unjustifiable risk that the
person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is
reckless with respect to circumstances when, with heedless indifference to the consequences, the
person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.”
{¶9} At trial, the State presented evidence supporting the following narrative. The
Medina County Society for the Prevention of Cruelty to Animals (“SPCA”) first received a
complaint about Kapcar’s horses in May 2018. Carrie Moore, who serves as a humane agent for
the Medina County SPCA, helped investigate an allegation that Kapcar had been evicted from a
barn yet her horses had not been removed from the premises. Ms. Moore traveled to the property
and observed that several of Kapcar’s horses were underweight. Kapcar’s daughter, Melissa
Beckman, helped Kapcar in caring for the horses.2 After the sheriff’s department imposed a
deadline, Kapcar moved the horses to a different property. Kapcar and Beckman had the horses
moved on several other occasions that year. Ms. Moore received additional complaints about the
condition of Kapcar’s horses over the course of 2018. Upon traveling to view the horses, Ms.
Moore found that several of the horses were underweight and lacking appropriate care. Ms. Moore
also observed problems with the condition of the stalls. Kapcar gave multiple assurances that the
situation would be remedied. At one point, however, Kapcar sent a letter to Ms. Moore requesting
that the SPCA no longer contact her. In November 2018, after again observing that several horses
2
Beckman was also charged with animal cruelty in relation to the horses.
4
were underweight, Ms. Moore reached out to the prosecutor to prepare a search warrant. On the
date that the search warrant was given to the judge for review, the horses were moved to an
undisclosed location. Ms. Moore indicated that the SPCA unsuccessfully attempted to locate the
horses for several months.
{¶10} On July 3, 2019, Ms. Moore received an anonymous tip through the SPCA’s
emergency line about six horses that were thin and located in stalls that were filled with manure.
The tipster also provided photographs of the six horses that were located at a barn in Seville.3 Ms.
Moore recognized the horses as belonging to Kapcar. Because the horses were thinner than when
Ms. Moore had last seen them in November, she took the steps necessary to secure a search
warrant.
{¶11} Ms. Moore reached out to Dr. Sandra Gebhart to seek an opinion about the
condition of the horses. Dr. Gebhart testified on behalf of the State at trial as an expert in equine
veterinary care. Upon reviewing photos of Kapcar’s horses, Dr. Gebhart observed signs of
malnourishment and recommended physical examinations. Dr. Gebhart testified that each of the
six horses had an extremely low body condition score, which measures the physical condition of
a horse in light of its weight, age, and breed. Dr. Gebhart testified that the horses’ feet appeared
to be overgrown, a condition that can place strain on ligaments and cause pain. Dr. Gebhart further
testified that the horses’ fur appeared to be matted from manure, urine, and bedding.
3
One of Kapcar’s horses that Ms. Moore observed in 2018 named Captain passed away
prior to July 2019.
5
{¶12} On July 11, 2019, Dr. Gebhart met Ms. Moore and the SPCA team at the barn in
Seville in order to evaluate the horses. Dr. Gebhart gave testimony based on her records from the
visit. All six of Kapcar’s horses at the barn appeared to be malnourished, underweight, and dealing
with an array of medical issues. Dr. Gebhart determined that the horses were in urgent need of
treatment. Ms. Moore gave similar testimony, noting that the horses were extremely underweight,
that their feet were overgrown, and that their coat conditions were poor. Ms. Moore feared that
the horses could starve to death if there was not an immediate intervention. The SPCA took control
of the horses that day. As the SPCA team was finishing at the farm, Kapcar’s daughter, Beckman,
arrived and asked what was going on. Ms. Moore explained to Beckman that the condition of the
horses necessitated their removal.
{¶13} Kapcar challenges the sufficiency of her convictions on the basis that the State
failed to demonstrate that she acted recklessly. Stressing that she was dealing with an array of
health problems, Kapcar maintains that she entrusted the care of her six horses to her daughter and
that she was unaware of their poor condition. Kapcar points to Mulhauser v. State, 15 Ohio C.D.
81 (1900) and State v. York, 11th Dist. Lake No. 97-L-037, 1998 WL 257055 (May 1, 1998) in
support of the proposition that an owner cannot be convicted of animal cruelty when they have
placed their animals in the care of another.
{¶14} Kapcar’s sufficiency challenge is without merit. We remain mindful that we view
the evidence in the light most favorable to the State in resolving a sufficiency challenge. Jenks,
61 Ohio St.3d at 279. The State presented evidence that several complaints were filed with the
SPCA regarding the condition of Kapcar’s horses over the course of 2018. Kapcar was made
aware that her horses were underweight and experiencing a number of additional problems.
Kapcar initially informed Ms. Moore that those issues would be addressed. Notably, however,
6
Kapcar subsequently sent Ms. Moore a letter indicating that she no longer wanted to be contacted
and she moved the horses to an undisclosed location. When the horses were located in July 2019,
their condition had worsened and the SPCA determined that their immediate removal was
necessary. The aforementioned evidence, when construed in the light most favorable to the State,
was sufficient to sustain Kapcar’s convictions for animal cruelty.
{¶15} Kapcar’s reliance on Mulhauser and York is also misplaced. We note that
Mulhauser involved a predecessor statute that required the State to show that the defendant was
willfully cruel to animals. Mulhauser at 87. By contrast, the State here was only required to show
that Kapcar was reckless in violating R.C. 959.13(A)(1). See Brooks, 2008-Ohio-3723, at ¶ 5.
Furthermore, unlike the circumstances here, the record in Mulhauser showed that the defendant
was “wholly ignorant” of any concerns regarding the care of her animals. Mulhauser at 87. The
facts of York are similarly distinctive. There, the defendant purchased a pony as a gift but his wife
owned the pony and served as the primary caregiver. York at *3-4. The defendant had no
knowledge that the pony was in a malnourished state and he was never informed that there were
concerns with the condition of the pony. Id. at *4. Unlike York, the evidence presented by the
State in this case showed that Kapcar was made aware that there were issues with the condition of
her horses and those issues only worsened when she moved her horses to an undisclosed location.
Accordingly, contrary to Kapcar’s assertion, the holdings in Mulhauser and York do not mandate
reversal on sufficiency grounds.
{¶16} The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
KAPCAR’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
7
{¶17} In her second assignment of error, Kapcar argues that her convictions were against
the weight of the evidence. Specifically, Kapcar contends that the weight of the evidence did not
support the conclusion that her horses did not receive proper care. Kapcar points to the testimony
of several witnesses in support of her position that, after suffering a series of injuries, she made
arrangements to ensure that there would be adequate care for her horses. This Court disagrees.
{¶18} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). An appellate court should exercise the
power to reverse a judgment as against the manifest weight of the evidence only in exceptional
cases. Id.
{¶19} At trial, Kapcar testified that she was born into a horseman’s family and that she
had owned horses her entire adult life, a period that has spanned over 50 years. In regard to the
six horses in question, Kapcar explained that she moved them to the barn in Seville in December
of 2018. Kapcar indicated that she was only able to visit the facility on one occasion because she
was dealing with a knee and back injuries that impacted her ability to walk.4 In order to provide
4
Kapcar testified that in 2017, a tree fell on her house while she was in the kitchen. She
suffered an injury to her knee during the incident. The knee injury ultimately led to back issues.
8
care for the horses, Kapcar began to rely on her daughter, Beckman, who worked full time. The
situation was further complicated by the fact that Kapcar’s husband passed away in 2018 after
spending time in hospice care. Kapcar testified that the decision to move the horses on multiple
occasions in 2018 was driven by a desire to increase their level of care. Kapcar testified that she
was shocked to learn that the horses were not receiving adequate care in Seville in 2019. Kapcar
indicated that she knew there were issues with the stalls but she did not know the horses were not
getting enough food and water. Kapcar suggested that the problems stemmed from
miscommunications with Beckman and the barn owner.
{¶20} Beckman testified that she was responsible for caring for the six horses in Seville
from April 15, 2019, until the time they were seized. Prior to that time the barn owner was
responsible for caring for the horses, although Beckman did make frequent visits. Beckman
testified that she intervened because she did not believe the barn owner was giving the horses
proper care. Beckman explained that, from that point on, she made at least two trips per day to the
barn to care for the horses. During her testimony, Beckman acknowledged that the horses had lost
weight and that their feet were overgrown. Although Beckman further admitted that she should
have sought additional help, she testified that the situation was heading in a positive direction at
the time the horses were seized. Beckman’s friend, Shannon Stack, also testified on behalf of the
defense. Stack was driving for Lyft when she met Beckman. Stack explained that she frequently
gave Beckman rides to the barn in Seville so that Beckman could care for Kapcar’s horses between
April 2019 and July 2019. Stack testified that as she grew closer to Beckman, she began to assist
in giving the horses food and water as well as cleaning out their stalls. Stack indicated that she
travelled to the barn on ten occasions by herself to help care for the horses during that timeframe.
Stack testified that she did not notice any problems with the horses’ condition.
9
{¶21} Upon a thorough review of the record, we cannot conclude that this is the
exceptional case where the evidence weighs heavily against conviction. See Otten, 33 Ohio
App.3d at 340. Several witnesses who testified on behalf of the defense suggested that Kapcar
had made arrangements for the care of the horses and that the concerns regarding the condition of
the horses were overstated. This testimony stands in contradiction to the evidence presented by
the State that the horses were in dire condition at the time of their removal by the SPCA. Beckman
herself acknowledged that the horses had lost a significant amount of weight and that their feet
were overgrown. “[T]his Court will not overturn the verdict[s] on a manifest weight challenge
simply because the trier of fact chose to believe the State’s witnesses rather than [Kapcar’s]
witnesses.” State v. Crowe, 9th Dist. Medina No. 04CA0098-M, 2005-Ohio-4082, ¶ 22. Under
these circumstances, where the State presented ample evidence that the horses had not received
adequate care, we cannot conclude that the trier of fact clearly lost its way.
{¶22} The second assignment of error is overruled.
III.
{¶23} Kapcar’s assignments of error are overruled. The judgment of the Wadsworth
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wadsworth Municipal
Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
10
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
WESLEY JOHNSTON, Attorney at Law, for Appellant.
THOMAS MORRIS, Prosecuting Attorney, and BRADLEY J. PROUDFOOT, Assisttant
Prosecuting Attorney, for Appellee. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481360/ | Opinion issued November 3, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00268-CR
———————————
MELTON STAVES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1552697
MEMORANDUM OPINION
A jury found appellant, Melton Staves, guilty of murder, found two
enhancement allegations true, and assessed punishment at 25 years’ confinement. In
two issues on appeal, appellant contends that (1) the evidence is insufficient to prove
murder and (2) appellant received ineffective assistance of counsel at trial. We
affirm.
BACKGROUND
On May 18, 2017, Dulce Rodriguez stopped at a gas station where she sat in
her truck as her friend went inside. While she was waiting, Rodriguez saw two men
across the street who were gesturing as if they were arguing. Faustino Herrera, the
complainant, was 68 years old and, at 5’4” and 143 pounds, “a little frail looking.”
Appellant, who was 50 years old, was wearing red clothing and was larger and
stronger than Herrera. Rodriguez turned away briefly to see if her friend had left the
store, and when she turned back, Herrera was lying on the ground on his side and
appellant was “hitting him with the feet” with “hard blows.” “With his feet, he was
beating him.” Rodriguez saw appellant kick Herrera on the head “several times,” but
she did not “count the times.” Rodriguez saw appellant walk toward some nearby
apartments, so she followed him and took video of him with her phone. She then
called 911 and returned to the scene of the attack to wait for police.
Another witness, Todd Johnson, was walking from a nearby park when he
heard some men arguing. As he turned the corner, he saw appellant standing over
Herrera. Johnson knew and recognized both appellant and Herrera. He heard Herrera
2
tell appellant to leave the property they were both on at the time,1 and when appellant
responded, he sounded “agitated.” Johnson then saw appellant “put his foot on
[Herrera’s] head, and he demonstrated to the jury how he saw appellant “stomp” on
Herrera. Johnson recalled that Herrera was unconscious, and appellant walked away
to a nearby apartment complex where he sometimes visited with a friend. Johnson,
with the assistance of a passer-by, moved Herrera to the front yard of his nearby
residence to wait for the ambulance and police.
Once police arrived at the scene, they went to the apartments that both
Rodriguez and Johnson had seen appellant walk toward. Appellant’s friend
voluntarily allowed the police in her apartment, where they found appellant hiding
in a pantry. They arrested appellant and charged him with aggravated assault; the
charges were upgraded to murder when Herrera died in the hospital several days
later.
At trial, the assistant medical examiner testified that Herrera had abrasions on
the right back of his scalp, his right elbow, and both knees. The cause of death was
a “basilar subarachnoid hemorrhage due to a left vertebral artery dissection due to
blunt head and neck trauma.” Under the scalp abrasion, the medical examiner found
“an impact site underneath that area, evidenced by soft tissue contusion[.]” The
1
The record indicates that Herrera lived nearby and acted as a maintenance person
for the commercial site where the murder occurred.
3
medical examiner also dissected the back of Herrera’s neck and found “bleeding into
the soft tissue of the back of the neck” that was “indicative of a blunt impact trauma.”
The medical examiner could not determine which injury—the head trauma or the
neck trauma—caused the vertebral artery dissection that led to Herrera’s death, but
she did conclude that either of the two injuries would have been sufficient to cause
the tear or that both injuries together caused the tear.
The medical examiner testified that if Herrera had been pushed and then
kicked, it could have torn the artery. She also concluded that a push or a fall could
have caused the head injury, which could also have torn the artery. Repeated kicks
to the neck could also have torn the artery. She could not, however, determine
whether Herrera fell accidentally or whether he was pushed. She also could not tell
whether the blunt trauma to Herrera’s head and/or neck was caused by being hit with
a blunt object (appellant’s foot) or by falling against a blunt object (the ground). The
medical examiner testified that Herrera’s blood alcohol content was .30 per deciliter.
She also testified that Herrera’s head injury could have caused the cardiac arrest
noted by paramedics on arrival.
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant contends that there is insufficient evidence to show
two elements of murder: causation and intent. Specifically, appellant contends that
“the Complainant’s death could have been caused by his fall” and that there is “a
4
reasonable doubt concerning [appellant’s] intent to cause the death of the
Complainant or commit an act clearly dangerous to human life that caused the
Complainant’s death.”
Standard of Review and Applicable Law
We review the legal sufficiency of the evidence by considering all the
evidence in the light most favorable to the jury’s verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Nowlin v.
State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015); Edwards v. State, 497 S.W.3d
147, 156 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). Our role is that of a due-
process safeguard, ensuring only the rationality of the trier-of-fact’s
finding. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give
deference to the responsibility of the factfinder to fairly resolve conflicts in
testimony, weigh evidence, and draw reasonable inferences from the facts. Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We defer to the factfinder’s
determinations on witnesses’ credibility and the weight to be given to their testimony
and do not substitute our judgment on these matters. Brooks v. State, 323 S.W.3d
893, 899 (Tex. Crim. App. 2010).
As charged in this case, a person commits murder if he (1) intentionally or
knowingly causes the death of an individual or (2) intends to cause serious bodily
5
injury and commits an act clearly dangerous to human life that causes the death of
an individual. TEX. PENAL CODE § 19.02(b)(1), (2) (emphasis added).
Analysis
Appellant challenges the sufficiency of the evidence for both the causation
and intent elements of the murder statute. We address each respectively.
Causation
In this case, the medical examiner testified that Herrera suffered two wounds,
either of which could have caused a tear in his vertebral artery, leading to the brain
hemorrhage that killed him: (1) a blunt-force-trauma impact to the back of his head,
with an associated abrasion and internal hemorrhage, but no skull fractures and
(2) blunt-force-trauma impact to the back of the neck, accompanied by bruising and
soft-tissue damage. The medical examiner explained that both injuries caused
significant bleeding in Herrera’s brain, and that either injury, alone, was sufficient
to kill him.
Appellant argues that, because there was evidence from the medical examiner
that she could not determine whether Herrera’s head injury was caused by someone
hitting him with a blunt object or by him falling against a blunt object, it was equally
likely that “the Complainant tripped while backing away from Appellant and the fall
caused his death.” Because, appellant argues, this theory of the case is equally as
likely as the State’s theory that appellant pushed Herrera down and then kicked him,
6
the evidence is legally insufficient to show that he caused Herrera’s death. Put
another way, appellant argues that Herrera’s fall could have been accidental and
could have caused his fatal head injuries, and that appellant’s kicking him in the
head and/or neck did not.
Essentially, appellant argues that, because there is an alternative-reasonable
hypothesis for the causation of Herrera’s death, the evidence is legally insufficient.
However, the alternative-reasonable-hypothesis theory does not apply in reviewing
evidentiary sufficiency. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016)
(“Although the State must prove that a defendant is guilty beyond a reasonable
doubt, the State’s burden does not require it to disprove every conceivable
alternative to a defendant’s guilt.”); Temple v. State, 390 S.W.3d 341, 363 (Tex.
Crim. App. 2013) (holding same); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim.
App. 2012) (“For the evidence to be sufficient, the State need not disprove all
reasonable alternative hypotheses that are inconsistent with the defendant’s guilt.”).
Here, there was evidence that Rodriguez saw appellant and Herrera arguing;
appellant was gesturing at Herrera animatedly and Herrera was standing there with
his arms down, doing nothing. Rodriguez turned away briefly, and when she turned
back, she saw Herrera lying on his side on the ground and appellant repeatedly
kicking him in the head with “hard blows.” Another witness, Johnson, also saw
appellant “stomp” on Herrera’s head as he lay on the ground.
7
From this evidence, a jury could have rationally concluded that, while they
were arguing, appellant, who was larger and stronger than Herrera, knocked Herrera
to the ground and continued kicking him about the head, causing both the head and
neck injuries that killed him. Or, the jury could have rationally concluded that, even
if Herrera fell and was not pushed, he died because appellant repeatedly kicked him
in the neck and head. Both scenarios are supported by legally sufficient evidence.
That there is an alternative reasonable hypothesis in which Herrera “might” have
accidentally fallen to the ground and died before appellant kicked him in the head or
neck does not render the evidence legally insufficient. See Wise, 364 S.W.3d at 903.
Intent
Appellant also contends that “[t]here was testimony to support that Appellant
intended to kick the Complainant, but not with enough force to result in his death.”
Appellant argues that Herrera smelled of alcohol, there was no trauma to his scalp
or visible injuries, and that appellant was wearing tennis shoes, did not flee the scene,
and was cooperative with police.
Proof of a culpable mental state generally relies on circumstantial evidence,
which we scrutinize as we do other elements of an offense. Laster v. State, 275
S.W.3d 512, 519–20 (Tex. Crim. App. 2009); Hernandez v. State, 470 S.W.3d 862,
870 (Tex. App.—Fort Worth 2015, pet. ref’d) (quoting Dillon v. State, 574 S.W.2d
92, 94 (Tex. Crim. App. 1978)). A defendant’s intent may be determined from his
8
words, acts, and conduct in light of the circumstances surrounding the offense.
Hernandez, 470 S.W.3d at 870 (quoting Smith v. State, 965 S.W.2d 509, 518 (Tex.
Crim. App. 1998)); see also Atkinson v. State, 517 S.W.3d 902, 906 (Tex. App.—
Corpus Christi 2017, no pet.) (“In determining whether the culpable mental state for
a homicide offense was proven, the jury can use its collective common sense and
may apply common knowledge and experience.”). This includes consideration of
events before, during, and after the offense. Henderson v. State, 825 S.W.2d 746,
749 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d). If the record supports
conflicting inferences, we “must presume—even if it does not affirmatively appear
in the record—that the trier of fact resolved any such conflict in favor of the
prosecution and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846
(Tex. Crim. App. 1991).
Here, appellant was seen and heard arguing with Herrera. Although neither
eyewitness saw how Herrera came to be on the ground, the jury could have
reasonably concluded that appellant knocked him to the ground, especially in light
of evidence from both eyewitnesses that they saw appellant kick Herrera as he lay
on the ground. The medical examiner found two injuries—a head injury and a neck
injury—that were consistent with Herrera being pushed to the ground and then
kicked. She further testified that either of these injuries could have caused the tear
in Herrera’s artery that led to his brain hemorrhage and subsequent death.
9
Many courts have held that kicking a person in the head is an act that is clearly
dangerous to human life and is capable of causing serious bodily injury or death.
See Ordonez v. State, No. 13-17-00617-CR, 2019 WL 3331465, at *4 (Tex. App.—
Corpus Christi July 25, 2019, pet. ref’d) (mem. op., not designated for publication)
(finding evidence sufficient to support defendant’s intent to kill or cause serious
bodily injury when he kicked victim in head multiple times); Buchanan v. State, No.
08-06-00203-CR, 2008 WL 3585900, at *3 (Tex. App.—El Paso Aug.14, 2008, no
pet.) (not designated for publication) (finding evidence sufficient to support jury’s
determination that defendant intended to cause serious bodily injury when he and
another individual kicked and punched victim and victim suffered injuries to brain
as result of blunt force trauma); Dale v. State, 90 S.W.3d 826, 833 (Tex. App.—San
Antonio 2002, pet. ref’d) (stating that evidence that defendant repeatedly kicked and
hit victim on head while victim was on floor and not fighting back “shows that
defendant intentionally caused serious bodily injury and committed act clearly
dangerous to human life that caused [victim’s] death.”); Depauw v. State, 658
S.W.2d 628, 633–34 (Tex. App.—Amarillo 1983, pet. ref’d) (holding that jury could
reasonably conclude that forcefully kicking victim in head constituted act clearly
dangerous to human life).
10
Accordingly, we hold that there was legally sufficient evidence for the jury to
conclude that appellant caused Herrera’s death and intended to do so. We overrule
issue one.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, appellant contends that he was denied effective assistance
of counsel because “[t]rial counsel informed the jury panel that a defendant must
have two prior felony convictions that resulted in a prison sentence for the
punishment range to be twenty-five years to life after the trial court disclosed to the
venire panel that Appellant was in the enhanced punishment range of twenty-five to
life, thereby indicating to the jury that Appellant had previous criminal convictions.”
Background
During voir dire, the trial court discussed the range of punishment with the
jury venire by stating that “this case is likely to be a range of 25 years to life in
prison.” When one veniremenber suggested that the 25-year minimum might be too
low, the trial court gave the following hypothetical:
So[,] let me throw this in a hypothetical for you. What if the facts that
are presented to you include the gentleman is charged with killing his
wife and when the State presents their case to you, you find out that she
had been very sick, she was losing her faculties, she was really just not
able to function and she begs her husband of 25 years, please just give
me all the morphine. Right? Please just help me end this now instead of
having to wait. In a circumstance like that, would you be able to
consider a lower sentence?
11
Given that hypothetical, several of the veniremembers expressed concern that,
if certain mitigating factors were present, they would not be able to consider a
minimum punishment of 25 years because it would be too high.
During defense counsel’s portion of voir dire, he followed up on the trial
court’s comments regarding the range of punishment and the following exchange
occurred:
[Defense counsel]: Also, I think while I’m talking to you, there was
some issue in my mind about whether you thought a 25-year minimum
in punishment was too harsh or too lenient. What was your position on
that?
[Veniremember]: My position was that I’d have a hard time convicting
a person for a minimum of 25 years, depending on the circumstances.
[Defense counsel]: There’s certainly nothing wrong with having a hard
time. But as long as the evidence led you to that, you could follow the
law? That’s the important test. And let me say that there are some things
that would have to be proven before the minimum would be 25. You
would have—what has to be proven before you begin at 25 is that the
defendant was convicted of two prior felonies that followed each other
after conviction. In other words, the normal—or we might say the
normal range of punishment for murder is minimum of 5 years, not 25.
And you don’t get to the 25 unless you find beyond a reasonable doubt
that he’s a habitual offender, which means he has been convicted and
sent to prison for two prior felonies. I don’t know if that was clear or
not.
[Veniremember]: No, that was not made clear. In circumstances like
that, then, no, I wouldn’t have a problem.
[Defense counsel]: Okay. Yeah, when we’re asking about the 25, you
have to make certain findings before you get to the minimum of 25.
Otherwise, it starts at five.
12
Standard of Review
The Sixth Amendment of the United States Constitution and Article I, section
10, of the Texas Constitution guarantee a criminal defendant the right to reasonably
effective assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The right to effective
assistance of counsel requires “objectively reasonable representation,” not “errorless
counsel.” Lopez, 343 S.W.3d at 142 (citing Strickland v. Washington, 466 U.S. 668,
686 (1984), and Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)).
To establish that trial counsel provided ineffective assistance, an appellant
bears the burden to demonstrate by a preponderance of the evidence that: (1) his
counsel’s performance was deficient and (2) the deficient performance prejudiced
the defense. Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142. An appellant
must prove both prongs before an appellate court will find counsel’s representation
to be ineffective. Lopez, 343 S.W.3d at 142 (citing Strickland, 466 U.S. at 687); see
Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s
failure to satisfy one prong of the Strickland test negates a court’s need to consider
the other prong.”).
To satisfy the first prong, an appellant must show that his trial counsel’s
performance fell below an objective standard of reasonableness under the prevailing
norms. Strickland, 466 U.S. at 687–88; Lopez, 343 S.W.3d at 142. Under the second
13
prong, an appellant must demonstrate prejudice, or “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694; Lopez, 343 S.W.3d at 142; see Donald v.
State, 543 S.W.3d 466, 487 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (stating
that claims of ineffective assistance during punishment phase of trial require
defendant to “prove that there is a reasonable probability that, but for counsel’s
errors, the sentencing jury would have reached a more favorable verdict”) (quoting
Ex parte Rogers, 369 S.W.3d 858, 862–63 (Tex. Crim. App. 2012)). A reasonable
probability is one sufficient to undermine confidence in the outcome. Lopez, 343
S.W.3d at 142.
Our review of trial counsel’s effectiveness is highly deferential. Strickland,
466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We
“indulge a strong presumption” that counsel’s performance fell within the wide
range of reasonable professional assistance, and an appellant must overcome the
presumption that the challenged action might be considered “sound trial strategy.”
Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142.
For an appellate court to find that counsel was ineffective, “counsel’s
deficiency must be affirmatively demonstrated in the trial record; the court must not
engage in retrospective speculation.” Lopez, 343 S.W.3d at 142 (citing Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). “It is not sufficient that appellant
14
show, with the benefit of hindsight, that his counsel’s actions or omissions during
trial were merely of questionable competence.” Id. at 142–43 (quoting Mata v. State,
226 S.W.3d 425, 430 (Tex. Crim. App. 2007)).
In most cases, the record on direct appeal is undeveloped and thus inadequate
to show that trial counsel was not effective. Menefield v. State, 363 S.W.3d 591,
592–93 (Tex. Crim. App. 2012); see Thompson, 9 S.W.3d at 813 (“A substantial risk
of failure accompanies an appellant’s claim of ineffective assistance of counsel on
direct appeal.”). Trial counsel “should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d
at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
When trial counsel is not provided an opportunity to explain his actions, we will not
find that counsel’s performance was deficient unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Id. (quoting
Goodspeed, 187 S.W.3d at 392).
Analysis
We begin by noting that “a prosecutor may inform the jury panel of the range
of punishment applicable if the state were to prove prior [] conviction[s] for
enhancement purposes, but it may not inform the jury of any of the specific
allegations contained in the enhancement paragraph[s] of a defendant’s indictment.”
Frausto v. State, 642 S.W.2d 506, 509 (Tex. Crim. App. 1982); Johnson v. State,
15
901 S.W.2d 525, 532 (Tex. App.—El Paso 1995, pet. ref’d) (holding that prosecutor
and trial court may inform jury panel in hypothetical terms of applicable range of
punishment if State proves prior convictions for enhancement purposes); see also
Brooks v. State, No. 03-03-00411-CR, 2004 WL 1114503, at *1 (Tex. App.—Austin
May 20, 2004, pet. ref’d) (noting that “settled rule” permits prosecutor to inform
jury panel of range of punishment if State proves prior conviction for enhancement,
but prosecutor may not inform jury panel of specific allegations); Chevis v. State,
No. 01-00-00092-CR, 2000 WL 1473771, at *1 (Tex. App.—Houston [1st Dist.]
Oct. 5, 2000, pet. ref’d) (not designated for publication) (holding same).
The question we must decide is whether it can ever be sound trial strategy for
defense counsel to do the same. See Menefield, 363 S.W.3d at 593 (holding that
when, as here, trial counsel has not been provided opportunity to explain actions, we
will not find deficient representation unless challenged conduct “was so outrageous
that no competent attorney would have engaged in it”).
Here, the trial court’s questioning had identified several seemingly defense-
oriented jurors who indicated that they would find even the low end of the range of
punishment too harsh under certain circumstances. Defense counsel could rationally
have decided that it was in appellant’s best interest to rehabilitate these jurors in an
effort to keep them from being struck for cause because of an inability to consider
the entire range of punishment. Defense counsel’s questioning was hypothetical, as
16
permitted by Frausto, emphasized that it was the State’s burden to prove any
enhancements that it alleged, and did not inform the jury venire regarding any of
specific allegations contained in the enhancements.
We believe that, under the circumstances presented here, defense counsel’s
decision to inform the jury venire, hypothetically, that if the State were to prove prior
offenses, then the statutory minimum would increase from 5 to 25 years was not “so
outrageous that no competent attorney would have engaged in it.” Id. As such,
appellant has not met the first prong of the Strickland test.2
Accordingly, we overrule issue two.
2
We also note that appellant cannot meet the second prong of Strickland by showing
that the alleged deficient performance prejudiced his defense. See Strickland, 466
U.S. at 687; Lopez, 343 S.W.3d at 142. Here, there was overwhelming evidence of
appellant’s guilt. Two eyewitnesses, one of whom knew appellant, saw him stomp
and kick Herrera as he lay on the ground, and a forensic medical expert concluded
that such actions were sufficient to have caused Herrera’s death. See Adekeye v.
State, 437 S.W.3d 62, 73 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (finding
no prejudice for purposes of ineffective assistance based on stipulation informing
jury of appellant’s prior felony conviction for aggravated robbery when evidence of
appellant’s guilt for current offense of aggravated robbery and felon-in-possession
was overwhelming); see also McIlroy v. State, 188 S.W.3d 789, 796–97 (Tex.
App.—Fort Worth 2006, no pet.) (holding that, even though trial court erred in
permitting State to read entire indictment of felon-in-possession charge, including
predicate offense, error was harmless because of “overwhelming evidence” of
defendant’s guilt of current offense). Additionally, defense counsel’s strategy in
voir dire was successful because the jury, having found both enhancements true,
assessed punishment at 25 years, the statutory minimum.
17
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
18 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481363/ | By the Court.
The decree is affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481364/ | The Court reversed the decree, dissolved the injunction, and dismissed the bill. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481365/ | Daniel, J.
This Court, in the case of Thornton v. Thornton, 3 Rand. 179, decided, that a conveyance to husband and wife, had precisely the same effect in laxo, as a grant to them, during the lives of both, and after the death of either, to the survivor alone. Upon the death of Mrs. Norxnan, therefore, it is clear that her husband Thomas Norman, by virtue of the patent issued to himself and wife in 1790, became invested with the legal title to the whole tract of land therein granted. An application, however, of the principles, announced in Countz v. Geiger, 1 Call 190, to the facts presented by the record in this case, makes it, I think, equally clear, that as to a moiety of the said land, the said Norman should be regarded, in eqxiitxj, as a trustee of the legal estate for the benefit of his wife’s heirs, who, if the land was still within the reach of the Court, would have a right to a decree for a conveyance thereof. The appellees, in their bill, allege that Norxnan, *71after the death of his wife, made sale of the whole tract, by sundry conveyances, to bona fide purchasers, all of whom bought without notice of any equity affecting the title; and that the land is consequently no longer liable, either at law or in equity, to their claim; and they ask that, as Norman has thus deprived them of the power of ever coming to the possession and enjoyment of their rightful inheritance, his representative be decreed to render them compensation for their loss: and they insist, that the just measure of compensation is the value of the land at the time of Norman’s death, when, upon the expiration of his right to hold as tenant by the curtesy, they became entitled to receive the land, as heirs of their mother.
The Chancellor has sustained their claim, and has given them the relief sought. In so doing, I cannot myself perceive that he has committed any error requiring correction at the hands of this Court.
It is true that the answer does not admit that the purchasers from Norman bought without notice of the equity of the appellees; and it is argued here that the Court below erred in taking the allegations on that head, as true, without some proof. But supposing that it was incumbent on the plaintiffs below to prove a negative, and establish their allegation, what better proof is wanting, in the absence of any to the contrary, than that which appears on the very face of the transaction itself? The title which Norman undertook to convey to his vendees rested on the highest species of evidence known to the law, the Commonwealth’s patent. There was nothing upon its face to arouse the suspicions of the purchasers as to any outstanding equity. The grant of the land in question by the Commonweath to Norman and his wife, accompanied by the fact that he was the survivor of the two, presented every assurance that the most wary purchaser could ask, that the title was in all respects perfect. The purchasers were not bound to *72arising look beyond the patent for latent defects arising from the equities of third persons. The fair inference is that they did not, and the just presumption of the law, g from the intrinsic evidence furnished by the character of the transaction itself, that they bought without notice, is all the support of the truth of such allegation, that ought to have been required, till something tending to the opposite conclusion was furnished by the appellant. Being thus cut off from all resort to the land for indemnity, the appellees were without any election. Their only remedy was to seek compensation for their loss at the hands of the representative of him whose acts had occasioned it. In giving them relief, the Court below has, I think, both as regards the mode and measure of redress, followed the rules established by the highest authority in like cases. In breaches of trust the constant effort of Courts of Equity is to restore the parties injured, as near as may be, to the position they occupied before the breaches were committed. And for this purpose, when the property has been disposed of and is capable of being followed in specie, it will compel the trustees or parties in possession, (if the latter have taken with notice of the trust,) to reconvey the estate to the purposes of the trust. If the property cannot be followed in specie, or if the holder is a bona fide purchaser without notice, and so not liable to the trust, the trustee will be decreed to compensate the cestuis que trust, by the payment of a sum equal to the value of the trust property, or by the purchase of other property of equal value for their benefit. Hill on Trustees 522.
In the case of Mansell v. Mansell, 2 P. Wms. 678, trustees for supporting contingent remainders, joining to destroy them, were declared guilty of a breach of trust, and were decreed to unite with their grantee in making to the party barred at law of his remainder by the joining of the trustees, before his birth, such an estate as he *73would have been entitled to, had not the remainders been destroyed. And the Court declared, that had the premises been conveyed to one without notice and for a valuable consideration, such purchaser would have held the lands discharged of the trust, but that the trustees would have been decreed to purchase lands with their own money, equal in value to the lands sold, and to hold them upon the same trusts and limitations as they held those sold by them. And in the case of Hart v. Ten Eyck, 2 Johns. Ch. R. 62, an administrator, who, by exhibiting an untrue account of the personal estate of his intestate to the Court, had obtained an order for the sale of the real estate, was made to answer for the value, not at the time of the sale, but for the value of the land as it existed at the time of the filing of the bill.
In the case of Mansell v. Mansell, above cited, the Court said, that where an estate was limited to A for life, remainder to his first, &c. sons in tail, though it was a plain wrong in him to do any act which would destroy the remainders, before the birth of a son, notwithstanding his legal power to do so, a Court of Equity had no cognizance of the case; that to prevent this inconvenience, the remedy of appointing trustees had been invented; that the invention was then but of recent origin, and that there had then been no decision defining the powers and duties of the trustees in such cases. There was nothing in the case to shew that the trustees were prompted by any corrupt or improper motive, and the fair presumption was, that in joining in the conveyance to destroy the remainders, they were acting upon the belief that they had a right to do so. Yet the Court held, that the measure of compensation to which they would have been properly subjected, in case the lands had been placed beyond the reach of the Court, would have been the purchase with their own money, (though they had received nothing for their *74conveyance,) of lands equal in value to those conveyed away. Can the representative of Norman justly complain that his breach of trust has been visited with a bke measure of retribution ? It may be that he acted upon a mistaken view of his rights : but it is clear that he was fully informed of all the facts on which those rights depended. The absence of corrupt motive on his part, does in no degree mitigate the loss to the innocent sufferers, nor justify a Court of Equity in awarding them any thing short of full compensation. He has undertaken, without any authority therefor, to dispose of the inheritance of the p'aintiffs to his own use, and I cannot see how a decree directing his representative to pay to them in lieu thereof so much money as the land was worth at the time when they became entitled to receive it, can be properly regarded as in any degree harsh or unjust. If the land had been in the power of the Court, it could not have refused to compel its restoration to the rightful owners. As without any fault or negligence on their part, it had been placed beyond the reach of the Court, how could it, upon any principle of equity, refuse to decree to them an equivalent ?
It is urged that the rule heretofore adopted by our Courts in cases of eviction, of restoring to the party evicted his purchase money, would be a proper guide for ascertaining the amount of compensation in this case. I do not think- so. The standard of damages erected in such cases is not only founded on technical and peculiar reasons, and supported by arguments of convenience wholly inapplicable here, but its justice has been heretofore vindicated by considerations, which, owing to the different position of the parties, do not present themselves in a case like the one now before us. “ Where land is sold, the existing state of things, the present value and situation of the laud, are the subjects in the minds of the parties : it *75is this land as it now is, that is bought and sold and warranted. Is it not most natural then to suppose that the parties mean that the purchase money, the standard of value to which they have both agreed in the sale, shall be the measure of compensation if the land be lost ? They seldom look into futurity to speculate upon the chances of a rise or fall in value. If they did, the views of buyer and seller would probably be very different ; and whatever they might be, could form no part of the contract, nor enter into its construction. What is it the seller warrants ? The land itself. Does this warranty, either by force of its terms or by the intention of the parties, extend to any future value which the lands may reach when they have become the site of a populous city, are covered with expensive buildings, or mines of gold have been found in their bowels? Such a state of things was probably not dreamed of. And how can these subsequent accessions be the subject of a warranty made when they had no existence, nor were even in the contemplation of the parties ?” Carr, J. in Threlkeld’s adm’r v. Fitzhugh’s ex'x, 2 Leigh 451. The main arguments generally used in favour of restricting a purchaser in case of eviction to a recovery of the purchase money paid and received for the land lost, it must be conceded, are here urged with great force, but I cannot see how they tend in any degree to shew the justice or propriety of awarding to the appellees in this case, any such stinted measure of relief. They had nothing to do with the sale of the lands. They have no connexion with the purchasers, and claim nothing through them. They have not, by any conduct of theirs, brought themselves within the influence of the relations existing between vendor and purchaser. They have entered into no contract, from which it can be inferred" that they would in the case of a loss of their land, be content to look to any particular fixed value as the standard, by which such loss should be adjusted and *76repaired. At the period when by the due progress of events, and the undisturbed operation of the law, they would have been entitled to enter upon the enjoyment °f real estate which had belonged to their mother, and with her title to which she had never parted, they r J found their right to do so resisted and successfully opposed. They have availed themselves, with due diligence, of the most appropriate, if not the only means of relief, a resort to a Court of Equity. Obedience to the plain dictates of justice, and conformity to its own well established rules and precedents, required that Court to decree the property to be restored j and if that could not be done without violence to the rights of innocent purchasers, to compel him from whom the injury proceeded, to make compensation, by paying to those entitled, "the present value of the land in money, with interest thereon from the time when their right to the enjoyment of the possession of the land, would, but for the wrongful alienation, have accrued. The Court below has in making its decree adopted as the period of fixing the value of the land, the time of Norman's death. Whether that or the era of the filing of the bill was the most to be preferred, it is not necessary to enquire, as there does not appear to have been any change in the value of the property between the two periods, and the former is the one selected in the prayer of the bill.
I do not perceive any force in the suggestion of error founded on the omission to make the purchasers from Norman parties to the suit. The bill did not claim, and could not with propriety claim, any thing against them; as according to its own allegations, they bought without notice. Nor do I think that it was at all necessary to examine them as witnesses, inasmuch as the only fact of importance to which they could have deposed, to wit, the want of notice, was already sufficiently established by the intrinsic evidence in the case.
*77I concur with Judge Baldwin in the opinion that the claim of the appellees was in no wise affected, either by the will of Norman, or by the warrantees in his several deeds to the purchasers, and am of opinion to affirm the decree.
Baldwin, J. It is clear that James Tutt acquired a good equitable right to the tract of land in the record mentioned. His warrant from Lord Fairfax, his survey under that warrant, and his subsequent claim and possession, without any proceedings had for forfeiture, or any adverse claim whatever, gave him an unquestioned and unquestionable right to demand a patent from the lord proprietor, or from the Commonwealth as his successor, upon payment of the office fees and commutation money. Picket v. Dowdall, 2 Wash. 106 ; Johnson v. Buffington, Id. 116; Curry v. Burns, Id. 121; Countz v. Geiger, 1 Call 190: And no one claiming Tutt’s title, and perfecting it by patent, can make objections to its regularity, or assert an equity superior to his.
By the will of Tutt, his equitable estate in this land passed to his granddaughter, Milly Tutt, (afterwards Mrs. Norman,) and his daughter, Ann Williams, (wife of Paul Williams,) to be equally divided between them; and they consequently took not as joint tenants, but as tenants in common. If a patent had issued to them in conformity with such their equitable rights as tenants in common, (as it might, Co. Litt. 190 b,) or to them as joint tenants, (1 Rev. Code, ch. 98, § 1, p. 359, act of partitions,) Mrs. Norman’s estate in an undivided moiety would have been preserved and perfected, and would consequently at her death have descended to her heirs, subject to her husband’s tenancy by the curtesy. But by the patent which actually issued, the entire tract was granted jointly to Norman and wife, the former claiming by purchase the undivided moiety of *78Mrs. Williams ; and consequently the legal estate vested jointly in them, not as joint tenants, nor as tenants in common ; but, according to the rule governing conveyances to husband and wife after coverture, each took the entirety, with the chance of excluding by survivor-ship the heirs of the other. Thornton v. Thornton, 3 Rand. 179. And we have to determine whether, under the circumstances, the heirs of the wife can in equity recover her undivided moiety, or if that cannot be had, compensation therefor.
There seems no reason to doubt that the husband, in obtaining the patent to himself and wife jointly for the whole tract, acted in perfect good faith, and without any design to secure an undue advantage to himself. Indeed his act might be regarded as beneficial at the time to the wife, inasmuch as it tended to secure to her, in the event of her widowhood, a more ample provision, by giving her the whole, instead of a moiety only. And it is with some regret, and after an effort the other way, I am constrained to the conclusion that the husband could not thus by his own choice place in jeopardy the certain estate of his wife. The joint patent to himself and wife resulted from his own course of conduct, for which there was no inevitable necessity. It was his own voluntary act to purchase the undivided moiety of Mrs. Williams; and moreover the suggestion in the patent of that purchase might have been avoided. His contract might have provided for obtaining the patent in the names of the, devisees, (to which their coverture would have formed.ho' impediment,) and for a subsequent conveyance rp him of the undivided moiety of Mrs. Williams. We know not whether it was by the actual consent of Mrs. Norman that the patent was so obtained as to put at risk her undivided moiety, for the chance of gaining the .whole tract by survivorship. She was, however, disabled in law from consenting to the alienation, whether certain or contingent, of her real es*79tate, in any other mode than that which the law prescribes, to wit, upon privy examination, duly authenticated.
I cannot think we are at liberty, for the sake of sustaining a fair transaction, to break in upon the safeguards which the law throws around fames covert in regard to the alienation of their inheritance. It would be a dangerous precedent, and might lead to fraudulent practices incapable of detection. The principle could not be limited to grants from the Commonwealth, but would extend to all conveyances to husband and wife arising out of his connecting interests of his own by purchase with others belonging to his wife in the same property. The argument in this case that the payment by the husband of the office fees and commutation money was necessary for the purpose of obtaining a patent, can avail nothing on this point. However that may be, though it fully warranted the preservation, it cannot justify'the destruction of the wife’s title.
It cannot be doubted that Mrs. Norman acquired from her grandfather not merely an inceptive right to the'acquisition of a legal title, but an equitable estate in the subject, Countz v. Geiger, 1 Call 190, against which no adverse claim was, if there could have been any, asserted. Her marriage did not vest this title in her husband, who stood in relation to it upon no better footing than he would have done in regard to any other inheritance of hers, whether legal or equitable, to which she' might have succeeded dum sola. And it was not competent for him by any act of his to divest this equitable estate, and vest it in himself, whether absolutely or contingently. It was his province to perfect the title in such manner as to secure it for her benefit; or to leave it as he found it, to be perfected thereafter, if practicable, by her or her representatives. The citations for the appellant from Co. Lilt, were cases at law, and not of equitable estates in the wife before marriage, but of *80common law assurances begun before, and finished af.terwards, which were treated as conveyances made to them during coverture.
I think, therefore, that though the patent vested the ^eSa^ esta£e of the entire tract in Norman and wife, which upon her' death survived to him alone, yet that her equitable, estate in an undivided moiety was not thereby defeated, but descended to her heirs at her death, subject however to his life estate therein as tenant by the curtesy. At his death, therefore, it is clear that if there had been no alienation of the subject by him in his lifetime, they would have had a right to recover such undivided moiety from his representatives. And we are next to consider what is the redress to' which under the circumstances they are entitled.
The remedy of a person entitled to real property against an adverse claimant is an action at law, ora suit in equity, according to the nature of the case, for the recovery of the specific property itself, and not for the recovery of its value, or of damages for the sale of it to a third person. There are cases, it is true, in which a Court of Equity will give a compensation in money, instead of requiring the party aggrieved to pursue the property into the hands of third persons. As if one fraudulently obtains and alienates the property of another, he is bound in conscience to replace the party injured, in the same or as good a condition as he found him, and if he has disabled himself by his own act from yielding retribution in kind, he cannot object to any other adequate redress against himself, and require the prosecution of a demand for the specific thing, though it might be successfully pursued, against his assignee. This is equally true in regard to an express trust, where the trustee abuses the confidence reposed in him, and converts the trust subject to his own use by the alienation of it to a stranger. The general rule is, therefore, not applicable to such cases of fraud and trust. And *81even where there is no bad faith or breach of trust, if the equitable claimant establishes his right to the subject as against the original adverse claimant, he need not' insist upon defeating a sale of it made by the latter to a stranger, but may yield his confirmation, and take the stipulated price for remuneration.
The case before us falls within the exception last mentioned. The appellees are at liberty to waive redress quoad the specific property, (or the Court may do it for them,) confirm the sales made by their ancestor, and receive from his estate the prices paid him by the purchasers; to which the addition of interest thereupon would be proper, but for his right to enjoy the subject during his life as tenant by the curtesy.
But the claim asserted by the appellees, is not to the prices at which the property was sold, but to its value at the date of Norman's death : and they found it upon the allegation, that the sales were made to purchasers for valuable consideration, without notice of their equity, and consequently, that the property itself cannot be specifically recovered. Of this allegation, however, there is no proof: and it was incumbent upon the plaintiffs to prove it. They cannot be excused from that necessity on the ground that the want of notice is negative matter; for the obvious and regular mode of presenting the question whether the purchasers had notice, was to make them defendants. And then upon the question whether the appellees could recover compensation in damages, instead of the specific property, the denial or admission of notice by the purchasers, would have been material evidence. The plaintiffs ought, at least, upon the question of notice, to have examined the purchasers as witnesses, the bill having rendered them competent by the disavowal of any right to recover against them.
But even upon the concession that the purchasers had no notice of the equitable title of the appellees, I think *82the proper measure of compensation to the latter is not the estimated value of the property at the time of Norman’s death, but the prices which he received when he sold to the purchasers. The last is the period at which the appellees were aggrieved; that is, the period at which they would have been entitled to redress, but for the postponement of their recovery by the subsisting tenancy by the curtesy: those prices, too, would have been the basis of compensation to the purchasers in the event of their eviction. Norman was guilty of no fraud, or breach of trust and confidence. He acted in perfect good faith in taking out the joint patent to himself and wife; and indeed with liberality towards her in thus yielding to her in the event of her survivorship, the absolute ownership of the entire tract, though the whole expense of purchasing one moiety, and of perfecting the title to both; was incurred by himself. He was mistaken as'to his equitable rights, upon a question by no means free from difficulty, but is exempt from all imputation of improper motives. He was, moreover, the ancestor of the-appellees, who would have participated in case of his intestacy,' in the succession to his whole estate, including the prices at which he sold the land in question, and he has actually made provision for them by his will. Under these circumstances, it would be a harsh measure of redress to subject him to damages beyond the value of the property at the time he sold it. And on the other hand, if there had been a deterioration in the value of the property since it was sold, there would have been no injustice in giving to the appellees the prices actually received. He who has been guilty of fraud, or wilful malversation, may be required to make re.ribution to the uttermost; 2 Crabb’s Real Prop’/, p. 651, <§> 1921; Ime v. Ivie, 1 Atk. 430; Mansrlt v. Mansell, 2 P. Wms. 678; but equity discriminates in some respects in favour of a bona fide holder, ignorant of a defect in his title, against whom equity is sought. 2 Story’s Eq. 109.
*831 think, therefore, that though the appellees are entitled to relief, the proper measure of it is not the estimated value of their undivided moiety of the land at Norman's death, but the prices which he received for it from the purchasers, with interest from his death.
There is nothing substantial in the defence of the appellant, that the appellees are barred by the collateral warranties of Norman in his deeds of conveyance to the purchasers. Our act 1 Rev. Code, ch. 99, $ 21, p. 368, taken from the statute of Gloucester, and extended generally to common law warranties, applies only to cases of real assets descending from the warranting ancestor, and not to personal assets, or assets, whether real or personal, accruing from him by devise or bequest.
The defence that the effect of giving relief to the appellees, is to enable them to claim as, well_against as un der the will of Norman, is equ claim nothing against his will, ject applies only where the thi or bequeathed away to anotln not the case here, either as to f ceeds.
Brooke, J. concurred with Daniel, J.
Cabell, P. was of opinion to reverse the decree and dismiss the bill. Had he thought that any relief should be granted, he would have given that measure of relief indicated by the opinion of Judge Baldwin. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481367/ | Baldwin, J.
Whether parcel or not of the demised premises, if not ascertained by the written contract, is always open to extrinsic evidence. In this case the memorandum of agreement between Sowers and Morris, designed to be preliminary to a more formal lease, does not describe the demised tenement, and other evidence is indispensable to determine even its locality, a matter, however, which was distinctly understood between the parties, and in regard to which there seems never to have been the slightest controversy. But a dispute has arisen, whether the cellar room in which the alleged trespass is charged to have been committed, was appur*101tenant to the leased tenement. That room is under an adjoining tenement, which, as well as the leased tenement, at one time belonged to Pitman, who rented the latter to Morris for a year, and with it the said cellar room of the adjoining tenement. Before the expiration of the year, Pitman sold both tenements to Sowers, who also before the expiration of the year, made the agreement with Morris above mentioned, by which the latter became the tenant' of Sowers for the succeeding year; and the written memorandum being silent as to the said cellar room of the adjoining tenement, the previous lease from Pitman to Morris was introduced by the plaintiff on the trial, with accompanying parol evidence, that the tenement rented by Morris from Sowers was the same tenement which he had previously rented from Pitman, and that the said cellar room of the adjoining tenement was indispensable to Morris for the purposes of the business in which he was engaged.
I think the evidence so introduced, both written and parol, was perfectly proper for the consideration of the jury, upon the question of fact, whether the parties to the lease from Sowers to Morris intended to embrace therein the said cellar room of the adjoining tenement, as parcel of or appurtenant to the demised premises; and therefore that there was no error in the decision of the Circuit Court on that point.
In a joint action of trespass against several, if the jury find the defendants guilty jointly, and especially if they have pleaded jointly, it is the duty of the jury to assess the damages jointly against all; for otherwise they depart from their own finding, which is that the defendants are equally guilty, and from the rule of law which makes joint trespassers liable for the amount which the most culpable ought to pay. In Hill &c. v. Goodchild, 5 Burr. 2790, Lord Mansfield, delivering the opinion of the Court, said : “ We hold that as the trespass is jointly charged upon both defendants, and the *102verdict has found them both jointly guilty, the jury could not afterwards assess several damages.” — “ We do not think that the present case calls for an opinion upon those cases where the defendants are charged jointly and severally, or where the defendants plead severally, or where a joint action is brought for two several trespasses, and the damages found severally, as being severally guilty. We do not meddle with any of these cases; there is a variety of opinions in the books relating to them. It is enough to found our present determination upon the present case. And the present case is, that the count is of a joint trespass; and the jury have found the defendants guilty of a joint trespass, and yet have severed the damages. We are of opinion, that in such case the damages cannot be severed.” And the judgment, which was in conformity with the verdict, was reversed. And in 1 Wms. Saund. 207 a, note, it is laid down broadly that, “ where several persons are jointly charged in an action of assault, battery and false imprisonment, or any other trespass, who either plead jointly, or sever in their pleas, or one suffers judgment to go by default, (for it is immaterial which is the case,) if the jury assess several damages, the verdict is wrong, and the judgment will be erroneous.” In conformity with this proposition is the opinion of the Court in Bohun v. Taylor, 6 Cow. R. 315; and so are the opinions of the Judges in Ammonett v. Harris & Turpin, 1 Hen. & Munf. 488.
But where the jury by mistake have assessed several damages, the plaintiff may cure the defect by entering a nolle prosequi as to some, and taking judgment against the other; for such actions being in their nature joint and several, as the plaintiff might therefore have originally commenced his action against one only, and proceeded to judgment and execution against him ; so he may after verdict against several, elect to take his damages against either of them. 1 Wms. Saund. 207 n.; 2 Bac. Ab. Dam. D 4; 1 Tidd’s Prac. 735.
*103It seems to me, however, that it can never be correct for the Court to instruct the jury, as was done in the present case, that they may sever in the damages, and . , .... . . . assess respectively what m their opinion each party found guilty ought to pay; for if such a practice be allowed to prevail, it must abrogate the rule, so well established, that the damages cannot be severed. In Brown v. Allen & Oliver, 4 Esp. N. P. C. 158, Lord Ellenborough instructed the jury that they could not sever the damages, and give more against one defendant than against the other; but that they should therefore take it as their rule in estimating the verdict against both, to find the amount which they thought the most culpable of the defendants ought to pay. It must, I think, be erroneous to instruct the jury to find a wrong verdict, upon which the plaintiff cannot take judgment in conformity therewith. Mitchell v. Milbank, &c. 6 T. R. 199.
And yet I think the judgment in this case cannot be reversed for that error. It cannot be treated as error to the prejudice of the appellant, who is not subjected beyond his legal responsibility; but must be regarded as rather to the prejudice of the plaintiff, who was entitled to a joint verdict against all the defendants for the whole amount of damage he had sustained, instead of an apportionment amongst them of the aggregate amount, part of which, too, he was obliged to relinquish in order to obtain any judgment for the rest.
When a trial of a cause is had before a jury, and they cannot agree upon a verdict, or do agree upon a verdict which is set aside by the Court, and a new trial awarded, the proceedings upon the former trial are functus officio, and improper for the consideration of the jury upon the new trial. Any opinion expressed by the former jury, or by the Court upon the former trial, is wholly irrelevant matter, and can only tend to mislead and confuse the jury. Can the former verdict of the jury, or any *104decision of the Court at the former trial, excluding evidence then offered as illegal, or admitting it as legal and proper, or instructing the jury as to the law of the case, be given in evidence to the jury upon the second trial ? jr¡very one wiH at 0nce admit that if such evidence of what occurred at the former trial were formally offered at the second trial, and objected to, it would be the duty of the Court to exclude it. Suppose in this case that the counsel for the plaintiff had offered to read to the jury the former verdict, or a bill of exceptions taken on the former trial, would it not have been competent for the defendant to object to it, and would it not have been the duty of the Court to reject it ? Yet this it seems is what was done substantially. The plaintiff’s counsel, as I understand the record, referred to the bills of exception taken at the former trial, as incontrovertible evidence of what could not with truth be denied, that the Court on the former trial had decided points conclusive as to the merits’of the cause; and as further evidence that a former verdict had been rendered for the plaintiff, which the Court had approved, both as to the plaintiff’s right to recover, and the amount of damages, but which was set aside on the ground of some irregularity.
To this irrelevant and improper matter, the defendant’s counsel objected, but the Court refused to exclude it from the consideration of the jury: And why ? Surely not because it was proper for the consideration of the jury: but because it was the duty of the defendant to move for instructions in opposition to this irrelevant and improper matter. What kind of instructions was the defendant expected to move for? Was it an instruction that the matter was irrelevant and improper, and that the jury should give no weight to it ? This in effect was what he did by his objection ; but that objection was overruled by the Court. It seems, therefore, that the defendant was expected to move for instructions upon the points of law which the Judge had already *105decided against him upon the former trial, as appeared from the former bills of exception, referred to with the acquiescence of the Court.
Instructions are moved for by a party with the view of affecting the verdict of the jury; but to move for them in the teeth of the known opinion of the Judge was to surrender the verdict; and there could be no motive for them but to prepare the cause for an appellate forum. Was this the duty of the defendant, or was it the duty of the plaintiff, who relied upon the opinion of the Judge in order to obtain a verdict, and at the same time sought, it would seem, to avoid responsibility in the Appellate Court? It seems to me that if the plaintiff relied upon the law of the case, as expounded by the Judge, he ought to have called for its exposition by the Judge to the jury, instead of relying upon its exposition by him to the former jury.
The opinion of a Judge sitting in a cause is not authority to be considered and weighed by a jury, but a judicial decision which the jury are bound to obey, and which the parties cannot controvert except in an appellate forum. It surely could not have been contemplated that the opinions of the Judge brought before the jury, and admitted to.have been given formerly in the very cause, and believed to be still adhered to, were to be the subject of discussion before the jury, and the correctness of them to be denied in argument. And of what avail could have been the argument of counsel against the known opinion of the Judge, if a re-argument had been allowable, after the concluding speech of the plaintiff’s counsel ?
/ The manifest object of the plaintiff’s counsel was to obtain a verdict, by force of the Judge’s opinions in their favour, which they succeeded by permission of the Court in getting before and urging to the jury. Ought not their client to be responsible for the correctness of those opinions ? If they were right, then the defendant *106has not been prejudiced: but if they were wrong, it is no answer to the error of practice and opinion to say that the defendant ought to have countervailed it, by moving for instructions on his part. The proper course of the Court, it seems to me, was to prevent the mischief; and there is no reason to believe that it would have been cured by the defendant’s moving for instructions; for the presumption is that if the Judge had changed his opinion of the law he would have said so, without waiting for a formal motion. And what practicable cure was there for the error of the Judge in permitting his opinion of the former verdict to be relied on ? No instruction could have been asked for on that point, except the one substantially asked for, that his opinion in regard to it was irrelevant and improper matter upon the new trial.
If such a practice should receive the sanction of this Court, I apprehend it will be resorted to upon every new trial. The former verdict will always be relied on; and so also will the opinions of the Judge upon the former trial. This can only tend to confusion and mischief. The plain and obvious preventive, it strikes me, is to hold that the former proceedings cannot be relied on at all; and so the rejection of them will confine the counsel to the legitimate evidence before the jury, and such instructions upon the law as either party may move for and obtain. The practice would be particularly objectionable in the County Court, where ttie Court is pften constituted of an even number of justices; and where countervailing instructions would of necessity fall upon an equal division of the Court.
This view of the case brings us to the question, whe\ ther the Circuit Court erred in its opinion declared at the first trial, and which it permitted to go to the jury on the last, in regard to the construction and legal effect of the lease from Soioers to Morris. Did that lease expire with the year for which it was made; or did it *107create a tenancy from year to year, and so require a notice from the landlord to the tenant to quit at the end of the year?
„ . ... , The tenancy from year to year is a qualified tenancy at will, introduced to obviate the inconveniences of that kind of estate; and the qualification requires the determination of the will to be prospective, to take effect at the end of a current year of the tenancy, and under a reasonable notice to quit, which, as regulated by our act of 1841, must be a notice of three months when the demised premises are situate in ail incorporated town, and of six months when situate in the country. Such a tenancy, unless provided for by the terms of the contract, being a mere modification of the ancient tenancy at will, can arise only where the duration of the tenancy is originally indefinite, or where being definite, the tenant with the consent of the landlord, holds over after the expiration of the term. If the length of the term be fixed by the contract, as where the lease is for a year, or a certain number of years, no notice to quit is necessary to dissolve the relation of landlord and tenant. Com. Lan. and Ten. 286, 6 Law Lib.; Cobb v. Stokes, 8 East 358. So if the tenant holds over by the laches of the landlord, after the term has run out, he will be merely tenant by sufferance; and the landlord may enter and put an end to the tenancy when he pleases. 4 Kent Comm. 117. In Messenger v. Armstrong, 1 T. R. 44, Lord Mansfield, delivering the opinion of the Court, said : “ Where a term is to end on a precise day, there is no occasion for notice to quit, because both parties are apprised that unless they come to a fresh agreement there is an end of the term.”
In the case before us, the lease was for a definite period, and there was no holding over with the consent of the landlord. The contract was for one year from a specified day, at the yearly rent (meaning the rent for the year) of 85 dollars, payable quarterly in advance. *108The “preference” which it gave to Morris “each succeeding year thereafter,” was no extension of the term, nor did it authorize him to continue it at pleasure. It was nothing more than the privilege of what is called jn comEnon parlance, “ the refusal;” and gave to Morris not the absolute but the preferable right to become the tenant for succeeding years; so that if Sowers should continue to rent out the property, Morris was to have it, upon such terms as the parties should agree upon, or any other person should offer. It did not restrain Sowers from taking possession of the property at the end of the year, and occupying it himself, or transferring it to a purchaser, or shutting it up and keeping it vacant.
If this view of the stipulated preference were not correct, still it could not have the effect of changing the demise for a year certain into a tenancy from year to year; for such a tenancy is still a modified tenancy at will, and may be determined by either party, upon due notice to the other. But here the privilege reserved of prolonging the tenancy at the end of the year certain, was reserved to the tenant, and not to the landlord : and if absolute, the landlord could not get rid of it by any notice to quit. It would, in truth, in that aspect, be in the nature of a covenant of renewal, dependent for its exercise, or the reverse, upon the will of the tenant, and in no wise upon that of the landlord. Now, a covenant of renewal supposes the expiration of a lease for a definite period, and provides for a new one of the like kind : and in the nature of things cannot occasion a tenancy from year to year, determinable by a notice to quit. And it is not conceivable that the “ preference” reserved in this case can be regarded as a covenant for renewal, from year to year, absolutely and indefinitely.
It seems to me, therefore, that the Circuit Court erred in its construction of the lease in question, which did not create a tenancy from year to year, but expired at *109the end of the year therein specified, though no notice to quit had been given to the tenant.
The other Judges concurred in the opinion of Baldwin, J.
The judgment was as follows:
It seems to the Court,
1. That upon the question whether the cellar room in which the alleged trespass is charged to have been committed, was appurtenant to the tenement leased by Soioers to Morris, the defendant in error, the Circuit Court did not err in admitting as evidence, for the consideration of the jury, the previous lease from Pitman, the vendor of Sowers, to Morris, after proof by parol evidence that the tenement demised by the one lease was the same with that demised by the other: nor in permitting it to be proved by parol evidence that said cellar room was indispensable to Morris, for the purposes of the business in which he was engaged.
2. That the Circuit Court did not err to the prejudice of Craioford, the plaintiff in error, in its instruction to the jury that they might sever in their damages, and assess respectively what in their opinion each defendant found guilty ought to pay: nor in suffering Morris after such severance to enter a nolle prosequi as to Crawford's co-defendants, and take judgment against him alone.
3. That the Circuit Court did err in permitting the verdict rendered at the former trial, and the opinion of the Court then expressed on the motion for a new trial, and the instruction given by the Court to the former jury, as to the construction and legal effect of the lease from Sowers to Morris, to be referred to and relied upon before the jury at the last trial, on the part of Morris, as matter proper for the consideration of the jury; this Court being of opinion that the said verdict, opinion *110and instruction, at the former trial, were improper and irrelevant matter for the consideration of the jury at the last trial; and that said instruction was erroneous in holding, that the lease from Sowers to Morris constituted a tenancy from year to year, and entitled the tenant to a notice to quit.
It is therefore considered by the Court, that the judgment of the Circuit Court is erroneous, and that the same be reversed and annulled, with costs to the plaintiff in error against the defendant in error; and that the verdict of the jury be set aside, and the cause remanded to the Circuit Court for a new trial to be there had of the issue joined, as between the present parties. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481368/ | Baldwin, J.
delivered the opinion of the Court.
The Court is of opinion, that the Circuit Court erred in refusing to permit the appellants to introduce the evidence offered by them to the Court, as stated in their first bill of exceptions, for the purpose of rebutting the evidence which the appellee had introduced, as stated in that bill of exceptions, in order to prove that there had been such possession in conformity with the alleged deed from Charles Young to Henry Fisk, of the 13th of January 1791, as warranted the introduction of that paper as evidence to the jury; and that the Circuit Court moreover erred in permitting that paper to go in evidence to the jury, there being no legal proof of its execution, and no sufficient evidence of such possession in conformity therewith.
And the Court is further of opinion, that the Circuit Court did not err in permitting the appellee to give in evidence to the jury the copy of the record from the *117County Court of Botetourt, in the appellants’ second bill of exceptions mentioned, as proof that partition had been made by the final decree of the said County Court amongst the heirs of Peter Korfman deceased, of the lands in that record mentioned.
And the Court is further of opinion, that a power of attorney for the conveyance of lands falls within both the letter and the spirit of the seventh section of the act regulating conveyances, 1 Rev. Code, ch. 99, p. 363, authorizing deeds to be acknowledged before any two justices of the peace for any county or corporation within the United States; and that such instrument may, upon due certificate by the justices of such acknowledgment by the grantor therein, be admitted to record, together with the deed of conveyance made under the authority thereof, in the proper county or corporation within this Commonwealth. And although the form of the certificate by the justices of such acknowledgment of a deed given in the act, states that the party desired them to certify the acknowledgment to the clerk of the County or Corporation Court of , in order that the same may be recorded; yet, inasmuch as the statute does not require the precise form, but only the effect of the certificate therein stated, to be observed, this, as well as other parts of the statute, ought to be construed according to its spirit, and with a view to the purpose it was intended to accomplish. The object of mentioning the county or corporation in the certificate is not to determine whether the grantor desires that the instrument shall be recorded or not, for that is the privilege not of the grantor but of the grantee, who may exercise it, upon proof by the subscribing witnesses of the sealing and delivery of the deed, without proving by them that the grantor desired it to be recorded. Nor was it the intent of the legislature that the validity of the recordation should depend upon the will of the grantor in regard to the county or corpora*118tion in which the deed should be admitted to record, for that is a matter which the law itself has determined, by requiring the instrument to be recorded in the county or corporation where the land lies. The only rational purPose mentioning the county or corporation in the certificate, is to designate the county or corporation in which the law requires the deed to be recorded, for wherever that may be, it is idle to suppose that the parties did not intend necessarily, and as a matter of course, that the instrument should be there recorded. And after a deed has been recorded in the proper county, to hold the recordation invalid, because the certificate does not express the grantor’s desire to that effect, would sacrifice the substance for the sake of the shadow, and in all probability shake many land titles within this Commonwealth.
The Court is therefore of opinion that the power of attorney from Jacob Beckner and wife, to Abraham Beckner, in the appellants’ third bill of exceptions mentioned, was duly acknowledged, certified and admitted to record in Botetourt county, as regards the grantor Beckner, but not as regards the female grantor therein, inasmuch as the 15th section of the said act, which confers upon two justices of the peace the power to take, upon privy examination, and certify the acknowledgment by a feme covert of a deed executed by her and her husband, embraces only by its letter and its spirit deeds of conveyance, and not powers of attorney.
And the Court is further of opinion, that the deed of conveyance from the said Abraham Beckner, as attorney in fact of the said Jacob Beckner and wife, to the appellee, also mentioned in the appellants’ third bill of exceptions, is the deed of the said Jacob Beckner, but not of his wife; the same having been duly executed as regards him "by his said attorney in fact, pursuant to the authority conferred by said power of attorney, and duly admitted to record ; but as regards her, having been exe*119cuted and admitted to record without any lawful authority. There is nothing in the form of the deed, or of its execution by said attorney in fact, to prevent its operating as the deed of the said Jacob Beckner. It is a sufficient execution of a deed by an attorney in fact for his principal, if he signs the name of the principal with a seal annexed, stating it to be done by hitn as attorney for the principal; or if he signs his own name with a seal annexed, stating it to be for the principal: and the present instance embraces both these modes of execution. And though by the terms of this conveyance, Abraham Beckner bargains and sells and warrants the land, yet he does so for, and on the part of, and by the authority of his principal, as conferred by the power of attorney: and this raises a use from the principal to the grantee, which the statute executes by passing the title.
The Court is therefore of opinion, that the Circuit Court did not err in permitting said power of attorney and said deed to the appellee, to go to the jury; the same being proper and lawful evidence for the purpose of proving that whatever title or interest the said Jacob Beckner may have had in the subject, passed by conveyance from him to the appellee.
And the Court is further of opinion, that the Circuit Court erred in refusing to permit the appellants to give in evidence to the jury the entries, order of the County Court, and inclusive survey, in their fourth bill of exceptions mentioned, upon which the patent therein mentioned, to Nicholas Carper, under whom the appellants claim, is founded; for although there can be no adversary possession against the Commonwealth, and therefore a junior patentee cannot go behind the elder patent for the purpose of giving colour to his possession prior thereto, yet there may be an adversary possession against one who has derived title from the Commonwealth, and therefore a junior patentee may go behind his own pateut, and also behind the patent of the elder patentee, *120for the purpose of giving colour to his possession, from: or subsequently to the granting of the elder patent: and he and those claiming under him may do this not only . . . . to establish an adversary possession under his junior patent> w^ich confers itself no legal title, but to establish an adversary possession prior to his junior patent, under the entries and surveys upon which the same is founded, it being immaterial whether an adversary possession under a claim of title, be under a good or a bad, a legal- or an equitable title.
It is therefore considered by the Court that the judgment of the Circuit Court is erroneous.
Judgment reversed with costs, verdict set aside, and cause remanded for new trial, on which the Court is to be governed by the principles above declared. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481369/ | Allen, J.
In the case of Williams v. Peyton, 4 Wheat. R. 77, the Supreme Court of the United States decided that a deed of the marshal, made under the act of Congress of the 14th July 1798, imposing direct taxes, arid the act of March 3, 1804, did not furnish prima facie evidence that the land had been advertised, nor that the requisitions of the law had been complied *130with. That as the act of Congress contained no declaration that the conveyances shall be deemed prima, facie evidence of the validity of the sale, it was a naked power not coupled with an interest, and in all such cases ^g jaw reqUires that every prerequisite to the exercise of that power must precede its exercise. The authority of this decision, as expounding an act of Congress, was fully recognized and followed in the case of Allen v. Smith, 1 Leigh 231, where the validity of a deed made under the same laws came in question. It was there held that it is incumbent on a party claiming under a sale for said tax, to prove the regularity thereof; that the marshal’s deed is not even prima facie evidence of the regularity of the collector’s proceedings; nor shall the regularity thereof be presumed from twenty-two years quiet possession under the sale, or from any lime short of that from which any other link in the chain of title to real estate may be presumed. On the trial of the mise joined in the case under consideration, the demandants relied on a deed from William D. Taylor, collector of the direct taxes, for land sold for the direct tax imposed by the act of Congress of the 9th January 1815; and offered two depositions of said Taylor to prove in general terms that he had advertised the sale in the mode prescribed; that the sales were made in exact pursuance of the acts of Congress in relation thereto; and that he has no doubt he executed deeds for the same to the purchasers in regular forms.
If the recitals in the deed of the officer do not furnish even prima facie evidence of the regularity of the proceedings which led to the sale, much less would a mere vague statement by the officer, that the sales were made in exact pursuance of the acts of Congress, avail. In the case of Keith v. Preston, there was also adduced the evidence of the printer to prove that the sale was advertised, but this was only one of the preliminary steps to authorize a sale. Evidence of the various pro*131ceedings required by law before the sale was made, should be adduced to enable the Court to determine upon the facts so proved, whether the authority to sell was properly exercised in the particular case. A reference to the recitals of the deed and law, shew that many things were to be done by duly authorized officers, of whose acts and authority there must be written evidence, which should be produced. But nothing of the kind was offered. The case therefore falls within the influence of the principles decided in the cases referred to, and the Court should have rejected the deed as evidence, unless accompanied with evidence of the regularity of the proceedings preparatory to the sale.
The case of Robinett v. Preston, 4 Gratt. 141, has been relied on as authority for dispensing with such proof. That was a sale of land of a debtor by a sheriff under an execution. Actual possession had been held by the party claiming under the sale and sheriff’s deed, for a sufficient length of time to have barred a recovery by the original owner in a writ of right, if the possession could be deemed adverse to his title. There, to support the possession, the presumption of the regularity of the proceedings was properly allowed. In this case no such possession is shewn, and consequently no presumption can arise. I think the judgment should be reversed.
The other Judges concurred. Judgments reversed with costs, verdicts set aside, and new trials awarded. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481370/ | Bv the Court.
The defect in the bond is not injurious to the defendants.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481372/ | Cabell, P.
delivered the opinion of the Court.
The Court is of opinion, that the indemnifying bond which the plaintiff offered to introduce as evidence to the jury, in support of his declaration, is substantially the same as that described in the declaration ; and that the Court below erred in excluding it from the jury. The judgment is therefore reversed with costs ; and the cause is remanded for a new trial, on which the said bond, if again offered, is to be permitted to go to the jury as evidence in support of the declaration. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481375/ | Daniel, J.
In the Court below, exceptions were taken by the demandant to four several opinions of the Judge, delivered upon questions arising during the progress of the trial before the jury. And the supposed errors, in these opinions, are here assigned and insisted on as causes for reversing the judgment. By the first bill of exceptions, it appears, that, on the trial of the cause, the tenants offered in evidence the patent of the Commonwealth to John Boswell, dated 3d June 1794, under which they claimed to derive title to the land in controversy. The demandant objected to its reception as evidence, and also to any evidence in support of the right of Hezekiah Harman, the ancestor and devisor of the tenants, which they could offer, on the ground that he held a deed of conveyance, with special warranty for *162the land in controversy from the said Hezekiah Harman, dated 14th February 1818. This deed, which is set out in hcec verba, in the bill of exceptions, and purports to be an indenture between Harman and wife of one Part> an(* John Wynn of the other, “ witnessed that Harman and wife, for the consideration of one hundred and fourteen dollars and eighty-eight cents, the receipt of which is acknowledged, have sold all their claim in and to” the land in controversy, describing it as the “ Currin place, which was conveyed to Currin by Daniel Harman, sr.” The warranty is as follows: “ The said Harman and wife, for themselves and their heirs, the said right as it was invested in Daniel Harman, to the said John and his heirs, against themselves and their heirs, will warrant and defend; it is fully understood, if said title should prove insufficient in law or equity, the said Wynn and heirs is to have no recourse, he knowing the whole circumstance.” By this deed the demandant contended the tenants were estopped to shew title in themselves derived from the bargainor in that deed, by his procuring the Boswell title subsequent to the date of his deed ; but the Court overruled the objection, saying that this was not the proper time to raise the question as to the effect of that deed; but the parties having argued the question in this stage of the proceedings, the Court expressed the opinion that said deed was no estoppel to the tenants to shew better title to the land demanded, than the demandant; and permitted the tenants to introduce their testimony. The tenants then proceeded regularly to deraign their title, by exhibiting, first, the patent aforesaid to Boswell, then the will of Boswell devising the land to Thomas Johnson, the will of said Johnson devising it to Chapman Johnson and other devisees, a decree of partition between the latter, and an allotment, under it, of the land in controversy, to said Chapman, his deed conveying to Hezekiah Harman, and lastly, the will of the latter *163devising to the tenants. The demandant thereupon, after first, however, introducing his written evidence, (which consisted of the patent of the Commonwealth, of date the 27th September 1796, to Daniel Harman, his deed to Hugh Currin, dated 30th June 1814, the said Currin’s deed to Hezekiah Harman, of the 21st July 1817, and the deed of the 14th February 1818, of the said Harman, conveying the land to the demandant,) moved the Court “to exclude from the consideration of the jury, all the written evidence offered and introduced by the tenants as aforesaid, upon the ground that the said deed from Hezekiah Harman to the demandant was an estoppel, and prevented him and the tenants, his devisees, from contesting the claim and title conveyed to demandant by said Hezekiah Harman as aforesaid.” The Court refused to exclude the evidence ; and the refusal to do so caused the fourth bill of exceptions. There might be some doubt whether the state of the case was such, when the first bill of exceptions was signed, as properly to present the question of the estoppel; but it is not necessary to pursue any such enquiry, as the same question does properly arise on the fourth bill of exceptions.
Does, then, the doctrine of estoppel apply to such a deed as that of the 14th February 1818? If it does, it must be because of some technical rule imparting peculiar force to the instrument of conveyance used; inasmuch as it is manifest, from the language of the deed, giving to it its ordinary signification, that it was the purpose of the grantor to convey only such claim and title to the land as he had at the date of the conveyance. I know of no rule requiring the estoppel to be extended beyond what is called for by the plain import of the terms employed by the grantor in the deed. In the absence of a general warranty, there is nothing in the nature of the instrument used, justifying the grantee in claiming under it any thing further than the specific title or claim which it purports to convey.
*164It is true, as a general proposition, that no man shall be permitted to gainsay what he has solemnly averred by his deed. Every man is bound to speak and act ac- • cording to the truth and fact of the case; and the law only presumes that he has done so, but denies him the right to contradict such reasonable presumption. When, therefore, a grantor recites that he has an indefeasible title to the land conveyed, or uses terms or modes of conveyance from which such fact is fairly to be inferred, he and those claiming under him, are generally estopped to deny such fact, or to oppose the legal consequences flowing from it. If, however, by the same deed which would otherwise work the estoppel, it appears that the grantor had only a particular claim or title, the estoppel would be defeated. Wheelock v. Henshaw, 19 Pick. R. 341.
In the deed before us, there is no recital of a good' and indefeasible title; no terms used which import it; no conveyance of, nor undertaking to convey, the land. The deed merely purports to sell all the grantor’s claim to the land. The position which the tenants now occupy, contradicts no averment of that deed. They do not now deny that Hezekiah Harman, their devisor, had such claim as he undertook by his deed to sell. They do not call in question the fact that such claim passed to the demandant by said deed, to avail him to the extent of its worth. As to what is the extent of its worth, what is its legal value and weight in a comparison of titles between them and the demandant, there is nothing, in the deed, estopping them to enquire. Their pretension consists, not in the denial that Hezekiah Harman had any title at the time of his conveyance to the demandant, but in the assertion of an independent and paramount title, since acquired by the said Harman, and transmitted to them by his will.
In the warranty there is no undertaking to defend any other title or estate than that which the deed purports *165to convey. It refers only to “the said right,” (meaning the claim sold,) “ as it was invested in Daniel Harman,” and not to any other right or title which might be afterwards acquired. There are no terms used in the deed implying any covenant against eviction; and to exclude all inference of an intention on the part of the bargainor to convey or warrant a perfect title, it is expressly stipulated, that “if the title should prove insufficient in law or equity, the said Wynn and heirs is to have no recourse ; he knowing the whole circumstance.” If Johnson, or any stranger claiming under him, had brought suit against Wynn, the demandant, and had recovered the land from him, the latter would have been wholly without remedy. And I cannot conceive upon what principle the bargainor in such deed as the one before us, can be estopped from acquiring and maintaining any title, the purchase and successful assertion of which against the demandant, by a stranger, would have left the demandant without recourse against his bargainor. It seems to me, therefore, that the Judge of the Circuit Court committed no error in giving the opinions set forth in the first and fourth bills of exceptions.
There is no statutory provision regulating the manner in which the records of the proceedings of a Court in our State are to be authenticated so as to make them evidence in any other Court in the State; and I think the objections made by the counsel to the introduction of the copies of the wills of John Boswell and Thomas Johnson, and of the orders of probat thereof, were properly overruled by the Court below. These copies were certified and attested in the manner which it is believed has been heretofore generally adopted; and which has at least received the silent sanction of the Courts. I know of no case in which such an objection has been raised, except in the case of Gibson v. Commonwealth, 2 Va. Cases 111, cited at the bar, in which the General Court sustained such a certificate. There *166was, in my opinion, therefore, no good and sufficient ground for the second bill of exceptions. It does not appear from the third bill of exceptions, at what stage of the cause, or for what purpose, the decree of the Court, and rePor(i ^ commissioners therein mentioned, were offered as evidence. Their introduction was opposed on two grounds. The first objection, that they were not properly certified, has been already considered; as the certificate was the same as that objected to in the second bill of exceptions. The force of the second objection, that they were only portions of the record, must depend mainly on the circumstances under which, and the purposes for which, they were offered in evidence. It is true, as a general proposition, that a party desiring to avail himself of record evidence, must produce all of the record relating to the subject matter; but there are cases where portions of the record are competent and sufficient evidence to establish the fact which they are offered to prove. As where the question is merely whether a decree has been rendered, the exhibition of the decree itself is all that the law requires. White v. Clay's ex'ors, 7 Leigh 68. The demandant has failed to set forth in his bill of exceptions any statement of facts from which it could be inferred that the decree was not legal evidence. We must presume that the judgment and opinion of the Court below in the matter was right; and that circumstances existed, justifying the introduction of these papers, the contrary not appearing.
The act of Assembly, 1 Rev. Code, ch. 99, § 14, p. 365, requires that every partition of any tract of land made under any order or decree of any Court, and every judgment or decree by which the title to any tract of land shall be recovered, shall be duly recorded in the Court of the county in which such land or a part thereof shall lie; and that until so recorded, such partition, judgment or decree shall not be received in evidence in support of any right claimed by virtue thereof. And it *167is urged in this Court, that the decree of partition above referred to in the case of Johnson v. Johnson, was improperly received in evidence by the Court below, as it does not appear from the record that said decree had ever been recorded in the county of Tazewell, where ' the tract of land lies. This objection was not taken in the Court below, and cannot avail the demandant here. Specific objections to the testimony were taken before the Judge of the Circuit Court, and his refusal to sustain them excepted to. Other objections raised here for the first time, cannot properly be considered by this Court. The tenants may have been ready to shew that the decree of partition had been duly recorded; and may have failed to furnish the proof, under the belief that the demandant had waived any objections founded on the absence of such proof, by resting his objections to the competency of the evidence on other grounds. Besides, we have no complete record of the proceedings before us, and do not know that evidence of the recording of the decree may not have been given during the progress of the trial.
I see no error in any of the proceedings, and am of opinion to affirm the judgment.
The other Judges concurred in the opinion of Daniel, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481376/ | Allen, J.
The demandants, to sustain their title, offered in evidence a patent from the Commonwealth for the land claimed, and sundry conveyances deducing the title from the patentee to John Rosebrough; and then offered in evidence a copy of a decree frota the late District Court of Chancery in luewisbnrg, and a conveyance by the marshal alleged to have been made in pursuance of the decree. To the reading of the decree and conveyance of the marshal the tenant objected, because the record of the proceedings in the cause in which the decree was rendered, was not produced. The objection was overruled and the tenant excepted. The decree here was relied on and offered, as a necessary *171link in the chain of title. The marshal’s deed would have availed nothing, unless made by due authority; and the recitals therein were no evidence of any such authority as against the tenant. It was decided in White v. Clay's ex'ors, 7 Leigh 68, which was a suit on an injunction bond, that extracts from the record of the injunction cause, of the decrees in the cause, are competent and sufficient evidence, without producing the whole record. This Court, during the present term in the case of Wynn v. Harman, supra, 157, held that a decree of partition and a deed made in pursuance thereof might be offered in evidence, without the production of the whole record ; the decree sufficiently describing and pointing out the laud which the commissioner was directed to convey. But the decree so offered must satisfactorily establish the fact, it is offered to prove: and this it seems to me the decree under consideration does not. It merely directs the marshal to convey on behalf of Ebenezer Welch, all the right, title and interest, he may have in the land in the bill mentioned. But there is no other or further description of the land either specifically, or by reference to conveyances. The Court may, and in support of the verdict, would presume that evidence was adduced to prove that the title had vested in Ebenezer Welch; but that is not the difficulty. The question is what tract of land did this decree direct the marshal to convey? Does his authority to convey the tract in his deed described, distinctly appear on the face of the decree standing alone? No doubt the bill or other parts of the record, if produced, would shew that the land described in his deed was the land intended to be conveyed. The decree refers to the bill as describing the land; and it was incumbent on the demandants, if they wished to avoid the expense of procuring a full copy of the record, to have produced so much thereof as would satisfactorily prove the authority of the marshal to convey the very land he undertook to convey. *172For any thing appearing upon the face of the mere decretal order, it may have referred to some other tract to which the said Ebenezer Welch had title, and which was the subject of controversy in that suit.
I think the objection to the reading the decree and deed was well taken, and should have been sustained.
A second bill of exceptions was taken to a decision of the Court overruling an objection made by the tenant to the reading so much of a deposition of a witness, as detailed the statements made to the witness by one of the grantees, under whom the demandants claimed, and who had been dead many years. It is said by Abbot, C. J. (with whom the other Judges concurred,) in the King v. Debenham, 2 Barn. & Ald. 185, “to be an established principle, that nothing said or done by a person, having at the time an interest in the subject matter, shall be evidence for him or persons claiming under him.”
In Outram v. Morewood, 5 T. R. 121, entries made by a third person deceased, in his books of receipts of rent from his tenant for a particular estate, were held not to be evidence to prove the identity of the land, in a cause between two others. Buller, J. observed, “that he considered the entries in the same light as declarations by the individual; but evidence not on oath is not admissible, except in case of pedigree and certain other excepted cases, or where the declaration is evidence against the party making it.”
This general principle was not controverted in the argument, but, it was contended that this was a question of boundary, on which hearsay was admissible. It does not appear to me that the declarations deposed to, had respect to boundary so much as to title. The boundary was not the subject of conversation, or referred to in the declarations. Upon being asked where the good lands lay, the patentee pointed out certain localities as laud claimed by him under his grant. When, at a snbse*173quent period, a controversy arose as to the identity or precise situation of the land, the tenant contending that by the course and distance of the lines in the patent, the land in controversy was not included, the demandants insisting upon being bounded by certain marked lines and corners, these declarations of the former owner may have had a material influence in determining the question, whether the course and distance or the marked lines and corners should govern.
If the good lands pointed out by him to the witness, did belong to him, it would strengthen the presumption that the corners and lines found marked, or seen by the witnesses in that vicinity, were in fact the true boundaries of the land described in the grant. It was evidence of a particular fact, a right to a particular piece of land, which, if true, supported the pretension that certain boundaries claimed, were the true boundaries: for, supposing this piece of land so pointed out to be actually embraced by his patent, then the calls for course, &c. must be disregarded, as they would exclude the land, and furnished a strong presumption in favour of the other hypothesis.
It was argued that the statements so detailed by the witness in his answer to the first interrogatory, were mere inducement to the main portion of his deposition in reference to the marked lines and corners. It does not seem to have been so regarded by the parties or Court below. If it had been, the jury would have been instructed to disregard it; but the Court permitted the whole deposition to be read as evidence. The jury under this decision, had a right to regard it as proper for their consideration; and it is not for the Court to conjecture what influence it may have had; if improper, it should have been excluded. But it may be readily perceived, that if the other evidence left it doubtful whether the pretensions of the demandants or the tenant were correct, evidence of such declarations made under *174the circumstances detailed, may have had a material influence on the determination of the question,
case of Richardson v. Carey, 2 Rand. 87, has settled the question presented by the third bill of excep^0118, interest of the witness, if any, was one in the question and not in the result of the suit.
An objection is made to the form of the verdict, as not being responsive to the issue, but as by the decision of the Court, on the questions presented by the first and second bills of exceptions, the judgment must be reversed and verdict set aside, it is unnecessary to consider this objection.
The other Judges concurred. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481377/ | Allen, J.
delivered the opinion of the Court.
The Court is of opinion, that, according to the true construction of the act establishing general regulations for the incorporation of banks, passed March 22, 1837, Sessions Acts, p. 57, the power thereby conferred on the Executive to appoint, and the stockholders, at their annual meeting in January, to elect directors, is fulfilled and finished when the Executive and the stockholders, respectively, have made a valid appointment and election. That after such appointment and election, it would not be competent for either the Executive or the stockholders to recall the said appointment or set aside said election and appoint or elect others. The act directs that the directors shall hold their office until the next annual meeting of the stockholders and until their successors shall be chosen ; thereby necessarily implying, that when such successors have been chosen, the term of office of the predecessors is ended; and that the successors so chosen are in contemplation of law directors *176from the time they were so chosen. That snch construction is the more necessary from other provisions of the act. It is provided, that where no election of directors shall b® made on the day, when by said act it ought t0 have been made, the corporation shall not for that cause be deemed to be dissolved, but it shall be lawful for the stockholders to make an election on any other day, in the manner provided for in the by-laws. But no provision is made for the election of directors by the stockholders, in the place of those elected at their annual meeting, should they refuse to accept the office : And unless such refusal to accept after the election, should be held to create a vacancy in the body of the directors, no director could be appointed during the year to supply the place of the director so elected and refusing to act. That though it was the intention of the Legislature to provide for the due representation of the interests, as well of the Commonwealth as of the private stockholders in the directory, that intention is carried out by the original power of appointment and election conferred on the Executive and stockholders respectively : But after the power had been exercised, and vacancies occurred in the board, the power of filling such vacancies, was given to the board without regard to the fact, whether the director, whose place had become vacant, received his original appointment from the Executive, or had been elected by the stockholders. The act makes no discrimination between directors appointed by the Executive and those elected as aforesaid, as to the time from which they shall be considered as directors; and if the refusal of one elected by the stockholders to accept, constitutes a vacancy which the board may fill, the same rule must apply to the director appointed by the Executive. In either case the successor is appointed in the place of the director resigning or declining to accept, and not as an original independent appointment.
*177The Court is therefore of opinion, that after the Executive, in pursuance of the power conferred by law, had executed that power by the appointment of WilHam M. Radford, and the said William M. Radford, after such appointment, and during the time for which he had been so appointed, resigned or declined to accept the office of director, it was competent for the board of directors, under that provision of the law which declares, that the directors shall fill all vacancies which may occur in their own body during the time for which they shall be elected, to fill the vacancy existing in their body by electing a successor in the place of said William M. Radford; and that the appointment made by the Executive, of said John M. Robinson, as in the proceedings set forth, was without authority and void.
The Court is therefore of opinion, that the said order and judgment is erroneous: It is therefore considered, that the same be reversed, with costs to the plaintiffs in error. And this Court proceeding, &c., it is considered that said petition be dismissed with costs. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481378/ | By the Court.
The judgment is affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481379/ | Baldwin, J.
delivered the opinion of the Court.
In the written contract on which this action is founded, there is no express covenant on the part of White, the appellant’s intestate, to deliver salt to Ton-cray, the appellee, for transportation ; but the agreement of Toncray to do the transportation, and of White to pay him therefor, import an implied covenant on the part of White to allow and permit Toncray to transport the salt, and to furnish him with the agreed quantities for that purpose. The implied covenant of White in this respect is the correlative of the express covenant of Toncray. The latter agreed to transport for White from Saltville, from 1200 to 6000 barrels of salt annually, for three years from the date of the contract, water permitting ; from which is to be inferred an agreement on the part of White, that Toncray should receive so much salt annually at Saltville for transportation, if the state of the water permitted it. If the condition of the navigation should be such that the salt could not be transported, then Toncray was absolved from the obli*189gation to transport it; and in the like event, White was absolved from the obligation to deliver it. Any right of action on the part of Toncray, upon this contract, would be founded upon his claim to the stipulated compensation for his actual transportation of the salt; or upon his claim to damages for having been prevented from transporting it, by the failure or refusal of White to deliver it. In the latter case, if the condition of the water did not allow his transportation of the salt, the delivery of it to him by White could have availed him nothing. The reciprocal liabilities, therefore, of Ton-cray and White, in relation to the transportation of the salt, were both dependent upon the same condition : if the state of the navigation did not allow the transportation of the salt, White could have no action against Toncray for failing to transport it, and Toncray could have no action against White for failing to deliver it.
The agreement of the parties was not for the transportation of an aggregate amount of salt, in the course of three years; but for the transportation of from 1200 to 5000 barrels of salt in each year of that period. This Court, looking to the nature and object of the contract, held, on the former appeal, that the electiou of the annual quantity, within those limits, was with White the manufacturer, and not with Toncray the carrier. The election of White was, however, determined as to any one year, by the quantity delivered by him in that year; the whole of which Toncray was at liberty to transport in the same year; and if he did so, his right in regard to the quantity to be transported the next year was not thereby affected. But there was a corresponding duty on the part of Toncray, to transport in any one year the whole quantity received by him for that year; and his inability or refusal to do so, could not but affect his right in regard to the quantity to be received the next year.
*190Let us suppose that in the first year of the contract, Toncray had received from White for transportation the minimum, or the maximum quantity provided for by the agreement, that is to say, either 1200 barrels or 5000 barrels, and that the state of the navigation prevented him from transporting any of it, and that the whole of it remained in his hands at the end of that year. It is obvious that the purposes of both parties would have been defeated in regard to that year. White would have lost his contemplated markets for that year, and Toncray would have lost his compensation for transportation ; and the salt would have been White’s salt in the hands of Toncray. Still Toncray would have a right to transport at least 1200 barrels of White’s salt in the second year; but having it already in his hands, he would have no right to call upon White for the delivery to him of 1200 barrels more. The transportation of what he already had on hand would be a performance of his contract for the second year, and White’s permitting him to do it would be equivalent to an actual delivery by him of the same quantity in the second year. And the same result would have followed the like state of things at the end of the second year.
And so if Toncray had wilfully failed to transport the salt received by him for the first or the second year, he would be equally bound to transport it in the second or third year; and could not withhold it, and at the same time-call upon White to supply what he had already in his own hands.
The construction of the contract, in this regard, contended for by Toncray. would be unreasonable and unjust ; and would have enabled him to defeat the whole purpose of his employer in the agreement for transportation, which was the annual supply of the contemplated markets. It would have put it in his power to defer the transportation of any part of the salt until near the end of the third year, and then flood the markets with *191the whole of it at once. And it would have made his interests as carrier paramount to those of his employer.
In asserting a breach of the contract by White, whether by refusing to pay for transportation, or by refusing to permit transportation, Toncray must confine himself to a single year, or declare distributively for the several years: otherwise, as may be inferred from what has been already said, there must be inevitable difficulty in ascertaining the rights and obligations of the parties by pleading, and in making up the proper issues of fact. Indeed, it is manifest that much confusion and perplexity have been introduced into the cause, by the mode of declaring adopted by the appellee; who has sought to treat the contract as entire, so far as regards his own obligations; but distributive, so far as regards the obligations of White.
Some obscurity seems also to have been introduced into the cause, by the idea on the part of the appellee, that White was bound to do certain acts preliminary to the transportation of the salt by Toncray ; for example, that White ought to have given notice to Toncray to come and do the transportation, and ought also to have given him notice at what places the salt should be landed, and to what consignees it should be delivered. But this is so far from being correct, that it is obvious in regard to this action by Toncray, (however it might be in an action or plea by White,) the first duty was to be performed by Toncray. It was his business to attend at Saltville, at such times as suited his convenience, to receive the salt from time to time, as he was ready, and commence its transportation ; and he ought to have required not only the delivery of the salt, but the instructions requisite as to its points of transportation, so far as the same were nndesignated by the contract; and if he rashly commenced the transportation without requiring such instructions, any loss to him thereby occasioned is attributable to his own fault.
*192Some difficulty has also been occasioned by certain averments in the declaration, intended to affect by parol the terms of the contract under seal, in regard to limits . . 0 and relative prices of transportation, and a point of debarkation, by means of a new verbal agreement between the parties, enuring to the advantage of the appellee, and of mandatory directions to him by White, to which he yielded, operating to his prejudice. But these are matters which cannot be properly introduced into this action, for the recovery or enhancement of damages in favour of the appellee; and any redress to which he may be entitled by reason thereof must be sought by other remedies.
The principles above declared will serve to indicate objections to a greater or less extent to every count of the appellee’s declaration, and the correctness of the Circuit Court’s decision sustaining the appellant’s demurrer to the fourth count, and its incorrectness in overruling her demurrers to the other four counts. And these views render it inexpedient to notice points ruled by the Circuit Court in rejecting pleas, admitting evidence, and refusing instructions; for as the cause must be sent back for a new trial and new pleadings, we cannot foresee how far those points may again arise in the new state of the pleadings and evidence. To this remark an exception exists in relation to the question as to the extent of the credit to which the appellant is entitled, on account of the loss of salt in the river, in the course of its transportation by the appellee, occasioned by the “staving” or sinking of boats; a question which will doubtless be presented at the new trial, whatever may be the state of the pleadings. On this point therefore we express the opinion, that the appellant can be entitled to no compensation for such loss, beyond the stipulated damages provided for by the contract in such a case. There is a general provision in the agreement, that Toncray should be responsible for salt received for *193transportation, and not delivered by him at a prescribed rate; which general provision extended his liability beyond that of common carriers: and the loss of salt in the river, by staving or sinking, was intended by the parties to be an exception to that general provision as to the rate, and fixed the liability of Toncray for such loss at a lower rate, and was designed to exclude any question of liability which might otherwise arise in regard to it, out of the general law of carriers. It waives, as well as the general provision, all questions founded upon care or negligence; and provides the simple rule of actual loss by staving or sinking, probably because Toncray had an interest, as well as White, in the safe transportation of any salt which might be so lost.
Judgment reversed with costs, verdict set aside, demurrers to declaration sustained, and cause remanded for a new trial, with leave to the parties to plead de novo. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481381/ | Lackland.
The decree in this case is wrong in giving to the appellee’s judgment priority over the deeds of trust. The deeds rvere admitted to record on the 6th day of June, upon acknowledgments made before the deputy clerk in the clerk’s office. The certificates of the deputy clerk shew that fact; and the appellee’s judgment was rendered at a term of the County Court which did not commence its session till the 8th of June, two days after the deeds were recorded. The deeds were therefore prior in point of time to the judgment. But the Court admitted parol evidence to contradict the certificates of the deputy clerk as to the regular acknowledgment of the deeds. The appellee was permitted to shew that the acknowledgments were not made in the office. In this the Court clearly erred ; and I will now proceed to shew that those certificates were conclusive. In doing so, I shall be led necessarily into a consideration somewhat in detail of the doctrines of estoppel, and the well settled principle that a record cannot be contradicted.
In 2 Tuck. Com. 45, (3 Bl. Com. 24,) it is said to be “a settled rule and maxim that nothing shall be averred against a record, nor shall any plea or even proof be admitted to the contrary; and if the existence of a record be denied, it shall be tried by nothing but itself, that is, upon bare inspection whether there be any such record or no; else there would be no end of disputes.” Farther on, p. 278, (3 Bl. Com. 331,) the same principle is again laid down upon the authority of Sir Ed. Coke. *215“ A record or enrolment (says he) is a monument of so high a nature, and importeth in itself such absolute verity, that if it be pleaded that there is no such record, , , , . . , it shall not receive any trial by witness, jury or otherwise, but only by itself.” It may be said that these authorities apply more directly to the records of suits, and to the proceedings of the various Courts of justice as they are spread upon the order book, and signed by the presiding Judge or Justice. This may be ; but I expect to shew, both upon principle and authority, that the doctrine is not confined to the mere entries in Court, but that it has a more extensive application. I propose to shew that it applies to the memorial or certificate of the enrolment of a deed, particularly where the deed is acknowledged, as in this case, before the recording officer.
In the first place, I would observe, that none of the writers seem expressly to limit the doctrine to the mere entries in Court; although perhaps most of the examples referred to in exemplification of the doctrine, are records of this kind. Thus, a judgment is usually referred to by way of illustration, and this is universally allowed to operate as an estoppel: and Comyn, in his Digest, tit. “Estoppel,” (A 1,) in enumerating various matters of estoppel, says: “ If a man levies a fine, or suffers a recovery to A of the land of B, in the name of B, it shall be an estoppel to B, and he cannot avoid it, without a writ of deceit, for he cannot aver against the record.” So, says he, “if a man acknowledges a deed to be enrolled in Court, and it is enrolled of record, he cannot afterwards say non est factum — though it be acknowledged by his attorney for him and not in person, and even though the attorney had no special authority to do it.” But clearly the doctrine of estoppel is applicable to most records of a public nature. In 2 Smith’s Lead. Cas. 44 Law Lib. p. 431, estoppels are said to be of three kinds: 1. By matter of record. 2. By deed; *216and 3. By matter in pais. Under the first are included Court rolls and the judgments of the Courts, judgments both in rem, and inter partes : and then a separate head at page 440, is devoted to estoppels “ quasi of recor(^” Under this head are embraced, amongst other things, grants of probáis and administrations, and the sentences of college visitors and courts martial. These are said to be conclusive against all the world. A judgment in rem is there defined to be “an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for that purposeand the distinction between the two kinds of judgments is, that while a judgment inter partes is binding as a general rule only upon parties and privies, a judgment in rem is conclusive against all the world. A grant of probat or administration is in the nature of a decree in rem, and although a mere ex parte proceeding, is conlusive against all the world.
Greenleaf in his Treatise on Evidence, (vol. I, p. 559-61,) in speaking of public “records" and documents, mentions the case of the books of “ official registers” and “ enrolment of deeds;" and with regard to their admissibility as evidence, he places these upon the same footing with the records of the Courts, the journals of the legislature, and the acts of that body. To official registers, being books kept by persons in public office, he attaches extraordinary confidence. “ The extraordinary degree of confidence (says he) which is reposed in such documents, is founded principally upon the circumstance that they have been made by authorized and accredited agents appointed for the purpose; but partly also on the publicity of their subject matter. Where the particular facts are enquired into and recorded for the benefit of the public, those who are empowered to act in making such investigations and memorials, are in fact the agents of all the individuals who compose the public, and every member of the community may *217be supposed to be privy to the investigation. On the ground therefore of the credit due to agents so erripowered, and of the public nature of the facts themselves, such documents are entitled to an extraordinary degree of confidence ; and it is not necessary that they should be confirmed and sanctioned by the ordinary tests of truth. Besides this, it would often be difficult and often impossible to prove facts of a public nature by means of actual witnesses upon oath.”
Upon the same principle, it is said that the bonds of fiduciaries, such as guardians, executors and administrators, taken by a public functionary, have a high character of authenticity, and need not be verified by the ordinary tests of truth applied to merely private instruments, namely, the testimony of the subscribing witness ; but when they are taken from the proper public repository, it is only necessary to prove the identity of the obligor with the party in the action. (Id. 642.) By analogy to the case of a deed acknowledged, to be enrolled in Court, before referred to on the authority of Comyn, the obligors in such bonds, where the law requires them to be enrolled or recorded, would be estopped by the record, I presume, from pleading non est factum,.
In Saxton v. Nimms & als. 14 Mass. R. 315, it was held that the return of the freeholder upon a warrant from the selectmen for warning a meeting of the inhabitants of a school district, that he had warned them according to law, was conclusive, in an action by one of the inhabitants against the assessors, for assessing a tax on him, which had been voted at such meeting. Parker, C. J. said, “ the assessors had a right to presume that the meeting at which the money was raised, was lawfully warned, for by the records it appeared to be so.”
1 will here make a short digression from the authorities bearing immediately upon the point as to the conclusiveness of the certificates, in order to meet objec*218tions which counsel may raise upon the other side. It may be said that the doctrine of estoppel is confined to parties and privies alone ; and it may be argued that as the judgment creditor in this case, M ’Dowell, was no party or privy to the act of the deputy clerk in making these certificates, he shall therefore not be estopped by the record of those certificates. It is certainly true as a general rule, that the doctrine of estoppel is limited to parties and privies; for one who is no party to a judgment shall not be estopped by it; indeed it cannot be used as evidence against him. But to this rule there are many exceptions, some of which will appear in the authorities before cited. Thus, in the passage before referred to from Comyn’s Dig., where it is said “if a man levies a fine, or suffers a recovery to A, of the land of B, in the name of B, it shall be an estoppel to B, and he cannot avoid it without a writ of deceit.” Here B is not privy to the proceeding, and yet he is said to be estopped by it. And so it would be, he tells us, if the acknowledgment of a deed be made by an attorney, who has no special authority to do it. So, grants of probats or administrations, and the sentences of college visitors, courts martial, &c. form exceptions to the rule, these being in the nature of judgments in rern. So do the proceedings of courts of admiralty : when a vessel is condemned as prize, it seems never to have been disputed that the sentence is conclusive upon all the world. 2 Smith’s Lead. Cas. p. 441, 44 Law Lib. Beeson’s adm’r v. Stephenson, 7 Leigh 107, affords also an instance in which a third person was held to be estopped, even by the record of a judgment to which he was neither party nor directly a privy.
But I would ask, may not the judgment creditor in this case, M’Doioell, be regarded as a party or privy to the act of the deputy clerk, in making these certificates? He is certainly a party to one of the deeds itself, although not placed in it precisely where he would *219like to have been; and I am inclined to think that upon the principle laid down by Greenleaf, in the passage before cited, he is such a party or privy to the act of the deputy clerk as to be estopped by his certificates. The officer, (says he,) “is in fact the agent of all the individuals who compose the public, and every member of the community may be supposed to be privy to the investigation.” Besides, the registry of a deed being intended to operate as notice to the public, I presume all persons are precluded or estopped by the certificate of registry from averring the want of notice.
Again, it may be said, that the case of a record coram non judice is an exception to the general doctrine of estoppel; and by analogy to this exception, the counsel upon the other side will argue, that if the deputy clerk took the acknowledgment to these deeds out of his office, he was acting out of his jurisdiction, and therefore, upon the principle of a record coram non judice, that his certificates are void. It is true, the case of a record coram non judice does form an exception to the general doctrine ; but then the want of jurisdiction must appear upon the face of the record itself — and in this case it should appear from the certificates. For example, suppose the record of a Superior Court in a suit on a bond for less than 50 dollars, were produced in evidence. Here the want of jurisdiction would be manifest, and the record coram non judice and void; for that Court has jurisdiction only in matters of 50 dollars and upwards. But suppose the record produced shewed upon its face a recovery for 50 or 100 dollars, would it be competent for a party to shew that the Court had no jurisdiction, by attempting to prove by other evidence than the record itself, that he had owed a less sum than the judgment was rendered for? Again. Suppose the record of a Court shews upon its face that the Court was held at the place appointed bylaw; that four or five Justices or Judges were sitting upon the bench, and *220that certain matters were transacted over which the law gives them jurisdiction. Would it be competent for a party to attempt to shew that the Court had no jurisdicti°n> by invalidating the record and proving either that the Court sat at a different place from that named in the record, or that a fewer number of Judges or Justices were present? Certainly not. The law considers that men acting in public stations, under the solemnity of an oath, must be trusted; and it is better that individual hardships should be occasionally tolerated by adhering to this principle, than by departing from it to establish an opposite principle, which might prove detrimental to the whole community. In 2 Smith’s Lead. Cas. p. 431, 44 Law Lib., a strong case is stated, which is precisely in point. The original report is said to be in 2 Barn. &. Adol. 262, the case of the Queen v. Carlisle. This was a criminal prosecution, and we may presume that the Court would here, if ever, relax the rigour of the doctrine. In that case the defendant had been convicted of a seditious libel, and he brought a writ of error in the Queen’s Bench, assigning for error in fact, that there was but one of the justices named in the commission present when the jury gave their verdict. On the record returned to the Queen’s Bench, (and which was made up in the ordinary way,) it appeared that a sufficient number of the justices were present, and the Court held that it was not competent to the defendant to question the fact so stated. Several other cases are there referred to, among others that of Molins v. Werby, which was a writ of error on a judgment in the Palace Court, said to be holden before Jam.es, Duke of Ormond: the error assigned was that the Court was not holden before the Duke, but before his deputy; and this was held not assignable, being contrary to the record. Other authorities are not wanting. The case of Gray v. Cookson & al. 16 East 13, decides among other principles, that where the warrant of a justice of *221the peace states upon its face facts which are necessary ..... ... , , • ■ to give him jurisdiction over the subject matter, evidence ought not to be received for the purpose of shewing that he had no jurisdiction. See also 1 Chit. PL 183.
The true distinction upon this point of jurisdiction appears to me to be this: Where a public officer certifies to an act which the law has not placed within the scope of his official duties or powers, then his certificate is not conclusive of the fact; indeed, it is no evidence at all, for it relates to a matter out of his jurisdiction, and his certificate is no more than the statement of a private individual. For instance: Suppose the clerk should take the relinquishment of a feme covert to a deed, and admit the deed to record in his office. Here, as such a relinquishment can be taken only by the Court, or by two justices of the peace, the subject matter would be out of the clerk’s jurisdiction, and his certificate would not be entitled to any official credit. But where, as in this case, the law has invested a public officer with authority to do a certain act, where the subject matter is manifestly within the scope of his authority, then his certificate is entitled to full credit, and is conclusive upon all poiuts which are subjects of his jurisdiction. The principle of this distinction is fully recognized, I conceive, by the 498th section of 1 Greenl. on Ev. p. 573. Here, in the case of these deeds, the deputy clerk was authorized to take the acknowledgments — the subject matter, then, was entirely within his jurisdiction, and he was authorized to state both the time and the place of taking the acknowledgments, for these are material parts of the acknowledgments. His certificates should therefore be regarded as conclusive.
But even supposing that his jurisdiction extends no ■farther than the walls of his office, I contend, that in making the certificates in this case, he did not in point of fact, act out of his jurisdiction. It is proven beyond all doubt, that the deeds were admitted to record, in the *222office, on the 6th day of June. The officer carried them there the moment after he took the acknowledgments. By the fact, then, of his admitting them to record whilst *'w his office, and there sanctioning what he had done elsew^ere, he may be regarded as having there certified to the acknowledgments. Whatever credit, therefore, the law may attach to the jurisdiction of place, is properly due to these certificates.
But I return from this digression to a review of the principles and authorities bearing more immediately upon the question of the conclusiveness of the certificates. And I had supposed the doctrine so well settled, that the acts of a public officer, proceeding under the sanction of an oath, are conclusive, as hardly to require references to authority. It is upon this principle that the return of a sheriff is conclusive, and parol evidence will not be received to contradict it, except in an action against himself for a false return. Goodall v. Stuart, 2 Hen. & Munf. 105. In this case, Judge Tucker said, the return was conclusive in every suit or contest between third persons, and could be contradicted only in an action against the officer. See, also, Purrington v. Loring, 7 Mass. R. 388; Wellington v. Gale, 13 Mass. R. 483; Slayton v. Inhab. Chester, 4 Mass. R. 478. So, in an action against bail, the return of non est inventus, is conclusive evidence of the avoidance of the debtor. Winchell v. Stiles, 15 Mass. R. 230. Neither can an officer falsify his own return ; Gardner v. Hosmer, 6 Mass. R. 327; and the return is good evidence in his own favour, even in an action against himself for a false return. Mass. Dig. by Minot 298. In relation to justices of the peace, so great is the confidence reposed in their acts, that Mr. Chitty says, they are “ not liable, if having jurisdiction over the subject matter, they produce a conviction drawn up in due form, and remaining in force. In such case, the conviction is a protection in any action against them for the act so done, and the *223facts therein stated cannot be controverted in such action, (there being a regular commitment or warrant.”) 1 Chit. Pl. 183, citing 16 East 13; 12 East 67, and other authorities. The case in 16 East, to which I have already referred, was an action brought against justices for a conviction of the plaintiff without authority. It was contended, that the defendants had acted without the pale of their jurisdiction; but the justices produced their conviction drawn up in due form, and one of the principles decided was, that no act could be relied upon as an avoidance of the conviction, unless it appeared on the face of the conviction; and that if the conviction be good on the face of it, the production and proof of it at the trial, would justify the convicting magistrates as well in respect of such facts as were necessary to give them jurisdiction, as upon the merits of the conviction. But there are numerous decisions and authorities directly in point as to the conclusiveness of these certificates. Bissett v. Bissett, 1 Harr. & M’H. 211; Ridgely v. Howard, 3 Harr. & M’H. 321. These cited and approved in 2 Lomax’s Dig. p. 358, 9, § 19, 22; Tracy v. Jenks, 15 Pick. R. 465; Ames v. Phelps, 18 Pick. R. 314; King v. Hopper, 3 Price 495, (1 Eng. Excheq. Rep. 393;) Garrick v. Williams, 3 Taunt. R. 540, and the cases there referred to; also 1 Phil, on Ev. 387; Id. 464, in the note; Harvey v. Alexander, 1 Rand. 219; Harkins v. Forsythe, 11 Leigh 294. In the case of Harvey v. Alexander, a deed was executed and attested by subscribing witnesses. This deed was afterwards admitted to record, upon proof made before the clerk, by the subscribing witnesses. A question afterwards arose as to the time of the delivery, and parol evidence was introduced to shew, that it was delivered subsequent to its date. But the Court held, that although the witnesses might have proved before the clerk, when the deed was admitted to record, a delivery different from the day on which it bore date, yet as the clerk’s *224certificate did not shew that they had done so, parol evidence was not afterwards admissible for that purpose. I rely upon this as an authority to shew, that the Court will not travel out of the record; and that case is stronger, if possible, than this; for it was not there proposed to contradict any thing which actually appeared upon the face of the certificate. It was a mere inference, which the law drew from the absence of any thing appearing in the certificate to the contrary, that the subscribing witnesses had proved before the clerk a delivery corresponding to the date of the deed. But the case of Harkins v. Forsythe, is an authority exactly in point; and upon principle, it settles this. There, two justices of the peace had certified the acknowledgment of a feme covert to a deed, and their certificate was held conclusive. In delivering the opinion of the Court in that case, Tucker, P. expressly said, that the same principle would apply to the certificate of the clerk. That decision was correct on many accounts; but there is one view in which the President of the Court placed the question, which has particular force in it. He said that the modern method of relinquishment before justices, had been substituted, for the convenience of the public, for the ancient mode of relinquishment by fine, which was matter of record, and could not be contradicted. He therefore placed the act of the justices out of Court, upon the same footing of solemnity with the records of the Court; because, he said, it could not have been the intention of the Legislature, in merely providing a substitute, to deny to that substitute the same degree of credit and conclusiveness, which, it was conceded, attached to the original proceeding. The same reasoning, I conceive, applies to the certificates of the clerk, and with equal propriety. Originally, the acknowledgment of a deed had to be taken in open Court. This was matter of record, and could not be contradicted. For the convenience of the public, two magistrates were *225then authorized to take the acknowledgments out of Court — their certificate, we see, is conclusive: and then, for the still greater convenience of the public, the clerk and his deputy were authorized to act — they were substituted. It could not, certainly, have been the intention of the Legislature, when it authorized the clerk and his deputy to take the acknowledgments, to deny to the evidence of their acts the same credit and conclusiveness which accompanied the entry of an acknowledgment made in open Court, or the certificate of an acknowledgment made before magistrates. The object of the law was to place all acknowledgments, wheresoever and before whomsoever made, upon the same footing of validity, and the evidence of all acknowledgments upon the same footing of solemnity. This is manifest so far as the clerk is concerned, from the conclusion of the very section of the law which confers upon him the power to take the acknowledgments: “ Any conveyance so recorded, (*. e. on acknowledgment before the clerk or his deputy,) shall have the same legal validity, in all respects, as if it were proved in open Court.” 1 Rev. Code, p. 363, <§> 6. But, I would ask, what reason can there be for holding the acknowledgments conclusive (as they are) if made in Court, or before magistrates, and open to contradiction, if made before the clerk ? Is the clerk an officer less to be trusted ? Or does he not act under the same assurance of fidelity : the solemn assurance of an oath ?
The case of Horsely & al. v. Garth & al. 2 Gratt. 471, will be cited upon the other side. But that case is not in point. The facts were different, and the principle decided was not the same. The deed in that case had been already acknowledged before magistrates in the country. It was then sent to the office simply for registry. The clerk had nothing to do with the acknowledgment, but simply admitted the deed to record ; and the Court only decided, that his certificate as to the *226time when he admitted the deed to record, was not conclusive. But here the question is, as to the acknowledgments ; for the party has altogether failed to shew, that the certificates are untrue as to the time when the deeds were admitted to record. The proof is positive, that the deputy clerk filed them in the ■ office and admitted them to record on the 6th day of June; and the only question is, are the certificates false as to the acknowledgments ? There is a great difference, I take it, between the act of taking an acknowledgment to a deed, and admitting a deed to record after it has been acknowledged. They are acts separate and distinct. The one is judicial, the other ministerial. Since the recording act, the clerk could always admit a deed to record. In doing so, he acted ministerially, and his certificate perhaps might be open to contradiction. But he could not take the acknowledgment to a deed, which is a judicial act, or in the nature of a judicial act, till the late statute expressly authorized him. And that statute, I contend, intended to place his act, and the evidence of his act, so far as every thing relates to the acknowledgment of the deed, precisely upon the footing of an acknowledgment in Court, which is conclusive. The case of an acknowledgment, then, stands upon grounds peculiar to itself.
But in the case referred to, great importance seems to have been attached by the Court to the fact, that an undue priority would have been given to the deed in consequence of the act of the person who delivered it to the clerk for recordation, and who, it was said, must be regarded as the agent of the cestuis que trust in procuring the false endorsement. But here the case is different. Priority will be given to the judgment over the deeds in consequence of the act of the officer himself. He was called upon by the parties to go to his office and take the acknowledgments there. But he proposed to take them where he was, and accordingly did *227so. But for this act of his, the parties would have gone to the office, and the acknowledgments would have been good beyond dispute.
But even' the decision in Horsely v. Garth, would seem to have its qualifications. The Court expressly declined to say what would be the effect of the certificate upon the rights of third persons, claiming as purchasers without notice. That question is presented in this case; for the appellant Ammen has become the purchaser of the property conveyed by one of the deeds. He denies, in his answer, that he had any knowledge that the deeds were not acknowledged in the office, and there is no proof to shew that he had any notice of that fact at the time of the sale.
But suppose the certificates should be open to contradiction. I then contend, that the acknowledgments made on the 6th of June, may, under the particular circumstances, well be regarded as having been made in the office. The short distance from the clerk’s to the attorney’s office, not exceeding perhaps 150 yards; their being in sight of each other; the daily practice of the clerks every where to receive acknowledgments any where near their offices; the proposition in this case having come from the clerk himself, and the deeds having been carried to the office and filed there the moment afterwards; all these circumstances, it seems to me, may well authorize the Court in looking upon the acknowledgments as having been actually made in the office. It would be too technical to consider them otherwise. It would be to allow the act of the clerk to work an injury to the rights of innocent creditors, and to attribute a virtue and a magic to the mere walls of a building which it could never have been the intention of the Legislature to attach to them. A substantial and reasonable compliance with the provisions of the law, I submit, is all that is necessary.
*228Hudson. The first question to be considered, is, whether the deeds in question were properly acknowledged and admitted to record on the 6th of June ? Although lodged in the office on that day, if they were not ProPerly admitted to record, they were not recorded deeds, within the act of Assembly. Dawson v. Thruston, &c. 2 Hen. & Munf. 132; Manns v. Givens & als. 7 Leigh 689. The testimony proves, that the deeds were acknowledged on the 6th of June, before a deputy clerk, not in the clerk’s office, but in the office of the attorney who prepared them. By the 6th section of our act to regulate conveyances, (1 Rev. Code, p. 363,) the clerks and their deputies are authorized to admit to record any conveyance, either on the acknowledgment of the party or parties, or the proof on oath of such acknowledgment, by the legal number of witnesses thereto, made in the office of the respective clerks. By the terms of this act, the clerk’s jurisdiction is circumscribed, as to place; and he has no authority to take such acknowledgment at any place beyond the limits prescribed by the law which creates his authority. This view is corroborated by reference to our recording acts, as they were originally passed. Previous to the year 1814, all deeds were to be acknowledged, I presume, in Court. The act of February 1814, (see Sess. Acts of 1813-14, p. 35,) besides authorizing the clerk or his deputy to take acknowledgments of deeds “in the office,” makes provision, at the same time, for the acknowledgment of deeds elsewhere, namely, before two justices.
But it is contended that the certificate of the clerk, as to the acknowledgment on the 6th of June, is conclusive. The case of Horsely v. Garth, 2 Gratt. 471, settles this question. In that case, a judgment creditor, claiming precedence as we do here, over a deed of trust, was permitted to falsify the clerk’s official certificate, by proving that it did not correctly shew the time when the deed was lodged with the clerk to be recorded; and *229upon such proof, the judgment was held to overreach the deed. There are also some decisions in other States, to the effect that such certificate is ex parte, and not conclusive. Hardenbergh v. Schoonmaker, 4 Johns. R. 161; Tracy v. Hayner, 12 Johns. R. 469; Wyckoff v. Humphrey, 1 Johns. R. 498; Jackson v. Colden, 4 Cow. R. 266. The cases cited by the counsel for the appellant from 15 Pick. R. 465, and 18 Pick. R. 314, must have been decided upon the ground, that the registry acts of Massachusetts, by their peculiar phraseology, make the register’s certificate conclusive as to the time when a deed shall be considered as recorded. See Rev. Stat. Mass. p. 407. The case of Harkins v. Forsythe, is not in point.
But it is not necessary for us, in this case, to maintain the principle, to its full extent, that the clerk’s certificate may be falsified by other evidence. The ground here taken is, that the clerk acted out of his jurisdiction, and therefore that all his acts were void. We prove that the certificate relied on, was not an official act, and thereby remove the ground upon which the supposed credit is attached to it. Jurisdiction may be circumscribed as to place; and if the officer acts beyond his jurisdiction, all his acts are void. Starkie on Ev. vol. 2, pt. 4, p. 801, note 1. Nor can such officer give himself jurisdiction by certifying a falsehood. In Welch v. Nash, 8 East R. 394, Lord Ellenborough says: “ The justices cannot make facts, in order to give themselves jurisdiction, contrary to the truth of the case.” In Latham v. Edgerton, 9 Cow. R. 227, the Court say : 11 The principle that a record cannot be impeached by pleading, is not applicable to a case like this. The want of jurisdiction is a matter that may always be set up against a judgment, when sought to be enforced, or where any benefit is claimed under it. The want of jurisdiction makes it utterly void for any purpose.” In The People v. Cassels, 5 Hill’s R. 164, the Court *230say: “No Court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts, on which jurisdiction depends.” This last was a case where the excess in the exercise of jurisdiction, was in respect to locality. There are cases, too, growing out of the acknowledgment of deeds. In Jackson v. Humphrey, 1 Johns. R. 498, it was held, “ that the Judge, before whom the acknowledgment of a deed was taken, was competent to prove that it was done out of the State. See Jackson v. Colden, 4 Cow. R. 266.
Baldwin, J. The registration of a deed comprises, in our law, the due authentication of the instrument, and its admission to record, and is therefore the exercise of a probat jurisdiction. It is the province of such a jurisdiction not to adjudicate the rights to property, but to establish certain matters of evidence by which such rights are to be affected. It acts exclusively upon muniments of title, and is confined to those of such importance as to become matters of public concernment, by the necessity of general notoriety, and of perpetuating their existence and preserving their contents. It follows from the nature and purposes of such a jurisdiction, that though its proceedings are often, and most generally, ex parte, yet that when perfected they are evidence for and against the whole world; that they cannot be impeached by extrinsic evidence in collateral controversies concerning the rights to property; and that, as a general rule, they cannot be so impeached even directly in a suit instituted for the very purpose. If this were otherwise, the obvious result would be, to defeat, in a great measure, the objects of the probat jurisdiction, and to introduce much uncertainty and confusion into the administration of justice.
The conclusiveness of the probat proceeding may be illustrated, but cannot be determined, by the principles *231that govern the acts of administrative jurisdictions, charged with the adjudication and enforcement of the rights to property. It is immaterial whether the probat jurisdiction be vested in a Court or a commissioner, in a judicial or a ministerial officer, in a tribunal or an officer appointed for the sole purpose of its exercise, or in tribunals or officers established or appointed for other purposes; and whether the whole of it be confided to the same tribunal or officer, or a part of it, as the authentication of the instrument, to one, and another part of it, as the recordation of the instrument, to another. The whole probat proceeding, when perfected, is to be treated as one entire act; and its conclusiveness is the result of its peculiar nature and policy.
Every probat jurisdiction is with us the creature of the legislative will, and the instrument or instruments to which it relates, and the effect of the registration, or want of registration, upon the rights of property, depends upon the provisions of our statute law. But the registration itself, when complete, and appearing upon its face to have been had conformably to law, is the final act of an exclusive jurisdiction, designed to establish amongst all persons, and in all time, the very matter which extrinsic evidence would draw into question.
The degree of credit given to instruments by the exercise of probat jurisdictions, is generally, perhaps universally, the same; but the extent to which they are thereby accredited, varies according to the general purpose or declared intent of the Legislature. Thus the probat of a last will and testament involves the whole testamentary power, capacity and solemnities; verifies and establishes the instrument to all intents and purposes, and prevents it from being thereafter controverted on any ground whatever, (however erroneous the proceeding upon its face,) unless in an appellate forum, or by the final or re-probat provided for by law. But the registration of a deed declares nothing more than appears *232upon the face of the proceeding, which must shew its conformity to the requisitions of the law: it authenticates the execution and recordation of the instrument, but leaves open all other questions affecting its validity. extent of credit, therefore, which it gives to the instrument, is limited, but the degree of it is, as a general rule, unlimited.
In regard to the registration of a deed, the entire jurisdiction is not, by our laws, uniformly or even generally vested in a single tribunal or authority. At first, deeds were directed to be recorded, upon proof or acknowledgment in Court, and now also by subsequent legislation, upon proof or acknowledgment in the office of the respective clerks, taken by them or their deputies, or upon the certificate under seal of any two justices of the peace for any county or corporation within this Commonwealth, or any other of the United States, or any territory thereof, of proof or acknowledgment there before them, or upon proof or acknowledgment out of the United States, before any Court of Law, or the mayor or other chief magistrate of any city, town or corporation, where the party shall dwell, certified by such Court, &c. in the manner such acts are usually certified by them, or upon the certificate of the clerk of any county or corporation of this State, of due admission to record in such Court, or the office thereof. And by a general statutory provision, all deeds of trust and mortgages, so authenticated and delivered to the clerk of the proper Court, to be recorded, shall take effect from the time when so delivered; and all other deeds and instruments so authenticated, which ought to be recorded, shall take effect from the time of their execution, if so delivered to the clerk within eight months thereafter; and if not so delivered within that period, from the time when they shall be so delivered.
It will thus be seen, that the probat jurisdiction in regard to deeds, is, for the most part, distributive, and *233that the exercise of it consists of two parts; one of which is the taking officially the proof or acknowledgment of the instrument; and the other is its recordation, or what is the same thing in effect, the receiving it officially for that purpose: and the two together, when duly performed by the proper authorities, constitute a complete act of registration.
The registration of a deed is thus a matter of record, and the record is composed of the instrument itself, with the endorsements shewing its proof or acknowledgment, and admission to record; all of which are copied into the deed book, and a transcript therefrom, or from the originals, is, as well as the originals, evidence for and against all persons.
The degree of credit due to this record evidence, does not depend upon the question, whether this or that part of it, or the whole of it taken together, is to be considered as a judicial or as a ministerial act; but upon the consideration, that it is an institute of the law for purposes of a general, public and permanent interest, which cannot be otherwise accomplished. We must bear this peculiarity in mind, in reasoning by analogy from the degree of credit due to records in other jurisdictions.
It may be laid down without qualification, that the registration of a deed, regular upon its face, cannot be contradicted by evidence in any collateral controversy. Thus, in an action of ejectment for the recovery of land, if the title turns upon the due registration of a deed, the registry itself is the only legitimate evidence upon the question, and parol evidence is inadmissible to prove that it was not duly proved or acknowledged, and admitted to record, even though the registration was fraudulently procured.
In this respect, and to this extent, the record of registration corresponds with that of a judgment at law, rendered inter partes in a controversy concerning the *234rights to property. The latter is conclusive evidence upon the same question, when again disputed in another action between the same parties; and no averment will be allowed that the judgment was obtained by fraud. ^ can imPeached on the ground of fraud only in a Court of Chancery. The registration of a deed, though not inter partes, is as conclusive as if it were, it being designed to affect all persons notwithstanding. It is a proceeding in rem, and though some proceedings in rem may be impeached collaterally when procured by fraud, it is not so in regard to one of this nature, which operates directly, not upon persons or property, but upon evidence, which it establishes as such in all future controversies. To permit the evidence so instituted to be impeached collaterally by evidence, would frustrate the very aim and purpose of the probat proceeding, and let loose those mischiefs of uncertainty and surprise which it was the object of the Legislature to repress. The registration of a deed can be no more impeached collaterally by evidence than the probat of a will, and for the like reasons, to an adequate extent.
In this respect, the registry of a deed also corresponds with a patent from the Commonwealth, which, if lawful upon its face, cannot be controverted collaterally, though fraudulently obtained. The only remedy is by a scire facias to repeal it, or by a bill in equity.
In this respect the registry of a deed corresponds also with the record of a fine, which is conclusive until reversed, or vacated, or relieved against in equity.
If I have shewn that the registration of a deed, regular upon its face, cannot be impeached collaterally for any cause whatever, it follows that, to the extent of the purposes contemplated by the Legislature, the proceeding must be conclusive, unless it can be reversed, or vacated, or relieved against in equity.
It cannot be reversed, there being no revising or appellate jurisdiction over the subject.
*235It cannot be vacated, the authorities which were employed in the authentication and recordation of the instrument being functus officio, after the performance respectively of those duties; and there being no process known to the common law, which can be directed to such an object.
If it can be relieved against in equity, it must be upon principles of justice and good conscience, appropriate to that forum, which never interposes to correct the mere irregularities and errors of other jurisdictions. But there may be cases in which the registration of a deed would operate iniquitously and oppressively, unless the wrong can be redressed by the interposition of a Court of Equity, and in which it may be so redressed without the hazard of doing injustice to innocent persons.
It is not, however, the province of equity to re-examine that which has already been determined or established by another jurisdiction. The registry of a deed, when regular upon its face, ascertains in the first place, that it has been duly acknowledged or proved; and in the next place, that it has been duly admitted to record. Upon what principle is it that a Court of Equity can undertake to decide that the record evidence of these facts is not true ? It surely can have no general jurisdiction over the subject, for the purpose of contradicting by evidence, that which has already been established by evidence. And whenever it undertakes to interpose in such a case, it must be upon some equitable consideration forming an exception to the general rule.
In the case before us, the appellee, who is a creditor by judgment, has filed his bill impeaching the registration of the deeds of trust under which the appellants claim, which deeds appear from the registry to have been acknowledged before the clerk in his office, and by him admitted to record, a few days before the commencement of the term at which the appellee’s judgment against the grantor was recovered. The fact and *236the time of the acknowledgment of the deeds are not controverted, and the sole ground of objection stated in the bill, is, that the acknowledgment was not taken by clerk in his office; and the parol evidence, if admiss^^e> seives to shew, that the acknowledgment was received by the clerk in an attorney’s office, in the same village, where the deeds were prepared and executed, and the clerk’s certificate endorsed, and immediately taken by him to the clerk’s office, and there deposited.
The essential parts of the transaction, it will be seen, were the acknowledgment of the deeds before the proper officer, and their admission to record; which furnished all the security the law could have contemplated for the authentication of the instruments, and the giving notice to the public of their existence. The conduct of the clerk in taking the acknowledgment beyond the walls of his office, was a mere irregularity, which occasioned no prejudice to any one. There might be force in the objection, if it appeared on the face of the proceeding, or if it could be shewn by evidence to some supervising tribunal charged by law with the duty of giving its sanction to. the registration. It would even then be strictissimi juris. But the proceeding is the final act of an exclusive jurisdiction, regular upon its face, and manifested by that record evidence which the law has appointed for the very purpose. How can it be impeached directly, for the cause alleged in the bill, any more than it could be collaterally in a Court of Law ? What ground does the case present for the exercise of equitable jurisdiction ? If there was a want of authority in the officer to take the acknowledgment out of his office, how can that give jurisdiction to a Court of Equity over the subject ? It is unquestionable that the clerk had authority to receive the acknowledgment in his office. He has certified that he did so : and it is no branch of equitable jurisdiction to impeach by evidence the authority of other jurisdictions.
*237If upon parol evidence of this irregularity in the clerk, we were to hold the registration of these deeds fatally defective, the consequence, I apprehend, would be to shake many land titles within this Commonwealth. And we should have some questions of rather a singular nature for the cognizance of a Court of Equity; as, for example, whether the acknowledgment or proof of the instrument would be bad, if taken at, instead of within the door of the clerk’s office, or at the enclosure of the curtilage, or, as has doubtless occurred innumerable times, at the clerk’s table in the courthouse during the session of some Court, instead of the clerk’s office in the same, or an adjoining, or neighbouring building.
The authority of two justices to take the privy examination of a feme covert is a joint one, and if they exercise it separately, their conduct is quite as irregular, and as much beyond their jurisdiction, as that of a clerk in taking the acknowledgment of a deed out of his office. But in Ridgeley v. Howard, 3 Harr. & M’Hen. 321, on questions submitted by the Chancellor of Maryland to the Judges of the General Court, they held, 1st. That if it could appear from the evidence, that the justices acted separately in taking the examination of the feme, the proceeding would be void; but 2dly. That parol evidence of the fact was inadmissible in opposition to their official certificate.
In Bissett v. Bissett, 1 Harr. & M’Hen. 211, a bill was filed by a feme for a reconveyance, because the consideration of her deed, made while covert, was fictitious, and her acknowledgment extorted by duress, beating and ill usage; but the evidence was held inadmissible against the certificate of her privy examination, and the bill dismissed.
In Harkins v. Forsythe, &c. 11 Leigh 294, a bill having been brought to foreclose a mortgage executed by husband and wife, the latter, who survived her husband, by her answer, impeached and contradicted the *238certificate by the justices of her privy examination, on the ground that the deed was not read to her, nor in any manner explained to her by the justices, which was proved by the evidence. But the certificate was held to ke conclusive, and the evidence inadmissible. There was, however, no ingredient of fraud in that case.
It must be conceded, that, where a party obtains a fraudulent advantage to the prejudice of the subsisting rights of another, though by the proceedings of an exclusive jurisdiction, if relief cannot be there had, it isa proper case for relief in a Court of Equity. A Court of Equity, therefore, relieves against a judgment at law fraudulently obtained, though rendered inter partes. Relief may also be had in equity against a fine, where any fraud or undue practice appears to have been used in obtaining it. 5 Cruise Dig. 299, tit. Fine.
It is this principle of fraud, upon which the decision of this Court in Horsely, &c. v. Garth, &c. 2 Gratt. 471, so much relied on by the counsel for the appellee, is founded. In that case, the deed, acknowledged before justices, was not delivered to the clerk for recordation,by the agent of the grantees, until after the lien of the judgment creditor had attached, by relation to the first day of the term; and yet the clerk, knowingly and wilfully, for the purpose of giving the registration the same effect as if made in due time ; contrary to law and the truth of the case, did certify that the deed was delivered to him and admitted to record at an earlier day, and so surreptitiously divested the priority of the judgment creditor. A principal must be taken to know what was known to his agent; 1 Hov. on Frauds 184; and therefore the attitude of the grantees in relation to the proceeding, was the same as if they had delivered the deed to the clerk with their own hands. Under such circumstances, a Court of Equity will not stop to enquire into the motives with which the act was done, when the effect of it was to make the registration ope*239rate fraudulently in regard to the subsisting rights of the creditor entitled to priority. The grantees could not conscientiously avail themselves of an undue advantage so obtained, and redress could only be had by the interposition of a Court of Equity.
While, therefore, a Court of Equity, as well as a Court of Law, ought to uphold with a steady hand the conclusiveness of probat jurisdictions, it will not surrender any of its legitimate powers, the exercise of which may be necessary to prevent gross iniquity. It will not intermeddle, upon the mere weight and force of evidence, with the facts established by the registry of a deed, but at the same time it will not suffer subsisting rights to be defeated by false and surreptitious practices.
Indeed, I am not prepared to say that there may not be cases of mistake in the registration of deeds, in which a Court of Equity would not refuse to grant relief, where it could not otherwise be had. Let us suppose the case of two mortgages to different grantees, delivered by them respectively for recordation about the same time, and that the clerk, by a mere blunder, unquestionably established, should endorse upon one of them his certificate designed for the other, and thus unwittingly give priority to the one last delivered. The general rule, it is true, is, that the certificate cannot be contradicted: but it is equally true that no evidence is admissible to contradict the terms of a deed; and yet upon plain evidence of a mistake in reducing the contract to writing, a Court of Equity will give relief.
However this may be, the decision in Horsely, &c. v. Garth, &c. rests upon the ground of fraud, and has no application to the present case, in which there was no fraud, but a mere irregularity, overreaching no subsisting lien, and doing no injustice. It is not within the province of a Court of Equity to interpose, because' of such irregularities, any more than to take cognizance of technical errors in a fine, or irregularity in the commis*240sioner who took the acknowledgment of it. 5 Cruise Dig. 300, tit. Fine.
This view of the subject, it seems to me, places the registration of deeds on the proper footing. The proceedinS a mere nullity, if imperfect upon its face. If regular upon its face, it cannot be impeached collaterally by any evidence whatever. Nor can it be so impeached directly for any cause, except in a Court of Equity, and there only upon some ground of equitable jurisdiction, which reaches the conscience of the party claiming under it, and deprives him of an undue and unconscionable advantage. Without these restrictions, I think it would be mischievous to draw into question the conclusiveness of this probat proceeding; and with them redress may be safely afforded in cases of peculiar hardship and injustice, except against those entitled to protection as innocent purchasers.
I think so much of the decree of the Circuit Court as gives priority to the appellee, instead of the appellants, ought to be reversed.
The other Judges concurred in the decree, which was as follows:
The Court is of opinion, that the Circuit Court erred in holding that the deeds of trust in the proceedings mentioned, were not duly admitted to record on the 6th day of June 1846, and consequently in giving priority over those deeds to the appellee’s subsequent judgment: It is therefore decreed and ordered, that the said decree be reversed and annulled, with costs to the appellants. And the cause is remanded to the Circuit Court, to be there proceeded in according to the principles of this decree. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481382/ | Baldwin, J.
delivered the opinion of the Court.
Our road law provides, “ that when a bridge or causeway shall be necessary, and the surveyor with his assistants cannot make or maintain the same, the Court of the county are empowered and required to contract for the building and repairing such bridge or causeway, and to levy the charge thereof in their county or road levy. But no order for the erection of any bridge or bridges shall be made by the Court of any county, unless a majority of the acting justices of such county shall be present at the making of such order, or unless the Court of *256such county shall have signified their intention of ma-such order, at least one month previous to making the same, and shall have caused a statement thereof to entere(j 0f recor¿; with directions to the sheriff of county t0 summon the justices of said county to attend at the next term for the purpose aforesaid.”
The effect of this enactment is to prevent a county from being chargeable with the maintenance of such a bridge as it contemplates, without a previous order for its establishment, made in the mode therein prescribed. If the conditions required be observed, then the bridge will be established by the order for its erection: and so if it has been previously erected by an individual for the public benefit, or for his own purposes, and then dedicated by him to the public use, an order for its adoption, the above mentioned prerequisites being observed, will establish it as a public bridge ; and thenceforth it will fall within the authority and duty of the Court to provide for its reparation and maintenance, at any terms held under the general law, without the necessity of following these special provisions. But there is no obligation upon the Court to repair and maintain a bridge erected by individual enterprise, with whatever view to public advantage, or though dedicated by him to the public use, and actually used by the public, unless it has been adopted by the Court in the mode above specified. There can be no such permanent burthen thrown upon the county, by any supposed agreement or understanding between the individual and the public, unless through the agency of the Court; and that can only be exercised in the mode specially prescribed by the statute.
If an individual without authority, for his own purposes, or even for the public advantage, constructs a bridge in a public road, it is incumbent on him to keep it in such a condition as not to impede the free and convenient use of the highway; and if he suffers it to be*257come ruinous, so as to operate as an obstruction, he becomes guilty of a nuisance, for which the law gives the proper remedies: but neither he nor any one else can compel the county to incur the charge of repairing and maintaining the bridge.
In the present case, a rule was obtained in the Circuit Court, in September 1843, on the appellant’s motion, against the justices of the County Court of Goochland, to shew cause why a mandamus should not be awarded, commanding them to repair and keep in repair the bridge across Stony creek in said county, on the main stage road leading from Richmond to Goochland courthouse.
The object of the proceeding, it will be seen, was not to compel the justices, in the exercise of a just police, to erect a new bridge ; but to repair and maintain one already in existence. It was, therefore, incumbent on the appellant to shew, that the bridge had theretofore been erected or established by lawful authority. This he has attempted, but wholly failed to do.
The order of the County Court of November 1836, by which it was directed that the appellant and others, or any two of them, “ do let and receive the necessary repairs or rebuilding the bridge across Stony creek,” was not an order for the erection of a new bridge, or the permanent establishment of an old one, but for the thorough repair, by rebuilding, if requisite, of a bridge then existing, but in a dilapidated or ruinous condition. It is unnecessary to enquire what would have been the effect of this order, if the justices of the county had been summoned to take the subject into consideration ; or if, when acted upon, a majority of the justices had been present. If either of these conditions had occurred, it could be shewn by record evidence, and none has been produced. The order, therefore, must be taken to have been made at a term of the Court orga*258nized merely for the transaction of ordinary business, aud with a sufficient number of justices for that purpose only. The effect of such an order could not be, eveQ g0 (qesigae(3j t0 establish a permanent charge upon the county for the perpetual maintenance of the bridge. It could authorize, at most, only the expenditure of money out of the county levy for the then occasion of a partial repair, or a thorough repair by rebuilding, of an existing bridge, (unestablished by lawful authority,) and in temporary aid or relief of the individual enterprise by which it had been constructed. Nor could a greater effect be given to the order by the return and admission to record, at a subsequent term, of the commissioners’ report of their proceedings under the order; nor by the allowance at such term to the undertaker, out of the county levy, of the compensation for his work; especially in the absence of record evidence, that the subject of establishing the bridge was then taken up and considered^ by a majority of the justices of the county.
It was indispensable, therefore, to make out the appellant’s case, that he should go behind the order of 1836, and shew by record evidence that the bridge in question had been previously established, in the mode prescribed by law; or prove such lapse of time and other circumstances, since its original erection, as to warrant the presumption of the loss or destruction of such record evidence. No effort of the kind has been made; and the appellant’s case rests mainly upon the order of 1836, and the subsequent proceedings above noticed.
The appellees on their part examined witnesses, who were citizens and “ tithe-payers” of the county, and proved by them, amongst other facts, that the bridge was originally erected by the appellant, a number of years prior to the order of 1S36, and kept up by him until that period.
*259We need not consider whether the parol evidence in the case was admissible, or the witnesses for the appellees competent; inasmuch as that evidence was unnecessary for the appellees, and can avail the appellant nothing.
It seems to the Court, that there is no error in the order of the Circuit Court, discharging the rule which had been granted to the appellant: It is therefore considered that the same be affirmed, with costs. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481383/ | Allen, J.
delivered the opinion of the Court.
This Court is of opinion, that as by the interlocutory decree of the 26th May 1838, the commissioner was directed to take an account of the balances due the plaintiffs and the defendant Lucy Jennings, on account of the annual provision of 400 pounds of pork and ten barrels of corn, crediting the said plaintiffs and defendant with the annual value of said pork and corn, and charging them with any payments they have received on account of such annual provision ; and as said interlocutory decree was on the 25th January 1842, in consequence of an equal division of opinion in this Court, in pursuance of the act of Assembly, duly affirmed ; such affirmance must be regarded as a decision upon the pleadings and proofs in the cause, that the principles upon which such account had been ordered to be taken in and by said interlocutory decree, had been correctly settled. The Court is further of opinion, that said decree so affirmed under the issue presented by the pleadings in the cause, ascertained and determined that the provision of pork and corn made in the will of William Pickett, sr. did not terminate with the life either of Mrs. Pickett or Mrs. Helm, and that the whole thereof survived to the daughters of Agga Helm during their lives and the life of the survivor.
But the Court is further of opinion, without intending to decide whether as a general rule interest can properly be allowed upon the arrears of an annuity, that under the circumstances of this case, where the annuity was to be paid in pork and corn, delivered at a particular place, the value of which was to be ascertained by testimony, and in the absence of any satisfactory proof of a demand at the place where it was to be paid, or of an agreement to dispense with such demand and convert the same into money, no interest should have been allowed on the arrears thereof; and that said Circuit Court erred in overruling the exception taken to the re*265port of the commissioner for allowing such interest. The Court is further of opinion, that there is no error in the residue of said decree. It is therefore adjudged, ordered and decreed, that the same, so far as it is herein declared to be erroneous, be reversed with costs; and 1 1 that the same be in all other respects affirmed. And that the cause be remanded in order that the same may be proceeded in according to the principles herein declared, and for a final decree. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481384/ | Baldwin, J.
delivered the opinion of the Court.
The authority of the County Courts to establish public roads, is a branch of their police jurisdiction, conferred for the benefit of all the citizens of the county, and to be exercised at the common expense, out of the revenue derived from the county levy. The use, convenience *269and advantage of the public, contemplated by the law, , . . . - , r , . are benefits arising out of the aggregate of such improvements, to which each particular road so established contributes in a greater or less degree. But no limitation upon the power of the Court, in regard to any proposed road, is to be found in the degree of accommodation which it may extend to the public at large. That is a matter which addresses itself not to the authority, but the discretion of the Court. It cannot be predicated of any particular road that it will be of direct utility to all the citizens of the county. It may accommodate in travel and transportation but a small neighbourhood, or only a few individuals. Still, when established, it may be used at pleasure by all the citizens of the county or country; and the public is interested in the accommodation of all the members of the community.
The true limit to the authority of the Court is in the purposes for which the road is to be employed. Any person or persons may apply to the Court to have a new road opened, or a former one altered, within the county, for the purpose of travelling to the county courthouse, or to any public warehouse, landing, ferry, mill, coal mines, lead or iron works, or to the seat of government. A terminus of the proposed road must therefore be at some place of the description above mentioned, or in an already established road leading thereto; but the other terminus may be at any place, whether public or private, of any description. And if the road be established, it may thereafter, by the authority of the Court, be extended from time to time, either continuously or from lateral points, so as to embrace in the accommodation an additional number of persons, or even a single individual.
No individual, it is true, has the privilege to demand as a matter of peremptory right, the establishment of a road, however important it may be to him as a matter of convenience, or even of necessity: but this is equally *270true of any number of individuals. Subject to the restriction above designated (and others not pertinent to this enquiry), the whole subject of opening, extending and altering roads lies within the sound discretion of the Court, whose duty it is to look to all the circumstances, whether of a general or limited nature, belonging to any particular case. It is proper for the Court to consider the necessities of the applicant or applicants in regard to such an accommodation, the extent to which it may be productive of convenience or inconvenience to other individuals, the direct or indirect advantages or disadvantages that may ensue to the public at large, the resources of the county properly applicable to such improvements, and the amount of the requisite expenditure. And if, under all the circumstances, it be just and reasonable that the road be established, it is not a proper ground for reversing the order to that effect, that only a single citizen and his family will be thereby accommodated. It redounds, in some degree, to the interest of the public that all the citizens who compose it should be so accommodated; and there is no principle upon which the wants and necessities of one individual must be imperatively rejected, which would not be applicable to two or three, or a dozen, or any given number short of the whole or the greater part of the community.
In the present case, there is nothing to indicate that the County Court, in establishing the road in question, transcended its authority, or exercised its discretion improperly. It appears that the road is requisite to enable the applicant to travel to the courthouse of his county, and other public places contemplated by the law; that it will occasion no inconvenience to the appellant, for which he will not be compensated by the damages assessed in his favour; that none will be sustained by other individuals, or the rest of the community; and that the expense to be incurred by the county is of but trivial amount.
*271We deem it unnecessary and improper to enquire, whether the applicant was entitled to a private way of necessity through the land of the appellant, and if he was, what effect such right ought to have upon the merits of the case. No such right appears to have been conceded, nor any accommodation of that nature proffered, by the appellant to the appellee; and it would seem that no such ground of defence was assumed in the Courts below.
As to the supposed imperfections in the report of the viewers, they need not be noticed, except for the purpose of saying that the objection ought to have been made in the County Court, by a motion to set aside the report.
There is no error to the prejudice of the appellant in the authority given to the appellee to open the road as established. If properly opened, it is immaterial to the appellant whether it be done by the appellee or the surveyor ; and if improperly done, whether by the one or the other, he will be entitled to the same redress.
It seems, therefore, to the Court, that there is no error in the judgment of the Circuit Court affirming that of the County Court.
Brooke, J. concurred in affirming the judgment.
Affirmed with costs. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481385/ | Baldwin, J.
delivered the opinion of the Court.
A judgment or decree when reversed is a mere nullity, and the party aggrieved has a right to be restored to what he has lost by reason of such erroneous decision. He is consequently entitled to such appropriate remedies as the law gives to one whose money or property is withheld by another, against his better right. But the Court whose judgment or decree is reversed and annulled, having by its own act occasioned the wrong, possesses an inherent and summary jurisdic*281tion to afford the redress, without reference to the pecu- ,. liar nature of the controversy which it had erroneously determined. This is unquestionably true, and such is the settled practice where the same Court abrogates its own erroneous decision; as in the case of a judgment reversed upon a writ of error coram vobis, or an interlocutory decree reversed upon a rehearing, or a final decree upon a bill of review. The principle is the same where the reversal, instead of being the act of the same Court, is performed for it by an appellate forum; and in truth the judgment or decree of the latter is remitted to, entered upon the record of, and becomes both in form and effect the judgment or decree of, the former Court.
The power of a Court to repair the injury occasioned by its own wrongful adjudication, is not derived from a mandate of the appellate forum, made upon rendering the judgment or decree of reversal, but is substantially the same which it exercises when its own process has been abused, or used without authority, by its suitors or ministerial officers; as for example, where a writ of habere facias possessionem has been sued out improperly, and the defendant therein turned out of possession, the Court may award a writ of restitution. And so it may where its process has been misapplied by its own authority erroneously exercised, as is made manifest by a reversal of the judgment or decree on which it issued, whether accomplished by its own jurisdiction, or that of a higher appellate tribunal.
The mandate of the Appellate Court for restitution is, properly speaking, no part of the judgment or decree of reversal, but rather supplemental thereto. It declares the legal consequence of the reversal, but it gives no specific relief, and awards no process from the Appellate Court. It is not pronounced as part of the judgment or decree which the Court below ought to have rendered; for a correct decision by that Court *282would have prevented, instead of occasioning, the loss that calls for restitution. When a judgment or decree for the defendant is reversed, then the Appellate Court, procee(jjng t0 ren(jer such judgment or decree as the ^'ourt below ought to have rendered, gives to the plaintiff the relief to which he was entitled; but when a judgment or decree for the plaintiff is reversed, then the Appellate Court, in proceeding to render such judgment or decree as the Court below ought to have rendered, dismisses, in appropriate language, the plaintiff’s action or suit. In the latter case, there is no adjudication in the Appellate Court of the question of restitution, but the mandate for it follows as a declaration or designation of the legal effect of the adjudicated reversal and dismissal.
In truth, the question of restitution is not presented to the Appellate Court for adjudication by the record from the Court below, where it does not and cannot arise until after a reversal of the judgment or decree. The record therefore is not prepared with a view to a decision of that question in either Court; and the occurrence of such a question does not appear from the record, unless it be casually or incidentally,' for the merits of the controversy determined by the erroneous judgment or decree, can in no wise depend upon the process resorted to for the purpose of compelling its performance.
That the mandate for restitution is merely declaratory or directory, is obvious from the consideration, that it is never refused upon a reversal on the merits, unless for the want of sufficient evidence to shew that the erroneous judgment or decree has been actually enforced; and then the refusal is never entered on the record, but the whole matter silently referred to the cognizance of the Court below.
In the English practice, as indicated by the formal entries, the mandate for restitution is appended, as a *283matter of course, to the reversal of a judgment at law for the plaintiff, and expresses that the defendant “ be restored to all things which he hath lost by occasion of the said judgment;” without specifying the thing itself, or the time when, or by what mode of proceeding it is to be restored. And the process of restitution does not issue as a matter of course, but must be applied for in the Court to which the cause is remanded, or in which it is retained ; is awarded by such Court; and is adapted to the evidence of the loss. For example, if the erroneous judgment was for money, and “ the plaintiff has had execution, and the money has been levied and paid, and the judgment is afterwards reversed there, because it appears on the record that the money is paid, the party shall have a writ of restitution without a scire facias; for there is a certainty of what is lost: otherwise where it was levied, but not paid ; for there must then be a scire facias, suggesting the matter of fact, to wit, the sum levied,” &c.
With us, however, the formal mandate for restitution, (which is in substance and effect that of the law itself,) is seldom appended to the reversal, and never without the application of the party aggrieved: and then it may be in general terms, or more or less special, according to the evidence of the loss which the record may happen to contain; but is usually conditional upon its appearing to the Court below, that the erroneous judgment or decree has been enforced. And, indeed, the essential nature of the mandate subjects it to such a condition, whatever may be its terms; for it cannot be conceived as the duty of the Court below to yield restitution where there has been no loss, or where it has been already made; or that the Appellate Court, without the direct and certain means of information possessed by the Inferior Court, has undertaken collaterally, incidentally and without enquiry, upon merely casual evidence, to determine conclusively the question of loss.
*284Our accustomed omission of a mandate for restitution cannot, therefore, where there has been a reversal upon the merits, be treated as resulting in the monstrous perversion of justice, that there shall be no restoration to what has been lost by occasion of the erroneous judgment or decree; nor in ousting the Court below of its inherent and salutary jurisdiction of correcting the misapplication of its own process, and so driving the party aggrieved to a new and perhaps unproductive action, it may be in another and distant forum.
Where the restitution is sought at law, resort must of course be had to the formal legal process already mentioned; but where it is sought in equity, such formalities need not be adopted further than may be deemed expedient; and redress may be awarded by a decretal order, founded upon a rule to shew cause, or upon motion after notice to the adverse party.
In the present case, the evidence is sufficient to indicate that the appellant was entitled to redress, at least to some extent, and to what extent was a proper subject for enquiry before a commissioner.
The Court is therefore of opinion, that the decretal order of the Chancellor overruling the appellant’s motion for restitution, is erroneous: And it is decreed and ordered that the same be reversed and annulled with costs. And that the cause be remanded to the Chancery Court, to be there proceeded in according to the principles above declared. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481387/ | p)AN1EL¡
it is a well established doctrine of the ]aw 0f nations, that the entire discharge of a contract by the laws of a country in which the contract was not made or to be performed, will not be a discharge in any other country. Story’s Conflict of Laws 283.
How far this doctrine is to be recognized by the Courts of any State of this Union, or by the Courts of the United States, in passing upon the legal effect of such a discharge, obtained in any State other than that in which the contract was made or to be performed, whether it is competent for the several States to pass bankrupt or insolvent laws, by which to discharge debtors from the obligation of their contracts ; and if so, upon what contracts and persons such laws are to operate, are questions which have given rise to much discussion, and led to many decisions in the Supreme Court of the United States, and also in the State Courts of several of our sister States. The case of Ogden v. Saunders, 12 Wheat. R. 213, though preceded by some cases in which a contrary doctrine was maintained, is now, I believe, generally relied on, as having settled in the affirmative, the question as to the constitutionality of such laws, so far as they may provide for a discharge of the obligation of debts and contracts made and entered into subsequent to their enactment. As to the extent to which discharges obtained in pursuance of such laws, are to be allowed to operate — Judge Story in his work on the Constitution, 3d vol. 256, briefly sets forth the result of the decision in Ogden v. Saunders, and other decisions of the Supreme Court not in conflict with it, as being; (1.) That they apply to all contracts made within the State, between citizens of the State. (2.) That they do not apply to contracts made within the State, between a citizen of the State *323and a citizen of another State. (3.) That they do not apply to contracts not made within the State.
It is admitted by the appellant that the debt forming the origin of this suit was contracted, and the bond by which it is evidenced, was executed in Virginia, at a time when all of the contracting parties were residents of the State ; and it is no where alleged that the parties had any other State in contemplation as the place for the performance of the contract, the payment of the debt. The surviving obligor in the bond having moved out of the State of Virginia into the State of Maryland, leaving the debt wholly unpaid, his creditor brought suit against him in a County Court of the last mentioned State, and obtained judgment. The debtor is still a resident of Mamyland; and the present suit is an attachment in chancery — seeking to subject to the payment of the debt certain debts alleged to be due by the home defendants to the absent debtor.
It is admitted that the debt is still unpaid; and the only defence relied on by the absent debtor, is an order of the County Court of Alleghany in Maryland, for his discharge as an insolvent debtor. The order seems to have been regularly obtained upon proceedings had in pursuance of certain acts of Assembly of that State for the relief of insolvent debtors. The fifth section of the act of 1805 authorizes the Court to order an insolvent debtor, who has taken certain steps prescribed in the preceding sections of the act, to be discharged from all debts, covenants, contracts, promises and agreements due from, or owing, or contracted by him before the passage of the act, or at the time of his application, “ provided that any property which he shall hereafter acquire by gift, descent, or in his own right by bequest, devise, or in any course of distribution, shall be liable to the payment of said debts.” The funds in the hands of the garnishees were not acquired in any of the modes mentioned in the proviso : whether they are liable, there*324fore, to the process of attachment, depends on the va1 lidity of the discharge. The Court below has refused to recognize the yalidity of the discharge; and in so , . , * „ ,, . , , , . doing, would seem to be fully sustained by the authori£jes above cited; in illustration of which it may be well to refer to some further decisions of the Supreme Court, which, in their main features, are similar to the case before us.
In the case of Boyle v. Zacharie and Turner, 6 Peters’ R. 635, the legal effect of a discharge under the same laws of Maryland, by virtue of which the appellant procured the order for his discharge, was the subject of decision.
In that case the debt was contracted in Louisiana, with a citizen of that State, by a citizen of Maryland. Upon a suit brought in the Circuit Court of the United States for the State of Maryland, judgment was confessed by the debtor, “ subject to the legal operation of the defendant’s discharge under the insolvent laws of Maryland.” An execution having been sued out and levied on property of the debtor which had not been acquired in any of the modes that would, under the proviso in the insolvent laws relating to future acquisitions of property, make it liable to the execution, an injunction was obtained to stay proceedings on the execution. On an appeal from an order of the Circuit Court dissolving the injunction, the Supreme Court decided that the discharge was inoperative; and Judge Story, in delivering the opinion of the Court, stated that “ the ultimate opinion delivered by Mr. Justice Johnson, in the case of Ogden v. Saunders, was concurred in and adopted by the three Judges who were in the minority upon the general question of the constitutionality of State insolvent laws, so largely discussed in that case;” “that so far as decisions upon the subject of State insolvent laws had been made by the Court, they were to be deemed final and conclusive ;” and that the memo-*325random of agreement accompanying the judgment, that it should be subject to the legal operation of the insolvent laws of Maryland, ought not to be deemed an acquiescence on the part of Zacharie and Turner in the validity of the discharge; that it neither admitted its validity, nor waived any rights of Zacharie and Turner, if the laws under which it was obtained were unconstitutional.
In the case of Cook v. Moffat & als., 5 How. R. 295, decided by the Supreme Court at its January term 1847, the decision turned upon the validity of a discharge obtained under the same laws of Maryland. In that case the creditor was a citizen of New York, where the debt was contracted, and the debtor a resident of Maryland. Whilst there was much conflict of opinion among the Judges as to the reasoning upon which the decision ought to rest, there was no difference of opinion as to the result. They were unanimous in deciding that the discharge was of no avail as a defence to the suit brought in the Circuit Court for the district of Maryland. The decision in Boyle v. Zacharie and Turner was approved; and by a majority of the Court the further doctrine was maintained that such a discharge could not be pleaded even in the forums of the State which enacted the law under which it was obtained.
Unless then there be peculiar circumstances attending the case of the appellant, imparting to his discharge special efficacy, and taking it from without the influence of these authorities, his appeal here must fail. Indeed, I understand it to be conceded by the counsel for the appellant, that such must be the result, unless the part taken by the appellee in the proceedings in Maryland, is to make this case an exception to the general rule. It is argued that Gibson, by instituting suit upon his bond, and obtaining judgment thereon, by praying his debtor in custody on the surrender by his bail, by filing, under the statute, allegations impeaching *326the fairness of the schedule given in by M'Carty, and regularly contesting his discharge, submitted himself voluntarily to the laws of Maryland, and is now precju(je(j from questioning, in any forum, the discharge obtained in pursuance of those laws. The authority mainly relied on in support of this argument, is the case of Clay v. Smith, decided by the Supreme Court of the United Stales, and reported in 3 Peters’ R. 411. In that case it appears that Smith, a citizen of Kentucky, instituted an action of debt in Louisiana, against Clay, a citizen of the last mentioned State, who pleaded his discharge by the bankrupt law of Louisiana. The plea sets out his petition, his surrender of his effects, the schedule of his debts, in which Smith's debt is specified, as also the payment to him of ten per cent., the dividend declared by the assignees of the bankrupt; and the judgment of the Court rendered in pursuance of the consent of more than a majority of his creditors in number and amount. The language of the plea is “upon which said petition, the usual proceedings being had thereon, the said plaintiff and other creditors being parties thereto, the said Supreme Court, by their final decree, pronounced in the premises on the 15th June 1811, declared the said defendant, as well his person as his subsequently acquired property and effects, forever released from all claims, debts and demands, &c. previously due.” I have used in stating the case the language employed by the Judge who pronounced the opinion of the Court, as without particular attention to the statement, there might be some difficulty in apprehending the meaning of the brief opinion by which it is followed. The opinion proceeds: “ This plea is demurred to, and thus the question is raised, whether Smith, by voluntarily making himself party to such proceedings, has not abandoned his extra-territorial immunity from the operation of the bankrupt laws of Louisiana. We are of the opinion that he did ; and *327was bound by the decision of the State Court to the .... . . „ . „ same extent to which the citizens ot that State were bound.” The true meaning of the decision of the Court is, I think, that Smith, by being party to the steps taken in Court, and by receiving his distributive share of his debtor's estate, had waived the objections which he might otherwise have urged, against the validity of the discharge as to him. Such too is, I think, the view of Judge Story, as to the purport of that decision. In the 3d vol. of his work on the constitution he says: “ If a creditor voluntarily makes himself a party to the proceedings under an insolvent law of a State which discharges the contract, and accepts a dividend declared under such law, he will be bound by his own act; and be deemed to have abandoned his extra-territorial immunity;” and he cites Clay v. Smith as his authority for the proposition. The decision in question, is viewed in the same light by the Supreme Court of New York. In the case of Van Hook v. Whitlock, 26 Wend. R. 54, Chief Justice Nelson, in delivering the opinion of the Court, having occasion to comment on the case of Clay v. Smith, says, “ The facts are so imperfectly stated in the report of the case, that no principle can be deduced from the decision, except we may presume that without the assent of the creditor to the proceedings, by coming in and accepting a dividend, the discharge would have been invalid.”
Thus regarding the decision in Clay v. Smith, I do not think it can be relied on as authority to sustain the validity of the discharge in this case, when pleaded in a Virginia forum, as a bar to a suit founded upon a contract originating in this State, between parties, who at the date of the contract, were citizens. Gibson has done nothing from which it can be inferred that he assented to the discharge of his debtor under the laws of Maryland. So far as by his own acts he became a party to the proceedings, he took part in opposition to, and not as assenting to or ratifying the discharge.
*328The question which he submitted for the decision of the Court, and which he contested on the trial of his allegations, with his debtor, was, whether the latter had not been guilty of fraud in concealing his property; and ha(j (.jjjjg deprived himself wholly of the benefit of the act. Can it be truly said, that by thus becoming a party to the proceedings for one purpose, he thereby became a party for all purposes connected with the discharge of his debt; and conferred upon the Court a power which it would not otherwise have had, to bind him by its judgment. I think not. The defect of power in the Court to order a discharge of the debt that would be valid in another forum, arises not only out of a want of jurisdiction over the person, but also out of a want of jurisdiction over the subject matter. The person of the creditor and the contract were both subject to the laws of another forum. If the voluntary appearance of the creditor to contest the discharge, on the ground that the debtor had rendered an unfair schedule, could have the effect of removing the first objection to the jurisdiction of the Court, this is, certainly, all that could be claimed for it. It could not have the effect to impart jurisdiction to the Court over the subject matter. It has been decided that when there is a want of jurisdiction over the subject matter, a judgment of the Court upon it, though regularly obtained upon such proceedings as would be proper in a case clearly within the jurisdiction of the Court, cannot be used as an estoppel, even against the party who instituted the proceedings. It is still in the power of such party to object the want of jurisdiction ; and treat the judgment as a nullity. In the case of Blin v. Campbell, 14 John. R. 432, the plaintiff had brought an action of assault in a Justice’s Court, in which a trial was had and a judgment rendered against him. He afterwards brought an action on the case for the same injury in another Court, and was met by a plea of the former trial and *329judgment. The Supreme Court of New York held, that inasmuch as the justice had no jurisdiction over actions of assault and battery, the former judgment was null, and could not be pleaded in bar of the second suit. Other cases in the same Court have gone to the extent, that where a Court is expressly inhibited by law from taking jurisdiction of a subject, no consent of parties could confer jurisdiction ; and that a confession of judgment even would be a mere nullity. Thus in the case of Coffin v. Tracy, 3 Caines’ R. 129, a confession of judgment by an executor in a Justice’s Court, was held wholly invalid ; there being a statute of New York forbidding justices to hold pleas in cases where executors or administrators are parties on either side.
The same principle was recognized in the case of Striker v. Mott, 6 Wend. R. 465. And in this Court, in the cases of M'Call v. Peachy, 1 Call 55, and Clarke v. Conn, 1 Munf. 160, the general principle was asserted, that when the Court had not jurisdiction of the subject matter, the consent of parties cannot give it.
In this aspect of the case, it does not seem to. be material whether the want of jurisdiction in the County Court of Maryland to make an order for the discharge of a debtor, reaching to contracts made in other States, and between citizens of such other States, be placed on the ground assumed in the third resolution of the Supreme Court, in the case of Ogden v. Saunders, to wit, that “ the exercise of such a power is incompatible with the rights of other States, and with the constitution of the United Statesor on the general doctrine of international law, that the discharge of a contract by the laws of a country in which the contract was not made or to be performed, will not be a discharge in any other country. Upon the first hypothesis there would be an inhibition to the jurisdiction of the Court, which the mere appearance of the party to oppose the discharge could not remove ; and upon the second, a mere want of *330power in the Court over the subject matter, which such appearance could not confer. In this view I am further sustained by the decision of the Supreme Court of Connecticut, in the case of Norton v. Cook, 9 Conn. R. 314. In that case the discharge was obtained in New York, in pursuance of an act of the Legislature of that State, and purported to discharge the debtor from all debts, &c. due before the assignment of his property under the act. The contract was made in New York, and the discharge obtained at a time when the creditor was a citizen of Connecticut, and the debtor a citizen of New York. In a suit brought in Connecticut on the contract, the discharge was regularly pleaded; and it was averred in the plea that upon a citation to appear before the Judge before whom the insolvent’s petition was pending, and shew cause why the insolvent should not be discharged, the defendant and plaintiff had both appeared before said Judge, and were fully heard on said petition. From a judgment of the Court, deciding the plea to be insufficient, there was an appeal, and the judgment of the Court below affirmed. The Supreme Court of Connecticut, after first deciding that the discharge was, under the authority of the cases decided by the Supreme Court of the United Slates, invalid, proceeded to consider whether the creditor had done any act which precluded him from insisting on its invalidity. “It is averred in the plea, (said the Judge delivering the opinion of the Court,) that the plaintiff was cited to appear, and did appear by attorney, before the Judge, and was fully heard on the debtor’s petition then pending. And it is contended that by this act he has waived his extra-territorial immunity, and submitted himself to the laws of the State of New York. The case of Clay v. Smith has been relied on as sustaining this position. In that case the only point decided was, that the defendant having obtained his certificate of discharge under a State law, and the plaintiff having come in and received his dividend under the law, was no longer at li*331berty to question its constitutionality.” “ It is very manifest that this case is not like the present, in point of fact; and I think there is a clear distinction between them in point of principle. There, the plaintiff might be considered as acquiescing in the validity of the discharge, by coming in voluntarily and accepting a dividend under it. But here no such inference can be drawn. The clear inference from the averments in the plea, is, that the plaintiff appeared to oppose the motion; and it would be difficult to conceive upon what principle he can be considered as acquiescing in the constitutionality of a law, when, for aught that is shewn, the very object of his appearing was to make it appear that the law was unconstitutional.”
I do not deem it necessary to express any opinion as to the propriety of the decision, in the foregoing case, upon the first question therein presented, but I rely upon the reasoning of the Court upon the second branch of the case, as strong in support of the view I have taken of the effect that Gibson’s appearance to contest his debtor’s discharge, ought to have upon his rights.
I have not seen any decision of the Supreme Court of the United States, or of any of the State Courts, maintaining the proposition that a discharge of an insolvent debtor, under the laws of one State would, of itself, be valid as a discharge of a contract made in another State between citizens of such other State; and there has not, in my opinion, been any thing in the conduct of the creditor to bring him within the influence of the case of Clay v. Smith, or to debar him of the privilege of insisting upon the invalidity of the discharge before a Virginia forum. I am of opinion therefore to affirm the decree.
The other Judges concurred in the opinion of Judge Daniel.
Decree affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481388/ | Daniel, J.
delivered the opinion of the Court.
This Court is of opinion that the County Court of Amelia did not commit any error in refusing, at the December session 1840, to continue the cause at the instance of the appellees. It does not deem it necessary to decide whether it would have been competent for the company, on the trial of the cause, to introduce members of the jury to prove that they had, whilst engaged in ascertaining the damages, been led into a mistake by the agent of the company, as to the height of the dam ; inasmuch as there is nothing in the record from which it appears, or can be inferred, that such mistake probably had any influence on the minds of the jury in determining the amount of damage sustained by the appellant, by the erection of the dam. The inquest was taken after the erection of the dam ; and the jury upon their own inspection, assessed the damages sustained by the appellant in consequence of injury to his lands by the overflowing of the waters of the stream. In an effort to set aside the inquest on the ground of a mistake in the jurors in a matter of fact, it would have been incumbent on the company to prove that such mistake was of a character at least, likely to have had weight with the jury in making up their verdict, and in a motion for a continuance of the cause, founded on the absence of witnesses by whom the company alleged they expected to prove the mistake, the Court had necessarily to decide, not only on the competency, but the probable materiality of the testimony. As it is not made to appear that such testimony was at all material, *340this Court cannot undertake to say that the company was in anY degree injured by the absence of their witnesses.
This Court is also of opinion, that the writ of ad qU0Cj, damnum was properly sued out at the instance of i l j the appellant. The proceedings in this case were had under an act of Assembly for the improvement of the Appomattox river, passed the 23d February 1835, and entitled “an act to authorize the Upper Appomattox Company to enlarge their capital stock, and for other purposes.” Sessions Acts 1834-5, page 82. The 8th section of the act provides, that the company, before they shall erect any dam across the said river, if they cannot agree with the proprietor or proprietors of the lands necessary for the abutments, or which may be probably damaged or affected, shall make application to the Court of the county wherein the lands are, for a writ of ad quod damnum, which Court shall, thereupon, order the writ, requiring the proper officer to summon a jury to meet upon the lands required for the abutment, or which may be probably damaged. The jury, upon a view of the lands required for the abutments, are to locate by metes and bounds, what may be necessary therefor, and to appraise the same according to its true value; to examine the lands above and below, which may be probably damaged or overflowed; to say of what damage it will be to such proprietors; to say whether the health of any person or persons will be annoyed by the stagnation of the waters, and to specify who will probably sustain such injury, and the probable damages thus arising. The inquest is to be returned to Court and entered of record; and the company on paying to those entitled, the value of the lands located for the abutments, and the damages assessed and costs of the inquest, shall become seized in fee simple of the lands used for the abutments, and authorized to erect the dams.
*341The 9th section provides, that if any proprietor shall sustain any damage from injury to lands or loss of health by reason of the erection of the dams, which has not been foreseen, estimated and satisfied, such proprietor may, upon application to the County Court, after giving ten days notice to the company, obtain a writ of ad quod damnum, in which writ the clerk, by order of the Court, is to specify the injury. The writ is to be directed, executed and returned, as before directed in the 8th section. The jury are to enquire of and assess the damages, and the proprietor suing out the writ is to have judgment against the company for his damages assessed and costs.
By the 8th section, it was the object of the Legislature to provide a cheap and summary mode, in advance of the erection of the dams, for the ascertainment and assessment of all the damages likely to flow therefrom; and by the 9th, to provide a like summary mode of ascertaining and assessing all the damages, which, after the erection of the dams, might be found to result therefrom, and which were not foreseen and estimated before. The 8th section confers upon the company the right and makes it their duty to embrace in the writ of ad quod damnum all the proprietors who may probably sustain detriment from the erection of the dams. If the company fail to embrace in the writ sued out at their instance, any of such proprietors, or if it fail to sue out any writ, in neither event have the proprietors any right to commence proceedings under the provisions of the 8th section. Prior to the erection of the dam, that right appertains exclusively to the company. The right of the proprietors to commence 'proceedings does not arise till after the erection of the dams; and is secured by the 9th section. If under a writ sued out at the instance of the company the damages of certain of the proprietors are assessed; and after the erection of the dams, such proprietors are found to sustain fur*342ther damages not foreseen and estimated in the inquest • had-under such writ, such cases would come clearly within the provisions of the 9th section. So if the company, in suing out their writ, should wholly pretersome of the proprietors whose lands would probar r L bly be injured, in such cases also, it is plain that such pretermitted proprietors would, after the erection of the dam, have a right to the writ: Nor is any good reason perceived why the remedy given by the 9th section should be confined to these two classes of cases. There is nothing in the terms of the act requiring us to give to it such a construction as would exclude from its operation the cases where the company, having agreed with the proprietors of the lands owning the abutments, should fail to sue out any writ for assessing the damages to the lands of the proprietors above. The 9th section was intended as a counterpart to the 8th; and with the exception of the provisions relating to the abutments, is co-extensive with it; giving the remedy therein provided, not only to the proprietors whose damages may have been assessed under a writ sued out by the company, and who assert a claim after the erection of the dams, for unforeseen damages, but also to those who may have been omitted in such writ, and still further to all the proprietors, where the company may have failed to sue out any writ. To construe the act otherwise, and hold it as applying only to the two first mentioned classes of cases, would be to leave it entirely in the power of the company, by failing to issue any writ, to drive all the proprietors to their actions; whilst the manifest object of the Legislature was, that none of them should be compelled -to resort to the expense and delays attendant upon the ordinary suits.
The 9th section, as before stated, requires the County Court to order the clerk to specify in the writ of ad qtiod damnum, the nature of the injury complained of; but this Court is of opinion that there is no such failure *343to do so, as gives to the appellee any just cause of complaint. If there had been an inquisition in the case of the appellant’s lands, before the erection of the dam, it would have been proper, and perhaps necessary, so to frame the writ sued out at his instance, after the erection of the dam, as to shew that the damages to be estimated, had not been previously estimated; and also to specify the injuries, in order that the jury might be confined in their enquiry, to the subjects proper for their inquisition ; and the company saved from the hazard of being subjected to the payment again, of damages already satisfied. But in this case there had been no previous writ. All the damages, therefore, that it would have been proper for a jury to enquire of and assess, under a writ sued out by the company, it was proper for the jury in this case to enquire of and assess, under the writ sued out by Nash. The writ, therefore, properly assumed the form that would have been proper for one sued out, previously to the erection of the dam.
The Court is also of opinion, that it was not necessary, either in the writ or the inquest, that the land injured should have been set out by metes and bounds; or that there should have been any more exact specification of the injuries complained of, and for which damages were assessed, than has been observed. In order to ensure that certainty and completeness, which it is desirable should be found in the proofs to be furnished by the records of judicial proceedings, it would perhaps have been well, if the Legislature had required that the writ, inquisition and judgment should so particularize the injuries complained of, as that, in any subsequent controversy between the parties, there would be no difficulty in ascertaining, by a reference to them, the identity of the subjects embraced, or intended to be embraced, by them. In the absence of such provisions, there is no propriety in holding the parties to the observance of any greater precision in the specifications of *344the injuries, in the proceedings under review, than would have been deemed sufficient in the proceedings of an action at law brought by the proprietor to recover damages. In such action it would be no good cause of objection to the declaration or to the verdict, that there ° 1 was a failure in either to set out the lands injured, by metes and bounds, or to specify with any great degree of particularity the injuries sustained by the proprietor. The want of precision and exactness in the pleadings and proceedings, would in such case be more likely to result in inconvenience to the plaintiff than to the defendant. The judgment would be a conclusive bar to any further suit for damages that could, by fair construction, be regarded as embraced in such declaration and verdict; and in any new action claiming further compensation, it would be incumbent on the plaintiff to shew that it had not been already awarded to him. So here, if Nash should hereafter issue another writ, he could not recover without first shewing that the damages claimed in it were not foreseen and estimated in the inquest, in this case.
The writ in this case directs the jury to view the lands of the proprietor, which may probably be damaged or overflowed; and to say what damage it will be of to the said proprietor; to say whether, in their opinion, the health of any person will be materially annoyed by the stagnation of the waters; to specify such injury, and the probable damages thus arising. And in the inquest the jurors say, that the damages sustained by Nash, in consequence of injury to his lands by the overflowing of the waters of the river, produced by the erection of the dam, and which said damages have not been heretofore foreseen, estimated and satisfied, is six hundred dollars. And they further find, that Nash has sustained no damage from loss of health, occasioned by the erection of said dam. Here is all the certainty that would have been required in the writ, declaration and *345verdict in an action of trespass or case brought by Nash i for the recovery of damages; and the Court does not feel called upon to subject the proceedings in this case to a more rigid scrutiny, or a harsher criticism than it would have been proper to apply to the like proceedings in the supposed action just mentioned.
This Court is therefore of opinion, that the County Court did not err in giving judgment for the appellant on the inquest for the damages therein assessed; and, consequently, that the judgment of the Circuit Court reversing the same, is erroneous. This Court doth therefore reverse the judgment of the said Circuit Court with costs ; and proceeding to give such judgment as it ought to have rendered, doth affirm that of the County Court, with costs and damages according to law.
The judgment of the County Court not bearing interest, the judgment of this Court was for damages at the rate of six per centum per annum, from the 1st of April 1841, the date of the judgment of the Circuit Court reversing that of the County Court, to the time when a copy of this judgment should be delivered to the clerk of the Circuit Court. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481556/ | Allen, P.
after stating the case, proceeded :
The first question arising upon the foregoing statement is, whether a corporation is liable as a garnishee under the attachment law. In the argument here, however, the counsel of the company contended, that no suit whatever could be maintained against-this corporation in the courts of Virginia: First, because it is a foreign corporation, and therefore not liable to be sued without the jurisdiction of the state which created it; and second, because no mode is provided by our law for the service of process upon it.
The first ground it seems to me is settled by the act of March 8th, 1827, entitled an act to confirm a law passed at the present session of the general assembly of Maryland, entitled an act to incorporate the Baltimore and Ohio railroad company. The preamble recites that whereas an act has passed the legislature of Maryland, entitled an act to incorporate the Baltimore and Ohio railroad company, in the following words and figures, viz: The act of incorporation is then set out, conferring a corporate name, with all the powers, rights and privileges which other corporate bodies may lawfully do for the purposes mentioned in the said act, and providing that by that name it should be capable of purchasing, holding, selling and conveying property; and may sue and be sued. And after thus reciting the Maryland act of incorporation, the Virginia law proceeds to enact, “ that the same rights and privileges shall be and are hereby granted to the aforesaid company within the territory of Virginia, as are granted to them within the territory of Maryland; the said company shall be subject to the same pains, penalties and obligations as are imposed by said act, and the same rights, privileges and immunities which are reserved to the state of Maryland or to the citizens thereof, are hereby reserved to the state of Virginia and her citizens.”
*659The company under this law is a Virginia corporation, and its powers within the territory of Virginia are derived from the grant contained in the law. The act of Maryland incorporated the subscribers to the capital stock, their successors and assigns, by the name designated; and the Virginia act in effect re-enacts the Maryland law in all essential particulars; thereby erecting the company into a Virginia corporation within her territory. If liable to be sued in Maryland, the same liability attaches to it in Virginia. It is judicially known to the court that the road traverses the territory of Virginia to a greater extent than it does through the state of Maryland. Throughout its whole course vast expenditures would be necessary in the construction, preservation and working of the road, innumerable contracts would be entered into, controversies would necessarily arise out of the contracts, acts and omissions of the company and its agents ; and it would be a startling proposition if in all such cases citizens of Virginia and others, should be denied all remedy in her courts for causes of action arising under contracts and acts entered into or done within her territory; and should be turned over to the courts and laws of a sister state to seek for redress. Such a construction would give the company almost entire immunity for its contracts and acts over most of the road, and would exempt its property in the territory of Virginia from all liability to its creditors: For process of execution from the courts of Maryland could not avail in Virginia.
The subsequent legislation of the state shows that the legislature has uniformly treated it as a Virginia corporation, exercising the same controlling power over it as over other corporations deriving their existence from the laws of Virginia. By the act of March 1847, Sess. Acts, p. 86, the company was authorized to complete the road through the territory of Virginia *660over a route thereby prescribed; and by the 6th section of this law it was subjected to the provisions of the general railroad law of the 11th March 1837, with respect to that portion of the road constructed within this commonwealth, so far as the same were properly applicable; and the company was required to accept the provisions of this act within six months, as a condition upon which the powers and privileges of the said act were granted.
Under this act, as it appears from the preamble of the act of 21st of March 1850, Sess. Acts, p. 49, the company has proceeded to complete its road: Thus, with respect to that portion of the road constructed in Virginia, submitting itself to the provisions of the general law regulating railroad companies incorporated by this commonwealth.
Regarding it as a corporation of Virginia with respect to that portion of the road constructed within the commonwealth, it is unnecessary to consider what would be the effect of our legislation upon this question, even if it were still to be treated as a foreign corporation, to which certain franchises and immunities within the state were granted and liabilities imposed upon it. It has been supposed that a foreign corporation cannot be sued, because by the common law, process against it must be served upon its head within the jurisdiction where this artificial body exists. The difficulty is rather technical than substantial; and •this court held in the case of the Bank of U. S. v. The Merchants Bank of Baltimore, 1 Rob. R. 573, that under our law directing the method of proceeding against absent debtors in courts of equity, a suit might be maintained even against a foreign corporation where it has lands or tenements within the commonwealth; the proceeding being by publication instead of actual service of process.
It is further argued, that even if the corporation is *661to be regarded as a Virginia corporation, its principal office is in Maryland, and its chief officer resides there; and that by the Code, ch. 169, § 1, it is provided that a suit may be brought in any county or corporation ■wherein, if a corporation be a defendant, its principal office is, or its chief officer resides ; another paragraph provides that if the suit be to recover land or subject it to a debt, the suit may be brought in the county or corporation wherein such land, estate or debts, or any part thereof, may be; and the second section authorizes a suit to be brought in any county or corporation wherein the cause of action or any part thereof arose, although none of the defendants may reside therein.
Corporations are in law, for civil purposes, deemed persons. They have power to plead, be impleaded, grant or receive by their corporate names, and to do all other acts within the purview of their corporate power, which natural persons could do. Holding land in different counties, if so empowered by its charter, it may be sued in the county wherein such land may be, though its principal office is, or its chief officer resides, elsewhere. The cause of action growing out of its contracts, acts, negligences or omissions, may arise in a different county or corporation, and suit may be brought where the cause of action arose, without reference to the residence of the defendant. The Code, p. 643, § 7, prescribes the mode of serving process against or giving notice to a corporation. It shall be sufficient to serve process against it, on the chief officer; or in his absence from the county or corporation in which he resides, or in which is the principal office of the corporation, provision is made for service on other officers of the corporation in cases of cities, towns, &c. &c.; and then follows this general provision: “If the case be against some other corporation than a bank, and there be not in the county or corporation wherein it is commenced, any other person *662on whom there can be service as aforesaid, service on an agent of the corporation against which the case is, publication, in the mode directed, shall -together be sufficient.” As jurisdiction is not confined to the coun¿y or corporation wherein its principal office is, or chief officer resides, so service on an agent of the corporation within the county where the suit was properly commenced, with publication in the prescribed mode, is sufficient service; there being no president, director or other chief officer of said company within the county on whom process could be served. I think, therefore, that this corporation may in a proper case be sued in the courts of this commonwealth, and that a mode is provided by law for the service of process upon it.
The next error assigned is, that the court erred in overruling the motion to discharge the attachment, the plaintiff in error insisting that a corporation is not liable as a garnishee, under the attachment laws. . The objection is general; applicable to all corporations aggregate, without reference to the jurisdiction of the court over the parties or controversy. . The Code, ch. 151, § 2, p. 601, authorizes the plaintiff in an action at law, on proper affidavit at the time of or after the institution. of the suit, to obtain from the clerk an attachment, if the suit be to recover money for a claim or damages for a wrong, against the defendant’s estate. The 7th section of the act provides' that every such attachment may be levied on any estate, real or personal, of the defendant; and that it shall be sufficiently levied by the service of a copy thereof on such persons as may be in possession of effects of or known to be indebted to the defendant. By tlie 9th section, such persons are to be summoned to appear as garnishees. The 12th section gives a lien from the time of service upon the personal property, choses in action and other securities of the defendant, in the *663hands of or due from any such garnishee. The 17th section provides that when any garnishee appears he shall be examined on oath. If it appear on such animation, that he was indebted, the court may "order him to pay the amount so due by him; or with the leave of the court he may give bond to pay the amount due by him at such time and place as the court may thereafter direct. The 18th section authorizes the court, if he fails to appear, to compel him to appear, or the court may hear proof of any debt due by him to the defendant, and make the proper order thereupon. And the 19th section authorizes a jury to be impanneled when it is suggested that the garnishee has not fully disclosed the debts due by him to, or effects in his hands of, the defendant in such attachment ; and provides for a judgment on the finding of the jury.
From this review of the material provisions of the statute bearing upon this question, there would seem to be nothing in the condition of a corporation to exempt it from. being summoned as a garnishee. When the word person is used in a statute, corporations as well as natural persons are included for civil purposes. This was the rule at common law. 2 Inst. 697, 703, 736. They are to be deemed and taken as persons when the circumstances in which they are placed are identical with those of-natural persons expressly included in such statutes. Beaston v. Farmers Bank of Delaware, 12 Peters’ R. 102, 134-5; U. S. Bank v. Merchants Bank of Baltimore, 1 Rob. R. 573; and the Code, ch. 16, § 17, p. 101, clause 13, provides that the word person may extend and be applied to bodies politic and corporate as well as individuals. The general words, as to what effects, debts or estate of the defendant may be attached, would seem to embrace his whole estate, without respect to the character of the person, natural or artificial, in whose *664hands the effects were, or by whom the debt was due. The corporation stands in precisely the same position in regard to such effects or debts, as a natural person. If it owes the debt or holds the effects of another, it, like an individual, is liable to be sued by its creditor or the owner of the property: And the statute merely substitutes the plaintiff in the attachment to the rights of the creditor or owner as against the garnishee. No change is made in its contract, or additional obligation imposed on it, by being proceeded against as garnishee. The only particular in which there is any departure from a literal compliance with the statute, is in regard to that provision of the 17th section which declares .that when any garnishee shall appear, he shall be examined on oath. This clause was for the benefit of the plaintiff in the attachment. In the case of a corporation, he must receive an answer in the only mode by which the corporation can answer, under its corporate- seal. In chancery, where, as a general rule, all answers must be verified by oath or affirmation, a corporation, must answer in the same way, though where a discovery is wanted, a practice has prevailed of making some of the officers defendants. The same result could be arrived at under the attachment law, by examining the officers as witnesses, if the plaintiff suggests that a full disclosure has not been made. This is an inconvenience to which he is subjected, growing out of the character of the garnishee, but furnishes no reason for exempting the corporation from being so proceeded against when all the other words of the statute are sufficiently comprehensive to embrace artificial as well as natural persons... The mischief intended to be remedied applies as well to debts due by them, as by individuals; and the circumstances in which they are placed are the same as those of others embraced in the statute.
I think a fair construction of the statute authorizes *665the proceeding against the corporation in a proper case; and no objection being urged to the proceeding here, except the general one, that a corporation could not be summoned as a garnishee on such an attachment, the motion to discharge the attachment was properly overruled.
I think, however, the verdict is defective in not responding to the issue really raised upon the answer of the garnishee. That answer, taking it all together, must, it seems to me, be construed as referring to the time of the service of the attachment. It declares in express terms, that there was no other money at the time of the service of said attachment, subject to the plaintiff’s attachment, only as above stated. Some confusion has arisen out of the provisions in the statute referring to proceedings in law and at equity under the 2d and under the 11th sections. An attachment under the 2d section may be served, by the provisions of the 7th section, on such person as may be in possession of effects of, or indebted to, the defendant. By the 9th section, the officer is to return with the attachment, the names of the persons having effects of or owing debts to the defendant. And the 12th section gives the plaintiff a lien from the time of service, upon the personal property, choses in action and other securities of the defendant in the hands of, or due from, the garnishee on whom it is served.
All these provisions seem to look to the time of the service of the attachment, as the period at which there should be an existing debt from the garnishee to the defendant, whether then actually payable or to be paid at a future day, it is not necessary now to enquire.
The 11th section regulating attachments in equity, authorizes the attachment upon debts due or to become due to the defendant by the other defendants. As the lien given by the 12th section extends to both classes of attachment, possibly the phrase debts to become due, *666may be satisfied by limiting the expression to debts ^Ien existing, payable at a future day. This construcwould render the provision of the 11th section consistent with the 12th section giving the lien. The 17th section applies to both courts, and provides, if on such examination (referring to the examination of the garlT¡sqee on oath when the proceeding is under the 2d section at law,) or by his answer to a bill in equity, it appear that at or after the service of the attachment he was indebted to the defendant, &c.
Unless the attachment at law is to be extended so as to embrace existing debts payable in future, and the attachment in equity restricted to debts of the same character, there would be some difficulty in applying these general words to both classes of attachments, and it might be necessary to read them distributively, making the attachment at law apply to debts owing at the service, and in equity at or after the service of the attachment. However this may be, as the answer of the garnishee referred to the time of the service of the attachment the verdict finding that the company was indebted on the 18th of May 1852, and afterwards, is no reply to the answer. • The answer or examination may have been true, and contained a full disclosure, and yet be consistent with the verdict. There may have béen no other debt on the 14th January 1852, the time of service, and so nothing for the attachment to operate upon; but between thát and the 18th of May 1852 and afterwards there may have been new contracts out of'which new claims may have arisen. I think the verdict was too defective to enable the court to pronounce any judgment thereon.
I am also of opinion that the court erred in permitting evidence of the statements of James L. Randolph, the division engineer, made to the witness A. F. Haymond, to be given in evidence to the jury. There is nothing in the facts certified in the bill of exceptions, *667showing that Randolph was acting within the scope of his authority in making such admissions. The conversation was with a third person not in the sence of the • defendants, the said Crowleys; and the agent was not engaged in any transaction with the alleged creditors of the company, rendering it necessary to advert to the state of accounts between them ; so that the declarations cannot be treated as part of the res gestee, determining the quality of the acts which they accompanied. They amount to no more than statements in reference to a state of accounts, growing out of past transactions, without its being, shown that he ever was the agent to settle such accounts, and determine the state of indebtedness on the part of the company to these contractors; or that he knew how much had been paid to them by the company; or that at that time he was the agent to settle with and pay them. His statements were nothing more than a declaration made in relation to business, concerning a portion of which he was employed as agent,- and during the course of such employment acquired a knowledge of the monthly estimates of work done. These declarations do not amount to proof against the company. The fact should have been proved by the agent. The bill of exceptions shows he was examined and declared he did not know how much money had been paid to the Crowleys at that time. I think there was no error in overruling the motion to discharge the attachment upon the ground that the company was not liable to be proceeded against as garnishee. But that there was error in proceeding to render judgment on the verdict of the jury, the same being defective; and in permitting the statements of the said J. L. Randolph to the witness, as set forth in the bill of exceptions, to be given in evidence to the jury: And I am therefore for reversing and remanding for a new trial, with instructions to exclude the evidence of the *668statements of said J. .L. Randolph, if again offered under the same state of facts disclosed in said bill of exceptions.
The other judges concurred in the opinion of Allen, P.
The judgment was as follows :
It seems to the court here, that the plaintiff in error is liable to be sued in the courts of this commonwealth ; and that it could be proceeded against as a garnishee under the second section of the Code, ch. 151, p. 601. It is therefore considered by the court, that the Circuit court properly overruled the motion of the plaintiff in error to discharge it from answering to said summons as garnishee.
It further seems to the court here, that the issue made up by the answer of the plaintiff in error and the suggestion of the defendant in error that the said garnishee had not fully disclosed the debts due by it to, or effects in its hands of, the defendant, referred to the time of the service of the attachment on the garnishee ; and the verdict should have responded thereto, but entirely fails to do so. Instead of ascertaining whether there were any such debts or effects due by or in the hands of the garnishee at the time of such service, it is found by the jury that the plaintiff in error has not fully disclosed the debts due by it to, or effects in its hands of, said Crowleys; and that there was a sufficient amount due to them by the plaintiffs in error on the 18th of May 1852, and also afterwards, to satisfy the plaintiff’s judgment. This verdict may consist with the answer: There may have been no more due at the time of service than the amount disclosed by the answer; and yet other debts may have been created -under contracts entered into after the service of said attachment. To sanction such a find*669ing would be unjust to the garnishee; for although he may show he has made a full disclosure of the debts due by him to, or effects in his hands of, the at the time of such service, he may be surprised by evidence of transactions which occurred after such service. It seems, therefore, to this court, that said verdict was defective, and should have been set aside, and a new trial awarded.
And it further seems to the court here, that upon the facts set forth in the bill of exceptions taken by the plaintiff in error, that the court erred in permitting the declarations of James L. Randolph, made to the witness A. F. Haymond, and set out in the bill of exceptions, to be given in evidence to the jury; it not appearing that said Randolph was the agent of the plaintiff in error having any authority over this subject, or that at the time of making the declarations he was engaged as agent about the business referred to, so as to make his declarations part of the transaction, explaining the nature thereof.
It is therefore considered by the court, that said judgment is erroneous. It is therefore reversed with costs, the vei’dict set aside, and the cause remanded, with instructions to impannel another jury to enquire as to the debts due by the plaintiff in error to, or effects in its hands of, the said Crowleys at the time of the service of ■ the attachment; and upon such enquiry and trial the declarations of the said Randolph, as set out in the bill of exceptions, if again offered in connection with the facts disclosed in the bill of exceptions, and no other proof, ai’e not to be permitted to go in evidence to the jux-y if again objected to by the plaintiff in error. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481390/ | Baldwin, J.
delivered the opinion of the Court.
The Court is of opinion, that the Circuit Court erred in dissolving the appellant’s injunction and dismissing *357his bill, instead of directing issues to be tried by a jury for the purpose of ascertaining : 1. What was the consideration of the debt from Wilson C. Nelson to William B. Armstrong, for which the orders in the proceedings mentioned were drawn by the said Armstrong upon said Nelson, in favour of Isaac Cocke. 2. If the consideration of the said debt was money won by the said Armstrong from the said Nelson at unlawful gaming, did the said Cocke take the said Nelson’s acceptances of said orders, under the belief, induced by the concealment or misrepresentation of the latter, that the consideration of said debt was good and lawful. It is therefore adjudged, ordered and decreed, that the decree of the Circuit Court be reversed and annulled, with costs to appellant. And the cause is remanded to the Circuit Court, with instructions to reinstate said injunction, and proceed as above indicated, to a final decree. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481391/ | Daniel, J.
delivered the opinion of the Court.
The Court is of opinion, that the Judge of the Circuit Court erred in declaring, in the decree of the 17th October 1846, the bond of 1140 dollars, executed on the 3d of July 1837, by Ransome Sutherland to Burwell Law and Stephen Chandler, to have been founded on an usurious and unlawful agreement, and therefore void. The circumstances leading to and attending the execution of the bond, do not, in the opinion of the Court, disclose any understanding between the parties in violation of the laws against usury. It appears that on the 25th June 1837, Sutherland having an urgent demand for money, wherewith to redeem his property from an execution which had been issued, or was about to be issued, in favour of one Pinkard, against him, amounting to about 1800 dollars, and expecting aid from his mother to the extent of one half of said amount, addressed a letter to Burwell Law, making known his situation, and earnestly soliciting the friendly assistance of Law in raising the other half. In his letter, he assured Law that if he and Stephen Chandler would raise the desired amount for him, they should be fully indemnified ; and as a means of raising the money, he suggested that Law and Chandler should mutually execute their notes each to the other, “and have them shaved off (in the *360language of the letter) at some price or other.” That Law having received the letter and communicated its contents to Chandler, they agreed to comply with its requests. That accordingly, on the first of July 1837, Chandler executed and delivered to Law his two several bonds of that date, one for the sum of 340 dollars, payable on or before the 1st March 1838, and the other for the sum of 125 dollars, payable twelve months after date. And that Lato, on the same day, executed and delivered to Chandler his bond, of the same date, for the sum of 675 dollars, payable on or before the 25th December 1837. That on the same day, (to wit, the 1st July 1837,) Law assigned the bond for 340 dollars to Robert Mitchell, and the bond for 125 dollars to Henry P. White; and that on the 2d July 1837, Chandler assigned the bond for 675 dollars to T. Brown; and that the proceeds resulting from the sale of the bonds, 900 dollars, was paid over to Sutherland, or his order. That in pursuance of his agreement, Sutherland, on the 3d July 1837, executed and delivered to Law and Chandler his bond of that date, payable on or before the 25th December 1837, for the sum of 1140 dollars, that being the exact aggregate of the three bonds of 340 dollars, 125 dollars, and 675 dollars, before mentioned. It does not appear, and indeed it is not alleged, that the assignees, White, Brown and Mitchell, had, either of them, before or at the time of their several purchases of the bonds, any knowledge of their consideration, or any information as to the purposes for which the money was raised. It does not seem to the Court that there is any thing in the history of the transaction, affording proof of usury. There was no lending or borrowing of money by any of the parties. There was clearly no loan, either express or implied, on the part of either of the assignees, White, Brown or Mitchell. The bonds executed by Law and Chandler, it is true, were made solely with the view of raising mo*361ney from their sale; but this purpose being unknown to the assignees, they cannot be charged with any shift or device to evade the law. They were fair and bona fide assignees; and the bonds in their hands were binding obligations, against the validity of which Laio and Chandler could make no defence. It is equally clear that there was not in fact, nor in contemplation of law, any loan on the part of Law and Chandler to Sutherland. In pursuance of the request of the latter, and his promise to indemnify them, they interchanged their bonds, sold them, and paid over to him the proceeds. If, without taking the bond of Sutherland, they had waited till their own bonds, in the hands of the assignees, had matured, and having discharged them, had brought their action in assumpsit against Sutherland, it is not perceived upon what plea such action could have been defeated. Their action in such case would have been, not for the 900 dollars as so much money loaned to Sutherland, but for the 1140 dollars, the amount of the bonds, it being so much money paid in pursuance of binding obligations, entered into by them for his benefit and at his request. The taking of Sutherland’s bond, to indemnify them, did not alter the nature of the transaction. The bond was given by Sutherland, not to secure to Law and Chandler the return of 900 dollars as a principal sum advanced, with its premium, but to reimburse the amount they had undertaken to pay, and would have to pay, upon their bonds. If Law and Chandler had borrowed the money at usurious interest, and loaned it to Sutherland, upon the same terms, the transaction would have been illegal; and though in such supposed case they contemplated no profit from the transaction, any contract to reimburse them would have been void. But in the case before us, there has been no illegal contract on the part of any of the parties. Law and Sutherland neither made an unlawful loan, nor acted as agents in effecting one. The Court sees no*362thing in their conduct condemned by the law, or which can justly invalidate the securities made for their indemnity, and is therefore of opinion that the Court below erred in holding that they were entitled in equity, by virtue of said securities, to the sum of 900 dollars, the proceeds of the three bonds, without interest, instead of 1140 dollars, the bond given for their indemnity, with six per cent, interest thereon from the 25th December 1837.
The Court is further of opinion, that the executor of Burioell Law had no right to tack the claims reported in the special statement of the commissioner, and which were not secured by the deeds of trust in the proceedings mentioned, to those that were; and his demand to have them satisfied out of the trust fund was properly rejected. The Court is further of opinion, that the Court below properly applied the whole of the 605 dollars paid by Sutherland, on the 25th January 1840, as a credit to the amount due on the bond for 1140 dollars, instead of devoting any portion thereof to the discharge of the account of 99 dollars 62 cents, the sum of 16 dollars 44 cents, paid Jordain, Robeiison Co.’s execution, and the 130 dollars paid W. A. Street Co. The right to demand either of these items did not arise till after the payment of the 605 dollars; and in the absence of any agreement or understanding between the parties as to the application of such payment, it is fair to presume that it was intended as part satisfaction of the debt then due.
It is insisted here that inasmuch as the administrator of Sutherland, was before the Court, it would at least have been proper to render a decree against him for the three items of 99 dollars 62 cents, 16 dollars 44 cents, and 130 dollars. This Court does not think so. The state of the assets does not appear. The plaintiff in the suit did not call for any settlement of the administration account; and none was made. This Court *363has, on frequent occasions, expressed its unwillingness to extend the practice of decreeing between co-defendants farther than it has already gone. In the absence of a knowledge as to the true state of the assets, the Court could not properly make any decree affecting them; and as no issue on that head was called for by the plaintiff, it would have been irregular to have directed it at the instance of Law’s executors.
For these reasons the Court is of opinion that the decree adjudging 295 dollars, without interest, (a balance which it seems the Court below arrived at by deducting the payment of 605 dollars from the 900 dollars, the proceeds of the sale of the three bonds before mentioned,) to be the sum due to the executors of Law and Stephen Chandler, is erroneous; the true amount due being the 1140 dollars, with six per cent, interest, subject to a credit of 605 dollars, as of the 25th January 1840, the day on which said last mentioned sum was paid. The Court is further of opinion, that inasmuch as it appears that the whole of the sums due by the three bonds for 125 dollars, 340 dollars and 605 dollars, was paid by Law, the decree for the balance due on the bond of 1140 dollars, should have been in favour of his executors alone, and not in favour of them and Chandler jointly.
The decree is therefore reversed with costs, and the cause is remanded, for further proceedings to be had in accordance with the principles above declared.
Brooke, J. was of opinion that the bond was usurious. On the other points he concurred in the opinion of the Court. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481392/ | Allen, J.
delivered the opinion of the Court.
The Court is of opinion, that as by the demurrer to evidence the demurrant has admitted all that could be reasonably inferred by a jury from the evidence given by the other party, and waived all the evidence on his part which contradicts that offered by the other party, or tends to establish a case inconsistent with the case proved by the evidence of the other party, the evidence of the plaintiff in error in this case, taken by itself, and as unimpeached and unaffected by contradictory evidence, would have justified a jury in reasonably inferring a gift of the slaves in question, by his father, the said A. Tutt, deceased, to the plaintiff in error, and that possession passed from the donor to the donee, and remained with the donee under such gift; and as the evidence of the defendant in error, tending to prove a loan, seeks to establish a case inconsistent with, and so contradictory to the case proved by the evidence of the plaintiff in error, the same, according to the principles established in the case of Green v. Judith, 5 Rand. 1, must be disregarded.
Judgment reversed, and judgment on the demurrer to evidence for the plaintiff. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481393/ | Cabell, P.
delivered the opinion of the Court.
The Court is of opinion that the effect of the indenture made the 25th day of April in the year 1771, between William Taliaferro and Elizabeth his wife of the first part, Joseph Jones of the second part, and Francis Taliaferro and John Taliaferro of the third part, was to destroy the power of appointment given to the said Elizabeth Taliaferro, in relation to the tract of land in controversy, by the deed of trust of the 23d day of May 1764, executed by the said William Taliaferro and Elizabeth his wife, to Joseph Jones.
The Court is further of opinion, that the indenture aforesaid, of the 25th of April 1771, had the effect to restore to the said William Taliaferro, all the rights of property which he had to the land in controversy, prior to the execution of the deed of trust, of the 23d day of May 1764, except so far as those rights might be affected by the life interest in the land granted to the said Elizabeth Taliaferro.
The efficacy of the indenture of the 25th day of April 1771, is not impaired by the fact, that Mrs. Taliaferro had an interest in the power of appointment, and that she was not privily examined as to her free and voluntary execution of that deed. It is the right of the person creating a power of appointment, to prescribe the manner of its execution. And in this case, it is expressly declared that it may be exercised by any instrument under the hand and seal, in writing, of Mrs. Taliaferro. Having the absolute right to give the land to whom she pleased, by the execution of the power, in the manner aforesaid, it follows that she had the right, for valuable consideration, and with the assent of all persons interested in the lands, to destroy the power by the same means, and to permit the land to pass as if the power had never existed; and the Court is of opinion, as before declared, that that is the effect of the arrangement made by the indenture of the 25th of April 1771.
*379The Court is of opinion, that there is no validity in the objection that Joseph Jones, in that part of the indenture of the 25th of April 1771, in which he releases all right, title and claim to the land, calls it the Poialoe Neck tract; for he refers to the deed of trust of the 23d of May 1764, to shew what was the right, title and claim which he intended to release, and that deed shews, beyond the possibility of doubt, that it was the right, title and claim which he had acquired by that deed of trust, in the Newington tract, (the land in controversy,) and not the Potatoe Neck tract. And deeds are to be construed according to the manifest intention of the parties, as collected from the whole instrument, and not from particular words and phrases only.
The Court is of opinion to affirm the decree.
Baldwin, J. dissented. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481394/ | Baldwin, J.
delivered the opinion of the Court.
The Court is of opinion, that the slaves in the proceedings mentioned, upon which the executions of the appellants against Miles Macon were levied, were not the property of the said Miles Macon, but of William H. Macon, the appellee; and that in the transactions between the said Miles Macon and William H. Macon, in relation to said slaves, there is no ground for the imputation of actual fraud as against the creditors of said Miles.
The Court is further of opinion, that though the said slaves were in the possession of said Miles Macon for a number of years, yet that the case does not fall within the provisions of the second section of the act to prevent frauds and perjuries, (1 Rev. Code, ch. 101, p. 372,) *384in relation to loans of goods and chattels, or reservations or limitations of a use or property therein by way of condition, reversion, remainder or otherwise; inasmuch as the said possession of the said Miles Macon was by force of bailments by hiring, not fictitious or colourable only, but real and bona fide.
The Court is therefore of opinion that there is no error in the decree of the Circuit Court.
Decree affirmed with costs. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481395/ | Baldwin, J.
delivered the opinion of the Court.
Wills’ adm’r v. Dunn's adm’r.
The Court is of opinion, that the decree of the County Court is erroneous, so far as it charges Lucy Wills personally, with the balance ascertained to be due from the estate of Thomas Dunn the elder to the estate of Lewis Dunn, without any account or admission shewing assets of the estate of the said Thomas Dunn the elder, in the hands of the said Lucy Wills, sufficient to discharge and satisfy said balance, or any part thereof; and therefore that there is no error in so much of the decree of the Chancellor as reverses and annuls that part of the decree of the County Court, and directs certain accounts to be taken before a commissioner.
And the Court is further of opinion, that the decree of the County Court is also erroneous, in ascertaining the balance of principal and interest due from the estate of Thomas Dunn the elder to Lewis Dunn, on the 31st of December 1801, to be 1250 dollars 78 cents, and in the interest given on 790 dollars 99 cents, the principal thereof, from the 31st of December 1801, till paid; inasmuch as the said sum of 1250 dollars 78 cents, embraces interest on principal money, at the rate of six per cent, instead of only five per cent., from the 31st of December 1797, to the 31st of December 1800; and inasmuch as the interest given on the said sum of 790 dol*412lars 99 cents, as aforesaid, is at the rate of six per cent. instead of five per cent. only. The estate of Thomas Dunn the elder was not properly chargeable with a higher rate of interest than five per cent, on any of the Principa^ moneys which came to his hands, inasmuch as the whole of the debit against him accrued prior to the 1st of May 1797, when the act of 1796, changing the rate of interest, took effect. The impropriety of charging any interest at the rate of six per cent, appeared on the face of the commissioner’s report, which formed the basis of the decree, and could not have been repelled by any extrinsic evidence; and the County Court ought to have corrected the erroneous views of the commissioner on that subject.
And the Court is further of opinion, that the decree of the County Court is erroneous, to the prejudice of the appellees, in failing to allow interest at all against the estate of Thomas Dunn the elder, on the sum of 797 dollars 31 cents, from the 31st of December 1800, to the 31st of December 1801; in which respect it improperly disregarded the said report of the commissioner.
The Court is therefore of opinion, that the decree of the Chancellor is erroneous in affirming, instead of reversing, so much of the decree of the County Court as allows interest at the rate of six per cent, instead of five per cent., as above mentioned ; and also so much thereof as fails to allow interest at all from the 31st of December 1800, to the 31st of December 1801, as above mentioned.
And the Court is further of opinion, for reasons assigned in the written opinion of the Chancellor, that there is no error in his decree, except as above designated.
It is therefore decreed and ordered, that so much of the decree of the Chancery Court as is above declared to be erroneous, be reversed and annulled, with costs to the appellants; and that the residue of that decree be *413affirmed; and the cause is remanded to the Chancery Court for the correction of the decree of the County Court, as above indicated, and for further proceedings according to the principles above declared.
Mason’s ex’or & als. v. Dunn’s adm’r.
It appears to the Court, that the equity asserted in the bill of the appellants was founded upon the supposed errors, to the prejudice of the estate of Thomas Dunn the elder, in the decree of the County Court of Sussex, in the proceedings mentioned ; and the relief sought by said bill was contingent upon the expected reversal of that decree for such errors, upon the appeal taken therefrom by the administrator of Lucy Wills, who was administratrix of the said Thomas Dunn the elder, and by the administrator de bonis non of the latter: And that now the result of the Chancellor’s decision upon said appeal, and of the decision of this .Court upon the appeal from his decree, is to affirm the decree of the County Court of Sussex, with the following exceptions, to wit: 1. So much of that decree is reversed as gave interest, against the estate of said Thomas Dunn the elder, at the rate of six per cent, instead of five per cent, only, subject to the correction of an error in regard to interest, favourable to that estate. 2. So much of that decree is also reversed, as charged Lucy Wills personally with the balance ascertained to be due from the estate of Thomas Dunn the elder to the estate of Lewis Dunn, without any account or admission shewing assets of the estate of the said Thomas Dunn the elder in the hands of the said Lucy Wills, sufficient to discharge and satisfy the said balance, or any part thereof. But these grounds of reversal give no support to the equity asserted by the bill of the appellants in this case; for, in regard to the first, the amount of the error, so far as prejudicial to them, was corrected in the *414adjustment in the proceedings mentioned, of the judgment at law against the sureties in the administration bond; and in regard to the second, the sufficiency of the assets was determined by the said judgment, and is not denied in the bill of the appellants, which seeks relief only upon the ground of errors in the said decree °f the County Court of Sussex, to the prejudice of the estate of the said Thomas Dunn the elder.
It is therefore unnecessary for the Court to consider whether the appellants would have been entitled to relief against the said adjustment of the judgment upon the administration bond, if the decree of the said County Court had been reversed for errors other than those above specified.
The Court is therefore of opinion, that there is no error in the decree of the Chancery Court; and it is decreed and ordered that the same be affirmed, with (ppsts to the appellees. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481557/ | Daniel, J.
The paper dated the 7th day of August 1815, purporting to be a deed from Daniel Eldridge to William Eldridge, was not legally recorded. There was no law in force at the era of its date, which allowed of its being recorded on the force of an acknowledgment before the chief justice of the Supreme court of Pennsylvania. And it is, I think, obvious from the statement of the judge of the Circuit court *674in the bill of exceptions, that the ground on which he permitted said paper to go to the jury as evidence of a conveyance, was that of its being an ancient deed. The counsel for the caveatees insists that this ground for the action of the court is not tenable, and that the judge has misconceived the rule of law regulating the admission of ancient deeds without proof of execution. And he contends that in no case can proof of the execution be properly dispensed with, until it is first shown that thirty years’ quiet and continued possession of the land has been held under the deed. And in support of his view of the law, he cites Gilbert’s Evidence, p. 89 ; Coke Litt. 6 b; 2 Bacon Abr. Evidence 648 ; 2 W. Black. R. 1228; 3 John. R. 292 ; 6 Binn. R. 439 ; 9 John. R. 169 ; 1 Har. & John. 174; Dishazer v. Maitland, 12 Leigh 524.
The question is one on which there is some conflict of decision, rendering it necessary in my opinion, in order to arrive at a correct conclusion as to the state of the law on the subject, to review the opposing authorities. In the performance of the task I shall examine briefly each of the authorities relied on by the counsel of the caveatees.
Gilbert in his “ Law of Evidence,” after stating generally the rules essential to the admission of deeds, at p. 88, 89, says, “ But to this rule there are several exceptions. First. If the deed be forty years old, that deed may be given in evidence without any proof of the execution of it; for the witnesses cannot be supposed to live above forty years; and forty years is proof sufficient of a presumption; for the age of a man is no more than sixty years, and a man is supposed to be twenty years before he is of age sufficient to understand the nature of right and wrong, and the general forms of contracting; so that after forty years the witness must be supposed to be dead; and since no person living can be supposed to be coeval with *675such deeds, therefore they may be offered in evidence without proof. But (he proceeds) it had been ruled that if a deed be forty years old and possession ^ ^ * not gone along with the deed, they ought to give some account of the deed; because the presumption fails that was established in behalf of such deeds, where there is no possession; for it is no more than old parchment if they give no account of its execution.” The last paragraph, which is no doubt the one relied on as showing that, according to Gilbert, it is necessary there should be continual possession for thirty years, does not in terms assert such a proposition; and is not, I think, susceptible of such a construction. It says, it is true, it had been ruled that possession should go along with the deed; but I do not understand him as saying that the ruling of the court to which he refers, requires that it should have continued for the forty years. Again, at the commencement of the same chapter, p. 83, after saying that the deed must be regularly proved by one witness at least, he says, “ This is now to be understood when the deed is of a late date, for if the deed be of thirty years’ standing, which now makes an ancient deed, and the person to whom the deed was. made, or those deriving under him, have been in possession under the deed, such ancient deed shall be read without proof, though the witness to it be alive; and this Baron Gilbert declared to be the rule of evidence at nisi prius; and if the person to whom the deed was made hath been in possession of the lands contained in the deed, such possession shall be presumed to be under the ancient deed unless the contrary be proved.”
The passage in Coke, relied upon by the counsel of the caveatees, is as follows: “ And many times juries, together with other matter, are much induced by presumptions ; whereof there be three sorts, viz: violent, probable, and light or temerary. Violenta presumptio *676is many times pinna probatio: as if one be run through the body with/a sword in a house, whereof he instantly dieth, and a man is seen to come out of that house with.a bloody sword, and no other man was at that time in the house. So it is in the case of a charter of feoffment, if' all the witnesses to the deed be dead (as no man can keep his witnesses alive, and time weareth out all men,) then violent presumption, which stands for proof, is continual and quiet possession.” It will be seen that Coke is here treating of presumptions, and he cites the presumption founded on possession under an ancient deed as an instance of the violenta presumptio or full proof, as he does that also founded on a man’s being seen to come from a house-in which murder has been committed, with a drawn sword in his hand. He is not engaged in the task of pointing out all the cases in which a deed may be presumed to be genuine without proof of its execution; and it seems to me that it would be just as fair to conclude from this passage that he intended to give the only instance in which a murder might be presumed from circumstances, as that he intended to say that quiet and continual possession furnished the only evidence from which to infer the genuineness of an ancient deed.
In Bacon’s Abridgment, Evidence, H, 7th edition, p. 318, (where I suppose is to be found the authority to which the counsel of the caveatees refers,) the only passage having immediate bearing on the rule under consideration is, “ In case of a feoffment if all the witnesses to the deed are dead, then a continual and quiet possession for any length of time, will make a strong or violent presumption which stands for proof.” It is very obvious that this citation does not sustain the proposition that there must be possession under the deed for thirty years.
The case of Earl v. Baxter, cited from 2 W. Black. *677R. 1228, is very short and I quote it entire. “Ejectment at last Norwich assizes for the residue of a term of one thousand years granted the 5 Eliz. The lessor of the plaintiff produced the original lease and proved possession in himself, and those under whom he claimed, ever since the 6th Anne, and also showed one mesne assignment in 16 Jac. 1. Sergeant Foster, who tried the case, then thought it incumbent on the plaintiff to prove all the mesne assignments; for want of which, the plaintiff was nonsuited: but he since changed his opinion, and so reported it to the court. The court were clear that the sergeant’s opinion was right, and that it should have been left to the jury, with a recommendation to presume all the mesne assignments: And in consequence nonsuit set aside without costs.” There is nothing here to infer what would have been the fate of the case had there been a failure of proof as to the long continued possession which was shown in the lessor of the plaintiff, and those under whom he claimed.
It must be conceded that in the case of Jackson v. Blanshan, 3 John. R. 292, there was a direct ruling in favor of the proposition contended for by the counsel of the caveatees. In that case possession was proved under thé will of a testator from the time of his death, which had occurred some twenty-six or twenty-seven years before the trial; and though the will bore date more than thirty years back, it was held that some proof of its execution was necessary; it being proved that one of the three subscribing witnesses was yet alive. Kent, chief justice, in delivering his opinion, said, “ It is not proper to compute the will from its date, but only from the time that possession took place under it. It is the accompanying possession alone which establishes the presumption of authenticity in an ancient deed.” And he proceeded to argue that when the possession fails, the presumption must fail *678also ; that the length of the date would not help the deed, for if that were sufficient, a knave would have nothing to do but to forge an ancient deed. And he concluded that as the death of the testator had occurred only twenty-six or twenty-seven years before the commencement of the suit, the will in that case ought not to be read as evidence, inasmuch as the time of possession under it fell short of the lowest period which, according to his view of the authorities, had been required to establish an ancient deed. The opinion of this learned judge on any question of law is entitled to much respect; but it is to be observed that the decision in the case never had any force as authority even in New York, inasmuch as it was made by only two judges, a minority of the court. Yan Ness, J. concurred with Kent, Ch. J.; Spencer dissented, and Thompson and Yates did not hear the argument in the cause, and gave no opinion.
Of the case from 9 John. R. 169, Doe v. Phelps, it is not necessary to say more than that it affirms a well settled doctrine, about which no question has been made here. In that case possession had been enjoyed for more than fifty years under a deed which purported to be made in pursuance of a power of attorney. The court said that an ancient deed, with possession corresponding with it, proved itself; and that a power of attorney, contained in such deed and necessary to give it validity and effect, ought equally to be embraced by the presumption. No intimation of opinion was given by the court that in the absence of such corresponding possession other circumstantial proofs might not be received, on which to predicate the presumption.
The like remark will justly apply to the case from 6 Binn. R. 439. The possession had been enjoyed under a will for more than thirty years, and the case did not necessarily call for any thing more than the application to an ancient will of the rule which had been *679announced, in the case just above cited, in respect to the ancient deeds. Tilghman, Ch. J. however, in delivering his opinion, took occasion to approve the trine held by Kent, Ch. J. in Jackson v. Blanshan, 3 John. R. 292, and said, that “although the of the writing affords some evidence in its favor, yet the main ingredient is possession. Both however are necessary to raise that presumption which will justify the court in departing from the usual rule which requires the production of the subscribing witnesses, or proof of their handwriting, after accounting for their absence.” This opinion may perhaps be fairly regarded as one in favor of the doctrine contended for; but I do not regard the authority of the case as going further than to affirm that where there has been more than thirty years’ possession under a paper set up as an ancient will, the genuineness of the paper may be presumed.
The case of Carroll v. Norwood, 1 Har. 8 John. 167, 174, may I think be fairly considered as deciding that an ancient deed is not evidence without proof of the execution, unless it is found that the possession has gone and been held according to the deed.
The last of the cases cited by the counsel of the caveatees are those of Deshazer v. Maitland, and Same v. Same, 12 Leigh 524.
In the first case, which was an action of quare clausum fregit, a paper purporting to convey the land in question, was dated the 1st of September 1789. It appeared that it had been proved by one of four subscribing witnesses in the County court of Charlotte, in December after its date, and continued for further proof; and that it was found in a bundle of proved deeds in the clerk’s office. Maitland proved that he had paid the taxes on the land from 1790 to 1815, both inclusive, and again from 1816 to 1827, both inclusive ; but no proof was offered that Maitland or the *680grantees in the deed under whom he claimed, had ever been in actual possession under the deed.
In the second case, which was an action of ejectment, the proofs in respect to the deed were very much the same, with the addition that Maitland, the plaintiff in the action below, proved that he had made diligent enquiry after the subscribing witnesses, and could get no account of them, except that they had all died many years ago, and that he could find no one acquainted with their handwriting. It further appeared that neither Downman the grantor, nor any one claiming under him, ever set up any claim to the land in opposition to the deed; but it also appeared that no one lived on, or was in actual possession of, the land until the defendant in the action Deshazer, took possession thereof some four or five years before the commencement of the suit.
The Circuit court admitted the evidence in each case, and this court reversed both judgments, holding that the deed had been improperly permitted to go to the jury. Judge Allen, in delivering his opinion, which was concurred in by the other judges, relied mainly on the passages from Coke, Bacon and Gilbert, and the cases from 3 Johnson and 6 Binney, already referred to.
I will now proceed to examine briefly some of the authorities maintaining the opposite doctrine.
In the case of The King v. Inhab. of Farringdon, 2 T. R. 466, it was held that an allowance of a certificate of a settlement, as having been duly executed, written in the margin of the certificate and signed by two justices, was alone sufficient proof of the certificate where such certificate was thirty years old; notwithstanding the certificate did not certify the affidavit of one of the witnesses to the due execution and attestation of the certificate according to the 3 George 2, c. 29. The certificate had been acted on for more *681than thirty years. Ashhurst, Judge, said, “ The certificate having been granted above thirty years, it is not necessary to substantiate.it by the mode of pi'oof scribed by the act; for it having been recognized and acted under for so long a period, it was not necessary to have recourse to the act at all. Therefore, on the ground of the length of time which has elapsed since the certificate was granted, I think it is binding.” Buller and Cross, Js. however, made no reference to the fact that the certificate had been acted upon, but expressed the opinion, without any such qualification, that the certificate might be read under “the established rule which holds in the case of every deed, that if it be above thirty years’ standing, it proves itself.”
In the case of The King v. Inhab. of Ryton, 5 T. R. 259, the same doctrine was held in respect to a certificate, more than thirty years old.
So in the case of Oldham v. Wolley, 15 Eng. C. L. R. 150, a will more than thirty years old was allowed to be read in evidence, although the testator had died within thirty years, and some of the subscribing witnesses were proved to be still living. And in Doe v. Passingham, 12 Eng. O. L. R. 209, a will more than thirty years old was received without any proof of possession under it. See also Lord Eldon’s opinion in the matter of Sir T. Parkyns' will, 6 Dow 202, and 12 Viner’s Abr. 84, Evidence.
In 7 Comyn’s Dig. 429, Testmoigne, b. 2, it is said that “ an ancient deed dated forty years past, shall be read without further proof.” So Roscoe, in his Treatise on Evidence, 14, Presumptive Evidence,- announces the doctrine “ that a deed thirty years old or upwards is presumed to have been duly executed, provided some account be given of the deed, where found,” &c.
Best also in his Treatise on Presumptions, 47 Law Lib. 65, lays it down as an established rule, “that *682deeds, wills and other attested documents, which are more than thirty years old, and are produced from an repository, prove themselves, and the testimony of the subscribing witnesses may be dispensed ’ though it is of course competent to the opposite party to call them to disprove the regularity of their execution.”
Philips, in stating the exceptions to the general rule in respect to the Proof of Writings, vol. 2, p. 203, says, “ It is a rule that if an instrument is thirty years old, it may be admitted in evidence without any proof of its execution; such instrument is said to prove itself. The danger arising from such a relaxation of general principles is, in some measure, diminished by the operation of the rule which requires documents to be produced from their proper place of custody; and in many instances the circumstances of the instruments having been acted upon, and of the enjoyment of property being consistent with and referable to it or otherwise, affords a criterion of its genuineness. The exception applies generally to deeds concerning lands, &c. and all other ancient writings ; and the execution or writing of them need not to be proved, provided they have been so acted upon, or brought from, such a place as to afford a reasonable presumption that they were honestly and fairly obtained, and preserved for use, and are free from suspicion of dishonesty.”
In Mathews on Presumptive Evidence 270, the rule is stated in the same way. “ The general probability of the due execution of instruments which were meant to have a legal operation, is by many degrees increased by lapse of time; which, as it affords opportunity to those whose interest it was to dispute their efficiency, shows at once the acquiescence of such persons, and also a conviction on their part that all proper steps were taken to render the assurances in question valid. On this principle, supported by a consideration of the *683difficulty if not the impossibility of obtaining living testimony, deeds of thirty years’ standing, by a very ancient rule of law, are admitted in evidence proof of their execution; and when the witnesses are dead, deeds of even a less age, provided the enjoyment of the property to which they relate has corresponded with the limitations, are received as genuine and authentic.”
Starkie, in vol. 1, p. 65, says, “Presumptions are frequently founded upon, or at least confirmed by, ancient deeds, muniments found in their proper, legitimate repositories, although, from lapse of time, no direct evidence can be given of their execution, or of their having been acted upon. It seems, however, that in order to the reception of such evidence, or at least to warrant a court in giving any weight to it, a foundation should be first laid for its admission, by proof of acts, possession or enjoyment, of which the document may be considered explanatory. So it has been said that in the case of a charter of feoffment, if all the witnesses to the deed are dead, then a continual 'and quiet possession for any length of time will make a strong or violent presumption, which stands for proof.”
This review of English authorities, whilst it does not clearly show the establishment of a precise and well ascertained rule on the subject, does, I think, serve to show that the weight of authority in England is opposed to the doctrine that thirty years’ quiet and continual possession under an ancient deed is indispensable to the presumption of its genuineness. And I think that the weight of authority in this country is the same way.
In the case of Jackson v. Larroway, 3 John. Cas. 283, a will executed in 1723, and which had been proved by the witnesses in 1733 and 1744, and recorded, but not in a manner authorized by law, was allowed to be read in evidence on the trial of an action of ejectment in 1801, on the footing of an ancient *684deed; though actual possession did not follow and accompany the will.
Radcliff, J. in delivering his opinion, after adverting to the fact that the premises in dispute were in a wild and uncultivated state, and for a long time actually in the possession of no one, said, “ The general rule on this subject I take to be, that a deed appearing to be of the age of thirty years, may be given in evidence without proof of its execution, if the possession be shown to have accompanied it, or where no possession has accompanied it, if such account be given of the deed as may be reasonably expected under all the circumstances of the case, and will afford the presumption that it is genuine. This rule is founded on the necessity of admitting other proof as a substitute for the production of witnesses who cannot be supposed any longer to exist. A correspondent possession is always high evidence in support of such a deed; but when no such possession appears, other circumstances are admitted to account for it and raise a legal presumption in its favor.” Kent, J. dissented, in an opinion holding very much the same views afterwards expressed by him in the case of Barham v. Blanhan, 3 John. R. before referred to. A majority of the court, however, concurred in opinion with Radcliff, J.
In Jackson v. Laquere, § Cow. R. 221, Woodworth, in delivering the opinion of the whole court, whilst he said that he did not think that mere efflux of time was sufficient to admit a will to be read without proof, expressed a full concurrence in the rule laid down in Jackson v. Larroway, and said that the law of that case had never been overruled, and ought to govern in the one then under consideration.
And again, in Hewlett v. Cock, 7 Wend. R. 371, a lease more than thirty years old was received in evidence without proof of its execution. It was found among the title papers of the estate affected by it, and the facts and circumstances in reference to the *685property specified in it, were such as, in the opinion of the court, afforded sufficient presumption, of its genuineness, although there was no direct proof possession accompanying it. Nelson, J. who delivered the opinion of the whole court, said, “ There was some 1 . confusion and contradiction in the cases in England and in New York as to the preliminary proof necessary to authorize an ancient deed to be read in evidence. Possession (he said) accompanying, the deed was always sufficient without other proof, but it was not indispensable. He approved the decision in Jackson v. Larroway, which, he said, had. been recognized as law in Jackson v. Laquere, and had undoubtedly in its favor the weight of English authority.”
It must be conceded, however, that by recent decisions of the Supreme court of New York, the law on the subject is there left in a very unsettled state. See Troup v. Hurlbut, 10 Barb. R. 354; and Ridgeley v. Johnson, 11 Barb. R. 528.
The doctrine of Jackson v. Larroway, is fully recognized by the Supreme court of the United States in the case of Barr v. Gratz, 4 Wheat. R. 213; and by the Court of appeals of South Carolina in the case of Robinson v. Craig, 1 Hill’s S. C. R. 389. The subject is very fully examined by Greenleaf, in his Law of Evidence. In the 21st section of the work, speaking of ancient deeds and wills, he says, “ when these instruments are more than thirty years old, and are unblemished by any alteration, they are said to prove themselves; the bare production thereof is sufficient, the subscribing witnesses being presumed to be dead. This presumption, so far as this rule of evidence is concerned, is not affected by proof that the witnesses are living. But it must appear that the instrument comes from such custody as to afford a reasonable presumption in favor of its genuineness; and that it is otherwise free from just grounds of suspicion. Whether, if the deed be a conveyance of real estate, the *686party is bound to show some acts of possession under it, is a point not perfectly clear upon the authorities j but the weight of opinion seems in the negative. See again his views in section 144, and in a note thereto, in which he collates the cases on the subject, and comes to the conclusion that the weight of authority is clearly against the doctrine that the absence of proof of possession may not be supplied by other satisfactory corroborative evidence, and says that it is now agreed that where proof of possession cannot be had, the deed may be read, if its genuineness is satisfactorily established by other circumstances.
And, in Cowen Sf Hill’s notes to Philips, vol. 4, p. 366, there is a very able and elaborate review of the decisions, from which is deduced the result that a deed thirty years old or upwards, purporting to be a conveyance of property, real or personal, is sufficiently corroborated to be read without further assurance of authenticity, by showing that possession of the thing it assumes to convey has gone along and been held in accordance with its provisions: That when the length of possession is the circumstance solely relied on, the weight of authority favors thirty years as the shortest period: But that this doctrine with respect to the length of possession is to be understood with the qualification that possession is the only circumstance relied on by way of showing the authenticity of the instrument. And that a full corresponding possession is not the only corroboration which will allow the instrument to be read without proof of its execution.
Upon the best examination I have been able to make of the subject, I have come to the conclusion that the authorities do not furnish satisfactory evidence of the existence here or in England of any well established rule, which, in the absence of proof of execution, makes a continual possession for thirty years, under an ancient deed, the sole sufficient test of its authenticity. And when I look to the foundations on which the rule *687is supposed to rest, I must confess my inability to discover that solid and substantial reasoning on which it might be expected that a rule, of such vast in its consequences, would be placed.
On the other hand, a rule which would allow the paper to prove itself, or which, in other words, would declare the antiquity of its date alone a sufficient proof of its genuineness, is justly obnoxious to -the objection of Judge Kent, that “ then a knave would have nothing to do but to forge a deed with a very ancient date.” Such objection is, however, wholly without weight when urged against the adoption of the general rule announced in Jackson v. Larroway.
When the deed is of recent date, the party who offers it in evidence is required to produce the witnesses to its execution, if any, or proof of their handwriting, in case they are dead; and if there be no subscribing witnesses, he must prove the handwriting of the maker. But when the deed is of an ancient date, the production of such proof is no longer in the power, or is supposed to be no longer in the power, of the party. A resort to presumptive proof is then allowed. What is there in the nature of the enquiry which renders it proper to declare that a corresponding possession shall be the only sufficient evidence of the fact to be presumed, viz: the genuineness of the deed ? A presumption may be the result of a .single circumstance or of many circumstances. Why say that, in the case of an ancient deed, there must be a departure from the general rule in respect to presumptions, and that its authenticity may be presumed from the single circumstance of possession, but may not be presumed from other circumstances, the existence‘of which is equally inconsistent with any other hypothesis than that of the genuineness of the instrument? The direct evidences, the positive proofs by which the execution of the deed is established, being no longer attainable, and the rule, which requires their produc*688tion, being dispensed with, it seems to me wholly at war ^íe spb’it of the law, which, under such exigency, allows a resort to circumstantial or presumptive evidence, to hold that a corresponding possession shall be the only evidence from which the authenticity of the deed may be presumed. Such possession does ia¿ee(j furnish a violent presumption, but if in its absence there are other evidences (not intrinsically objectionable) equally capable of producing the same degree of belief, I cannot see the good to be attained, or the evil to be avoided, by rejecting them.
I deem it unnecesary to comment on the facts produced before the court as the groundwork for the introduction of the deed. A reference to the statement of the case will suffice to show that they were such as to exclude all doubt of the authenticity of the deed. And I think the court did right in permitting it to go to the jury.
The second cause of error assigned cannot be sustained.
In Archer, adm'x, v. Saddler, 2 Hen. & Munf. 870, this court held that an administrator with the will annexed being in possession of lands therein directed to be sold, might maintain a caveat to- prevent any other person from obtaining a patent for the same, as waste and unappropriated. Allen, the executor of Eldridge, was then a proper party; and the proceeding being one in the nature of an injunction, I do not think that the irregularity (if any there was) in permitting the suit to be revived and proceeded in in the names of the executor and the devisees, can avail now to defeat the proceedings, especially as no objection in respect to parties was made till after verdict.
Moncure, Lee and Samuels, Js. concurred.
Allen, P. dissented.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481558/ | Daniel,. J.
It is well settled that it is a principal cause of challenge to one called as a juror on a trial for felony, that he was of the grand jury who found the indictment against the prisoner. 21 Vin. Abr. Trial, 253; Coke Lit. 156 b ; Herndon v. Bradshaw, 4 Bibb’s R. 45; Barlow v. The State, 2 Black. R. 114; Hunter v. Matthews, 12 Leigh 228.
The juror Flanagan is in that predicament; and it is urged on behalf of the prisoner, that sentence has been pronounced against him without his ever having *692enjoyed the right to a trial by a jury free from exception ; whilst on behalf of the prosecution it is argued, that the prisoner has not only waived his right of challenge, but that his exception to the juror has also been in fact satisfactorily answered; and that he has no good reason for arraigning the justice of the sentence by which he stands condemned.
The 4th section of eh. 162 of the Code of 1849 provides that no exception shall be allowed against any juror after he is sworn upon the jury, on account of his estate, age or other legal disability. It was, however, conceded in the ai’gument, that this section is designed for the regulation of exceptions founded on the disabilities created by our statutes only; and has no reference to other causes of challenge which exist at common law, but as to which the statutes are silent.
The latter, it is admitted, are still governed by the ■principles and rules of practice of the common law.
It is insisted, however, by the attorney general, that these principles and rules require all challenges for whatever cause, to be made before the jurors are sworn; and that nothing occurred on the trial of this case of which the prisoner can now be heard to complain: and in support of his position, he has cited Hawkins’ Pleas of the Crown; Archbold’s Criminal Practice; the cases of State v. Quarrell, and State v. O'Driscoll, 2 Bay’s R. 151, 153; Barlow v. The State, 2 Black. R. 114; and also the cases of Jones, Heth, Curran, and others of a like character, decided by our General court.
Hawkins and Archbold, and other text writers on criminal law, do state it as a general rule, that no juror can be challenged, by either side, without consent, after he has been sworn, unless it be for some . cause which happened - since he was sworn; and I •believe the practice which most usually prevails is to •require the challenges to be made as the jurors come *693to the book, to be sworn in chief. And such was the practice previous to the revision of the criminal laws in 1848.
It is true, that in the first of these cases (State v. Quarrell,) a motion to set aside a verdict on the ground that one of the jurors was an alien, was denied; and that in the cases of State v. O’Driscoll and Barlow v. The State, like motions founded on the fact that some of the petit jurors were on the grand juries that found the bills, met with a similar fate. The same decision was made in the case of Gillespie and others v. The State, 8 Yerg. R. 507; and a like decision was also made in a case of an analogous character by the Supreme court of Connecticut. Quinebaug Bank v. Leavens, 2 Conn. R. 87.
In the two first cited "cases it does not appear that theré was any affidavit even by the prisoners to show that they were ignorant of the causes of challenge to the jurors, at the time they were sworn; and in the absence of such evidence, the court, I think, very properly held that the prisoners had waived their privilege.
In the case of Gillespie & others v. The State, there was an affidavit of the prisoner of his want of knowledge; but I infer, from some remarks of the judge who delivered the opinion of the court, that it was not supported by other evidence, and that little or no credit was given to it. And in the case of Barlow v. The State, the evidence, instead of showing that the prisoner was ignorant of the fact that two of the jurors had been on the grand jury who found the bill, proved that he had previously known it. The court said, “ The defendant does not deny the previous knowledge, but states in his affidavit that he did not recollect the circumstance when the petit jury was impanneled, nor did it occur to him until after the verdict had been returned. The counsel of the defeii*694dant knew nothing of the fact until after the verdict had ^een given.”—“ The defendant had once known these men were on the grand jury. The statement 0f jjjs no£ recollecting it is insufficient: An affidavit to that effect could never be disproved. This . part of the case then presents the question whether the objection, known to the defendant at the time of impanneling the jury, but not made till after the verdict, was good on a motion for a new trial. We think it was not. It was a good cause of challenge; but being known to the party and not mentioned at the proper time, the right was waived.”
This case is, I think, no authority for the proposition that a motion for a new trial may be refused when founded on proof that there was good cause of challenge to a juror which was-unknown to the prisoner before the trial. On the contrary, the inference to be drawn from the opinion is strong, that if the court had been satisfied that the prisoner did not know of the fact that two of the jury had been of the grand jury who found the bill, until after the verdict, they would have set it aside.
And in the case of the Quinebaug Bank v. Leavens, in which the motion was founded on the fact that the father of a stockholder in the bank was one of the jurors, the report of the case does not show that there was any proof or affidavit as jbo the want of knowledge of the defendant. The court recognized the propriety of the general rule forbidding a new trial for extrinsic causes, if the ground of the petition existed at the time of the trial, and was either then known to the petitioner or might have been known by him by using due diligence. They said that the cause of objection to the juror furnished legal ground of principal challenge, if it had been made in due time; but it was of such a nature that parties might well waive it. “ But it does not appear by any averment in this motion, that *695the defendant used any diligence, or made even the ordinary enquiries of the jurors themselves or otherwise, as to their qualifications; although from the fact that a banking corporation was the plaintiff, consisting of numerous stockholders, they might well suspect either that some stockholder, or one or more of their many relatives, might be found upon the jury.” And after commenting further on the negligence of the defendant, the court come to the conclusion that it would under the circumstances be wrong to permit the defendant to take the risk of a verdict as he had done, and then to look about for objections; and that he ought to be held to have waived his objections. They say, however, “ If an enquiry had been made of the jurors, and this relationship had not been disclosed, or other reasonable pains had been taken, our opinion would have been different.”
The concluding remarks are in accordance with the views of the court in the case of Vennum v. Harwood, 1 Gilm. R. 659. In that case the verdict was set aside' on the ground that a juror had formed and expressed a decided opinion on the merits of the case adverse to the defendant, which fact was not known to the defendant or his counsel, and the juror having been asked before he was sworn, whether he had formed and expressed an opinion. The court, in concluding their opinion, observed, “ The juror, when called, was asked if he had formed or expressed an opinion, and declared emphatically that he had not. The defendant had a right to conclude from this declaration, that the juror was free from bias, and would try the case impartially. He could not challenge him for cause, and there was no apparent reason for a peremptory challenge. It is insisted, however, that he should have examined the juror on his voir dire touching his qualification. This practice is allowable, but is seldom resorted to in civil cases. We are not prepared to say that a party is to *696be charged with negligence who fails to pursue this course in order to áscertain the competency of a juror.”
In the case before us, the bill of exceptions states that the juror Flanagan was sworn and tried on his voir dire, and stated that he had not made up or expressed any opinion as to the guilt or innocence of the prisoner, and proved himself free from exceptions; and was thereupon placed upon the panel of twenty-four. It is to be observed also, that the practice here in reference to inserting the names of the grand jurors in the caption of the indictment, is different from that which formerly prevailed, and probably still prevails, in England. There it has been usual to insert the names of twelve of the grand jurors at the least in the caption: And at one time it was held to be essential, as otherwise it might be that the presentment was by a less number than twelve; - in which case it would not be good. In later cases, however, it has been decided that the insertion of their names is not necessary. Wharton’s Am. Cr.' Law 102, 103. According to our practice, and as is the case with the indictment before us, the names of none of the grand jurors are mentioned in the indictment: And there is, therefore, nothing apparent on the indictment to show who the jurors are, except the foreman, who writes on the back of it a true bill, and subscribes his name. There was, therefore, nothing to point to any cause of exception to the juror; nothing to awaken the suspicion of the prisoner that there was any ground of challenge against him. On the contrary, he had resorted to the precaution of examining the juror on his voir dire, and the examination had resulted in showing that he was free from exception. If he had failed to use this precaution, and had consented to the juror’s being placed on the panel of twenty-four without instituting any enquiry into his qualifications, there might be some ground for imputing to him a want of *697diligence. But in the case as it stands, what ground is there for saying that the prisoner was not acting in" good faith? Where are the evidences of that gross neglect on which the law is to build the presumption of a waiver of his rights ? There is an entire absence of any proof to lead us to believe or even suspect that the prisoner in fact knew of the exception to the juror before he was sworn; and the prompt manner in which he brought it to the notice of the court after he was informed of it by the jailor, is not only a strong circumstance in aid of the statement in his affidavit that he did not know it when the jury was sworn and impanneled, but serves, together with the other evidence apparent on the face of the transaction, to dispel any belief or suspicion that the object of the motion was to create difficulties or throw obstacles in the way of the proceedings.
If, therefore, the first cases cited by the attorney general, stood alone and unexplained, I should still feel great hesitation in recognizing them as authority for a ruling adverse to the prisoner in a state of facts such as we have here. But such is not the case. On the contrary, precedents are not wanting of new trials granted for like exceptions under circumstances certainly not more favorable to the petitioner than those disclosed here. Thus, in the case of Herndon v. Bradshaw, 4 Bibb’s R. 45, a new trial was granted on the ground that one of the jury who rendered the verdict had served on a former trial of the cause. The grounds of their judgment are thus briefly stated by the court: “There is no doubt but what the juror was incompetent, and might have been challenged before he was sworn; and as that cause was not known to the attorney of Herndon until after the finding of the verdict, (Herndon himself not being present,) it furnished a good cause for a new trial. The court, *698therefore, upon the affidavit of the attorney proving the discovery, should have awarded a new trial.”
So in the case of Page v. The Contoocook Valley Railroad, 1 Foster’s R. 438, a new trial was granted on the ground that one of the jury was discovered after the verdict to be a stockholder in another railroad, which by a contract with the Valley railroad, was interested in the revenues of the latter. The court, after setting out the facts,-conclude by saying, “As this objection was not known to the appellant until after the verdict was returned, it was not waived by proceeding to trial without challenge.”
The cases of Commonwealth v. Jones, 1 Leigh 598; Heath v. Same, 1 Rob. R. 735; Commonwealth v. Hailstock, 2 Gratt. 564, and Curran v. Same, 7 Gratt. 619, cited by the attorney general, decide nothing, I think, in conflict with the claims of the prisoner.
In all of these cases, the applications for new trials, were founded upon the alleged discovery, after verdict, of improper bias in the jurors, which the prisoners endeavored to show existed, but was unknown to them, before the trial. In all of them it is true the applications were unsuccessful. But in none of them do the-General court concede the coexistence of the two elements of improper bias in the juror and blameless ignorance of it on the part of the prisoner.
The doctrine to be gathered from those decisions- and others of the same class, preceding them, I think substantially is, that when the prisoner excepts to a juror for cause before he is sworn, it is a matter of right to be adjudged by the court; when he excepts after trial for cause existing before the juror was elected and sworn, it is a matter addressed to the discretion of the court; and that in the exercise of this discretion the court ought to consider the whole case, and be satisfied that justice has been done; and that where there is conflict of testimony as to the language *699and conduct of the jurors, on which the exception to the jurors is founded, it properly belongs to the judge who presided at the trial to weigh and to decide upon the credibility of the opposing statements of the witnesses and jurors, and to decide, upon all the circumstances of the case, whether there is such proof of peijury and corruption on the part of the jurors as to make it proper to grant a new trial.
But there is certainly nothing in these decisions, nor as I understand their opinions, in the reasoning of the judges, going to the extent of holding that a new trial ought to be refused when the court is fully satisfied that the juror is incompetent from having prejudged the case, that the cause of challenge was unknown to the prisoner, and that he was guilty of no laches in failing to discover it and make it known before the trial, merely because the judge who sat at the trial was satisfied that the verdict was in conformity with the evidence. So to decide would be to attach to a faultless ignorance of the facts on which his right depended, all the consequences of a conscious and deliberate waiver by the prisoner of such right, and to allow to the finding of incompetent, prejudiced, and even corrupt jurors, all the virtue and efficacy which belong to the verdict of men, true, lawful and above all exception. Such a doctrine would, it seems to me, be at war with the" merciful spirit which governs the administration of criminal law, and is in direct conflict with the whole current of decisions in this country. McKinley v. Smith, Hardin’s R. 167; Jeffries v. Randall, 14 Mass. R. 205; United States v. Fries, 3 Dall. R. 515; State v. Hopkins, 1 Bay’s S. Car. R. 373; Hardy v. Sprowle, 32 Maine R. 310; Briggs v. Georgia, 15 Verm. R. 61; Commonwealth v. Flannagan, 7 Watts & Serg. 68; Sellers v. The People, 3 Scamm. R. 412; Cody v. State, 3 How. R. 27 ; Lisle v. The State, 6 Missouri R. 426; Tenney v. Evans, 13 *700New Hamp. R. 462; Troxdale v. The State, 9 Humph. R. 411; Monroe v. The State, 5 Georgia R. 142.
In the case last cited, the decisions are very fully reviewed, and the doctrine thoroughly and ably discussed ;. and the result announced is, that where the objection to - the juror would be good cause of challenge for favor if discovered in time, it will be ground for a new trial if not found out till after verdict. It is- obvious, however, that the application of the prisoner is presented under circumstances far more favorable to him than it would have been if his exceptions to the juror had been taken for the first time, after the verdict. Any degree of negligence may, with very slight aid from other circumstances, be sufficient to ripen and confirm into a judicial belief, that suspicion of- unfairness which naturally and justly attaches itself to the conduct of one who, having taken the chances of a trial, seeks to rid himself of an adverse verdict, on the score of objections to his triers existing before they were chosen and sworn. It is difficult, however, to find any foundation in justice for a rule which would impart to the mere swearing of the jury the effect of destroying all those presumptions of innocence which, hitherto, the law allowed to the situation of the prisoner; which, thenceforth, before any evidence of guilt is exhibited, before a witness in the cause is examined, would subject his statements, motives and conduct to all the distrust incident to the position of one against whom a verdict of guilty has been rendered; and which would treat his exceptions to jurors, founded on allegations of recently discovered incompetency, as the suggestions of conscious guilt, bad faith and corrupt scheming.
We shall, I think, find accordingly, that the principles to be deduced from the modern decisions justify an indulgence to motions to set aside jurors after they are sworn and before they have rendered a verdict, *701which would not be allowed to applications for new trials founded on exceptions to jurors, taken after verdict.
With the exception of some early cases, which will be noticed presently, I have been able to find but two cases in England in which questions of the like character with the one under consideration have alisen. The Queen v. Wardle, 41 Eng. C. L. R. 351, and The Same v. Sullivan and others, 35 Eng. C. L. R. 539. In the former, which was a trial for felony, after the jury were sworn without any challenge or objection of any kind, and after one witness had been examined, the foreman of the jury brought to the notice of the court the fact that the prisoner had a relation on the jury; whereupon, it was moved by the prosecution that the jury should be discharged without giving any verdict, and a new jury called and sworn. Mr. Justice Erskine, before whom the trial was conducted, having conferred with Tindal, Ch. J. briefly said—“ I have conferred with the lord chief justice, and we are of opinion that I have no power to discharge the jury, and that the case must proceed.”
In the latter case, which was an indictment for conspiracy, tried before Lord Denman, Ch. J., after the jury were sworn and the case partly opened, the foreman of the jury stated that he had been on the grand jury which found the bill; and thereupon the counsel for the prosecution offered to consent to withdraw the juror and let the trial proceed with eleven; but the defendants not consenting, the case went on before the jury as at first composed, and the defendants were convicted: And they then moved for a new trial. In the course of the argument, the chief justice said that he was not disposed to say “ whether the challenge if taken would have been available or not: but at any rate, the objection should have been stated at the proper time. If it had been mentioned *702before the trial, all of us probably would have agreed to exclude the juryman.” After a consultation, he delivered a brief opinion, in which he observed, “ We think that the objection should have been taken by way of challenge. The defendants here did not challenge ; and when the objection was pointed out, and it was proposed that the juror should withdraw, they .declined assenting to that course, and preferred to stand upon the strict law:” And the rule to set aside the verdict on the ground of a mistrial was denied. As the comments upon the earlier cases, before alluded to, contained in an opinion to be cited hereafter, apply also in some respects to these two cases, it is more convenient to defer any remark upon them till that opinion is cited.
In this country we have also but few opinions on this subject.
In Ward v. The State, 1 Humph. R. 253, decided by the Supreme court of Tennessee, after the jury were sworn and impanneled, but before any witnesses were examined, it was discovered that several of the jury were not freeholders; and on the motion of the attorney general, he was permitted to challenge the jurors on account of their disability. They were set aside against the consent of the prisoner, and others were substituted in their place, and the prisoner convicted: And it was held that the prisoner was thereby discharged. The court said that after the jury were sworn, it was too late to challenge any of its members propter defectum; that a jury could not be discharged after they were sworn and charged; that the word “charged” did not mean after the jury were sworn and had heard the testimony, or a part of it, but after the prisoner had been placed in the hands of the jury for trial; and that the discharge of the jury after they were sworn and so charged, against the consent of the prisoner, operated his discharge.
*703In the case of The People v. Damon, 13 Wend. R. 351, on a trial for murder, after the fourth juror had been sworn in chief and taken his seat, the district attorney enquired of him whether he had conscientious scruples against finding a verdict of guilty for an of-fence punishable with death. The counsel for the prisoner objected, that the enquiry was too late; that after the juror was sworn in chief, he could not be objected to. The court overruled the objection, and on the juror’s stating that he belonged to a religious denomination who had scruples of conscience against finding a verdict of guilty in a case punishable with death, and that he had such scruples, he was set aside by the court.
In the course of a very able opinion delivered by Chief Justice Savage, in which the whole court concurred, he observed, “ The regular practice is, to challenge jurors as they come to the book to be sworn and before they are sworn; but I apprehend this is a matter of practice, and may be departed from' in. the discretion of the court. The object is to give the prisoner a fair trial; and if it be made to appear, even after a juror is sworn, that he is wholly incompetent by reason of having prejudged the case, it is not then too late to set him aside and call another. It is indeed laid down in the old books that it cannot be done. Hawkins says a juror cannot be challenged after he has been sworn, unless for some cause which happened after he was sworn, (according to the greater number of authorities,) and cites the year books.” 4 Hawkins 387, ch. 43. In TyndaPs Case, Cro. Car. 291, the prisoner challenged the foreman of the jury, but he was sworn by the clerk before the challenge was heard by the court; and therefore, without the assent of the attorney general, then present, they would not alter the record; and because the attorney general would not consent to alter the record, the challenge *704was disallowed.- In Wharton’s Case, Yelv. R. 24, upon arraignment of the prisoner for murder, on the day eleven jurors appeared and were sworn; one wag cilanenged, and for that time the trial was stayed, ^Pon a ta^es taken at another day, when the jury appeared, one of the jurors who had been sworn was challenged for cause which existed before he was sworn. Upon a doubt arising among the judges of the King’s bench, Yelverton went into the Common pleas to know their opinion. The opinion was that the queen could not have the challenge after the juror had been sworn. Another matter of doubt was whether those already sworn should not be sworn over again; and the court held that they must be sworn again. The jury acquitted the prisoner. “Wherefore, (says the reporter) Popham, Crawly and Fenner fuenvnt valde irati; and all the jurors were committed and fined and bound to their good behavior.” In the first of these cases, the reason given for the decision of the court is not one calculated to give us very elevated notions of the criminal justice in the reign of Charles I. Because the attorney general would not consent to alter the record, by striking out the name of one juror and inserting another, therefore an incompetent juror must serve. In the second, an incompetent juror was permitted to sit, because the attorney general was not aware, until sworn, of his relation to one of the prisoners; and this, although they admitted that the oath administered was of no effect, by directing him to be sworn a second time. The verdict was such as should have been expected, and, it would seem, ought not to have called down on the whole jury the signal vengeance of the court. It must have been a clear case of guilt; and because the court would not exercise a proper discretion in setting aside an incompetent juror, before the jury was completed or the trial was commenced, they found them*705selves called upon to punish the whole jury, who probably were led astray by the improper person who was permitted to be one of their number. Hawkins intimates there are authorities the other way; but I apprehend no authority can be necessary to sustain the proposition, “ that the court may and should in its discretion set aside all persons who are incompetent jurors at any time before evidence is given.”
On the trial of the celebrated Titus Oates, a state of things occurred during the swearing and impanneling of the jury, very similar to that which existed in Tyndal’s case. After some of the jury were sworn, the prisoner challenged one of them because he had been on the grand jury, and stated that he intended to have challenged him before he was sworn, but that the clerk had proceeded with such haste as to prevent his doing so. The court replied that he was too late, as the juror was sworn; but the attorney general seeing the palpable unfairness of the proceeding, waived the difficulty, and permitted the juror to be set aside. 10 St. Trials 108.
The objections to the ruling in the cases of Tyndal and Wharton, presented in the .opinion of the Supreme court of New York just cited, seem to me to be very just and proper; and I can see no good reason for denying, in this state, the right and duty of the court to set aside jurors on the score of exceptions propter affectum, taken either by the prosecution or the prisoner at any time before the examination of the witnesses has commenced. For in Martin's Case, 2 Leigh 745, the General court held, (citing Coke, Foster and Blackstone,) that the separation or discharge of a jury after the swearing and impanneling but before the examining of witnesses, is no ground of objection to a verdict; thus denying the authority of Ward v. The State. The same doctrine was reasserted by the court in Tooel's Case, 11 Leigh 714. And such I *706understand is still the rule in England. Roscoe’s Cr. Evi. 222.
In this state of the law, the denial by ’the court in the case of The Queen v. Wardle, of its power to set aside the juror, it will be perceived can have no application in this case, inasmuch as in this case the motion was made by the prisoner and before any witness had been called, and in that it was made by the prosecutor and after a part of the evidence had been given in. And I think it obvious from the remarks which fell from Chief Justice Denman, during the argument of the motion in the case of The Queen v. Sullivan, as well as from the grounds set forth in the opinion of the court, in rendering judgment on the motion, that if the prisoners there, instead of objecting to, had concurred in, the motion of the attorney general to set the juror aside, or had themselves asked that the juror should be set aside on his disclosing the fact that he was of the grand jury that found the bill, the court would have found no difficulty in setting aside the juror. In that case it will be recollected no witnesses had been examined.
So that, it seems to me, a review of the English precedents furnishes no ground for supposing that, in the existing state of the law in England, with respect to the discharge of juries, English judges would now deny their power to set aside a juror at the instance of a prisoner, at any time before the examination of the witnesses had commenced.
And indeed I can see no reasons, other than those suggested by convenience, which would deny to the court the right to set aside a juror, on the motion or by the consent of the prisoner, at any time before the verdict is rendered. It is true that at one time it was held, on the authority of a decision reported in a note to the case of Chedwick v. Hughes, Carth. R. 465, that in criminal cases a juror cannot be withdrawn but by *707consent; and in capital cases, not even with consent. This doctrine, if it ever had any general prevalence, has been long since. exploded; and I presume there can be no doubt now, that a motion of a prisoner to set aside a verdict or to be discharged, on the ground of a discharge of the jury, brought about by his motion or with his consent, would be promptly denied. Waterman’s Archbold 172, and notes.
And in Illinois, where they have a statute giving to the court the power, when a juror, after being sworn, is for any reasonable cause dismissed or discharged, to cause another to be sworn in his stead, the practice prevails of setting aside jurors on the.motion of the commonwealth and against the consent of the prisoner, even after witnesses have been examined. Stone v. The People, 2 Scamm. R. 326. In that case, it was discovered, after the jury had been sworn and impanneled and a part of the witnesses examined, that one of the jury was an alien. And he was, on the motion of the prosecutor and against the consent of the prisoner, discharged, and a new juror was sworn in his place; and it was held that there was no cause for setting aside the verdict. And in the case of Thomas v. Leonard, 4 Scamm. R. 556, the same rule is applied to civil cases, and the broad doctrine announced, that in all cases a court has a discretion, whenever it comes to its knowledge that a juror has been inadvertently sworn who cannot render a legal verdict, to discharge him.
We have a statute somewhat similar in its provisions to the Illinois statute. The 12th section of chapter 208 of the Code provides that if a juror, after he is sworn, be unable from any cause to perform his duty, the .court may, in its discretion, cause another qualified juror to be sworn in his place. And in any criminal case the court may discharge the jury when it appears they cannot agree in a verdict, or that there is a mani*708fest necessity for such discharge. Whether the incompetency of a juror, from having prejudged the case, discovered before verdict, would be regarded by our courts as an inability to perform his duty, and as presenting a necessity for his discharge, in the contemplation of the statute, it is not necessary to consider. Whatever may be the proper interpretation of the statute in this regard, it is obvious that it does not expressly or by implication narrow the powers of the court, or in any wise abridge any discretion before existing, to set aside jurors. Nor do I think that the power of "the court in this regard is affected by the provision of the 10th section of chapter 108 of the Code, requiring the twelve selected by lot to constitute the jury.
Without entering, therefore, into a consideration of the circumstances under which the discharge of a jury at the instance of the prosecution and without the consent of the prisoner would or would not result in a discharge of the prisoner, I have come to the conclusion that with us the courts have the right, in their discretion, to set aside jurors, on the score of incompetency, propter affectum, discovered after they are sworn, on the motion or with the consent of the prisoner, at any time before verdict rendered; and at the instance of the commonwealth, for like cause at any time, when the discharge of the jury without the consent of the prisoner would not result in a discharge of the latter.
It remains to be considered whether the court ought, in the exercise of its discretion, to have set aside the juror Flanagan under the circumstances disclosed in the prisoner’s first bill of exceptions.
I have already expressed the opinion that there was nothing in the conduct of the prisoner from which to infer a waiver of his rights; nothing in his own statements, or in those of his witness, to justify doubt as *709to their truth. He acted promptly on the information communicated to him by Dawson, and pursued exactly that course which is recommended to persons in his situation, by the court in the case of McCorkle v. Binns, 5 Binn. R. 340. That was an application for a new trial, founded on the discovery of objections to a juror after the trial had commenced, but before the verdict. The court said that the defendant, in order to entitle himself to the benefit of the objection, should have disclosed the information promptly to the court. He ought not to have taken the chance of a verdict in his favor, and kept his motion for a new trial in reserve, because the plaintiff and defendant were then placed on an unequal footing. “I mention this (said the judge) for the direction of those who may happen to be in like circumstances in future.” The inference is irresistible, that had the defendant acted there as the prisoner has here, he would have obtained relief.
The only circumstance calculated to excite suspicion that the prisoner contemplated some object other than that which was the ostensible one of his motion, is to be found in the answer given by his counsel to the enquiry of the court, how the place of Flanagan should be supplied, or if he was discharged from the jury, what should or could be done; the answer which was given being that the commonwealth had had a grand jury, and now a petit jury, and must remove the difficulty. It certainly would have been more courteous to the judge; it would have stripped the application of the slightest appearance of any wish on the part of the prisoner or his counsel to embarrass the proceedings, if the counsel, instead of replying as he did, had proceeded to point out the mode by which the difficulty suggested by the question of the court might be obviated. But it is difficult to conceive on what principle the prisoner’s rights could be compromited by such a conversation. Having brought to the notice of *710the court the facts upon which he supposed his rights to depend, and having founded a motion on those facts, I cannot see that it was the duty of the prisoner or his counsel to do any thing more, or how we should be justified in imputing to a failure to do more the motive to gain some ulterior and unfair advantage. The answer, fairly interpreted, is, “ I have submitted my rights to the court; it is for the court and not for me to pronounce the judgment of the law upon them, and to consider what may be the legal consequences flowing from such judgment.” But even if we infer, from the course ,of the jirisoner’s counsel, that he entertained some hope or expectation that the granting of his own motion by the court might result in something to his advantage besides simply procuring the substitution of another juror in the place of Flanagan, still his declining to point out a mode of obviating any supposed difficulty could not have the effect of withdrawing or altering the nature of his motion, which was plain and unambiguous. If his motion had been simply to set aside the juror, the question might have arisen whether granting it as asked might not result in the necessity of going anew through the process of forming an entire jury; and in such case, and in order to obviate the inconvenience and delay consequent on granting the motion, it might have been proper in the court, as eleven of the jury remained free from exception, to have placed the prisoner on the terms of consenting that another qualified juror should be sworn, and that he with the eleven others should proóeed to try the case. But the motion, as has been seen, was not simply to set aside Flanagan, but also to do exactly what we have just supposed the court might have required the prisoner to consent to, to wit, to substitute another juror in the place of the one to be set aside. Such being the motion, the case of Tooel, already cited, furnished a pre*711cedent for the course to be pursued by the court. The swearing of another qualified juror in the place of Flanagan could not have been made a ground either for a discharge of the prisoner or a new trial.
There remains yet another enquiry, and that is, whether the objection to the juror was removed by his statements made on his second examination on the voir dire.
I think it questionable at the least, whether the juror ought to have been subjected to such a test. Where the objection to the juror is founded on the proofs of favor deduced from statements alleged to have been made by him, his denial or explanation of such statements may and often does serve to satisfy the mind of the court of his indifferency. But when, as here, the law attaches a presumption of bias or favor to the fact of the juror’s having been on a former jury, it is difficult to conceive of any statement by which that presumption can be wholly removed. For if the juror on his examination should state the only fact that could well wholly disprove the formation of opinions or impressions unfavorable to the prisoner, from the evidence given before the grand jury, to wit, that the indictment was found and returned by twelve of the grand jury, against his opinion and consent, he would at once show himself liable to exception on the .part of the prosecution, having already adjudged the prisoner not guilty on the ex parte showing of the prosecution, and without any aid from the prisoner’s testimony. And even upon the concession that it was allowable to examine the juror on trying the exception to him, I should doubt whether his statements, of having paid little attention to the testimony, and of being governed by what the jurors said as well as what was testified to by the witnesses, accompanied by the disclaimer of having formed or expressed any opinion as to the guilt or innocence of the accused, *712were such as ought in any case to he received as a sufficient answer to the presumption which the law attaches to his position. For of so serious a character is the exception to a petit juror, on the ground of his having been one of the grand jury who found the bill, that according to Lord Hale, it is an offense punishable by fine for a man who was one of the indictors, and who was returned as one of the petit jury, not to challenge himself. 2 Hale PL C. 309. And when I look to the whole conduct of the juror, it seems to me that there are peculiar circumstances in his case rendering him not only liable to the challenge of the prisoner, but also exposes him to the just censure of the court.
On his second examination he discloses the fact that before he was summoned as a petit juror he had in a conversation with Dawson told him that the sheriff had informed him (the juror) that he anticipated difficulty in getting a jury, who had not made up or expressed an opinion; and that he had also said to Dawson that he did not expect to be summoned, as he was on the grand jury. It appears that he served on the grand jury on the 19th of September; and yet on the 26th of the same month, only one week thereafter, when called as a petit juror in the case, notwithstanding his recent conversation with Dawson and the brief interval which had elapsed since he acted as a grand juror in the case, he failed upon his voir dire to disclose the fact that he had been on the grand jury, and proved himself free from exception. And upon his second examination he still failed to assign any reason or give any explanation why he had not made known the fact of his being one of the grand jurors; but opposes to the inference of his having prejudged the case which the law deduces from the capacity in which he had acted, a denial of having formed any opinion, and places his freedom from such opinion to the ac*713count of his having discharged his duties as a grand juror in a loose, imperfect and careless manner. I cannot, in this state of things, say that the legal presumptions against his fitness and competency have been removed. Whatever may have been his motive, I cannot say that he appears free from all exception. I hold with the learned judge who delivered the opinion of the court in Clarke v. Goode, 6 J. J. Marsh. R. 37, that “ It is not only important that justice should be impartially administered, but where it can be effected without the violation of any rule of propriety, that it should flow through channels as clear from suspicion as possible.” I cannot recognize the justice or propriety of a rule which would force a prisoner against his consent to enter upon the hazard of a trial, by a juror, standing in the predicament in which the juror Flanagan is presented by the record of this case. And I think the prisoner is entitled to a new trial.
Allen, P. and Samuels, J. concurred in the opinion of Daniel, J.
Moncure and Lee, Js. dissented.
Judgment reversed, and new trial awarded. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481559/ | Allen, P.
These five cases present substantially the same question, and were argued and may be considered together. They were presentments found against the several plaintiffs in error for selling ardent spirits to different slaves of John H. Johnson, without the written consent of the master. The parties having appeared and pleaded not guilty, the court proceeded to hear and determine the cases without a jury, and rendered judgment in each case for twenty dollars, *715the fine imposed by law, and the costs of prosecution. From the certificate of facts in each case, it appeared that the commonwealth proved the sale of the ardent spirits, as charged in the presentment; and thereupon the plaintiffs in error in their defense produced a writing, proved to have been executed and delivered to them by the owner of the slaves, authorizing them to sell to his slaves, or any of them, merchandise or liquor, upon the responsibility of the slaves purchasing. The sale in each instance was made some months after the date of the writing; and the only question is, whether the master could give such a general authority to sell to his slaves, so as to protect the seller from the penalties of the law.
The prosecutions were founded on the Code, ch. 104, § 1, p. 459, which provides, that if any person sell wine, &c. to a slave without the written consent of his master, he shall forfeit to his master four times the value of the thing sold, and also pay a fine of twenty dollars. There is nothing in the terms of the act which requires a special written consent for each act of selling. The law, though intended to guard the interests of the public, did so through the interests of the owner. He is the party most interested in preventing his slaves from purchasing ardent spirits, or dealing in other articles with third persons; for he is the party most likely to be injured by such acts. When therefore he gives his written consent, whether general or limited, the requisitions of the law would seem to be satisfied, even if no other forfeiture than the fine to the commonwealth were incurred. But the act, in addition to the fine to the commonwealth, subjects the offender to a forfeiture to the master of four times the value of the thing sold. The written consent was given in such general form to relieve the owner from the trouble of giving such consent in writing for every purchase or sale provided for in the *716first and second sections of the law under consideration. He intended it as a consent to any sale as long as the authority was unrevoked, and could not be injured by the seller doing what he had expressly permitted. But unless the selling was such a violation of Ms rights as master, as subjected the seller to the forfeiture to the amount of four times the value of the thing sold, no offense was committed against the public. The act complained of must subject the offender to the forfeiture as well as the fine. And if no injury is done to the owner, there is no offense against the public; for the injury to the community grows out of the improper dealing with the slave without the owner’s consent. I think that upon the facts certified* no offense was committed; and that judgment should have been rendered discharging the plaintiffs in error from the prosecution.
The other judges concurred in the opinion of Allen, P.
Judgment reversed,, and entered for the appellant. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481560/ | Lee, J.
Upon the threshold of this case we are met with the objection that the bill of exceptions taken to the opinion of the court overruling the motion for a new trial, contains only a statement of the evidence given on the trial of the cause, and not a certificate of the facts proved : And the question presents itself, whether the rules by which this court is governed when reviewing the action of a Circuit court in granting or refusing a motion for a new trial in a civil cause, apply also in criminal cases; and if they do, we have then to determine the true character of the certificate contained in the bill of exceptions, and the manner in which the same must be considered in the present case.
*723The rule propounded by this court in Bennett v. Hardaway, 6 Munf. 125, was that a bill of exceptions to a decision of the court below upon a motion for a new trial, should not set out all the evidence given upon the trial of the cause; but should state the facts which appeared to the court to have been proved by the evidence. The principle which lies at the foundation of the rule is, that as it is the function of this court to pass upon the very case which was before the court below, and with the same lights and the same materials by which to form its judgment, it cannot have that case and those lights and materials if it should be called upon to pass on the weight of testimony and the credibility of witnesses. The court below has the witnesses before it, and can observe their manner and demeanor in giving their testimony. This court only sees their testimony on paper, and has not the same means of judging of the weight due to it, and of the credibility of the witnesses. Hence an exception taken on such an occasion should not be so framed as to cast upon this court the duty of judging as to the credibility of the witnesses or the weight due to their testimony. And it would seem that the reason for the rule applies in all its force in criminal cases. In these, this court can no better nor more successfully perform the task of weighing testimony than it can in civil cases. Its inability to determine the credibility of witnesses must be the same in both.
Looking, then, to the bill of exceptions, it would seem from its form to be somewhat uncertain whether it was intended by the judge to be a certificate of the facts proved, or merely a statement of the evidence on both sides. The names of the witnesses are all given, excepting those who were called to prove the habits and general deportment of the prisoner, and the deceased ; and each witness is stated to have “ proved” what is there narrated. But the exception concludes *724thus : “ And this being the testimony in the case, the jury found, &c.” The mere form of the certificate in a bill of exceptions may, it is true, be extremely fallacious, for it may profess to state the facts proved, and yet in effect amount only to a mere statement of the evidence. Such was the certificate in the case of Jackson’s adm’r v. Henderson, 3 Leigh 196. And in any case, as correctly stated by Judge Baldwin, in Patterson v. Ford, 2 Gratt. 18, 33, whether a judge means to certify the testimony of a witness or the facts which he proves in the shape of evidence, is a matter that depends more on the substance than the form of the bill of exceptions. If we examine, then, the statement which follows the name of each witness as given, we will find that it is a mere narrative of his testimony as given in by him at the time. In some instances, two or more of the witnesses speak as to the same circumstances, but do not state them precisely in the same way. Thus the witness Pennington and the witnesses Clarke and Moremus are not agreed as to whether the deceased accused the prisoner of putting the card under the table before or after the'prisoner claimed the five dollars of the deceased. Pennington says that the prisoner claimed the five dollars, and that the deceased then discovered the card under the table, and accused the prisoner of putting it there; while Clarke and Moi’emus testify that the deceased discovered the card under the table, and accused the prisoner of putting it there, before any thing was said by the prisoner about the five dollars. So in regard to the material fact, whether the blows which the deceased inflicted upon the prisoner were given before or after the prisoner shot the deceased, there is much uncertainty. There is some testimony tending to show that the blows were inflicted before the shot, while the testimony of George Vaiden is that the blows were struck after the shot; and Dr. Saunders, another wit*725ness, expresses the opinion that the mark on the head of the prisoner must have been caused by a blow inflicted after the shot, because if the blow had been given by such a man as the deceased before he was shot, it must inevitably have crushed the skull. So the witnesses who depose as to what the deceased said to George Yaiden about his father when they were going away from the house, do not agree exactly as to what the deceased did say. Other discrepancies in the statements of the different witnesses might be noticed. It will be observed also, that with regard to several matters, some of the witnesses express merely the opinions they entertained at the time of the trial, without undertaking to state directly how the facts really were. Now the facts and circumstances attending the occurrence must of course all harmonize and consist; they cannot be varied according to the varying statements of the witnesses; nor can they be made to depend upon the correctness of their opinions, or the logical accuracy of their deductions. Neither is this court much better prepared to judge of the weight due to their opinions than of the credit to which their statement of facts may be entitled.
It seems to me that it is impossible to read the bill of exceptions without seeing that it is but a mere detail of the evidence (as the judge terms it himself in the concluding part of the bill of exceptions) given in by the witnesses at the trial, excepting only the proofs as to habits and deportment, and not a certificate of the facts of the case. That it is evidence liable to be impeached by the circumstances of the transaction, whether successfully or not, and which it was the peculiar province of the jury to weigh and consider, cannot be doubted. And thus, according to the test prescribed in the opinion of Judge Baldwin in Patterson v. Ford, 2 Gratt. 18, 33, the matter of it, however certified, cannot be treated as facts proved before the *726jury. In the case just referred to, the bill of exceptions was held not to have been well taken, and upon comparing it with that in the present case, it will be found (so far as parol testimony is set out) veiy nearly to resemble it in the form of statement and the manner of the certificate.
Regarding the bill of exceptions then as not well taken according to the rule of Bennett v. Hardaway, we must reject the evidence on behalf of the prisoner, and examine the case upon the evidence on the part of the commonwealth, according to the modification or explanation of the rule established by subsequent cases. Ewing v. Ewing, 2 Leigh 337 ; Green v. Ashby, 6 Leigh 135; Rohr v. Davis, 9 Leigh 30; Pasley v. English, 5 Gratt. 141. And in passing upon the case as presented by the evidence, we must be governed by the same rules, and conform to the same principles, which prevail in civil cases. In the latter, it is true the jury are to weigh the evidence and to decide according to its preponderance, while in criminal cases it has been usual for the courts to advise the jury to require clear and satisfactory proof of the guilt of the prisoner before they bring in a verdict of conviction; and if they entertain a reasonable doubt of his guilt, to give him the benefit of the doubt, and bring in a verdict of acquittal. But this is a matter for the guidance of the jury in the performance of their especial and peculiar function of responding to the questions of fact involved, and not for the government of the court before which the trial is had, in reviewing the action of the jury, and still less for that of this court in reviewing the action of that court. This court can only enquire whether the verdict is war-l-anted by the evidence before it; it certainly cannot enter upon an enquiry whether the jury should not have entertained a reasonable doubt of the guilt of the prisoner, and set aside the verdict or suffer it to *727stand, according to the supposed result of such an enquiry. In Grayson's Case, 6 Gratt. 712, 723, Judge Scott, in delivering his opinion, in which two of the three judges who sat with him expressed their entire concurrence, states it as a proposition deducible from the decisions of the General court, that motions for new trials are governed by the same rules in criminal as in civil cases. Judge Lomax, who was sitting in the case, also concurred in the judgment of the court, and in the opinion of Judge Scott, excepting that he was not prepared to admit in the unqualified manner therein expressed, an analogy between motions for new trials in civil cases and similar motions in criminal cases. He did not proceed to point out any difference between them, and all I apprehend that he meant was to intimate that it was a subject on which he had not matured his opinion, and did not deem it necessary to express any upon that occasion. I have been able to find no case in the decisions of the General court, nor has any occurred in this court, which establishes any different rule by which a motion for a new trial in a criminal ease is to be determined from that which would prevail in a civil case; nor do I think any sufficient reason can be shown for making any distinction between them in this respect.
Now, whatever may be the rule in cases where the bill of exceptions is well taken, and states the facts proved, and not the evidence merely ; whether in such case the appellate court would be influenced by the opinion of the jury and of the inferior court, or without regarding it, would proceed to judge for itself originally, and determine whether the proper inferences and conclusions were made and drawn from the facts, according to the opinion of Judge Allen in the case of Slaughter's adm'r v. Tutt, 12 Leigh 147, and as would seem to have been done in the case of Governor for Fisher v. Vanmeter, 9 Leigh 18, there can be no *728doubt that where the court has to pass upon the evidence in the cause, a new trial ought not to be granted except in a case of plain deviation or of palpable insufficiency of evidence; and not in a doubtful case, merely because the court, if on the jury, would have given a different verdict. The same reasons which led to the establishment of the rule in Bennett v. Hardaway, would apply in all their force when the court is called upon to pass upon a motion for a new trial upon the evidence against the exceptor, and would forbid its being granted except in a case of plain deviation. And this, I think, is to be deduced from the decisions of this court and the opinions of several of the judges. See Ross v. Overton, 3 Call 309 ; Brugh v. Shanks, 5 Leigh 598 ; Mays v. Callison, 6 Leigh 230 ; Brown v. Handley, 7 Leigh 119; Mahon v. Johnston, 7 Leigh 317; Slaughter's adm'r v. Tutt, 12 Leigh 147. And this has been clearly recognized as the corred rule by the General court in criminal cases. Thus, in McCune’s Case, 2 Eob. E. 771, it was held that although where the finding of the jury is clearly against the evidence, or clearly without evidence to justify it, it is the duty of the court to set the verdict aside upon the application of the prisoner, and to grant him a new trial; yet if the evidence be circumstantial, and the court before which the case was tried, has refused to grant a new trial, the verdict should not be disturbed by the appellate court, e,ven although in the opinion of that court the evidence do not amount to very clear and strong proof. And in Hill's Case, 2 Gratt. 594, McWhirt's Case, 3 Gratt. 594, and Gray-son's Case, 6 Gratt. 712, it is declared that a new trial should not be granted merely because the court, if upon the jury, would have given a different verdict; but that to justify the granting of a new trial, the evidence should be plainly insufficient to warrant the finding of the jury. In Grayson's Case, 7 Gratt. 613, *729there’had been two trials and two convictions; and the court said that if in their opinion the evidence made even a probable case of guilt, they would be unwilling to disturb the verdict; but being of opinion that the testimony was not only not sufficient to prove the guilt of the accused, but that it was hardly sufficient to raise a suspicion against him, a new trial was awarded.
According to these views then, this case resolves itself into an enquiry whether, looking to the evidence on the part of the commonwealth, it is found to be plainly insufficient to warrant the finding of the jury; for if not so plainly insufficient, we will not be justified in granting a new trial even if we should think that, had we been upon the jury, we might have found a different verdict.
The fact of the homicide by the prisoner is not controverted, and the jury by their verdict have ignored the malice which is necessary to constitute murder, and have convicted the prisoner of manslaughter. But it is urged on his behalf that the killing was clearly in self-defense, and that upon that ground he should have been wholly acquitted.
When a man is assaulted in the course of a sudden brawl or quarrel, he may in some cases protect himself by slaying the person who assaults him, and excuse himself on the ground of self-defense. Before a party thus assaulted, however, can kill his adversary, he must have retreated as far as he safely could to avoid the assault, until his further going back was prevented by some impediment, or as far as the fierceness of the assault permitted. He must show to the jury that the defense was necessary to protect his own life, or to protect himself against grievous bodily harm. 4 Black. Comm. 184; 1 Hale P. C. 481 et seq.; 1 Buss, on Cr. 661. And with regard to the necessity that will justify the slaying of another *730in self-defence, it should seem that the party should not have wrongfully occasioned the necessity; for a man shall not in any case justify the killing of another by a pretense of necessity, unless he were without fault in bringing that necessity upon himself. 1 Hawk. P. O. ch. 10, § 22, p. 82; 1 Russ, on Cr. 669; 1 Hale P. C. 405.
JSTow, it appears that on the night in question the deceased was at the house of the prisoner, whei’e a marriage was expected to take place; and he and the prisoner were drinking and playing cards together. An altercation took place between them, growing out of the deceased charging the prisoner with cheating. The wife of the prisoner then took hold of the deceased and reminded him of his promise to have no “fuss” there. The deceased assented, immediately bade “ good night,” and went out into the yard. There he remained, however, some five minutes, apparently enraged, cursing and talking loudly. While he was thus engaged, the prisoner took up his gun and walked towards the door, but was induced by his wife’s pei'suasion to set the gun down. After he went out, deceased demanded his gun, which he appears to have left behind him in the house, and it was handed to him through the door by Mrs. Vaiden. Deceased then went away on foot in company with two other persons, who rode away on horseback, and George Vaiden, son of the prisoner, went with them as far as the drawbars, some two hundred yards from the house, for the purpose of letting them through. The deceased had been in conversation with George Vaiden, and after the party went through the gap, he continued the conversation with him as they both stood together on the outside of the fence leaning against one of the panels. The night was cloudy, but the moon was at its full, and the figure of a man could be distinguished at the distance of thirty yards. The conversation be*731tween the deceased and George Yaiden was of no unfriendly character, and had changed from the events of the evening to a “ fracas” which the deceased had had at Lunenburg court-house, of which he was giving George Yaiden the particulars. While thus engaged, and when the prisoner had approached within fifteen feet of where they were standing, the deceased, according to the testimony of George Yaiden, suddenly exclaimed, “ Yonder comes the damned old rascal, and I’ll frail him now,” jumped over the fence, clubbed his gun about half way of the barrel, and rushed upon the prisoner, who told him not to approach, or he would shoot him. Deceased, however, did not stop, and the prisoner gave back one or two steps, and when the deceased got within a few feet of him, fired. The deceased then struck the prisoner two blows with the breech of his gun, and then staggered back and fell mortally wounded, and died in a short time afterwards.
Nor, it can scarcely be said that the homicide here occurred in the course of a sudden brawl or quarrel. The altercation had taken place at the house, and the deceased had gone away, to all appearances peaceably, and had got out into the main road, and here he was standing conversing quietly with George Vaiden, when the prisoner followed him out: and this must have been between twenty minutes and half an hour after the deceased had left the house; ample time certainly for the irritation of the first altercation to have subsided. Still less can it be said that the prisoner was wholly without fault in bringing the necessity of killing the deceased upon himself, if such necessity did in fact exist. After the deceased had gone away, why should the prisoner have followed him with his gun.? Why go out at all ? If it be said that the prisoner may have been afraid his son might receive some harm at the hands of deceased, the answer is, that there was *732no ground for any such apprehension. The deceased had had no altercation with the son, nor had the latter participated in that which occurred between him and the prisoner. And if it be supposed that the prisoner might have thought that possibly his son might undertake to resent the insult offered to his father by the deceased, and then be brought into a difficulty with the prisoner, in which he might need his assistance, the prisoner could not but have discovered that any such apprehension was groundless; for he must have seen when he went out, and before he was observed by the deceased, that there was no quarrel between his son and the deceased, and that they were conversing in a quiet and not unfriendly manner. He could discover them at the distance of thirty yards, and yet he advanced to within about fifteen feet of them before he was observed by the prisoner. That he went out with his gun with the expectation of an affray, cannot be doubted, and it is far more probable that his object was to provoke one than to protect his son. In fact, whilst the deceased was still in the yard, and the prisoner’s son yet in the house, the prisoner had taken up his gun and gone towards the door unquestionably with a hostile purpose towards the deceased; but had yielded to the persuasion of his wife, and set the gun down. That such must have been his purpose is still further evinced by what he said to the witness Yates on the morning after the occurrence, when he informed him that he had killed the deceased. He added, that “ there was another damned rascal in the neighborhood, who, if he didn’t look sharp, would be killed too; that the deceased was a damned dog, and ought to have been killed twenty years ago, and that some body had to do it.” And he asked the witness if he didn’t think so ? This was early in the morning, but the prisoner was sober; and it reflects a strong light upon the true character *733of the occurrences of the previous evening, and the motives and conduct of the prisoner. It tends to show that the necessity for slaying the deceased, if such necessity lay upon the prisoner, was of his own seeking, and self imposed. He made no allusion in this conversation to any peril of his life in which he was placed by the assault made upon him by the prisoner, though he did say that the prisoner had struck him two blows on the head before he shot him. The necessity which seemed at that time to be impressed upon his mind, was rather that of ridding the community of one whom although at that moment lying stiff and cold in death on the ground in a fence corner, and slain by his hand, he stigmatized as a damned dog that ought to have been killed twenty years before, than of taking his life for the purpose of avoiding imminent danger of death to himself.
Considering the whole conduct of the prisoner on the evening in question in connection with the state of feeling which he avowedly entertained towards the deceased, I think it very difficult to say that he was free from fault upon that occasion, or that his case comes within the rules which renders homicide justifiable or excusable on the ground of necessary self-defense. Hay, if the jury had gone further and found the prisoner guilty of murder, it might be a matter of grave consideration whether the verdict could have been disturbed upon the ground that there was no sufficient evidence of the malice which is necessary to constitute that crime. Certainly, I am not prepared to say that this verdict is a plain deviation from right and justice, and that the evidence is clearly insufficient to warrant it.
In conclusion, I would remark that it can scarcely be doubted the exact weight due to the testimony of George Vaiden must have been matter of serious consideration with the jury. He was the only person *734who was present at the time the homicide was com-fitted, and he was called as a witness almost as a of necessity. But he was the son of the prisoner> aQd of course under the strongest inducements to make his account of the occurrence as favorable to his father as he could; and there would seem to be some apparent discrepancy between his account of the manner in which the affray took place, and the spot at which the death wound was inflicted, and circumstances proved by himself and others. It is certainly true as a general rule, that a party is not permitted to impugn the credibility of a witness called by himself, by general evidence showing him to be unworthy of belief. There are exceptions, however, to the rule, as in the case of a subscribing witness whom the law obliges the party to call. Whether the case where there is but a single witness present at the homicide, and who is therefore called on behalf of the commonwealth in a prosecution for murder, should constitute another exception, as argued by the attorney general, I undertake to express no opinion. But in any case, the party calling a witness may give evidence in direct contradiction of what he has testified; and not only where the witness was innocently mistaken, but even where the evidence may have the effect collaterally of showing that he was unworthy of belief. 1 Greenl. Ev. § 443, and cases cited in the note. I forbear, however, to dwell upon this point, because in the view I have already taken, the result must be unfavorable to the prisoner; and it is therefore unnecessary to determine whether there is not such necessity for passing on the weight due to the testimony of the witness George Yaiden, as would according to the rule preclude the court from undertaking to review the action of the jury and of the court below.
I think no sufficient reason is shown for disturbing *735the verdict of the jury, and am of opinion to affirm the judgment.
Allen, P. and Moncure and Samuels, Js. concurred in the opinion of Lee, J. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481561/ | Daniel, J.
dissented. He regarded the certificate of the judge of the Circuit court as a certificate of facts; and thought that the facts proved a case of homicide in self-defense.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481562/ | Lee, J.
The only questions material to be considered in this case are those on the first second and third instructions asked for by the defendant. Eor if at the time of the execution of the deed from Terrill to Lynch or that from the latter to M. H. Garland the premises in controversy were in the actual adversary possession of those under whom the defendant claims such deed could not operate as a transfer of the legal title and as the plaintiff claims no otherwise than through these deeds, he must fail in this action. On the other hand, if at the time of these deeds or either of them, there was no such adversary possession, then any question upon the statute of limitations is out of the case j for even if the Code of 1849 did not extend the period of limitation (a question upon which I express no opinion) still to make out the bar the possession must have been adversary for at least fifteen years before the suit and must therefore have been carried back continuously embracing the period of both deeds to the 21st of December 1834: nor is it necessary to enquire whether the right of entry was tolled by descent cast from Dr. Cabell, because if so tolled, yet if the possession were afterwards surrendered, the descent cast would become immaterial, or if it were abandoned the right of entry would be restored as the law will refer the possession to him who hath the right. Clarke’s lessee v. Courtney, 5 Peters’ R. 318, 354; Taylor’s devisees v. Burnsides, 1 Gratt. 165, 191. *8Thus the duration and character of Dr. Cabell’s possession become unimportant except so far only as the latter may serve to illustrate the character of the possession of those who came in under and after him.
That Micajah Terrill was not himself in possession of the lot in controversy in the suit against Morris at the date of the decree of the 22d of October 1836 nor that of the deed from the commissioner would not of itself suffice to restrict the operation of the deed to a mere transfer of right of entry which he could not transfer to another; nor although he had not yet taken actual possession himself at the time of his conveyance to Lynch does it therefore follow that no title passed to Lynch. Another element is required to prevent those deeds from operating as transfers of the legal title. The lot must not only have been in the possession of another but that possession must have been under such circumstances and accompanied with such a claim of title as would render it adversary to Terrill. Actual possession by the grantor is not indispensable to give effect to his deed, for if the possession held by another be of a fiduciary character or if its origin and continuance were such as not to amount to a disseizin except at the election of the owner for the purposes of the remedy, it will not impede the operation of the deed. Duval v. Bibb, 3 Call 362; Tabb v. Baird, Ibid. 475; Jackson v. Todd, 2 Caines’ R. 183; Williams v. Snidow, 4 Leigh 14. As the first instruction therefore merely supposed the want of actual possession in Terrill without at all referring to the character of the possession of those by whom it was in fact held, the court may for this cause have very properly refused to give it.
The second and third instructions would seem to be unexceptionable in the statement of the rule of law which they undertook to propound, and the only ground upon which the refusal to give them is to be *9sustained is either that they presented mere abstract propositions irrelevant and immaterial because there was nothing in the evidence upon which to found the hypothetical case assumed, or that the defendant was in some way estopped or concluded from alleging the possession to have been adversary at the periods referred to. The hypothesis was of adversary possession in a party claiming under Dr. Cabell under whom also the defendant claimed both title and possession: and it was not enough that the court should have thought the evidence of the defendant insufficient to make out-such possession or that the proofs which he offered were overcome by stronger and more cogent proofs the other way. Whether adversary possession or not depends upon the fact of possession and the circumstances under which it was taken and held, especially the animus of the party holding and whether with a claim of title or without any such claim. Thus it was a matter proper for the jury and if there was any evidence tending to show possession and that it was of an adversary character not consistent with the plaintiff’s title, the instructions should not have been refused. For where there is evidence tending to make out the supposed case however inadequate in the opinion of the court or to however little weight it may be deemed entitled it is best and safest to give the instruction if it propound the law correctly. Hopkins v. Richardson, 9 Gratt. 485; Farish v. Reigle, 11 Gratt. 697, 719.
Now it would seem impossible to say there was a total want of evidence tending to make out the adversary possession supposed. There was such proof however much it may have conflicted with other evidence in the case or been overweighed by the opposing proofs of the plaintiff. It was proved that Dr. Cabell enclosed the ground in controversy by a fence which also enclosed another parcel of ground belonging to him, making of the whole an alley thirty feet wide': *10that he erected a gate leading from the street into the alley thus enclosed and another gate leading from the same into a back lot on which his mansion-house was situated: that he used the ground so enclosed as an alley and wagon and carriage way to his mansion-house lot up to the time of his death and that he occupied a small building that stood on the ground in dispute as a lodging-house for servants. It was in evidence that after his death the ground in controversy was assigned to his widow as part of her dower in his real estate and was used and enjoyed by her as such up to the time of her death in 1843: that after her death the same was allotted to Mrs. Early, then Miss Henrian Cabell a daughter of Dr. Cabell, along with the mansion-house property, as a part of her share of his estate and had been used and enjoyed by her and her tenants up to the commencement of the suit. It was also proved that the mansion-house lot was so situated and so surrounded by other lots and steep cliffs that the alley consisting of the ground in dispute and other ten feet adjoining was the only practicable way to and from it for carriages and vehicles, and that the small brick building on the disputed ground had been removed by the defendant since the suit. One of the witnesses also deposed that M. H. Garland the father of the plaintiff had on one occasion admitted that the line separating the alley of thirty feet from the residue of the lot which was the line claimed by the defendant was the true line between the lot purchased by him from John Lynch and the property belonging to the estate of Dr. Cabell. It is true there was evidence offered by the plaintiff of various acts and declarations of Dr. Cabell tending to show that his possession never was adversary to the title of the plaintiff nor so regarded by himself. The allegations of his answer and cross bill in the case of Micajah Terrill v. Morris, &c. were referred to in this connexion. But however *11persuasive this evidence may have been, still the whole evidence upon the subject was not perfectly reconcilable and it was proper the jury should weigh it decide upon the controverted fact. Certainly it cannot be said there was no evidence tending to make out the case which the defendant assumed.
But it is said Dr. Cabell was a party in the chancery suit and that the question both of title and possession must be regarded as res adjudícala under the decree of October 1836; and that even if he had never been a party, yet as he was a purchaser pendente lite, those claiming under him are concluded by that decree and thus estopped from setting up any possession as adversary to the title of the plaintiff.
It is true Dr. Cabell was made a party by an amended bill, but he died in August 1834 and his death was suggested on the record in February 1835. The case was however never revived against his heirs, so that they cannot be concluded by the decree of October 1836 upon the principle which binds those who are parties to a cause at the time a judgment or decree is pronounced and thus have had opportunity to make full defence. Nor is there anything on the face of the decree to authorize the court upon a bare inspection to hold them estopped from setting up an adversary possession even anterior to its date in a subsequent action. It does not ascertain that Dr. Cabell was a purchaser pendente lite. That question was not in issue in the cause. The amended bill contains no allegation whatever in reference to the twenty feet now in controversy. The purchase which it imputes, to Dr. Cabell was of the other ten feet not now in controversy. Nor does it make Coleman, of whom Dr. Cabell purchased the twenty feet, a party or allude to him in any manner whatever. It is true Dr. Cabell in his answer states that he purchased the lot of Coleman during the pendency of the case in the Court of *12appeals and that Coleman had derived his interest from Morris though he does not state clearly when; but there is nothing more in the whole case upon this subject. This cannot amount to an estoppel upon the question of adversary possession, in a subsequent action, upon which the court can undertake to pronounce and hold the party concluded. It was but evidence to go to the jury as the admission of Dr. Cabell to have such weight as they might deem it entitled to, in common with the other evidence offered of his acts and declarations. The decree was no adjudication of the question whether Dr. Cabell was a purchaser under such circumstances that he and those claiming under him would be bound thereby, nor could it be conclusive upon that question. It was evidence and conclusive of the fact that such a decree had been rendered, but it was not conclusive as against the heirs of Dr. Cabell who were no parties, and whose ancestor the record itself showed was dead at the time it was pronounced, that that ancestor was such a purchaser. Even as against a party a judgment or decree is held to be conclusive only upon what was brought directly in issue and not upon a matter incidentally brought into controversy. Duchess of Kingston’s Case, 20 How. St. Tr. 358, 538; 1 Phil. Ev. 321, Cow. & Hill’s n. 557 ; Arnold v. Arnold, 17 Pick. R. 4; 1 Stark. Ev. (Phil. ed. 1830,) p. 198. And as to those who are no parties though it is always evidence to prove that such judgment or decree was rendered yet it is not so as a medium of proof of ulterior facts upon which it was founded or which may be recited in the record. 1 Stark. Ev. 191 and n; 1 Gfreenh Ev. § 527, 538. Of necessity in a subsequent and separate suit against one who was no party to the previous cause, but whom it is sought to hold bound by the judgment as a purchaser pendente lite, resort must be had to proof extrinsic to the judgment that he stood in circnm*13stances which made the judgment so binding upon him. And although in the record there may be an admission or declaration in regard to the fact it is admitted in evidence against him not as a judgment conclusively establishing the fact but as a deliberate declaration or admission that the fact was so, as indeed it might be admitted for such purpose even in favor of a stranger; and it is to be treated according to the principles governing admissions to which class it properly belongs. 1 G-reenl. Ev. § 527, a. In this case it will be noticed the plaintiff introduced Robert Morris as a witness before the jury and sought to prove by him that Coleman’s authority to sell the lot was acquired and the sale made by him to Br. Cabell while the case was pending in the Court of appeals.
If the decree then was not conclusive upon its face as to the character of the previous possession, still less could it be so as to that of Mrs. Cabell’s possession after the decree under the assignment of dower. And if it even were so as to the former that could be no good reason why it should be so also as to the latter.
No aid is derived to the argument from the cross bill filed by Dr. Cabell or from the fact that the decree was in that case as well as in the original cause, both being heard together. The object of this bill was to assert the right which Dr. Cabell alleged he had acquired by purchase from Morris of his claim against the estate of Charles Terrill and the decree as to it simply provided for the payment to the administrator of Dr. Cabell of the amount agreed to be due. But the heirs were not parties in this cross suit and there is nothing in it to estop them upon the question of adversary possession. .The allegations of the bill, like those of the answer in the original suit, would of course be evidence against them, but they belong to the class of admissions not to that of judgments and decrees by which the fact is conclusively established.
*14Upon the question of adversary possession as presented by the second and third instructions, I think it should have been left to the jury to weigh the evidence and draw from it the proper conclusion. Undoubtedly the court might instruct the jury as to the nature and effect of the Us pendens as it might upon any other question of law involved in the enquiry, but to withdraw the case in this form from the jury by first passing upon a question of fact and then refusing the instructions because in its opinion the evidence failed to prove the case assumed would as it seems to me necessarily involve a confusion of the boundaries separating the province of the court from that which properly belongs to the jury.
What has been said disposes of the fourth fifth and sixth instructions, also. The seventh was given by the court but the eighth appears to have passed sub silentio. The failure to give it has however not been assigned as error, nor do I perceive in what view it could be with success. But for the refusal of the court to give the second and third instructions, I am of opinion to reverse the judgment and remand the cause for a new trial.
Daniel and Samuels, Js. concurred in the opinion of Lee, J.
Allen, P. and Moncure, J. dissented. They thought that Cabell was a pendente lite purchaser, and that his possession of the lot was not adverse, but permissive.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481563/ | Daniel, J.
The first question which we have to decide, is that raised and disputed in the several bills and answers, as to the effect of Tichenor’s discharge and certificate as a bankrupt. On the part of the appellees, it is charged that Tichenor “ was guilty of fraud and willful concealment of his property and rights of property,” in several particulars specified in the bills; and they insist that his discharge and certificate consequently present no bar to the recovery which they seek. Whilst he, denying all fraud and concealment, relies on the said discharge and certificate as a complete bar, and insists that though it should be made to appear that the allegations of fraud and concealment were true, there would still be no ground laid for the jurisdiction of the Circuit court.
The fourth section of the bankrupt act of 1841 declares, that “ every bankrupt who shall bona fide surrender all his property and rights of property, &c. shall be entitled to a full discharge from all his debts, to be decreed and allowed by the court which has declared him a bankrupt, and a certificate thereof granted to him accordingly, upon his petition filed for that purpose. Such certificate not, however, to be granted until after ninety days from the decree of bankruptcy,-nor until after seventy days’ notice in some public newspaper designated by such court, to all creditors who have proved their debts, and other persons in interest, to appear at a particular time and place, to show cause why such discharge and certificate shall not be granted; at which time and place any such creditors or other persons in interest may appear and contest the right of the bankrupt thereto. Provided, that in all cases where the residence of the creditor is known, a service on him personally, or by letter addressed to him at his known usual place of residence, shall be prescribed by the court, as in their discretion shall seem proper, having regard to the dis*31tance at which the creditor resides from such court. And if any such bankrupt shall be guilty of any fraud or willful concealment of his property or rights of property, or shall have preferred any of his creditors . contrary to the provisions of this act, or shall willfully omit or refuse to comply with any order or direction, of such court, or to conform to any other requisition of this act, or shall, in the proceedings under this act, admit a false or fictitious debt against his estate, he shall not be entitled to any such discharge or certificate.” If the section stopped here, there would, I think, appear strong ground for maintaining that it was the intention of the act to make the decree allowing the discharge binding, not only on the creditors who might prove their debts, but on all other persons in interest, who had an opportunity of contesting it, and conclusive as well in respect to questions of fraud or willful concealment of his property by the bankrupt, as in relation to any of the other matters which the act allows to be urged as causes for refusing the discharge. It is difficult to conceive on what principle a creditor who had proved his debt, and who had unsuccessfully contested the right of the bankrupt to a discharge, on the ground of his refusal to comply with “ some order or direction of the court,” could be heard to dispute the validity of the discharge on the same ground in another forum. And I do not perceive how a creditor, who is served with notice of the proceedings, but declines to make any objection, stands on higher ground in this regard. And if this be so, there is, in this portion of the section, nothing which reserves to amj of the creditors a right to impeach the discharge, after it is obtained, for “fraud or willful concealment.” All the creditors are allowed to contest the right of the bankrupt to a discharge ; and all the conditions to be complied with on his part, before his right to the decree is perfected, are placed in the *32same category; the creditors have the same right to show his failure to perform any one of these conditions as they have to show his failure to perform any other of them. His right to have a decree might be defeated by showing a willful refusal on his part to comply with “ the orders of the court,” as effectually as by proving a “ willful concealment of his property.” And when the bankrupt shows that he has made a bona fide surrender of all his property, and otherwise obeyed all the other requisitions of the act, this portion of the section declares him to be entitled to a full discharge from all his debts. If, therefore, the act said nothing further in relation to the discharge, the jurisdiction of the court being conceded, the conclusiveness of the decree, on all the creditors who might have resisted its allowance, and in respect to all prerequisites, (including absence of fraud on the part of the bankrupt,) would seem, on general principles, to follow as a legitimate consequence. But the section, a part of which we have already quoted, does not stop herd. It proceeds, in terms, to declare what shall be the legal effect of the discharge and certificate, and in doing so, presents an entirely different view of the influence of fraud or willful concealment by the bankrupt, on their conclusiveness. It declares, that “ such discharge and certificate, when duly granted, shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts and other engagements of such bankrupt, which are provable under this act, and shall be and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever; and the same shall be conclusive evidence of itself in favor of such bankrupt, unless the same shall be impeached for some fraud or willful concealment by him of his property or rights of property as aforesaid, contrary to the provisions of this act, on prior reasonable notice, specifying in writing such fraud or concealment.”
*33This clause of the section, it is perceived, is wholly silent as to all the matters mentioned as prerequisite to the discharge, except the bona fides of the conduct of the bankrupt. The discharge is declared liable to impeachment for his “ fraud or willful concealment,” but for nothing else. To that extent, and to that extent only, a conclusive character is denied to the discharge; but is it not denied,to that extent fully and in all regards ? What is there in the terms employed which would exclude any creditor from the benefit of this proviso ? I can perceive none. And I can conceive of no process of reasoning, founded on this section of the act, which would place a creditor in the predicament to be bound by the discharge in other respects, that would not at the same time show him entitled to impeach the discharge for fraud. If the design to debar any of the creditors of the bankrupt of this right is to be found in the act, reference must be had to some other section for its disclosure. I have been unable to discover any language in the act, which, by fair interpretation, can be regarded as having such an aspect, unless perhaps it may be found in one of the clauses in the proviso to the 5th section. That section, after declaring that all creditors, who shall come in and prove their debts in the manner prescribed by the act, shall be entitled to share in the bankrupt’s property and effects, provides, among other things, “ that no creditor or other person, coming in and proving his debt or other claim, shall be allowed to maintain any suit at law or in equity therefor, but shall thereby be deemed to have waived all right of action and suit against such bankrupt.” Whether this clause is to be construed into an inhibition on any of the creditors to open the discharge for fraud, is a question which it is obviously unnecessary for us to decide. Such inhibition can, by the terms of the clause, reach only those creditors who come in and *34prove their debts; and, as appears by the report of the commissioner in bankruptcy, none of the appellees (indeed none of Tichenor’s creditors) proved or appeared to prove their debts.
The same clause of the fourth section, -which declares the effect of the discharge, ascertains clearly, as I conceive, the tribunals or “ courts” in which the impeachment of the discharge for fraud may be had. Jurisdiction over the matter is, by obvious implication, conferred on every court in which a suit may, independent of the act, be properly brought against the bankrupt. In the language of the court in the case of Mabry, Giller & Walker v. Herndon, 8 Alab. R. 857, “ I cannot understand, by the terms ‘ all courts of justice,’ and ‘ any court of judicature whatever,’ that none other than the federal courts are competent to entertain an objection to the validity of the discharge and certificate of a bankrupt. In employing words of most extensive application and import, when every thing said was, or at least should have been, well considered, it cannot be contended that congress designed to convey a meaning much more limited than is expressed. The fair and natural inference is, that as the discharge and certificate, when duly granted, were effectual in all .judicial tribunals in which they should be drawn in question, so they should be invalid in every court in which the bankrupt was sued and relied on them as a bar, if impeachable for any of the causes for which they are declared to be inoperative. If competent for congress to have withheld from the state courts the right to examine the validity of a bankrupt’s discharge for extrinsic objections, it is enough to say that this has not only not been done, but that the power has been conferred in terms of unequivocal signification.”
These views are fully sustained by numerous decisions of the supreme courts of other states, and are *35not in conflict with, any decision of the Supreme court of the United States which I have seen. Bond & Bennett v. Baldwin, 9 Greorgia R. 9; Beekman v. Wilson, 9 Metc. R. 434; Gupton v. Connor &c. 11 Humph. R. 287; Humphreys v. Swett, 31 Maine R. 192; Wales v. Lyon, 2 Mich. R. 276; Dorimus, Suidam & Co. v. Walker, 8 Alab. R. 194.
It seems to me, therefore, that it was competent for the appellees to impeach Tichenor’s discharge and certificate on the grounds of fraud alleged in the bills, and that the Circuit court had jurisdiction over the question of its validity.
And I do not perceive how the decree in bankruptcy operated as any bar to the jurisdiction which the Circuit court would otherwise have had to hear and determine the matters of controversy, litigated in the cause, in respect to the property conveyed by the several deeds in the bills and proceedings mentioned. It is true that all the property and rights of property of Tichenor were, upon his obtaining the decree declaring him a bankrupt, vested in his assignee in bankruptcy. And it may be conceded that there was a period during which it was competent for the assignee to have instituted suits for the purpose of recovering from any alienee or assignee of Tichenor, property or evidences of debt held by them in virtue of conveyances or assignments made by him, in fraud of his creditors, previously to his being declared a bankrupt; and that during such period such alienees and assignees might have relied on the outstanding-title of the assignee in bankruptcy as a defense to suits instituted for a like purpose by creditors of Tichenor seeking to recover in derogation of such title. But that period had passed long before the institution of this suit, the right of the assignee to institute suits for the purpose of recovering the property of the bankrupt, from the adverse holders of it, *36being, by the 8th section of the bankrupt act, limited to two years after the decree of bankruptcy, or after the cause of suit shall first have accrued. During that period no suit was instituted by him to recover the property in controversy; nor indeed did any exigency arise making it necessary for him, in the performance of the duties of his trust, to institute such suit, as none of the creditors came in to prove their debts; no occasion presented itself calling for the prosecution of the rights of action with which he was temporarily clothed, and they were suffered to expire under the limitation imposed by the law which conferred them.
. The creditors who are seeking to subject the property of Tichenor to the payment of their demands, claim nothing by virtue of his assignment in bankruptcy. They do not invoke the aid of the bankrupt law, nor do they seek to interfere with any right of the assignee under it. The appellees, Ellet and the Bank of Virginia, are seeking to enforce liens which had been'acquired by them under the laws of the state before Tichenor was declared á bankrupt. Such liens, so far from being invalidated by the act, are expressly recognized in the proviso of the second section; and it is now well settled that the jurisdiction of the federal courts to enforce such liens, is not in exclusion of a like jurisdiction in the state courts. Russell v. Cheatham, 8 Smeades & Marsh. 703; Talbert v. Melton, 9 Id. 9; McCance v. Taylor, 10 Gratt. 580. The jurisdiction of the Circuit court to extend to the appellees Allen, Mosby’s administrator and Clough’s administrator, the aid sought by them in their several bills, in subjecting Tichenor’s property to their demands, is, I think, equally clear, and equally free from the objection of involving an encroachment on the rights of the assignee in bankruptcy, or any claiming under him. The claim of Mosby’s administrator is founded on a *37judgment obtained against Tichenor in 1842, since the decree in bankruptcy; and upon showing that Tichenor’s discharge was procured by fraud, the right of Allen and of Clough’s administrator to obtain judgments against him upon their debts, would stand on the same footing as if he had never been declared a bankrupt; and for all the purposes of the jurisdiction of a court of equity, the second section of the 179th chapter of the Code of 1849 places them (on proof of their allegations) on the same footing as if they had obtained judgments against Tichenor before filing their bills. To enforce such judgments against the property of Tichenor in the hands of his fraudulent alienees, would now, on account of the facts already adverted to, defeat no purpose or policy of the bankrupt law, nor interfere, in any manner, with the right of the bankrupt court to administer the assets of the bankrupt.
In a suit brought by the assignee in bankruptcy or any claiming under him, the alienees of Tichenor might rely on the limitation of two years prescribed for such suits. But such defense, so far from presenting a bar to the claims of the creditors in this suit, just mentioned, shows a state of facts remitting them to the rights which they had before the decree in bankruptcy, and protecting the alienees from all danger of being subjected to a double recovery. No effort has ever been made by the assignee in bankruptcy, or any claiming under him, to disturb Cary or his trustees, or the assignees of his bonds, in the enjoyment of any rights which they may have acquired by the conveyances and assignments under which they claim ; and no effort of the kind could now be of any avail. They are no longer exposed to demands founded on the proceedings in bankruptcy, and they can no • longer set up those proceedings as a defense against those creditors of Tichenor who are in a condition to enquire into the fairness and validity of his convey*38anees and assignments. It seems to me that the Circuit court had full jurisdiction of the controversy, and power to determine the conflicting claims of the parties, uninfluenced by the proceedings in bankruptcy. But it seems to me that the Circuit court erred in proceeding to render a decree in the absence of David A. Hayes. Upon the supposition of the truth of the averments contained in the answers of Tichenor and the trustee Scott, he may have most important interests in the controversy, rendering it proper that he should be made a party before the subject is disposed of. For though the deeds from Tichenor to Cary and from Cary to his trustees should, upon a final hearing of the cause, be adjudged to be void as to the creditors of Tichenor, it would not, I think, necessarily follow that assignees, for value without notice, of the bonds given by Cary, might not have a better right to subject the property to the payment of the bonds than any creditor of Tichenor, who did not claim by some lien on the property, acquired prior to the execution of the deeds. Ho proof was offered of the assignment to Hayes, other than the affidavits of Tichenor and Scott.
These affidavits, however, furnished a sufficient ground for justifying and requiring the court to make a rule on the plaintiffs in the several suits, to show cause why the said Hayes should not be made a party.
And without expressing any opinion as to the extent and nature of the interests in the cause, which may be held by Hayes, or by Allen as assignee of the two bonds which he claims to hold as collateral security for the debt claimed by him in his bill, I think that the cause should be remanded in order that, unless the plaintiffs in the several bills will amend them, and make Hayes a party thereto, they be compelled to do so, if, upon the hearing of a rule to show cause why they should not make him a party, first granted, it *39shall appear that the said Hayes is an assignee of any of the bonds given by Cary to Tichenor, as averred in the answers of Tichenor and Scott; and in order for further proceedings, &c.
The other judges concurred in the opinion of Daniel, J.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481566/ | Daniel, J.
The 17th section of 29 Charles 2, ch. 3, requiring that to make good a contract for the sale of goods, wares and merchandise, (for the price of ten pounds and upwards,) the buyer shall accept and actually receive, in whole or in part, the things sold, or give something, in earnest, to bind the bargain, or in part of payment; or that some note or memorandum of the bargain be made and signed by the parties or their agents, has not been adopted in this state. And we have only to enquire whether the case stated in the certificate of facts satisfies the rules regulating like contracts of bargain and sale at the common law. In the case of Tarling v. Baxter, 13 Eng. C. L. R. 199, we are told that where there is a contract for an immediate sale, and nothing remains to be done by the vendor as between him and the vendee, the vendor immediately acquires a property in the price, and the vendee a property in the goods, and then all the consequences resulting from the vesting of the property follow; one of which is, that if it be destroyed, the loss falls upon the vendee. For the same principle, see also 2 Kent Comm. 491; Willis v. Willis, 6 Dana’s R. 47; Potter v. Coward, Meigs’ R. 22; Ingersoll v. Kendall, 13 Smeads & Marsh. 615; Goodrum v. Smith, 3 Humph. R. 542; Miller v. Koger, 9 Humph. R. 231; Magee v. Billingsley, 3 Alab. R. 680; 2 Rob. Pr. 414, *110415, 495, 497, 498, and cases there cited; and also De Fonclear v. Shottenkirk, 3 Johns. R. 170.
In the case last cited, decided by the Supreme court jjew York, (where they have a statute with provisjons like those of the 17th section of the English statute,) the court said, that independently of the statute, any words importing a bargain, whereby the owner of a chattel signifies his willingness and consent to sell, and whereby another person shall signify his willingness and consent to buy it, in presentí, for a specified price, would be a sale and transfer of the right to the chattel. The same view of the nature of such a contract is strongly and concisely stated by the Supreme court of Tennessee in the case of Potter v. Coward, above cited. It is not (say the court) the delivery or tender of the property, nor the payment or tender of the purchase money, which constitutes a sale. The sale is good and complete as soon as both parties have agreed to the terms, that is, as soon as the vendee says, “ I will pay the price demanded,” and the vendor says, “I will receive it,” the rights of both are instantly fixed.
As soon as such a contract is made in respect to a chattel in the possession of the vendor, and ready for delivery, in the absence of contrary indication or agreement, the vendee has a right to demand the thing sold immediately, but must pay the consideration; and the vendor has the right to demand the consideration money, but must deliver the property. If the vendee tender the purchase money and demand the property, he may maintain detinue or trover if the delivery be refused ; and if the vendor tender the delivery of the property and demand his purchase money, he may have his action of debt or assumpsit, if it be refused. Potter v. Coward and 2 Kent, as above.
The payment of the price and the delivery of the *111property, however, may have to be simultaneous and concurrent acts, or they may be performable at different times, according to the express agreement of parties, or the obvious nature and indication of the contract. Bell on Sales, 41.
A sale may be just as binding if made on credit as if made for ready money. And in such case the vendee may have a right to maintain his action at once against the vendor for refusing to deliver the property, without making any tender of the price.
And on the other hand, the completeness and efficacy of a sale are not necessarily affected by the consideration that the property is not in the actual possession of the vendor, or if in his possession, is not to be immediately delivered. There is no principle of law which establishes that a sale of personal goods is invalid because they are not in the possession of the owner. The sale of a chattel in the possession of a third person (claiming no adverse title) is not the transfer of a right of action, but is the sale of the thing itself. The Brig Sarah Ann, 2 Sumner’s R. 211.
Hence the vendee may be bound to pay presently, though there be no obligation on the vendor to deliver presently, or indeed at any time: For it may be obvious, from the nature of the contract, that the vendee is to look for the delivery to some third person, in whose custody the property may be at the time of the sale; or that he is himself to take possession of the property wherever it may be found; as in the case of the sale of a horse which is an estray, or of a slave who is a runaway.
And as where the sale is on credit, the vendee may bring his action for the property before he has paid or tendered the price, so where the sale is of property to be delivered at a future day, or not in the possession of the vendor, the latter may have a right to his suit *112for the price before he has made any tender of the property. The application of these principles to the stated in the certificate of the judge, will, I -¡qqn|C) result in vindicating the propriety of the ver¿IiCt and judgment rendered on them.
It appears that the slave, for the recovery of whose • price the action was brought, was at the time of the contract in custody, and on trial, in the County court of Page, on a charge of larceny. The court had found him guilty, but had hot pronounced its sentence; and to an appeal, made by the counsel of the slave, to the court to inflict but a light punishment upon him, urged on the ground that he was but an accessory, and that the principal, another slave, who had just before been found guilty, had been subjected only to a few stripes, the court replied, that the infliction of so light a punishment on the principal had been induced by the fact that he had been sold, and was to be taken from the commonwealth. The defendant in error, an old lady, the owner of Gilbert, (the slave for whose price the suit is brought,) who was in court, wras then applied to, to know if she would sell her slave; to which she assented, and authorized J. Y. Men efe e to sell him. The plaintiff in error, who was in court, and who, it was proved, was a justice of the peace of the county of Page, though not a member of the court, and was cognizant of all that was passing, enquired what price she would take for the slave. To which her agent replied that she would take eight hundred dollars. The defendant then said, I will give it. The agent replied, the negro, then, is yours. To which the plaintiff in error replied, well, I will take him.
Had this be.en all that passed between the parties, it is difficult to conceive how, by acts on words, they could have given a better definition or more appropriate illustration of a contract of an immediate sale. *113And there is nothing in the subsequent history of the transaction which can, in my opinion, create any serious doubt as to the true intent and effect of understanding of the parties.
The certificate proceeds to state that the court then remanded the slave to jail, without passing sentence on him ; the defendant in error, by her agent and counsel, saying the negro was not to be remanded at her expense, and the plaintiff in error saying the negro was not to be remanded at his expense. A bill of sale was thereafter (evidently on the same day, as appears from facts subsequently stated,) prepared and executed by the defendant in error, with an order to pay the money, the price of the' slave, to her said agent Menefee, and delivered to Menefee, who applied to the plaintiff in error for payment, who replied, that he had not the money in his pocket, and would like to have some two weeks to pay it in. The agent replied, that he could not give that time ; that he should leave court ‘for the county of Rappahannock (where he lived) in a day or two, and if he would pay the money before he left, it would answer his purposes. To which the plaintiff in error replied, that he would borrow the m uey, and would pay it to him before he left: And with this understanding the parties separated.
Even if the remark by the plaintiff in error, that the slave was not to be remanded at his expense, imported, by necessary implication, an understanding on his part that the sale was not complete, and that the slave was not yet at his risk, it could not detract from the legal force of the plain and unambiguous contract already made. It was not competent for either of the parties, after having fully assented to the terms of the bargain, to construe away its obligations or fescape its consequences by acts done or declarations *114made without the concurrence or assent of the other. -^nd as bas been seen, the defendant in error, so far making any concession in respect to the expenses fu£ure keepxng of the slave, was the first to protest against his being i-emanded at her expense. And that the plaintiff in error did not mean to insist on the payment by the defendant of the expenses of the further custody of the slave, as a condition precedent to the Vesting of the property and the payment of the price, is fairly to be inferred from his subsequent conduct. When applied to, to pay the price, he did not intimate any incompleteness in the bargain, or insist or suggest that any thing was yet to be done by the vendor to entitle him to demand the price, but asked and obtained a temporary postponement of payment, on the exclusive score of his own ease and accommodation. The control, too, exercised by the plaintiff in error over the slave, in obtaining, on his own motion, an order of the court to the jailor to have the slave confined in an apartment separate from that in which the other slave, the principal in the larceny, was still confined, and the further concern about his safe keeping, manifested in afterwards applying to the jailor to know whether there was any thing in the jail with which the slave could do violence to himself, though susceptible of the explanation that the plaintiff' regarded himself as having merely entered on a profitable treaty, which he hoped and expected to conclude, yet tend more strongly to the conviction that he regarded himself as having already acquired a title to the slave.
It is conceded in the argument of the plaintiff’s counsel, that if the defendant had delivered to the plaintiff an order on the jailor for the slave, then the title would have passed; but he contends that some such act, a delivery or tender of some symbol or evi*115dence of ownership, was essential to the passing of the title: and he relies on certain passages from Bell and Story on Sales, to sustain the position.
These citations do not, I think, furnish authority applicable here. They show not what is the common law rule, but what is now the English rule, as modified by the 17th section of the 29 Charles 2, before mentioned. And as, in the absence of such statutory provision, an actual delivery of property in the possession of the vendor, and which can be presently delivered by him, is not essential, so neither is a constructive or symbolical delivery of property out of his immediate possession, in the keeping of a third person, essential, as between vendor and vendee, to the vesting of the property. The virtual or symbolical delivery is the substitute for the actual delivery, and is necessary to be resorted to only where a change of possession (if practicable) would be essential to the validity of the transfer; as in cases of gifts inter vivos or causa mortis, or in cases of sales, to render them, valid against the creditors of or subsequent purchasers from, the vendor.
Whether ordinarily, in the case of a sale of property in the hands of a third person, holding it under an agreement to restore the possession to the vendor at the termination of the bailment, it is necessary for the vendor, in order to maintain his action for the price, to prove that he had delivered or tendered to the vendee an order on the bailee for. the delivery of the property, or some other evidence of ownership, is a question which I do not deem it necessary to decide. For when the first application was made to the plaintiff to pay the price, he did not question the readiness of the defendant to perform any thing that by the terms of the contract she was to perform, but as we have seen, requested and obtained a postponement of the payment: And before the time for the payment arrived, the slave escaped. Thus, by his own act, as he could *116not have expected to receive an order before he was rea(ty to pay the price, the delivery of the order (if was postponed to a period which had not arrivec[ before the happening of the event (the escape)which rendered an order on the jailor for the delivery of the slave wholly nugatory. Besides, the slave was not in the possession of the jailor, under any agreement with or authority from the vendor, but was in his custody under the order and warrant of the court. As soon as the purposes of the prosecution were satisfied, the slave would have been discharged from the custody of the jailor by the order of the court, and it would have been for the party entitled to the possession to attend and take the possession of the slave. The payment or tender of the purchase money was all that was needed, under the circumstances, to enable the vendee rightfully to obtain possession of the slave when the order for his discharge should be made. It is, however, to be observed further, that the contract was made publicly in open court, and it is fairly to be inferred, from the evidence, was within the knowledge of the jailor. And were it conceded that there was a duty resting on the jailor not merely to discharge the slave on the termination of the confinement under the prosecution; but to deliver him over to the rightful owner, I should still hold that nothing was wanting in the proof to enable the vendor to maintain his action. A receipt for the price of the slave would, under the circumstances of the case, have been fully equivalent to the most formal order from the vendor to the jailor to deliver the slave to the vendee. Menefee’s authority as agent was known to and recognized by Chapman, and his readiness to give a receipt for the price was obviously inferrible from the nature of the transaction and the demand of payment.
To the argument of an incompleteness of the sale which the counsel for the plaintiff in error founds on *117tlie improbability that the vendor contemplated parting with his control over the possession of the slave before the price should be paid, it is only necessary to refer to the authorities already cited to see that though the buyer has a right to retain and control the possession until the price is paid or tendered, the contract of sale casts the right of property on the vendee, and subjects him to all risk of accident.
And as to the further argument derived from the absence of a tender by the vendor, of some written evidence of warranty of the soundness of the slave, it is sufficient to observe that the parties did not, in the contract, stipulate for any such warranty.
I think the judgment should be affirmed.
The other judges concurred in the opinion of Daniel, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481398/ | Baldwin, J.
delivered the opinion of the Court.
The covenant of Alexander S. Withers, and Robert W. Withers the plaintiff in error, upon which this action is founded, was not a covenant to make an assignment of 80 dollars of the bond therein mentioned, but a covenant to deliver an assignment of so much of the bond, which assignment had been already made.
The bond was executed by Richard Harrison and others to John Ward, who, by his endorsement thereon, dated the 24th of July 1822, made an assignment thereof, which omitted the name of the assignee. But M. C. Moorman, who, it seems, was the intended assignee, by his endorsement on the bond, dated 3d of October 1822, assigned 322 dollars thereof to William Robinson, and by another endorsement thereon, dated the 25th of October 1822, assigned 80 dollars thereof to Alexander S. Withers.
The object of the covenant, which bears date the 30th of October 1822, appears to have been to give to Hestend, the defendant in error, the benefit of the assignment made to Alexandm' S. Withers, and that the bond should be delivered to Mr. Dabney, an attorney at law, on or before the 4th of November then next ensuing, in order that suit might be brought thereon, for the use of the persons respectively entitled to the benefit thereof.
*459The bond was accordingly delivered on the 1st of November 1822, by Alexander S, Withers to ilir. Dab-net/, who brought suit thereupon in the name of Ward, ^ „ c for the use of Robinson, as to 322 dollars, for the use of Hestend as to 80 dollars, and for the use of Moorman as to the residue; which suit was prosecuted to a judgment as to some of the obligors, and part of the money made by execution and paid over to Robinson towards the satisfaction of his claim.
The covenant was therefore fully performed by the delivery of the bond, with the assignment to Alexander $. Withers thereupon endorsed. That was the assignment contemplated by the covenant; and Hestend had the complete use of it in the action upon the bond. No other assignment was required by the terms or the true intent and meaning of the covenant, and none from the covenantors, or either of them, could have availed him any thing, inasmuch as he would not have been thereby enabled to maintain an action for the recovery of the 80 dollars in his own name.
If Hestend by the transfer to him, for a valuable consideration of Alexander S. Withers’ interest in the bond, and the prosecution of the action thereupon with due diligence, without being able to obtain satisfaction from the obligors, acquired a right to redress against the covenantors or either of them, his proper remedy was an action of assumpsit founded upon those circumstances, and not an action founded upon the covenant of which there has been no breach.
It therefore seems to the Court that the Circuit Court erred in sustaining, instead of overruling, the defendant in error’s demurrer to the evidence : And it is considered by the Court that the judgment of the Circuit Court be reversed with costs. And this Court proceeding to render such judgment as the Circuit Court ought to have rendered, it is further considered that the demurrer to evidence be overruled, and that there be a judgment for the plaintiff in error. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481400/ | By the Court.
The judgment is affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481401/ | Allen, J.
By the first section of the act concerning waste, 1 Rev. Code 462, an action for waste is given against any tenant by the curtesy, tenant in dower, or otherwise for life or years. This section is taken from the statute of Gloucester, 6 Ed. 1, chap. 5. At common law, according to Lord Coke, waste was punishable in three persons, tenant by the curtesy, tenant in dower, and the guardian; but not against tenant for life or for years. 2 Inst. 299. But in this it seems he was mis*512taken, for tenant for life was punishable for waste at common law. 10 Bacon’s Abr., title Waste, letter H, citing Bracton, lib. 4, c. 18.
rp^g question presented by the case under considerat¡011 j -whether the alienee of the husband who, with 7 / his wife, was seized in fee in right of the wife, is such a tenant for life as by the common law, if according to Bracton, a tenant for life was punishable for waste at common law, or by the statute of Gloucester, could be sued in an action of waste ? We have not been referred to any decision in the English Courts, or our own, which decides the question; and I have not been able to discover any case or dictum which bears directly on the question, in any of the English reporters or elementary writers. The point, indeed, could seldom arise there. The husband and wife being seized in fee in right of the wife, owing to this union of persons by the marriage, the law looking upon them as one person, the alienation of the husband extended to the whole estate of the wife, worked a discontinuance, and the alienee was in of the whole estate of the wife: He did not hold subject to the reversionary interest of the wife, but held the whole fee in his own right; and at common law she was driven to her writ of right or writ of entry cui in vita, until the stat. of 32 Hen. 8, reserved to the wife her right of entry, notwithstanding the alienation of the husband.
By the 20th section of the act concerning conveyances, 1 Rev. Code, p. 368, no man can alien more than he may rightfully pass. Whatever may be the effect of the alienation of the husband of the wife’s estate in fee, whether it would be construed since our statute as passing the whole fee to the alienee subject to, and liable to be defeated by, the wife’s entry; in this case no such question arises; it was a proceeding under the insolvent law, and the surrender and deed purported to be, not of the fee, but of the husband’s life estate.
*513By the marriage the husband gains a freehold estate in right of the wife, of the lands of which she was seized in fee. Coke Litt. 351. In consequence of the unity of person the husband has the right of possession ; and though he gains only a right to take the rents and profits, he cannot, in consequence of that unity of person, be sued at law by his wife for waste. Strictly speaking, the seizin is in both, yet the husband may alien his possession and the right to the pernancy of the profits ; and such alienation will be good as against himself. Thos. Coke 243, note L.
Does not such alienation create an estate for life in the alienee ? It must endure during the joint lives of husband and wife, and may, if he is tenant by the curtesy initiate, endure during his life. Notwithstanding the wife has not joined, yet as his alienation at common law in fee worked a discontinuance of the whole estate of the wife until avoided by entry, the whole estate of the wife being in the mean time in the alienee; so his alienation now, must have the same effect to the extent of that which he could rightfully pass and lawfully part withal.
That right is, his right to the possession for life or during coverture, and to the pernancy of the profits. To that extent his alienation still operates as a discontinuance of the seizin of the wife, by the creation of a freehold estate in the alienee. Unless this be so, the condition of the alienee must be an anomalous one; he is not the agent of the husband to take the profits for his principal, or his bailiff to enter and hold possession for him. He enters and takes the profits as alienee for his own benefit; the right endures for life; and the freehold must abide somewhere or be in abeyance. It seems to me, we can only reconcile the estate thus created with the principles of the common law in regard to the joint seizin of husband and wife, by treating such separate alienation of the husband as a discontinu*514ance daring life; as at common law his alienation in fee discontinued the whole estate of the wife, and vested it in the alienee. If so, the deed of the husband creates a life estate, and the life-tenant holds, subject to all the incidents of every other life-tenant; one of which, by the words of our statute, is the liability to be punished for waste. The reversion in fee remains with the wife, and the tenant holds under her. It is the same as if she herself had carved a life estate out of her fee. For her husband, with whom she is one, has done so, and by the marriage this he could lawfully do. It would follow, if these views are correct, that the action of waste may be maintained in such a case; and that it is properly brought in the name of husband and wife, for she cannot sue in her own name. And though he may be seized of the reversion with her, as it is a reversion which never can re-unite with the possession during his life, there is no interest in him which could pass to his alienee. Nor can his alienee claim to be exempt from an action of waste because the husband was dispunishable. The exemption of the husband is personal, proceeding from the unity of person, and because the Avife can maintain no action at. law against him. The alienee is vested with all his rights, so far as the subject matter is involved : the right of possession and to take the rents and profits. The law will not presume a wrongful act of the husband to the disherison of the Avife; and if committed by him there is no remedy. To such personal exemption the alienee can set up no pretence. When he commits waste he does an injury to the reversioner, and exceeds the authority which, by law, such a tenant can exercise, and is liable to the action of the one next in reversion.
In conformity with these vietvs, it is said, in 2 Kent’s Comm., Lecture 28, Husband and wife, p. 131, that “if the assignee or the creditor of the husband, who takes possession of the estate, on a sale on execution of his *515freehold interest, commits waste, the wife has her action against him, in which the husband must join; for, though the assignee succeeds to the husband’s right to , , ° . . the rents and profits, he cannot commit waste with impunity. But if the husband commit waste, the coverture is a suspension of the common law remedy of the wife against him.” And for this doctrine Bab & wife v. Perley, 1 Greenl. R. 6, is cited. That case was an action of trespass on the case, for an injury done to the interest of the wife by wasting the premises. The case was not, technically, an action of waste under the statute of Gloucester; the husband being seized, in right of the wife, the locus in quo was extended by a judgment creditor of the husband; but the general doctrine controlling this case is affirmed by the Court. The Court assimilates that case to one in which the husband had conveyed his interest by deed, and says it would be the common case of a division of a fee-simple estate into a freehold in the alienee and a reversion in the wife; and the alienee, having only a life-estate, could not commit waste, as it would be inconsistent with his estate. Upon principle and authority it would, therefore, seem that the action may be maintained.
It was objected, that the declaration was defective in setting out a defective case; an error which, it is alleged, could not be cured by a verdict. The declaration alleges the reversion to be in the wife. In Green v. Cole, 2 Saund. R. 235, n. 2, it is said, that if husband and wife bring the action, the declaration must state the reversion to be in both : namely, that they are seized of said reversion in their demesne as of fee in right of the wife. Earl of Clanrickard v. Sidney, Hobart’s R. 1. But in that case it was held by two of the Judges against two, that the words “ to the disinheriting” do, after verdict, cure the want of stating the quantity of estate the plaintiff was seized of; but this the annotator thinks questionable.
*516In the same case, 236, n. 4, it is said that it must be laid to the disinheriting of the wife, for it is her estate that is damnified ; and if alleged to be to the disinherit- ^ wrjt muS{ abate. The objection, it stl’llfes me> would be hypercritical even on a general demurrer. When the reversion is alleged to be in the wife, the conclusion of law is, that they are jointly seized. Here the declaration charges it to be to the disinheriting of the wife, which, in the case referred to, would, in the opinion of two of the Judges, have cured the defect after verdict. The case, as stated, shews that husband and wife were seized of the reversion in right of the wife, for that is the legal consequence of averring that the reversion in fee is in her, and if the omission to aver they were so jointly seized be a defect, it is a defective statement of a good case; and our statute of jeofails cures it after verdict, even though it might have been taken advantage of by a demurrer.
The verdict is said to be objectionable. The verdict is general, so far as it relates to the waste, and finds the defendant guilty of the waste, in manner and form as in the declaration is averred ; but the plaintiff, waiving a recovery of the place wasted, it proceeds to assess the damages for particular parts of the waste. The finding, it seems to me, responds to the whole issue, and finds the party guilty of the waste, charged in the whole, not in any particular part; and as the plaintiffs waived a recovery of the places wasted, it could not have been necessary to set out the locus in quo more particularly, or to find any part of the issue for the defendant; for that would have been inconsistent with the general finding of guilty of the waste, as charged. Nor is it necessary for the protection of the defendant against a future action for the same cause. The verdict and judgment cover all the waste charged.
The facts found, it is said, do not shew that the acts complained of would, in law, amount to waste. The *517verdict does not purport to be a finding of all the facts necessary to make out the plaintiffs’ case ; it is a general finding in favour of the plaintiffs upon the question of waste, subject to the opinion of the Court, whether, under the state of the title as found, the action could be maintained. Whether the facts in evidence constituted waste in law or not, was a question for the jury, under the instruction of the Court. It has been found, and whether it amounted to waste or not, is not now open for enquiry on this verdict.
The title is, I think, sufficiently found ; for where it is said the husband was seized in fee in right of his wife, it necessarily implies both were seized iti fee in right of the wife. The schedule and deed to the sheriff describe the subject as all the interest of the husband being a life estate in the premises. This estate was vested in the defendant, constituting him a tenant for life, creating an estate to endure either during the joint lives of husband or wife, or during the life of the husband if he was tenant by the curtesy initiate, and as incident to such an estate, subjecting him to an action of waste at the suit of the reversioner.
I think the judgment should be affirmed.
Bhooke, J. The question whether the defendant was liable to an action of waste in this case, depends upon the character of the estate which each of the parties held. It is insisted for the appellant, that Allen was tenant by the curtesy initiate, and not subject to the action of waste until the death of his wife, when ho would be tenant by the curtesy consummate ; and so subject to the action, by the statute of Gloucester, and our act.
The creditor of Allen could get no more than Allen was entitled to; and when Allen's interest was purchased at the sale of the schedule of his property, the purchaser acquired only Allen's interest in it. Allen and wife *518were the joint tenants in the fee; and Dejarnatte was their tenant for life, and as such liable to an action of waste under the statute. I concur with Judge Allen in wj10]e 0f hjs Opjnion upon this point, and on the details of the proceedings, and think the judgment must be affirmed.
Daniel, J. concurred in the opinion of Judge Allen.
Baldwin, J. dissented.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481402/ | Daniel, J.
The question presented in this case is, whether the act of the General Assembly, passed the 31st March 1848, entitled “an act concerning the jurisdiction of the General Court, and diminishing the number of the Judges thereof,” in so far as it undertakes to constitute the Special Court of Appeals therein mentioned, was, or was not, passed in pursuance of the amended constitution of Virginia. The duty of en*575quiring into, and deciding upon the legal validity of an act of the Legislature, has always been regarded by this Court, and justly, as one of the most delicate it can be called upon to discharge. The delicacy of the task is, with me, much enhanced, by the consideration, that the question to be decided does, (in the light in which it has presented itself to my mind,) necessarily involve an examination not only of the extent of the judicial powers of this Court, but also of the nature and duration of its existence under the constitution, and the character of tenure by which its members hold their offices. Under a deep sense of the caution with which the subject, under such circumstances, ought to be approached, I have, in its investigation, earnestly endeavoured to discard from my mind every influence calculated to mislead the judgment, and have been watchful to suffer no impression to mature into a conviction until its correctness had been first subjected to the test of a calm and impartial enquiry. After giving to the learned and able arguments that have been made on each side, as far as I could, their just weight, and consulting such other sources as I supposed calculated to throw light upon the subject. I have been constrained by my convictions, to dissent from the opinion that will be delivered by the majority of the Court. I think that the cause assigned by the Judge of the Circuit Court, for refusing to enter upon his records, and execute the decree of the Special Court of Appeals, viz : “ That the said decree was pronounced by a Court having no lawful authority or jurisdiction,” is a true and sufficient cause.
In distributing the judicial power among the different portions of the judicial department, it was, I think, the design of the framers of the constitution to vest the supreme appellate power in one Court' — a Court permanent as the constitution itself. I am further of opinion that, notwithstanding the power given to the Legislature to regulate the jurisdiction of all the Courts, and *576of the Judges thereof, there are certain judicial duties which must, under any regulation of jurisdiction under the constitution, belong to the Supreme Court of Appeajg an(j {0 tjU(jges thereof; that these judicial duties cannot be discharged by any but Judges regularly elected and commissioned as Judges of the Supreme Court of Appeals — Judges, whose independence is provided for, not only in the clauses which require that they shall receive fixed and adequate salaries, which shall not be diminished during their continuance in office, and that they shall hold their offices during good behaviour, (which apply equally to the Judges of the Superior Courts,) but whose entire freedom from all influence on the part of the legislative department, finds a further guaranty in the permanency of the Court to which they belong.
The judicial duties, and the only judicial duties that are, by the act constituting the Special Court of Appeals, assigned to that tribunal, are identical with those which are discharged by this Court, and which belong appropriately to a Supreme Court of Appeals; and no function or duty, which can characterize a Court, as a Supreme Court of Appeals, is withheld. The Judges, who are directed to hold the Court, have not been elected or commissioned as Judges of a Supreme Court of Appeals. They may be deprived of their offices and pay as members of the “ Special Court,” by an act abolishing the Court, passed by a bare majority of the Legislature ; and by an act abolishing the Superior Courts to which they have been respectively commissioned, passed by two thirds of the members of each house of the General Assembly, they might be deprived of their offices as Judges altogether. If these views of our constitution, and the law in question, be correct, the unconstitutionality of the latter would seem to follow as a necessary consequence. I shall endeavour to shew that they are.
*577In the first section of the fifth article of the amended constitution, it is provided, that “ the judicial power shall be vested in a Supreme Court of Appeals, and in such Superior Courts as the Legislature may, from time to time, ordain and establish, and the Judges thereof; in the County Courts, and in justices of the peace.” Language more appropriate to convey the idea that there shall be but one such Court as that first mentioned, could not be used. The attribute of singleness, as an essential and characteristic quality of a Supreme Court, necessarily presents itself to the mind, in the plain and obvious definition of the terms employed.
The idea of a plurality of such Courts is equally inadmissible in view of that which must always be one of the grand objects sought to be attained in the establishment of a Supreme Court of Appeals, to wit, consistency and uniformity of decision.
The attainment of this object might be reasonably anticipated from the establishment of one such Court, whilst diversity of judgment and contrariety of decision must ever be the natural offspring, the inevitable result of the co-existence of two or more.
The conclusion being reached, that there can under the constitution be but one such Court, there arise therefrom strong considerations in favour of the construction that attributes to it an existence co-extensive in duration with that of the constitution itself. And looking to the ends of such an institution, it is difficult to conceive how one convinced of its utility, and of the necessity for its present existence, and about to provide in an organic law for its creation, could well anticipate the arrival of a time or state of things when such necessity would cease to exist. The arguments which might be successfully urged against the propriety of providing constitutional restraints upon the power of the Legislature to abolish Courts whose number public convenience might require at one time to be increased, and at another *578to be diminished, might be justly regarded as of little weight when brought to bear against the propriety of providing for the permanent existence of a tribunal which could never be multiplied, and the necessity for whose continued existence would, in all human probability, never cease.
Accordingly, recurring again to the language employed by the framers of the amended constitution in creating this Court, we shall find that they have used terms, whose plain sense imports its unceasing existence, and which, when used on like occasions and for like purposes, has received a long and well known construction negatory of a right on the part of the Legislature to abolish it. “ The judicial power shall be vested in a Supreme Court of Appeals,” “ in the County Courts,” “in such Superior Courts as the Legislature may from time to time ordain and establish.”
What language more expressive of a design to invest this Court with a permanent and unceasing existence, could have been employed ? Can the period ever arrive, as long as the government lasts, when a legislative enactment, declaring that there shall not be a Supreme Court of Appeals, for a space of time however short, would not be in plain and direct conflict with the constitutional mandate that a portion of the judicial power shall be vested in that Court? But, as I have just above observed, the terms employed have received a construction which was well known to the members of the convention. The first section of the third article of the constitution of the United States is in the following words: “ The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” &c. &c.
In. 1801, an act of Congress was passed, entitled “an act to provide for the more convenient organization of the Courts of the United States,” by which a conside*579rabie addition was made to the number of inferior Courts and Judges. The Judges were appointed, and entered upon the performance of their duties. At an early day in the following session, a resolution was offered in the Senate for the repeal of the law. After along and able debate, in which most of the members, many of them eminent jurists, participated, the resolution was carried, and a law passed abolishing the Courts. The repeal of the law was resisted mainly on constitutional grounds.
It will be found, on a reference to the report of the debates, (see Debates on Judiciary, Senate U. S. 1802,) that it was conceded as well by those who advocated the repeal, as by those who opposed it, that Congress had no power to abolish the Supreme Court. The effort on the part of the latter was to shew that the inferior Courts were equally beyond the reach of Congress; whilst those in favour of the repeal, argued that there was a marked difference between the language used in reference to the Supreme Court, and that providing for the establishment of the inferior Courts, from which it was plain that the framers of the constitution regarded the former as established by the constitution, whilst the latter were placed wholly within the control of the Legislature. Brief extracts from one of the speeches delivered on each side, will shew the views of the respective contending parties in reference to this point of the debate.
Mr. Tracy — <[ Can you repeal a law establishing an inferior Court under the constitution? Will it be said, that although you cannot remove the Judge from office, yet you can remove his office from him ?” — “ That we can, with propriety, modify our judiciary system, so that we always leave the Judges independent, is a correct and reasonable position; but if we can, by repealing a law, remove them, they are in the worst state of dependence.” — “ No person will say that the Judges of the Supreme Court can be removed, unless by impeachment *580and conviction of misbehaviour. But the Judges of the inferior Courts, as soon as ordained and established, are placed upon precisely the same grounds of independence -with the Judges of the Supreme Court. Congress may take their own time to ordain and establish : but the in-1 stant that is done, all the rights of independence attach to them.” Page 69-70 Debates.
Mr. Mason of Virginia — “ When I view the provisions of the constitution on this subject, I observe a clear distinction between the Supreme Court and other Courts.” — “ With regard to the institution of the Supreme Court, the words are imperative, while with inferior tribunals they are discretionary. The first shall, the last may be established.” — “ When the constitution, using this language, says a Supreme Court shall be established, are ioe not justified in considering it as of constitutional creation; and on the other hand, from the language applied to inferior Courts, are we not equally justified in considering their establishment as dependent upon the Legislature, who may from time to time ordain them as the public good requires.”
The provisions of our constitution, in relation to the establishment of Courts, and the distribution of judicial power among them, bear a still stronger resemblance to those of the constitution of the State of Kentucky, relating to the same subject: “The judicial power of this Commonwealth, both as to matters of law and equity, shall be vested in one Supreme Court, which shall be styled the Court of Appeals, and in such inferior Courts as the General Assembly may from time to time erect and establish.” Art. 4, sec. 1, Kentucky Const. “ The Court of Appeals, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the State, under such restrictions and regulations, not repugnant to this constitution, as may from time to time be prescribed by law.” Art. 4, sec. 2. “ There shall *581be established in each county now, or which may hereafter be erected within this Commonwealth, a County Court.” Art. 4, sec. 5.
The great indebtedness of the citizens of Kentucky to the northern merchants, had, prior to the year 1824, , . led to the passage of a series of enactments composing what was termed the relief system, and designed to alleviate the distresses of the debtor class of the community, by postponing the collection of debts.
The question as to the validity of these laws being brought, by appeals, before the Supreme Court of Kentucky, that Court decided them to be unconstitutional and void — in conflict with the clause in the federal constitution prohibiting the passage of laws impairing the obligation of contracts.
This decision excited much popular discontent, and in the year last mentioned, the opposition to it, increased and strengthened by other causes of dissatisfaction with the Court that made it, led to the passage of an act abolishing the then existing Supreme Court, and establishing a new Court of Appeals in its stead. Four Judges were elected and commissioned to discharge the duties of the new Court, and their officers proceeded to take possession of the records. The Judges of the old Court still, however, continued their sessions. An angry struggle between the two Courts, each claiming the sole and exclusive right to decide upon appeals, as a Court of the last resort, was the result. This controversy between the old and new Court parties was conducted with the most bitter feelings for some two or three years; and after bringing the State to the very verge of civil war, was at last terminated by the passage of a law repealing the act establishing the new Court.
In the case of Hildreth’s heirs v. M’Intire’s devisee, 1 J. J. Marshall’s R. 206, the subject for the decision of the Supreme Court was the constitutionality of the law creating the new Court. The new Court had dismissed *582an appeal which had been taken to the Court of Appeals, because the record had not been filed with its clerk. A certificate of the dismission having been certjge(j tQ t{je circuit Court from whose judgment the appeal had been taken, the last mentioned Court received and entered it, and issued execution to carry into effect the original decree. An appeal from the last mentioned proceedings of the Circuit Court necessarily brought up for decision the validity of orders and decrees made by the new Court. The Supreme Court unanimously decided that the new Court never had a legal and constitutional existence, and that the Circuit Court erred in respecting and obeying its mandate. The grounds of the decision are set forth in the opinion of one of the Judges, in which all the others concurred.
The following extracts will sufficiently exhibit the grounds of the opinion: '•'•There cannot be more than one Court of Appeals in Kentucky as long as the constitution shall exist.” — “ The gentlemen who directed the appeal in this case to be dismissed, and the one who certified the order, did not hold office in the Court of Appeals. The Legislature had attempted to abolish the Court of Appeals, ordained and established by the constitution, and create in its stead a new Court. This attempt was ineffectual for want of legislative power. The offices attempted to be created never had a constitutional existence; and those who claimed to hold them, had no rightful or legal power. They were not appointed to the Court of Appeals fixed by the constitution.” — “ The Court of Appeals had not been and could not be abolished. Its Judges had not been removed from office, and were acting and ready to continue acting as Judges. The act of the Legislature did not intend to superadd four Judges to the number already in office in the Court of Appeals. It cannot receive, and never has received such a construction. The gentlemen who acted as Judges of the legislative tribunal did *583not claim to be, and certainly were not, associates of the Judges of the Constitutional Court. They were not their successors.” — i! Their acts cannot be enforced by law. The Circuit Court proceeded on the assumption that either this new tribunal was the Court of Appeals, or that it was such a defacto Court as could exercise judicial functions ad interim. In this the Court erred. Therefore the judgment is reversed.”
The terms used in our constitution, in providing for the establishment of the Courts, being thus shewn to have been previously well defined by popular, legislative and judicial construction, there would, in the absence of any light furnished by a history of the proceedings of the convention, guiding to a different conclusion, arise a fair inference that the framers of the constitution, in using the terms, intended also to adopt, with them, the construction. If then, we shall find, on looking into the Debates of the Convention, that these terms were frequently the subjects of remark by members of that body, and that the propriety of using them was often discussed; that the construction theretofore given to them was adverted to, and the propriety of using the language in question maintained by some of the most distinguished statesmen of the body, on the very ground that its meaning was authoritatively fixed and ascertained, are we not justified, (even though it shall also appear that the propriety of the construction, and the authority of the precedents establishing it, was questioned by some,) are we not well justified, in concluding that a majority of the convention, in employing the terms, designed to connect and adopt with them, the construction theretofore thus claimed for and given to them?
The views of the committee on the judiciary, in relation to the subject committed to their charge, as first reported to the convention, were embodied in a series of resolutions, the first of which was in the following words:
*584“ 1st. Resolved, That the judicial power shall be vested in a Court of Appeals, in such inferior Courts as the Legislature may from time to time ordain and estaban(j jn tfje County Courts, The jurisdiction of th0156 tribunals shall be regulated by law. The Judges of the Court of Appeals, and of the inferior Courts, shall hold their offices during good behaviour, or until removed in the manner prescribed in the constitution ; and shall, at the same time, hold no other office, appointment, or public trust; and the acceptance thereof, by either of them, shall vacate his judicial office. No- modification or abolition of any Court shall be construed to deprive any Judge thereof of his office; but such Judge shall perform any judicial duties which the Legislature shall assign him.”
The question in committee of the whole, being on this resolution, a motion was made by Mr. Bayly to strike out the words “ and in the County Courts.” After stating that his object was not to destroy the County Courts, but to place them with the inferior Courts, under the control of the General Assembly, he proceeded to say: “If my proposition shall prevail, it will make the Court of Appeals the only supreme and constitutional Court, and have all other Courts subject to legislation, as circumstances and the good of the Commonwealth may require,” &c. Debates Virginia Convention, page 502. Mr. Henderson, who sustained the motion, stated, that in supporting the motion, “it was his wish to vest the judicial power of the Commonwealth in the Court of Appeals, the Superior Courts, meaning the General Court, the Circuit and Chancery Courts, or such substitutes for them as legislative wisdom might devise, and in the justices. Thus the County Courts would, like the Chancery and Circuit Courts, be alterable as the interests of the State required. Gentlemen have asked, if it is the policy of the friends of the motion to distinguish the Court of Appeals, and *585place it above the control of the Legislature. Surely, no lawyer of experience will require argument to prove that the supreme appellate tribunal of the State should have its foundation firmly laid in the organic law. It is clear that such is the result of any written constitution. If the Legislature oversteps the limits of the constitution, there must be a tribunal to declare its acts invalid ; it would be a mockery to place this tribunal at the mercy of the Legislature ; a solecism in politics. Prom this reasoning, the supremacy of the Court of Appeals arises,- and the gentleman from Chesterfield, (Mr. Leigh,) will be the last man to controvert the reasoning, or deny its consequence. Here we all agree .- farther, in giving constitutional consecration to the Courts, it appears to me, we are forbidden by wisdom and discretion to go. The great principle of policy, which founds and shields the Court of Appeals, has no sort of application to the other Courts; and least of all, to the County Courts. The General Court, which decides ultimately on the life of a citizen, and the Superior Courts of Chancery, as well as Law, are, to use the language of gentlemen, to be subjected to ‘the whim of the Legislature,’ while the County Courts are to be placed beyond its reach. Is this wise ? Is it consistent ? Is it not slighting the superior and nursing the inferior ?” Page 520.
At a subsequent stage of the proceedings, the report of the committee on the judiciary being still under consideration, a motion was made to strike from the first resolution the last clause: “ No modification or abolition of any Court shall be construed to deprive any Judge thereof of his office,” &c. Great inconvenience, it was argued, might result from retaining the clause, as it would prevent the Legislature from ridding the State of Courts and Judges, which experience might shew were not necessary to the dispatch of the judicial business. Page 608. Mr. Tazewell moved to amend the amend*586ment by striking out the words, “ a Court of Appeals,” in the first part of the resolution, and inserting in lieu thereof, the words “ one Supreme Court.” — “ In advocating the amendment, Mr. Tazewell observed, that this at first view might appear a mere verbal criticism. He should not stop to enquire whether it were so or not, but would go on to observe, that by so altering the phraseology, it would be made to conform in terms to that used in the constitution of the United States, and then they would have the settled interpretation put upon that phrase, which would answer the argument of the gentleman from Augusta, (Mr. Johnson.) Then they would have the Supreme Court of the State a constitutional Court, and the inferior Courts legislative ones; and as, according to the settled construction of the constitution of the United States, Congress had power to remodel or abolish the inferior Courts of the Union, so the Legislature of Virginia would have power over the inferior Courts of Virginia. Then the question as to the operation of the clause proposed to be stricken out, would be confined exclusively to Courts of the latter description.” — “It is true, there must be an independent department, but there is no need of but one such department. The inferior Courts must be subjected to the Legislature. Preserve your Supreme Court independent, and you get all you need. If the amendment shall obtain, then the constitution of Virginia will read as the federal constitution does now: You will have one Supreme Court, with its Judges holding their offices during good behaviour, beyond the control of the Legislature, just as the Judges of the Supreme Court of the United States are beyond the reach of congressional power, while your inferior Courts, like those of the Union, will be subject to legislative control, and may be modified or abolished at will. This is not speculation: it accommodates the constitution of Virginia to the terms of the constitution of the Union, which has re*587ceived a fixed interpretation, and concerning whose meaning doubt is removed by a long train of recorded decisions.” P.615. Mr. Campbell of Brooke, “ should vote for the amendment of the gentleman from Norfolk. He had always thought that there ought to be but one constitutional Court, and that it ought to have two kinds of jurisdiction, appellate and original. It was now called ‘ a Court of Appeals,’ and its jurisdiction of course was appellate only; but if it were denominated a Supreme Court it might be endowed with original jurisdiction also.” By other members who participated in the debate, it was made a ground of objection to Mr. Tazewell's amendment, that the change of phraseology proposed, would give to the Court of Appeals the capacity to receive original jurisdiction. This amendment being negatived by a large majority, Mr. ¡Stanard thereupon moved to amend by inserting the word “Supreme” before the words “ Court of Appeals,” so as make the title of the Court read as it now stands in the constitution, “A Supreme Court of Appeals.” This amendment was agreed to without a division. During the discussion, it was admitted by some of the members that the federal constitution had received the construction stated by Mr. Tazewell; but they argued that a different construction might be thereafter given, and that the clause “ no modification,” &c. proposed to be stricken out by Judge Barbour, might be found necessary as a protection, not only to the Judges of the Superior Courts, but also to those of the Supreme Court. To which Mr. Tazewell answered, that he cared not how many different constructions might be put on the federal constitution thereafter. “If the convention (he said) adopt its language now, it adopts it as now construed. I am for adopting the words as they are now understood — I would take the words ‘a Supreme Court’ under the construction held by every department of the federal government, that the Supreme Court is a consti*588tutional Court. If we adopt the terms under this coustruction, we adopt the construction itself.”
The motion of Judge Barbour was also lost; but the ciauge jn question was subsequently much discussed, anq aftev various amendments, finally assumed the shape in which it now stands in the second section of the fifth article of the amended constitution, to wit: “ No law abolishing any Court shall be construed to deprive a Judge thereof of his office, unless two thirds of the members of each house present concur in the passing thereof; but the Legislature may assign other judicial duties to the Judges of Courts abolished by any law enacted by less than two thirds of the members of each house present.” It will be perceived that this section does not, in express terms, either enlarge or restrict the power of the Legislature to modify or abolish the Courts; but merely declares that a Judge shall not be deprived of his office by an act abolishing his Court, unless it is passed by two thirds of the members of each house. It is true, however, that the provisions of this section would be idle; they would have no office to perform, if there were no Courts, which it was in the power of the Legislature to abolish. And if in providing for the establishment of the Courts, the framers of the constitution had used like terms with regard to all, both the Supreme and the Superior Courts, there would arise from the adoption of the second section, the inference of a design to leave all alike within the power of the Legislature. As however there is a marked difference between the terms employed in reference to the Supreme Court, and those used in reference to the Superior Courts, and as full meaning may be given to all the words of the second section, and a proper function assigned to its several members, by treating it as designed to apply to the Superior Courts alone, no argument can be drawn from that section, adverse to the construction that attributes to the Supreme Court an existence beyond the reach of the Legislature.
*589The fourth section provides, that the Judges of the Supreme Court of Appeals and of the Superior Courts shall be elected by the joint vote of both houses of the General Assembly. The obvious meaning of this requirement is, that the Judges of the Superior Courts shall be elected as Judges of the Superior Courts, and those of the Supreme Court as Judges of that Court— otherwise it would have been unnecessary to have said more than that “ the Judges shall be elected,” &c. The spheres in which the Judges are severally to act, the rank and station which each is to occupy in the judicial system, are indicated in their elections and marked out in their commissions. Those who are elected as Judges of the Superior Courts may be required to officiate in any of the Superior Courts — in any Courts which are intermediate between the Supreme and the County Courts; whilst those who are elected as Judges of the Supreme Court cannot be required to discharge the duties of any other than the Supreme Court. The maintenance of the proposition that the Supreme Court may be composed of Judges elected to the Superior Courts; or in other words, that the Supreme Court may be established by a legislative mandate to a number of the Judges of the Superior Courts to hold it, must result in one of three conclusions; either that the Supreme Court might be abolished by an act of the Legislature, passed by two thirds of the members of each house, abolishing the Supreme Court to which the Judges directed to hold it, had been elected and commissioned, which would be directly at war with the proposition already established, that the Supreme Court cannot be abolished by any act of legislation ; or that the Supreme Court might be held by persons no longer holding judicial offices — an absurdity which no one would uphold ; or that the Judges of the Superior Courts, by mere force of an act directing them to hold the Supreme Court, might become Judges of a Court which cannot be *590abolished; and thus be placed beyond the reach of the Legislature, which would be in plain contravention of the provisions of the second section, which were desjgne(j t0 apply^ as we have shewn, to the Judges of the Superior Courts, and which in effect declare, that they may be deprived of office by an act passed by the constitutional majority, abolishing the Superior Courts to which they have been elected.
The fourteenth section of the old constitution of Virginia provided that the two houses of assembly should, “by joint ballot, appoint Judges of the Supreme Court of Appeals and General Court, Judges in Chancery, Judges of Admiralty,” &c.
In the case of Kamper v. Hawkins, 1 Va. Cas. 20, the question to be decided was, whether a Judge of the General Court could constitutionally exercise the functions of a Judge in Chancery. In 1792, the Legislature having passed an act giving to the District Courts the same power of granting injunctions to stay proceedings on any judgment obtained in any of said Courts, as was then had and exercised by the Judge of the High Court of Chancery in similar cases, an application was made at the May term 1793, of the District Court held at Dumfries, for an injunction to stay the proceedings on a judgment obtained at a previous term of that Court. The Judge adjourned the question, for novelty and difficulty as to the constitutionality of the law, to the General Court, which, consisting of Judges St. George Tucker, Tyler, Henry, Roane and Nelson, came to the unanimous conclusion, after a most elaborate examination of the question, that the law was unconstitutional; that the duties required to be performed by the act could only be executed by persons constituted Judges in Chancery, in the manner prescribed by the constitution. They held that the specification in the constitution of Judges of several tribunals, led to the conclusion that the tribunals themselves were meant to be separate and *591distinct tribunals — that “Judges in Chancery” could not, by a legislative enactment, be required or empowered to sit in the General Court, nor the Judges of the latter to sit in chancery, or to perform the functions of Chancellors — but that each class of Judges was designed to be restricted, in the performance of duty, to the Courts to which they were severally elected and commissioned. The reasoning by which the propriety of the decision in Kamper v. Hawkins is vindicated, applies, it seems to me, with greater force to the case before us, than it did to that out of which it was elicited: for, under the old constitution, all the Courts therein mentioned stood upon the same footing. All of them were constitutional Courts, and none of them could be abolished by the Legislature. Whilst in the amended constitution, the intention to treat the Superior and Supreme Courts as distinct tribunals, is not only as plainly manifested in the section providing for the election of the Judges, as was the like intention respecting the General and Chancery Courts, in the corresponding provisions of the old constitution, but is also still more strongly indicated, as we have shewn, in the section providing for the establishment of the Courts.
It being seen that the constitution designs the establishment of one Supreme Court of Appeals, that it withholds from the Legislature power to abolish it, that it requires a separate election of the Judges who are to compose it, there would seem to be a strange want of consistency in the system contemplated, if it should be found that the duties to be assigned to the Court, were left wholly within the legislative control. Why should the framers of the constitution declare, in effect, that there shall be but one Supreme Court, if they did not design its duties to be exclusive ? Why say that the Court shall not be abolished, if they did not intend those duties to be permanent and unceasing ? Why provide for the separate election of the Judges? Why *592throw around the Court peculiar safeguards, if it was not designed for the performance of appropriate and peculiar functions?
The designation in the constitution, of the tribunals in which the judicial power of the State is to be vested, would seem to be without any wise aim or purpose, if the Legislature may, in its discretion, assign to each the same or like judicial duties. If the Judges of the Superior Courts may in virtue of their office be required to discharge the duties of Judges of the Supreme Court, the provisions for the separate establishment of the Courts, and the separate election of the Judges, are but useless and idle restraints on the power of the Legislature. It being settled that the existence of the County Courts as they were, should be recognized., and a portion of the judicial power assigned to them in the constitution, there would have been, in the absence of any design to make an appropriate distribution of judicial duty among other tribunals, no necessity for their designation. In such a scheme, the design of the framers of the constitution would have been plainly indicated by declaring that the judicial power should be vested in the County Courts, and in such other Courts as the Legislature might from time to time ordain and establish.
The general terms in which power is conferred upon the Legislature to regulate the jurisdiction of the Courts, must find a limitation to their meaning, in the provisions for the establishment of the Courts and the election of the Judges, or the argument that attributes any value to the scheme of a judicial system in the constitution, must be abandoned. We cannot impute to the framers of the constitution the folly of erecting a tribunal, and throwing around it the shield of inviolability, and yet leaving all the purposes to be accomplished by it, the character of its duties and functions, within the direction and control of the body against whose power they have manifested the most anxious care, the most *593deliberate intention to protect it. In any regulation of jurisdiction, reference must be had to the character of the respective Courts, the nature and quality of their functions and duties. There is no clause in the constitution, declaring in so many words, the specific judicial duties to be assigned to each Court or class of Courts; but the intention to rank and classify them is manifest, and the nature of the judicial power to be vested in each, is plainly indicated by the terms calling for their establishment. To the Supreme Court of Appeals there must be assigned, under any constitutional regulation of jurisdiction, the duties which its style and title import and call for — supreme appellate power; and appellate power only is its characteristic attribute.
We have seen, that in the convention objection was made to the motion to give to it the title “ one Supreme Court,” simply on the ground that such a designation would indue it with the capacity of receiving original jurisdiction ; that this objection prevailed, and led to the adoption of the style it now bears in the constitution, “a Supreme Court of Appeals.” The shield of that construction which denies power to abolish it, was thus thrown around the Court, and the nature of its judicial power ascertained in the terms of its creation and discriminative appellation. Under the power to regulate the jurisdiction, the Legislature may declare what shall be the character of the judgments or decrees from which appeals to the Supreme Court are to be allowed, whether final or interlocutory; may prescribe the terms on which they may be granted, the time in which they may be taken; and may restrict the jurisdiction of the Court to such sum of money, or value of subject matter of controversy, as in its discretion it may think right; but no matter what may be the value or nature of the controversy on which the Court is called to decide, or the terms, time, or manner of its taking jurisdiction, the duty which the Court discharges must always involve *594the exercise of supreme judicial power. The quantum °f business, the amount of judicial duty to be performed by the Court, may be made to vary from time to time, tjje regHiati0ns and restrictions which the Legislature adopts, with respect to the right of appeal; but the nature of the duty, the quality and character of the power to be performed and exercised, is fixed and ascertained in the constitution, and must ever remain the same.
The right of appeal is the great test of the superiority and inferiority of the different Courts. The sense in which the terms supreme and superior are used in the constitution, is to be ascertained by referring to this standard, and not to the value, number or character of controversies over which the Courts may be called to exercise their jurisdiction. In Kempe's lessee v. Kennedy, 2 Cond. Rep. 223, Chief Justice Marshall, in defining the term “ inferior,” as used in the federal constitution, in connexion with the Court, says: “All Courts from which an appeal lies, are inferior Courts in relation to the Appellate Courts, before which their judgment may be carried.”
As there is no clause in the constitution, nothing in the term itself, to prohibit it, to the Superior Courts may be given original as well as appellate jurisdiction. So far as they exercise appellate jurisdiction over the decrees, judgments and orders of the County Courts, and so far only, they are superior to the latter in the sense contemplated in the constitution. To the Supreme Court of Appeals, supreme appellate power, and appellate power only, can be given ; and thus it is supreme over all the Courts, the highest in judicial power. To ascertain the value of the controversies on which the Courts are severally to act, and prescribe the terms, time and manner of their taking jurisdiction, in other words to regulate the jurisdiction of these several tribunals, is one thing, and is given to the Legislature; to prescribe *595the nature of the functions to be performed with regard to these controversies, the degrees of “judicial power” to be vested in the respective Courts, is another thing,- and is, as we have before remarked, fixed in the constitution.
The fact that the efficiency of the judicial system must, to some extent, depend on the manner in which the Legislature exercises its right to regulate the jurisdiction of the Courts composing it, furnishes no support to the argument that would subject the existence of the system itself to the legislative will. The limits within which the judicial control of the Supreme Court over the decisions of the other Courts is to operate, may be contracted or enlarged, as the Legislature, in its wisdom, may diminish or increase the sum necessary to give jurisdiction to the Court; but it by no means follows therefrom, that this control may be given, either in whole or in part, to another Court.
It remains to enquire whether the duties assigned to the “ Special Court of Appeals,” by the act constituting it, are not identical, in character, with .those which we have endeavoured to shew appertain to the Supreme Court of Appeals; whether they do not involve the exercise of the same degree of judicial power, and a like control over the decisions of the other Courts. The act requires the five Judges of the Circuit Courts, who stand first in commission, to convene regularly every year in December, on the day after the adjournment of the General Court, and to hold a Special Court of Appeals. They may adjourn from time to time, and may sit as often and as long as the Judges thereof may consider they can properly sit, without interfering with their duties as Judges of the General Court and of the Circuit Superior Courts. The clerk of the Supreme Court of Appeals at Richmond is required annually, in December, before such Special Court commences its session, to make out a docket of all causes, which, on *596the day for such commencement, shall have been depending in the Supreme Court more than two years, without being heard, unless the number of such causes, rea(jy por bearing, exceed seventy, in which case the c]erjj; shan make ollt a docket of the seventy causes ready for hearing, which shall have been longest pending in said Court; and such Special Court is to proceed to hear and determine all causes on the docket so made out. It is provided, however, that no case shall be placed upon said docket, when any party by himself or his counsel, shall object thereto. After the Special Court commences its session in December, the Court of Appeals at Richmond is to proceed during the winter and spring, to hear and determine such of the causes depending therein, as may not be on the docket of the Special Court. In the interval between the time at which the Court of Appeals at Richmond may commence its session in the fall, and the time at which such Special Court may commence its session in December, the Court of Appeals at Richmond may hear and determine any cause which may remain depending therein, notwithstanding it may have been on the docket made out for the Special Court. If a majority of the Judges of the Special Court be interested in, or from sickness or other reason unable to hear and determine a case on its docket, the case is to be stricken therefrom, and thereáfter the Court of Appeals are to hear and determine it. The clerk of the Court of Appeals, in person or by deputy, is required to attend the sessions of the Special Court, and to enter their proceedings, which are to be signed by the presiding Judge. And the decisions of such Special Court are to be certified and carried into execution, as if made by the Supreme Court of Appeals.
Each of the five Judges of the Special Court is, in addition to his annual salary, to receive ten dollars per day, for each day’s attendance on the Court, and be *597paid mileage for travel to and from the place of session, at the same rate as for other necessary travel. They may appoint their own crier and tipstaff, and allow them a reasonable compensation.
The reporter of the Supreme Court of Appeals is not required to report any causes decided by the Special Court, but said Court may allow any person approved by it to report its decisions, provided it be done free of expense to the State.
Such are the main provisions of the act constituting the Special Court of Appeals. In what respects do the duties required of the Special Court differ from those assigned to the Supreme Court? Is not the nature of the control exercised by each Court over the decisions of the other Courts of the State, the same ? Do not the same judicial results flow from the adjudications of the Supreme and the Special Courts? What right of the citizen can be determined by the former which ma3r not be as definitively settled by the latter? In fine, is there any characteristic of supreme judicial authority, which mere legislation can confer on any Court, and which, by the act constituting the Special Court, is withheld from it ?
The seventy causes which are annually to be transferred to the docket of the Special Court, are of the same character, whether we look to the amounts involved or the subject matters of controversy, with those retained to be determined by the Supreme Court. Certainly no difference in these respects is contemplated by the act. The Special Court is to hear and determine them as it would, but for the act, have been the duty of the Supreme Court to hear and determine them; and the decisions of the Special Court upon them are to be certified and carried into execution in the same manner as if they had been made by the Supreme Court. Irreversibility of judgment and indisputableness of control over the decisions and proceedings of the inferior tri*598bunals, all the legal sanctions that can mark the mandates of a Court as emanations of supreme judicial power, are, by the act in question, attached to the judgments and decrees of the Special Court.
It is true that the power to grant appeals is not given to the Court or its Judges, but it is very obvious that the absence or presence of the power is no test of judicial rank. If the Legislature can constitutionally confer upon the Court the dignity of judicial power attached to the decisions of an ultimate tribunal, it is very clear that, under the right to regulate its jurisdiction, it may prescribe the manner in which the causes to be subjected to the exercise of the power may be brought before the Court. The Legislature may prescribe, as it has done, that the appeals from the decisions of the inferior tribunals, shall be allowed by the Supreme Court, or by any of the Judges thereof in vacation, or it may confer this right on the Special Court and its Judges; or it may pass a law, allowing them as a matter of course in all cases; or it may even make the act of granting them, the duty of the tribunals whose decisions may be sought to be reversed.
It is not the power of granting appeals, but that of deciding them as a Court in the last resort, and of causing the decisions to be respected and obeyed by all other Courts in the State, that denotes in a judicial tribunal the residence of supreme appellate power. Now the only end and purpose for which the Special Court is created, its sole business and occupation, are to determine appeals. Its decrees and judgments are in no respects subject to the revision of any superior, whilst they act as mandates to all inferior Courts, to be by them observed and executed.
It has been very strongly argued that the clause providing that no case shall be placed on the docket of the Special Court, where any party by himself or counsel shall object, removes all the constitutional difficulties in *599the way of that Court’s proceeding to exercise the jurisdiction given to it by the act. Giving to this clause the construction that would make it of most avail in any argument maintaining the constitutionality of the act, to wit, that it amounts in effect to a requirement that the assent of the parties should precede any action of the Court, I should still regard the proviso as of no effect. I have endeavoured to shew that the Court itself has no foundation in the constitution, being created solely for the purpose of discharging certain judicial functions, which, in the plan of the judicial system, appertain exclusively to another tribunal.
The consent of parties, however formally made, cannot give to a tribunal so constituted the powers that belong to a Court, or clothe its orders with the'force of judicial mandates. The reasoning of the Circuit Judge on this head, in the opinion accompanying his return to the rule, is so forcible, and to my mind so convincing, that I deem it unnecessary to do but little more in reference to this branch of the enquiry than refer to it and to a decision of the Supreme Court of Kentucky, in the case of Stark’s adm’rs v. Thompson’s adm’rs, 3 J. J. Marshall’s R. 299, in which it will be seen that ail actual agreement of the parties to abide by the judgment, was held to be incompetent to give validity to the judgment of an unconstitutional Court. The case is stated in the opinion of the Court, which is brief, and is as follows: — “ The only question involved in this case is, whether it is the duty of the Circuit Court to regard and obey the maudate of the tribunal commonly denominated the ‘ New Court,’ when by parol the parties had agreed, that whatever opinion it should express should be obligatory on them ? This tribunal had no judicial power or authority. Consent could not give it jurisdiction or constitute it a Court. If parties litigant might submit their controversies to its incumbents as arbitrators, their award could only be enforced as any other ar*600bitrament might be carried into effect. A submission, to them, was not made in this case, by the order of the Circuit Court, and consequently the Court had no right to make their decision its judgment. It had no right to take any notice of their mandate, unless a suit had been brought on the submission; and then, whether it should have been respected, would have depended on whether the submission had been made to them as appellate Judges, or as ordinary arbitrators. The Court, therefore, did not err in refusing the mandate.” The unconstitutionality of the “ Special Court,” being established, the case before us falls fully within the reason of the decision just cited.
Those who deny the constitutionality of the “ Special Court” are, however, met by precedents of Special Courts established, as well under the old as the new constitution, to decide cases in a peculiar situation on the docket of the Court of Appeals. Supposing these Special Courts to have been legally constituted, I entirely concur with the Circuit Judge in the opinion that they furnish no binding precedent for the establishment of the Special Court of Appeals, now under consideration. They were formed under circumstances and for purposes totally different from those which attend and are brought forth to sustain the “ Special Court.” I am strongly inclined, however, to doubt whether any of the Special Courts referred to were strictly constitutional, and to concur in the opinion on this head, given by Judge Henry, in the case of Kamper v. Hawkins, who regarded them as unconstitutional. He excused his having on one or two occasions sat as a member of such a Court, on the ground that they were temporary; that they rarely happened; that “ it was exceedingly disagreeable to be always faulting the Legislature ; and perhaps one particular mischief had better be submitted to than a public inconvenience.” 1 Va. Cas. 55. 1 think it probable that like reasons have operated on the minds of many other Judges.
*601The cases in which these Courts have been called have been very rare ; and whilst the evils they were intended to remedy were most apparent and pressing, there was little or no danger that the decisions would in any respect interfere with the leading end of the Court of Appeals — uniformity of decision. Many of the Judges who have heretofore composed these Courts, influenced by these and like considerations, have probably thought it best to waive any enquiry as to the constitutional authority for the establishment of the Courts. Precedents drawn from instances of such Courts so established, I cannot regard as of sufficient force to forbid us to examine into the constitutionality of an act like that now under consideration, which transfers from the Supreme Court to another a large portion of the business of the former — a portion that will in all probability, judging from the past, constitute for the next ten years about one half of the cases tried : thus opening an ample field for that conflict of decision, and confusion in the ultimate exposition of the law, which it was thought would be avoided by the establishment of one Supreme Court. Having investigated the subject free from the influence of these supposed precedents, I have been unable to find any warrant in the constitution for the Special Court, and feel constrained to regard the existence of the two Courts, to wit, of that modified as it may be, if the act as it now stands is constitutional, and the Supreme Court, at the same time, as presenting a solecism in government no less strange than would be that of two independent Legislatures, each claiming to legislate for the same State, and over the same subject matters.
The denial of power to the Legislature to establish such a Court as the “ Special Court,” does not, as I conceive, involve any interference with their right to regulate the jurisdiction of the Courts. The ground of objection which I take to the act of March 31, 1848, is *602not that, in the exercise of the right to regulate the ju- . T . .. i • n risdiction, the Legislature have imposed any unwise or improper limitation or restriction on the qualified right ^ ^ citizen to an appeal, but that the appeals, when ta^en> are by the act transferred to the decision of a tribunal not contemplated by the constitution.
I do not deem it necessary to make an enquiry as to the mode of compensation for the Judges adopted by the act, as it is claimed that they discharge their duties by virtue of their commissions as Circuit Judges. If they can act as Judges of a Supreme Court of Appeals, by virtue of their commissions as Circuit Judges, I do not perceive how the payment provided for the discharge of their duties in the former Court, can of itself affect the validity of their judgments. In fact, however, in the view I have taken of the subject, the tribunal would be void, even though the Judges had been regularly appointed and commissioned as Judges of the Court of Appeals, the Supreme Court being already organized and in existence.
With the fullest confidence in the purity of purpose which led to the passage of the act, it has been to me a source of unfeigned regret that I have been constrained by a sense of duty to express my dissent from the General Assembly as to the existence of their constitutional power to enact it.
Baldwin, J. The purpose of the act of the 31st of March 1848, Sess. Acts of 1847-8, p. 51, in constituting a Special Court of Appeals, was to remedy and prevent the recurrence of a great and growing evil. The business of the Supreme Court of Appeals had been accumulating for a number of years, until its docket at Richmond, became so unwieldy as to defy the mental, moral and physical powers of its Judges, who, as well as the public at large, had long surrendered all hope of their being able to reduce the enormous mass, or to arrest its continual growth. The mischief was felt *603throughout the breadth of the land, in the despair and ruin of suitors and their families, in the disrepute drawn upon the administration of justice, and in the derogation from the fame of the Commonwealth herself. There was even danger of reproach to the legislative department of the government, for inactivity and supineness, under circumstances calling so loudly for redress.
The result has been the passage of the act in question, the policy of which is, by calling in the aid of Judges of the General Court, to occasion a dispatch of business, which, within a practicable time, will remove the existing incubus, and enable this Supreme Court to discharge beneficially the appropriate functions for which it was instituted.
This policy is indicated and subserved by the provisions of the statute, and no one supposes that these are not well adapted to the accomplishment of the end contemplated. But objections of the most serious import have been urged against the authority of the Legislature to make such enactments, which are assailed as invading the constitutional supremacy of this Court, as impairing the constitutional tenure of the judicial office, and as violating the constitutional provision for judicial compensation. These grave imputations require a calm and careful consideration.
Our amended constitution provides that “ the judicial power shall be vested in a Supreme Court of Appeals, in such Superior Courts as the Legislature may from time to time ordain and establish, and the Judges thereof, in the County Courts, and in justices of the peace”— that “ the jurisdiction of these tribunals, and of the Judges thereof, shall be regulated by law” — and that “the Judges of the Supreme Court of Appeals, and of the Superior Courts, shall be elected by the joint vote of both houses of the General Assembly.”
It was thus made the duty of the Legislature to create a Supreme Court of Appeals, by its constitutional ap*604pellation, and to appoint the Judges thereof. This duty being performed, the tribunal so constituted stood in the judicial system as the Supreme Court of Appeals, contemplated by the constitution, with the capacity to receive such appropriate jurisdiction as the Legislature thought proper, from time to time, to confer upon it.
The regulation by law of the jurisdiction of the several Courts of the Commonwealth, embraces the distribution of the judicial power amongst them; in regard to which, there is no limitation, except such as arises out of the distinctive character of the tribunals, so far as designated by the constitution. The jurisdiction of the Supreme Court is to be appellate, or of that nature in a liberal sense ; that of the other Courts may be either original or appellate — the jurisdiction of all may be either civil or criminal. There can be no appeal from the Supreme Court to the Superior Courts, nor from the latter to the County Courts; but, on the other hand, there is no constitutional right of appeal from the County to the Superior Courts, nor from the latter to the Supreme Court. The legislative department has authority to terminate litigation where it pleases, but cannot protract it beyond the Supreme Court of Appeals.
The jurisdiction of this Court is constitutionally supreme, not because it is final, but because it cannot be otherwise. The jurisdiction of other Courts may be rendered final by legislative permission, during which they have a kind of supremacy, but not in a constitutional sense. Thus the right of appeal from the County Courts, or the Superior Courts, may be withheld or restrained, at the discretion of the Legislature. But in the nature of things, no appeal can be allowed from the Supreme Court of Appeals to any other tribunal.
The jurisdiction of the Supreme Court of Appeals is therefore, of necessity, final, but the extent of it is a matter dependent wholly upon the legislative will. It may be made broad or narrow, as the discretion of the *605Legislature shall dictate. It may be made to embrace the whole judicial appellate power, or a small portion of it only. It may be confined to civil controversies, or to actions at common law, or to suits in equity, or to actions or suits of a particular description. It may exclude civil controversies altogether, and be restricted to criminal causes. It may, from time to time, be extended or withheld, or withdrawn, as to the legislative mind may seem most expedient.
The policy which led to the constitutional requirement of a Supreme Court of Appeals, is sufficiently obvious, and needs no exposition. But it was a policy which could not be carried out by the fundamental law itself, without undertaking to regulate thereby the jurisdiction of the several Courts; and to have done this by a law so permanent in its nature, would have precluded such alterations in the distribution of the judicial power, as experience should suggest, and the changing wants and interests of the country at future periods require. Indeed, it would have been incompatible with the unlimited power given to the Legislature to establish Superior Courts, whether of civil or criminal, common law or equitable, original or appellate, jurisdiction, and to modify, change or abolish them at pleasure. It was therefore deemed best to ordain the establishment of a Supreme Court of Appeals, and to leave its practical usefulness unreservedly to the care and wisdom of the legislative department; nor could it be supposed that the representatives of the people would be indifferent to the advantages of such an institution, or fail to direct them to the promotion of the public interests.
The legislative control over the jurisdictions of the several Courts continues to exist, in relation to the litigation which they embrace, until the judicial power over it is exhausted ; when the matters of controversy cease to be the subjects of jurisdiction, and become the subjects of property. The judicial power is exhausted *606in a cause when there has been a final and irreversible adjudication of it by a Court of competent jurisdiction, whether original or appellate. The claim or defence of successfui party then becomes a vested right, and removed beyond the pale, both of judicial cognizance and legislative regulation. Until then it remains within the province of jurisdiction, over which the legislative department has complete dominion.
There is no such thing as a lien upon the jurisdiction of a Court, obtained by the institution or prosecution therein, of an action or suit, whether original or appellate. So far as the Legislature may constitutionally distribute the judicial power amongst the several Courts of the Commonwealth, to the same extent they may afterwards re-apportion it, in the whole or in part, both prospectively and retrospectively; and no suitor has a right to complain that his cause is thereby transferred from the cognizance of one tribunal of justice to that of another. It cannot be doubted that the Legislature may establish an Appellate Court, intermediate between the Circuit Courts and the Supreme Court, with the final cognizance of any description of appellate causes from the Courts below, and by subsequent enactment transfer the same to the like cognizance of the General Court. The General Court itself is now such an intermediate tribunal in criminal cases, none of which, under the existing law, can ever reach the Supreme Court of Appeals. And why may not the Legislature, if the public interest requires it, disburthen the docket of this Court by transferring any portion of its business to the General Court; and if to the General Court, why not to any other Superior Court which they may choose to establish ?
The supremacy of this Court is to be found, not in the extent of its jurisdiction, or the amount of its business, but in the paramount force and authority of its adjudications — a force acting directly in controlling, *607without being controlled by, other tribunals — an authority operating indirectly, from the respect and deference due to the highest tribunal known to the constitution and the laws. The influence of its authority extends beyond the range of its power. It is not limited by its actual, but is co-extensive with its potential jurisdiction — with its capacity to receive from the laws unlimited control over all cases decided by the subordinate tribunals. The conformity of the other Courts to its principles is not a slavish submission to the lash of power, but a willing and cheerful obedience yielded from a sense of propriety and duty.
The authority of the Supreme Court, as distinguished from its power, is not the less obligatory upon a subordinate tribunal, because the same has not yet been subjected, or only partially subjected to its jurisdiction. The principles of the civil and the criminal law are in many respects the same, and the same questions may arise in the administration of both. The General Court is still the Court of last resort in criminal cases; and yet can it be supposed that in the adjudication of a criminal cause, that tribunal would not be governed by a principle applicable to it, which had been settled by decisions of the Supreme Court of Appeals? Or does any one seriously believe that the latter would be bound to conform to the decisions of the former, because in the present state of the law the same are irreversible ? It would be difficult for those indulging such a fancy to stop short of allowing the like influence to irreversible decisions, not only of the Circuit Courts and the County Courts, but even of justices of the peace.
If the foregoing views be correct, in what respect does the law in question invade the constitutional supremacy of this Court? It provides for the trial, annually, by the Special Court of Appeals thereby constituted, of the seventy eldest causes ready for hearing, which shall have been depending more than two years in the branch *608of the Supreme Court held at Richmond. The effect of this law is, by a uniform regulation, to withdraw from this Court a portion of its business, and send it to the determination of another forum. Its operation is, in the first place, to reduce the docket within a reasonable compass, and afterwards to keep it in the same condition. It affects the jurisdiction and not the supremacy of the Court. In truth, the difficulty of this question, it seems to me, has arisen from confounding the jurisdiction of the Court with its supremacy, which are far from being identical: the former is derived from the laws, the latter from the constitution; the former is temporary and mutable, the latter permanent and immutable; the former is the field for the exercise of judicial power, the latter is in itself the exercise of that power.
The moment it is ascertained that this Court continues supreme, it follows, from the same principles, that the tribunal organized by the law in question is neither supreme nor co-ordinate. It is true, that its adjudications are final and irreversible; but not more so than those of the General Court in criminal causes; not more so than many of those of the Circuit Courts, of the County Courts, and of justices of the peace. The right of appeal from that tribunal to this does not exist to-day, but the Legislature may allow it, to any extent, to-morrow. On the other hand, it is beyond legislative power to authorize appeals from this Supreme to that Special Court. There is no substance, therefore, in an objection removable by a mere shadow; the allowance, if it please the Legislature, of appeals from the Special Court, so restricted, in reference to amount, or otherwise, as to render the right illusory only. The Special Court is a subordinate tribunal, as much so as any other Superior Court which the legislative department may, in its discretion, from time to time establish; and is as much bound to defer to the authoritative decisions of the Supreme Court of Appeals.
*609It is obvious that the necessity for legislation on this subject arose out of an excess of appellate jurisdiction, beyond the judicial force applicable to its administration. This involved a choice of expedients, of which there were but three at all feasible. One was to restrict the right of appeal from the Circuit Courts, to such a degree as to diminish greatly the amount of business flowing into this Court: another was to establish one or more intermediate Courts (or adopt the General Court in lieu of them) to receive and adjudicate the appeals from the Circuit Courts, with a right of appeal from the former to the Supreme Court, so restricted as to occasion the like result: the third was to suffer the appellate causes from the Circuit Courts to pass, as before, to the Supreme Court, and by establishing (or adopting) a Special Court, and transferring to it a portion of the business of the Supreme Court, curtail to a reasonable extent the docket of the latter. Of these expedients, the two former did not reach the immediate urgency of the prodigious mass already accumulated in this Court, and the first would have wholly abrogated the right of appeal in cases of considerable importance to many litigants: while the last, which the Legislature adopted, was free from these objections.
The Special Court is an auxiliary judicial force provided by the law in question for dispatch of the appellate litigation of the country, as would have been the General Court if adopted, or any intermediate Court if established, for that purpose. No one supposes that the constitution contemplates the transaction of all appellate business in the Supreme Court of Appeals; and as to so much of it as the Legislature may direct to be disposed of by auxiliary Courts, the mode of its reaching them is quite immaterial. What can be less substantial than the question, whether it should reach them by direct appeals, or by transfer from the docket of the Supreme Court? In truth, the General Court is now auxiliary to *610the Supreme Court, by relieving it from all the appeals in criminal causes: would it be any thing more, if by legislative regulation the appeals in criminal cases should be tQ tjje gUpreme Court, and thence turned over in t}le w|10¡e or irj part to the General Court ?
The obvious reason why by uniform provision of the law in question, the Special Court receives its business from the docket of the Supreme Court, is that the primary object of the legislation was to remove the old deposit which stood in the way of the new accretions, and the latter it was both convenient and expedient to embrace in the same enactment. Now, so far as this law regulates future appeals, the objection to it, it will be seen, is merely formal; and so far as it regulates appeals already pending, the objection would seem to have sprung from a vague and fallacious idea that it is the existence, and not the exercise of jurisdiction, which places them beyond the reach of legislative regulation ; and that having been once brought within the precincts of this Court, whether by arbitrary appeal or otherwise, they have become, by a sort of constitutional enchantment, fixed and immovable. This idea, after what has been already said, would seem to require no further notice.
In the next place, we are to consider whether the law in question impairs the constitutional tenure of the judicial office. The act provides that the five Judges of the Circuit Superior Courts, who, for the time being, shall stand first in commission with respect to precedence and seniority, shall constitute the Special Court of Appeals: and the point of the objection is, that the seats of these Judges in that Court are judicial offices, to which they are not appointed, and which they do not hold, in the manner prescribed by the constitution. We have seen that the Judges of the Supreme Court of Appeals, and of the Superior Courts, are, by the constitution, to be elected by the joint vote of both houses of *611the General Assembly; and the same instrument further provides, that they shall hold their offices during good behaviour, or until removal by a concurrent vote of the two houses, two thirds of the members present concurring in such vote, and the cause of removal being entered on the journals of each. And it has been urged that the Judges of the Special Court have not been appointed thereto in the manner so prescribed, and do not hold their offices until conviction, upon impeachment, of misbehaviour, or until removed by the joint vote of both branches of the Legislature as above mentioned; but that they have been appointed by statute, and are liable to be removed by the repeal of the same.
A judicial office imports the legal capacity and obligation of the incumbent to render judicial service, by holding one or more Courts of Justice: and it is true, that when the whole service is extinguished by competent authority, the office itself is thereby abolished. But the act in question creates no new judicial offices, and appoints no additional Judges; but merely attaches new duties to judicial offices already existing, to be performed by incumbents thereof already appointed; and this is clearly within the constitutional power of the Legislature.
We have seen that the constitution confides to legislative discretion the establishment, from time to time, of Superior Courts, and the regulation of the jurisdiction of the same, and of the Judges thereof :■ and it is easy to perceive that such Courts are thereby made subject to the complete dominion of the legislative department. They may be created, or abolished, or modified, or moulded into any form or condition, at the pleasure of the Legislature. A Court of Common Law may be converted into a Court of Equity, or a Court of civil, into a Court of criminal jurisdiction, and yet the new judicial duties be required of the same Judges. It cannot be doubted that the present Circuit Superior Courts *612of Law and Chancery may be abolished, and District Courts established — some of common law, and others of equity jurisdiction, to be held by the present Judges, of w|lom some may be assigned to the former and the rest t0 ^ iatteri And it is equally clear that a new Court may be created and allotted as an additional service to the Judge of a Court already existing. This was done, even under the old constitution, by the act of 1788, establishing District Courts of Law, and directing them to be held by the Judges of the General Court.
But though the Legislature may thus retain the judicial service of the Judge of any Superior Court, notwithstanding the Court itself to which he was appointed be abolished; yet there being no obligation to do so, it follows that in the absence of any further constitutional provision on the subject, the extinguishment by legislation of the whole judicial service of the Judge, by abolition of the Court or Courts to which he had previously been appointed and allotted, without the substitution of any other, would have had the effect of depriving the Judge of his office; for though the Judge would not be removed from his office, the office would be removed from the Judge. In order to prevent such a result, in relation to any of the Judges, the wise expedient was resorted to of introducing the following clause into the 5th article of the constitution: “ No law abolishing any Court shall be construed to deprive any Judge thereof of his office, unless two thirds of the members of each house present concur in the passing thereof; but the Legislature may assign other judicial duties to the Judges of Courts abolished by any law enacted by less than two thirds of the members of each house present.”
The result of the various constitutional provisions bearing upon this subject is, that in relation to the Superior Courts, the judicial office of an incumbent is not an incident of his Court or Courts, but his Court or *613Courts are incidents of his judicial office. He is appointed, it is true, by the joint vote of both houses to one or more Courts, but in effect he is potentially the Judge of a whole class of Courts, and the law might provide for his appointment in that form, with the assignment of special service. His judicial office consists of the legal capacity and obligation to render judicial service in any Court or Courts to which he may be called by authority of the Legislature, either by original appointment or subsequent legislation. His judicial service may be shifted or increased, or diminished, or even extinguished; but his judicial office continues, and he cannot be deprived of it by legislation, unless the law abolishing the Courts attached to it have the concurrence of two thirds of the members present in both houses.
The Legislature is thus unembarrassed by any constitutional impediments, in providing for and regulating the administration of justice, by means of the Superior Courts and the Judges thereof; and at the same time the qualified independence of the judiciary contemplated by the constitution, is preserved. In regard to new Courts and jurisdictions, the exigencies thereof may be supplied, in the discretion of the Legislature, from the judicial force already existing, or by the appointment of additional Judges. The law in question has wisely adopted the former alternative. And the case which has been cited of Kamper v. Hawkins, 1 Va. Cas. 20, only serves to shew that a difficulty which occurred under the old constitution can have no existence under the new. In that case, it was held that so much of the revised act of 1792, as gave chancery jurisdiction to the District Courts in injunction cases, was unconstitutional, inasmuch as the constitution provided that the two houses of Assembly should, by joint ballot, appoint Judges of the Supreme Court of Appeals and General Court, Judges in Chancery and Judges in Admiralty, to be commissioned by the governor.
*614It remains to be considered, whether the law in ques- . , ... .. ...... tion violates the constitutional provision for judicial compensation. Our amended constitution provides, that „ jU(jgeg 0f Supreme Court of Appeals, and of the Superior Courts, shall receive fixed and adequate salaries, which shall not be diminished during their continuance in office.” The word salary, in its most usual and exact acceptation, imports a certain remuneration accruing at stated periods, for enduring personal service ; as so much for every week, or month, or year. But it is sometimes used in the sense of wages or emoluments, which may be precarious or fluctuating, or occasional, and affected-by price, value, or the time of actual labour. In order to avoid all ambiguity, and adopt, beyond cavil, the most usual and appropriate signification of the word, the adjunct “fixed” is also employed; and the two together, “ fixed salary,” convey a definite and precise meaning, as to which there can be no misapprehension. It is obvious, however, that these terms look to certainty and fixedness, and not to permanency, in the amount of compensation. They do not require that the amount should be unchangeably the same during the continuance of the incumbent in office ; and if they stood alone, there would be nothing to prevent the Legislature from altering prospectively, from time to time, the amount of the salary; and hence the necessity for the introduction of the additional words, “ which shall not be diminished during their continuance in office.”
In the insertion of these .additional words, the convention, doubtless, had in view a construction that had been given to the clause for judicial compensation in the old constitution, which simply ordains that “the Judges shall have fixed and adequate salaries.” By the act of January 1788, establishing District Courts, they were directed to be held by the Judges of the Court of Appeals. This act the Judges of the Court of Appeals declined to execute, and presented to the Legislature a *615remonstrance against it as unconstitutional; and one of the grounds taken, was, that it greatly increased the la-hours of the Judges, without any corresponding reward; with the concession, however, that “ when public utility should require an increase or diminution of duty, there should be an analogous alteration of salary.” 1 Va. Cas. 103. This admission of the power of the Legislature to increase or diminish the salary, manifestly comports with the terms of the instrument; and whatever may be thought of the qualification, that it must be founded upon a corresponding addition or diminution of duty, there is evidently no room for it under the amended constitution, which absolutely prohibits a diminution of the salary, and which, by giving to the Legislature the unlimited regulation of the jurisdiction of the several Courts, and of the Judges thereof, precludes a Judge from higgling for an increase of compensation, as a condition of his executing a law requiring of him the performance of additional duties.
The judicial compensation, which is thus required by the constitution, is attached, not to the judicial service, but to the judicial office of the incumbent. It is in no wise dependent upon the judicial service ; for that the incumbent may be unable or unwilling to perform, or it may be diminished or wholly extinguished by legislation ; and yet his salary remains entire and indestructible during his continuance in office. The adequacy of the salary is of course a matter of mere legislative discretion, and can never be made the subject of legal adjudication ; and the considerations which should govern the amount are obviously of a general and permanent nature, and not such as are only temporary and occasional; for if determined in reference to the latter, it will not be adapted to different circumstances; and however much the service may consequently be diminished, there can be no reduction of the compensation. While therefore it was wise to ordain that a salary should be attached to *616the judicial office, to which the incumbent might look as a certain and permanent support, it would have been unwise to inhibit all other compensation under all cir-stances, however just and reasonable it might seem to the legislative department. And accordingly we find in the constitution no such restraint upon legislative power.
The question, it will be observed, is not what power over this subject has been granted to the Legislature by the constitution, but what power in regard to it is inhibited to that department, by express terms or strong and clear implication. For undoubtedly the legislative authority is supreme in this and all other matters of government, except so far as restrained by the sovereignty of the people in convention. The Legislature has the charge of the public interests, faith and credit, and rules at its discretion, the policy, equity and bounty of the State.
The salary attached to the judicial office enures directly to the benefit and protection of the incumbent, and indirectly only for the advantage of the public. The constitution is mandatory in regard to its allowance, and prohibitory in regard to its reduction, but prescribes nothing as a safeguard to the public treasury against excess of remuneration, nor was any such security against improvident legislation at all requisite. There is no good reason why, besides the salary which the constitution requires to be attached to the judicial office, the Legislature may not in its discretion annex a compensation to a special judicial service, when from its temporary or occasional nature, or other circumstances, it would be impolitic to increase the permanent salary; or why, after such a service has been performed, there may not be considerations, such as its having been onerous and unexpected, appealing successfully to the justice and liberality of the law-making power.
There are repeated examples in our legislation, of compensation to a Judge for special service, over and *617above his regular salary. By an act passed in the year 1826, in relation to the former Superior Courts of Law, there was a general provision, in the event of the failure of a Judge to hold any of the Courts of his circuit for two successive terms, for special terms thereof to be held by some other Judge of the General Court, for which he was to receive a per diem of eight dollars, besides mileage. Iu the year 1834, an act was passed, reciting that in consequence of the mass of business transferred from the late Chancery District Court of Richmond, to the Circuit Superior Court of Law and Chancery for the county of Henrico, to be adjudicated by that Court, and of other causes peculiar to the seventh judicial circuit, the compensation of the Judge of that circuit bore no proportion to the extent of his public labours and services; and therefore enacting that the Judge of that circuit should, in addition to his then salary, be allowed the sum of 200 dollars per annum for and during the term of three years. And in the year 1838, an act was passed, allowing the Judge of the twelfth judicial circuit, for duties thereby required, the sum of 600 dollars annually, for and during the term of five years, in addition to his salary. And so, if one or more of the Courts of any circuit should become so crowded with business as to render it impracticable for the Judge to dispatch the same within a reasonable time, why may not another Judge be required to aid him, by holding additional terms for that purpose, with the allowance of a special compensation for that special service ?
The law in question directs that “each of the said five Judges of the General Court shall receive ten dollars per day, for each day’s attendance on such Special Court,” besides mileage. We have seen that the purpose of the act was, by the aid of the Special Court, to effect a reduction of the docket of the Supreme Court, and then to keep it within a reasonable compass. It *618was probably calculated by the Legislature, that the first °f these objects would be accomplished in a few years, and that thereafter the Special Court might be ¿jspense(j with, or that its duties would be but brief and 0CCasi0nal. And if so, was it not a wise and legitimate 3 t ° exercise of legislative discretion to compensate such additional service in the mode adopted, instead of making large permanent additions to the salaries of the Judges ? It seems to me clear that when a new special service is required of a Judge, it is within the province of legislation to determine, whether the compensation therefor shall be by an increase of the salary attached to the judicial office, or by a specific allowance during the continuance of the additional service.
If this were otherwise, still I do not perceive how the mode adopted for the compensation of the Judges can render the Special Court unconstitutional. It was competent for the Legislature to require the service, without any compensation therefor; and if that had been done, the objection must be taken as conceding that the acts of the Court would have been valid. Are they rendered null and void by a gratuitous allowance to the Judges of a per diem compensation, supposing that to be unconstitutional? Certainly not; the compensation would be void, but the service would be valid.
The supposed mischiefs and dangers of the construction given to the constitution by the enactment of the law in question are not unworthy of consideration ; but will be found, I think, upon even a cursory examination, to be merely theoretical.
The usefulness of the Supreme Court can be in no wise impaired by the operations of the Special Court. As a Court of administration it has no peculiar advantages, and justice may be quite as well dispensed in the other tribunals. Its chief value is a Court of jurisprudence, where the law may be expounded and settled, *619upon thorough discussion, mature consideration and der . . . liberate conference: Hurried examinations and hasty opinions, extorted by the pressure and responsibility of a huge docket, must inevitably detract from the utility, weight and dignity of this forum. Unfortunately, with all the valuable assistance afforded by the Special Court, the labours of the Supreme Court, as a Court of administration, must still be too great to allow the full benefits which it ought to yield as a Court of jurisprudence. Will its usefulness in the latter respect be increased by depriving it of the aid which the legislative will has furnished in the former?
If no extrinsic judicial aid can be brought to bear upon the accumulated business of this Court, the result must be that though causes on this docket should not be reached for generations, they must still remain as monuments of the supremacy of this tribunal, until in the lapse of time decided here, or expelled and extirpated by a violent legislation. The principle even of Special Courts heretofore provided for, during a long period, by successive laws, to reach delays in particular cases, occasioned by interest or infirmity of some or all of the Judges, has been controverted; and such legislation placed on established precedent, or the plea of an extreme and overruling necessity. If any plea of necessity be admitted, I am aware of none more urgent than that of removing impediments to the administration of justice here, which have made the delays equivalent to denial, and have so seriously impaired the value of this tribunal, as to raise in the minds of some the question, whether it ought not, if allowable, to be abated as a nuisance. In truth, I do not hesitate to admit that, to rescue this forum from such a condition, and enable it to perform the purposes of its institution, was a necessity which might have warranted (in the absence even of the general grant to the Legislature of the regulation of the jurisdiction of the several Courts, *620and of the Judges thereof,) a legislative commission to any incumbents of the judicial office, to dispose by adjudication of the arrears of business of this Court.
The alarm has been sounded of prospective legislative encroachments upon the judiciary, if the law in question should receive our sanction. It is urged that the next step may be to invest the Special Court with the power to grant appeals directly to that forum, and it is asked whether there will not then be two Supreme Courts of Appeals, instead of one. Whenever such a law shall be passed, it will be time enough to decide upon its constitutionality. The Legislature has wisely abstained from conferring such a jurisdiction, and has confined itself to a distribution of appellate business, with a view to the relief of this Court by means of an auxiliary tribunal. I deem a distribution or re-apportionment of appellate jurisdiction unobjectionable; and that it is wholly immaterial whether it takes effect as the beginning or the end of the appellate current. In the former case, it would doubtless be proper to have some uniform rule of distribution, as well as in the latter; which could easily be accomplished by prescribing what description of causes should go at once to the one forum, and what to the other. The Special Court, under such an arrangement, would be no more co-ordinate with the Supreme Court, than the General Court is at the present time, with its exclusive jurisdiction of a certain class of appellate causes, to wit, the appeals in criminal cases.
It is further urged, that though this law limits the transfer of causes to the Special Court to a certain number, and requires them to be of the longest pendency here, yet that the principle would equally warrant such transfer of any number, embracing too such as are most recent; that in this way the Supreme Court might be reduced to an empty pageant; and that another law, abolishing its existence, would render the Special Court, *621in form as well as in effect, supreme. There can be no force in the argument, if the same result may be prodnced by a different course of legislation, acknowledged on all hands to be free from any constitutional impediment. Let us suppose a law directing all appeals from the Circuit Courts to be taken to the General Court, without giving any right of appeal from the latter to the Supreme Court. Would the jurisdiction so conferred on the General Court be unconstitutional, and its judgments null and void ? Or suppose such right of appeal from the General Court to be granted in controversies of the value of a million of dollars, would that remove the objection ? Is it not perceived that under such a law, the Supreme Court would be left, in the lapse of time, without jurisdiction; and yet that the mischief would be without remedy, except at the hands of the Legislature ?
Whether the Legislature has the constitutional power to abolish the Supreme Court of Appeals, with or without the establishment at the same time of another, is a question which does not arise in this cause, and is one too grave for the expression of an incidental opinion. I will merely observe, that upon the supposition of the legislative power to abolish this tribunal, it would be very remarkable if there were none to remedy mischiefs in regard to its jurisdiction, while in existence.
Another sound of alarm is, that if the principle of a per diem allowance for judicial service be conceded, it may lead to the legislative abuse of fixing the regular salary at an inadequate sum, in order, by means of an additional per diem allowance, which may be rescinded at pleasure, to render Judges subservient to the passions and prejudices of the Legislature. But the argument proves too much : for the supposition of a fraudulent purpose renders all safeguards unavailing. It is as easy to imagine the design to be to fill the judicial offices with corrupt tools, with the expectation of their being influenced by the hope of an increase of salary.
*622The truth is there are various constitutional duties, affee-ting the judiciary, confided to the Legislature, which must rest for their performance upon the good faith, ju¿gment an¿ discretion of that department, and which canno,: enforced by any other authority, except that of the people in choosing their representatives. Thus it is the duty of the Legislature to provide a Supreme Court of Appeals, and such Superior Courts as the due administration of justice may require: but if they should disregard that constitutional obligation, where is the remedy ? So they are bound to invest the Supreme Court with an extent of jurisdiction sufficient for the accomplishment of the purposes of its institution: but who ean exact the performance of that trust ? And so it is incumbent upon them to provide for the Judges adequate salaries: but should they fail to do so, where is redress to be sought for such a mischief? Indeed, the constitutional securities for the judiciary are wholly ineffectual, without a previous performance of legislative duties; and consist mainly in the guarantees of vested rights. Thus when jurisdiction has been conferred upon the Supreme Court of Appeals, and it has proceeded to pronounce a judgment or decree, no legislation can authorize an appeal from the decision. So when the judicial offices have been filled by the appointment of Judges, the incumbents cannot be removed therefrom by any act of legislation. And so when a salary has been attached to the judicial office, the diminution of it, to the prejudice of the incumbent, is beyond the competency of legislative power. But there is nothing in the constitution to countenance the idea, that because cases have once fallen within the jurisdiction of this Court, they can never be removed from it by any regulation of law, however urgently required for the administration of justice, and the promotion of the public weal.
Upon the whole, it seems to me the law in question is wise and salutary, and in the true spirit of the consti*623tution, which does not aim at a beau ideal of judicial restraint upon legislative power, to be attained by the sacrifice of practical good sense in the administration of the government — that we are not at liberty to indulge in theories as to the general plan and scope of the instrument, and make them the touchstone of its actual provisions — that we must look to the plain terms and true import of its grants and limitations of power, and decide questions arising upon them as we would any other points of law presented for legal adjudication— that we are not tribunes of the people, clothed with authority to put our veto upon laws, the tendencies of which we may suppose to be adverse to the public weal or safety — that there is no express negation in the constitution of the legislative powers exercised by the law in question, and no necessary implication of such negation by the declarations which it contains of legislative duties — that, on the contrary, the recognition by various clauses of the authority to establish and abolish Courts, and to regulate their jurisdiction, imports a wide field of legislative discretion — that no judicial legislation is allowable, with a view to the erection of barriers against apprehended legislative abuses under the forms of the constitution — that the correction of such corruptions, when they come, is by an appeal to the people at the polls — and that when it shall be found no redress can be had there, it will be idle to seek it from any other tribunal.
The cause has been ably and earnestly discussed on both sides, and I have given it all the consideration which circumstances have allowed: and, with a perfect conviction that no good objection has been shewn by the return to the rule, or otherwise, I think the writ of mandamus ought to be awarded.
Allen, J. The objections to the validity of the act of March 31, 1848, for re-organizing the General Court, *624and constituting a Special Court of Appeals, may be considered under two general divisions: The first, relating to the character of the Court thereby created; the p0Werg jmpai'ted to it; and the rights of suitors in-in controversies now depending in the Supreme Court of Appeals. The second, referring to the Judges of the Superior Courts, upon whom new duties are imposed, and the mode by which compensation for additional services is to be made. In presenting the reasons which have conducted me to a conclusion, I shall not attempt to comment on many of the arguments which have been presented. The act upon its face shews that the Legislature was actuated bjr no other motive than a proper desire to provide a remedy for the delays of justice, growing out of the accumulation of the business in the Court of Appeals. That there was no intention to interfere with the constitutional rights of the Supreme Court, or to impair the independence of the judiciary ; and if such be the effect of the law, it has resulted from mistake and not design. In the scheme of the judicial system, presented by the constitution, we have a Supreme Court of Appeals, the County Courts, and between them, such Superior Courts as the Legislature may, from time to time, ordain and establish. The County Courts, as then existing Courts, were perpetuated, and the Supreme Court, when called into being, also exists as a constitutional Court. The continued existence of such Superior Courts, as might from time to time be established, was made dependent on the discretion of the Legislature, to modify, change or abolish, as public convenience required. We can have but one Supreme Court of Appeals; it is incompetent for the Legislature to constitute a co-ordinate tribunal, for if supreme, it can share no divided empire. If the effect of the act under consideration, is to constitute such a co-ordinate Court, invested with a portion of the supremacy of the Court of last resort, it will be in conflict with the constitution, and therefore invalid.
*625In ordaining that there should be a Supreme Court of Appeals, the constitution did not'designate what portion of judicial power it should exercise. All judicial power was vested in it and the County Courts, and such Superior Courts as might be established, and the Judges thereof. But no attempt was made to define their jurisdiction. In this respect, departing from the provisions of the old constitution, by which Judges were to be appointed to exercise certain portions of the judicial power; and also differing from the constitution of the United States, which declares that a certain portion of the judicial power vested in the federal judiciary, shall belong to the Supreme Court, as part of its original jurisdiction, but that the residue of the judicial power vested in it, shall be exercised by it as a Court of appellate jurisdiction only. If the constitution had been silent as to the mode of exercising the judicial power conferred, though a law might have called the Court into existence, and Judges have been duly appointed, the Court would have possessed no inherent power to act in any case. Legislation would have been still necessary to give it jurisdiction over the case submitted, and prescribe the manner in which it should be exercised. It would, in that case, have rested in the discretion of the Legislature, to carry out the mandates of the constitution. The constitution rests upon the presumption, that the same community which has ordained it, will appoint proper agents to carry its provisions into effect; that the Legislature will not only organize the Court, but carry out the spirit of the constitution by conferring upon it all appropriate jurisdiction, so as to fulfil the objects of its creation. The construction of the constitution is not to be entered upon in a spirit of distrust towards the legislative department. For if that be felt and acted upon, our system of government would become impracticable. There is no external force which can be brought to bear so as to compel the Legislature to discharge any *626of its functions. By abstaining to elect a governor, we may be left without an executive; by refusing to pass laws, or repealing those in existence regulating the jurjg(jjC|.jon Qourts and Judges, the judicial power wovrtd m abeyance. Such extreme suppositions lead to no practical result. But to remove all doubt as to the discretion intended to be confided to the Legislature, it is expressly declared “ that the jurisdiction of these tribunals, and the Judges thereof, shall be regulated by law.” In the language of Judge Marshall, as recorded in the Debates of the Convention, page 505: “ The article leaves the whole subject open to the Legislature. They may limit or abridge the jurisdiction of all the Courts as they please.” And again : “ The whole subject of jurisdiction is submitted, absolutely and without qualification, to the power of the Legislature.” In the exercise of this discretion, they have portioned out the jurisdiction amongst the different Courts ; and in doing so, have withheld from the jurisdiction of the Supreme Court of Appeals, all cognizance of criminal cases; and in civil cases, have restricted it (with certain exceptions) to controversies where the matter involved amounted in value to 100 dollars, or upwards. They could, in their discretion, have limited it to any other sum.
There being no limitation on the discretion of the Legislature, in the regulation of the jurisdiction of the Court, the supremacy which characterizes and distinguishes it from other tribunals, cannot be affected by legislation bearing merely on the jurisdiction confided to it. It is not the less supreme, because no appeal lies to it from the judgments of the General Court in criminal cases. It would still remain the Supreme Court, though jurisdiction in cases of wills, or any other branch of jurisprudence, should be denied to it.
Nor does its supremacy result from the exercise of appellate jurisdiction: Every Court in the Commonwealth *627is an Appellate Court in certain cases. Nor is it a consequence of the finality of its decisions in cases of appeals; for the judgments of every other Court are final within certain limits, whether the cases be brought before them by appeal or original process. Nor does its supremacy depend on the importance of the controversies submitted to its cognizance : The General Court by the existing law decides finally in cases involving the life of the citizen. The principle upon which the supremacy of the Court rests is not to be found in any of these circumstances. We have Courts endowed with all these attributes, and yet they are confessedly subordinate tribunals. It is the consequence of the fact that the form of the Court cannot be changed or modified at the will of the Legislature; it must exist as a Supreme Court or not at all; and because its judgments are not only final by the law giving it jurisdiction, but there exists no power to subject them to revision : otherwise it would cease to be the highest, and if so, the Court of the last resort. The Court can act in no case except by virtue of and in the mode prescribed by law; and the Legislature may at their discretion, enlarge or limit its jurisdiction. But when it has acted upon a case confided to its jurisdiction, the judgment is binding on all. Though existing laws may make the judgments of other Courts final within certain limits, or over a particular class of cases, or in all cases decided by them, the Legislature can, by a different regulation, subject all the decisions to be pronounced by such Courts to review in some higher tribunal, or the Supreme Court. But it is incompetent on the- part of the Legislature to subject a decision, which may be rendered by this Court, to revision elsewhere. No tribunal exists, or under the constitution, can be called into existence, which can reverse its judgments. Being thus irreversible, its judgments stand, from the necessity of things, as authoritative expositions of the law, whenever the same question arises *628in other cases. For it is to be presumed that the Court, from principles of public policy, and for the repose and security of private rights, will adhere to its matured 0pjn¡011; and apply the same rule to all cases of like character. Where the decision of an inferior Court is pronounced in a case from which no appeal is allowed, it furnishes the law of the case; but is not authority which binds the same or other tribunals, because there is no assurance that the principle announced as law will be sustained in the Court of the last resort.
If such is the true exposition of the grounds upon which the supremacy of the Supreme Court of Appeals rests, in what respect does the Special Court resemble it, or share in the supremacy imparted to it by the constitution ? The number of Judges composing it, the attendance of the same clerk, &c., are mere outward forms which do not affect the power of the Court. Nor, as I think has been shewn, does its exercise of appellate jurisdiction, or the finality of its decisions under the existing law, constitute it a Supreme Court.
The cases submitted to it are withdrawn, it is true, from the docket of this Court. But they were placed there in consequence of a law regulating the jurisdiction of the Court; and the power which, in the exercise of an unlimited discretion, first enacted the law giving the jurisdiction, and is competent to repeal it, may rightfully so modify it, as to effectuate the object had in view in first conferring jurisdiction ; the fair and speedy termination of controversies and enforcement of rights. The judgments of the Special Court give the law of the case, as long as the Legislature allows no appeal; but they possess no intrinsic authority as expositions of the law, binding on other Courts ; because it is competent for the Legislature to allow an appeal from its decisions ; and this furnishes a full security for that uniformity of decision which is one of the great objects to be attained by the establishment of a Supreme Court. The Judges *629of the Special Court are as much bound to yield to the authority of the Supreme Court of Appeals, as are the Judges and Justices of the inferior Courts, where the question arises in cases in which their decisions are final. The Court falls within the class of Superior Courts, which the Legislature may, from time to time, ordain and establish, and assign to it such jurisdiction as the Legislature may think proper; and make its decisions final, or subject them to revision, as the Legislature may deem expedient. It cannot then be a co-ordinate tribunal. It is not a branch of the Supreme Court, even if it were competent to divide it, a question not arising under this law, for the Judges are not commissioned as Judges of the Supreme Court of Appeals ; much less can it be an appendage to any other tribunal. Should it be said, that if a power be conceded to the Legislature so to legislate as to submit to the jurisdiction of another tribunal the same description of cases as are also confided to the jurisdiction of this Court, this Court may eventually be shorn of its power, and converted into an idle pageant — the answer is, that the same result might follow, could any such design be imputed to the Legislature, by the exercise of what I believe all concede to be their unquestioned power. They have excluded it from all criminal jurisdiction ; they may withdraw from its jurisdiction cognizance over any other branch of jurisprudence ; they may limit the right to appeal to any amount, as they have done already, to a certain amount; and I find no restriction in the constitution upon their discretion as to this matter. The constitution does not declare that the right of appeal to the Court of last resort, should be allowed in every case. And as it could not, for obvious reasons, give the right in every case, it made no provision for any case. It declared that the Court of last resort should be established, leaving it to the Legislature to determine, from time to time, what jurisdiction *630it should exercise; in the confidence that it would be organized, and its jurisdiction so regulated, as to enable it to fulfil its appropriate functions, and exert, when necessary and deemed expedient, a controlling authority over inferior tribunals. It seems to me that there is nothing in the character of the Special Court which conflicts with the supremacy of this Court. That instead of being co-ordinate, it is as much a subordinate tribunal as the General Court, and therefore that this objection to the validity of the law is not well founded.
If the act does not constitute a co-ordinate tribunal with the Supreme Court of Appeals, and is free from objection on that account, the enquiry presents itself, whether it impairs any existing rights of suitors in the Appellate Court? When the jurisdiction once conferred has attached, has the suitor a vested right to the judgment of the Appellate Court, of which legislation cannot deprive him? If this were so, the same argument would apply to every other Court; and it would be incompetent for the Legislature to discontinue any Court, and transfer the pending business to some other tribunal. Such a position would be against the whole current of our legislation, as well under the former as the present constitution. The business of the old General Court was transferred to the District Courts; of the latter, to the Superior Courts of Law which succeeded them ; and so with the former High Court of Chancery, when the District Chancery Courts were established: and cases under the existing law are transferred daily from the County to the Circuit Courts. To hold that such legislation, general in its character, not operating on particular individuals, or a selected class of cases, but bearing equally on all, was liable to any constitutional objection, would have the effect of perpetuating and entailing on the Commonwealth, every tribunal once ordained, no matter how inconvenient and burthensome it might be found in practice. The right to an appeal or *631a writ of error, is a remedy provided for a supposed injustice. It may be entirely withheld, as it is in many instances; and when allowed, can be exercised only under such limitations and regulations as the law prescribes. Legislation respecting it relates to the remedy merely. Justice requires, that when once allowed, it should not be arbitrarily taken away. That when it becomes expedient to abolish a Court, or to divide the business before it amongst other Courts, or to relieve an existing Court from a mass of business which it cannot transact within a reasonable time, some other tribunal should be substituted to dispose of the cases then pending and undetermined. The character of that tribunal must be left to the discretion of the Legislature, under the general and unlimited authority to regulate the jurisdiction of the Courts and the Judges thereof; subject to the single limitation, that the persons authorized to determine the cases, are judicial functionaries, appointed and compensated in the mode pointed out in the constitution, and holding office by the tenure there prescribed. This has been done by the act under consideration, if it was competent to impose such duties on the Judges designated, a matter to be considered hereafter. Out of abundant caution, and to relieve the law from all imputation of harshness, the proviso to the fourth section declares, that no case shall be placed on the docket of the Special Court, where any party, by himself or his counsel, shall object thereto. This proviso was not necessary, for the reasons before assigned, to the validity of the act. But if the reasons are unsound, it would remove all objection. It is argued that infants and others labouring under disabilities, are interested in causes, and they could not consent; but their disability is a provision of municipal law, and there is no constitutional prohibition against removing it. The same remark applies to the argument that consent cannot give jurisdiction; it is a provision of law which the Legislature may *632change, by declaring that consent shall give jurisdiction, provided proper judicial functionaries are appointed to exercise it. It was found necessary at a recent period to provide a remedy for the accumulation of business in the judicial circuit embracing the City of Richmond, and additional Courts were created and Judges appointed. Could not the Legislature have authorized and required any of the Judges of the General Court to hold Special Courts to hear and determine such of the pending causes as the parties might consent to bring before them ? And furthermore to have declared that the judgments of such Special Court should be entered in the order book of the clerk of the regular Court, to have the same validity and be enforced in the same mode with the judgments of the regular Court ?
In truth the jurisdiction is given in such cases, not by the consent of the parties, but by law authorizing and requiring judicial functionaries to exercise their jurisdiction over cases brought before them in the mode prescribed. Whether that mode be by original process, appeal, or consent of parties, cannot affect the validity of their judgments. I do not think that the law establishing the Special Court impairs any vested rights of suitors.
If there be nothing in the character of the Court in conflict with the constitution, and the rights of suitors be not impaired, it becomes necessary to enquire whether the constitution is violated by imposing these duties on the Judges selected to perform them ? The constitution declares that the judicial power shall be vested in a Supreme Court of Appeals, in such Superior Courts as the Legislature may from time to time ordain and establish, and in the Judges thereof, in the County Courts, and in justices of the peace, with power to vest proper jurisdiction in Corporation Courts, and the magistrates who belong to the corporate body; and also declares that the jurisdiction of these tribunals, and the Judges thereof, shall be regulated by law.
*633The words are general. The whole judicial power is vested in the tribunals and functionaries designated. It does not prescribe the mode by which this power was to be exerted. It makes no discrimination between different kinds or degrees of judicial power, or the forms in which it is to be exercised. The jurisdiction is to be regulated by law; and whether it shall be taken as a Court of original jurisdiction, or by way of appeal, the power exercised is judicial power, with which by the constitution the tribunals and functionaries described are invested. The Judges to compose the Special Court are Judges of the General and Circuit Courts — the Superior Courts which the Legislature is empowered from time to time to ordain and establish. When proceeding to execute the power, it was necessary to designate the Courts established by some distinctive appellation. They were called the General Court and Circuit Superior Courts of Law and Chancery, and the Judges were so commissioned. But the power vested in the Judges,- and the jurisdiction which was conferred, did not depend upon the name. The power under the constitution was to be judicial; the mode of exerting it was prescribed by law in regulating the jurisdiction. Clothed by the constitution with all judicial power, vested by law with the jurisdiction to exercise it, the obligation upon the Judges to perform the duties, is complete. Their commissions, it may be said, are silent on the subject of appellate jurisdiction; but it may be asked, are they more explicit as to original jurisdiction ? They are commissioned Judges of certain Courts — the Superior Courts contemplated by the constitution — and the law establishing the Courts conferred upon them both original and appellate jurisdiction. Their commissions, therefore, must embrace both the original and appellate jurisdiction conferred on those Courts. But the commissions do more. They are the Judges of the Superior Courts the Legislature were from *634time to time to ordain and establish. When elected and commissioned, they are vested with judicial power generally; and the jurisdiction not only of the tribunals ^ were appointed, but of the Judges presiding over them, may be regulated by law. They may be rightfully required to exercise their judicial power in any mode the law may direct, the Legislature possessing the power to declare that their judgments, in cases confided to their jurisdiction, shall be final, or liable to be reviewed, and if erroneous, reversed, by the Supreme Court of Appeals.
The old constitution declared that “the two houses of Assembly shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chaucery and Judges of Admiralty.” Instead, however, of proceeding to appoint Judges of the Supreme Court of Appeals by joint ballot, the act of May 1779, for constituting a Court of Appeals, formed the Court of the Judges of the High Court of Chancery, General Court and Court of Admiralty. The Judges of these Courts, without any new commissions, proceeded to organize the Court of Appeals, and the Court so constituted continued to act as the Supreme Court of Appeals, until the act of December 1788 directed that the Court should consist of five Judges, to be chosen by joint ballot and commissioned by the governor. Amongst the Judges who composed part of the first Court, we find the names of Pendleton and Wythe, Lyons, Carrington and others, men who, besides their eminence as jurists, participated in the formation of the constitution under which they were acting. In the remonstrance of the Judges against the act establishing District Courts, 4 Call 144, allusion is made to the formation of the Court of Appeals. 11 The Court of Appeals, of whomsoever constituted, must necessarily act upon the subjects referred to all the others, and therefore the forming it, so as to consist of all the Judges, is no violation ■of the constitution.”
*635This was a cotemporaneous exposition of the old constitution, and proves that the Courts at that day did not deem it essential that there should be a previous election or commission to authorize a Judge appointed and commissioned to another tribunal, to exercise appel1 L late jurisdiction in a different Court created by law. When the act of December 1788 substituted a new to the old Court of Appeals, the Legislature treated the old Court as a legislative Court, which it was competent to abrogate by law. The Judges thought otherwise, but to remove all difficulties resigned their appointments as Judges of the Court of Appeals. See proceedings, 4 Call 149. But whether a legislative or constitutional Court, does not affect the present argument. It was an Appellate Court, held by virtue of commissions in distinct tribunals, and the validity of its decisions has never been questioned. Yet under the old constitution there would have been more reason for insisting on a distinct appointment and commission than at this time. The constitution then provided for the appointment of distinct Judges to exercise different portions of judicial power. The Judges in that remonstrance say “ that no regulation should blend the duties of the Judges of the General Court, Court of Chancery and Admiralty Courts, which the constitution seems to require to be exercised by distinct persons.” And when the attempt at a subsequent period was made to blend them, it was held, in Kamper v. Hawkins, to be a violation of the constitution. It was in view of the embarrassments growing out of this restriction upon the Legislature, and to guard against them thereafter, that the comprehensive terms were adopted which are found in the new constitution. The Judges are to be appointed to exercise judicial power generally, whether at common law or in chancery, as Courts of original or appellate jurisdiction, as the law may direct; and, as I couceive, is as applicable to this tribunal and the Judges *636thereof, as to the Judges of the Superior Courts. The 2d section of the act of 1819, 1 Rev. Code 190, authorized the Court to act as a Court of original jurisdictjon_ The act passed during the present session, with a v¡ew- (0 determination of the question now under consideration, does the same thing. The writ of mandamus, except when resorted to as an accessory to appellate jurisdiction, is an emanation from original jurisdiction only. It was accordingly held, in Marbury v. Madison, 1 Cranch 137, that as the constitution had declared in what cases the Supreme Court shall have original jurisdiction, it negatived the exercise of it in all other cases; and therefore the 13th section of the act of 1789, vesting in the Supreme Court power to issue writs of mandamus generally to any Courts appointed, or persons holding office under the authority of the United States, was declared to be void, because it was a grant of original jurisdiction not warranted by the constitution.
The constitution of Kentucky restricts the jurisdiction of the Court of Appeals to appellate jurisdiction only. In Daniel v. Warren County Court, 1 Bibb 496, it was held, that the mandamus being an incident to original jurisdiction, the Court of Appeals had no power to award it. Conceding that this Court could award a writ of mandamus to an inferior tribunal, as an incident to its appellate jurisdiction, to enable it properly to exercise its jurisdiction and enforce its judgments, this is not that case. We are asked to award the writ, to enforce the judgment of a distinct tribunal. Upon the return, issues of fact as well as of law may be raised, and they are to be determined according to the course and principles of the common law. The jurisdiction, therefore, which we are called upon to exercise, is, I think, original, not appellate. There is no direct prohibition to the exercise of such jurisdiction as in Kentucky; none to be implied from an enumeration of the *637cases in which the Court may exercise original jurisdiction, as under the constitution of the United States. On the contrary, each Court and Judge, by our constitution, is vested with authority to exercise any judicial power, when the jurisdiction is conferred by law. In this respect a wider latitude of discretion is allowed to the Legislature than would seem to have been contemplated by the constitution of the United States. That declares “ that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as Congress may, from time to time, ordain and establishand after enumerating the cases to which the judicial power shall extend, gives to the Supreme Court original jurisdiction in certain enumerated cases, and declares that in all other cases it shall have appellate jurisdiction. But for this enumeration of the cases in which original jurisdiction was given, there would have been no objection to the law authorizing it to award writs of mandamus to persons holding office under the authority of the United States. The first clause of the fifth article of our constitution vests “ the judicial power in a Supreme Court of Appeals, such Superior Courts as the Legislature may, from time to time, ordain and establish, and the Judges thereof.” There is no clause restricting the Court to the exercise of appellate jurisdiction, such as is found in the constitution of the United States. The judicial power is vested not only in the Courts, but in the Judges thereof, a provision not contained in the constitution of the United States. Yet, the Judges of the Supreme Court of the United States also act separately, as Judges of the Circuit Courts; and exercise in these Courts original jurisdiction in cases where the Supreme Court cannot exercise original jurisdiction ; and they do this under their appointment and commissions as Judges of the Supreme Court alone. If I supposed this Court could not be invested with original jurisdiction, this whole discussion would be out of *638place, as jurisdiction precedes discretion ; and we should be chargeable with the grave error imputed to another tribunal, of pronouncing an opinion upon the merits of a controversy which we had no jurisdiction to decide. ^ seems t0 me) therefore, it was competent to impose the duties required to be performed by the act under consideration, upon any of the regularly appointed Judges of the Superior Courts; and the constitution is not thereby violated.
The constitution declares that the Judges shall receive fixed and adequate salaries, which shall not be diminished during their continuance in office. The act of March 31, 1848, re-organizes the General Court, and constitutes a Special Court of Appeals; and directs that each of the'Judges composing those Courts shall, in addition to his annual salary, receive 10 dollars per day for each day’s attendance on such Special Court, and the General Court. This mode of compensating the Judges is objected to, inasmuch as it is not fixed, but variable, depending on the number of days the Judge may attend, and also because it is not permanent, but may be diminished or entirely taken away by lessening the terms of the Court, or repealing the law. It may be premised, that even if there was an irregularity in the mode of compensation provided, it could not affect the validity of the judgments rendered by the Court, if I am correct in the conclusion that the law is free from all constitutional objections in other respects. They would still be the judgments of properly appointed functionaries, vested by that appointment with competent judicial power, and pronounced in cases rightfully submitted to their jurisdiction. The law does not treat this compensation for their services as a portion of the salary. It gives it in addition to the salary. In the sense of the constitution, the salary is a stated periodical payment for services. Fixed does not mean unchangeable; otherwise the increase, as well as diminution, would be unconstitutional; i *639and the provision against diminishing would have been supererogatory. The constitution of the United States directs that the Judges shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office. The old constitution declared that the Judges shall have fixed and adequate salaries. In the remonstrance of the Judges before referred to, the subject of compensation being then under consideration, they say that the salary should be considered as fixed, whilst the duties continued the same; and when public utility required an increase or diminution of duty, there should be an analogous alteration of salary: thus indicating that the term fixed, did not restrict the power of the Legislature to increase or diminish the salary ; but was used in the same sense with the phrase “ stated times,” in the constitution of the United States, both expressions conveying the same idea. The compensation could not be made to depend on fees or other contingent emoluments. The amount is to be ascertained, to be paid periodically, and to be adequate. It may be increased, and but for the other clause, that it should not be diminished during the continuance in office, could have been reduced, notwithstanding the use of the word fixed.
This compensation, so ascertained, and to be periodically paid, with any addition made to it to be similarly paid, constitutes the salary secured by the constitution. Of this the Judges were in the receipt when required to perform these extra duties, and could not be deprived of it during their continuance in office. Nor does this law interfere with it, but gives the per diem, not as constituting a portion of the fixed salary attached to their office, but as extra compensation for temporary services, to continue so long as these duties are required of them. There is no constitutional restriction on the Legislature from allowing to the Judge extra compensation for such additional duties. If it may be allowed, it would be *640most unreasonable, so to construe the constitution as to make the allowance perpetual, against the terms of the grant, and when the duties had ceased which had formed ^ consideration of it. The Judge looks to his stated saklT as furnkhing his certain support, and his independence in the sense of the constitution, is sufficiently secured, by denying to the Legislature all power over it. The independence of the judiciary would be more endangered by the construction which would withhold from the Legislature power to make additional and temporary compensation, for extra and temporary duties. Owing to various contingencies, such as accumulation of business at particular localities, growing out of some revulsion in commercial affairs, the illness of a Judge, or some other cause, a temporary grievance exists, to which some remedy must be applied.
There may be a sufficient number of Judges to perform the duty and transact the ordinary business of the country. As additional labour, though temporary in its duration, is required, additional expenses, not foreseen or contemplated when the office was accepted, are to be incurred, justice requires a proper compensation should be made. To deny the right to make it, would constrain the Legislature to be the involuntary instruments of injustice to the officer; or compel it to create additional officers, holding by a life tenure, though the duties required of them might have been performed in a brief period of time. The community would speedily relieve itself of such burthensome sinecures, by subjecting the office itself to the control of the Legislature. The mode of compensation adopted in this law, has received the sanction of usage from the earliest period of the Commonwealth. The Judges of the Special Courts of Appeal were allowed a per diem, and it has been received without question, by every Judge attending on such Courts, from the passage of the law to the present day. Mileage has been allowed to the Judges for the distance *641travelled; it varies with that distance, and constitutes no part of the salary. If it be said these allowances are made for extra expenses, they are still expenses incurred in the performance of their judicial functions; and the per diem allowed by the law under consideration, is also intended to meet, in part, extra expenses incurred by a residence for a considerable time at a distance from their regular homes. And unless the Judge is to be deprived of the comforts of his family, the allowance would, perhaps, in some instances, be not much more than adequate to meet the additional charge. The provision made for holding Courts in Judge White’s circuit during his protracted illness; the allowance of 200 dollars to Judge Clopton for three years, by the act of 1834; the more recent allowance to Judge Thompson for five years, furnish examples of such legislation to remedy a temporary grievance. I think the mode of compensation adopted in such cases, contravenes no provision of the constitution ; that it was sanctioned by usage before the adoption of the present constitution, and has been followed since; and that so far from impairing the independence of the judiciary, its tendency is to preserve it; inasmuch as it enables the Legislature to provide for temporary grievances without an unnecessary addition to the number of the Judges.
I have thus briefly stated the reasons upon which my opinion is based, and have preferred to discuss the questions presented, upon principle, rather than to rely upon precedent.
The laws in relation to the Special Courts of Appeal, in existence when the present constitution was adopted, furnish a precedent directly in point, and fully sustain the validity of the act now under consideration. Believing it free from all constitutional objection, I think the Judge of the Circuit Court was bound to enter up the decree for aught that appears on his return to the *642rule; and therefore the rule should be made absolute, and 1 . . , , a mandamus ms% awarded.
Brooke, J. The question whether a law is in ac-cor(jance with the constitution, is at all times a very delicate and important question. In the case of Goddin v. Crump, 8 Leigh 120, I differed with the rest of the Court. I thought that the act of Assembly, authorizing the people of Richmond, or a majority of them, without regard to property, to give authority to the common council of the corporation to impose a tax on the city to the amount of 600,000 dollars, for the great State improvement of the James river, violated the constitution: and I refer to my opinion in that case for the grounds on which I so thought. The President, who delivered the opinion of the Court, thought it a local improvement; and that the act was constitutional. If it was a local improvement, the act was unnecessary, as the charter of the corporation gave to the common council full authority to levy taxes for local objects.
The question now before us is a different one. I have said it was a delicate question. This results from the different functions of the various departments of the government. The Legislature is elected by the people; come immediately from the people; and they take an oath to support the constitution. They are clothed with the power to make the laws ; and many of the members are able lawyers. It should not, therefore, be in a doubtful case, that the acts of that body should be decided by the Courts to be unconstitutional. But this Court has on several occasions decided laws to be unconstitutional ; and it cannot now be questioned that it has the power to make such a decision.
The question before us is, whether the law constituting the five oldest Judges of the Circuit Courts a Special Court to decide the cases taken from the docket of this Court, without objection by any of the parties there*643to, is constitutional. The necessity for this law arises from the cases being so numerous that great delay of the justice of the country has occurred. .This delay is similar to that which occurred when there were not a sufficient number of Judges, from some cause, who could sit in a particular case, and for the decision of which, a Special Court, constituted of the Judges of this Court who could sit in the case, and Judges of the General Court, was provided by the former law. And I think it is impossible to distinguish these Special Courts from this Special Court, which, it is argued, violates the constitution.
The first objection made to this act is, that it violates that article of the constitution which declares that there shall be one Supreme Court of Appeals. This act, it is said, creates another Supreme Court of Appeals. But this Special Court has no appellate powers. It cannot grant an appeal, writ of error or supersedeas, in any case, and can only decide the cases sent to it from this Court, from whence process of appeal must issue.
The next objection is, that the Judges have not been elected Judges of the Special Court. The constitution gives to the Legislature the regulation of the jurisdiction of the Courts and Judges; and it was authorized to give to the Court of Appeals jurisdiction, and take it away and give it to the Special Court. This had been the practice under both the old and new constitution, as in the case of the Special Courts before spoken of. Under the old constitution I was commissioned as a Judge of the General Court, and sat as a Judge of the District Court, without being elected a Judge of the District Court. When these Courts were abolished, and the Circuit Courts were established, I was transferred to these Courts, without a new election.
The next objection to this law is, that the compensation of 10 dollars per day impairs the independence of the judiciary, as it makes them dependent on the *644Legislature. This objection equally applied to the former Special Courts, as the Judges who sat in these Courts received 5 dollars per day for less service than that imposed upon the present Special Court.
There was an attempt in the argument to shew that the former Special Courts were unconstitutional; but the Court of Appeals, which has power to decide on the constitutionality of the laws, has too often decided that point to have it now questioned.
Mr. Jefferson, who was jealous of the power of the judiciary to nullify a law, by deciding it to be not in accordance with the constitution, thought that in flagrant violations of the constitution, the judiciary might exercise that power. I thought the case of Goddin v. Crump, 8 Leigh 120, was a flagrant case, but a large majority of the Court thought differently. I think the case now before us is a plain case, and that the act in question is entirely consistent with the constitution in every particular; and I concur with the majority of the Court in so deciding it to be.
Cabell, P. stated his opinion to be, that the law establishing the Special Court of Appeals is free from all constitutional objection, and consequently, that a writ of mandamus tiisi should be awarded.
Mandamus nisi awarded. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481403/ | Baldwin, J.
The bill and amended bill in this case may be treated as one, and the demurrers thereto must be regarded as conceding that the consideration of the promise on which the judgment at law was recovered, was money lost at unlawful gaming — that the merits of the cause were not developed on the trial at law, by reason of the extraordinary circumstance that the only witness before the jury, examined by the plaintiff and relied on by the defendant, and who was present at the gaming, and proved the promise then made to the plain*647tiff to pay him 500 dollars, failed to prove the consideration of the promise, either designedly or from lapse of memory, though previous to the trial he had assured the defendant that he was conusant of, and would prove the gaming consideration, and that in consequence of the turn which the cause thus took, and the want of a discovery from the plaintiff, the defendant was surprised and disabled from defending himself successfully at law. The gaming consideration and the surprise being thus conceded, if no relief can be had in equity, it must be upon the mere ground that it ought to have been sought in the Court of Law by an application for a new trial, and this not having been done, that the verdict and judgment are conclusive and unimpeachable.
It is doubless true, that the decision of a controversy by a Court of competent jurisdiction, whether of common law or equity, upon a full and fair trial of the merits, cannot be re-examined, or the matter again drawn in question, unless in an appellate forum; and it forms no exception to the rule, in the case of a judgment at law, that a Court of Equity would previously have had a concurrent jurisdiction over the subject. The reason of the rule is too obvious to require exposition.
It is also true, that another rule repels from a Court of Equity a complainant who has been subjected to the recovery of a demand in a Court of Law, against which he had a legal defence that he comes to assert, but which he had an opportunity of making, and declined or neglected to make in the legal forum. This rule is necessary, not only to terminate litigation, but to preserve the boundaries between legal and equitable jurisdictions, which would otherwise be disturbed at the will of the party, and to the prejudice of the common law jury trial, and viva voce examination, which have priority and preference in our system of jurisprudence.
These rules have no application to a case in which a party having a just legal defence, has lost the opportu*648nity of making it, not by culpable negligence, but by J reason of some fraud, misfortune or accident; nor in which he has made such defence at law, but has been . surprised by some such circumstance, and thereby prevented from developing the merits of his cause. In such a case a Court of Equity will interpose and award him a trial, or new trial at law, or such other relief as may be proper; unless, indeed, the party has had an adequate opportunity of obtaining a new trial by application to the Court of Law. I am not aware of any adjudication by which a defendant, who has been surprised at law, has been repelled from the equitable forum because he did not apply to the Court of Law for a hew trial, or because, having so applied unsuccessfully, he failed to reserve the question, by a bill of exceptions, for the consideration of an appellate tribunal. But I doubt not that the neglect of the party to avail himself of an adequate opportunity to have the verdict against him set aside by the authority of the legal forum, ought as a general rule to exclude him from relief in equity. It must, however, be borne in mind, that the same surprise which has subjected him to an improper verdict, may disable him from applying to the Common Law Court for a new trial, or that circumstances afterwards transpiring may serve to shew, that it was not then in his power to sustain the merits of his application, by such other evidence as might have been requisite, in addition to his own affidavit.
A gaming security or consideration, however, forms an exception to the general rule requiring a defendant at law to avail himself there of a good legal defence to the action. Our act of 1748, (1 Rev. Code, ch. 147, p. 561, taken from the English statute of 9 Anne, c. 14,) not only renders the gaming transaction unlawful, but expressly avoids all promises, contracts, judgments and other securities for money won at play; and its policy is to extirpate an immoral and pernicious practice, inju*649l'ious not only to parties and their families, but to the" public weal. It therefore behooves Courts of Equity, as well as Courts of Law, to suppress the enforcement of such promises, contracts and securities. A party injured may, at his election, defend himself at law, but he is not bound to avail himself of that opportunity, nor to wait till a verdict is had, nor till an action is brought against him in the legal forum. He may suffer judgment to go against him at law, and restrain proceedings upon it by a bill in equity; or, before or after action brought; file his bill in equity to compel the surrender of any security founded on such unlawful and void consideration, and the refunding of whatever payments may have been made upon it. 1 Story’s Eq., § 302; Woodroffe v. Farnham, 2 Vern. R. 291; Rawden v. Shadwell, Amb. R. 269; Fleetwood v. Jansen, 2 Atk. R. 467; Newman v. Franes, 2 Anst. R. 519; Andrews v. Berry, 3 Anst. R. 634; Woodson v. Barret & Co., 2 Hen. & Munf. 80; Skipwith v. Strother, 3 Rand. 214. A judgment itself, when recovered without defence, is, within the true meaning of the statute, nothing more than a security, though there has been no agreement that it shall operate as such, or be obtained or suffered for that purpose. If this were not so, it .would be easy to evade the provisions of the statute, inasmuch as in most cases it would be difficult to prove that there was such an agreement or understanding; and besides, the mischief is equally great, whether there was or not.
It must be admitted, however, that in an action founded upon a gaming promise or security, if the defendant elects to make his defence at law, and upon a full and fair trial of the question in that forum, a verdict is rendered against him, he cannot be permitted to renew the controversy, upon adverse testimony, in a Court of, Equity; for if this were allowed, it would, in effect, be an appeal from the verdict of a jury. And yet, notwithstanding such election, if the defendant has been *650surprised at law, by reason of some fraud, misfortune or accident, which has prevented him from having a full and fair trial before the jury, he may still resort for redress to a Court of Equity. Nor will he be precluded ^rom s0 ^ *ts appearing that he had an adequate opportunity of obtaining a new trial by application to the Court of Law. The case of a gaming promise or security is an exception to the general rule on the subject, that rule being derived from the obligation of the party, in most cases, to avail himself of his opportunity to defend himself at law; whereas, in the case of a gaming promise or security, he is under no such obligation. And as he may at first waive all defence at law, and seek relief in equity, so when he has been prevented by surprise from making his defence available at law, he is not bound to pursue it further in that forum ; but may resort to a Court of Equity, which had from the beginning a complete and more searching jurisdiction of the controversy, and which treats all judgments founded on a gaming consideration, where there has been no defence at law, or where there has not been, from adventitious circumstances, a full and fair trial of the question at law, as mere securities.
It will thus be seen that the appellee by his demurrer has rested his case, not upon the merits, but upon the supposed incompetency of a Court of Equity to relieve the complainant against the judgment at law ; and that in truth, equity has jurisdiction of the subject, so far as appears at the present stage of the cause, on the ground that the complainant, as is conceded by the demurrer, was surprised on the trial at law. There is, moreover, a farther question of jurisdiction that requires consideration, inasmuch as it may affect the ultimate decision of the cause. The complainant seeks the interposition of equity, not only on the ground of surprise, but also on the ground that he is entitled to a discovery from his adversary, of the gaming consideration, and to consequent relief thereupon, if obtained.
*651It is true, as a general rule, that equity will not compel a discovery that would subject the party making it to legal forfeitures or penalties; and it may be conceded (notwithstanding some discrepency of authority, see 2 Story’s Eq., § 1494, note,) that the case of unlawful gaming would fall within this rule, but for the statutory provisions on the subject. Our act of 1748, pursuing the statute of 9 Anne, ch. 14, not only avoids gaming contracts and securities, but gives an action to a loser agaiust a winner, for the recovery back of money paid, within a limited time thereafter; and allows a bill for discovery thereof, with a provision remitting, upon the discovery and repayment, the penalties and forfeitures incurred. The letter of the statute would seem to be confined to the case of actual payment; but the Courts of Equity have given it a liberal construction, so as to make the discovery co-extensive with the broad jurisdiction exercised by them for relief against gaming contracts, judgments and other securities. See the authorities above cited.
A question sometimes arises, whether a bill for the discovery of matter, which has been the subject of a legal defence, can be allowed after a verdict and judgment against the party at law; and it may be inferred from the books as a general proposition, that the party comes too late, unless he shews a sufficient excuse for not having filed his bill sooner. But this is not applicable to a gaming promise or security, in regard to which equity has complete original jurisdiction, both for discovery and relief; and though, when a verdict and judgment have been rendered against the party aggrieved, upon a full and fair trial at law, he is thereby concluded as to adverse evidence; yet, he is not thereby precluded from a discovery in equity, and relief there, upon such discovery, if obtained. And there is no good reason to the contrary; for the admission of such gaming consideration, in an answer to such bill for a discovery, shews *652that the defence at law failed from a want of evidence to establish the truth ; and the policy of preventing pro-traded litigation, must yield, in such cases, to the higher policy of ferreting out and suppressing violations of the statutes against unlawful gaming; which latter policy the Legislature has anxiously pursued by numerous stringent enactments, and by a sweeping provision that all acts against gaming shall be construed as remedial statutes.
It seems to me, therefore, that the Circuit Court properly overruled the demurrers to the original and amended bills; and consequently that the appellant must answer the same, in order that the cause be proceeded in to a final hearing, upon the principles that properly belong to it, which, in my opinion, are those above indicated. In that view of the case, the final result must be, that if the answer should make the discovery sought by the bills, to wit, that the consideration of the promise upon which the judgment at law is founded, was money lost at unlawful gaming, then a perpetuation of the injunction is to follow as a matter of course. But if the answer should put in issue the material allegations of the bills, then it will be incumbent upon the complainant to prove the gaming consideration, and also the surprise ; upon sufficient proof of which he will be entitled to relief, either by a perpetuation of the injunction, or a new trial at law, according to the sound discretion of the Court.
Brooke, J. In this case I think the Chancellor was correct in affording the relief prayed for in the bill. This Court has never exacted the same degree of diligence from the defendant at law in gaming, as in ordinary cases. It has gone on the principle that a public injury was complained of, which if committed, ought to be remedied by all Courts.
*653Gaming becomes a passion which controls reason and prudence, and ruins the best characters in other respects, in the community. Iti this case the defendant at law was only negligent in his defence, in that he too confidently relied on the plaintiff’s witness who proved the promise, to prove the gaming consideration of that promise. In this he was disappointed, and I think he ought to have an opportunity of proving it by other evidence.
Cabell, P. and Allen, J. concurred in the affirmance of the decrees of the Court below.
Daniel, J. dissented. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481404/ | DANIEL, J.
The only question brought before the Court for its decision in this case, is, whether the claim of S. & J. Lambert against the representatives of Dishman has been paid; and its solution depends on the extent of power with which an attorney at law is clothed, who, in the ordinary course, is entrusted by a creditor with a bond, note or other evidence of debt, for suit and collection. Practitioners of the law in this country are generally regarded by the Courts as vested with a larger authority in the control and disposition of demands placed in their hands for collection, than has been usually attributed by the common law to an attorney at law in England. Here the characters of attorney and barrister or counsellor at law, are in most instances blended, and the powers pertaining to this double capacity, are held to be of a wider scope than those belonging to the office of an attorney merely.
*In some of our sister States the rela*62tion of client and attorney has been held to confer upon the latter the authority even to compromise, compound or commute demands of the former confided to him for collection. The general doctrine, however, so far as I have had it in my power to collect it from a review of the decisions, is, that the attorney has no right to commute the debt of his client, to release the person of the debtor when in prison by virtue of a ca. sa., or to enter a retraxit -in a suit, to execute a release, or to do any other act which destroys the cause of .action without receiving payment. But, on the other hand, that he has an extensive control over the remedy, and is vested with a liberal discretion in the use of the means he may deem best adapted to procuring the payment of his client’s debt.
He may accept payment of the debtor, if voluntarily made to him, at any time whilst his powers continue; or he may take such steps as he may think best calculated to procure payment. In the honest exercise of a sound discretion, unless otherwise instructed by his client, he may delay bringing suit, he may consent to continuances of it, after it is brought, during its progress to judgment, and after jugment he may postpone issuing execution; he may elect whether to take one against the person or the lands or goods of the debtor; and if he issues one against the lands’ or goods, he may direct on what property of the debtor it shall be levied; and after levy he may control. the proceedings of the sheriff or other officer having charge of the execution, and may from time to time postpone a sale of the property levied upon.
It has been decided by the Supreme court of the United States, in the case of the Union Bank of Georgetown, v. Geary, S Peters’ R. 99, that an agreement made by an attorney, in whose hands a promissory note was placed for collection, with an endorser, that if the latter would confess judgment and not dispute *his liability, the attorney would immediately proceed to make the money by execution against the drawer, was within the general scope of the attorney’s powers, and binding upon the creditor. And in Silvis v. Ely, 3 Watts & Serg. 420, it was held to be within the power and authority of an attorney to stay the execution upon a judgment in consideration of the promise of a third person to pay the debt; and that such promise was' binding though not made to the plaintiff nor assented to by him at the time.
The subject has been before this Court in several cases. In Hudson v. Johnson, 1 Wash. 10, and Branch v. Burnley, 1 Call 147, it was decided that, in general, payment to an attorney at law of a debt which he is employed to recover, is good on the custom of the country, particularly if he have possession of the evidence of debt. In the case of Smock v. Dade, 5 Rand. 639, it is asserted by the General court as well settled doctrine, that whilst the authority of an attorney does not extend to the commutation of a debt without the client’s assent, his receipt of actual payment is complete protection to the debtor. In that .case the attorney received a portion of the debt in money, a draft at ten days sight, and a bond at four months; and the receipt given by the attorney stipulates that the draft and bond when paid should be, together with the sum paid in money, in full of the executions of the creditor against the debtor. The amount of the draft was paid to the attorney, but there was no evidence to shew that he had ever realized any thing on the bond. In this state of things the Court held that the amount produced by the draft constituted to that extent a good payment, but that the creditor ought not to be charged with the bond; that the Court below ought not therefore to quash an execution which the creditor had issued to-enforce collection, “although it would have been entirely proper if *such motion had been submitted, for the Court to have entered satisfaction” to the extent of the payment made in money and the amount received on the draft.
The decision in Smock v. Dade has been approved by this Court in the case of Wilkinson v. Holloway, 7 Leigh 277. In the last mentioned case it was decided that it was not competent for an attorney employed to. collect a debt, to discount from it a debt he himself owes the debtor, or to take as an absolute payment or satisfaction the debtor’s assignment of a bond of a third person. But the Court at the same time recognize it as well settled doctrine that an attorney at law who has possession of the evidence of debt, or has obtained a judgment for his client, may receive from the debtor payment of the debt; and that the creditor having confided in him, not only to sue, but also to collect and receive the money, is. bound by the payment.
I do not see how we can approve the decision in Smock v. Dade, in regard to so much .of the creditor’s demand as was held to be paid by the proceeds of the draft, and yet consistently decide that the debt in this case has not been satisfied by Brooke’s receipt in actual money of the amount of Coakley’s. note.
It is true there is a difference in the wording of the written receipts given by the attorneys in the two cases, but I cannot perceive any such marked variance in their phraseology as would justify us in saying that the coming of the proceeds of the collateral debts into the hands of the attorney should in one case constitute a payment; but that, in the other, payment could not be predicated of the transaction till such proceeds were handed over by the attorney to his client, the original creditor.
The receipts vary from each other in two-particulars. In Stock v. Dade the signature of the attorney’s name is followed by the , addition of the word “attorney.” In *the case before us there is no such addition. The receipt in Stock v. Dade recites that the draft and bond are, when paid, to be together with the money paid down, “in full of the executions.” *63Here the attorney stipulates that after pay- ’ ing himself his fee and commission, he is ; to apply the balance of the proceeds of Coakley’s note to the credit of S. & J. ¡ Lambert’s judgment. I do not think that Banks by affixing the word attorney to his | signature to the receipt in Smock v. Dade, j gave any plainer indication that in makng the arrangement he was acting as the attorney of the original creditor, than he would have done by simply signing his name without the addition. The character in which he treated was to be gathered from the transaction. He was known to the debtor to be the attorney of the creditor, and the debtor in making the arrangement believed he was negotiating and intended to negotiate with one who had a right to receive the proceeds of the draft and bond when collected, in full of the executions. So in this case the relation in which Brooke stood to the Lamberts was well known to the executors of Dishman. The addition of attorney to his signature upon executing the receipt would not have made it more manifest.
And I cannot perceive how any more extensive control over the rights and interests of his client is asserted by an attorney in the undertaking that certain collateral securities placed in his hands for collection shall, when paid, be applied as a credit to his client’s demand, than in undertaking that, when paid, the proceeds shall be in full of the original debt. The relations of the several parties, each to the other and to the subject matter of the contract, and the purposes sought to be accomplished by the attorneys and the debtors by the arrangements made between them, in the two cases, were essentially the same.
*There is nothing in the receipt given by Brooke, nothing in the intrinsic character of the transactions, nothing in any of the evidences existing in the case, upon which to base the belief, that the executors of Dishman, in placing the claims in the hands of Brooke to be collected and applied to the credit of the debt, or that Brooke in accepting them with the agreement to collect and so apply them, designed any fraud on the Lamberts. There is nothing to shew that the transaction did not grow out of an honest desire and purpose on the part of all the parties, to provide a new security and furnish a new, safe and speedy means of satisfying the debt.
Any argument, by way of analogy, to be drawn from the iaw regulating the property in a fund which has come into the hands of one holding towards it the double relation of executor and legatee, or of executor and guardian, furnishes, I think, no aid to the pretensions of the appellees. In such cases, the party coming into the possession of the fund, is considered as taking possession in the first instance, in the character of executor, because he cannot in the first instance, according to law, take possession in any other character, and he will be presumed to have possessed himself rightfully, and not wrongfully. Being originally so possessed, he will be presumed to continue to hold in the same character until some act is done, indicating decisively a purpose to hold in his other character. Generally, in such cases, there are others having claims upon the fund, whose rights and interests are to be adjusted and settled before the executor can legally elect to hold it in his other character of legatee or guardian. Here by the very terms of the agreement, the fund, when received, was to be applied as a credit to the claim of the Lamberts. There were no rights or interests of other persons to be looked to and adjusted before the attorney might lawfully hold the fund as the money of his original 'x'clients. Lven in the case of one combining the two offices of executor and guardian, very slight acts are often regarded by the Courts, as legal indications of an election to hold the fund in the character of guardian: and I know of no rule of law that confines the evidences of such election to acts or declarations cotemporaneous with, or subsequent to the receipt of the fund. If an executor upon receiving a collateral security to be collected and applied to the discharge of a debt due to his testator, should set forth in a written receipt, or otherwise declare, that all debts were now paid and the estate fully distributed, with the exception of the fund about to be collected, and that he designed upon receiving it, to hold the balance after deducting his commission, as the guardian of a ward, I am not prepared to say that such a receipt accompanied by proof that he had really qualified as guardian, and that his declarations with regard to the situation of the estate were true, would not amount, without any further act, other than the subsequent receipt of the fund, to an election, so as to charge him and his sureties with it in his character of guardian. If then, the analogies supposed to exist between this and the cases of the double fiduciary relations above referred to, can be properly consulted as furnishing any guide to the solution of the question under discussion, it seems to me that they tend strongly to support, rather than to defeat the views of the appellant.
It is urged, that if an attorney, entrusted with the collection of a debt, may thus treat with the debtor, and accept from him claims on third persons to be collected, and credited to the debt, he has it in his power to subject the creditor to several settlements with him, instead of one. The fact that a creditor may be thus occasionally subjected to inconvenience, furnishes, it seems to me, no argument against the legal existence of such a power: for the inconvenience is one which may *as well flow from direct payments to the attorney, as from payments effected indirectly through collateral securities ; and I presume it is well settled, that an attorney employed to collect a debt, is not limited to a receipt of the debt in one sum, but is fully empowered also to receive partial payments from time to time, till the debt is satisfied.
*64It is also urged, that the executors had a right at any time previous to the collection of Coakley’s note, to withdraw it from the hands of the attorney; and that even after the collection, they had a right to revoke the directions given as to the application of the proceeds. Even if the first branch of the proposition were law, it would, by no means, follow that the second was also: for according to this hypothesis, so soon as the note was collected, it was converted into something belonging to the debtor, to wit, money, which the attorney had a right to receive in payment of his client’s demand, and which, by the express agreement between him and the executors, it was stipulated should be applied as a credit to said demand. But I do not think that either branch of the proposition is true. It is true, that this Court, in the case of Beers &c. v. Spooner, 9. Beigh 153, decided that a verbal direction given by a person having claims in the hands of an attorney for collection, to pay part of the money when collected, to another in satisfaction of a debt due to the latter from a third person, was revocable by the person giving the directions in his lifetime, or by his administrator after his death. Judge Tucker, however, in assigning the reasons of the Court, asserted principles, and approved of a decision furnishing ample authority for treating the transaction now under consideration, as an irrevocable dedication by the debtor of a fund for the payment of his debt. He says, “If Dudley (who was the person giving the directions) had been bound for the debt, and had directed Spooner (the attorney) to pay, there would *be more reason to regard the direction as irrevocable; particularly if Spooner had promised payment to the creditor. Then it would have resembled the case of Sharp-less v. Welsh, 4 Dali. R. 279. There the person giving the direction was the actual debtor, and the person receiving it, made an express promise to apply the fund as directed: here, the party was no debtor, and there was no promise. There, the Court held, that the debtor had made an appropriation of his funds to pay his debts to his creditors, which appropriation he could not revoke: here, he directs an appropriation, without consideration, to pay the debt of another, over which direction, he had a complete power of revocation, until the money was actually paid.”
Upon the authority of the principles declared in the , foregoing case, I think we would be weli justified in treating the transaction between White, the executor, and Brooke, as an irrevocable appropriation by the former of the fund arising from the collection of Coakley’s note to the payment of the demand due the Bamberts. The fact that Brooke would, in this aspect of the case, be acting as the attorney, agent or trustee of both creditor and debtor, in the prosecution and collection of the collateral security, does in no wise impair or detract from his original right and duty as attorney of the Bamberts, to receive money of the debtor, whenever realized, in payment of the demand, and grant him an acquittance for it. So viewing the case, were it not for the fact that the attorney stipulates in the receipt for deducting his fee and commissions from the fund, and the want of proof that such deduction was in truth ever made, it would seem to me that the collection of the money, its coming into the hands of one authorized to receive it, and the acquittance of the debtor, would be, necessarily, in legal contemplation, simultaneous acts, or rather one and the same act. Does the fact, that the attorney was only to apply the balance of the proceeds, *after deducting his fee and commissions, make the receipt of the money, so far as that balance is concerned, any less a payment of the debt. I think not. In the absence of any proof, as to what the fee and commissions were to be, the law adjusts them, and it was not necessary that the attorney should do any further act for the purpose of ascertaining what the balance would be. That is a matter of simple calculation, which could as well be done, (as it has been done,) by the officer of the law, as by the attorney. Upon the collection of the money, no one had to be further consulted as to its application. The rights of all who had ever had, or could have any interest in the fund, had been foredesigned and predetermined by the agreements between the parties having the lawful control over it.
A decision which would deny to such a transaction the force of a payment, would, it seems to me, be at war with the general practice and understanding of the country, and operate much to the detriment of creditors. An attorney is generally employed in the collection of a debt, not merely because of a belief oh the part of the creditor, in his skill, in the use of the ordinary legal means used for the enforcement of claims, and his promptness in paying over his collections, but also, because of his knowledge of the means, situation and relations of the debtor, and his talent in making and availing himself of such treaties and negotiations, as will be likely, without- in any measure jeopardizing the rights of the client, or resorting to legal coercion, to procure payment of the demand. To say that the receipt of money by the attorney in such a case, shall not constitute a payment by the debtor, is to strip the former of a power, which, to the honour of the profession, is very rarely used except to promote faithfully, the best interests of the client; and to subject an absent creditor who has not given special instructions to his attorney, to a very great disadvantage in a struggle for the effects *of a failing debtor. By the use of mild and persuasive means, having some regard to the feelings and credit of the debtor, by indulgences which do not jeopard the rights of the creditor, and the acceptance of securities which do not, until realized, discharge the demands, claims are now often made which would be lost, if the attorney was in all in*65stances to be confined to the use of legal process, or the receipt of direct payments by the debtor.
I am therefore of opinion, that so much of the decree appealed from, as relates to the demand of the Lamt*erts, ought to be reversed with costs, and the enforcement of the same against the representatives of Dishman perpetually enjoined.
The other judges concurred in tfie opinion of Judge Daniel.
Decree reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481406/ | ALLEN, J.,
delivered the opinion of the Court.
The Court is of opinion, that partial payments made by the executor to legatees from time to time on account, though upon a settlement and adjustment of accounts thereafter, it should appear that such advances may exceed the amount to which some of the legatees were entitled, does not constitute such an actual settlement of the *70executor’s account, as to take the demand ■for commissions out of the operation of the statute. The Court is therefore of opinion, ■that there is no error in so much of said ■decree as disallowed the claim for commissions.
But the Court is of opinion, that there is error in so much of said decree as charges the executor with the debt due from Benjamin Dabney deceased, to the testator of the appellant, for the purchase of the farm called Toler’s. The testator, in his lifetime, had rested upon the security of the deed of trust on the land; the executor had acquired additional security on slaves, and it does not satisfactorily appear that by any degree of diligence, he could have more to secure the payment of the whole debt. The loss would seem to have been incurred from the extraordinary depreciation in the value of the property covered by the ' deed of trust, *rather than from any culpable neglect on the part of the executor.
And as to other errors alleged in argument by the counsel of the appellant to be apparent on the face of the account, ’ which, if they exist, it is contended by the counsel of the appellees, are more than counter balanced by other errors apparent on the face of the account to their prejudice, this Court deems it unnecessary to express any opinion. A s the case must go back to a commissioner, such errors of calculation or of improper credits, of charges of interest, or any other errors alleged to exist on the face of the account, can be considered and corrected, and the conclusions of the commissioner brought to the notice of the Court by specific exceptions directed to the particular matters objected to. And in respect to the specific legacies bequeathed, it will be competent for' the executor upon such recommitment to shew, if he can, that he is entitled to any additional credits for payments on account thereof. And an enquiry should be directed to ascertain, if said legacies are still unpaid, whether in the condition of the estate, distribution should be decreed among the residuary legatees, of the funds in the hands of the executor, or the same should be retained for the payment of specific legatees; and for this purpose, the appellees should be required to make the legatee, Sally P. Welford, a party, unless it should appear she died unmarried before attaining the age of 21 years. .
The Court, therefore, without pronouncing any opinion upon the errors alleged on both sides to be apparent on the face of the account, but leaving them to be corrected, if they exist, upon a restatement of the account, is of opinion, that the decree is erroneous in charging the executor with the debt due from B. Dabney deceased, as aforesaid.
Reversed, with costs to the appellant, and remanded, with leave to make the legatee, S. P. Welford, or her representafives, *a-party or parties if necessary, and with instructions to recommit the account to a commissioner, to restate the same; in which the executor is not to be charged with the uncollected balance of said Dabney’s debt; and to correct any other errors if discovered, apparent on the face of the account; for the proper enquiries in regard to the specific legacies; and for further proceedings in order to a final decree. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481408/ | * ALLEN, J.,
delivered the opinion of the Court.
The Court is of opinion, that under any aspect of the appellees’ claim, they are not entitled to the relief prayed for. The alleged mortgage by Meaux Thornton to Robert West, was executed on the 17th January 1807. When Robert West acquired possession of the slaves, does not distinctly appear. Meaux Thornton having died, Robert West administered on his estate in the County court of Gloucester, in Pebruary 1809. It is alleged he took possession of the slaves as administrator, not as mortgagee ; but of this allegation, there is no proof. The records of Gloucester County court having been destroyed by Sre, no account of his administration appears; and none after such a lapse of time, and the death of the original parties and their immediate representatives, can now be looked for. In the mean time, the slaves were removed by Robert West to another county, where he died. In 1817, his executor, George M. West, administered on his estate, took possession of the slaves as the assets thereof, and died in 1824; and his administratrix, Jane West, having been removed, administration of his estate has been committed to the sheriff. After the death of George M. West, administration de bonis non of the estate of Robert West, was committed to Price Perkins, sheriff of Buckingham, in November 1824. He took possession of the slaves as part of the unadministered assets of the estate of Robert West, and held them until Pebruary 1829, when they were sold as assets of that estate, at the suit of the creditors thereof. On the 13th of June 1832, this suit was instituted, 25 years after the execution of the mortgage, 23 years after the death of Meaux Thornton and administration on his estate, 15 years after the death of Robert West and administration on his estate, 8 years after the death of his executor, and 3 years after the sale of the negroes, as assets of Robert West’s estate found in the hands of the sheriff, his administrator *de bonis non. The long delay and laches of the appellees in asserting their claim, is not satisfactorily accounted for. The suit of Perrin asserting an adverse claim to the property against Meaux Thornton, does not furnish a sufficient apology. If they had notice of the suit at all, they would have perceived that as early as 1817, George M. West, the executor of Robert West, asserted by his answer, that his testator, Robert West, had a clear and just title to the property ; thus setting up, and insisting ux)on a title adverse to the claim of the appellees. This assertion of an adverse claim should have led to enquiry. Had such enquiry been made, they would have perceived that the executor had made the allegation in good faith; that he had inventoried the slaves as part of the assets of his testator; thus making himself responsible to creditors and distributees for their hires and value. It does not appear when administration de bonis non upon the estate of Meaux Thornton was taken out, or how long it remained unrepresented after the death of Robert West; the fact, if material, should have been shewn by the appellees. But so far as the record discloses, they were all competent to act for themselves at the death of Meaux Thornton; no disability is alleged or shewn. As distributees of Meaux Thornton, they were the proper parties to have sued the administrator for a settlement and distribution ; and that is one aspect of their bill. And though the personal representative was the proper party to file the bill to redeem, yet those who claim through him are not relieved from the consequences of their gross laches, if without any valid excuse, they fail to take the proper steps to procure a representative for such a length of time, and until after such a change of parties and circumstances, as to render it doubtful whether any decree can be pronounced without the hazard of injustice. In this case, the assertion of their claim involves the settlement of the administration account of Robert West x'on Meaux Thornton’s estate, 15 years after the death of the administrator, and after the destruction of the records of the Court by which administration was granted ; a settlement of the administration account of George M. West, executor of Robert West, 8 years after his death; an account of the hires and profits of the slaves from 1809, after the death of all the original parties and their immediate representatives, and after the property itself has passed into the hands of bona fide purchasers, and the proceeds arising from the sale have been applied to the payment of the creditors of Robert West’s estate.
The Court is therefore of opinion, that upon the ground of adverse claim asserted upon the part of the estate of Robert West, and so long uncontroverted, the laches of the appellees in asserting their claim, and the hazard of injustice to others in going into settlements of estates, and calling for accounts of hires and profits of slaves under the circumstances of this case, the bill of the appellees should have been dismissed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481409/ | BALDWIN, J.,
concurred in so much of the decree as dismissed the bill as to Price Perkins individually, beyond the hires of the slaves whilst in his hands, but dissented from the residue; being of opinion, that the appellees are not precluded from relief by the statute of limitations or lapse of time.
Decree reversed, and bill dismissed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481410/ | BALDWIN, J.,
delivered the opinion of the Court.
Lewis, the grantor in the bill of sale to the appellee of the 27th of November 1835, in the proceedings mentioned, having, notwithstanding his alleged absolute sale of the slave Hezekiah thereby conveyed, con*77tinued in the possession of the said slave, such continued possession raises the legal presumption that the sale was fraudulent as regards the creditors of Lewis; which presumption throws imperatively upon the appellee the whole burthen of proving the fairness and good faith of the transaction; and that cannot be done without sufficient evidence that the pretended sale was for a fair and valuable consideration; and in the absence of such evidence, the prima facie presumption becomes absolutely and irresistibly conclusive.
No such evidence has been furnished by the appellee; on the contrary, the bill of sale itself contains no acknowledgment of a consideration actually paid by *the grantee to the grantor, or of an equivalent existing indebtedness from the latter to the former, but serves to shew upon its face mere gratuities and voluntary advancements, entirely compatible -with the relation of father in law and son in law existing between the parties.
The registration of the bill of sale is an immaterial circumstance, as in this case it throws no light upon the question whether the alleged sale was fair and honest, or a fraudulent contrivance to defeat the creditors of the grantor. And the authority given to the grantee by the bill of sale to take possession of the property at pleasure amounts to nothing, it being no more than that which results from the absolute conveyance itself.
Nor is it material, the property being that of Lewis, the principal debtor, that the execution was levied thereupon at the instance of the appellant Curd the surety, instead of Guerrant the creditor; for the question still recurs, whether the sale was fair or fraudulent as regards the creditors of the grantor; and it cannot be doubted that the surety has a right to avail himself of the fraudulent character of the transaction, and in truth is, within the spirit of the statute, at least in a Court of equity, a creditor himself. There is no pretence on the part of the appellee that, as between him and the appellant, the latter is primarily bound for the debt, or that he stands in any other relation to it than that of a mere surety.
Decree reversed with costs; injunction dissolved, and bill dismissed with costs. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481411/ | *DANIPR, J.
Upon the case agreed and submitted to the Court below, and now brought under revision here, two questions arise which have been very elaborately discussed at the bar: 1. Whether the appellee, Colston, by his endorsement, subjected himself to any liability; and 2. If so, whether he is liable in the form of contract and mode in which the appellant seeks to charge him.
It is well settled, that a blank endorsement on a negotiable instrument, blank as to date or amount at the time of the endorsement, if made for the purpose of giving a credit to the drawer, is as effectual to bind the endorser for any amount with which the instrument may be filled up by the drawer, or an innocent holder for value, as if the instrument had been complete at the time of the endorsement. In the case of Russel v. Langstaffe, Doug. R. 514, the Court of King’s bench held, in the language of Rord Mansfield, that such an endorsement “is a letter of credit for an indefinite sum”—that the endorser, in effect said, ‘ ‘trust the drawer to any amount, and I will be his security.” So in Schultz v. Astley, 29 Eng. C. L. R. 414, which was the case of an acceptance written on a paper, before entirely blank, it was held, that the blank acceptance was an acceptance of the bill afterwards put upon it; and that there is no distinction in principle, when the bill has passed into the hands of third persons, between holding the acceptor liable to a given amount, when the bill is afterwards drawn in the name of the party who has obtained the acceptance, and when it is drawn by a stranger who becomes the drawer at the instance of the party to whom the acceptance is given. And in the case of Douglass v. Scott & Fry, decided by this Court, 8 Leigh 43, where the paper was signed in blank, and endorsed in blank, and delivered to another to be filled up and used as a negotiable instrument to raise money on, the decision was founded on the proposition, *that the negotiable note afterwards drawn over the signature of the maker, did, together with its endorsements, bind all the parties-*80to the same extent as if the maker had signed, and the endorsers endorsed, the paper in its perfect form.
Of a promissory note which is not in its form negotiable, and which has never been placed by our statutes on the footing of bills of exchange, there cannot, technically speaking, be an endorser. Yet no reason is perceived why one who endorses a paper in blank, and delivers it to another, with authority to fill up the paper with an ordinary promissory note, and then to use it for the purpose of raising money, should not be precluded from escaping liability by objecting the incompleteness of the instrument at the time of endorsement, equally with one who conducts himself in the like manner with respect to,- a paper which is delivered with the understanding that it is to be perfected into a negotiable note. The same policy would seem to govern both transactions, and to require that the endorsers should, in each case, be subjected to the same liabilities, whatever they may be, that they would have incurred, respectively, had the drawing out and perfecting of the notes, in each case, immediately preceded the execution of the endorsements.
The questions whether such an endorsement should not be held to be without consideration, whether it was not void because of its preceding the making of the note, and because of there being no memorandum of the agreement in writing, were all considered in the case of Violett v. Patton, 5 Cranch’s R. 142, and decided in favour of the validity of the endorsement.
I do not therefore perceive, that the legal force of the endorsement in this case, is in any measure impaired by the consideration that it preceded, in order of time, the filling up of the note drawn upon the face of the paper. Nor do I discover any thing in the facts and circumstances *of the case agreed, which would justify us in so restricting the authority of- the payee, as to confine it to the drawing of a note, negotiable and payable at some one of our banks, over the signatures of the drawers, rather than the note now before us. The signature and the endorsement were both in blank at the time the paper passed into the hands of the payee, and the terms of the letter in which it was enclosed, “I have for you a blank note at eight months, which I wish you to fill up with as much as you can spare me,” &c., would be equally as well satisfied by filling up the blank with the note that was made, as with one negotiable at bank. We are therefore warranted in treating the case before us as if the perfecting of the note on the face of the paper, and the endorsing of it by Colston had been cotemporaneous acts, and had both preceded the delivery of the instrument to the payee.
What is the legal force of such an endorsement? No case is recollected in- which the precise question has been directly before this Court for its adjudication; but extensive reference has been made by counsel to cases settled in the Courts of some of our sister States, in which questions of a like character were the subjects of decision. The decisions of some of these States, are so much in conflict with those of others, and indeed, the decision of the Courts of the same State, have, in some instances, been found to fluctuate so much at different periods, that it is difficult to educe from their examination any well settled doctrine on the subject.
In Connecticut, the cases are numerous, and not without apparent conflict, but I think it may be stated as the result of the current of the later decisions of its Supreme court—-that endorsements in blank on promissory notes not negotiable, and on negotiable notes by one not a party to them, in order to warrant the maker’s responsibility, are treated as possessing the same *legal effect; and as binding the endorser to the undertaking that the money shall be obtained from the promiser when it falls due, by the endorsee, he using due diligence, and taking the remedies which the law has provided; but if the endorsee suffers it to lie without taking legal steps to secure or recover it, the endorser will be exonerated in case of a loss, unless the promissor was absolutely insolvent when the note fell due. Perkins v. Catlin, 11 Conn. R. 213; Lafflin v. Pomeroy, Id. 440; Castle v. Candee, 16 Conn. R. 223.
In Massachusetts, it is held, that where the note is made payable to the party sought to be charged, and negotiable in its form, the holder should be restricted to such an engagement over the signature endorsed in blank as will conform to the nature of the instrument. In such case, the party placing his signature in blank on the back of the note, is liable as endorser, and in no other form. But where the note was not payable to the defendant, or from its form was not negotiable by his endorsement, the nature and extent of his liability has been determined by the circumstances under which the endorsement has been made: if made after the note has been given, and under circumstances shewing that the endorser had no concern in the original contract, parol proof has been resorted to for the purpose of shewing what was the true character of this promise or engagement; and his undertaking has been treated either as a collateral or direct promise, according to such proof. If on the other hand, such endorsement is made at the same time with the execution of the note, the holder has been,,allowed to treat the endorser at his election, either as a direct or collateral promissor, without any proof of consideration, or of any actual promise to pay, except what is derived from his signature on the back of the note. Josselyn v. Ames, 3 Mass. R. 274; Hunt v. Adams, 5 Id. 358; Moies v. Bird, 11 Id. 436; Austin v. Boyd, 24 Pick. R. 64; Baker v. Briggs, 8 Pick. R. 122; Oxford Bank v. Haynes, Id. 423.
*In New York, the decisions upon the question have not been uniform, but the weight of authority is in favour of the proposition—that when the note is ne*81gotiable, the inference to be drawn from a third party’s placing his name on the back of it, is that he intends to give credit to the maker, by becoming answerable as endorser ; and that where he can be made liable as endorser, he cannot be charged in any other character. If, however, by reason of the note not being negotiable, he is not chargeable as endorser, and he made the endorsement under an agreement, and with the intent to bind himself in some other form, the payee may write over the blank endorsement such a promise or guaranty as will carry into effect the intention of the parties. Nelson v. Dubois, 13 John. R. 175; Tillman v. Wheeler, 17 John. R. 326; Seabury v. Hungerford, 2 Hill’s R. 80; Prosser v. Duqueer, 4 Hill’s R. 420. The reasonable inference which one about to accept a promissory note filled up as the one before us, and endorsed in blank in the ordinary course of business transactions, would draw from a mere inspection of the instrument is, that the endorsement was made with the intent to give strength and credit to the paper. He would perceive that the person putting his name on the back of the paper, had not, from the nature of the instrument, subjected himself to the liabilities, or entitled himself to the privileges, which attach to the endorser of paper strictly commercial. And as, of the only other contracts, having reference to the note on the face of the paper, which could be fairly predicated of the blank signature on the back, viz: an absolute and direct promise to pay, or a collateral guaranty, it would be just as fair to presume the one as the other; it would, I think, be reasonable further to infer, that the person so endorsing in blank intended to leave it in the power of the payee to elect in which of the two aspects he would hold him bound.
*1 regard the weight of authorities above referred to, as in favour of these views; the decisions in Connecticut being opposed by those of New York and Massachusetts; and I do not think that there is any thing in the decision of this Court in the case of Watson v. Hurt, 6 Gratt. 633, in conflict with them. In the last mentioned case, the blank endorsement being construed in reference to the note on the face, and the latter being barred by the statute of limitations, it was not necessary to decide whether the endorsement imported an absolute suretyship for the maker, or a collateral undertaking for the payment of the note; as, whether the action was to be treated as founded on the one form of contract or the other, it would in either case have been barred by the statute.
I have hitherto considered the case as if the endorsement were still in blank, as it was when it passed into the hands of the payee. Since then, nothing has occurred to impair the right of the payee to treat the endorsement as still in blank. I do not deem it necessary, therefore, to express any opinion, as to what would have been the construction to be given to the terms of 'the writing over the signature of the endorser, had they been filled out before the paper passed to the payee, or upon the questions of diligence, which might have arisen had we regarded the undertaking of Colston as a collateral guaranty.
It was competent for the appellant, in my view of the case, as before stated, to have charged Colston either as a collateral promissor, or as a direct and absolute surety. The filling up of the endorsement has not destroyed the right of the appellant to hold the appellee bound to him in either character. It was made after the institution of the suit; and might have been erased or altered in any way, at or before the trial, so as to conform to any of the counts in which the plaintiff had a right, upon the state of facts, to recover. Tenny v. *Prince, 4 Pick. R. 385; Josselyn v. Ames, 3 Mass. R. 274. EJven then, if we were to hold that according to the terms of the endorsement as they now stand, Colston would be a collateral promissor, and as such, not bound because of the alleged want of proper diligence on the part of the payee against the maker, I do not think it would be necessary to send the case back for the formal erasure of the filling up of the endorsement, and its alteration so as to make Colston, by the express written terms of the endorsement, a direct promissor. No change in the declaration or other pleadings, in such a state of things being necessary to the recovery. I feel the less reluctance in coming to this conclusion, as from the facts agreed, it is highly probable that no measure of diligence would have resulted in procuring payment of the note from the makers. I think that there is error in the judgment of the Court below; that it ought to be reversed with costs, and one rendered in favour of the appellant for the amount of the note and its interest.
The other Judges concurred in the opinion of Judge Daniel.
Judgment reversed, and entered for the appellant. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481412/ | ALLEN, J.,'
delivered the opinion of the Court.
The Court is of opinion, that as by the act concerning the writ of habeas corpus, ch. 156, page 613, Code of 1850, no provision is made giving to this Court jurisdiction to grant a writ of error to a judgment upon an application for a habeas corpus, and as by the act concerning appeals and writs of error and supersedeas, Code of 1850, p. 682, the jurisdiction to grant a writ of error or supersedeas is confined to judgments in civil cases, this Court has no jurisdiction to grant a writ of error in a criminal case. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481413/ | BALDWIN, J.,
delivered the opinion of the Court.
The practice of the English courts, in relation to writs of scire facias for the renewal of judgments, as *well as other matters of practice, came to us on the. settlement of the countr}', and has prevailed here, so far as adapted to the organization of our Courts, and compatible with our own legislation. By that practice, execution was awarded on the return of two nihils, and it was recognized by our act of 1792, (1 Rev. Code, ch. 128, § 65, p. SOS,) but was restricted by that act to cases, where the defendant resided in the county, or where he was absent from the Commonwealth, and had no known attorney therein. By the act of 1831, (Supp. Rev. Code, p. 258,) upon the affidavit therein prescribed being made and filed, service of the scire facias was authorized, where the defendant was out of the Commonwealth, upon his agent or attorney in fact, or by publication in some newspaper as therein provided for. But this last mentioned act is permissive only, and in no wise abolishes the previously existing practice. The purpose of the *83writ of scire facias is to give notice to the defendant of an application for award of execution, which cannot be had without an order to that effect, where execution had not been sued out upon the judgment within a year and a day: and the order is made in Court, or at the rules, upon due return of the process, unless good cause can be shewn to the contrary; and it is not a proceeding which requires a declaration or a rule to plead. The default of the defendant in not appearing to shew cause, is a sufficient foundation for award of execution, which if made at the rules, and not set aside at the next succeeding term, becomes a final judgment of the last day of the term. The provisions of the 6th section of ch. 170 of the New Code, are not applicable to the present case, which occurred .before the same took effect.
It seems, therefore, to the Court, that there is no error in the judgment of the Circuit court: and it is considered that the same be affirmed, with costs to the defendant in error. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481414/ | BALDWIN, J.,
delivered the opinion of the Court.
The proceedings in this case are founded upon the act of the 23d of March 1848, Sess. Acts 1848-9, p. 240, ch. 223; as appears from the order made on the application of the appellees to the County court and other parts of the record. That act must have been inspected by the Court, or relied on and conceded ; as it is referred to by its title in said order, which states that the applicants had complied with its provisions requiring *the notice thereby prescribed. The existence of the act was in nowise controverted in any part of the proceedings, either in the County or the Circuit court, nor any objection taken to its due authentication. It appears upon the printed statute book, ■ published by Legislative authority, which was doubtless the reason why it was not spread at large upon the record, as it might have been from the printed statute book, that being legitimate proof of the statute. And now, by the New Code, p. 660, ch. 51, $ 1, it is provided that an appellate Court shall take judicial notice of private or local acts that appear to have been relied on in the Court below. In this case, the act was not only relied upon, but made the foundation of the whole proceedings, and its inadvertent omission from the bills of exception stating the evidence, is therefore immaterial. The judicial notice we are to take of it, is the same with that which we give to laws of a general and public nature, and has reference to the hearing of the cause in the appellate forum, whether decided in the Courts below before or after the commencement of the revised statute. And this renders it unnecessary to consider whether the act in question is to be regarded as a public' or private act, and dispenses with any formal amendment of the record.
The purpose of the act was to establish a ferry upon the lands of John and Lewis W. Wimbish, on the south side of the Roanoke-river, in the town of Clarksville, to the lands of James Somerville, on the north side of the river, provided the" public interest required it, and that matter was referred to the decision of the County court, which was directed to proceed upon the application of the Wimbishs, to cause a jury to be empaneled to view the place proposed, and to say whether, in their opinion, public convenience would result from the establishment of the ferry; and, upon such opinion, and any other evidence that should be offered, *the Court was authorized to establish the ferry, and fix the rates for passing the same.
No one doubts that it is within the legitimate province of legislation to establish highways, whether by land or water, or ferries or bridges across water courses, for the convenience and use of the public; and that there is no limitation of this power, other than the regard due to the rights of private property, which cannot be invaded or taken from the owner without just compensation. Such eminent domain may be exercised by the legislative department, either directly or through the instrumentality of judicial, or other tribunals, or agents; and the expenses of construction, reparation and other charges, may be defrayed out of the public treasury, or by means of franchises, granted to companies or individuals, or attached when appropriate, to the ownership or use of the soil.
The power of the Legislature to establish particular ferries by direct and special enactments has been freely exercised, from an early period of our colonial history, down to the present time; and our satute book is full of such laws. This eminent authority never has been, and never could have been, surrendered by the delegation of it to any extent, whether limited or unlimited, to judicial or other tribunals; and has continued to be exercised, notwithstanding the power ' given by the act of 1705 (2 Hen. St. 475), and of 1792 (1 St. L., N. S. p. 152), to the County courts, in general terms, to appoint such ferries over rivers and creeks, in their respective counties, as *91should be deemed convenient and necessary, and the act of 1806, (3 Id. p. 301,) and the revised act of 1819, (2 Rev. Code, p. 261, 267,) prescribing the limits and providing for the exercise of their jurisdiction on that subject.
The last mentioned act is a general law providing for the establishment of ferries, on the application of the owner of land on both sides, or one side only, of any *water course, through which a public road passes. The ownership of the land, and the existence of the public road are, under this general law, essential to the jurisdiction of the Court’. The degree or evidence of ownership required by it, we need not consider here. In the present case, the application is not founded upon it, but upon the special act of the 23d of March 1848, passed upon the representation, “to the General Assembly that the establishment of a ferry from the lands of John and Lewis W. Wimbish, on the south side of Roanoke river, in the town of Clarksville, in the county of Mecklenburg, to the lands of James Somerville on the north side of the said river, would very much promote the convenience of the people and facilitate their intercourse and its provisions are full and complete for that object, without reference to or deriving any aid from the general law above mentioned.
This special act designates the place where, and the persons on whose application, the ferry should be established; and the designation is satisfied by the possession and enjoyment of the Wimbishs, under a bona fide and undisputed claim of title. It could not have been in the contemplation of the Legislature to submit to the jury or the Court the question, whether any flaw could be found in the title of the appellant, which by possibility might at some future day give rise to an adverse claim to the property. The Legislature doubtless proceeded upon the assumption and belief of the fact, that the Wimbishs were the owners of the land which they held and claimed and enjoyed, and to which no one else asserted a title; and there was no necessity for any further enquiry upon that subject. The public interest could be in no wise affected by a recovery of the land from them thereafter upon a paramount claim of title, nor could the establishment of the ferry in any degree rebound to the prejudice of the future claimant. It. could not affect his-title to the subject, inasmuch as *he would not be bound by a collateral adjudication of a collateral question, in which moreover he might not know at the time that he had any interest. The notice required by the act, to the owners of all lands which would be affected by the establishment of the ferry, did not embrace the case of persons who had no existing ownership or even claim to the locus in quo ; but had reference to other lands, and was properly applicable to the appellant Somerville, whose land on the opposite shore was the seat of a conflicting ferry.
We need not therefore consider whether there is any defect in the derivation by the appellees of their title. The merits of the case turn upon different questions, one bearing upon the public interests, and the other upon the individual rights of Somerville. The first is simply whether, in the language of the statute, “public convenience will result from the establishment of the ferry;” the affirmative of which we consider abundantly proved by the evidence in the record, which we think requires no comment. The second has a double aspect, one looking to the appellant’s right of property in his land, the other to his right of property in his ferry.
A ferry franchise is with us the creature of our statute law: and the instances are extremely rare of a grant of it to individuals personally. By the course of our legislation since 1748, and under our existing laws, the owner of the ferry seat is incidentally the owner of the franchise. In establishing a ferry, the usual form of its designation is from the lands of an individual on one side of the water course, to the lands of another or the same individual on the opposite side ; and the place of departure is always regarded as the seat of the ferry. There is no necessity for requiring a more precise description of the ferry ways on either side; and it would be extremely inconvenient to do so, both as regards, the public and the ferry keeper; for that would *render an exact description on both sides by metes and bounds indispensable, and make every departure from them unlawful, however immaterial, and whatever the urgency of the occasion, and though attended with no invasion whatever of the rights of others. And hence it probably is that no provision has ever been made in all our legislation on the subject, whether general or special, for the condemnation of a landing on the opposite side from the ferry seat. The Commonwealth confers, by her grant of the franchise, such right in regard to landing on the opposite shore as she may lawfully impart, and no more. The very object of the grant carries with it whatever privilege the public then has, or may thereafter acquire, to the use of a highway there for that purpose; and if the grantee claims any thing more, he must shew a title to it by private contract. It is not to be supposed for a moment that the Commonwealth contemplates by the creation of the franchise what is beyond her power to grant, the invasion of the property of others without compensation.
As to the alleged invasion of the appellant’s right of property in his ferry, we need not require how far such a franchise is protected from competition by the doctrines of the common law. The question here is how far it is exclusive under the provisions of our statute law. The ferry seat, as we have seen, is on one side of the water course. It is there only that the ferry keeper is bound to keep his boats and his hands; there are no such obligations in regard to the opposite side: his right to take in passengers on that side has fre*92quently been questioned; and hence the often repeated provision in our legislation authorizing him to do so. The establishment of an opposite ferry may often be demanded by the public interest and convenience; the power has been repeatedly exercised by direct legislation, and often conferred upon the County courts; and prior to the revised act of 1792 (1 St. L., N. S. 152,) *their general jurisdiction to establish ferries embraced such only. And that act, by which the appellant’s ferry, amongst many others, was established, contains an express provision that wherever there was no ferry corresponding to any one thereby appointed, it should be lawful for the County court to constitute and appoint an opposite ferry, with the same rates. It is true that by the act of 1840, (Sess. Acts 1839-40, ch. 79, 1, p. 58,) in order to prevent injurious competition, the Courts are prohibited from granting leave thereafter to establish a ferry over any water course within one half mile, in a direct line, of any ferry legally established over the same water course: But if that prohibition embraces opposite ferries, as to which we express no opinion, it was no surrender of the legislative power thereafter to establish such opposite ferries, whether directly or through the agency of the Courts.
The right of the owner of the opposite ferry to participate in the use of the ferry way on the other side of the stream, depends upon the correctness of the views already presented. The establishment of his ferry confers upon him no title to any portion of the soil on the other side, and no easement there beyond the incidental delegation of such as has been theretofore, or may thereafter be, acquired by the public as a highway, or derived from the consent or contract of the owner of the land, or those under whom he claims.
We are of opinion, therefore, that the establishment of the ferry in question will be no invasion of the appellant’s right of property in his land, nor of his right of property in his ferr3'. The effect of it will be the grant of a franchise as incidental to the apparent ownership of the ferry seat, with the enjoyment of tolls and other appurtenant privileges. Such franchise will prevail against all wrongdoers who may invade it in any respect. But it cannot prevail in favour of the apparent owner against any adverse claimant of the *ferry seat who shall establish a paramount title. Nor will it confer any right to use the opposite’land of the appellant for a ferry way, except as above mentioned. Whether it will carry with it the privilege of using any public roads on the opposite land, for the purpose of landing or taking passengers, &c., is a question which we deem it unnecessary to determine. That is a question which does not properly arise in this controversy about the establishment of the franchise, -though it may in future controversies with the appellant, or others claiming under him, in regard to the extent of the franchise so established.
As to the evidence in the record in relation to the existence, the antiquity, the user or non-user, the abandonment by the owners, the recognition by the appellant, or the acquisition by the appellees, of Royster’s ferry—whether it may have any bearing or not upon future controversies—it has none that we can perceive upon the one before us, unless perhaps it may tend to throw some light upon the question, whether the ferry now sought to be established will be of convenience to the public. The title, it is true, of the act of 1848, upon which the present application is founded, is “to revive the ferry at Clarksville, in the county of Mecklenburg, formerly known as Royster’s ferry, across Roanoke river;” but that title is inappropriate to the enacting clauses, which look to the establishment de novo of a ferry upon the application of the appellees.
The formal objections taken in the argument to the proceedings in the Courts below, we think not well founded, for reasons to be deduced from the remarks already made upon the merits.
The Court is of opinion, that there is no error in the judgment of the Circuit court affirming that of the County court; and it is considered that the same be affirmed, with costs to the appellees.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481417/ | AHHRN, J.,
delivered the opinion of the Court.
The Court is of opinion that the responsibility of the plaintiff in error in this case is to be ascertained and determined by the contract between the high sheriff and Street and Turnbull, to whom he farmed the sheriffalty; in pursuance of which contract the plaintiff in error was selected and employed as a deputy by the said Street and Turnbull, and permitted to qualify as a deputy sheriff by the high sheriff.
That by the terms of the contract referred to, the said Street and Turnbull were to have the management of the sheriffalty, to perform or have performed the duties of the office, to select and employ deputies, to control and have power to dismiss them. This contract construed with reference to the subject matter thereof, did not and could not divest the high sheriff of his power to dismiss any of said deputies, or of his right to refuse to permit any person so selected and employed by Street and Turn-bull to qualify as a deputy: But subject to such power, the contract constituted Street and Turnbull his general agents, with full authority to control the persons selected by them to the same extent he himself might have done. If the sheriff requires his deputy to return process or pay over money, collected to him, though in certain cases provided for by statute, the creditor might have a remedy against the deputy, notwithstanding such payment to the high sheriff, the latter if made responsible, could on no ground claim to subject the deputy to a liability, when so far as respected the sheriff, he had been guilty of no default. In accordance with the agreement and understanding of the parties, the plaintiff in error was selected and employed by Street and Turnbull, and was permitted by the high sheriff to *qualify as his deputy without executing any bond to indemnify the high sheriff; and in pursuance of the directions of Street and Turnbull delivered to them or one of them process, and paid over the money collected by him; thus doing what the high sheriff had agreed he should do when he constituted Street and Turnbull his general agents in relation to the office, with power to select and employ, to control and dismiss, the deputies. In the case of Sailing v. M’Kinney, 1 Heigh 42, it was agreed that the sub-deputy was to be accountable to the deputy who had farmed a particular bailiwick of the county to him, but the sheriff was not privy to such agreement, and permitted the sub-deputy to qualify at the instance of the deputy; the sub-deputy giving to the sheriff a bond to indemnify him against any loss arising from his acts. In the present case the sheriff must be treated as privy to the arrangements between Street and Turnbull and their sub-deputies, for it grew out of the contract which he had made. He looked to Street and Turnbull as the parties responsible to him, and therefore' required no bond from the plaintiff in error when he qualified as deputy.
Reversed with costs, and this Court proceeding to render such judgment as the Court below ought to have rendered—Judgment for defendant, with costs. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481418/ | DANIEE, J-
It appears from the bill of exceptions, that the counsel for the defendant in error, in opening his case, read to the jury, without objection, and commented on, a certain paper which is set out in the said bill. This paper which purports to be executed by the plaintiff and defendant, recognizes as the bond of the intestate the instrument, the execution of which was the matter in issue. It also appears that the counsel of the plaintiff in error, in his opening statement likewise read and commented on the paper; whereupon it was remarked by the counsel of the defendant in error that the said paper was thereby made evidence in the cause. This claim was however denied by the counsel of the plaintiff in error, who insisted that the 'x'said paper was not evidence. Subsequently the counsel of the defendant in error, having first introduced the subscribing witness to the bond in the declaration mentioned, who proved its execution by the obligor the intestate of the plaintiff in error, proceeded to read the paper first above mentioned. The counsel of the plaintiff in error then moved the Court to exclude said paper upon the ground that it was not competent evidence upon the issues joined in the cause; but the Judge of the Circuit court being of opinion that it was evidence on the issue of non est factum, in corroboration of the testimony of the subscribing witness, refused to exclude it. It was admitted that the said paper was executed by the plaintiff in error; but it was also further admitted that it was executed by him in the lifetime of his intestate.
It is, I think, quite clear from the bill of exceptions, that whilst the Judge of the Circuit court regarded the course of the counsel in regard to the paper as a part of the history of the proceedings in the cause proper to be certified, he did not intend to rest the correctness of his decision in any measure on that ground; but simply on the ground that the paper was, of itself, legal and competent evidence in corroboration of the testimony of the subscribing witness. For what purpose the counsel of the plaintiff in error referred to the paper does not appear; but it is seen that so soon as warned by the opposing counsel that it would be relied on as evidence in the cause, he promptly resisted the pretension. And even if, through inadvertence, the paper had been permitted to go to the jury without any show of opposition, it would, I appre*102hend, have been the duty of the Court, on the motion of the plaintiff in error, to have instructed the jury to disregard it, if the Court was of opinion that it was not legal testimony.
*The question of law involved in the refusal of the Court to exclude the paper, is I think, therefore fairly presented, unembarrassed by any considerations arising out of the conduct of the counsel of the plaintiff in error in regard to it previous to his motion to the Court to exclude it.
In Phillips on Evidence, vol. 1st, page 90, it is announced in general terms, that admissions are evidence in favour of the other side, whether made by the real party on the record, or by a nominal party who sues as a trustee for the benefit of another, or whether made by the party who is really interested in the suit, though not named on the record. The universality of expression used by the Judges in delivering their opinions, in the cases referred to as authority for the rule, might seem at first view to sanction such a doctrine. If we look however to the reasons upon which the rule is founded, it becomes very obvious that as so announced it must be subject to very important qualifications. In the case of the King v. The Inhabitants of Hardwick, 11 East. R. 578, Eord Ellenborough sets forth as the foundation of the rule, “the reasonable. presumption that no person will make any declaration against his interest unless it be founded in truth.” This rule of evidence was one of the matters of consideration in the case of Burton v. Scott, 3 Rand. 399. The case was one of probat, and the question turned upon the capacity of the testator. The wife of the testator was one of the legatees and interested in establishing his will, and it was sought by those who contested its validity, to rely on her declarations, as to the incapacity of her husband to make a will, made by her in his lifetime and before the date of the will. It was decided by this Court that the reason of the rule did not reach the case of such declarations; and that the rule did not extend to admissions and declarations made by ^parties before their interest in the subject matter of controversy arose.
The reasons for denying the extension of the rule to the admissions and declarations of representatives, made before they are clothed with their representative rights and duties, would seem to be equally obvious : And all the cases which I have been able to find deny the competency of such evidence. Thus in Webb v. Smith, 21 Eng. C. L. R. 392, the declarations of a prochein amie made before the institution of the suit, were decided to be not admissible for the defendant. And in Eenwick and others v. Thornton, 22 Eng. C. L. R. 246, which was the case of a suit by the assignees of a bankrupt, it was decided that the defendant could not rely on the admissions of one of the plaintiffs made before he was appointed assignee. The precise question before us arose in the case of Plant v. M’Ewen, 4 Conn. R. 544, and under circumstances very similar to those in which it is presented here.
That was a suit against William M’Ewen as the executor of his father. The plaintiffs in their declaration alleged that the testator had in his lifetime, for a valuable consideration, assigned to the plaintiffs, and warranted as due and owing, a note on one William Walker; whereas the defendant, before the said assignment, acting for and as the agent of his father, had received of Walker a note on one Hawley, payable to said Walker under ah agreement, as agent of his father, to endorse said last mentioned note as a c.redit on the first:—that there had been a failure to comply with -the agreement, in consequence of which the estate of the father in the hands of the defendant as executor had become liable to the plaintiffs for the amount of the note from Hawley to Walker. On the trial the Judge admitted evidence proving that the defendant did receive the note against Hawley, and that he agreed to *endorse it on the note of his father against Walker. No other evidence was offered to shew that the defendant was in the transaction the authorized agent of his father. In the Supreme court the effort was made by counsel to vindicate the correctness of the decision of the Judge on two grounds. 1st. That the act of the defendant in receiving the note against Hawley, and his agreement to credit it on the note against Walker, were admissible as the acts and declarations of a party to the record. And 2d. That his' conduct in the matter was competent evidence as tending to 'shew that he was acting in the transaction as the agent of his father. But the Court decided that on neither ground could the legality of the evidence be sustained. The Judge delivering the opinion of the Court said, that whilst it was true as a general rule, that the declarations of a party to the record were evidence against him, there was no principle which would authorize the proof of an act or contract of the defendant, antecedent to his acceptance of the trust of executor, to affect the estate committed to his care: And that the naked act and engagement of the defendant, without the exhibition or actual pretence of any authority, implied no proof of agency; nor did they constitute premises from which any such inference could be deduced. To apply these remarks, with slight modification, as I think we may properly do, to the case before us, is to decide its fate. The certificate of the Judge negatives the existence of any proof in the cause, except what is to be inferred from the paper heretofore mentioned, tending to shew that the plaintiff in error was the agent of his intestate Seth Gaines: And the paper on its face shews no claim or assertion on the part of the plaintiff in error that he was acting in the matter under any authority derived from the said Seth.
*103*1 am therefore of opinion, that the Circuit court erred in refusing- to exclude the paper last mentioned; and that the judgment ought to be reversed.
The other judges concurred in Judge Daniel’s opinion.
Judgment reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481419/ | ABBEN, J.,
delivered the opinion of the Court.
The Court is of opinion, that the amount and validity of the claim of Gill Arm-stead’s legatees against *the estate of William Armstead deceased, were ascertained and adjudged by the decree of the Chancery court of the 1st of June 1816. That although the said decree was reversed by the decree of this Court, pronounced on the 11th of December 1821, for formal errors, yet the mode of settling the accounts between said William Armstead and the estate of Gill Armstead was directly passed upon by the Court of appeals, and so much of the decree of the 1st June 1816, as ascertained the amount of the debt and adjudged it to be due by William Armstead’s estate, was substantially afíirmed, and the Court of chancery was instructed to enter a decree according to the principles so settled by the decree of the Court of appeals; in pursuance whereof the said Chancery court did, on the 18th July 1822, enter up a decree for the amount of the debt so ascertained to be due from William Armstead’s estate to the legatees of Gill Armstead.
The Court is further of opinion, that said decrees did in effect adjudge and establish that as William Dandridge, who intermarried with the only daughter of William Armstead, being best acquainted with, and having laboriously attended to the taking of the accounts, being de facto administrator of William Armstead, had possessed himself of the assets and credits of the estate, the payment of the debt so ascertained and established against William Armstead’s estate must ultimately fall on said Dandridge. The Court is therefore of opinion, that said decrees taken in connection with the decree of the Court of appeals of the 16th February 1836, reversing a decree of the Chancery court pronounced on the 3d of August 1829, dismissing the bill as to the representatives of Bartholomew Dandridge and William Bangborne, conclusively establish against said William Dandridge and all his representatives the indebtedness of William Armstead’s estate to the legatees of Gill Armstead; that they had a right to follow *the assets in William Dandridge’s hands; that a sufficiency of such assets had come to his hands, and that his representatives, who have received his assets, are accountable to said legatees for the assets so received.
And the Court, without deciding what would be the effect in all cases of a judgment against an administrator de bonis non in establishing a debt against the estate so as to conclude a former executor or administrator, and thereby subject him to a devastavit, is of opinion, that under the circumstances disclosed in this case, the decree pronounced against Bartholomew Dandridge, administrator de bonis non of William Dandridge deceased, on the 18th of July 1822, in pursuance of the decree of the Court of appeals of the 11th December 1821, substantially affirming the decree of the 1st June 1816, should be treated and held as conclusive upon the said William Bang-borne, the prior executor of said Wrilliam Dandridge deceased, upon the question of the indebtedness of William Armstead’s estate, the right to follow his assets in the hands of William Dandridge, the receipt of sufficient assets by William Dandridge for the payment thereof, and the liability of *112his estate for the amount: It sufficiently appearing that said claim was controverted by said William Dandridge in his lifetime, who, according to the decree of the Court of appeals, was best acquainted with and laboriously attended to the taking of the accounts; and it furthermore appearing that after the death of said William Dandridge, the suit was regularly revived against Susanna Dorrington and David Dorrington her husband, the said Susanna having qualified as executrix of William Dandridge, and against John Bassett and William Bangborne who were named as executors; that the said Dorrington and wife filed their answer making full defence, and that after the order of the County court of June 3d, 1805, treated by the Court of appeals by the decree of the 16th February 1836, as a revocation of her authority *as executrix, the said William Bangborne qualified as executor, and thereafter filed his answer controverting the "justness of the claim; that exceptions were taken to the report of the commissioners, and the case matured for a decision on the merits during his lifetime. Under such a state of facts where the claim was controverted by the party sought to be charged in his lifetime, the suit revived against his executor who made a vigorous and full defence, and the case was ready for a decision on the merits when he died, and the cause was revived against the administrator de bonis non, against whom the decree was pronounced, there can be no hazard of injustice to the executor in treating the decree against the administrator de bonis non, as conclusively establishing the debt against the estate, botja as regards the administrator de bonis non and the previous executor; and Bangborne is properly responsible for the assets he paid over to the legatees of William Dandridge to the prejudice of Gill Armstead’s legatees who were creditors of the estate as ascertained and adjudged by the decrees hereinbefore referred to.
The Court is further of opinion, that as it appears said William Bangborne, executor of William Dandridge, paid over to his legatees the assets, with full notice of said claim, and after the suit to assert and establish the same against the estate of his testator, had been duly revived against him; and as the decree establishing said claim is, under the circumstances aforesaid, conclusive as it respects him, in establishing the validity of the debt against his testator’s estate, such payment constituted a devastavit, and the liability arising from such devastavit resting on him at his death, in equity and by virtue of the official bond, created a debt which his representative was bound to discharge before making distribution of his estate; to be credited, however, by the amount of assets he retained in his hands, and which were afterwards paid over in invitum, by the *decree of the Chancery court to Bartholomew Dandridge, the administrator de bonis non.
The Court is further of opinion, that as the legatees of said Gill Armstead claimed by force of the same decrees ascertaining the rights of all, and having a common interest, are seeking satisfaction out of a common fund, it was proper to unite in one suit to get the benefit of the former decrees in their favour; and the bill filed is not liable to the objection of being multifarious.
The Court is further of opinion, that there is nothing to distinguish the case of E. A. A. Booth from that of the other claimants. She was a party in whose favour the decree of 1st of June 1816, was pronounced, which as to her right to recover, was substantially affirmed by the decree of the Court of appeals of the 11th of December 1821. And though by the decree of the 18th of July 1822, there was an omission to enter a decree in her favour in consequence of the suggestion of her intermarriage with-Booth, yet, by the principles of that decree, purporting to be entered in conformity with the decree of the Court of appeals, her right to recover, which was a joint and common one with the other legatees, was in effect established; and the decree for her proportion was merely suspended to bring in a formal party in whose name the same could be entered; and the suit never having abated as to her, and she having survived her husband, she stands in the same position with the other claimants, with a decree establishing their rights jointly, and entitled equally with them to carry it into effect.
And the Court is further of opinion, that as the decree of the 1st June 1816, was suspended by the appeal, and no definitive decree establishing the debt was rendered until the decree of the Chancery court of the 18th July 1822, was entered in conformity with the instructions contained in the decree of the Court of appeals of the 11th December 1821; and as the claimants *had no right to proceed against the representatives of William Bangborne for his devastavit until their debt was established against the estate of said William Dandridge, their bill filed in February 1826, against the representative of said Bang-borne and the representatives and legatees of said William Dandridge, to get the benefit of said decrees, and charge the estate of said Bangborne for his devastavit, was not barred by any statute limiting actions against fiduciaries; nor was there any such delay as to require a Court of equity to refuse relief upon the ground of laches.
The Court is further of opinion, that as it appears that Burwell Bassett, the representative of William Bangborne the elder and of William Bangborne, jr., had passed over the assets of said estates before he had notice of the claim now in controversy, as he alleges in his answer, to the proper distributees and legatees of said Bangbornes, it was proper to throw the burthen on the distributees and legatees instead of the per*113sonal representative; they having the fund out of which the claim should he satisfied, and which in any event, must be held as being ultimately subject to the claim sought to be enforced, unless the same can be otherwise satisfied.
The Court is further of opinion, that as it respects the security of Bartholomew Dandridge, administrator de bonis non, the cause of action arose against him from the rendition of the decree of the 18th July 1822; as it would have been competent for the claimants, upon the return of nulla bona on said decree, to have proceeded against said administrator de bonis non and his securities in his official bond for his devastavit; and no proceeding having been commenced against such securities until they were made defendants by the amended bill filed on the 14th May 1838, the act of March 8th, 1826, relied on by the security Thomas H. *Terrill in his answer, barred a recovery against the securities.
The Court is further of opinion, that the statement XX referred to in the decree now appealed from, correctly ascertained the sums for which the representatives of B. Dandridge’s estate, and the representatives of Bangborne’s estate were respectively responsible; that all exceptions inconsistent with said special' statement XX were properly overruled, and all exceptions consistent therewith properly sustained; and said statement so confirmed and constituting a part of said decree, definitively ascertains the amount for which Bartholomew Dandridge’s estate is liable, and for which a decree was properly rendered in favour of the claimants respectively, against Philemon Jones, committee and administrator of his estate; and the same also definitively ascertains the amount for which the estate of William Bangborne is ultimately responsible and may be compelled to pay eventually unless otherwise discharged.
The Court is further of opinion, that as Mrs. B. Bassett was, under the will of William Bangborne, jr., a legatee for life, and it appears that before any recovery she had departed this life, and the part held by her for life was passed over to those entitled in remainder, the surviving husband having no assets of his wife, could not be held responsible on account of such life estate which had previously terminated; and the assets of William Bangborne which the claimants were entitled to follow had passed into the hands of those entitled thereto in remainder; and the decree subjecting said B. Bassett, on account of said life estate, to a portion of the amount for which the estate of Bangborne was responsible was erroneous.
And the Court is further of opinion, that although as a general rule a creditor of an estate is not bound to look beyond the personal representative, who is immediately '^responsible to him, yet under peculiar circumstances it is proper that a Court of equity should throw the burthen upon those ultimately liable, and that more especially when by the acts and conduct of the creditor the party who might in strictness have been primarily liable, may have been misled and induced to believe he was not looked to as responsible. In this case it is manifest that the representatives of Bangborne have received no part of William Dandridge’s estate, the assets of which should properly have been applied to the payment of this claim. The same have all been duly accounted for and passed over by Bangborne and his representative to the legatees and administrator de bonis non of William Dandridge. On the death of Bangborne the claimants revived their suit against the administrator de bonis non of William Dandridge, and dropped the representatives of Bangborne from the cause; thus indicating an intention to look to and pursue the estate of William Dandridge. In the meantime the representative of Bangborne turned over to the administrator de bonis non of William Dandridge, in obedience to a decree of Court, the assets of William Dandridge remaining in the hands of Bangborne at his death; and thereafter without any notice, as he alleges in his answer, of the claim now sought to be enforced, he proceeded to distribute the estate of Bangborne in the mode disclosed by the record. The claimants, by their bill of 1826, still looking to the estate of Dandridg'e for satisfaction, made the legatees and representative of that estate parties; and the Court having them before it, was bound in the exercise of a sound discretion under the circumstances aforesaid, to have required the claimants to proceed in the first place against the legatees of William Dandridge, holding Bangborne’s estate ultimately responsible for the sum so as aforesaid ascertained to be a proper charge against it, or for so much thereof *as could not be made by proceeding against the legatees of William Dandridge; and it was error to dismiss the bill as against the representatives and legatees of William Dandridge, or any of them, and to decree against the representatives of Bangborne until such effort had been made to procure satisfaction out of the assets of William Dandridge’s estate in the hands of his representatives.
It is therefore ordered and decreed, that said decree in the particulars in which it is herein declared to be erroneous, be reversed with costs; and that the same, so far as it conforms to the principles above declared, and is not herein declared to be erroneous, be and the same is hereby affirmed. And the cause is remanded with instructions to require the plaintiffs in the Court below to revive, if necessary, against the legatees, and also the devisees, if so advised, of William Dandridge, and for all proper accounts, in order to a final decree according to the principles above declared, which is ordered to be certified.
*114MULTIFARIOUSNESS (IN EQUITY).
I. Nature.
1. Difficult to Define.
2. What Constitutes.
3. Tests.
a. In General.
b. Oases Illustrating the Application of the Car-
dinal Rules or Tests.
(1) Bills Objected to, but Held Not to Be Multifarious.
(2) Bills Held to Be Multifarious.
II. Forms of Multifariousness.
1. In General.
2. As to Matter.
3. As to Parties.'
III. Terminology.
IV. Reason for Rule.
V. Applies to Wbat Pleadings.
VI. Multifariousness as Determined by Prayer for Relief.
1. In General.
2. Alternative Prayer.
3. Impossible or Improper Relief Asked.
VII. At What Stage Objection Raised. vttt. Method of Raising Objection.
IX. By Whom Raised.
X. Waiver.
XI. Effect and Remedy.
1. In General.
2. Amendment.
3. Dismissal.
^ Cross References to Monographic Notes.
Amended Bills, appended to Belton v. Apperson, 26 Gratt. 207.
Answers in Equity Pleading, appended to Tate v. Vance, 27 Gratt. 571.
Creditors’ Bills, appended to Suckley v. Rotchford, 12 Gratt. 60.
Indictments, Informations and Presentments, appended to Boyle v. Com., 14 Gratt. 674.
I. NATURE.
1. DIFFICULT TO DEFINE.—Some difficulty is experienced in accurately defining the term “multifariousness.” As used in chancery pleadings, it more properly consists of a demand in one bill of several matters of a distinct and independent nature against several defendants; or the uniting in one bill against a single defendant several matters perfectly distinct and unconnected. See Dan. Ch. Pr., 2093.
But it is impossible to lay down any fixed and invariable rule applicable to all cases as to what constitutes multifariousness. As said by Staples,
J. , in Segar v. Parrish, 20 Gratt. 679, “The courts have found it impracticable to lay down any fixed rule in regard to the incorporation of separate and distinct matters in the same bill. They seek rather to ascertain what is just and convenient in the particular case, than to declare any general rule, applicable to all cases.” Almond v. Wilson, 75 Va. 613; Dillard v. Dillard, 97 Va. 434, 34 S. E. Rep. 60.
2. WHAT CONSTITUTES.—In general, it is either a misjoinder in a bill of claims of such different characters that the court will not permit them to be litigated in one record; or it is where a party is brought as a defendant upon a record, with a large portion of which and .of the case made by which he has no connection whatever. Or as stated
in Sadler v. Whitehurst, 83 Va. 46,1 S. E. Rep. 410, where a bill joins distinct and independent matters, thereby confounding them, as, for example, the uniting in one bill of several matters perfectly distinct and unconnected against one defendant, or the demand of several matters of a distinct and independent nature against several defendants in the same bill. Dunn v. Dunn, 26 Gratt. 291.
But where there is a common liability in the defendants and a common interest in the plaintiffs, different claims may be united in one and the same suit, although the interest be not a coextensive interest. Brown v. Buckner, 86 Va. 612,10 S. E. Rep. 882. See, in this connection, Buffalo v. Town of Pocahontas, 85 Va. 225, 7S. E. Rep. 238; Batchelder v. White, 80 Va. 103; Stuartv. Coalter, 4 Rand. 74; Spooner v. Hilbish, 92 Va. 333, 23 S. E. Rep. 751; Triplett v. Woodward, 98 Va. 187, 35 S. E. Rep. 455; Snyder v. Grandstaff, 96 Va. 473, 31 S. E. Rep. 647.
However, a bill presenting different views of the same collection of facts, stated in the alternative, is not multifarious because thereof. Snyder v. Grand-staff, 96 Va. 473, 31 S. E. Rep. 647.
3. TESTS.
a. In General.
In Alexander v. Alexander, 85 Va. 353, 7 S. E. Rep. 335, the court says: “It will seldom, if ever, be found difficult to determine whether multifariousness exists in the particular case, if we will only bear in mind these cardinal rules upon the subj ect, namely, that a bill will always be deemed multifarious, where several matters joined in the bill against one defendant are so entirely distinct and independent of each other that the defendant will be compelled to unite, in his answer and defence, different matters wholly unconnected with each other, and as a consequence the proofs applicable to each would be apt to be confounded with each other, and great delays might be occasioned respecting matters ripe for hearing by waiting for proofs as to some other matter not ready for hearing; or again, where there is a demand of several matters of a distinct and independent nature, iu the same bill, rendering the proceeding oppressive because it would tend to load each defendant with an unnecessary burden of costs by swelling the pleadings with the statement of the several claims of the other defendants, with which he has no connection. Story’s Eq. PI. sec. 271; Segar v. Parrish, 20 Gratt. 679. And that a bill will not usually be regarded as multifarious, where the matters joined'in the bill, though distinct, are not absolutely independent of each other, and it will be inore convenient to dispose of them in one suit (see Nulton v. Isaacs, 30 Gratt. 738; Hill v. Hill, 79 Va. 592), or where the several defendants have one common interest centering in the point in issue.”
In Crickard v. Crouch, 41 W. Va. 503, 23 S. E. Rep. 727, it is held that a bill in equity which includes many defendants who have distinct interests is multifarious, and therefore erroneous. Stuart v. Coalter, 4 Rand. 74.
So two distinct grounds of equitable relief, even between the same parties, are not to be joined in one bill. Zell Guano Co. v. Heatherly, 38 W. Va. 409,18 S. E. Rep. 611.
And it is well settled, that a bill is demurrable in which are united several distinct rights, each sufficient, as stated, to sustain a bill against one defendant, or in which there is a demand of several matters, distinct in their nature, against several defendants, who are unconnected in interest and *115liability. Washington, City Say. Bank v. Thornton, 83 Va. 157, 2 S. E. Rep. 193; Oney v. Ferguson, 41 W. Va. 568, 23 S. E. Rep. 710. See also, in this connection, Almond v. Wilson, 75 Va. 613; Petty v. Fogle, 16 W. Va. 497; Coleman v. Claytor, 93 Va. 20, 24 S. E. Rep. 463; Baskin Wood, etc., Co. v. Cleveland, etc., Co., 94 Va. 439, 26 S. E. Rep. 878; Huff v. Thrash, 75 Va. 546; Buffalo v. Town of Pocahontas, 85 Va. 222, 7 S. E. Rep. 238. See Moore v. McNutt, 41 W. Va. 695,24 S. E. Rep. 682; Jordan v. Liggan. 95 Va. 616, 29 S. E. Rep. 330; Nunnally v. Strauss. 94Va. 255, 26S. E. Rep. 580; Shen. Val. Bk. v. Bates, 20 W. Va. 210; Crumlish v. Ry. Co., 28 W. Va. 623; Bosher v. R. & H. Land Co., 89 Va. 455, 16 S. E. Rep. 360; Jones v. Clark, 25 Gratt. 642; Miller v. Miller, 92 Va. 196, 23 S. E. Rep. 232.
However, a bill will not be held multifarions by reason oí an improper charge, which charge itself does not set up an Independent cause of action. Pyles v. Riverside Furn. Co., 30 W. Va. 123, 2 S. E. Rep. 909.
b. Cases Illustrating tub Application of the Cardinal Rules or Tests.
(1) IHUs Objected to, but Held Not to Be Multifarious.
Amended Bills.
Wien Sustained— Where it is apparent from the whole scope of an amended bill that It was intended to accomplish the same object for which the original bill was filed, the bill, as amended, will not be deemed multifarious although there may be particular charges in the amended bill apparently intended to base relief on a different ground from that stated in the original bill. Hutchinson v. Maxwell, 7 Va. Law Reg. 786.
But where a bill has been filed to foreclose a mortgage executed by husband and wife, but which only conveyed personal property of the husband and his interest in a certain tract of land, the court ought not to permit an amendment of the bill seeking to charge the debts secured by such mortgage, on certain other real estate belonging to the wife as her sole and separate property, as such amendment would make the bill multifarious. Linn v. Patton, 10 W. Va. 187.
General Creditors’ Bill.
Relief in Several Ways Sought.—A bill in a general creditors’ suit is not multifarious where it seeks to enforce a mechanics’ lien in favor of complainant, to set aside a deed of trust executed by defendant, to have another deed of trust declared to inure to the benefit of all creditors, and to convene defendant’s creditors and wind up its affairs. Haskin Wood, etc., Co. v. Cleveland, etc., Co., 94 Va. 439, 26 S. E. Rep. 878. See Hutchison v. Mershon, 89 Va. 624, 16 S. E. Rep. 874.
Bill by Single Creditor.
Settlement of Decedent's lístate and Accounts of Administrator—A bill by a creditor of a decedent to settle the estate and accounts of the administrator is not multifarious. Turk v. Hevener (W. Va. 1901), 38 S. E. Rep. 476.
Dower.
Recovery of—Several Purchasers from Husband— Dower Not Relinguished.—A bill against several purchasers of separate and distinct tracts of land aliened by a husband during coverture, without the relinquishment of the wife, to recover dower in each tract, is not multifarions. The plaintiff may elect to proceed against each separately, or all together. Boyden y. Lancaster, 2 P. & H. 198.
Subjection or Partition of Land.
Ashing Property to Be Subjected to Lien, Also That a Confessed Judgment Be Declared Void.—A bill in a suit
in equity brought for the purpose of subjecting property to the lien of an attachment and also to have a confessed judgment lien on the attached property declared fraudulent as to the plaintiff’s lien, is not multifarious. Stewart v. Stewart, 27 W. Va. 167.
Praying for a Decree to Enforce, a Vendor's Lien and Settle Transactions cmd Accounts.—A bill by a vendor to enforce his vendor’s lien sets out an agreement between the plaintiff and the purchasers, by which it was agreed the land should be the joint property of the plaintiff and the purchasers, that it should be laid off into town lots, the lots sold, and the net proceeds applied to the payment of the plaintiff's lien, and the residue if any. of the lien paid by the purchasers ; that lots had been sold by the parties as a company or partnership partly for cash and partly on credit ; that all the purchase money had become due and a large portion of it remained unpaid, and prayed that the transactions of the company and the accounts of the sales of lots might be settled, and for a decree against the purchasers for the balance of the purchase money ; such a bill is not multifarious, nor is it demurrable for the reason that the purchasers of the lots so sold are not parties to it. Carskadon v. Minke, 26 W. Va. 729.
Partition of Coast Land to Protect Fishing Interests.— Where a conveyance by the board of public works to H. and F. bordered on the sea and on the bay, and included not only the land of the plaintiff, but was of a much larger tract, called the Desert, and the plaintiff asked in his bill that the court would declare such partition of said tract of land (if such partition should be necessary) as might be right and proper to protect the use and privileges of the shores and bays mentioned in the bill, to which said tract adjoined, for fishing thereon, as authorized by law, it was held that the bill was not demurrable for multifariousness. Garrison v. Hall, 75 Va. 150.
Specific Performance and Injunction.
Sought against Different Defendants. —A bill that asks a specific performance against one defendant, and to enjoin a suit for unlawful detainer, brought by -other defendants, claiming under title from the same party against whom specific perform anee is sought, is not multifarious. Shafer v. O’Brien, 31 W. Va. 601, 8 S. E. Rep. 298.
Wills.
Bill to Obtain Construction of Will, and Recovery of Property—A bill brought to obtain a construction of a will and the recovery of property held by several persons by titles derived under the same will, is not multifarious. Withers v. Sims, 80 Va. 651.
Bill by Legatees—Settlement of Executor's Accounts and Distribution.—A bill brought by residuary legatees is not multifarious which seeks the settlement by an executor of a father of his estate and also of the mother’s estate, whereby the agreement of the parties interested the executor of_the father had agreed likewise to act as executor de son tort of the mother and distribute the estate of the mother after the payment of her debts in the same manner and to the same parties, to whom the father’s estate was to be distributed, the two estates being so mingled, as to make their separation difficult. Anderson v. Piercy, 20 W. Va. 282. See Sheldon v. Armstead, 7 Gratt. 264.
(2) Bills Held, to Be Multifarious.
Distinct and Inconsistent Causes.
Two Distinct Causes of Action on Two Different Policies of Insurance.—A bill which sets forth two distinct *116•and inconsistent causes of action, upon two different policies of insurance, one actually issued, upon which premiums were not paid, the nonpayment being excused by the alleged insolvency of the company: the other, which ought to have been issued, because the first had been surrendered and receipted in full to the company, is bad on demurrer because multifarious. Universal Life Ins. Co. v. Devore, 83 Va. 267, 2 S. B. Rep. 433.
Bill to Enforce Judgment against Administrator, to Sell Band, Establish a Devastavit, Convene Ileirs and Creditors, and Give Various Other Specified Belief.—A bill which seeks to enforce payment of a small judgment for costs against an administrator d. b. n. out of funds in his hands; to sell the real estate of the decedent to pay such judgment; to establish a devastavit against the administrator, and surcharge and falsify his accounts; to convene the heirs and creditors of said administrator, now deceased; to settle the accounts of his administrator, and sell his real estate; to convene the heirs, settle the accounts of the administrator, and distribute the estate of the third decedent; to convene the devisees, settle the accounts of the executor, and distribute the estate of a fourth decedent,—is multifarious and inequitable. Crickard v. Crouch, 41W. Va. 503, 23 S. E. Rep. 727.
Bill to Establish a Trust, Becover Bents, Profits, and Purchase Honey, and Assess Dower—A bill to establish a trust in certain lands, and to recover rents and profits, and to assess dower, and to recover purchase money alleged to be due, is held in Bailey v. Calfee (W. Va. 1901), 39 S. B. Rep. 642, to be multifarious.
Aslcing Specific Performance, Damages for False Bepresentaiions, for Beceiver, and Other Specified Belief— A bill is filed (1) against one defendant, for specific performance of a contract; (2) in default of this, to obtain a decree against other defendants, for damages for breach of warranty; (3) against some of the defendants last referred to, for damages for false representations in regard to the title; (4) against one of the defendants last referred to, for breach of his promises to save plaintiff harmless in case the defendant referred to in first clause refused specific performance; (5) for a receiver; (6) for a decree against one of the defendants for payment of his subscription to the stock of the defendant company; (7) to have the assets of the company administered for the benefit of its creditors. To say nothing of the demand for damages and for administration of the assets, as not constituting good grounds for a suit in equity, there remained several other demands against several other defendants which cannot be properly joined in the same suit. The bill is multifarious, and was rightly dismissed on demurrer. Wells v. Sewell’s Point Guano Co., 89 Va. 708.17 S. E. Rep. 2.
Bill against Grantee of One Heir, and Other Heirs, to Set Aside Deed, and Establish Besulting Trust as an Alternative.—And a chancery suit, brought by one heir of a decedent against the person to whom heirs of the decedent had voluntarily conveyed all his rea 1 estate, and the other heirs of the decedent, to set aside the deed as fraudulent and void because procured by undue influence, and because the grantor was non compos mentis, and, if this should not bé proven, then to set up a resulting trust to a portion of this real estate, because the plaintiff had paid a certain amount of the purchase money when the land was conveyed to the decedent, is multifarious. Shaffer v. Fetty, 30 W. Va. 248,4 S. B. Rep, 278.
Bill by Heirs—Settlement of Decedent’s Partnership Affairs, Appointment of Beceiver, Accounts, etc.—In Porter v. Robinson (Va.), 22 S. E. Rep. 843, a bill by heirs alleged their heirship; partnership of their decedent in a firm; sale of all the assets of the firm to a corporation in consideration that the vendee paid all the debts of the firm; completion of the sale by themselves, as heirs, and the surviving partners; sale by the vendee of the same property to a second corporation, in which the purchase price was partly secured by bonds, for the payment of which a vendor's lien was reserved, and subsequently cancelled by the president of the first corporation without authority; execution of a trust deed of all the property by the last vendee to secure a fraudulent issue of bonds; the assumption and nonpayment of the debts of the partnership by the first vendee; stock taken by plaintiffs in the second corporation on representations of the president of the first corporation, also a promoter of the second corporation that the lands would be sold to the latter company for $300,000, whereas they were sold at $330,000. The bill asked for the appointment of a receiver, and settlement of the accounts of the partnership; cancellation of the stock taken in the second corporation; a decree against it and its promoters for the full valueof the stock, and'against the president of the first corporation for the $30,000 profits made by him for the sale of the land; for the restoration of the vendor’s lien, and the cancellation of the trust deed. It was held, that the bill was multifarious.
Parties Not Connected in Interest.
Charges against Officers of Company, Individual Officers, Groups of Officers, and President and Directors.—A bill which charges various acts of maladministration against the officers of a company, some of which are attributable to individual officers, some to different groups of officers, and some to the president and directors as a whole, would seem to present a combination of causes of action so hopelessly diverse as to be incapable of adjustment in one suit. Brown v. Bedford City L. & I. Co., 91 Va. 31, 20 S. E. Rep. 968.
II. FORMS OF MULTIFARIOUSNESS.
1. IN GENERAL.—Multifariousness may appear in two general forms. It may be a j oinder of claims of such different characters, that the court will not permit them to be litigated in one record; or it may be where a party is brought as a defendant upon a record, with a large portion of which and of the case made by which he has no connection whatever. Brown v. Buckner, 86 Va. 612, 10 S. B. Rep. 882,; Washington City Sav. Bank v. Thornton, 83 Va. 157, 2 S. E. Rep. 193: Oney v. Ferguson, 41 W. Va. 568, 23 S. E. Rep. 710.
2. AS TO MATTER.—Thus, where debts are assigned to a party who sues for an accounting between the assignor and his several debtors, plea by and of the latter, that the former had made other and conflicting assignments of the same debts, is bad for multifariousness and uncertainty. Porter v. Young, 85 Va. 49, 6 S. E. Rep. 803.
But it is not multifarious for a bill to seek to §ubject a judgment debtor’s interest in lands, chattels, etc., to the payment of plaintiff’s debt. Thomas v. Sellman, 87 Va. 683, 13 S. E. Rep. 146. For illustrations, see cases throughout this note.
3. AS TO PARTIES.--In Carey v. Coffee Stemming Mach. Co., 1 Va. Dec. 863, 20 S. E. Rep. 778, it is held that a bill by a number of stockholders against a *117corporation, alleging fraud in obtaining subscriptions, etc., is not multifarious because each complaint sets forth a different claim. See Hutchison y. Mershon, 89 Va. 624, 16 S. E. Rep. 874; Rader V. Bristol Land Co., 94 Va. 766, 27 S. E. Rep. 590.
III. TERMINOLOGY.
The word “multifariousness” is more generally applied to chancery proceedings, although it is sometimes used as applicable to actions at law. Thus, in Va. N. So M. Ins. Co. v. Saunders, 86 Va. 969. 11 S. E. Rep. 794, the term is used in an action at law in discussing the rule against duplicity.
The word most applicable to actions at law is “misjoinder,” though this word is also used to designate an error of form in equitable proceedings. Thus, the court in Brown v. Buckner, 86 Va. 615, 10 S. E. Rep. 882, in the course of its opinion remarks, that, “Although the books speak generally of demurrers for multifariousness, such demurrers may be divided into two kinds. (1) The objection raised to a bill, which though termed ‘multifariousness, ’ is, in fact, properly speaking, a misjoinder of causes of suit; that is to say. the cases or claims asserted in the bill are of so different a character that the court will not permit them to be litigated in one record. Story, Eq. PI. sec. 271, 284. It may be that the plaintiffs and the defendants are parties to the whole transactions which form the subject of the suit, but nevertheless those transactions may be so dissimilar that the court will not permit them to be joined together, but will require distinct records. (2) But what is more familiarly understood by ‘multifariousness,’ as applied to a bill, is where a party is brought as a defendant upon a record, with a large portion of which, and of the case made by which, he has no connection whatsoever. * * * And the objection for misjoinder does not apply when all the parties plaintiff have an interest in the suit, although it is not a coextensive interest.”
IV. REASON FOR RULE.
Convenience—Expense.—Generally, it is held that the reason for the rule which governs a court in sustaining or overruling a demurrer, which sets out multifariousness as an objection, is the question of convenience to all parties concerned.
In Alexander v. Alexander, 85 Va. 353, 7 S. E. Rep. 335. the court says: “The cases upon the subject are extremely various, and the court in deciding them, seems to have considered what was convenient under the particular circumstances, rather than to have laid down any absolute rule.” After setting forth some of the cardinal rules for testing whether in a particular case multifariousness exists. it seems that the reason assigned why in a given instance it would be multifarious, is, that it would render the proceedings oppressive because it would tend to load each defendant with an unnecessary burden of costs; thus, giving an additional reason for objection to the fault.
Discussing the question in County School Board y. Parish, 92 Va. 156, 28 S. E. Rep. 221, it was held that a bill would not be declared multifarious if it proposed to accomplish the end in veiw in a manner and by a proceeding convenient to all concerned, unless the course so pursued was so injurious to one or more of the parties as to render it inequitable to accomplish the general convenience in that manner. See Staude v. Keck. 92 'Va. 544, 24 S. E. Rep. 227; Dillard v. Dillard, 97 Va. 434, 34 S. E. Rep. 60.
V. APPLIES TO WHAT PLEADINGS.
Bill—Answer—PIea."The fault of multifariousness may exist either in the bill, answer or plea, ft the plea contains distinct points it will be bad. Thus, a plea is bad for multifariousness that sets up the statute of limitations, and also alleges that the plaintiff who sued as the personal representative of a decedent was not such representative. See Barrett v. McAllister, 35 W. Va. 103, 12 S. E. Rep. 1106; Miller v. Miller, 92 Va. 196, 23 S. E. Rep. 232; Porter v. Young, 85 Va. 49, 6 S. E. Rep. 803. As to the bill, see cases cited throughout the note.
VI. MULTIFARIOUSNESS AS DETERMINED BY PRAYER FOR RELIEF.
1. IN GENERAL.—H is said by the court in Washington, etc., Bk. y. Thornton, 83 Va. 157, 2 S. E. Rep. 193, that “whether or not a bill is multifarious depends, it is said, upon its allegations, and not upon its prayer.” See Nunnally v. Strauss, 94 Va. 255, 26 S. E. Rep. 580.
% ALTERNATIVE PRAYER—A bill is not necessarily bad by reason of raultifariousness because it contains an alternative prayer for relief. But in order, to avoid the fault they should, in general, be consistent. Still a bill in chancery is not multifarious, and therefore demurrable, simply because it contains a prayer for alternate relief, inconsistent with its prayer for specific relief. Korne v. Korne, 30 W. Va. 1, 3 S. E. Rep. 17. See Garrison v. Hall, 75 Va. 150; Carskadon v. Minke, 26 W. Va. 729.
And where the principal object of the bill is to have the profits of a lease collected and applied to pay certain decrees against complainant and insolvent defendant, a prayer that accounts be taken to ascertain the right of the parties under the lease, and the profits applied to pay the decrees and the balance according to the rights of the parties, does not make the bill multifarious, but the decree creditors should be made parties. Yates v. Law, 86 Va. 117, 9 S. E. Rep. 508.
Also, it is permissible for a bill to be framed in a double aspect, but the alternative case stated must be the foundation for precisely the same relief. Thus, stockholders who come into a court oí equity and seek to have their contracts oí subscription rescinded on the ground that they were fraudulently obtained, cannot in the same bill complain of the malfeasance and misfeasance of the corporate directors in the management of the corporate property, and seek relief which rests upon their relation as stockholders of the defendant company. Such relief must be considered a distinct act of affirmance and ratification of the very transaction which they, in another part of their bill, sought to repudiate. Brown v. Bedford City L. So T. Co., 91 Va. 31, 20 S. E. Rep. 968.
3. IMPOSSIBLE OR IMPROPER RELIEN ASKED. —Moreover, a bill is not rendered multifarious because it contains averments and prays relief respecting them which could not in any event be granted.
Thus, in Snavely v. Harkrader, 29 Gratt. 112, infants by their next friend filed their bill against their guardian, first to surcharge and falsify the settled account of their guardian, and to have him removed; and second, to have a sale of their lands. The guardian demurred to the bill on the ground that it was multifarious. It was held that as the court could not sell the infants’land on a bill filed by them, and no relief on that part of the bill could *118be given, tbe court would consider tbe case as if tbat part of tbe bill was not in it; and tbe demurrer was properly overruled.
VII. AT WHAT STAGE OBJECTION RAISED.
In Answer.—In Virginia tbe demurrer may be embodied in tbe answer. Dunn v. Dunn, 26 Gratt. 291.
On notion to Dissolve Injunction.—But if a bill, which is in part a bill of injunction, be multifarious, tbat objection- cannot be made on a motion to dissolve the injunction. It must be made at tbe final hearing. Shirley v. Long, 6 Rand. 764; Beall v. Shaull, 18 W. Va. 258.
VIII. METHOD OF RAISING OBJECTION.
Demurrer.—In Virginia and West Virginia tbe objection tbat pleadings in chancery are multifarious is usually raised by demurrer. Dnnn-v. Dunn, 26 Gratt. 291; Wells v. Sewell’s, etc., Co., 89 Va. 708,17 S. E. Rep. 2.
And a demurrer in tbe form prescribed by tbe statute, and assigning no grounds, inserted in tbe answer, is sufficient. Dunn v. Dunn, 26 Gratt. 291; Matthews v. Jenkins, 80 Va. 468: Cook v. Dorsey, 38 W. Va. 196,18 S. E. Rep. 468.
And tbe demurrer may not only be general but, as stated above, may be embodied in tbe answer. Dunn v. Dunn, 26 Gratt. 291.
IX. BY WHOM RAISED.
Party Prejudiced or Court Sua Sponte.—It is well settled, tbat tbe defence of multifariousness may be made by demurrer by tbe party prejudiced, or by tbe court at tbe bearing sua sponte. But where a defendant is liable for each one of tbe amounts decreed in a suit, he cannot object on tbe ground of mnltifariousness.' Wells v. Sewell’s, etc., Co., 89 Va. 711,17 S. E. Rep. 2; Dunn v. Dunn, 26 Gratt. 291.
X. WAIVER.
Though a bill be multifarious, and but vaguely state tbe matter on which relief is sought, consent by tbe parties, to an interlocutory decree tbat tbe cause be referred to a commissioner, to audit, state and settle an account of the amount due each of tbe plaintiffs, is a waiver of any objection to such irregularity; and a demurrer thereafter, for such cause, should be disallowed. Rlttenhouse v. Harman, 7 W. Va. 380. ’
XI. EFFECT AND REMEDY.
1. IN GENERAL.—It is difficult to apply tbe rule against multifariousness in practice. Tbe instances are numerous and inharmonious. A suit is not thrown out of court for this fault except in a plain case. Oney v. Ferguson, 41 W. Va. 568, 23 S. E. Rep. 710. An amendment may be allowed. See Shaffer v. Fetty, 30 W. Va. 248, 4 S. E. Rep. 278.
2. AMENDMENT. — But in West Virginia an amendment is not allowed as a matter of course. Shaffer v. Fetty, 30 W. Va. 248, 4 S. E. Rep. 278.
3. DISMISSAL.—When there is a dismissal it should as a rule, be without prejudice. Shaffer v. Fetty, 30 W. Va. 248.4 S. E. Rep. 278. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481420/ | AIyHEJN, J.,
delivered the opinion of the Court.
The Court is of opinion, that if the plaintiff in error was entitled to any relief on account of the matters averred in his plea, such relief could only be afforded in a Court of equity, where upon a rescission of the contract the defendant in error could be reinvested with the interest alleged to have been sold to the plaintiff in error: It was, therefore, not competent to set up such matter in defence to the action at law brought to recover the purchase money agreed to be paid on such a contract touching the realty, by a plea under the statute in the nature of a plea of set-off; and the rejection of the plea does not preclude the party from applying to a Court of equity for such relief as he may shew himself entitled to on account of the matters alleged in the plea. It therefore seems to the Court here, that there is no error in the judgment of the Circuit court rejecting the plea. It is therefore considered that the same be affirmed, with costs. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481422/ | ALLEN, J.,
concurred with Judge Baldwin in the opinion that the judgment should have been de bonis testatoris; and that the error was a clerical misprision which might have been corrected in the Court below: but thought that as the case was in this Court it might be corrected here.
AHENDMENTS.
I. Of Equity Pleading's.
A. In General.
1. Of Bills.
See monographic note on “Amended Bills” appended to Belton v. Apperson, 26 Gratt. 207.
3. Of Pleas.
3. Of Replications.
4. Of Answers,
a. In General.
t>. Grounds.
c. Rule When Answers Were under Oath.
d. At and after Hearing.
II. Of Pleadings and Proceedings at Common Law.
A. Demurrer to Declaration.
B. Introducing New Cause of Action.
C. Misdescription.
1. Express and Implied Contract.
3. Identity of Two Corporations.
3. Action in Name of Wrong Plaintiff.
D. Variance.
E. Filing a Blank.
F. At What Stage of Proceedings.
1. In Appellate Court.
G. Effect of Amendment.
1. Statute of Limitations.
3. Amendment as Waiver of Error in Previous Rulings.
3. Original Pleading Superseded.
4. Right to Plead De Novo.
5. Effect of Adding New Parties.
H. Leave to Amend.
1. Amendment as Matter of Right.
I. Method of Making Amendments.
1. Actual and Implied Amendments.
J. Other Matters Subí ect to Amendment.
III. Of Process.
A. Of Sheriff’s Return.
IV. Of Affidavit for Attachment.
V. In Criminal Proceedings.
A. Of Verdict.
1. Name of Accused.
B. Of Information.
VI. Jeofails.
A. At Common Law.
B. Under the Statute.
1. Joinder of Issue.
2. Omission of Essential Elements, a. Gist of Actions Omitted.
3. Criminal Cases.
a. Errors Cured.
b. Errors Not Cured.
*122Cross References to Monographic Notes.
Amended Bills, appended to Belton v. Apperson, 26 Gratt. 207.
Decrees, appended to Evans v. Spurgin, 11 Gratt. 615.
Elections, appended to West v. Ferguson, 16 Gratt. 270.
Judgments, appended to Smith v, Charlton, 7 Gratt. 425.
I. OF EQUITY PLEADINGS.
A. IN GENERAL.—No invariable rule can be laid down with reference to the amendments of equity pleadings. Their allowance rests largely in the discretion of the court, to be determined by the special circumstances of the case. On application to am end, justice should not be sacrificed to form or too rigid an adherence to rules of practice. Great caution should be exercised, however, when the application has been long delayed, or when the granting it would cause serious inconvenience or expense to the opposite side; and an amendment should rarely, if ever, be permitted where it would materially change the very substance of the case made by the bill, and to which the parties have directed their proofs. Glenn v. Brown, 99 Va. 322, 38 S. E. Rep. 189 ; Alsop v. Catlett, 97 Va. 364, 34 S. E. Rep. 48.
Discretion of Court.—“The whole matter of amendments rests in the sound discretion of the court. In general, however, the indulgence is confined to cases of mere mistake or surprise; and a distinction is also made between the allowance of an amendment as to a matter of fact, and as to a conclusion in law, an amendment as to the latter being much more freely-allowed.” 4 Min. Inst. (3d Ed.) p. 1443; Vashon v. Barrett, 99 Va. 344, 38 S. E. Rep. 200.
Compared with English Practice.—The practice in this country in allowing amendments is said to be much more liberal than in England. Belton v. Apperson, 26 Gratt. 207.
Verified Pleadings.—Where pleadings are verified by the oath of the party, the court will not easily suffer an amendment. Matthews v. Dunbar, 3 W. Va. 138.
Effect of Statute Dispensing with Affidavit.—But as Code of W. Va., ch. 125, sec. 38, does not require the defendant to verify his answer by affidavit, it is obvious that one of the principal reasons for the courts being .so reluctant to permit answers to be changed or amended, has been removed, and no doubt answers may be amended or changed with the leave of the court, now, under circumstances wherein they could not be formerly so amended or changed. Depue v. Sergent, 21 W. Va. 326.
Effect of Laches.—Moreover, a defendant should be permitted to amend his pleadings, or add to his pleas whenever justice requires it, provided unreasonable delay be not thereby occasioned, or good reason be shown for not having done so sooner. But he will not be permitted so to do'where he has had ample opportunity for earlier action, and has, without sufficient excuse, delayed until trial is at hand. Keckley v. Bank, 79 Va. 458; Perkins v. Hawkins, 9 Gratt. 653.
1. OR Bills.—See monographic note on “Amended Bills” appended to Belton v. Apperson, 26 Gratt. 207.
2. Ojp Pleas.—Where an improper plea is filed by an attorney through inadvertence, and for want of information, it may be amended, after a trial and verdict for the plaintiff. Richardson v. Johnson, 2 Call 528.
Amendment by Personal Representative.—And a personal representative may, on motion, without an affidavit, amend his plea by pleading viene administravit at any time before the trial of a suit against him, provided the court is satisfied that the motion is not made merely for the sake of delay. Chisholm v. Anthony, 1 H. & M. 27.
3. Or Replications.—Where, in an action of detinue, the replication to the defendant’s plea of the statute of limitations is insufficient, but the declaration contains the averments for lack of which the replication is defective, the plaintiff should be allowed to amend his replication. Morris v. Lyon, 1 Va. Dec. 615, 2 S. E. Rep. 515.
Terms.—But the declaration being in the name of two plaintiffs, if the replication purport to be in behalf of one only, it is a departure in pleading; and on demurrer, judgment ought tobe entered for the defendant, unless the plaintiffs move the court to amend their replication, which in that case should be allowed, on their paying costs. Graham v. Graham, 4Munf. 205.
Withdrawal of Joinder in Demurrer.—An attorney for the commonwealth, who has joined in the defendant’s demurrer to his replication, it being defective in mere form, may have leave, before judgment is entered on the demurrer, to withdraw his joinder in demurrer and amend his replication. Com. v. Jackson, 2 Va. Cas. 501.
4. Or Answers.
a. In General.—The cases are exceptional where amended or supplemental answers are allowed. In small matters, however, the defendant may amend, but not in a material one, unless upon evidence to the court of surprise. The most common case of amending an answer is, where, through inadvertence, the defendant has mistaken a fact, or a date; then the court will give leave to amend to prevent the defendant from being prosecuted for perjury. In general, however, this indulgence is confined to cases of mere mistake or surprise in the answer. Elder v. Harris, 76 Va. 187.
The following general rules were established by the court in Liggon v. Smith, 4 H. & M. 407, for the amending of answers in chancery;
1. To allow a defendant to amend his answer must, from the nature of the case, be always at the discretion of the court.
2. It may be done in a small matter, on motion, at any time before issue joined.
3. But, in a material point, the motion must be made upon an affidavit of the facts, which make it necessary; and after reasonable notice thereof to the plaintiff or his counsel, that the court may take care that no injury be produced to the other party. And, the affidavit ought to state, that, at the time of putting in the answer, the defendant did not know the circumstances upon which he makes the application, or any other circumstances upon which he ought to have stated the fact otherwise.
But the provision of the statute (Va. Code 1873, ch. 167, sec. 35), allowing a defendant to file his answer at any time before final decree, has no reference to an amended or supplemental answer. Elder v. Harris, 76 Va. 187.
Answer in Nature of a Cross Bill.—Where an amended answer is filed by a defendant in the nature of a cross bill, praying affirmative relief, such amended answer should be confined to the matters contained in the original bill and answer, and should not introduce new and different matters *123.not embraced therein. Rad cliff v. Corrothers, 33 W. Va. 682,11 S. E. Rep. 228.
Setting Up Statute of Frauds and Limitations.— After issue joined, and the canse set for hearing, the defendant in chancery may be permitted, for good canse shown, to amend his answer, and to plead the statute of frauds and limitations. Jackson v. Cutright, 5Munf. 308. See Henderson v. Hudson, 1 Mnnf. 514, opinion of TtrcKisit, J., in which he says: “In an amended answer, which he was permitted to file, he insists upon the benefit of the statute of frauds and perjuries.’’ This shows that the amendment was permitted, though not at what stage of the cause.
In White v. Turner, 2 Graft. 502, a defendant in equity was allowed to amend his answer for the purpose of setting up the statute of limitations in bar of the plaintiff’s claims.
Irrelevant and Immaterial Hatter.—But an amended answer, presenting as new matter, only matter immaterial and irrelevant, ought to be rejected. McKay v. McKay, 33 W. Va. 724, 11 S. E. Rep. 213; Union Bank of Richmond v. Richmond. 94 Va. 316, 26 S. E. Rep. 821; Tracewell v. Boggs, 14 W. Va. 254.
Substituting New Answer.—Where a defendant has filed an answer to the bill, which has been replied to, and the cause comes on for hearing, the defendant will not be permitted to withdraw his answer for the purpose of substituting another, on the ground that he had forgotten to present a material matter of defence in his first answer; but he may be permitted to amend his answer setting up such new matter, but in no wise to delay the hearing of the cause. Tracewell v. Boggs, 14 W. Va. 254; Wyatt v. Thompson, 10 W. Va. 645.
b. (Grounds.
Surprise, 111 Advice-Inadvertency.—There are no certain rules, however, for the amendment of answers; but they are in the discretion of the courts; the admission of a fact is never suffered to be struck out, but on affidavit of surprise, or the defendant being ill-advised. But, where an amendment is admitted in the bill, where through inadvertency, a mistake is made as to a fact or date, -where there is no danger of perjury, where the case depends upon old documents, etc., the courts have allowed amendments to be made, either by striking out passages, or making new facts, and this after issue joined, or upon the hearing of a cause. Jackson v. Cut-right, 5 Muñí. 312.
Negligence.—But an amended answer should not be allowed, raising new issues, where it appears that the party knew the facts when he filed his first answer, and is thus guilty of negligence. Goldsmith v. Goldsmith, 46 W. Va. 426, 33 S. E. Rep. 266, citing Foutty v. Poar, 35 W. Va. 70, 12 S. E. Rep. 1096.
Before a court of equity should allow an amended answer to be filed, it should be satisfied that the reasons assigned for it are cogent and satisfactory; that the mistakes to be corrected or facts to be added are made highly probable if not certain; that they are material to the merits of the case in controversy; that the party has not been guilty of gross negligence, and that the mistakes have been ascertained, and the new facts have come to the knowledge of the party since the original answer was filed. Matthews v. Dunbar, 3 W. Va. 138; Foutty v. Poar, 35 W. Va. 70, 12 S. E. Rep. 1096. See also, Sturm v. Fleming, 26 W. Va. 59.
Infants.—An answer, filed by an infant, may be
amended on motion, when he attains his age. Campbell v. Winston, 4 H. & M. 477.
e. Hule When Answers Were under Oath.—When an answer was always sworn to and when it not only served the purpose of pleading, but was also regarded as evidence, the general rule was that an answer would not be permitted to be amended after the evidence had been taken, because to permit that would allow the defendant to change his evidence to suit the exigencies of the case, which would be unjust to the plaintiff and would tend to the encouragement of perjury. But even then, an answer was sometimes allowed to be amended, or supplemented, or to be withdrawn, and a new answer filed, when the amendment was in some small matter not material, unless the defendant by evidence showed to the court, that he had been surprised. As for instance, where a mistake was made in a date from inadvertency. But in general, very cogent circumstances had to appear before a court would permit an answer to be changed though even then where it was manifest that the purposes of substantial justice required it, the court in its discretion might permit an answer to be changed; but when the new facts sought to be let in by the answer were wholly dependent on parol testimony, the reluctance of the court to permit the answer to be changed was greatly increased. Depue v. Sergent, 21 W. Va. 343.
In Furtherance of Justice.—But the court ought not to permit answers to be changed or amended at the option of the defendant, but should only permit it when substantial justice requires that it should be done. Depue v. Sergent, 21 W. Va. 326.
Improperly Refusing Amendment.- Though if the inferior court refuse leave to a party to amend his pleadings where it should be allowed, the appellate court will reverse for that, as error. Cooke v. Beale, 1 Wash. 313.
d. At and after Hearing—Upon the hearing of a cause, the court may grant the same indulgence to a defendant as it would to a plaintiff. If it has appeared, that the defendant has not put in Issue facts, which he ought to have put in, and which must necessarily be in issue to enable the court to determine the merits of the case, he will be allowed to amend his answer for the purpose of stating these facts. But the courts have been always very cautions in permitting such amendments at the hearing. Depue v. Sergent, 21 W. Va. 326.
II. OF PLEADINGS AND PROCEEDINGS AT COMMON LAW.
A. DEMURRER TO DECLARATION'.—In Virginia and West Virginia, the usual course, where the opinion of the court is in favor of the defendant on a demurrer to the whole declaration, is to allow the plaintiff to with draw his joinder in the demurrer, and amend his declaration, if the ground upon which the demurrer is sustained be of such a nature as can be removed by an amendment. And there is no difference as to the doctrine of amending at common law, between penal, and other actions. Hart V. B. & O. R. Co., 6 W. Va. 336.
Amendments Favored.—Statutes allowing amendments are favored, and although resting in the sound discretion of the court, the authorities without exception it is said, declare that such statutes are remedial and must be construed liberally. Langhorne v. Richmond City R. Co., 91 Va. 364, 22 S. E. Rep. 357, citing with approval 1 Enc. PL & Pr. 516-517.
*124B. INTRODUCING NEW CAUSE OF ACTION.After the appearance of the defendant the court should he liberal in allowing such amendments to the declaration, as tend to promote the fair trial and determination of the subject-matter of controversy, upon which the action was originally based, but no amendment should be allowed against the protest of the defendant, which introduces into the case a new substantive cause of action different from that declared upon, and different from that which the party intended to d eclare upon when he brought his action, though the amendment be such, as would, in another count have been properly inserted in the original declaration and the new cause of action was such, as could, if the plaintiff had so chosen, been united in the same suit with the original cause of action actually sued upon. Snyder v. Harper, 24W, Va. 206; Kuhn v. Brownfield, 34 W. Va. 252,12 S. E. Rep. 519; Clarke v. Ohio River R. Co., 39 W. Va. 732, 20 S. E. Rep. 696.
Inconsistent Amendments —Amendments are not to he allowed which are inconsistent with the nature of the pleadings or change the cause of action. Allegations may be changed and others added, provided the identity of the cause of action is preserved. Kuhn v. Brownfield, 34 W. Va. 252,12 S. E. Rep. 519; Clarke rr. Ohio River R. Co., 39 W. Va. 732,20 S. E. Rep. 696.
C. MISDESCRIPTION.
1. Express and Implied Contract.—In an action against a physician for malpractice, alleging breach of an express contract, an amendment may be made setting forth the breach of an implied contract. Kuhn v. Brownfield, 34 W. Va. 252, 12 S. E. Rep. 519.
2. Identity op Two Corporations.—If one corporation is sued for a personal injury, and the evidence of the defendants tends to show that the injury was committed by another corporation, the plaintiff upon request, should be allowed to amend his declaration so as to charge that the two corporations were one and the same corporation known by both names, because sec. 3384 of the Va. Code of 1887, was clearly intended to provide for such a case, and, being remedial in its character, should be liberally construed. Langhorne v. Richmond City R. Co,, 91 Va. 364, 22 S. E. Rep. 357.
3. Action in Name oe Wrong Plaintiee.—Where an action is brought in the name of the wrong plaintiff, it is not error to allow the declaration to be so amended as to show the party beneficially interested. National Bank of Virginia v. Nolting, 94 Va. 263, 26 S. E. Rep. 826.
If a jury, find for the plaintiff the slaves in the declaration mentioned, and, proceeding to state the several values, recites the name of one of them erroneously, such an error should be corrected by reference to the declaration. Boatright v. Meggs, 4 Munf. 145.
D. VARIANCE.
Materiality of Amendments,—An immaterial variance between the allegata and probata may be amended at the trial, but after all the evidence has been introduced on the trial of an action at law an amendment cannot be made that is material to the merits. Harman v. Cundiff, 82 Va.'239; Hansbrongh v. Stinnett, 25 Gratt. 495; Richmond & D. R. Co. v. Rudd, 88 Va. 648, 14 S. E. Rep. 361.
Variance between Writ and Declaration.—But a variance between the writ and declaration may be amended at any time before judgment, if substantial justice may be done thereby. Courson v. Parker, 39 W. Va. 521, 20 S. E. Rep. 583.
Omission of a Condition in Policy.—Where, in an action on a life insurance policy, the declaration omits one of the conditions endorsed upon it; and on the trial when the policy is offered in evidence, it is objected to for the variance, the court may allow the plaintiff to amend the declaration by inserting the omitted condition, and proceed with the trial. The New York Life Ins. Co. v. Hendren, 24 Gratt. 536.
Ejectment.—And, in ejectment, if the term laid in the declaration expires before the decision of the cause, the practice is to grant leave to amend the declaration by enlarging the term. Hunter y. Fair-fax, 1 Munf. 218.
To Conform to Proof.—If the evidence in the trial of a case before a jury fails to prove substantially the plaintiff’s case as stated in the declaration, though it shows that the plaintiff has a good cause of action, the court should permit the plaintiff to amend his declaration so as to correspond with his proof at the trial. Hutchinson v. Parkersburg, 25 W. Va. 227.
Under Statute.—Va. Code 1860, ch. 177, sec. 7, provides that: “If at the trial of any action, there appears to be a variance between the evidence and the allegations or recitals, the court, if it consider the cause not material to the merits of the case, and that the opposite party cannot have been prej udiced thereby, may allow the pleadings to be amended on such terms as to payment of costs or postponement of trial, as it may deem reasonable.” See Code 1887, sec. 3384. See Beasley v. Robinson, 24 Gratt. 325; R. & D. R. Co. v. Rudd, 88 Va. 648, 14 S. E. Rep. 361. See Va. Code 1887, sec. 3259.
Time of, and Terms for, Amendment.—The .plaintiff during the trial of the cause, and before verdict found, may at the discretion of the court be permitted to amend his declaration, in order that a material variance between its allegations and the proofs may be avoided, upon the terms, if the defendant so request, that the jury shall be discharged and the cause continued with leave to the defendant to amend his pleas, or plead anew to the declaration so amended. Travis v. Peabody Ins. Co., 28 W. Va. 583; Tabb v. Gregory, 4 Call 225.
E. FILING A BLANK.—The rule seems to be well settled that the circumstance that the damages are left blank in the declaration is unimportant, but if the gist of the action be blank, it is fatal. Blane v. Sansum, 2 Gall 495; Stephens v. White, 2 Wash. 203; Taylor v. M’Clean, 3 Call 557; Craghill v. Page, 2H. & M. 446; Digges v. Norris, 3 H. & M. 268.
Cured by Act of Jeofails.—And the omission to lay damages in the declaration, though in an action sounding in damages, is cured, after verdict, by the statute of jeofails. Stephens v. White, 2 Wash. 203.
But if the damages be laid high enough in the writ, though the jury find for more than are laid in the declaration, the writ may be referred to for the purpose of amendment, and the judgment will be sustained. Palmer v. Mill, 3 H. & M. 502.
Omission of Ad Damnum.—The omission of an ad damnum 1 in the declaration will be considered as amended. Hook v. Turnbull, 6 Call 85.
Illustrations.—After verdict in an action for breach of a promise to marry, judgment ought not to be reversed on the ground that the time when the marriage was to be solemnized is left blank in the declaration. Milstead v. Redman, 3 Munf. 219.
Countin Assumpsit.—Thus, a count for money had *125and received was adjudged good after verdict, although the sum received was left blank. Hall v. Smith, 3 Munf. 550.
F. AT WHAT STAGE OF1 PROCEEDINGS.
Common=*Law Rule. -At common law amendments seem to have been always readily obtained, at any time before issue, either in law or fact, was joined, or while the proceedings continued in paper, but, after the record was made up, and the pleadings were entered on the roll, there was a reluctance to admit of any alteration, through fear of defacing the record. Tabb v. Gregory, 4 Call 228.
Furtherance of Justice.— So that to promote justice on one hand, and prevent injury on the other, seems to be all that is requisite, for if they can be effected the amendment will be allowed at any time before final judgment. Tabb v. Gregory, 4 Call 228; Travis v. Peabody Ins. Co., 28 W. Va. 594.
After Demurrer Sustained.-After a demurrer has been sustained to a declaration which states a good cause of action, the court may allow the declaration to be amended, though the statement is defective with regard to the matters in which it is amended. Guarantee Co. v. Bank, 95 Va. 480, 28 S. E. Rep. 909; Baylor v. B. & O. R. R. Co., 9 W. Va. 270.
Refusal to Allow Amendment.—Where the inferior court properly sustains a demurrer to a declaration, and enters judgment in the action for the defendant, without giving leave to the plaintiff to amend, the supreme court will, if the defect in the declaration appears to be amendable, reverse the judgment, and remand the case, with directions to grant leave to the plaintiff to amend if he elects to do so. Rigg v. Parsons, 29 W. Va. 522, 2 S. E. Rep. 81; Norris V. Lernen. 28 W. Va. 336.
Cannot Be Forced to Amend.—But, if in such case, the record shows that the plaintiff declined to amend his declaration, the supreme court will not reverse the judgment, although it distinctly appears that the defect in the declaration could have been readily amended if the plaintiff had chosen to do so, but the judgment will be affirmed. Rigg v. Parsons, 29 W. Va. 522, 2 S. E. Rep. 81; White v. Railway Co., 26 W. Va. 800.
Technical Defect in Replication.—It is proper to allow an amendment, after demurrer is sustained, to cure a purely technical defect in a replication, when it occasions no surprise to the defendant, produces no delay nor inconvenience, and is necessary to the justice of the case. “It is fully authorized by the practice and decisions of Virginia.” Bowles v. Elmore, 7 Gratt. 385; Hart v. B. & O. R. Co., 6 W. Va. 336.
After Demurrer and Argument.—After demurrer and argument upon the issue in law. either party will be permitted to amend. Tabb v. Gregory, 4 Gall 228.
Statutory Rule.—Under Va. Code 1887, sec. 3384, providing that, if at the trial there appears lobe any variance between the evidence and pleadings, the court, if it considers that substantial justice will be promoted, may allow the pleadings to be amended on such terms as it may decree reasonable, it is proper to allow a declaration to which a demurrer has been sustained to be amended at bar by striking out immaterial words, and to refuse to remand the case to rules. Alexandria & F. R. Co. v. Herndon, 87 Va. 193,12 S. E. Rep. 289.
After Issue Joined.-- if the plaintiff be permitted to amend his declaration, by consent of parties, after issue joined on a plea to the action, the defendant ought not tobe permitted to plead in abatement any variance between the amended declaration and the writ, which equally existed between the writ and the original declaration. Moss v. Stipp, 3 Munf. 159; Payne v. Grim, 2 Munf. 297.
Nul Tie! Record. —Upon the trial of the issue nul iiel record, the court may allow an amendment of the declaration, and, if the defendant consents, may proceed with the trial. Thus, in an action of debt, 'brought on a judgment recovered for £144. 17. 2H. and costs, but declared on for £144. 7. 2kC. and costs, the plaintiff, upon the trial of the issue joined upon the plea of “no such record” filed by the defendant, was allowed to amend his declaration by inserting the correct sum. Anderson v. Dudley, 5 Call 529.
Before Verdict—Terms.—The circuit courts of West Virginia, in the exercise of their general common-law jurisdiction, in the absence of any statute prohibiting them from doing so. and independently of any statute authorizing them to do so, may, in their discretion, permit the pleadings to be amended at any time before verdict found whenever justice will be promoted thereby, and the same can be done without injury to the opposite party, but in every such case, if the opposite party requests it, the jury should be discharged, and the cause continued with leave to the opposite party to amend his pleadings or to plead anew to the pleadings, so amended. Travis v. Peabody Ins. Co., 28 W. Va. 583.
After Verdict.—Even after the verdict is returned if there is anything by which it can be done, or the justice of the case requires it, amendments will be allowed. Travis v. Peabody ins. Co., 28 W. Va. 594; Tabb v. Gregory, 4 Call 228.
After Submission to Jury.—The case was submitted to the jury, who not agreeing, a juror was by consent withdrawn In this stage of the proceedings, the plaintiff was permitted to amend his declaration, the cause being in paper, notwithstanding the jury had been sworn, as no verdict was rendered; during which time amendments, in favor of justice, are within the discretion of the court. Syme v. Jude, 3 Call 521; Tabb v. Gregory, 4 Call 225.
Amendments before Final Judgment.—But the rigor of the common law has been gradually departed from, until it has become the settled doctrine, that amendments, at the discretion of the court may be allowedat anytime before final judgment, provided they produce no injury to the opposite party. Tabb v. Gregory, 4 Gall 228; Travis v. Peabody Ins. Go., 28 W. Va. 594.
Amendments of Judgment Entered on Order Book and Signed by Judge.—But a district court has no power or jurisdiction to reverse, alter or amend a judgment given at a former term of that court, which has been entered on the order book and signed by a judge in open court. Halley v. Baird, 1 H. & M. 25; Freeland v. Field, 6 Gall 12.
If an entry be made in a minute book of the clerk of the district court and a part of it be omitted in the order book, signed by the judge, the order book cannot be amended from the minutes after the term at which the proceedings were had. Gogbill v. Gogbill, 2 H. & M. 467.
During Trial of Appeal.—If a party during the trial of an appeal from a justice is entitled to amend his pleadings, that right cannot be made to depend solely on whether the adverse party is then ready to proceed with the trial. If such an amendment would be a surprise to the other party, a continuance will obviate that objection. Powell v. Love, 36 W. Va. 96, 14 S. E. Rep. 405.
*1261. In Appellate Court.—Amendment of the record in the supreme court is not permissible, because the supreme court tries the case by the record as made up in the lower court. Resort must he had to the lower court for such amendment. McClure-Mabie Lumber Company v. Brooks, 46 W. Va. 732, 34 S. E. Rep. 921, citing 1 Enc. PI. & Pr. 607.
Remand with Directions to Amend—Where an appellate court reverses the judgment of the lower, the cause will be sent back with directions that the plaintiff shall have leave to amend the declaration. Strange v. Floyd, 9 Gratt. 474; Liggatt v. Withers, 5 Gratt. 24, 60 Am. Dec. 95; Hale v. Crow, 9 Gratt. 268; Creel v. Brown, 1 Rob. 265; White v. Toncray, 5 Gratt. 180.
So also, where there is a demurrer to a declaration which is overruled, but upon appeal the judgment is reversed, the cause will be remanded with directions that the plaintiff be allowed to amend his declaration if he elects to do so. Hanshrough v. Stinnett, 25 Gratt. 495.
Proceedings after Leave to Amend Declaration.— When an order of court has been entered, granting the plaintiff leave to amend his declaration, and remanding the cause to the rules, the case, after the amended declaration is filed, ought to be regularly proceeded in at the rules to an issue or office judgment, unless by consent an issue be made up in court; and if, without such proceedings at the rules, judgment he entered up In court against a defendant because he has not appeared and pleaded to the amended declaration, such judgment will be erroneous. Couch v. Fretwell, 10 Leigh 578.
G. EFFECT OF AMENDMENT.
1. Statute op Limitations.—When an amendment to a declaration is not inconsistent with the nature of the pleadings, and does not introduce a new cause of action, then so far as regards the statute of limitations, it will have the same effect as if it had been originally filed in the amended form at the commencement of the term, and the cause not then barred will not be treated as barred at the time of the amendment by reason of such amendment. Kuhn v. Brownfield, 34 W. Va. 252, 12 S. E. Rep. 519; Lamb v. Cecil, 28 W. Va. 653.
2. Amendment as Waiver of Error in Previous rulings.—By amending his declaration, hojvever, and going to trial on the merits, the plaintiff waives his right to assign for error that a demurrer to the declaration, as originally filed, was improperly sustained. Darracott v. C. & O. R. R. Co., 83 Va. 288, 2 S. E. Rep. 511; Hopkins v. Richardson, 9 Gratt. 485; Harris v. N. & W. R. R. Co., 88 Va. 560,14 S. E. Rep. 535; Birckhead v. C. & O. R. Co., 95 Va. 648, 29 S. E. Rep. 678; Connell v. C. & O. R. Co., 93 Va. 44, 24 S. E. Rep. 467.
Amendment of Complaint after Demurrer Sustained. —If a special demurrer is filed to a declaration, which is afterwards amended in the points specified in the demurrer, issues made up on pleas filed before the amendment, a verdict rendered on those issues, and no further notice taken of the demurrer, the demurrer must be considered as abandoned. Vaiden v. Bell, 3 Rand. 448.
3. ORIGINAL PLEAUING SUPERSEDED.—When the plaintiff files an amended declaration, which is complete in itself, and does not refer to, or in any manner adopt the former as part of the same, and to which amended declaration the defendant replies and issneis joined thereon, the former shall he considered as withdrawn or abandoned. Roderick v. Railroad Company, 7 W. Va. 54.
4. Right to Plead De Novo.-—Where one party is permitted to amend, or amends without leave in a material matter, the other has a right to plead de novo, whether the new plea be material or not to his defence. Cosby v. Hite, 1 Wash. 365 ; Travis v. Peabody Ins. Co., 28 W. Va. 583.
Right to Elect.—Where the defendant’s plea to the original declaration is applicable to the amended declaration filed by the plaintiff, and which plea is not withdrawn, the defendant must he understood to have still rested his defence on the same plea, and the verdict on the original issue will stand ; but the defendant might have pleaded de novo if he had elected to do so. Power v. Ivie, 7 Leigh 147.
5. Effect of Adding New Parties.—Whenever new parties are made, both parties have liberty, if they desire it, to amend and modify their pleadings, so as to exhibit the case as they may desire respectively to present it. Dabney v. Preston, 25 Gratt.. 838.
H. LEAVE TO AMEND.
I. Amendment as Matter of Right.—The plaintiff may, as a matter of right, amend his declaration at any time before appearance by the defendant if substantial justice will be promoted thereby, and in such case it is not necessary to summon the defendant to plead to the amended declaration. Phelps v. Smith, 16 W. Va. 522; Baylor v. B. & O. R-Co., 9 W. Va. 270.
Suggestion by the Court.—But a plaintiff cannot be compelled to amend after the sustaining of a demurrer to a declaration. Rigg v. Parsons, 29 W. Va. 522, 2 S. E. Rep. 81.
I. METHOD OF MAKING AMENDMENTS.
I. ACTUAL AND IMPLIED AMENDMENTS.—If a Party obtains leave to amend his plea, he may elect to make the amendment or not as he pleases ; hut if he falls to make the amendment, arid the former plea is not withdrawn, the issue made by the original pleading should be tried. Fox v. Cosby, 2 Call 1.
J. OTHER MATTERS SUBJECT TO AMENDMENT.
Contested Elections—Grounds of Contest.—In Hal-stead v. Rader, 27 W. Va. 818, it yas held that a notice which does not state some substantial ground of contest cannot be amended. See also, Ralston v. Meyers, 34 W. Va. 737, 12 S. E. Rep. 783.
See monographic note on “Elections” appended to West v. Ferguson, 16 Gratt. 270.
And where the proceedings are before a body whichhas no common-law jurisdiction, but becomes functus oMclo as soon as the cause is determined, It cannot permit amendments of notices and specifications after the time has passed within which the parties themselves may correct omissions, and supply defects. Loomis v. Jackson, 6 W. Va. 613.
Misnomer in Christian Name.—Under W. Va. Code 1887, sec. 14, ch. 125, “No .plea In abatement for a misnomer shall be allowed in any action ; but in a case wherein, but for this section, a misnomer would have been pleadable in abatement, the declaration and summons may, on the motion of either party, and on the affidavit of the right name, be amended by inserting the same therein.” Thus, under this statute, where the writ named the plaintiff as “Collohan” Hoffman, and in declaration he is named as “Collahill” Hoffman, such misnomer in the plaintiff’s Christian name was amended. Hoff*127man v. Dickinson, 31W. Va. 142, 6 S. E. Rep. 53. See also, Va. Code 1887, §§ 3258 and 3399.
Where the jury find a conveyance to James, the lessor of the plaintiff, whereas his name is Jacobus, this is a plain mistake, which may be corrected by the other part of the finding, that he is lessor of the plaintiff. Pendleton v. Vandevier, 1 Wash. 381.
'lisiiomcr of Corporation.—The misnomer of a corporation cannot be taken advantage of by plea in abatement, but where formerly pleadable in abatement, the declaration and summons may, on the motion of either party, on affidavit of the right name, be amended by inserting the same therein. W. Va. Code, ch. 125, sec. 14; First Nat. Bank of Ceredo v. Huntington, etc., Co., 41 W. Va. 530, 23 S. E. Rep. 792.
Striking Out Plaintiffs.—Where a married woman, over the age of twenty-one years, sues for a personal injury in her name by a next friend, the declaration may be amended by striking out her next friend, and by inserting her own as plaintiff. Richmond Railway & Electric Company v. Bowles, 92 Va. 738, 24 S. E. Rep. 388. The court, in this case, further said: 'No reason can be perceived why, if a married woman may amend her bill by inserting the name of a next friend, she may not with equal propriety be permitted to amend her declaration by striking from it the wholly needless and superfluous shadow, rather than to permit the substance to be sacrificed.”
Of Scire Facias.—But a scire facias returnable to a day which is not a proper return day, is void and cannot be amended. Kyles v. Ford, 2 Rand. 1.
Of Bill of Particulars.—When a cause is called for trial, and substantial justice requires that the court should have allowed the plaintiff to amend his bill of particulars, and if it be clear, that such amendment cannot operate a surprise to defendant, the cause ought not to be continued because of such amendment. Anderson v. Kanawha Coal Co., 12 W. Va. 526. See Code of W. Va., ch. 125, sec. 12, p. 601.
Of Record—Upon What Based.—The amendments authorized by the act, Va. Code, ch. 181, sec. 5, p. 681, in relation to amendments of a record by a judge in vacation, are to be based upon something in the record, and not upon the recollection of the judge who presided at the trial, or evidence aliunde; and the amendments authorized are amendments to support the judgment, not amendments to give ground for reversal. Powell v. Com., 11 Gratt. 822, and note; Barnes v. Com., 92 Va. 794, 23 S. E. Rep. 784.
When Writ Part of Record.—For the purpose of amendment, the writ is a part of the record only where issue has been joined upon a plea to the action, Payne v. Grim, 2 Munf. 297.
Amendment after Term.—After the term at which a judgment is entered, the court cannot amend a record. Sydnor v. Burke, 4 Rand. 101.
III. OF PROCESS.
By the common law, process made returnable to a day which is not a return day, is void, and hence cannot be amended; though it seems that a fieri facias maybe amended in the teste or return. Kyles Y. Ford, 2 Rand. 1; Coda v. Thompson, 39 W. Va. 67, 19 S. E. Rep. 548.
A. OF SHERIFF'S RETURN.—After a judgment by default, the court may allow the sheriff to amend his return so as to show a proper service. Commercial Union Assurance Co. v. Everhart, 88 Va. 952, 14 S. E. Rep. 836; Railroad Co. v. Ashby, 86 Va. 232, 9 S, E. Rep. 1003; Stotz v. Collins, 83 Va. 423, 2 S. E. Rep. 737; Walker v. Com.. 18 Gratt. 18; Stone v. Wilson, 10 Gratt. 539. See also, Laidley v. Bright, 17 W. Va. 779; Wardsworth y. Miller, 4 Gratt. 99; Smith v. Triplett, 4 Leigh 590.
It is proper on the hearing of a motion to reverse a judgment by default for a defective return of the summons in the action, to allow the sheriff to amend his return, and then overrule the motion to reverse, if the amended return be good. Anderson V. Doolittle, 38 W. Va. 633. 18 S. E. Rep. 726; Cape-hart V. Cunningham, 12 W. Va. 750; Shenandoah Valley R. Co. v. Ashby. 86 Va. 232, 9 S. E. Rep. 1003.
Application in Vacation.—Where a judgment by default has been rendered oil a defective return of service of summons, and the defendant, after the term, applies to the j udge in vacation to reverse the judgment, and remand the cause to trial under Va. Code 1873, ch. 172, sec. 5, on the ground that it does not appear from the sheriff’s return that the writ has been served as prescribed by law, the court may, on the plaintiff’s motion, allow the return to, be amended so as to show a proper service, and dismiss the motion. Stotz v. Collins, 83 Va. 423, 2 S. E. Rep. 737; Goolsby v. St. John, 25 Gratt. 146.
Where under Va. Code 1873, ch. 172. sec. 5, defendant moves the judge in vacation to reverse the judgment by default upon defect of return of substituted service of the summons, and to remand the case to trial, the court will then allow the sheriff to, amend his return so as to show a proper service, and dismiss the defendant’s motion. Stotz y. Collins, 83 Va. 423, 2 S. E. Rep. 737; Laidley y. Bright, 17' W. Va. 779.
Application to Circuit Judge in Term.—Moreover, it is competent for the circuit court, whence the writ issued, to permit an amendment of the return, if the application to reverse the judgment is made to the court in term instead of to the judge thereof in vacation; and in this particular the authority off the judge in vacation is the same as that conferred upon the court. Stotz v. Collins, 83 Va. 423, 2 S. E.. Rep. 737.
And the judge in vacation may allow the sheriff to amend his return on the first execution, upon a motion to quash a second execution in vacation. Walker v. Com., 18 Gratt. 13; Goolsby v. St. John, 25 Gratt. 160.
Amendment of Summons by Clerk.—But on the trial of a motion to reverse the judgment by default, made in a circuit court under the fifth section of chapter 134 of the W. Va. Code, the court ought not to permit the clerk to correct the summons itself, though he has made a mistake by .inadvertence in issuing it. Laidley v. Bright, 17 W. Va. 779.
Objections in Appellate Court.—After judgment by default, a party cannot object in the appellate court, to the truth of a sheriff’s return. Cunningham y. Mitchell, 4 Rand. 189.
Return on Notice—An amendment of the return made by an officer on a notice, does not permit him in any wise to change or amend the notice itself, and if he does, the changed or amended notice is a nullity. White v. Sydenstricker, 6 W. Va. 46.
Justice’s Court.—Return of service of a summons from a justice’s court, defective in failing to show that service on a corporation’s agent was made in the county of his residence, may be amended, either before the justice or in the circuit court upon an appeal. Hopkins v. B. & O. R. Co., 42 W- Va. '535, 26 S. E. Rep. 187.
Certiorari to Justice.—And upon a writ of certiorari from a judgment of a justice, the circuit court may *128allow the return on the summons, issued by the justice, to be amended. McClure-Mabie Lumber Co. v. Brooks, 46 W. Va. 732, 34 S. E. Eep. 921.
Pendency of Suit on Original Return.—A court from which process is issued may permit the sheriff’s return thereon to be amended at any time, even though a suit or motion founded on the original return be then pending, and even though the proposed amendments be inconsistent with the original return, and take away the foundation of the suit or motion. Stone v. Wilson, 10 Gratt. 529; Stotz V. Collins, 83 Va. 423, 2 S. E. Rep. 737.
Not Ground for Continuance.—The allowance of an amendment to the sheriff’s return on a writ of summons is not ground for a continuance, though, before the amendment, there was nothing to show a valid service of the writ, especially where the case had previously been set for trial by consent. Atlantic & D. E. Co. v. Peake, 87 Va. 130, 12 S. E. Eep. 348.
Amendment as Affecting Liability of Sureties.— Where a sheriff has made a return on an execution and on that return, in part, a decree has been entered, in a subsequent proceeding against him and his sureties, he will not be permitted to amend his return, so as to explain it away and enable his sureties to escape liability for his default. Carr v. Meade, 77 Va. 142.
Effect on Subsequent Mortgagees.—It is immaterial that subsequent mortgagees of a corporation may be injured by an amendment, it not being shown that they were aware of the irregularity in the judgment, which was duly docketed, when they took their mortgages, and if they were, they would nevertheless acquire their lien subject to the plaintiff’s right to have the record perfected. Shenandoah Valley E. E. Co. v. Ashby, 86 Va. 232, 9 S. E. Eep. 1003.
Extent of Right to Amend.—If two writs of scire facias be successively issued, the returns on which are both defective, and the defendant, after pleading specially, obtains leave to withdraw his plea, as having been improvidently pleaded, the court ought not thereupon to permit the sheriff to amend both his returns, but only that on the first writ quashing the second writ, and remanding the cause to rules for further proceedings. Lee v. Chilton, 5 Munf. 408.
Amended Return Relates Back to Original Return.— When an officer’s return of process is amended by leave of court, the amended return relates back to, and takes place of the original return, as if it had been the first return; and any pending proceeding founded on the first return is, after the amendment, tested and tried by the amended return. McClureMabie Lumber Co. v. Brooks, 46 W. Va. 732, 34 S. E. Rep. 921, citing Capehart v. Cunningham, 12 W. Va. 750; Stone v. Wilson, 10 Gratt. 533; Stotz v. Collins, 83 Va. 483,2 S. E. Eep. 737; Eailroad Co. v. Ashby, 86 Va. 232, 9 S. E. Eep. 1003. See Anderson v. Doolittle, 38 W. Va. 633,18 S. E. Eep. 726.
Time for the Amendment.
In General.—The extensive power with which every court is ordinarily clothed, to permit an amendment of a return of its own process, whether original, mesne or final, for the correction of a casual and honest mistake or omission, may be exercised in all cases where it exists at all as well after judgment as before. In some cases it has been exercised even to the extent of taking away altogether a cause of action, growing out of the original return, and even though a suit or motion founded on the original return was pending at the time. And it makes no difference that the officer by whom the return was 'made, has gone out of office or is dead; there being no specific limitation of time within which the power may be exercised, although after a considerable lapse of time, it should be exercised with caution, and in no case ought it to be exercised, unless the court can see that it will be in furtherance of justice. S. V. E. E. Co. v. Ashby, 86 Va. 232, 9 S. E. Eep. 1003.
Before Judgment.—The court ought to permit the sheriff to amend his return upon a writ of ad quod damnum, at any time before the judgment upon it. Dawson v. Moons, 4 Munf. 535.
Any Time after Return Day.—And a sheriff may be permitted, by order of court, to make a return upon an execution, or to amend it, according to the truth of the case, at any time after the return day. Bullitt v. Winstons, 1 Munf. 269.
After Verdict.—Also, where execution is awarded on a forthcoming bond against the principal and surety therein, but the sheriff makes his return only as to the surety, the court after trial and verdict may allow the sheriff to amend his return. Smith v. Triplett, 4 Leigh 590.
After Action Commenced against Sureties.—Moreover, a sheriff will be permitted to amend his return on an execution, after an action has been commenced by the plaintiff in the execution against the sheriff and his sureties on his official bond, founded on the return. Wardsworth v. Miller, 4 Gratt. 99. See also, Lathrop v. Lumpkin, 2 Eob. 49.
Lapse of Seven Years.—A sheriff has been permitted by the court to amend his return after a lapse of seven years from its date. Rucker v. Harrison, 6 Munf. 181.
Lapse of Thirteen Years.—The court, in Hopkins v. B. & O. R. Co., 42 W. Va. 535, 26 S. E. Rep. 187, said: “Under a statute like that involved here, it was held, in Eailroad Co. v. Ashby, 86 Va. 232, 9 S. E. Eep. 1003, and the case is pointed authority in this case, that the return to a summons may be amended thirteen years after the judgment by default has been rendered, so as to show that the county in which service was had on the defendant corporation was the county in which the agent resided, and the judgment thereby validated.”
Amended by Sheriff or Deputy.—The sheriff or his deputy will be permitted to amend his return of process, mesne or final, so as to make it conform to the facts. State v. Martin, 38 W. Va. 568, 18 S. E. Eep. 748; Stone v. Wilson, 10 Gratt. 529; Wardsworth v. Miller, 4 Gratt. 99.
Cause May Be Tried at Same Term —It is not error to try a cause at a term at, which a sheriff is permitted to amend his return, showing that a party was duly served with notice, when in fact such party had been actually served with notice to appear at that term. Trimble v. Patton, 5 W. Va. 432.
Liberality of Courts.—Courts are liberal in allow-. ing officers-to amend their returns, according to the truth, when a casual and honest mistake has occurred. 4 Min. Inst. (3d Ed.) 1042, and cases cited; Hopkins v. B. & O. R. Co., 42 W. Va. 535, 26 S. E. Eep. 187; S. V. E. E. Co. v. Ashby, 86 Va. 232, 9 S. E. Rep. 1003.
“The law of amending returns is very liberal.” McClure-Mabie Lumber Co. v. Brooks, 46 W. Va.732, 34 S. E. Rep. 921.
IV. OF AFFIDAVIT FOR ATTACHMENT.
An affidavit for an attachment cannot he amended *129except as to merely clerical defects, and as to other facts relied on to show the existence of the grounds for attachment. W. Va. Code 1891, ch. 106, sec. 1, goes no further in allowing amendments than as to such additional facts. Sommers v. Allen, 44 W. Va. 120, 28 S. E. Rep. 787; Bohn v. Zeigler, 44 W. Va. 402, 29 S. E. Rep. 983.
When Additional Facts Must Exist.—But an amended affidavit in an attachment cause, stating additional facts to show the existence of the ground of attachment specified in the first affidavit, must show that such facts existed at the date of the first affidavit. Sommers v. Allen, 44 W. Va. 120, 28 S. E. Rep. 787.
Omission of Word “Justly.”—The omission, from the affidavit for attachment, of the word “justly” cannot be cured by amendment. Sommers v. Allen, 44 W. Va. 130, 28 S. E. Rep. 787.
Mistake in Date. —A mistake in the date of an affidavit may be amended. Anderson v. Kanawha Coal Co., 13 W. Va. 526.
V. IN CRIfUNAL PROCEEDINGS—LOST INDICTMENT.
If, in a prosecution for a felony or misdemeanor the indictment is lost at any time before the trial, though after arraignment and plea, the accused cannot be tried upon it. Bradshaw v. Com., 16 Gratt. 507, following G anoway v. State, 22 Ala. 772, and Harrison v. State, 10 Yerg. (Tenn.) 542, and holding that the act, Va. Code, ch. 180, p. 69, authorizing the lost record or paper to be substituted by an authenticated copy or proof of its contents, applies only to civil cases, and does not extend to records or papers in criminal proceedings.
See monographic note on “Indictments, Informations, and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
A. OF VERDICT.
By Direction of Court.—The court may, for good reason, return a jury to its room to further consider and amend or alter its verdict, at any time before a verdict is received by the court and the jury discharged. State v. Cobbs, 40 W. Va. 718, 22 S. E. Rep. 310.
At Request of Jury.—in the case of Sledd v. Com., 19 Gratt. 813, upon the rendition of the verdict, the defendant, for certain reasons then expressed, moved the court to set aside the verdict. One of the jurors, after hearing the discussion upon the motion to set aside, said that he desired to amend the verdict. Thereupon the court inquired of the jury whether they desired to amend their verdict and each of the jurors answered that he did. The jury were then allowed to amend their verdict, which proceeding was subsequently approved by the supreme court.
Period within Which Jury May Amend.—Where the jury has not been discharged or the verdict recorded it is a familiar practice to allow the jury to amend their verdict; but after they are discharged amendments are not allowable. Sledd v. Com., 19 Gratt. 813; Mills v. Com., 7 Leigh 751; Com. v. Gibson, 2 Va. Cas. 70.
1. Name oe Accused.—Where by mistake a wrong name is inserted in an indictment for a misdemeanor, though the record of the court and the ■ endorsement on the indictment shows the correct name, the indictment cannot be amended by striking out the wrong name and inserting the name of the person intended. Buzzard’s Case, 5 Gratt. 694.
Where defendants indicted jointly for a misdemeanor, have been duly summoned, but fail to appear, the court may, in their absence, amend the indictment against “S. C.,” and make it read “S. S. alias S. C.” Shiilett v. Com., 90 Va. 386,18 S. E. Rep. 838. See Va. Code 1887, sec. 3999.
Where an indictment for a wilful trespass was against J. M„ but the grand jury endorses it as against T. M., “'a true bill,” and it is so noted in the record, the court cannot alter or amend the record so as to make it conform to the indictment. McKinney’s Case, 8 Gratt. 589.
Where the grand jury find an indictment against C & D, but the clerk, in making a minute of the finding, accidentally omits the name of D, the record cannot be amended at a subsequent term of the court, by inserting the name of D in the minutes. Drake & Cochren’s Case, 6 Gratt. 665.
B. OF INFORMATION.
Where No Offence Charged.—If the offence charged in the presentment, upon which the information is based, does not amount to a 'misdemeanor, the court ought not to permit the attorney for the commonwealth to amend his information. Com. v. Williamson, 4 Gratt. 554.
After Motion to Quash.—But on an information for perjury, the attorney for the commonwealth may amend the information in accordance with the presentment on which it is founded, after the appearance of the defendant and a motion by him to quash it. Com. v. Lodge, 6 Gratt. 699.
VI. JEOFAILS.
A. AT COMMON LAW.-By the common law, if the issue joined be such as necessarily to require, on trial, proof of facts, defectively or imperfectly stated, or omitted, and without which it is not to be presumed that the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by the verdict. Laughlin v. Flood, 3 Munf. 256; Davis v. McMullen, 86 Va. 258, 9 S. E. Rep. 1095; Lincoln v. Iron Co., 103 U. S. 415.
See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425, and subtitle “Judgments by Default”
Surplusage,—Surplusage in pleading does not, in any case, vitiate after verdict. Thus, in debt on a judgment for £50 19s. lOd. the verdict finds for the plaintiff the sum of £50 “that being the debt in the declaration mentioned,” the error is in the sum only, which may be regarded as surplusage, and the verdict is cured by the statute of jeofails. Roane v. Drummond, 6 Rand. 182.
Defective Plea.—The proper plea to an action of debt upon a prison bounds bond is “conditions performed”; but as the plea “that he was not guilty of the premises laid to this charge,” is substantially the same, it is good after verdict. Payne v. Ellzey, 2 Wash. 143.
But it seems that a plea of “the act of limitations” in those words only, to which the plaintiff replies generally, is good after verdict. Cook v. Darby, 4 Munf. 444.
Wrong Form of Action.—-if a man, prosecuted without probable cause for stealing a deed, brings trespass on the case instead of trespass, the error cannot be taken advantage of in arrest of judgment; the error being cured by the act of jeofails. Cleek v. Haines, 2 Rand. 440.
Averment of Demand in Detinue.- -If the declaration in detinue does not contain a demand “that the defendant surrender to the plaintiff” the property sued for, yet, after verdict on the plea of non detinet, *130judgment ought not to be arrested. Boggessv. Boggess, 6 Munf. 486.
Doctrine of intendment.—Nothing will be presumed after verdict, but what must have been necessarily proved from the matter stated In the declaration, and therefore, the total want of an averment of fact, which constitutes the gist of the action, will not be cured after verdict by the act of jeofails. Chichester v. Vass, 1 Call 83,1 Am. Dec. 509.
Collateral Parts of Pleading.—Defects, omissions, or imperfections, though in form only, appearing in some collateral parts of the pleading which were not in issue between the parties, may not be cured by the application of this doctrine of intendment, as there is no room for the presumption that the defect or omission was supplied by proof. Bailey v. Clay, 4 Band. 346.
“A verdict operates, under the act of jeofails, only where the case is defectively stated in the declaration, and not where no case or title is made. It cures on the ground that proof is presumed to have been given at the trial, without which the jury could not have found the verdict In question; but it does not cure in cases in which no such presumption can be made. The court presumes proof to have been given as to facts imperfectly laid, but not as to facts not laid; it only presumes such proof to have been given as is called for by the averments in the declaration.” Laughlin v. Flood, 3 Munf. 273.
Imperfect Statement of Essential Facts.—A verdict cures, where the essential facts are imperfectly stated, but not where they are entirely omitted. Fulghamv. Lightfoot, 1 Call 250; Horrelv. M’Alexander, 3 Band. 101, opinion of CARR, J.
See “Omission of Essential Elements.”
Ambiguities.—The court, in Chichester v. Vass, 1 Call 83,1 Am. Dec. 509, said: “Under our act of jeofails, according to the principles of construction adopted by the courts of law in England, a verdict will cure ambiguities, but it will not cure a declaration where the gist of the action is omitted; for, no proof at the trial can make good a declaration, which contains no ground of action upon the face of it. This is the distinction laid down in the case of Bushton v. AspinaZi, Dougl. 679, and upon this distinction, this court went in the case of Winston V. Francisco, 2 Wash. 187.”
Averment of Breach.—If the breach in a declaration is not sufficiently laid, and, therefore, would be bad on demurrer, it will, nevertheless be cured by a verdict, if the necessary facts are stated, though imperfectly. The distinction taken in Chichester v. Vass, 1 Call 83, and in Fulgham v. Light-foot, 1 Call 250, Is between necessary facts not being stated at all, and being imperfectly stated. In the first case, a verdict does not cure; in the second, it does. Horrel v. McAlexander, 3 Band. 94; Peas’ Case, 2 Gratt. 640.
Promise to Pay in Assumpsit.—But if the promise to pay, in an action of assumpsit, be not averred, the omission is not cured by the verdict; or where the promise is averred by way of recital, instead of positively, the error is fatal after verdict. Winston v. Francisco, 2 Wash. 187; Sexton v. B¡olmes, 3 Munf. 566.
Refusal of Payment.—A declaration, however, which charges only that the defendant “hath and does refuse to pay,” without alleging that he has not paid, is good on general demurrer. Cobbs v. Fonntaine, 3 Band. 484.
Condition Precedent.—The failure to allege the performance of a condition precedent, in a declaration, will be cured by a verdict at common law. Bailey v. Clay, 4 Band. 346.
Separate Values.—Failure to lay a separate value in an action of detinue, as to each slave demanded, is an error which would be fatal on demurrer, but is cured by a verdict severing the values. Holladay v. Littlepage, 2 Munf. 539.
Payment on Demand.—In Winslow v. Com., 2 H. & M. 459, in debt on a sheriff’s bond, the declaration charging that he failed to pay the taxes on demand, instead of at the time appointed by law, was held sufficient after verdict.
Charging Heir Only In the Detinet.—Charging an heir in the detinet only, instead of in the debet and detinet as is proper, is not a fatal defect after verdict, or upon general demurrer. Waller v. Ellis, 2 Munf. 88.
Demise and Ouster in Ejectment—if, in. ejectment, the demise and ouster be laid precedent to the plaintiff’s title, it is cured by the act of jeofails. Duval v. Bibb, 3 Call 362.
Haliciously Suing Out Attachment.—Where, in an action for maliciously suing out an attachment, against the effects of the plaintiff, the declaration alleges, that the attachment was sued out “wrongfully and without good cause,” instead of “maliciously and without probable cause,” such an irregularity Is cured by the verdict. Spengler v. Davy, 15 Gratt 381. It would certainly seem that the cases of Kirtley v. Deck, 2 Munf. 10; Ellis v. Thilman, 3 Call 3 ; Young v. Gregorle, 3 Call 446, would have dictated an opposite decision In the above case, but the court reconciled Its decision on the ground that these cases were decided in the absence of some of the most sweeping provisions of the present statute of jeofails.
Declaration by Firm Name.—A declaration in behalf of a mercantile company, by the name of the firm, without mentioning the names of the partners, is good after a verdict for the plaintiffs upon the general issue. Pate v. Bacon, 6 Munf. 219; Totty v. Donald, 4 Munf. 430. See Scott v. Dunlop, 2 Mnnf349; Murdock v. Herndon, 4 H. & M. 207.
Covenant—Certainty.—On a covenant In which the plaintiff engaged to serve the defendant as his overseer, for one year, and the defendant to pay the plaintiff a certain part of all grain made on the plantation (after deducting the seed) oats excepted; a declaration charging that the defendant did not at the closs of the year, pay to the plaintiff such part of the grain made on the plantation (without setting forth what crop was made) is good after verdict. Laughlin v. Flood, 3 Munf. 255.
Naming of Issue.—In detinue, if a negro woman by name, and her issue (without naming them), be demanded in the declaration and the jury find the names of the issue, the defect (if any) is cured after-verdict. Holladay v. Littlepage, 2 Munf. 539.
Where an action was brought on a bond for $188, which is declared on as for $108, and the defendant confessed judgment for the debt in the declaration mentioned, and judgment is entered for $108, this is not a clerical error which may be amended under the 108th section of the statute of jeofails, 1 Bev. Code, ch. 128. Compton v. Cline, 5 Gratt. 137-
Writ of Right—The statute of jeofails extends to writs of right, therefore, if the verdict and judgment be substantially right, though not in the words-of the law, they ought not to be disturbed. Turberville v. Long, 3 H. & M. 309.
A count upon a writ of right describing the land demanded as a certain number of acres, part of a *131larger tract, and setting forth the boundaries of such larger tract is sufficiently certain after verdict. Lovell v. Arnold. 2 Munf. 167.
Failure to File Plea.—in a writ of right, the failure to file a plea is not cured by a verdict in favor of the tenant. Rowans v. Givens, 10 Gratt. 250.
Blanks, Informalities, Bad Grammar.—After verdict for the tenant in a writ of right, the blanks, informalities and bad grammar of plea and replication is immaterial. Snapp v. Spengler. 2 Leigh 1.
Distinction between Defective Statement of Title and Statement of Defective Title.—“if the declaration states a defective title or cause of action, though it state it well, or if it state no title or cause of action at all, neither common law nor the statute of jeofails helps the judgment. If it states a defective title, it shows that there is no right to recover; if it states no title, the presumption is irresistible that the plaintiff could not-have made out a case by proof on the trial. But if it states a good title, but states it defectively, it is fair to say that the plaintiff on the trial proved a good case, else the jury would not have found for him, and the statute cures the defective statement.” Longv. Campbell, 37 W. Va. 665, 17 s. E. Rep. 199, citing Chichester v. Vass, 1 Call 83; Fulgham v. Lightfoot. 1 Call 250; Laughlin v. Flood, 3 Munf. 273, opinion of court.
Where a plea is so defective as not to raise a substantial defence to the action, the plea is bad even under the statute of jeofails; and a repleader ought not to be awarded by the appellate court, though no objection was raised thereto in the court below, and issue had been joined thereon. But where an improper or defective plea raises a substantial defence to the action, and it is unobjected to in the court below, and issue is joined thereon, after verdict or judgment it is too late to object; the defect being cured by the statute of jeofails. State v. Seabright, 15 W. Va. 590, citing Callis v. Waddy, 2 Munf. 511; Tomlinson v. Mason, 6 Rand. 169; Dimmett v. Eskridge, 6Munf. 308; Hunnicuttv. Carsley, 1 H. & M. 153 ; Cleek v. Haines, 2 Rand. 440; Chew v. Moffett, 6 Munf. 120; Pence v. Huston, 6 Gratt. 304.
B. UNDER THE STATUTE.
1 Joindkii ob Isstjbi.—It is a perfectly well settled rule of law. that the statute of jeofails will cure a misjoinder or informal joinder of issue, but it is equally well settled that it will not cure a non j oinder or want of issue altogether. Petty v. Frick Co., 86 Va. 501, 10 S. E. Rep. 886; Johnson v. Fry, 88 Va. 695, 12 S. E. Rep. 973; Southside R. Co. v. Daniel, 20 Gratt. 345 (a case of nonjoinder); McMillion v. Dobbins, 9 Leigh 422; White v. Clay, 7 Leigh 68 (a case of misjoinder); Sydnor v. Burke, 4 Rand. 161; Walden v. Payne, 2 Wash. 1: Stevens v. Taliaferro, 1 Wash. 155; Wilkinson v. Bennett, 3 Mnnt 314; Totty v. Donald, 4 Munf. 430; Lockridge v. Carlisle, 6 Rand. 21 (cases of nonjoinder or want of issue); Simmons v. Trumbo, 9 W. Va. 358; Huffman v. Alderson, 9 W. Va. 617; Moore v. Mauro, 4 Rand. 488 (cases of misjoinder).
Want of Similiter.—But the mere want of a similiter shall not after a trial, vitiate the verdict. Brewer v. Tarpley, 1 Wash. 363.
Where there has been a demurrer to any pleading, and the same has been overruled, the statute cures no defect, imperfection, or omission therein, except such as could not be regarded on demurrer. 4 Min. Inst. (3d Ed.) 941; Va. Code 1887, sec. 3246; Southern Railway Co. v. Wilcox, 98 Va. 222, 35 S. E. Rep. 855.
The misjoinder of an issue is not fatal after verdict, when it is stated in the record that issue was joined. Moore v. Mauro, 4 Rand. 488.
Former Rulings.—Misjoinder of issue was, at one time, held not to be cured by the statute of jeofails. Stevens v. Taliaferro, 1 Wash. 155: Wilkinson v. Bennett, 8 Munf.314. ButitwasheldotherwiseinMoore y. Mauro, 4 Rand. 488, and this decision in Moore v, Mauro, supra, apparently met the approbation of the court in the case of Southside R. Co. V. Daniel, 20 Gratt. 360.
Upon the plea of payment or nonassumpsit, though all the evidence has not been certified, yet if the pica be such that the plaintiif could reply no special matter without a departure from the allegations of the declaration, but could only take issue on the plea, the nonjoinder will be cured by the statute of jeofails. Douglass v. Central Land Co,* 12 W. Va. 502.
Joinder of Counts in Contract and Tort.—After verdict, without a demurrer, the statute of jeofails cures a misjoinder of counts, as where counts ex delicto are joinder in the same declaration with counts ex contractu. N. & W. R. R. Co. v. Wysor, 82 Va. 250.
Defective Declaration of Title by Descent.—A defective plea and issue joined upon a defective declaration of title by descent, in an action against an heir on his ancestor’s covenant, is cured by the act of jeofails. Woodford v. Pendleton. 1 H. & M. 303.
Also, a defective setting forth of title by descent in an action by an heir for breach of covenants contained in a conveyance of lands to his ancestor, is good after verdict. Woodford v. Pendleton, i H. &M. 303.
Plea of Nil Debet in Assumpsit— A plea of nil ddxt in an action of indebitatus assumpsit is cured by a verdict and will be treated in the appellate court as if it had been a plea of nonassumpsit. Smith v. Townsend, 21W. Va. 486.
Plea of Not Guilty in Covenant.—Also, a plea of not guilty to an action of covenant is cured by a verdict. Hunnicuttv. Carsley, 1 H. & M. 153.
Plea of 5tatuie of Limitations.- -And, if a plea o t the statute of limitations to an action of covenant is defective in form or substance, but is not demurred to, such plea is cured after verdict by the statute of jeofails, Va. Code 1873, ch. 177, sec. 3; Davis v. McMullen, 86 Va. 256, 9 S. E. Rep. 1095.
Actio Personalis Moritur Cum Persona.—ftuch an error as giving judgment for the plaintiif, in an action for deceit against the vendor’s personal representative, will not be cured by the act of jeofails. 1 Rev. Code of 1819, ch. 128, sec. 103, p. 511; Boyles v. Overby, 11 Gratt. 202, disapproved in Lee v. Hill, 87 Va. 497, 12 S. E. Rep. 1052.
Extent of Curative Effect.—If errors in the pleadings or proceedings are cured by the statute of jeofails as to one defendant, they are cured as to all the defendants. Jenkins v. Hurt, 2 Rand. 446.
2. Omission op Essential Eiucments.—In spite of the sweeping provisions of the statute of jeofails, it does not apply to cases in which the declaration sets forth no cause of action or no ground of defence, as where there is a total omission to state matters essential to a cause of action or defence. Roanoke Land & Imp. Co. v. Karn, 80 Va. 589; Boyles v. Overby, 11 Gratt. 202; Davis v. Com., 13 Gratt. 139, 151; Laughlin v. Flood, 3 Munf. 273; Buckner v. Blair, 2 Munf. 336; Braxton v. Lipscomb, 2 Munf. 282; Green v. Dulany. 2 Munf. 518; Sydnor v. Burke, 4 Rand. 161.
Where a declaration shows that the plaintiifs have *132no right oí action, but on the contrary that the right of action is in another, and verdict is found for the plaintiffs, the statute of jeofails. 1 Bev. Code, ch. 128, sec. 103, does not apply to the case, and does not cure such a defect. Boss v. Milne, 12 Leigh 209, 37 Am. Dec. 646; Eobrechtv. Marling, 29 W. Va. 765, 2 S. E. Bep. 827. ; L , ; , ,
Quiere, if the plaintiff omits to aver in his declaration matter necessary to show a good cause of action, and the defendant,- instead of demurring, pleads the general issue, whether, upon the construction of the statute of j eofails, 1 Rev. Code, ch. 128, sec. 103, p. 512, the plaintiff is bound to prove the matter at the trial of the issue, which he has not averred in his declaration. Thompson v. Cumming, 2 Leigh 321. . = . . ;
To hold a defendant liable upon a canse of action not asserted, is going to the utmost verge of the law, even where such a cause of action is proved. But to hold him liable for such cause when not proved, or proved by evidence not admissible if the suit had been brought for that cause, is going beyond the letter and spirit of the law. Boyles v. Overby, 11 Gratt. 202, and note. . . . .
An action is misconceived in the sense of the statute of jeofails, only in a case, wherein upon the trial, the proofs show a cause of action fit to be asserted in a form different from that adopted. The defendantis held liable upon proof showing a liability; and if no objection is made to the form of the action until after verdict, the defect is cured thereby. Boyles v. Overby, 11 Gratt. 202.
But under the statute of jeofails of 1819, the omission to allege property in the plaintiff, in the declaration, is cured after verdict. Vaiden v. Bell, 3 Band. 448.
Averment of Notice.—The failure of the plaintiff, in an action on a collateral promise, to aver notice to the guarantor of the performance of the act contemplated by the promise, and, perhaps, of a failure to pay by the person, in whose favor the undertaking was made, will be cured by the statute of jeofails, after verdict. Pasteur v. Parker, 3 Band. 458.
Misnomer.—Where suit is brought against the president and directors of a branch bank, this is not a mere misnomer, which must be pleaded in abatement, but is a bar to any recovery; and though the verdict is founded upon the general issue pleaded, the error is not cured by the statute of jeofails. Mason v. Farmers' Bank, 12 Leigh 86.
Ejectment.—Under sec. 5, ch. 177 of Va. Code 1873, an amendment of a judgment for the plaintiff in ejectment “for their termyet to come in the lands,” etc., so as to conform with the plaintiff’s claim and the requirements of the Va. Code 1849, whereby ejectment was adopted to try title to, as well as to get possession of land, is not erroneous. Alvey v. Cahoon, 86 Va. 173, 9 S. E. Rep. 994.
a. Gist of Action Omitted.—“Though the statute of jeofails will aid many omissions after a verdict, it will not cure the defect in a declaration, in which the very gist of the action is omitted to be charged.” Moore v. Dawney, 3 H. & M. 134. See Smith v. Walker, 1 Wash. 135.
Statements under Quodcum.—The gist of the action must, in all cases, be directly and positively averred in the declaration, therefore, if in trespass, the plaintiff declare “for that whereas," etc., and does not make a positive averment, it is error, and will not be cured by the verdict. Moore v. Dawney, 3 H. & M. 127; Lomax v. Hord, 3 H. & M. 271, citing
Winston v. Francisco, 2 Wash. 187; Chichester v. Vass, 1 Call 83; Cooke v. Simms, 2 Call 39.
3. cetminai, cases.
a. Errors Cured.—The statute of jeofails is frequently applied in criminal cases to cure informal defects in indictments, or such as are not essential or of the substance of the charge. As, where in an indictment for grand larceny, the charge was for stealing on a certain day, in the year one thousand eight hundred and twenty-thee, leaving out the r; and in rape, the using of the word “female” child, instead of “woman” child, and omitting the word "unlawfully”; and in an indictment for malicious and voluntary shooting, using the term “wilfully” instead of "voluntarily.” Aldridge v. Com., 2 Va. Cas. 447; Com. v. Bennet, 2 Va. Cas. 235; Trimble v. Com., 2 Va. Cas. 143.
Where, in an indictment for forgery of bank notes, the notes are referred to as being annexed to the count, instead of setting out the tenor of the forged notes, this careless and irregular mode of counting is cured, after verdict, by the act of jeofails. Com. v. Ervin, 2 Va. Cas. 337.
Indorsement of Grand Jury’s Finding on Indictment. —It has been held that where an indictment filled the whole sheet of paper and was then folded in another half sheet of the same size, on which half sheet the attorney indorsed “Commonwealth v. Joseph Burgess, indictment,” and immediately below, in the handwriting of the foreman of the grand jury was indorsed “A true bill, Robert Hamilton, Foreman,” although the half sheet of paper was blank except the indorsement, and although it was not otherwise attached to the indictment then being folded around it, yet the indictment enveloped by it must be considered as the indictment which was passed on by the grand jury, and on which, verdict was found by the jury. Though the objection was a good one, it would come too late after verdict. Burgess v. Com., 2 Va. Gas. 483.
Sufficient Certainty.—Where, in a presentment, the offence is charged with a sufficient certainty for judgment to be given thereon according to the very right of the case, any defect in the presentment will be aided by the verdict. Thus, where an indictment against S for keeping an office and transacting business as agent of the protection Insurance Company of Hartford, incorporated and authorized by the laws of Connecticut, without having a license therefor, did not allege that the said company was an insurance company, the error was held to be cured by the verdict. Slaughter v. Com., 13 Gratt. 767.
b. Errors Not Cured.
Ownership of Stolen Bank Notes.—if the indictment for stealing bank notes does not charge that they are the bank notes of, or belong to, some person or persons by name, or of, or to, some person to the jurors unknown, the defect is fatal, and is not cured by the act of jeofails. Barker v. Com., 2 Va. Cas. 122.
. I Omission of Word “Feloniously.”—The statute of criminal jeofails does not cure an indictment for stealing bank notes under the act of 1806, which fails to charge that they were feloniously stolen. Barker v. Com., 2 Va. Cas. 122.
: < i i 1 Intention of Statute.—The statute of criminal jeofails was not intended to introduce a carelessness or laxity in pleading but merely to cure those defects which the over-nicety of the courts had introduced into the common law, and which did not put the rights of the commonwealth or the accused *133into jeopardy. Barker’s Case, 2 Va. Cas. 122; Old y. Com., 18 Círatt. 930.
Origin of Statute.—That part oí our statute of jeofails which cures the omission of all averments, “without proving which the jury ought to have found such a verdict,” is not taken from the English statute, hut is the adoption oi the principle established in the English courts, and which is well explained in Ruston v. Aspinall, Dongl. 658, per Roane, 3. Stephens v. White, 2 Wash. 210. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481423/ | DANIEL, J.
The judgment upon which the decree sought to be reversed is founded, was rendered in the year 1802. No steps appear to have been taken to enforce the judgment until the institution of this suit in the year 1840.
Thomas Smith the intestate of the appellant William P. Smith, in his answer to the bill, set up two defences, to wit, the statute of limitations, and the presumption of satisfaction arising from the great delay in proceeding upon the judgment. It is insisted in the petition and in the arguments of counsel here, that both of said defences were good, and that the Chancellor erred in overruling them.
The judgment was obtained by William Wiseham administrator and Mary Charlton administratrix of Francis Charlton deceased, against John Lewis, executor of Warner Lewis deceased, to be levied of the goods and chattels of the said Warner Lewis deceased, when assets sufficient should come to the hands of the defendant to be administered.
It is stated in the bill, and proved by a deposition in the cause, that Wiseham the administrator died in 1804 *or 1805, and that Mary Charlton the administratrix died in 1810 or 1811; and Anderson the appellee qualified as administrator de bonis non of the said Francis Charlton in February 1831. Though thirty-eight years, therefore elapsed between the date of the judgment and the commencement of proceedings to enforce it, it appears that for at least twenty years of that period the estate of Charlton was without a representative. There cannot, of course, arise any presumption of satisfaction during this interval, and excluding it, there remains but seventeen or eighteen years upon the lapse of which to rest that defence.
No circumstances in aid of the lapse of time are averred in the answer or disclosed in the proofs. If this, therefore, had been a judgment de bonis testatoris, to be levied presently of the goods, &c., in the hands of the representative, instead of a judgment when assets, I should hardly suppose that the demand to have it satisfied could have been successfully resisted on the score of lapse of time: And when the character of the judgment is adverted to, and the further fact is brought into the statement of the case, to wit, that no assets came into the hands of the representative of Lewis till after the death of both the administrator and administratrix of Charlton, to wit, in 1815, it seems to me that all grounds for a defence, resting upon lapse of time or staleness of demand, is entirely removed.
It remains to be considered whether the statute of limitations presents any bar.
It must be conceded that the words of the 5th section of the statute of limitations, 1 *179Rev. Code, p. 489, are sufficiently broad to cover the case of a judgment when assets; and two of the members of this Court, (the President and Judge Baldwin,) expressed the opinion, in the case of Braxton v. Wood’s adm’r, 4 Gratt. 25, that such judgments fell within the scope and design of the statute.
*1 did not regard the question as fairly arising in that case for adjudication, inasmuch as the judgment to which the bar of the statute was there sought to be applied, was not, in my opinion, a judgment quando acciderint, hut a judgment de bonis testatoris, capable of being at once enforced by execution, without the previous issuing of a scire facias. With such views of the nature of the judgment, I did not deem it necessary to express any opinion as to whether judgments when assets came within the meaning of the statute. I did, however, on that occasion, endeavour to investigate the subject, but was unable to find any authority directly bearing on the question, except the opinion of Judge Lomax, expressed in his work on the law of executors and administrators. At page 465, vol. 2, he says, that he regards them as embraced within the provisions of the statute ; but he does not vouch any decision, nor does he go into any reasoning in support of the opinion.
A re-examination of the question, with a view to the decision of this case, has been attended by a like result; and I therefore regard the question as an open one.
The words of the statute embrace all judgments, without exception or proviso, “where execution hath not issued,” and limit the suing out of a scire facias, or the bringing of an action of debt thereon, to the ten years next after the date of the judgments. The 6th section of the statute provides for disabilities appertaining to the persons entitled to the judgments, and existing at the date of the judgments; and gives the further period of five years after the removal of such disabilities, for suing out the scire facias, or bringing the action ; but no provision is made for the case of disabilities belonging to the judgments themselves. Such disqualifications or disabilities may however be attached to or so connected with the judgments as to render *it legally impossible (for a period) to enforce them by execution, or to revive them by scire facias, or to bring an action upon them. To judgments so situated, it will hardly be presumed the Legislature intended any limitation to apply, during the period of their incapacity.
By the common law, the failure of the plaintiff to sue out execution within the year, so far created the presumption of a payment, satisfaction or release of the judgment, as to compel the plaintiff to bring his action on the judgment; and thus give the defendant an opportunity, by pleading, to put in issue such supposed payment, satisfaction or release. By the statute Westminster 2, 13 Edward 1, c. 45, a scire facias is given to the plaintiff to revive his judgment where he has omitted to sue out execution within the year; and it is now the remedy most usually resorted to for such purpose.
Notwithstanding the year’s neglect-drives the plaintiff, generally, to his action or scire facias, the English cases furnish many exceptions to the rule. As when a writ of error is brought on a judgment, the delay in executing the judgment being imputable to the defendant, execution may issue after the judgment is affirmed, although more than a year and a day have elapsed since the judgment was signed. 1 Salk. 322. So if a plaintiff has a judgment with a “cessat executio” for a given time, he may within a year and a day after the expiration of the time allowed by the “cessat executio,” take out execution without a scire facias. 1 Salk. 322. So when the plaintiff is prevented from suing out his execution within the year by the defendant’s obtaining an injunction out of chancery, he may upon the dissolution of the injunction, have execution without resorting to the scire facias. This was for a time disputed, but is now well settled law. 2 Burr. R. 660. And even where a year after judgment had '^expired before the writ of error was sued out, and the judgment is affirmed, or plaintiff in error is nonsuited, or the writ of error discontinued, the plaintiff may sue out execution, the writ of error being held to have revived the judgment. 1 Show. 402.
In most of the States of this Union the same rule prevails either by force of the common law or by virtue of legislative enactment ; and the same or like exceptions will be found to obtain. Thus in Nicholson v. Howsley, 5 Litt. Scl. Cas. 218, the agreement of the parties to suspend the execution prevented the operation of the one year rule; and in 8 Serg. & Rawle 377, and 3 Binn. R. 160, it was decided that the plaintiff would be excused by such agreement, whether entered on the record or not. And in the case of the United States v. Harford & Ely, 19 John. R. 173, it was decided that when the execution is delaj'ed at the request and for the benefit of the defendant, the rule requiring a scire facias does not apply. So in Long v. Morton, 2 A. K. Marsh. R. 39, where there was a decree against a widow for a tract of land with a reservation of her right of dower, and a period fixed within which she might have it assigned, and providing that if she should by the day fixed have her dower assigned, she might satisfy the decree by surrendering up so much of the tract as might not be allotted to her, it was held that the “habere facias” might well issue within twelve months after the day fixed for the allotment.
The language of the first section of our execution law, 1 Rev, Code, p. 524, ch. 134, is “that all persons who have or shall hereafter recover any debt, &c., by the judgment of any Court of record within this Commonwealth, may at their election prosecute writs of fieri facias, &c., within the year, for taking the goods, &c., &c.”
*180*The language of the statute is explicit in confining the peremptory right to sue out execution “within the year.” Yet I presume it has not been doubted since the decisions in Eppes v. Randolph, 2 Call 186, and Noland v. Cromwell, 6 Munf. 185, that this one year’s limitation could not avail a defendant where there had been a stay of execution by his own agreement, or by force of an injunction obtained at his instance.
In any of the instances above cited of stay of execution, whether by “cessat executio” or the parol agreement of the parties, or by injunction or supersedeas, I presume it will not be doubted that the plaintiff might at the end and expiration of the time bring his action of debt upon the judgment, instead of suing execution thereon; and that if the judgment had been thus suspended for more than ten years, he might meet the statute of limitations by shewing that though his judgment was more than ten years old, and one upon which no execution had issued, and thus falling within the very words of the statute, yet that it was so situated that no execution could be sued out on it, and therefore that it did not fall within the true meaning and design of the statute.
When a plaintiff in an action against an executor or aministrator takes judgment of assets quando acciderint, it is well settled that he cannot at any future time proceed to execution on the judgment, without first suing out a scire facias to state that assets have come to hand, and to warn the defendant, should he be able to allege any thing against such execution. Tidd’s Practice 1063.
If after the lapse of ten years from the date of his judgment, upon which no execution hath issued, the plaintiff in his action thereon may successfully meet the plea of the statute by shewing that by the agreement of parties, or by force of an injunction obtained *by the defendant, he could not in the meantime sue out execution, it is difficult to conceive of any good reason why he may not obviate the force of the plea when tendered to an action of debt on a judgment “quando,” by a demurrer or replication objecting that by the very form and nature of the judgment itself he had been prevented from issuing the execution.
In construing the statute its aim and purpose must be looked to, and its language ought to have a fair and reasonable interpretation. The limitations imposed on the right of the plaintiff to maintain an action on his judgment, have reference to and grow out of his conduct in respect to the execution, and necessarily presuppose that the plaintiff had at some time the right to sue out execution which he has failed to exercise. That this is so, is, I think, made still more apparent by looking to the second clause of the section of the statute, now under consideration, which provides that “where execution hath issued and no return is made thereon, the party in whose favour the same was issued, shall and may obtain other executions, or move against any sheriff or other officer or their security or securities for not returning the same, for the term of ten years from the date of such judgment, and not after.” This Court held in the case of Herrington v. Harkins’ adm’rs, 1 Rob. R. 591, that whilst the right to sue out other executions on a judgment where an execution had been before issued but not returned, was, by this clause, expressly limited to ten years, an action of debt was not embraced in the words or meaning of the clause; and that in all cases where the plaintiff had sued out execution there was no limitation to the period within which an action of debt might be brought on the judgment.
Whilst the second clause of the fifth section prescribes a limitation to the remedies of. plaintiffs in the cases where they have so far availed themselves of the *means of enforcing judgment as to sue out execution, but have obtained no return thereon, the first clause of the section was, in my opinion, designed to prescribe the limitation to their remedies, where having a right to sue out executions, they have wholly failed to exercise the right. By the term “judgments” in the first clause, are intended judgments clothed as judgments ordinarily are, with the capacity of being enforced; judgments upon which the plaintiffs have the right to sue out execution. Where the exercise of this right is stayed or suspended by the agreement of the parties, or by the restraints of legal proceedings set on foot at the instance of the defendant, the limitation will not begin to run in favour of the defendant till the time of such stay or suspension has expired. Judgments which shew upon their faces that there is now no right to enforce them by execution, and that such right is to depend on other proceedings yet to be instituted, do not, in my opinion, come within the meaning and operation of the statute at all.
Inasmuch as the assets subjected to the decree in this case came into the hands of the administrator of Bewis after the death of the administrator and administratrix of Charlton, and before the administration de bonis non was granted, and the administrator de bonis non brought suit within the ten years after his qualification, the plea of the statute could, under no aspect of the. case, avail the appellant, unless he could shew that the limitation began to run in his favour, not from the time of the coming in of the assets, but from the date of the judgment : And such is the proposition contended for; a proposition which seems to me to run counter to all the analogies of the law. It is argued that though no assets came into the hands of the defendant within ten years after the date of the judgment, it was the duty of' the plaintiff, in order to keep alive his claim, to sue out a scire facias or to bring an action of debt, within *said period, suggesting that assets had come into the defendant’s hands out of *181which he had a right to demand execution of his judgment. And though upon an issue, made up on the state of the assets, the plaintiff had confessed that no assets had, since the judgment, come into the hands of the defendant, or such issue had been tried and found against him, (as it must have been in accordance with the fact,) he would have been entitled to take a second judgment quando acciderint; that the first judgment would be merged in the second, and that the limitation would again begin to run from the date of the last mentioned judgment. It is said that as, in the original action, the plaintiff may, notwithstanding he admits there are no assets in hand liable to his demand, take a judgment quando, there is no reason whjq in the proceedings upon the scire facias, or in the action upon the judgment quando, he may not pursue a like course and take a similar judgment. This reasoning is, I think, founded on a mistaken view of the ends and objects of the two actions. In bis original action the plaintiff seeks the accomplishment of two purposes, the judicial ascertainment of the justice of his claim against the decedent, and of his right to have present satisfaction out of the estate of the decedent, in the hands of his representatives. In such action though the administrator shews that there is nothing now in his hands liable to the plaintiff’s demand, such defence does, in no way, contravene the right of the plaintiff to prove the original justice and unsatisfied state of his claim against the decedent; nor does it present any reason why the plaintiff should not have satisfaction of his claim out of any assets that may, in future, come into the hands of the representative. Though, therefore, the plaintiff fails in effecting one of the purposes of his suit, there is no reason why he should be denied the accomplishment of the other. The judgment quando acciderint has been ^moulded by the Courts to meet the exigencies of the case. The sentence of the Court is pronounced in favour of the debt or demand, but its satisfaction is made dependent on the future coming in of assets out of which to pay it. In the second proceeding, or suit, upon the judgment, the gravamen of the complaint, the gist of the action, is the coming in of assets since the judgment, and the failure of the defendant in applying them to its discharge. The suggestion that assets have come to the hands of the representative since the judgment is no mere form or legal fiction, but involves the pith of the controversy, and presents the point on which the action rests. The judgment quando, from its very form and nature, is an acknowledgment of the most solemn form on the part of the plaintiff, that he is entitled to be satisfied only out of future assets. If no assets have come to hand since the judgment, the plaintiff has nothing to complain of or on which to found his action. In the case of an ordinary judgment capable of being presently executed, it is true the plaintiff may bring his action of debt upon it as soon as it is rendered. He is entitled to immediate satisfaction, and the defendant is at once in default if he does not pay it. But it is difficult to conceive of the propriety of a suit where the plaintiff cannot truly allege any grievance, and the defendant is in no default. If the plaintiff fails in proving that assets have since come, &c., he must, I think, go out of Court: Yet I do not see why a failure in his suit, because of its being prematurely brought, should form any bar to a scire facias or action brought thereafter when assets have actually come to hand. Should the defendant rely on the verdict and judgment in the proceedings on the former scire facias or action on the judgment, the plaintiff might reply and shew that his defeat was occasioned solely by the failure to shew assets, and that assets have come into the hands of the representative since said last mentioned 'x'proceedings. A case has been cited which shews that where the plaintiff in his scire facias or action on a judgment when assets, shews that assets of a limited amount not sufficient to satisfy his demand have since judgment come to hand, he may take judgment for so much to be presently levied de bonis testatoris, and have judgment quando for the balance. I do not perceive the weight of the authority as applicable to a case in which the plaintiff wholly fails to prove assets. If the plaintiff proves assets to any extent, he does to that extent maintain the allegation on which his action rests; and he ought to have judgment accordingly; and as there is no propriety in two judgments of the same character lor the same thing, provision in the same judgment is made for the balance of his demand out of the future assets. His original judgment is as it were merged in the second; and any future proceedings for the collection of the demand will be founded on said last mentioned judgment. But where he wholly fails in his proof of assets he only shews that he has been premature in his proceedings, and his demand still rests on his former judgment, exactly as it did before; with the exception that in any future action or scire facias the right to shew assets will be confined to the period since the judgment in the unsuccessful proceedings just mentioned. Judgments quando acciderint may be rendered against heirs as well as against executors and administrators. In debt against a niece as heir to the uncle, the defendant confessed the bond, but pleaded that nothing in fee simple descended to her besides a reversion of thirty acres, &c., after the death of such a one. It wras held that the plaintiff might take a special judgment to recover the debt and damages of the aforesaid reversion, when it should fall in. And in Fortrey v. Fortrey, 2 Vern. R. 134, it was decided that where a man obtains judgment against an heir who has a reversion in fee descended to him, the judgment is only of ^assets quando acciderint; and the creditor
cannot by a bill in equity, compel the heir *182to sell the reversion, but must expect till it falls in. So in Comyn’s Digest, vol. 6, p. 326, Pleader 2, E. 4, Replication, it is said, “after riens per descent pleaded, the plaintiff may pray execution of assets cum acciderint; or if riens per descent prseter, he may pray execution of assets confessed; or reply that the defendant had assets ultra; and if he replies assets ultra he may waive it and pray judgment of assets confessed cum acciderint.” In Wells v. Bowling’s heirs, 2 Dana’s R. 41, most of the foregoing authorities are cited, and the further case is put of the title to real estate descending to an heir whilst in the adverse possession of another; and it is said that there is the same reasons in favour of allowing judgments quando against heirs as against executors: that the creditor is not presumed to know the state of the assets in the hands of the heir or executor, and he should not be prejudiced by bringing his suit to establish his debt against the decedent, before assets have come to hand.
Take the case of a suit against an heir on the bond of his ancestor and of a judgment thereupon quando; the heir having no estate, in possession, descended, but having a right to lands which at the death of the ancestor were in the adverse possession of another, and for which the heir has instituted his action. Of lands so situated, the plaintiff could not have execution; but they would be assets when recovered. Pending such adverse possession and controversy, no failure to proceed on his judgment could, I think, prejudice the plaintiff; and I do not perceive any reasons that would bring a judgment against an éxecutor when assets within the operation of the statute that would not apply with equal force to the like judgment just mentioned against the heir.
If I am correct in supposing that no action on a judgment quando against an executor can be maintained ^without alleging and proving assets, it follows that, if the statute embraces such judgments at all, it designs to defeat all recovery upon them after ten years, though no assets may come in the mean time into the hands of the representative; the only means of avoiding the operation of the statute, suggested, being the suing out of a scire facias, or bringing an action and taking a new judgment when assets. But whether correct or not in my views of the plaintiff’s right to maintain a suit on such a judgment without proving assets, I am satisfied that the statute only embraces judgments that may be enforced by execution without some new proceeding; and that judgments quando stand as they did at the common law, liable, after assets have come to hand, to those presumptions of satisfaction that attach to judgments ordinarily where there has been great delay in proceeding upon them.
An objection to the jurisdiction of the Court is made in the answer. It is not, however, mentioned in the petition, nor noticed in the arguments of counsel, and may, I suppose, be regarded as abandoned. The circumstances disclosed in the bill and the proofs, in relation to the state of the assets, furnish, I think, proper grounds for the resort to a Court of equity. One of the causes of error assigned is, that the copy of the judgment filed is not properly authenticated. No exception was made to the paper in the Court below, and nothing said of it in the argument here. I have not been able to discover the force of the objection.
I see no error in the decree, and am of opinion to affirm it.
BALDWIN, J. We have to determine in this case whether a judgment quando acciderint against an executor or administrator, not revived or renewed by scire facias or action of debt brought thereon within ten years next after the date of the judgment, is barred by *the statute of limitations, 1 Rev. Code, ch. 128, § 5, p. 489. In 2 Lomax Ex’ors 455, the affirmative construction of the statute is expressed by the learned author; but the question has never been authoritatively decided by this Court. Braxton v. Wood’s adm’r, 4 G-ratt. 25, was the case of a judgment recovered by confession, “if a sufficiency of assets of the defendant’s testator’s estate shall remain after payment of debts of superior dignity;” and was decided by the three Judges then sitting to be barred by the statute. In the opinion which I delivered in that case, I had occasion, for the sake of illustration, and the development of the principles belonging to the subject, to express my views of the statutory bar in regard to judgments quando acciderint, and to show their application a fortiori to the judgment we were then considering. In that opinion the President concurred. Judge Daniel delivered a separate opinion, in which he stated his own reasons for concurring in the decision, but was silent in relation to the application of the statute to a judgment quando acciderint.
The question, therefore, in regard to a judgment quando acciderint, is still an open one, and the views of it presented by my opinion in Braxton v. Wood’s adm’r, have, in the argument of the present case, been earnestly and ably controverted by the appellee’s counsel; but upon grounds, as I conceive, unavoidably narrow and technical. In order that those grounds may be distinctly understood, and to avoid unnecessary repetition, I must here refer to the opinion as reported, to which, after a careful reconsideration, I still adhere.
It is contended, in the first place, on the part of the appellee, that judgments quando acciderint are not at all embraced by the statute. • If this be so, then it follows that though assets to many times the amount of such a judgment come to the hands of the executor or administrator, in a few days thereafter, yet the plaintiff *may lie by an indefinite number of years, and then proceed to enforce his demand. It is difficult to conceive any consideration of policy which could have induced the legislature to permit such a result, in the.enactment of a law, intended to quiet not only individ*183uals but dead men’s estates against antiquated judgments. It is not denied that other judgments de bonis testatoris fall within the plain meaning of the statute, and it cannot be denied that a judgment quando acciderint, in the case supposed, would fall within the same mischief ; and it is remarkable if such an exception was contemplated that it was not indicated by express words.
It is sufficiently obvious that the construction contended for is merely literal, and unwarranted even by that mode of treating the subject. The words of the statute are, “judgments in any Court of record within this Commonwealth, where execution hath not issued, may be revived by scire facias or an action of debt brought thereon, within ten years after the date of such judgment, and not after.” And the argument is founded upon the word “revived,” which it is urged indicates a judgment which has become dead by the failure to sue out execution within the year, and not one upon which no execution could have issued at any time from its rendition. But the word “revived” does not warrant the interpolation of the word “dead,” which has never been applied to a judgment, and could not be applied with more propriety to one upon which execution might, than to one upon which it could not, have issued. A judgment on which execution has not issued within the year, is not dead but only sleepeth, and may be awakened not only by scire facias or debt, but by suing out execution without either, if the delay has been occasioned by the acts of the defendant, or for his accommodation and at his request. 8 Bac. Abr. 600, 601, 602; United States v. Harford, 19 John. 173 ; and in no case is suing out execution *after the year without scire facias void, but only voidable. Id.
The word revived is used in the statute in reference not to the character of the judgment, but to that of the specified remedies, to wit, a scire facias or an action of debt, and it has the same meaning in regard to both, that is to say, the renewal of the judgment ; in the former remedy by an award of execution, and in the latter by the recovery of a new judgment. And both remedies may be resorted to as well before as after the year. 8 Bac. Abr. 603; 1 Chit. Plead. 355: and either may be preferable to suing out execution, where the plaintiff wishes a judicial decision, in a regular course of pleading and trial at law, upon some question touching the validity or discharge of the judgment. We accordingly find that the period of limitation begins, not from one year after the judgment, but from its date. The statute, it will be seen, embraces the subject of limitations after judgment, by two distinct clauses of the same sentence; the first of which relates to judgments where execution, from whatever cause, has never issued, and the last to further proceedings by execution, where execution has once issued without being returned.
When we come to the spirit and policy of the statute, there is if possible still less difficulty. It is an act of limitation against judgments, and like other acts of limitation a statute of repose. It bars the judgment by barring the only actions at law by which it can be enforced, the action of debt and the writ of scire facias which is a judicial writ, and in that sense an action, open to all the pleadings, evidence and modes of trial applicable to the action of debt. The necessity for a period of limitation is stronger than in most other cases ; for the judgment being matter of record perpetuates itself, and cannot be erased even by the concurring act of the parties ; while the evidence of its ‘^discharge, or release, or opposing equities, rests for the most part in perishable documents, or the fleeting testimony of witnesses.
I cannot doubt therefore that judgments quando acciderint fall within the plain terms and meaning of the statute, as well as all other judgments upon which no execution has ever issued; and that if there be any difficulty in the construction of the statute, it is as to the period of time from which the limitation begins to run, whether from the date of the judgment or the time when assets come to the hands of the executor or administrator : and here it is that we must advert to the nature of the judgment.
A judgment de bonis testatoris is compounded of two elements, the recovery against the estate represented by the defendant, and his responsibility for the assets. The first is irrespective of the condition or amount of the assets; the last is dependent upon the assets which have come to his hands to be administered. If the demand in the action be just, he cannot resist the recovery of it against the estate because he has no assets to satisfy it; and on the other hand, he has a right to relieve himself from personal liability, direct or indirect, by shewing that he has fully administered. And if he does so, or the fact be admitted by the plaintiff, how is judgment to be rendered, so as to establish the debt against the estate, and at the same time his full administration of the assets up to the time of his plea ? The difficulty arises from his uniting in his own person his individual with his representative interest, so that a judgment against the estate must be rendered through him ; and that difficulty is solved by the plaintiff’s taking a recovery of his debt against the defendant in his representative character, to be levied of the goods and chattels which were of the decedent at the time of his death, and which since the plea pleaded have come, or which shall thereafter come, to*his hands to be administered. This is a subsisting judgment against the estate, and maybe enforced not only against the same executor or administrator, but against any subsequent personal representative of the estate.
The plea of fully administered therefore, although both in form and substance a plea in bar, is one of a peculiar nature. It can be pleaded only by an executor or administrator, and presents no answer to the justice of the plaintiff’s demand ; but only serves to shew that the defendant is not accountable there*184for, having no assets of the estate in his hands wherewith to pay it. It is no bar to the recovery of the debt against the estate, but to the present accountability of the then representative. The plaintiff is therefore not bound to take issue upon it, but may admit it to be true, and take his judgment notwithstanding, with a direction that it shall be paid out of assets that may thereafter come to the defendant’s hands. If this were not so, and the plaintiff prevented from establishing the justice of his demand by a judgment. against the estate, the absurd consequence would follow of absolving the estate therefrom forever, because of its present inability to make payment.
The leading authority upon this point is Mary Shipley’s Case, 8 Co. 134 a, which was debt on a bond against the executors of the obligor : the defendants pleaded fully administered, and so nothing in their hands: replication that they had assets : the jury found assets in part; and judgment was given for the whole debt, damages and costs ; which judgment was affirmed in the Exchequer chamber ; for upon the bar which is nothing in their hands, the plaintiff might have prayed judgment immediately ; for thereby the debt is confessed, but that she cannot have execution until the defendants have goods of the deceased.
*In Dorchester v. Webb, Cro. Car. 372, the property of the judgment in Mary Shipley’s Case was not denied, but the soundness of the opinion upon which it was founded disputed. The report states it was contended that when an executor pleads fully administered the plaintiff may take judgment presently, and expect when the defendant hath assets, for he remains always executor and may have goods of the testator ; and for that purpose was cited Mary Shipley’s Case, that if an executor pleads fully administered the plaintiff may take judgment presently, and expect when he has assets in his hands. On the other hand, the law as stated in. Mary Shipley’s Case was denied, and the difference contended to be that when it is found that the'defendant has some assets, though of little value, so^s he hath not fully administered, the plaintiff shall have judgment of the entire debt, but he shall not have execution but of as much as is found, and shall not be barred of the residue, and if more assets come afterwards he may have scire facias to have execution thereof; but if it be found that he hath fully administered, or if it be so pleaded and confessed, then judgment shall be against the plaintiff. And so the Court held the law to be.
But in Noel, &c. v. Nelson, 2 Wms. Saunders, pt. 2d, p. 214, 226, the principle of Mary Shipley’s Case was affirmed. The action was debt against executors upon a bond of their testator: the defendants pleaded plene administravit, on which plea the plaintiff prayed his judgment of the debt to be of assets quando acciderint according to the rule in Mary Shipley’s Case ; and the Court gave judgment accordingly ; on which judgment the executors brought a writ of error, and insisted on the matter in law, that such judgment as this ought not to be given, notwithstanding the opinion in Mary Shipley’s Case ; and of such opinion was *Twysden, Justice, strongly, who denied the said opinion in Mary Shipley’s Case to be law, and relied much on the opinion of Jones, Bushby and Croke, in Dorchester v. Webb, where Mary Shipley’s Case is denied by them to be law : but Kelynge, Chief Justice, Rains-ford and Morton, Justices, held the judgment to be good ; and afterwards a precedent being produced where such a judgment was entered according to the opinion in Mary Shipley’s Case, Twysden agreed that the judgment should be affirmed. And the reporter gives the pleadings and judgment in the case, p. 216, which judgment is as follows :
“And the said W inasmuch as the said M and T by their said plea do not deny but that the said writing now here into Court brought is the deed of the said N the testator, nor that the said debt in the said writing specified is a true and just debt, yet unpaid and not satisfied, or otherwise discharged ; and inasmuch as the said W cannot deny but that the said M and T have not, nor on the day of the suing out of the original writ of him, the said W, nor ever since hitherto, had any goods or chattels which were of the said N the testator, at the time of his death, in their hands to be administered, prays judgment of his debt aforesaid by him above demanded, to be levied of the goods and chattels which were of the saidN at the time of his death, and which shall hereafter come to the hands of the said M and T to be administered : therefore it is considered that the said W recover against the said M and T his debt aforesaid, to be levied of the goods and chattels of the said N, the testator, at the time of his death, and which shall hereafter come to the hands of the said M and T to be administered.” And the like form of judgment will be found in 2 Eilley’s Ent’s 505, and in 2 Eomax Ex’ors 446.
The principle of Mary Shipley’s Case, and of Noel v. Nelson, has never since the latter case been questioned, -and it is equally applicable whether the plaintiff confesses the plea of fully administered, or takes issue upon it and it is found against him, in the whole or in part. All the cases agree that where the jury find assets in part, the plaintiff shall have judgment for the residue also, to be levied quando. And in Dorchester v. Webb, the plaintiff’s confession of the plea was very propérly considered as standing upon the same footing as a verdict thereupon for the defendant, though the Court erred in the conclusion that there ought in either case to be judgment against the plaintiff. The defence is pleaded in bar of the action, and ought to have the same result whether found or admitted to be true. No reason can be assigned for a distinction, except that in the case of a verdict the defendant has been subjected to costs at the trial, which is no reason for defeating a just debt, but only for allowing such costs to the defendant. And a judgment for the plaintiff quando, after verdict for the defendant upon the plea of fully administered may very *185properly be regarded as in the nature of a judgment non obstante veredicto.
The case of Timberlake v. Benson’s adm’r, 2 Virg. Cas. 348, serves to shew that according to the Virginia practice the plaintiff has judgment quando acciderint, as well where there is a verdict for the defendant upon the ■plea of fully administered, as where the plaintiff confesses the plea to be true. The General court there held that where an administrator pleads the single plea of fully administered on which the plaintiff takes issue, and the issue is found for the defendant, the verdict is conclusive proof that the defendant has not present assets ; but as the plea is an acknowledgment that the intestate is indebted to the plaintiff, and the verdict is not conclusive that the defendant may not have future assets, the judgment ought to be rendered for the plaintiff for his debt and costs, to be levied of the goods of the intestate quando acciderint; but as the defendant *has supported his issue, and to maintain the only plea which he pleaded has been subjected to costs, he ought to have a judgment for the general costs of his defence against the plaintiff. And that where the defendant pleads non assumpsit and fully administered, and issue is taken on both, and both tried, and the first issue is found for the ■ plaintiff, and the second for the defendant, the judgment ought to bei for the plaintiff, as in the former case ; because as he is obliged to come into Court to establish a debt due to his intestate, he ought to recover not only his debt but his costs also out of the future assets ; but as the defendant has supported his second plea, he ought to have a judgment for the costs which he has expended in supporting that issue, that is for his separate costs of that issue.
In Burnes v. Burton, 1 A. K. Marshall, Kent’y E. 369, it was held that on a ■ plea of fully administered, if the plaintiff takes issue upon the plea of fully administered, and it is found against him, he must pay costs, but yet have judgment quando acciderint.
In Miller v. Towles, 4 J. J. Marshall, Kent’y R. 255, in an action of covenant, on a verdict for the defendant on the plea of fully administered, it was held to be error to render judgment in bar of the action; as the issue acknowledged the justice of the plaintiff’s demand, it should have been in his favour for the damages, to be levied quando acciderint.
Wilson v. Hurst, Peters’ Cir. Ct. R. 441, was a scire facias against executors on a judgment against their testator; the defendants pleaded payment and no assets: there was a verdict for the plaintiff on the plea of payment, and for the defendant on the plea of fully administered; and the plaintiff prayed judgment quando acciderint, which was directed.
The question whether assets or not is the same after a judgment quando that it was before, except that the *range of it is more limited in point of time. It is open to the like pleadings, evidence, verdict and judgment. See the proceedings in a scire facias, 2 Wms. Saunders, pt. 2, p. 217-222, upon the judgment quando acciderint in Noel, &c. v. Nelson. The defendant may plead plene administravit, 2 Tidd. Prac. 1046, and shew the due administration of the assets which have come to his hands since the former judgment and plea; which question involves not merely the enquiry whether goods and chattels which belonged to the decedent did come to the hands of the executor, but also his administration of them according to law. It is the balance only due from him after allowance of the proper credits which constitutes the assets in his hands. And the defendant might plead and prove judgments recovered against him on debts of higher dignity, and paid or outstanding, to a greater amount.
It is argued that the quando of such a judgment has the same effect as the stay of a judgment by a writ of error, or an injunction, or a cessat executio ; during which the statute cannot operate. But the reason is that during the writ of error, or injunction, or cessat, an action of debt or scire facias cannot be brought upon the judgment. This it has been shewn is not so in regard to a judgment quando acciderint, upon which scire facias or debt will lie immediately; and that if there be still no assets in the hands of the executor, the judgment may be revived or renewed by the like judgment. And there is direct authority to the point where assets are found as to part only, 2 Wms. Kx’ors 1231, and there is equal reason where none are in hand.
In the cases put of a writ of error or injunction, the judgment is superseded, and has no effect during the pendency of the proceeding. In the case of a cessat executio, the judgment is in effect superseded, for the suspension is absolute and unconditional, and renders it substantially a judgment in futuro. But a judgment *quando acciderint, so far as the estate is concerned, is immediate, absolute and unconditional, and even as regards the executor the direction as to the levy is not so much a condition as a consequence of his having already accounted for the previous assets. And we must not suffer ourselves to be misled to the supposition that the judgment is conditional, by the appellation given to it with more brevity than accuracy.
Indeed, the whole argument of the appellee’s counsel upon this branch of the case arises from his treating the judgment quando acciderint as conditional; and hence he has urged that the statute of limitations does not begin to run until assets have come to the hands of the executor. By this must of course be meant assets properly applicable to the discharge of the judgment; for a plea that no assets at all have come to his hands would not present the bar of the statute, it being at most a denial, instead of an admission, of a once existing cause of action. How then would a plea of the bar of the statute according to his view of it be framed. It would have to ,set forth the assets received by the executor since the judgment, his credits against the same for the payment of debts *186entitled to priority, the date at which a balance against him ought to have been struck, and that more than ten years have elapsed since that time; thus presenting a plain breach of trust on the part of the executor. This would be an anomalous plea of a statute of limitations, and a strange departure from the one in question, which provides that no action or scire facias shall lie upon a judgment but within ten years from its date; a statute moreover designed primarily, in actions against executors, for the protection of the estate, and operating only incidentally and consequentially for the protection of the executor.
A plea of the statute in general terms, that the cause of the scire facias or action did not accrue within ten years would be idle, if no assets at all have come to the *hands of the executor since the judgment; and unavailing, if in point of fact assets have so come to his hands; for the statute could not run during the period of administration of the assets, but only at its close, when a balance struck would shew assets, still remaining in the hands of the executor, from which time only, if at all, could the statute avail anything. But it could not avail anything in any state of the assets; for an executor always continues executor and trustee for the creditors, and cannot plead the statute in exoneration of his personal responsibility for the assets; and the exoneration of his testator’s estate by limitation of the statute has reference to the date of the judgment, and not to the accrual or administration of the assets.
It will be seen that the statute is permissive as well as negative. It provides that judgments may be revived or renewed by scire facias or debt brought within ten years next after the date of the judgment, and not after; and upon the point we are now considering it must be taken that judgments quando acciderint fall within the meaning of the law. Now^the statute ought to have a fair and liberal interpretation, so as to allow the revival or renewal contemplated, by the modes prescribed, within the period limited, and to prevent it afterwards ; and this cannot be done otherwise than by permitting the plaintiff to shew assets in hand if he can, and if he should fail, to place his case in a condition to shew it thereafter. And we must not be deterred from a fair and wholesome construction of the statute by supposed formal difficulties.
It is urged that a scire facias or declaration would be wrong without the statement that since the judgment quando assets have come to the hands of the defendant; and that the statement may be denied, and if so must be proved. But the suggestion in the scire facias is not merely of assets but of sufficient assets ; and it cannot be denied that if assets to the amount of *one dollar or even one cent have come to his hands, the revival may be accomplished: then why not by the plaintiff’s admission there are none, with a prayer of judgment quando ? Surely a distinction which _ is to defeat forever a debt acknowledged to be justly due, cannot be founded on such a nicety. And such must be the inevitable result; for the plea would be in bar of the scire facias or action, and not in abatement. The question whether an executor has assets remaining in his hands must in most cases be one of mere probability. Every action, however, against an executor or administrator, is upon that assumption ; and it would be very remarkable if the revival or renewal of a judgment quando should be defeated by a mistake or failure of proof of the very nature which led to the judgment itself.
The reason why a scire facias or a declaration upon a judgment quando must state that assets have come to the hands of the defendant, besides the formal one of conformity with the description of the judgment, is that by the omission the plaintiff encounters an estoppel. The j udgment itself is conclusive as to the defendant’s full administration up to that time, and he has a right to plead fully administered since. It must therefore appear that the plaintiff is not going behind the judgment in search of assets.
The case cited from Buller’s N. P. 169, of Taylor v. Holman, was this: “In debt on a judgment against the defendants as executors, suggesting a devastavit, in the original action the defendants had pleaded plene administravit, and the plaintiff had taken judgment of future assets quando acciderint. Eord Mansfield would not allow the plaintiff to give any evidence of assets come to the hands of the defendants before the judgment, for the plaintiff has admitted that the defendants fully administered to that time: And there being no evidence of any assets come to his hands since, the *plaintiff was nonsuited. Taylor v. Holman, at Guildhall Sittings after T. 1764.”
The case is not in point, it not being debt to revive the judgment quando, but debt for a devastavit, by which the plaintiff abandoned the pursuit of the estate, and sought to subject the executors personally. It was moreover a nonsuit, which must have been with the plaintiff’s acquiescence, the Court having no power, even in England, to direct a nonsuit after appearance, without his consent. Watkins v. Towers, 2 T. R. 275.
Another case cited, of Mara v. Quin, 6 T. R. 1, was this: The plaintiff sued out “a scire facias upon a judgment in an action of debt against the defendant as executrix of Quin. After stating the proceedings in the former action, that the defendant there pleaded other judgments recovered and plene administravit, on which the plaintiff prayed, and the Court adjudged, that his debt should be levied of the goods and chattels of the testator which should thereafter come to the hands of the defendant to be administered, after satisfaction of the other judgments, &c., it proceeded to state that divers goods, &c., of the testator, sufficient to pay as well the other judgments as the plaintiff’s, had come to and were in the hands of the defendant to be administered, &c., (without saying that those goods had come to the defendant’s hands since his judgment,) and prayed exe*187cution against the defendant to be levied of those goods, according to the form and effect of his said recovery, &c. The defendant pleaded (inter alia) that after the plaintiff’s judgment no goods, &c., of the testator had come to the defendant’s hands to be administered, &c. To this the plaintiff replied that divers goods, &c., had come to the defendant’s hands, &c., (without adding ‘since the former judgment, &c.’), and the defendant demurred.”
In that case, it will thus be seen, that the plaintiff demurred to the defendant’s plea, that since the judgment *no assets had come to his hands to be administered; which demurrer was in the face of the estoppel; and in the argument the plaintiff placed the case upon the ground that he had a right to go behind the judgment to shew prior assets. The plaintiff was unavoidably defeated ; and the question is not at all presented, whether he might not have confessed the plea, and taken judgment when assets.
The case of Lidderdale v. Robinson’s adm’r, 2 Brock. R. 160, has no application. The question whether the judgment was barred by the statute was not and could not be made, for it was not pleaded, and it seems probable the plaintiff, in consequence of his residence beyond sea, came within one of the exceptions of the statute.
It seems to me, therefore clear that whatever may be the state of the assets, or although there may be none, a creditor is entitled to recover judgment against the estate, and keep the same in force by revival or renewal thereof; and that this may always be accomplished by a quando acciderint, the defence of fully administered being personal to the existing executor or administrator, and limited to the time of pleading it, and no bar in effect to the action itself, whether that be founded upon the original demand, or upon the j udgment.
On the other hand, I cannot doubt if a creditor sleeps upon his judgment quando acciderint for ten years from its date, instead of taking the proper steps to enforce, revive or renew it, the same is barred by the statute of limitations, as completely as if the judgment were a general one, to be levied of the goods of the testator or intestate, without restriction. If this were otherwise, then as it has been shewn that a plaintiff may at his pleasure confess a plea of fully administered, or no assets, and take judgment quando acciderint, it would *be always in his power, by his own act, to place his demand beyond the reach of the statute.
If it should be thought hard that assets accruing after the ten years cannot be reached for satisfaction of the judgment quando, the answer is, that the same result follows other judgments de bonis testatoris, without regard to the fact whether there be assets in hand within the ten years or not, and also all judgments against persons individually, whether the defendant be solvent or insolvent, within or during that period. It is in vain to say that the want of assets furnishes a presumption against the satisfaction of the judgment. The Legislature has not deemed it sufficient, and in fact it might often prove fallacious, for the evidence of assets, as well as of release or payment, may be lost, and payment may have been made by the executor in anticipation of future assets, or by some person, or out of some fund, collaterally bound for the debt. It is a wise policy, and cures a defect of the common law, to close the door after such laches and lapse of time, against all such enquiries; a policy of which the present case is an apt illustration. The judgment in question was recovered in the year 1802, by the executors of the original creditor, on a debt contracted in 1798, against the executor of the original debtor, who died in the year 1800. The surviving executor plaintiff in the judgment, died about the year 1810. and the executor defendant therein, not until the year 1827. And this suit to enforce the judgment was brought in the year 1840, against the executor of the defendant in the judgment and the sheriff administrator de bonis non of the original debtor, by the administrator de bonis non of the original creditor, he having qualified as such in the year 1831, After such lapse of time, deaths of parties and shifting representations, what security is there for a correct adjudication upon the merits of a case ; and *is any thing more manifest than the wisdom of a complete statutory bar ?
In the construction of a statute, where a case falls within the words and within the mischief, upon what principle are we to search for an intent of the Legislature beyond and in conflict with both ? Here the application of the statute of limitations to the judgment in question is resisted, in the first place, upon the ground that such a judgment is not within the meaning of the Legislature, and in the next place, upon the ground that if it be, the limitation does not take effect until ten years after assets have come to the hands of the executor. The first proposition imports, that though assets to any amount have come to the hands of the executor within a week from the time of the judgment, the plaintiff may lie by for half a century, and then proceed by scire facias or debt to revive the judgment, though such assets have been entirely administered. The second proposition imports, that within ten years after assets to the amount of a single cent have come to the hands of the executor, though twenty years after the date of the judgment, the plaintiff may still proceed to revive his judgment. And the reasoning which results in these propositions is derived from the state of the law existing before the enactment of the statute, the evils of which it was the purpose of the Legislature to redress.
I can understand very well why the statute is not applicable to a judgment where the plaintiff cannot revive by scire facias or debt; 'but I cannot understand why it should not apply, merely because the plaintiff cannot sue out execution. The cases relied on, are all cases which occurred in reference to the capacity to sue out execution, after the expiration of a year from the judgment, and *188no execution or continuance on the roll within that time. And in that aspect they have no bearing upon the question, whether debt or scire facias *will lie either before or after the year expires. Most of them it is true, in another aspect, serve to repel the statute of limitations, but it is only because of the incapacity to maintain debt or scire facias; as where occasioned by injunction or writ of error, or cessat executio. The case of execution stayed by indulgence or agreement, is no replication to the bar of the statute, for it neither suspends the capacity to maintain debt or scire facias, nor falls within any of the savings of the proviso. Indeed, a replication of an express promise to pay the debt is bad. Day, ex’or of Yates v. Pickett, 4 Munf. 104.
The true question, therefore, is reduced to this, whether a judgment quando acciderint may be revived by scire facias or debt, without proof that assets have come to the hands of the executor; or more properly to this, whether although such a judgment may be so revived if assets to one cent’s value have come to his hands, yet if that cent be wanting, and the verdict of the jury so finds, there must be judgment against the plaintiff thereupon, and his debt barred forever. That such must be the effect of such a verdict and judgment results from the rules of pleading, and is expressed by the Judges in Brickhead v. The Archbishop of York, 1 Hobart 197.
In regard to judgments quando acciderint against heirs bound by the obligations of their ancestors, I do not perceive that they throw any light upon the present case, and when the question arises, it will be time enough to consider whether, in the construction of the statute, they do not equally fall within the terms and the mischief, or whether there is a diversity arising out- of the nature of the subject, to wit, realty, or out of the relation of ancestor and heir, making the obligation the personal debt of the latter. Davy v. Pepys, 2 Plowd. 440. But as to the case cited of a reversion or remainder expectant upon an outstanding estate for life, *pleaded specially as the only assets by descent, and immediate judgment to be levied of the same when the life estate falls in, it seems to me clear that it differs widely in principle and effect from a general judgment quando, whether against heir or executor ; inasmuch as it is a specific appropriation, and impounding, as it were, of the particular subject for the satisfaction of the judgment, and the lien by matter of record is perfect, as much so as that of a mortgage, and of course there can be no room for the application of the statute.
My opinion is, that the judgment sought to be enforced in this suit, is barred by the statute of limitations ; and therefore, without considering the other questions discussed in the argument, I think the decree of the Circuit Court ought to be reversed and the bill dismissed.
ALBION, J., concurred with Judge Daniel.
Decree affirmed.
JUDGMENTS.
I. Definition, Nature and Kinds of Judgments.
A. Definition.
B. Essential Elements.
O. General Nature.
II. Requisites of a Valid Judgment.
A. What Daw Governs.
B. Jurisdiction.
C. Parties.
1. Death of Party.
D. Joinder of Parties.
E. Pleadings and Issues.
1. Necessity of Declaration.
F. Issue Must Be Joined—General Rule.
G. Determination of All Issues.
H. Conformity to Pleadings and Proof.
1. Conformity to Verdict.
J. Non Obstante Veredicto.
III. Eorm of Judgment.
A. Certainty.
B. Conditional Judgments.
IV. Interlocutory and Final Judgments.
V. Judgments in Rem.
VI. Interest.
VII. Rendition and Entry of Judgments.
A. Certainty as to Parties, Amounts, Dates.
B. Costs.
C. Coin and Currency.
D. Entry Nunc Pro Tunc.
E. Entry in Vacation.
VIII. Judgments on Awards.
A. Entry.
B. Death of Party after Submission.
IX. Judgments on Appeal.
A. Remand without Decision.
B. Modification-and Amendment.
1. Time of Amendment—General Rule.
C. Clerical Errors or Mistakes.
D. Writ of Error Coram Nobis.
E. Reversal—Grounds.
1. Extent of Reversal.
2. Award of Damages on Affirmance.
X. Judgments in Criminal Cases.
A. Presence in Court.
XI. Actions on Judgments.
A. Pleas.
1. Nul Tiel Record.
2. Nil Debet.
XII. Equitable Relief against Judgment.-
A. Grounds of Relief—General Rule.
B. Bills for New Trials and Injunction.
1. Defences Not Available at Daw.
2. Defences Available at Daw or in Equity.
C. Degal Defences.
1. Matters of Excuse.
'2. Newly-Discovered Evidence.
D. Void Judgments.
E. Bill for Injunction.
1. Satisfaction before Execution Devied.
F. Equity Acts Only in Personam.
G. Extent of Relief.
H. Hearing and Final Decree.
XIII. Judgments by Default.
A. In What Actions Applicable.
1. Judgments by Default under Statutes.
B. Parties to Default.
1. In Whose Favor.
a. Deceased Plaintiff.
*1892. Against Whom.
a. Parties Not Named in Writ or Declaration.
b. Infants.
c. Deceased Defendant.
d. Executors.
3. Joint Parties.
4. Jurisdiction of Person.
a. Appearance and Defence as Waiver.
b. Constructive Service.
•C. When Default May Be Taken.
1. Entry.
ü On Defendant’s Failure to Plead.
® Pleading of Defendant Undisposed of.
^ Statute of Jeofails.
O Writ of Inquiry.
M Application for Relief.
1. Causes for Setting Aside Judgment by Default.
2. When Motion to Set Aside Acted on.
3. Admission of Pleas.
L Relief by Proceeding in Equity.
1. Appeal from Defaults,
a. Record on Appeal.
XIV. Operation and Effect.
A. Res Judicata—General Rule.
1. Parties and Privies.
a. General Rule as Regards Parties.
b. General Rule as Regards Privies.
c. Representative Parties.
d. Joint Trespassers.
(1) Former Judgment.
2. Issues.
a. Must Be Directly in Issue.
b. What Might Have Been Litigated.
c. Identity of Issues.
d. Must Be on the Merits.
e. Judgments Must Be Final.
3. Courts in General.
a. Probate Courts.
b. Appellate Courts.
4. Retraxit.
5. Nonsuit.
6. Dismissal in Equity.
7. Evidence.
a. Chancery Canse as a Title Link.
B. Lien of Judgment—Origin and History.
1. Writ of Elegit.
2. Nature of the Lien.
3. Certain Essentials.
a. Specific Sum of Money.
b. Docketing of Judgments.
4. Interests Subject to Lien.
5. Amount of Lien.
6. Territorial Extent.
7. Commencement and Precedence of Lien.
a. Lands Subject to Lien in Inverse Order of Alienation.
b. Doctrine of Relation.
c. Judgments Obtained at Same Time.
d. Equitable Interests.
e. Superior Rights of Third Persons.
8. Expiration or Extinguishment of Lien,
a. Extension of Lien.
(1) Issuance of Execution.
9. Satisfaction, by Rents and Profits, in Five Years.
10. Who May Maintain Suit to Enforce.
11. Parties to Suit.
XV. Collateral Impeachment.
A. In General.
B. Grounds of Attack.
C. Who May Impeach.
XVI. Conclusiveness of Judgments.
XVII. Arrest of Judgment.
A. Grounds of Arrest.
XVIII. Satisfaction.
A. Payment to Whom.
B. Medium of Payment.
C. Proof of Payment.
XIX. Foreign Judgments.
A. Judgments of Sister States.
XX. Construction.
Cross References to Monographic Notes.
Appeals.
Decrees, appended to Evans v. Spurgin, 11 Gratt. 615.
Estoppel, appended to Bower v. McCormick, 23 Gratt. 310
Executions, appended to Paine, Surv., etc., v.
Tutwiler, 27 Gratt. 440.
Injunctions, appended to Claytorv. Anthony, 15
Gratt. 518.
Judgments by Confession, appended to Richardson v. Jones, 12 Gratt. 53.
Jurisdiction.
L DEFINITION, NATURE AND KINDS OF JUDGMENTS.
A. DEFINITION.
Judgment of His Peers,—A judgment of his peers means a trial by jury. Jelly v. Dils, 27 W. Va. 274.
“A j udgment is the ‘decision or sentence of the law, pronounced by a court or other competent tribunal, upon the matter contained in the record.’ When, after the facts are found, the court pronounces the decision upon them, that is the judgment. That is the judicial act,—the act of the court as a court speaking the sentence of the law, whereas the entering it in the roll, the docket, or the order or judgment book, is an act of a different character, a clerical or ministerial act, one to constitute merely a memorial to attest that the judicial act of pronouncing j udgment was in fact done. ’ * Biiannon, J., dissenting. McClain v. Davis, 37 W. Va. 330, 16 S. E. Rep. 629.
But a sentence of a court pronounced against a party without hearing Mm or giving him an opportunity to be heard is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. Stephens v. Brown. 24 W. Va. 234; Haymond v. Camden, 22 W. Va. 180.
“Judgments” Preclude “Decrees” under Statute.—It is provided by Code of Va. 1873, ch. 182, sec. ], that, “a decree for land or specific personal property, and a decree or order requiring the payment of money, shall have the effect of a judgment for such land, property or money, and be embraced in the word “judgment.” Hutcheson v. Grubbs, 80 Va. 251.
B- ESSENTIAL ELEMENTS.
De Facto Judges—Validity of Judgment.—The judgments and decrees of the judges of the court of appeals, who were in office under military appointment when the state was restored to the Union, holding over and continuing to exercise their office, are valid and binding. Griffin v, Cunningham, 20 Gratt. 31, and note.
Thus, where a judge by military appointment in Virginia, held a court and tried a criminal after the admission of the state into the Union, his act was held to be valid. Quinn v. Com., 20 Gratt. 138, and note.
Incumbent in Office.—But it was held in Morriss v. Ins. Co., 85 Va. 588, 8 S. E. Rep. 383, that there could *190be no judge defacto in any case where there is an incumbent in the office.
Rendition before Commencement of Judge’s Term.— Where a judge was properly elected, and, believing that his term commenced immediately, proceeded to hold court, it was held that although the term of his predecessor had not then expired, he was a judge de facto, and his judgments were as valid and binding as if he had been a judge dejure. Me-Craw v. Williams, 33 Gratt. 510.
Constituent Parts of a Court.—“In every court, there must be at least three constituent parts, the actor, the reus, and the judex; the actor or plaintiff who complains of any injury done, the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arising upon thatfact, and, if any injury appears to have been done, to ascertain and apply the remedy.” 4 Min. Inst. (3d Ed.) p. 195.
Definiteness.
Judgment Subject to Unascertained Credit.—A judgment ought not to be entered on a bond for the sum of money, “subject to a credit for a hogshead of tobacco” without ascertaining its value; but the amount of such credit should in the first place, be ascertained by a writ of inquiry, and judgment should be rendered for the balance. Early v. Moore, 4 Munf. 262.
But it seems, that a verdict for a certain sum of money, with interest from a day specified, subject to a credit (without saying on what day such credit is to be applied) is not so uncertain as that the plaintiff cannot take judgment upon it, and a judgment, in such case, for the damages aforesaid, in form aforesaid assessed, sufficiently follows the verdict. Lanier v. Harwell, 6 Munf. 79.
C. GENERAL NATURE.
Sentence of Law.—A judgment, whether in a criminal or civil case, is the sentence of the law pronounced by the proper tribunal, as the result of the proceedings instituted for the redress of injury or the punishment of offences. Pifer’s Case, 14 Gratt. 710.
Whether the judgment be the act of the court, or be entered up by the clerk under the statute, the effect is the same. In either case it is the act of the law, and until reversed by the court which rendered it or by a superior tribunal, it imports absolute verity, and is as effectual and binding as if pronounced in a trial upon the merits. Neale v. Utz, 75 Va. 480.
“As the judgment is entire, and when a verdict has passed, is the sentence of the law upon the result of the proceedings instituted as aforesaid, it can make no difference whether that sentence is merely for the fine assessed by the verdict, or combined with it and superadded to it, is accompanied with imprisonment; which punishment the law affixes to the finding of the fact, when in the exercise of the legal discretion of the court it is deemed proper to impose it. It becomes, when rendered, an entire judgment upon the facts as found, and in the language of the books finishes the proceedings; and it would seem to follow that as the judgment is the determination of law upon the verdict or particular state of facts, it cannot be divided, and a part of the final sentence be pronounced at one term, and after having to that extent passed entirely from the control of the court, that it should at a subsequent period, take up the same finding and pronounce another sentence in addition to the one already entered upon the same state of facts. Neither judgment would be interlocutory.” Pifer’s. Case, 14 Gratt. 710.
Reasons for Judgment.—Every court ought to. state, on record, legal grounds for their judgment; especially subordinate courts, liable to have their judgments reversed in a superior court. Preston v. The Auditor, 1 Call 471.
But if a court give a right judgment for a wrong reason, it ought, nevertheless, to be affirmed. Newell v. Wood, 1 Munf. 555.
Statute Directory.—The clause in the constitution of West Virginia, requiring the supreme court of that state to “decide every point, fairly arising upon the record, and give its reasons therefor in writing” is directory, and does not affect the common-law doctrine of res judicata. Henry v. Davis, 13 W. Va. 230; Hall v. Bank, 15 W. Va. 323.
Certainty.—The general rule seems to be, that the judgment, being the voice of the law pronounced, by the court on the matter in controversy, should be so certain as to leave nothing doubtful or unsettled. Thus, a judgment “that the plaintiff recover damages and expenses according to law, and the rules and regulations of the society” without specifying the amount or nature of damages and expenses, is erroneous for uncertainty. Stratton v. Mutual Assurance Soc., 6 Rand. 22.
Plea of Plene Administravit.—A verdict upon an issue joined on the plea of Diene administravit, should set forth with sufficient certainty, what portion of the assets, which came to the defendant’s hands, was unadministered at the time of suing out the plaintiff’s writ. Rogers v. Chandler, 3 Munf. 65. See also, Booth v. Armstrong, 2 Wash. 301; Gardner v. Vidal, 6 Rand. 106.
Thns, a verdict which merely finds that assets sufficient to pay the plaintiff’s demand “have come”' to the defendant’s hands, without saying when, is erroneous. Gardner v. Vidal, 6 Rand. 106.
Judgment for Debt and Interest.—But a verdict and judgment which awards the debt claimed in the declaration with interest, subject to a specified-credit paid at a specified date, is certain enough. Barrett v. Wills, 4 Leigh 114.
Specific Relief at Law.—In an action for breach of a contract to deliver a certain number of shares of corporate stock, a court of law can only award damages for the failure to deliver such stock, and cannot render a judgment that the defendant shall deliver to the plaintiff so many shares of stock. Orange, etc., R. Co. v. Pulvey, 17 Gratt. 366.
Judgment Is a Contract.—A judgment is a contract of the highest nature, and an act which impairs the obligations of that contract, is unconstitutional and void. Ratcliffe v. Anderson, 2 Va. Law Jour. 744.
But a judgment founded on a tort is in no sense a contract. Peerce v. Kitsmiller, 19 W. Va. 564.
II. REQUISITES OF Á VALID JUDGMENT.
A. WHAT LAW GOVERNS.-The validity of a judgment is to be determined by the laws in force when it is rendered, and is not affected by subsequent changes therein. Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S. E. Rep. 269; Kennaird v. Jones, 9 Gratt. 190.
“If a party shows a defence valid at the time it is passed on by the court, a subsequent change in the law cannot deprive him thereof.” Currin v. Spraull, 10 Gratt. 148. See also, Arnold v. Kelley, 5 W. Va. 446.
*191Hence, where the law, as It existed at the time the verdict is rendered, provides that judgment shall be entered for the amount found with interestfrom the date of the judgment, such judgment should call for interest from its date, although the law existing at the time the judgment is ¿«¡«red provides that on verdicts judgment be rendered, with interest from the date of the verdict. Murdock v. Ins. Co., 38 W. Va. 407, 10 S. E. Rep. 777.
So also, writs of error in the court of appeals must be disposed of in accordance with the law as it existed at the time of the rendition of the judgment. It must be affirmed, if there is no error therein according to the law as it stood when the judgment was rendered, but, if erroneous, it must be reversed, aud such judgment entered as lower court ought to have entered. Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S. IS. Rep. 269.
For example, the legislature has no power to set aside a judgment, orto empower acourt to setaside a judgment, rendered before the passage of the act, no matter how erroneous the judgment may be. Arnold y. Kelley, 5 W. Va. 446, citing Griffin y. Cunningham, 20 Gratt. 31.
B. JURISDICTION—STATEMENT OF RULE — Before a court can render a valid judgment or decree it is essential that it should have jurisdiction of the person as well as of the subject-matter; if either of these is wanting all the proceedings are void. Haymond v. Camden, 22 W. Va. 181. See monographic note on “Jurisdiction.”
Error in Exercise of Jurisdiction.—“A judgment pronounced by a court having no jurisdiction is a mere nullity, not only voidable but entirely void. Such a judgment may be assailed anywhere and everywhere, m courts of the last resort, as well as in inferior courts. Wherever proceedings may be had to enforce such void judgment it may he opposed, and the jurisdiction of the court that pronounced it questioned and assailed. There is an obvious distinction between such a case where the court has no jurisdiction to enter the judgment complained of, and a case where the court, having a general jurisdiction over the subject-matter, has erroneously exercised it. In the latter case the judgment cannot be questioned in any collateral proceeding, and if not appealed from is final; but where the courtis without jurisdiction its judgment must be treated as a mere nullity, and all proceedings under it, or depending on it are void.” Withers v. Fuller, 30 Gratt. 547.
C. PARTIES.
t. Death of Party.
Judgments for or against Deceased Persons.—Judgments for or against deceased persons are not generally regarded as void on that account. Such judgments have sometimes been upheld in collateral proceedings on the ground that their rendition necessarily implied that the parties were then living, and that this implied finding in support of j udgment ought not to be allowed to be impeached by evidence not contained in the record. McMillan V. Hickman, 35 W. Va. 705, 14 S. E. Rep. 227.
Civiliter Hortuus.—Thus, where process is served upon a defendant on the day of his conviction for felony, but before the conviction has taken place, a judgment by default is obtained against the defendant while he is confined in the penitentiary, the judgment is not void, but voidable, and cannot be assailed collaterally in a court of equity, or elsewhere. Neale v. Utz, 75 Va. 480.
No Suggestion on Record.—Where process has been regularly served on a defendant, and there is no appearance, and the defendant dies before judgment, and his death is not suggested on the record, and after his death judgment is rendered against him, such judgment is not void but voidable, and cannot be collaterally attacked. Kingv. Burdett, 28 W. Va. 601; Evans v. Spurgln, 6 Gratt 107. See also, ch. 134, sec. 1 of the Code of West Virginia.
Death of One of Several Plaintiffs.—The fact that a sole plaintiff, or one of several plaintiffs, is dead at the time of the institution of an action, such death not appearing on the record, does not render a judgment therein void, hut only erroneous, and such judgment is a lien on real estate. Watt y. Brookover, 35 W. Va. 323, 13 S. E. Rep. 1007; Kingv. Burdett, 28 W. Va. 601,
Judgment Constitutes a Lien,—Where suit is instituted in the name of a party who is dead at the time the suit is brought, and process is duly served upon the defendants, who suffer judgment to be rendered against them without pleading the death of the plaintiff in abatement in proper time during the pendency of the suit, the judgment so obtained is not absolutely void, but is erroneous, and until reversed in one of the modes prescribed by law, constitutes a lien upon the real estate of the defendant, and may be enforced as other judgment liens, and is not subject to collateral attack. McMillan v. Hickman, 35 W. Va. 705,14 S. E. Rep. 227. See infra, this note “Lien of Judgment.”
Error, How Corrected.—Where the fact of death is, apparent in the record of the judgment, its rendition would be error of law, to be corrected by appellate process; and, where it does not appear in the record, but is to be shown aliunde, it is called error in fact, to be corrected at common law by writ of error coram nolis; but now, under Code of W. Va. 1889, ch. 135, sec. 1, it is corrected by motion in lieu of that writ. Watt v. Brookover, 35 W. Va. 323, 13 S. E. Rep. 1007; Williamson v. Appleberry, 1H. & M. 206.
Motion.—A judgment against a defendant, who was dead at the time of its rendition, will be set aside on motion. Hooe v. Barber, 4 H. & M. 439.
D. JOINDER OF PARTIES.
Common-Law Rule—On Contract.—itis a well-established rule of the common law, that the plaintiff upon a joint contract must sue all the joint contractors, and bring all of them before the court, and mature this cause against all, or if any could not be brought before the court he must proceed to outlawry against such defendants before he can obtain a judgment against any of them, and he must recover a joint judgment against all the defendants. Hoffman v. Bircher, 22 W. Va. 587; Carlon y. Ruffner, 12 W. Va. 297; Beazley v. Sims, 81 Va. 644.
In a joint action upon contract, the plaintiff must have judgment against all the defendants before the court, or he can have judgment against none. Jenkins v. Hurt, 2 Rand. 446; Early v. Clarkson, 7 Leigh 88; Baber v. Cook, 11 Leigh 606.
Contract Joint or Joint and Several.—A l common law in a joint action against several parties, there can be but one final judgment, and it must be for or against all the defendants; and the rule is the same, whether the contract sued on is joint or joint and several, or whether the action is founded on several and distinct contracts, as in a joint action under the statute against the maker and indorser of a note. Steptoe v. Read, 19 Gratt. 1; Moffett v. Sickle, 21 Gratt. 280; Muse v. Bank, 27 Gratt. 252; Gibson v. Beveridge, 90 Va. 696, 19 S. E. Rep. 785.
*192But in an action upon, the joint contract of three defendants, the plaintiff, to sustain his action, must prove that all three joined in the alleged contract; for if it appear that one of the defendants was not a party to the contract, though the other two were, the plaintiff must fail in this joint action. Bohr v. Davis, 9 Leigh 30.
In an action on a contract against two defendants, though one of them confesses a judgment, if the other proves a defence that goes to the foundation of the entire contract sued on, there must be final judgment in favor of both defendants. Steptoe v. Bead, 19 Gratt. 1.
“Where all the joint defendants are before the court, and the action as to any of them is not barred by any defence personal to any of such defendants, and one of such joint defendants in court confesses judgment in the action, and the action is further proceeded in against the other joint defendants, the court cannot enter a.final judgment upon such confession, and if it does in fact enter up a formal judgment thereon such formal judgment entered under such circumstances is a nullity, nor does such formal entry of such j udgment acquire any validity because the plaintiff agreed to accept the same, unless at the same time he discontinues his action against the other defendants. As such cognovit actioncmiidLS none of the force or effect of a judgment while the action is waiting the trial of the issues as to the other joint defendants, it is wholly immaterial, whether the issues be tried at the same term at which such confession of judgment is entered, or at any subsequent term, for until the trial of the issues as to the other defendant, the confession awaits the final judgment upon the verdict, jointly against all defendants, or none, notwithstanding such cognovit actionem and the formal judgment thereon against the defendant who confessed said judgment. When such confession has been made and the issues are tried as to the other defendants it is the duty of the court to enter judgment upon the verdict jointly against all the defendants, or against none of them.” Hoffman v. Bircher, 22 W. Va. 551.
Exceptions to the Rule.—It is a rule of the common law, that upon joint contracts the action must be against all the joint contractors and, as a general rule, the judgment must be against all or none of them. But this is not a universal rule. When a defendant in such an action pleads matter which goes to his personal discharge, such as bankruptcy, infancy, or any matter that does not go to the action of the writ; or pleads or gives in evidence a matter which is a bar to the action as against him only, and of which the others could not take advantage, judgment may be given for such defendant and against the rest. Moffett v. Bickle, 21 Gratt. 280; Snyder v. Snyder, 9 W. Va. 415; Ohoen v. Guthrie, 15 W. Va. 104; Beazley v. Sims, 81 Va. 647; Taylor v. Beck, 3 Band. 316; Carlon v. Buffner, 12 W. Va. 297; Hoffman v. Bircher, 22 W. Va. 537. See also, Code W. Va., ch. 131, sec. 19, and ch. 125, sec. 52.
Contract Joint or Joint and Several.—The general rule at common law that in a joint action against several parties, there can be but one final j udgment, and it must be for or against all the defendants, does not apply where the plea of one of the defendants admits the contract and sets up a discharge by matter subsequent, as bankruptcy, or where he sets up a personal disability at the time of the contract sued on, as infancy. And these exceptions apply equally, whether the contract is joint, or joint and several. Steptoe v. Bead, 19 Gratt. 1; Bush v. Campbell, 26 Gratt. 403; Wamsley v. Lindenberger, 2 Band. 478.
On Tort.—In an action of trespass against eleven defendants for arrest and false imprisonment, all pleaded the statute of limitations and not guilty; upon issue joined eight were found guilty, two not guilty, and against one the jury omitted to find any verdict, whereupon a joint judgment was entered against the eight for damages and costs, and it was held proper to enter this judgment against those found guilty, as it did not appear that they were prejudiced by this omission to find a verdict. Jones v. Grimmet, 4 W. Va. 104.
Statutory Rule.—The act, Va. Code of 1849, ch. 177, sec. 19, applies to actions on contract against two or more defendants, where the defence of some of the defendants is personal to themselves, though that defence is that they never were parties to the contract sued on, as non est factum. Bush v. Campbell, 26 Gratt. 403.
Code Va. 1860, ch. 177, sec. 19, applies only to cases in which some of the defendants are discharged upon the grounds of defence merely personal; and where the ground of defence goes to the foundation of the entire contract, the case remains as at common law. Steptoe v. Beed, 19 Gratt. 1, and note. But see Choen v. Guthrie, 15 W. Va. 107.
Joint Plea of Nonassumpsit.—But Va. Code 1887, sec. 3395, which provides that “in an action founded on a contract against two or more defendants, although the plaintiff may be barred as to one or more of them, yet he may have judgment against any other or others of the defendants against whom he would have been entitled to recover, if he had sued them only” has no application where the defendants file a joint plea of nonassumpsit, and there is nothing in the record which shows expressly or impliedly, that the defence relied on is merely personal to one defendant, and does not concern his codefendant. Gibson v. Beveridge, 90 Va. 696, 19 S. E. Bep. 785.
Judgment against Those Served.—Under Va. Code, ch. 167, sec. 50, where only one of several defendants is served with process, judgment is properly rendered against the defendant served. N. & W. B. Co. v. Shippers’ Compress Cp., 83 Va. 272, 2 S. E. Bep. 139; Gray v. Stuart, 33 Gratt. 351.
Writ Served on Part.—Where a writ is served on only a part of the defendants, the others being returned no inhabitants of the county, the court may render judgment against those upon whom the writ is served. Merchants’ & Mechanics’ Bank v. Evans, 9 W. Va. 373. For Code Va., ch. 167, sec. 50, changes the common-law rule that all defendants in actions ex contractu must be summoned, before judgment can be had against any, by providing that judgment may be had against one defendant served with process, and a discontinuance as to others, or at the plaintiff’s election, subsequent service of process and judgment, in the same suit against the other defendants. Beazley v. Sims, 81 Va. 644.
Under Va. Code 1887, sec. 3396, providing that where, “in any action against two or more defendants, the process is served on part of them, the plaintiff may proceed to judgment as to any so served, and either discontinue it as to the others, or from time to time, as the process is served as to such others, proceed to judgment as to them until judgments be obtained against all,” judgment may properly be entered against several defendants on whom process is served, though return is made that another defendant is dead. Dillard v. Turner, 87 *193Va. 669, 14 S. E. Rep. 183. See also, Newberry v. Sheffey. 89 Va. 386, 15 S. E. Rep. 548.
It Is provided by Code of West Virginia, ch. 131, sec. 19, andCodeofVirginial860, ch. 177, sec. 19, “That in an action founded on a contract against two or more defendants, although the plaintiff may be barred as to any one or more of them he may have judgment against any other or others of the defendants against whom he would have been entitled to recover, if he had sued them only.” In construing this statute, the Virginia court held in Bush v. Campbell. 26 Gratt. 428, and Muse v. Farmers’ Bank, 27 Gratt. 254, that the plaintiff may bring his joint action against the defendants alleged to be jointly bound, and recover against some of them, although his action is barred by a defence which showed that no such joint contract with the said defendants ever existed. But these two cases were disapproved of by the West Virginia court in Hoffman v. Bircher, 22 W. Va. 537, they being of opinion that the rigidity of the common-law rule was relaxed by the legislature only so far as to permit the plaintiff, in his action against all the joint contractors, to recover against one or more of them, although the action be barred as to the others, where the plaintiff’s declaration shows that he could have recovered against any one of them separately, if he had sued them only, and where he proves at the trial the contract as alleged.
It seems to be well settled that under the Code of Virginia 1860, ch. 177, sec. 19, judgment may be given in favor of some of the defendants at one time and against others at another time. Bush v. Campbell, ■26 Gratt. 403, and note ; Moffett v. Bickle, 21 Gratt. 280 ; Muse v. Farmers’ Bank, 27 Gratt. 252.
Where Part Only Appear and Plead.—But it is not error to try a cause against a part of the defendants who have appeared and pleaded, and when there is an ollice judgment not set aside as to the other defendants. Hood v. Maxwell, 1 W. Va. 219.
Test as to Whether Several Judgment Is Proper.—It was held in Hoffman v. Bircher, 22 W. Va. 537, that a several judgment can be recovered against one or more defendants under the statute where the plaintiff’s declaration shows that he could have recovered against any of them separately, if he had sued, them only.
But separate judgments may be taken, during the same term tipon a joint bond. White v. Tally, 5 Call 98.
Dismissal of Scire Facias.—A judgment against one of two defendants in a joint action, is not affected by the judgment of the circuit court dismissing a .scire facias to revive the judgment, for a variance between the writ and evidence. Gray v. Stuart, 33 Gratt. 351,
Joint and Several Bond.—Where there was an action upon a joint and several bond, against six obligors, and the capias (which was against them all) was executed, on two only, it was held that the plaintiff was not bound to sue out further process against the rest, but might take judgment against those two. Moss v. Moss, 4 H. & M. 293.
Reversal as an Entirety .—A joint judgment against two parties, where the service of notice is improperly executed as against one party, is erroneous, and must be reversed as to both. Vandiver v. Roberts, 4 W. Va. 493. See also, Gregory v. Marks, 1 Rand. 386. See infra, this note, “Reversal.”
“Where a judgment is erroneous as to one and is reversed as to one, when the judgment is joint, it .must be reversed as to all. Execution must issue against all or none. This is undoubtedly the common-law rule. * * * There is a manifest distinction, however, between an erroneous judgment and avoid judgment. The first is a valid judgment, though erroneous, until reversed, provided it is the judgment of a court of competent jurisdiction. The latter is no judgment at all. It is a mere nullity. The first cannot be assailed in any other court but an appellate court. The latter may be assailed in any court, anywhere, whenever any claim is made or rights asserted under it.” Christian, J. Gray v. Stuart. 33 Gratt. 351.
See also, when a verdict is set aside as to one issue, it must be set aside in toto. Gardner v. Vidai. 6 Rand. 106.
E. PLEADINGS AND ISSUES.
1. Necessity oe Declaration.—The judgment is not void though no declaration was filed in the cause, and can only be avoided by the proper proceedings taken in due season in the court which rendered the judgment. Terry v. Dickinson, 75 Va. 475.
Sufficiency of One Count.—in an action of detinue there are two counts in the declaration. The first does not allege property in the plaintifi. The second does allege it. The court refuses to allow the defendantto demur to the several counts. The jury find expressly that the property belongs to the plaintiff. Upon this showing of facts, the court held that although the first count is defective, yet as the second is good, and as the j ury have found that the property belonged to the plaintiff, the defendant is not injured by the refusal of the court to allow the demurrer to be filed, and it is no cause for reversing the judgment. Binns v. Waddill, 32 Gratt. 588.
Demurrer.—Judgment should be given for the plaintiff where the court overrules a demurrer to the declaration and each count thereof, when it should have sustained the demurrer to the first count, because of the informal and imperfect manner in which the cause of action is stated therein. The defendant demurred to the evidence, and the facts proven did sustain the second count in the declaration, and would have sustained the first count, had it been drawn as it should have been. Stolle v. .¿Etna Fire & Marine Ins. Co., 10 W. Va. 546.
F. ISSUE MUST BE JOINED—GENERAL RULE. —It is well settled, that if a verdict has been rendered without any issue being joined, it is a mere nullity, and no judgment can be properly rendered upon it, whether it be in a civil or criminal action. Brown v. Cunningham, 23 W. Va. 109. For where trials by jury have been had without issue joined they have invariably been set aside as wholly unauthorized by law. This has been repeatedly held in Virginia before, and in West Virginia since its formation, and must be regarded as settled law, correctly announcing the common-law rule on that subiect. Stevens v. Taliaferro, 1 Wash. 155; Kerr v. Dixon, 2 Call 379; Taylors v. Huston, 2 H. &M. 161; Wilkinson v. Bennett, 3 Munf. 316; Sydnorv. Burke, 4 Rand. 161; McMillion v. Dobbins, 9 Leigh 422; Rowans v. Givens, 10 Gratt. 250; Railroad Co. v. Gettle, 3 W. Va. 376; Railroad Co. v. Christie, 5 W. Va. 325; Gallatin v. Haywood, 4 W. Va. 1; Railroad Co. v. Faulkner, 4 W. Va. 180; State v. Conkle, 16 W. Va. 736; State v. Douglass, 20 W. Va. 770; Ruffner v. Hill, 21 W. Va. 159; Preston v. Salem Imp. Co., 91 Va. 583, 22 S. E. Rep. 486.
These decisions were rendered in a great variety of cases: in actions of debt, detinue, trespass on the *194case, assumpsit, writ of right, indictments and ejectments. In Ruffner v. Hill, supra, which was an action of ejectment, the grounds of these decisions are stated thus: “By the common law the court had no right to make up the issue and impanel a jury to try it; but the parties by their pleading must first come to an issue, and then it is tried hy a jury. Where, therefore, the record shows that the parties hy their pleadings have not come to any issue, but-nevertheless the record shows that the issue was tried, this issue must either have heen illegally made up hy the court or hy blunder; it must have heen assumed to have heen made up hy the parties, when in fact it was not.”
Effect on Judgment.—If a jury he impanelled to try the issue joined when, in reality, no issue is joined, the judgment must he reversed, and the verdict set aside, notwithstanding it was against the party who failed to meet, hy a negative on his side, the affirmative matter pleaded on the other side. Wilkinson v. Bennett, 3 Munf. 314; Totty v. Donald, 4 Munf. 430; Taylors v. Huston, 2 H. & M. 161; Stevens v. Taliaferro, 1 Wash. 155 ; Kerr v. Dixon, 2 Call 379 ; Hood v. Maxwell, 1W. Va. 219.
■ If the intervention of a jury is waived and the evidence is heard hy the court and judgment rendered, without issue having heen joined, it is as equally erroneous as though the case had heen tried hy a jury. B. & O. ft. R. Co. v. Faulkner, 4 W. Va. 181 ; Stevens v. Taliaferro, 1 Wash. 155.
“In numerous cases, both in Virginia and in this state, it has heen decided that a judgment entered upon the verdict of a jury sworn to try the issue joined, when no issue is in fact joined, or where there were more than one plea, and no issue had heen joined on some one of such pleas, such judgment will, for that reason-only, he set aside hy the appellate court.” Bennett v. Jackson, 34 W. Va. 62, 11 S. E. Rep. 734; State v. Douglass, 20 W. Va. 770; State v. Conkle, 16 W. Va. 736; B. & O. R. Co. v. Faulkner, 4 W. Va. 180; Gallatin v. Haywood, 4 W. Va. 1; B. & O. R. Co. v. Christie, 5 W. Va. 325; B. & O. R. Co. v. Gettle, 3 W. Va. 376; Stevens v. Taliaferro,
1 Wash. 155; Taylors v. Huston, 2 H. & M. 161; Kerr v. Dixon, 2 Call 379; Wilkinson v. Bennett, 3 Munf. 316; Sydnor v. Burke, 4 Rand. 161; McMillion v. Dobbins, 9 Leigh 422; Rowans v. Givens, 10 Gratt. 250; Cawood’s Case, 2 Va. Cas. 527, 543.
- Thus, if a circuit court enter up a j adgment on the verdict of a jury, sworn to try the issue joined in any case civil or criminal, including-an action of ejectment where no issue has heen joined, or no plea filed hy the defendant, such judgment will for such reason only he reversed hy the appellate court. Ruffner v. Hill, 21W. Va. 152.
No Charge In Bill or Answer.—Matters not charged in the hill or averred in the answer, and not put in issue in any manner hy the pleadings in the cause, are not proper to he considered at the hearing, and should have no weight in determining the cause. Smith v. Lowther, 35 W. Va. 300, 13 S. E. Rep. 999; Burley v. Weller, 14 W. Va. 264. See also, Hunter v. Hunter, 10 W. Va. 321.
Demurrer to Evidence.—When there is a demurrer to the evidence, an unconditional verdict on its face, hy the jury, is not error, provided the demurrer to the evidence he afterwards passed upon and determined hy the court, hut it is error in the court to render judgment upon the verdict of the jury in such case regardless of, and without determining, the demurrer to the evidence. Green v. P., W. & Ky. R. Co., 11W. Va. 685.
Similiter.—But the want of a similiter will not, after a trial, vitiate the verdict, and, as provided hy Code Va. 1860, ch. 181, sec. 3, it is not.error after verdict. Brewer v. Tarpley, 1 Wash. 363; B. & O.R. R. Co. v. Faulkner, 4 W. Va. 180.
G. DETERMINATION OF ALL ISSUES.—Where in an action of detinue for five slaves, the jury find for the plaintiff as to four of them, without also finding for the plaintiff or defendant, as to the fifth, the verdict will he set aside and a venire facias de novo awarded. Butler v. Parks, 1 Wash. 76.
■ Moreover, where issues are joined on the pleas of nul iiel record, and the act of limitations, if the jury find for the plaintiff on the second plea, and the court, without taking any notice of the first plea, enters judgment, such judgment ought to he reversed, notwithstanding, on previous pleadings, which hy consent were set aside, the .court had pronounced that, in fact, there was such a record. Gee v. Hamilton, 6 Munf. 32.
If a defendantpleads and demurs to the whole declaration, and the demurrer is overruled, judgment ought not to he entered, without first trying the issues joined on the other pleas. Waller v. Ellis, 2 Munf. 88.
H. CONFORMITY TO PLEADINGS AND PROOF — It is a well-settled rule of pleading that judgment or decree can only he entered on the case as made hy the pleadings ; and evidence of matter not noticed on the pleadings will he of no avail, though it might show aright to a further judgment or decree. Welfley v. Shenandoah Iron, etc., Co., 83 Va. 768,3 S. E. Rep. 376 ; Hubbard v. Blow, 4 Call 224 ; Gregory v. Peoples, 80 Va. 355 ; Edichal Bullion Co. v. Columbia Gold Min. Co., 87 Va. 641,13 S.' E. Rep. 100 ; Kent v. Kent, 82 Va. 205; Mundy v. Vawter, 3 Gratt. 518. See Swope v. Chambers, 2 Gratt. 319.
No Count.—If there he no count in the declaration based on the claim specified in a hill of particulars which hy statute is declared to he no part of the declaration, the items it contains cannot he proved, and no recovery can he had therefor. Riley v. Jarvis, 43 W. Va. 43, 26 S. E. Rep. 366.
No Plea.—A judgment for the plaintiff in assumpsit, should he set aside, and a new trial granted, if there was no plea hy the defendant. Johnson v. Fry, 88 Va. 695,12 S. E. Rep. 973,14 S. E. Rep. 183. See also. Petty v. The Frick Co., 86 Va. 501,10 S. E. Rep. 886.
Judgment Generally on All the Pleadings.—In debt on a bond with collateral condition, if the plaintiff, hy replication to the plea of conditions performed, charge the breach defectively, hut fully avoids, hy other replications, such other pleas of the defendant as go to the foundation of the action, to which replications, demurrers are improperly filed ; and the court enters judgment for the defendant, generally, upon all the pleadings, such judgment is erroneous ; it should only he that the faulty replication is not sufficient in law, etc., and therefore that the plaintiff takes nothing, etc. Lanev. Harrison, 6 Munf. 573.
Conformity to Proof.—Upon a hill for specific execution of an agreement, the agreement alleged in the hill must he proved hy the evidence, and specific execution can only he decréed of the same agreement so alleged and proved, and specific execution must not he directed of a different contract. Pigg v. Corder, 12 Leigh 69.
A court of equity can only decree upon the case made hy the pleadings, though the evidence may show a right to a further decree. Mundy v. Vawter, 3 Gratt. 518.
Limiting Relief to That Sought hy Pleadings:— *195Where a hill is filed for the sole purpose of having | a certain paper, purporting to be a deed, declared a nullity, the court cannot decree, upon such pleadings, that it be converted into a valid and proper •deed, this not being prayed for in the bill. Miller v. Smoot, 86 Va. 1050,11 S. E. Rep. 983.
Damages beyond Those Claimed—Interest.—Greater damages cannot be recovered than are declared for and laid in the conclusion of the declaration; but the restriction is confined to the principle of recovery, and does not affect the interest that may be allowed thereon by the jury. Georgia Home Ins. Go. v. Goode, 95 Va. 751, 30 S. E. Rep. 336. See Cahill v. Pintony, 4 Munf, 371, where it was held that if the jury, in an action of assumpsit, find for the plaintiff a larger sum than the amount of damages laid in the declaration, with interest from a day fixed in their verdict, the plaintiff may release the surplus beyond that amount and take judgment for the balance, with interest'as aforesaid.
In an action of covenant, the verdict for a larger sum than the damages laid in the declaration, or stated in the writ, must be set aside, and a new trial awarded. Cloud v. Campbell, 4 Munf. 214; Lewis v. Arnold, 13 Gratt. 454. See Alleman v. Right, 19 W. Va. 201.
Where the principal and iDterest, due on a bond amount to more than the penalty, and damages are found by the verdict, judgment ought not to be entered for the penalty and costs, to be discharged by the principal and interest with the damages so assessed in the cost; but for the penalty and damages if not exceeding those laid in the writ. But if damages found by the jury exceed those in the writ, a new trial ought to be granted unless the plaintiff will release the excess of damages; if this be done, judgment may be entered for the penalty, with the residue of the damages so found, and costs. Tennant v. Gray, 5 Munf. 494.
A verdict and judgment, in debt upon a sheriff’s official bond to recover damages sustained by the relator by reason of a false return of nulla bona on a ft. fa. sued out by the relator, for more damages than the claim in the warrants, are erroneous; and the error is not cured by the verdict, under the statute of jeofails. Gibson v. Governor, 11 Leigh 600.
Debt on Bond.—But it has been long well settled that in debt upon a bond, with collateral condition, damages may be assessed beyond those laid in the declaration, if the penalty is sufficient to cover them. Peerce v. Athey, 4 W-Va. 22; Payne v.Ellzey, 2 Wash. 143; Johnstons v. Meriwether, 3 Call 523; Winslow v. Com., 2H. & M. 459.
If the damage be laid high enough in the writ, though the jury find more than are laid down in the declaration, the writ may be referred to for the purpose of amendment, and the judgment will be sustained. Palmer v. Mill, 3 H. & M. 502.
Effect of Releasing Excess.—But the court reversing the judgment for such error, will not direct a new trial, if the relator will release the excess of damages, recovered beyond the just amount, but upon such release of the excess, will direct judgment to be entered for the just amount of damages. Gibson v. Governor, 11 Leigh 600.
So also, a judgment will be supported by a forthcoming bond, which is taken for more than the sum due by the execution, where the plaintiff releases the excess, which release, it seems, may be even after judgment. Scott v. Hornsby, 1 Call 41; Harrison v. Marr, 1 Call 47.
If a judgment of a county or corporation court, being for less than $100, exclusive of costs, is reversed by a superior court of law, upon a writ of supersedeas, whereupon judgment is entered that the plaintiff take nothing by his bill, etc., he cannot appeal to the court of appeals ; notwithstanding his declaration demanded a larger sum than $100. Henry v. Elcan, 2 Munf. 541. See Melson v. Melson, 2 Munf. 542.
Judgment for Aggregate Sum.—a notice that a motion will be made for a judgment against a sheriff, for the amount of his receipt for sundry executions for fines, ‘*as appears by the copy of said receipt,” is sufficient, without mentioning the aggregate sum due, the separate amount of each execution, or the time when delivered to the sheriff. And a judgment thereupon for the aggregate sum due, without distinguishing the amount of each execution, will be' sustained, if conformable to law in other respects, Segonine v. Auditor, 4 Munf. 398.
Affirmative Relief to Defendant.—In an accountings the defendant may have an affirmative judgment if the balance found due is in his favor. Hill v. Suther-* land, 1 Wash. 128 ; Fitzgerald v. Jones, 1 Munf. 150,
Judgments beyond Issues Erroneous.—A notice toa sheriff and his sureties being of a motion for a balance of certain land, property and takes, and the judgment being fora balance due upon these and also for a license, this is error for which the judgment will be reversed in the appellate court. Monteith v. Com., 15 Gratt. 172.
Judgments Must Conform to Issues Raised.—It is an elementary principle of our jurisprudence, that jurisdiction of the subject-matter and the parties is essential to the conclusiveness of a judgment or decree- And though a court may obtain jurisdiction rightfully, yet its decrees may be void, because, in the progress of the cause, it has exceeded its jurisdiction. Thus, where a suit is brought in the county court, by a widow, for the sole purpose of having her dower assigned, and the court, after assigning dower, of its own accord decreed a sale of the residue of the land, the court transcended its jurisdiction, and its decree of sale is void. Seamster v. Black-stock. 83 Va. 232. 2 S. E. Rep. 36.
Want of jurisdiction makes a judgment a nullity, and it may be so treated by any court in any proceeding, direct or collateral, a judgment being valid to the extent of the court’s jurisdiction, and invalid beyond. Thus, in summary proceedings under Va. Code 1873, ch. 76, sec. 9, circuit courts have jurisdiction to appoint, change and remove church trustees, but not to determine how they shall administer their trust, and a judgment entered as to the latter is void. Wade v. Hancock, 76 Va. 620.
Judgment Hust Be Based on Allegations.—If matter appear in the answer of a defendant in equity, which is not alleged in the bill, it cannot justify a decree for the plaintiff against the defendant, though it might have been ground for such a decree, if it had been alleged in the bill. Eib v. Martin, 5 Leigh 132.
Judgment Restricted to Allegations.—No rule is better settled than that a judgment or decree must be restricted to the case made by the pleadings, no matter what the evidence may show. Potomac Mfg. Co. v. Evans, 84 Va. 717, 6 S. E. Rep. 2 ; Mundy v. Vawter, 3 Gratt. 518; Campbell v. Bowles, 30 Gratt. 652.
But in detinue, if the jury find for the plaintiff, the slaves, if to be had, or <-8250 for each slave, and damages 1 d ; and the court renders judgment for the slaves, if to be had, and if not, the price *196found by the jury, with the damages and costs, it is not error [though no price or value he laid in the declaration]. Bates v. Gordon, 3 Call555.
Immaterial Variance between Pleadings and Proof.— Though it is true, however, that the case stated in the complaint must he sustained by the evidence, this rule will not forbid relief to the plaintiff where the case proved does not materially vary from the case stated; as where two deeds are charged to be without consideration, and intended to delay and hinder the plaintiff, and the proof is that the second being a deed to the trustee for the separate use of the debtor’s wife, was without valuable consideration. Campbell v. Bowles, 30 Gratt. 652.
Moreover, a plaintiff must allege as well as prove the facts on which he claims relief. He cannot obtain relief on any ground not alleged in his bill. Currey v. Lawler, 29 W. Va. Ill, 11 S. E. Bep. 897.
For a plaintiff is no more entitled to recover without sufficient averments in his bill, than he is without proof of his averments when properly made. The one is as essential as the other, and both must concur or relief can not be granted. Pusey v. Gardner, 21W. Va. 469.
A recovery for abandonment of treatment by a physician may be had under a declaration charging that he “carelessly, negligently, improperly and unskillfully conducted himself,” in the treatment, and that the injury resulted from his “careless, negligent, improper, and unskillful attention." Lawson v. Conaway, 37 W. Va. 159,16 S. E. Bep. 564.
I. CONFORMITY TO VERDICT.—In an action for defamation the-trial court has no- power to enter judgment for five'dollars only, where the verdict was for that sum and costs ; if the verdict is irregular, it should be set aside and a new trial awarded. Blackwell v. Landreth, 90 Va. 748,19 S. E. Rep. 791. See also, Lee v. Tapscott, 2 Wash. 276.
Judgment Not Supported by Verdict.—Where, upon a trial for murder, the jury finds the prisoner guilty of involuntary manslaughter, and assesses upon him a fine of five hundred dollars, it is error for the court to enter a judgment discharging the prisoner. Such a judgment is not supported by the verdict. Price v. Com., 4 Va. Law Jour. 426, 33 Gratt. 819, 36 Am. Rep. 797.
But where in an action of debt on a check, the declaration demands a sum certain with interest, and the verdict is simply for “the amount of the debt in the declaration mentioned," then, under sec. 2853 of the Va. Code, judgment may be given “for the principal arid charges of protest, with interest thereon from the date of such protest.” Such a judgment is in conformity both with the verdict and the statute. Lakev. Tyree, 90 Va. 719, 19 S. E. Rep. 787.
In Turberville v. Self, 4 Call 580, although the county court gave no judgment on the verdict, the district court affirmed it with damages, and the court of appeals (probably from oversight), did the same.
Failure of Clerk to Enter Judgment on Verdict.—The clerk of a county court having by mistake failed to enter a judgment on a verdict, and an appeal being taken, such appeal ought to be dismissed, notwithstanding the county court afterwards, during the pendency of the appeal, corrects the error, by having a judgment entered and certified to the district court. Tatum v. Snidow, 2 H. & M. 542.
Amount.—In an action for damages the judgment should be for the amount assessed by the jury as damages and interest on this amount from the day the judgment is actually rendered, and not from the first day of the term at which the judgment is rendered. Hawker v. B. & O. R. Co., 15 W. Va. 628.
J. NON OBSTANTE VEREDICTO.—Judgment may be rendered in favor of the plaintiff against the defendants only, and' need not be absolute and against all others. McOlung v. Echols, 5 W. Va. 204.
When Rendered for Plaintiff.—Where the only issue, in an action, is upon a plea in confession and avoidance, upon which a verdict has been found for the defendant, and it is afterwards decided that such plea is bad in substance, j udgment should be entered for the plaintiff non obstante veredicto. Mason v. Bridge Co., 28 W. Va. 640.
When Rendered for Defendant.—An action for deceit, practiced in a sale, not being maintainable against the personal representative bf the deceased, therefore, though there is a verdict for the plaintiff, judgment non obstante veredicto should be rendered for the defendant. Boyles v. Overby, 11 Gratt. 202.
Verdict Unambiguous—Plaintiff’s Case Defective — If a verdict is imperfect by reason of any ambiguity or uncertainty, so that the court cannot say for which party judgment ought to be given,,a venire de novo ought to be awarded. Brown v. Ralston, 4 Rand. 504. But if the verdict be not ambiguous or uncertain in itself, but the case made by the plaintiff is a defective case, or defective title, then the judgment should be for the defendant, and a venire de novo should not be granted. Brown v. Ferguson, 4 Leigh 37, 24 Am. Dec. 707.
HI. FORM OF JUDGMENT.
A. CERTAINTY.—If the judgment is ambiguous in its terms, the appellate court cannot make it certain, upon the ground that the clerk of the county court might have moulded it into form, because it was only an entry on the minutes. Humphreys v. West, 3 Rand. 516.
Uncertainty as to Amount.—A judgment subject to an uncertain credit is erroneous. The amount of the credit should be first ascertained by a writ of inquiry, and judgment should be rendered for the balance. Early v. Moore, 4 Munf. 262.
In Ross V. Gill, 1 Wash. 87, the judgment was for one amount 68490) to be discharged by the payment of a lesser amount. This last clause was held surplusage, and unwarranted by law, but, as the plaintiff did not complain, it was regarded as a release of so much of the judgment. At all events it was a defect of which the defendant could not complain.
Judgment on Caveat.—A judgment, on a caveat, that no grant shall issue to the caveatee on his inclusive survey, where it appears that he has any 'other claim or survey, by which he may possibly hold a part of the land, ought to be so worded as not to affect his right under such claim or survey. Preston v. Harvey, 2 H. & M. 55.
B. CONDITIONAL JUDGMENTS.—A judgment with a condition that execution is to be stayed for ninety days to await the decision of the court of appeals, is a conditional judgment, and valid ; it is competent for the court which rendered it to’ deal with it in a summary way and see that its terms are complied with. “It is said in 1 Tidd’s Practice 560, that when a judgment is confessed upon terms, in the king’s bench, it being in effect but a conditional judgment, the court will take notice of it and see the terms performed ; but when the judgment is acknowledged absolutely, and a subsequent agree*197ment made, this does not affect the judgment; and the court will take no notice of it, hut put the party to his action on the agreement.” Bank of Old Bominion v. McVeigh, 33 Gratt. 580.
In Myers v. Williams, 85 Va. 621, 8 S. E. Rep. 433, a judgment allowing a conditional credit was sustained.
IV. INTERLOCUTORY AND PINAL JUDGMENTS.
Finality of Judgment.—At common law, no matter how long a term might last, a judgment did not become final until it ended, and the court had no power to direct an execution upon it. Until then, in the quaint language of Coke, “the record remains in the breast of the court and in their remembrance, and therefore the roll is alterable during thatterm as the judges shall direct; but when the term is past, then the record is in the roll, and admits of no alteration, averment or proof to the contrary. ” The inconvenience and injustice sometimes occasioned by this rule induced the legislature to provide a remedy, and sec. 3600 of the Code of Va. was enacted, which provides that, “any court, after the fifteenth day of the term, may make a general order allowing executions to issue on judgments and decrees after ten days from their dates, although the term at which they are rendered be not ended,” etc., but this section wras not intended to, and does not, impart to such judgments, the quality of finality so as to deprive the court, during the term, of the power to correct, or if need be, annul an erroneous judgment. This statute manifestly enlarged the power of the court, and imparted to it an authority which at common law no court possessed. Baker v. Swine-ford, 97 Va. 112, 33 S. E. Rep. 542.
When a circuit court, upon appeal, reverses the final judgment of the county court and retains the cause for a new trial, the judgment of the circuit court is such a final judgment as is the subject of a writ of error. Crawford v. Railroad Co., 25 Gratt 467 ; Brumbaugh v. Wissler, 25 Gratt. 463, and note.
Cause Sent Back.—But where a cause is sent back for a new trial, the judgment is not final. Omohundro v. Omohundro, 27 Gratt. 824.
Must Be Judgment of Dismissal —Under Va. Code, sec. 3454, no writ of error lies in an action at law until there is a final judgment; but the sustaining or overruling of a demurrer to a declaration is not a final judgment; to make it final there must be a judgment of dismissal. Gillespie v. Coleman, 98 Va. 276, 36 S. E. Rep. 377. See also, Hancock v. R. & P. R. Co., 3 Gratt. 328 ; Trevilian v. Louisa R. Co., 3 Gratt. 326. Oontra, Jeter v. Board, 27 Gratt. 910, and note. See monographic note on “Appeals.”
It was held in Elliott v. Hutchinson, 8 W. Va. 453, that the words “final judgment” contained in, and as employed in, the fifty-third section of chapter one hundred and twenty-five of the Code of West Virginia, means the “final judgment” mentioned in the forty-sixth section of said chapter. In other words they mean the “final judgment” mentioned in said forty-sixth section, which every judgment entered in the office of the case wherein there is no order for an inquiry of damages becomes final, by operation of that section, unless it is set aside by the defendant appearing and pleading to issue, as provided by the forty-seventh section of said chapter. And a rule in an action at law requiring the plaintiff to elect by the next term whether he will proceed at law or in chancery, is not, in the meaning of Va. Code 1873, ch. 178, sec. 2, a final judgment, and the appellate court has not jurisdiction to review it. Priddy v. Hartsook, 81 Va. 67.
Pinal in County Court, Pinal in Superior Court.— Though a judgment of a superior court of law, reversing a judgment of a county court, and directing other pleadings in the cause, be interlocutory in its character, yet the finality of the j udgment in the county court imparts its character to the judgment of the superior court, so as to authorize an appeal to thecourtof appeals. Cowling v. Nansemond Justices, 6 Rand. 349; Morgan v. Ohio River R. Co., 39 W. Va. 17, 19 S. E. Rep. 588.
Where on a supersedeas to a judgment of a county court, the circuit court reverses the judgment, but omits to give such judgment as the county court ought to have given, and retains the cause, the judgment of reversal by the circuit court must he regarded as final in its appellate character, and a supersedeas will lie from the court of appeals. Janey v. Blake, 8 Leigh 88; Morgan v. Ohio River R. Co., 39 W. Va. 17,19 S. E. Rep. 588.
Effect of Issuing Execution.—Where a court authorizes executions to issue upon judgments recovered during the term, the judgments become final from the time when execution may issue, and cannot afterwards be set aside by the court. Enders v. Burch, 15 Gratt. 64.
Eminent Domain Proceedings.—But where the court has not acted upon the report of commissioners in a proceeding to condemn land, there is no final judgment, and therefore no appeal can he taken from an overruled motion by the lower court to set aside the original order appointing the commissioners. Pack v. C. & O. R. Co., 5 W. Va. 118.
Interlocutory Judgments.—where any farther action of the court is necessary to give the complete relief contemplated by the court, or where but one of the questions which the court is called upon to settle, is determined by the judgment, and the others are reserved until a future time for determination, then the judgment or decree is interlocutory and not final. Cocke v. Gilpin, 1 Boh. 20; Shirey v. Musgrave, 29 W. Va. 131, 11 S. E. Rep. 914; Hill v. Als, 27 W. Va. 215.
In civil cases, judgments are either interlocutory or final. Interlocutory, as where the right of the plaintiff is established by a failure to plead or a withdrawal of a plea, but where the damages are not ascertained, and for which the intervention of a jury is necessary. On the return of this enquiry, the right to recover having been established, final judgment is entered up. But whenever final judgment is entered after the writ of enquiry is awarded and executed, or after a verdict on the merits, such final judgment finishes the proceedings, nothing more remains for the court to do, and execution may be done in pursuance of the j udgment Pifer’s Case, 14 Gratt. 710.
Confession of Judgment Interlocutory.—A confession of judgment by one of several joint defendants, is only interlocutory, until the final decision of the cause as to the rest; and the confessing defendant must receive the same judgment as his codefendants. Taylor v. Beck, 3 Rand. 316. See generally, monographic note on “Judgments by Confession” appended to Richardson v. Jones, 12 Gratt. 53.
V. JUDGHENTS IN REH.
“A judgment inreml conceive tobe an adjudication pronounced upon the status of some particular subject-matter by a tribunal having competent authority for the purpose. Such an adjudication, *198being a most solemn declaration, from the proper and accredited quarter, that the status of the thing adjudicated upon is as declared, excludes all persons from saying the thing adjudicated upon was not such as declared by the adjudication.” Bruff v. Thompson, 31 W. Va. 16, 6 S. E. Rep. 358.
VI. INTEREST.
No Demand in Declaration.—Judgment cannot be given for interest, if the declaration does not demand interest. Hubbard v. Blow, 4 Call 324. See monographic note on “Interest” appended to Fred v. Dixon, 27 Gratt. 541.
From What Time Allowed.—In an action for damages the judgment should be for the interest on the amount assessed by the jury as damages from the day the judgment is actually rendered, and not from the first day of the term at which the judgment is rendered. Hawker v. B. & O. R. R. Co., 15 W. Va. 628. See Mercer v. Beale, 4 Leigh 189.
Where a judgment or decree is made for the payment of money it shall be for the aggregate of principal and interest due at the date of the verdict, if there be one, otherwise at the date of the judgment or decree, with interest thereon from such date, except in cases where it is otherwise provided. Baer’s Sons, etc Co. v. Packing Co., 42 W. Va. 359, 26 S. E. Rep. 191, citing Hawker v. B. & O. R. Co., 15 W. Va. 629.
Interest Charged from Date of Verdict.—Upon a payment in an action for a tort depending when the act, Code, ch. 177, sec. 14, p. 673, went into operation, it is proper to charge interest from the date of the verdict. Lewis v. Arnold, 13 Gratt. 454.
Judgment on Nil Dicit or Non Sum lnformatus.—In a debt on a bill penal, a judgment entered upon nil elicit or non sum informatus, ought not to be reversed on the ground that the declaration, though describing the bill penal correctly as to the principal sum, penalty and date, omits to mention that the debt is payable, “with interest from a day prior to the date, ” and that the judgment, in conformity with the bill penal, is entered for the penalty, to be discharged by the principal, with such interest, and costs. Harper v. Smith, 6 Munf. 389. See Mosby v. Taylor, Gilmer 172.
Interest on Damages.—Interest is not due on the damages, until after judgment, against a public collector. Gaskins v. Com., 1 Call 194. See also, Gibson v. Governor, 11 Leigh 600.
Interest on Aggregate of First Judgment.—Upon a scire facias against bail, it is error to give a judgment for the aggregate amount of principal, interest, and costs of the first judgment, with interest thereon. Bowyer v. Hewitt, 2 Gratt. 193.
Interest upon Costs.—It was held in McRea v. Brown, 2 Munf. 46, that the 5th section of the act passed January 20,1804, entitled, “An act concerning the proceedings in courts of chancery, and for other purposes,” did not authorize a judgment for interest upon the costs of suit.
Right to Interest as Affected by Verdict.—‘Where a declaration calls for a sum certain with interest, and the verdict is simply for the amount of the debt mentioned in the declaration, then under sec. 2853, of the Va. Code, the legal effect of the verdict is a finding of interest also. Lake v. Tyree, 90 Va. 719,19 S. E. Rep. 787.
Replevy Bond—Judgment for Interest.—Judgment ought not to be entered on a three months’ replevy bond, for interest from a day anterior to the date of the bond, but it may be for interest from that date, on the rent and costs of the duties added together. And if the bond be taken, including interest from a day anterior to its date, such erroneous interest may be deducted, and judgment entered for the right sum. Williams v. Howard, 3 Munf. 277.
Rate of Interest.—A judgment upon the default of the sheriff, or other officer responsible for fines collected, ought not to be rendered for interest at the rate of fifteen per cent, per annum; but for five per cent, damages, and five per cent, per annum interest, on the whole amount, as in the case of public taxes. Segouine v. Auditor, 4 Munf. 398.
Illustration.—Thus, when a decree is entered in a cause ascertaining and fixing the aggregate amount of the plaintiff’s debt and giving interest on such aggregate from the date of the decree, as prescribed by statute (Code W. Va., ch. 131, sec. 16), a subsequent decree cannot be entered in the same cause several years thereafter, to reaggregate such debt by calculating interest on the first aggregate sum to the date of the latter decree, then adding this interest to the sum of the first decree and giving interest on the second aggregate from the date of the last decree. Tiernan v. Minghini, 28 W. Va. 314.
Constitutionality of Statutes.—The 16th section of ch. 131, of Code W. Va. providing, that when a judgment or decree for the payment of money, shall be for the aggregate of the principal and interest due at the date of the judgment or decree, with interest thereon from that date, does not violate the provision of the constitution of the United States, prohibiting any state to pass a law impairing the obligation of contracts. Fleming v. Holt, 12 W. Va. 144.
Abatement of Interest—Absence in Enemy’s Lines.— After judgment is obtained for a debt, both principal and interest, the court has no more power to abate any part of the interest, on the ground that the creditor was within the enemy’s lines, than to abate the principal. The matter has passed into judgment, and it is too late, then, to raise the question of such abatement. Rowe v. Hardy, 97 Va. 674, 34 S. E. Rep. 625.
“Judgments and decrees for money being contracts of the highest character, of course, and for reasons before stated, to abate any portion of the interest included in them, would necessarily impair their obligation. Moreover by such judgments and decrees, the rights of the parties, in whose behalf they were rendered, to the money ordered to be paid, whether principal or interest, have become vested, and cannot be divested, as provided by the act of the assembly. Griffin v. Cunningham, 20 Gratt. 81.” Roberts v. Cocke, 28 Gratt. 207; Merchants’ Bank v. Ballou, 98 Va. 112, 32 S. E. Rep. 481.
It was held in Roberts v. Cocke, 28 Gratt. 207, that so much of the act of April 2,1872, as empowers the courts to review judgments and decrees, upon motion, and to abate interest as provided therein is repugnant to the United States constitution and the constitution of Virginia, and therefore void. See, in accord, Linkous v. Shafer, 28Gratt. 775; Kent v. Kent, 28 Gratt. 840; Fretlow v. Bailey, 29 Gratt. 212; also, Crawford v. Fickey, 41 W. Va. 544, 23 S. E. Rep. 662.
Entry of Judgment for Interest.—Op. a motion by a sheriff against his deputy, where judgment has been obtained by the commonwealth against him for taxes, judgment must be entered for the principal sum, and the interest, and not for the penalty *199to be discharged by that sum and interest. Asberry v. Calloway, 1 Wash. 72.
VII. RENDITION AND ENTRY OF JUDGMENTS.
A. CERTAINTY AS TO PARTIES, AMOUNTS, DATES.—Tf the entry of the judgment, taken in connection with the record of the case in which it is made, has the requisite certainty of a judgment as to parties, amounts, dates, etc., the judgment is valid. Bank of Old Dominion v. McVeigh, 32 Gratt. 530.
If a declaration in debt be blank as to sums, the date of the obligation, the assignment thereof to the plaintiff, and as to damages, a judgment rendered thereupon is erroneous, and ought to be reversed, and the suit dismissed with the costs of both courts. Blane v. Sansum, 2 Call 495.
Entry for Certificates.—Judgment cannot be entered, in a suit at common law, for certificates. Graves v. Webb, 1 Call 443.
Judgment for Confederate Notes.—It seems that a judgment on a contract for the payment of confederate notes, should be entered for confederate notes; the scale of depreciation must be applied at the day when the money was payable. Dearing v. Rucker. 18 Gratt. 426.
Sheriff Includes His Commissions.—Where before the act of 1794, the sheriff, in taking a forthcoming bond, included his commissions on the debt, judgment should be entered for the sum due without the commissions. Worsham v. Egleston, 1 Call 48.
Entry of Judgment against Sheriff.—in an action upon a sheriff’s bond in the name of the commonwealth, for the benefit of a person aggrieved by the misconduct of the sheriff, the judgment should be entered for the penalty, to be discharged by the payment of the damages assessed and costs, “and such other damages as may be hereafter assessed upon suing out a scire facias, and assigning new breaches, by the plaintiff or any other person or persons injured.” Bibb v. Cauthorne, 1 Wash. 91.
Judgment against Sheriff—Return -Escape.—A judgment cannot be entered against the defendant and sheriff, upon his return that the writ was executed on the defendant; the proper remedy against the sheriff for an escape being a separate suit. Waugh v. Carter, 2 Munf. 333.
Entry of Judgments at Different Times.—Where in a proceeding at law against several parties, judgments against one or more are entered at one time, and against others at another time, one execution may be issued against all. Walker v. Com., 18 Gratt. 13.
Mistake in Entry.—In an action on a nonnegotiable note in which the homestead exemption is waived, the statement in the entry of the judgment that the homestead is waived does not vitiate the judgment. The judgment in this respect will be amended and affirmed. Long v. Pence, 93 Va. 584, 25 S. E. Rep. 593.
Judgment in Penal Bond.—Judgment on a penal bond should be for the penalty, to be discharged by the payment of the sum actually due. Moore v. Fenwick, Gilmer 214.
Writ of Inquiry—Joint Assessment.—in detinue for several slaves, if their value be jointly assessed in the verdict, judgment ought not to be entered, but a writ of inquiry to ascertain their respective values should be awarded. Cornwell v. Truss, 2 Munf. 195.
Power of Court.—“In whatever respect the clerk may have erred in entering judgment, the court may on proper evidence, nullify the error by making the judgment entry fully and correctly express the judgment rendered.” 1 Green Judgm. sec. 72; Davis v. Trump, 43 W. Va. 191, 27 S E. Rep. 397.
B. COSTS.—“The general principle is, that costs are considered as an appendage to the judgment, rather thana part of the judgment itself; that they are considered, in some sense, as damages, and are always entered, in effect, as an increase of damages by the court. This doctrine is to be found in 3 Bl. Com. 399.” Roane, J. M’Rea v. Brown, 2 Munf. 47; Douglass v. McCoy, 24 W. Va. 725.
Judgment for Costs in Favor of Successful Judgment. —It was held in Pates v. St. Clair, 11 Gratt. 22, that before the act, Code of Va. 1849, p. 706, sec. 9, providing that where there shall be a judgment for the defendant’s costs in a suit brought in the name of one person for the benefit of another, such judgment shall be against that other; a judgment may be rendered for costs in favor of a defendant, against a person for whose benefit a suit was brought, when the defendant succeeded in the case.
C. COIN AND CURRENCY.
Judgment for Sterling Honey Value.—En an action of debt upon a protested bill of exchange drawn for sterling money, if the declaration is for the current money value of the sum for which the bill was drawn, the judgment being for the sum so demanded, will be reversed on a writ of error. The suit should have been for the sterling money. Scott v. Call, 1 Wash. 115; Skipwith v. Baird, 2 Wash. 166. En the latter case, Scott v. Call was distinguished on the ground that the damages were considered as being laid in current money, whereas they ought to have been laid in sterling money.
In an action of debt on a bond, the judgment is always entered for the penalty to be discharged by the principal and interest; and if that exceed the penalty, the defendant has his election, and may satisfy it by paying the penalty. Atwell v. Towles, 1 Munf. 175.
A sterling judgment may be reduced into currency at the time of entering judgment on a forthcoming bond. Scott v. Hornsby, 1 Call 41.
Fixing Rate of Exchange—It is necessary on judgments for sterling money, that the court should fix the rate of exchange. Taylor v. M'Clean, 3 Call 557.
Penalty in Current Money.—After the verdict for the plaintiff, in debt oil a bond, the penalty of which was in current money, with condition to pay so much sterling money, the judgment should be for the current money mentioned in the penal part of the bond, to be discharged by the sterling money in the declaration, and the court ought to settle the rate of exchange, which on an appeal should appear on the record. Terrell v. Ladd, 2 Wash. 150.
D. ENTRY NUNC PRO TUNC.—The power of courts to make entries of judgment and orders nuncpro tunc, in proper cases and in furtherance of the ends of justice, has been recognized and exercised from the earliest times; and the period in which the power may be exercised is not limited. Weatherman v. Com., 91 Va. 796, 22 S. E. Rep. 349.
Unlawful Detainer.—Where, in an action of unlawful detainer, the jury finds for the plaintiff, and a stay of the issuance of a writ of possession for sixty days is entered to allow the defendants to apply to the circuit court for a writ of error and supersedeas, and they fail to present their petition therefor during the two following terms, it is proper at the third term to enter judgment nunc pro tunc as of the time the stay was granted, under the provisions of Va. *200Code 1887, sec. 3124, which provides that “all causes upon the docket of any court, and all other matters ready for its decision, which shall not have been determined before the end of a term, whether regular or special, shall, without any order of continuance, stand continued to the next term.” Van Gunden v. Kane, 88 Va. 591,14 S. E. Rep. 334.
Entry Nunc Pro Tunc by Justices without Notice.— It has been held where two justices presided at a trial at which a verdict was rendered, but no judgment thereon was entered, and subsequently, nearly two years afterwards, the same justices, without notice, met and undertook to enter a judgment upon the verdict nunc pro tunc, that such entry nunc pro tunc was unauthorized and illegal, and was properly treated by the circuit court as a nullity. See Code of W. Va., ch. 50, sec. 114; McClain v. Davis, 37 W. Va. 330,16 S. E. Rep. 629.
Signing by Judge.—A judge may sign a day’s proceedings in the order book at the next term nunc pro tunc. Weatherman V. Com., 91 Va. 798, 22 S. E. Rep. 349. See Va. Code, sec. 3114.
Judgment on Covenant of Married Woman.—A judgment on a covenant of a married woman against her separate estate may be entered as a personal judgment against her. Williamson v. Cline, 40 W. Va. 194, 20 S. E. Rep. 917.
Judgment Erroneously Entered in Singular Number. —The validity of a judgment against two defendants is not affected because of a merely clerical error in entering the same against them in the singular number, “defendant,” instead of the plural number, ' “defendants.” Roach v. Blakey, 89 Va. 767,17 S. E. Rep. 228.
Summary Entry.—A judgment ought never to be given, in a summary way, in favor of any plaintiff who does not bring himself fully within the terms of the act under which he proceeds. Stuart v. Hamilton, 2 H. &M. 48.
E. ENTRY IN VACATION—A court has no power to enter an order or judgment in vacation, unless so authorized by statute. Kinports v. Rawson, 29 W. Va. 487, 2 S. E. Rep. 85; Johnson v. Young, 11W. Va. 673; Monroe v. Bartlett, 6 W. Va. 441.
Surplusage.—Where judgment is recovered for a certain sum of money, dischargeable by the transfer and delivery, in six months, of certain stock, and the stock is not delivered within the time, the court cannot, on motion for execution on the judgment, presume that the sum stated in the judgment is the amount the plaintiff was entitled to recover, and rejecting the latter part of the judgment as surplusage, award execution thereon for the money. Orange, etc., R. Co. v. Fulvey, 17 Gratt. 366. But see Ross v. Gill, 1 Wash. 90, in which the judgment was for £490 to be discharged by the payment of £420 and the court held that the latter part was no part of the judgment, but merely surplusage.
Where the judgment directs that the plaintiff shall recover his freedom, “and that he be discharged from the imprisonment in the declaration,” the latter clause will be regarded as mere surplus-age, as the first part of the judgment had the effect to discharge the plaintiff from the custody of the defendant. M’Michen v. Amos, 4 Rand. 134.
Signing by Judge—Statutes Directory.—1 ‘The authorities generally hold that statutes relating to the recordation of deeds and the docketing of judgments are merely directory, and the failure of the clerk or other officer to comply with their provisions cannot affect the rights of parties claiming under such deeds or judgments. In Beverley v. Ellis, 1 Rand. 102, it is decided that where a deed is duly proved, or acknowledged and left with the clerk for recordation, it is considered as recorded from that time, although it was never recorded, but lost by the negligence of the clerk. In Rollins v. Henry, 78 N. Car. 342, it was held that the requirement of the statute that a judge shall sign all judgments rendered in court is merely directory, and his omission to do so will not vitiate it as to strangers.” Shad-rack v. Woolfolk, 32 Gratt. 713.
VIII. JUDGMENTS ON AWARDS.
Award in Submission in Pais,—An order of a circuit court setting aside an award made by arbitrators upon a submission in pais of matters as to which there is no action pending but which provides that the award shall be made the judgment of the court, is such a final judgment that a writ of error will lie from it to the supreme court. Tennant v. Divine, 24 W. Va. 387.
See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
A. ENTRY.
Entry as Judgment of Court.—If, pending a suit, the parties by an order of the court, refer the matter in controversy to arbitrators, whose award is to be made the judgment of the court; and, afterwards, by an agreement under seal, appoint a substitute for one of them; agreeing that an award, to be made by the remaining referees and such substitute, shall be entered as the judgment of the court; such award may be so entered, without any previous order of the court confirming the appointment of such substitute. Manlove v. Thrift, 5 Munf. 493.
No Pending Suit,—Nor is it essential to give the circuit court jurisdiction to enteran award as the judgment of the court upon a submission in pais of matters as to which there is no pending suit, that the agreement should declare in terms, that the submission shall be en tered of the'record. Tennant v. Divine, 24 W. Va. 387
Payment to Sheriff.—Where it is agreed in the submission to arbitrators that the money awarded to the plaintiff is to be paid to the sheriff, for the benefit of the plaintiff’s creditors, the judgment should be so entered. Coupland v. Anderson, 2 Call 106.
Refusal to Enter Judgment According to Award.— But a court’s refusal to enter a judgment according to an award, without proceeding to d etermine the controversy, is not a judgment, from which an appeal can be taken. Manlove v. Thrift, 5 Munf. 493.
Time of Entry of Judgment—A submission to arbitration, by rule of court, of a matter of controversy in a suit pending, is not within the statute concerning awards, and so, the court may proceed to judgment on an award at the same term to which it is returned. Wheatley v. Martin, 6 Leigh 62.
Reference Denying Pendency of Suit.—If there be an order of reference made during the pendency of a suit, the award in pursuance thereof, need not lie in court two terms before judgment is entered, as it is not within the act of assembly, upon awards. Holcomb v. Flournoy, 2 Call 433.
Filing Objections—Waiver.—It is not necessary that the award should lie in court two days before judgment, if the party offers exceptions; for that is a waiver. Mitchell v. Kelly, 1 Call 379.
Objections to Entry as Judgment of Court.—But ex parte affidavits may be read against or in support of objections to the entering of an award as the judg*201ment of the court, especially where they are not objected to in such courts, but they should be given much less weight than testimony taken in court or on notice subject to cross-examination. Tennant
V. Divine, 24 W. Va. 387.
B. DEATH OF PARTY AFTER SUBMISSION.— After submission to arbitration by rule of court, if the plaintiff dies, and the suit is revived by his administrator and the administrator of the plaintiff and the defendant proceed in the arbitration, without any new submission, and an award is made, the death of the plaintiff does not avoid this submission and the award is good. Wheatley v. Martin, 6 Leigh 62.
IX. JUDGHENTS ON APPEAL.
Leave to Apply to Trial Court for Relief.—Where on a bill for specific performance, the contract proved varies from that set up in the bill, and the contract proved is clear and certain in its terms, and is such as a court of equity might properly enforce, and the court below decrees a specific execution of the contract set out in the bill, the decree must be reversed; but the appellate court will not dismiss the bill; it will remand the cause to the court below, to put the plaintiff to his election, whether to have a specific performance of the “contract as proved,” or to have the same rescinded, and the parties put in statu quo. Baldenberg v. Warden, 14 W. Va. 397.
A. REMAND WITHOUT DECISION.-But where judgment has been rendered on an indictment for an injury done with intent to maim, etc., the appellate court will not on reversing the judgment enter such judgment as the circuit court ought to have rendered but will remand the case for a proper judgment to be entered on the verdict. State v. Mooney, 27 W. Va. 546.
However, where the circuit court entered judgment for solitary confinement, for a period different from that indicated by the statute, the appellate court will reverse this judgment and enter the proper judgment. Brooks’ Case, 4 Leigh 669; Murry’s Case, 5 Leigh 720; Hall’s Case, 6 Leigh 615.
Rendering Final Judgment—Where a circuit court, in rendering a judgment against a defendant convicted of a misdemeanor, adds to its judgment an order requiring the defendant to give a peace bond, the case, on writ of error, will be reversed and the proper judgment will be entered by the appellate court without remanding it to the court below. State v. Gould, 26 W. Va. 259.
Relief between Coappellees.—“The decree being deemed right in all respects as it affects the questions in controversy between the appellants on the one hand, and each and all of the appellees on the other, I think the court cannot take cognizance, on this appeal, of any question between the appellees. The power of the court to take cognizance of such questions arises only when, on the questions between the appellants on the one hand, and one or more of the appellees on the other, a decision is made which directly or incidentally disturbs the rights of one or more of the appellees, as settled by the decree appealed from. When such disturbance is the consequence of the decision of the question between the appellants and the appellees, there must necessarily result the questions that arise from the new position in which the rights of the appellees are placed; and of such questions the court of appeals has cognizance, and they should be decided by the court.” Powell v. White, 11 Leigh 309.
Explanation of Judgment.—The court of appeals, in affirming a judgment will add any explanation, which may be necessary to make it correctly understood. Mayo v. Purcell, 3 Munf. 243.
Failure to Direct That Evidence Be Received.—But if a superior court of common law, in reversing a judgment and awarding a new trial, assigns the reason to be that certain evidence should have been received on the former trial, but fails to direct that, upon a new trial, such evidence shall be received, the court of appeals, in affirming its judgment, will add the proper direction concerning the evidence. Brooke v. Shelly, 4 H; & M. 266.
B. MODIFICATION AND AMENDMENT.
Power of Court to Modify.—it seems to be the rule that an appellate court may amend or correct a j udgment for clerical or trivial errors and mistakes, or may add to its judgment any provision that may be necessary to do justice between the parties, such as where judgment is rendered for more damages than are laid in the declaration, or for a sum greater than the debt. Lewis v. Arnold, 13 Gratt. 454; Alloman v. Kight, 19 W. Va. 201; Linsey v. McGannon, 9 W. Va. 155. See Peters v. Neville, 26 Gratt. 549; Mustard v. Wohlford, 15 Gratt. 329; Stanard v. Brownlow, 3 Munf. 229.
District Courts.—A district court has no power or jurisdiction to reverse, alter or amend a judgment given at a former term of the court, which had been entered on the order book, and signed by a judge in open court. Halley v. Baird, 1H. & M. 24.
Correction by dame Court.—For an error in the judgment of a court can never be corrected by the same court. Gordon v. Frazier, 2 Wash. 130.
1. Time oe Amendment—Generad Rude.—The rule at common law is that during the term wherein any judicial act is done, the records are in the breast of the court and in their remembrance and may be amended; but after the term no amendment can be made, except of a mere clerical misprision. Ca-wood’s Case, 2 Va. Cas. 527; Manionv. E’ahy, 11 W. Va. 496; Smith v. Knight, 14 W. Va. 749; Bank v. Jarvis, 26 W. Va. 785; Bunting v. Willis, 27 Gratt. 158; 3Angle v. Cook, 32 Gratt. 262; Kelty v. High, 29 W. Va. 381, IS. E. Rep. 561; Morgan v. Ohio River R. Co., 39 W. Va. 17, 19 S. E. Rep. 588; Barnes v. Com., 92 Va. 794, 23 S. 33. Rep. 784.
Generally the judgment of a court is under and subject to its control during the term at which itis rendered, and it may set aside the judgment, at any time before the end of the term without notice, but when that term ends such judgment becomes final and passes beyond the control of the court, unless perhaps a motion be made during such term to set it aside, and such motion is continued until the next term. Green v. Railroad Co., 11 W. Va. 686; Price v. Com., 4 Va. Law Jr, 426, 33 Gratt. 819, 36 Am. Rep. 797.
Judgment Interlocutory.—“Even after the close of the term, however, the court may modify or set aside any judgment or decree made at a former term, if it be interlocutory and not final in character. 1 Black, Judgm. § 308; Wright v. Strother, 76 Va. 857. But, after the term, the court has no power to modify or annul any final judgment or decree, except in law cases for certain causes by writ of error eoram nobis or motion, under chapter 134 of the Code, and in chancery for certain causes, and in certain cases by bill of review or motion under said chapter. The final judgment or decree ends the case, and neither the parties nor the subject-*202matter in litigation are any longer before the court, and, therefore, any subsequent action in the case, being-without parties or subject-matter before the court, is null and void unless made under some lawful mode of review. Buhl v. Buhl, 24 W. Va. 279; Crim v. Davisson, 6 W. Va. 465; Hall v. Bank, 15 W. Va. 328; Battaile v. Maryland Hospital, 76 Va. 63; Johnson v. Anderson, 76 Va. 766; lFreem. Judgm. § 96.” Morgan v. Ohio Biver R. Co., 39 W. Va. 17,19 S. E. Bep. 588.
Judgment Final.—But a final judgment or decree, of one term of a court cannot be impaired or set aside at another term, because of the close of the first term, unless upon such proceedings as the law points out for review. Crawford v. Pickey, 41 W. Va. 544, 23 S. E. Rep. 662.
A court can set aside at one term an order made in the progress of the cause at a former term, which is interlocutory, but not a final judgment. An order which merely sustains a demurrer to a declaration, or strikes out a court or item of claim, but followed by no judgment as to it, is interlocutory in nature, and the count or item of claim may be reinstated in the declaration at a subsequent term. Clarke v. Ohio River R. Co., 39 W. Va. 732, 20 S. E. Bep. 699.
Moreover, until the court adjourns for the term, no one, unless expressly authorized to do so, can act under a decree or judgment entered at that term, except at his peril. During the term all the proceedings are in the breast of the court, and under its control, and liable to be stricken out, altered or amended during the term, and that without notice to the parties. Clendenning v. Conrad, 91 Va. 410, 21 S. E. Bep. 818, citing Green v. P. W. & Ky. E. Co., 11 W. Va. 685.
May Grant Certificate of Judgment.—But the court of appeals will direct their clerk to grant a certificate of their judgment, during term time, if it be absolutely necessary to attain the justice of the case. Brown v. Crippin, 4 H. & M. 173.
End of Term — Modification — Amendment.—After the end of the term, however, the court has no power to modify or annul any final judgment or decree, except in certain causes, by writ of error coram nobis or motion under § 134 of the West Virginia Code. Barbour County Court v. O’Neal, 42 W. Va. 295, 26 S. E. Rep. 182; Crawford v. Pickey, 41 W. Va. 544, 23 S. E. Rep. 662, citing Ruhl v. Ruhl, 24 W. Va. 279; Morgan v. R. Co., 39 W. Va. 19,19 S. E. Bep. 589; Wright v. Strother, 76 Va. 857; Green v. B. Co., 11 W. Va. 686.
Judge’s Recollection, Evidence Aliunde.—Or unless there is something in the record by which amendments can be safely made, but they cannot be made upon the individual recollection of the judge, or upon proofs aliunde. Barnes v. Com., 92 Va. 794, 23 S. E. Rep. 784.
Omission to State Entry of Plea, Joinder of Issue.— As it is error in a court to amend a record, after the 1 erm at which the judgment was rendered, therefore, if the record omits to state that a plea was entered, and issue joined, the court cannot, after the term at which judgment was rendered, direct a plea to be entered, nunc pro tunc, upon the evidence of the clerk that a plea was filed, and issue joined. Sydnor v. Burke, 4 Band. 161.
Action Presumed Right.—when a judgment is set aside by the court during the term at which it was rendered, the appellate court will presume that it was rightfully set aside, unless the contrary affirmatively appears by the record. Green v. Railroad Co., 11 W. Va. 686.
Correction at Subsequent Term.—On the other hand, that a court has a right at a term, subsequent to the one at which a judgment is rendered, to correct, by an order nunc pro tunc, a clerical error or omission in the original entry, is indisputable. The error, whether of omission or commission, must appear from the record in which the entry of judgment is made. Black, Judgm. 131; McClain v. Davis, 37 W. Va. 330, 16 S. E. Bep. 629.
Por example, such a clerical error as entering a judgment in the office without awarding an inquiry of damages, may properly be corrected at a subsequent term. Shelton v. Welsh, 7 Leigh 175.
But if the jury finds a right verdict, and the district court records.it wrongly,, entering judgment upon it as recorded, they cannot correct the error by the true verdict, at a subsequent term. Preeland v. Field, 6 Call 12.
Discretion of Court.—Until the the term ends, every j udgment or decree may for good reason be modified or set aside in whole or in part. The court has a discretion to do this, in the exercise of which the supreme court will not interfere except for the most cogent reasons. Parkersburg Nat. Bank v. Neal, 28 W. Va. 744.
C. CLERICAL ERRORS OB MISTAKES.
Common-Law Rule.—“At the common law, an error committed by the court, not in a point of judgment, but such as mightbe called a misprision of the court, could be amended; but no misprision of-the clerk was amendable after the term." Com. v. Winstons, 5 Rand. 546.
If an error is merely clerical the appellate court will correct and affirm the decree, but if it be judicial, the decree will be reversed, with costs to the appellee in either event. Bee v. Burdett, 23 W. Va. 744. See also, Renick v. Ludington, 20 W. Va. 511.
Allowance of Too Hucli Interest.—Where an action is brought on a note, which was executed at the time when five per centum was the legal rate of interest, upon which the defendant acknowledged the action for the principal with interest from the date of the note: on which acknowledgment a judgment was rendered for the principal, with interest at the rate of six per centum per annum; this is not a mere clerical error, but one which can only be rectified by an appellate court. 1 Bev. Code 512; Bent v. Patten, 1 Band. 25.
But where a judgment is rendered by default in the general court, upon motion, on a bond due the commonwealth; but the clerk, in entering the judgment, only allows interest from a date posterior to that, from which by the terms of the bond, interest was to run; this error may be amended, upon motion to the general court, at a succeeding term. 1 Rev. Code 512, § 108; Com. v. Winstons, 5 Rand. 546.
It seems, moreover, that where the clerk erroneously enters judgment upon nil dicit in the county court, or an office judgment in the county or circuit courts, for interest from the date of the bond with a penalty, when it should have been with interest from the day of payment, as provided for in the bond, such error is a clerical mistake, amendable by the court, at a subsequent term. Eubank v. Sandige, 4 Leigh 308.
Erroneous Entry at Rules.—A judgment at rules in the clerk’s office of a county court ought to be entered as of the last day of the succeeding quar, terly term, but, if it be entered as at rules only, it *203is merely a clerical misprision, and therefore amendable. Digges v. Dunn, 1 Munf. 56.
Where the clerk enters the “common order.” when he should hare issued a new summons, this is a clerical misprision by the clerk, and the office judgment may be amended under Va. Code 1873, ch. 177, §§ 5 and 6, p. 1135.
Executor-Judgment De Bonis Propriis.—Where a judgment by default de bonis propriis is erroneously •entered against an executor, it is a clerical error to be amended upon motion to the lower court, and is not a ground of appeal to the higher court. Sneed v. Coleman, 7 Gratt. 300, 56 Am. Dec. 112.
Error in Order of Court.—But an error in the order of the court, or an omission to make an entry in the order book is not a clerical, but a judicial error. Oawood’s Case, 2 Va. Cas. 527.
Failure of Clerk to Notice Memorandum.—Where the clerk enters up a judgment by nil dicit, in debt on bond for the payment of tobacco, without noticing a memorandum indorsed on the bond, such mistake is merely clerical and amendable upon motion, at a subsequent term. Gordon y. Frazier, 2 Wash. 130.
Bond for $188, Declared on as Bond for $108.—On the other hand, where an action of debt is brought upon a bond for $188, but is declared on as a bond for $108, the bond being in fact for $188, this is not such a clerical error as may be amended under the 108th section of the statute of jeofails, 1 Rev. Code, ch. 128, p. 512. Compton v. Cline, 5 Gratt. 137.
Error Must Be Apparent.—Where, by an error of the clerk, a judgment by confession is entered, instead of a nil dicit, this is not such a clerical misprision as can be corrected by the court at the next term, under either the first or the fifth sections of ch. 181, of the Va. Code, p. 680, which only applies where the error appears in some part of the record. Richardson v. Jones, 12 Gratt. 53.
Error Must Appear of Record.—The amendments authorized by Va. Code, ch. 181, § 5. p. 181, providing for the reversal and amendment of judgments in certain cases in the same court, at a subsequent term, or by the judge in vacation, are to be based upon something in the record, and not upon the recollection of the judges who presided at the trial, or by evidence aliunde. Powell’s Case, 11 Gratt. 822; Richardson v. Jones. 12 Gratt. 53.
Copy of Judgment Does Not Show Where or When It Was Rendered.—it was held in Cox v. Thomas, 9 Gratt. 312. that though the copy of the judgment against the high sheriff in the record, does not show in what court or when it was rendered, it is a mere clerical omission in copying the judgments into the record, and if these facts appear from any other part of the record, it will be held sufficient in the appellate court, when the objection was not añade in the court below.
Informality in the Entry.—Any informality in the entry of the judgment by the clerk must be corrected in the court below, and is no ground for reversal in the appellate court. Roach v. Blakey, 89 Va. 767, 17 S. E. Rep. 228.
Error in Taxation of Costs.—Where the appellate court has a case before it properly on other grounds, it will correct any error in the court below as to costs, though it would not for that alone reverse. Farmers’Bk. v. Woodford, 34 W. Va. 480, 12 S. E. Rep. 544.
If an appeal is taken from a decree of the circuit court to the court of appeals and the case is within its jurisdiction, the matter in controversy must be inquired into and determined, and if the decree be found to be right, in all other respects, and erroneous as to costs, the court of appeals will not reverse the decree, because of such error, as to costs; but may, in the proper case, correct the decree, as to the error, and affirm it, as corrected. Jones v. Cunningham, 7 W. Va. 707; Railroad Oo. v. Harness, 24 W. Va. 511.
A judgment for costs in favor of the “overseers of the poor for the use of the woman,” where the case proceeds in the name of the woman, is not an error, of which the defendant can complain. Tennant v. Brookover, 12 W. Va. 338.
Justices’ Judgments—Good Grammar—Tenses.—By § 180, ch. 50 of the W. Va. Code, all formalities in the entry of a justice’s judgment are dispensed with, and it is sufficient if the truth be stated so as to be intelligible. “Good grammar is not essential to a good judgment. The mistake of a proper tense will not render a justice’s judgment unintelligible or invalid. Justices are not usually educated men, learned either in the intricacies of law or grammar, hence their records must be scanned with the greatest leniency.” Davis v. Trump, 43 W. Va. 191, 27 S. E. Rep. 397.
Statutory Provisions.—Section 2451 of the Va. Code, provides for the correction of such errors as misprisions of the clerk and what may be termed clerical misprisions of the court. This has been the construction heretofore placed upon the statute. It has no application to errors in the reasoning and conclusions of the court about contested matters. Ship-man v. Fletcher, 91 Va. 473, 22 S. G. Rep. 458. See also, Rees v. Conococheague Bank, 5 Rand. 326.
Amendments to Support Judgment.—The amendments authorized by Va. Code, ch. 181, § 5, p. 681, providing for the reversal and amendment of judgments in certain cases in the same court, are amendments to support the judgments, not amendments to give ground for reversing it. Powell’s Case, 11 Gratt. 822.
Correction on Motion.—Under Va. Code, 1873, ch. 177, §5, upon notice to the opposite party, his agent, or attorney at law or in fact, the court wherein the decree is rendered, may on motion, correct such decree as to any clerical error therein where there is sufficient in the record to enable the court to safely amend the same. Dillard v. Dillard, 77 Va. 820.
The power of amendment, allowed by 1 Rev. Code 512, § 108, applies to a motion as well as to an action, and extends to the general court. Com. v. Winstons, 5 Rand. 546.
Applies to Mistakes and Misrecitals.—The second clause of §5, ch. 134 of the W. Va. Code, authorizes amendments and corrections only in cases of mistakes and misrecitals when the same may be safely amended from some other part of the record. The clause is confined to mere clerical and not judicial errors. Judicial errors, where the judgment is not by default, can be corrected only by an appellate court. Stringer v. Anderson, 23 W. Va. 482. See also, Connor v. Fleshman, 4 W. Va. 693; Railroad Co. v. Harness, 24 W. Va. 511.
Applies to Judgments by Default, and to Decrees Confessed—Va. Code, § 3451, applies only to judgments by default and to decrees on bills taken for confessed, and to cases of mistake or miscalculation, for which no appeal lies to the supreme court. Thompson v. Carpenter, 88 Va. 702, 14 S. E. Rep. 181; Stringer v. Anderson, 23 W. Va. 482.
*204D. WRIT OF ERROR CORAM NOBIS.
When It Lies.—A writ of error coram nolis lies where some defect is alleged in. the process or execution thereof, or some misprision of the clerk, or some error in the proceedings arising from a fact not appearing upon their face, as where judgment is rendered against a party after his death, or who is an infant or feme covert. Gordon v. Frazier, 2 Wash. 130; Bent v. Patten, 1 Rand. 25; Richardson t. Jones, 12 Gratt. 53.
When It Does Not Lie.—But a writ of error coram nobis does not lie to correct any error in the judgment of the court, nor to contradict or put in issue a fact directly passed upon and affirmed in the judgment itself. If this could be done there would be no end to litigation, and little security for the titles to property. Richardson v. Jones, 12 Gratt. 53.
Insanity.—A writ of error coram nobis, ora motion in lieu of it, is not a proper process to reverse a judgment, because the defendant was insane at the time of its rendition, as the judgment can be attacked for such cause only in equity. Withrow v. Smithson, 37 W. Va. 757, 17 S. E. Rep. 316.
Death before Judgment Obtained.—But an injunction ought not to be granted on the ground that the plaintiff was dead before the judgmentwas obtained in his name. This error should be rectified by a writ of error coram nobis. Williamson v. Apple-berry, 1 H. & M. 206.
Where a clerk commits a merely clerical error in entering up a judgment, the injured party may if he please, proceed by writ of error coram nobis, which is a plain, cheap, summary, and complete remedy at law, but the proceeding now, is merely by motion to the court. Gordon v. Frazier, 2 Wash. 130; Goolsby v. St. John, 25 Gratt. 146.
Limitation to Proceedings.—The statute of limitations of writs of error, if it applies to writs of error coram nobis at all, cannot be relied on without being pleaded. Eubank v. Ralls, 4 Leigh 308.
E. REVERSAL-GROUNDS.
Harmless Error.—Where it is proper that the court, and not the jury, should pass on a matter, and find thereon, but a jury finds upon it, and the court renders judgment; if the judgment is the same as the court should have given if it had expressly found on such matter, this error is harmless, and not a cause for reversal. Miller v. White, 46 W. Va. 67, 33 S. E. Rep. 332.
Nor will judgment be reversed for errors not prejudicial to the complaining party. Johnson v. Jennings, 10 Gratt. 1.
Error of New Cents.—A judgment regularly obtained should not be set aside for an error of a few cents in the amount for which the judgment should have been rendered. The rule de minimis lex non curat should be applied. Ramsburg v. Kline, 96 Va. 465, 31 S. E. Rep. 608.
Judgment Includes Both Declaration and Bill of Particulars.—A judgment sustaining a demurrer to both the declaration and bill of particulars will not be reversed for having included both, where the counsel agreed in writing that the case as made by both should be considered. King v. Norfolk,' etc., Ry. Co., 99 Va. 625, 39 S. E. Rep. 701.
Imperfect Statement in Bill of Exceptions.—In Beattie v. Tabb, 2Munf. 254, judgmentwas reversed, because the bill of exceptions stated the facts imperfectly. See also, Barrett v. Tazewell, 1 Call 215.
Refusal to Strike Out Special Plea.—A judgment will not be reversed, on appeal for refusal to strike out a special plea of matter which could have been admitted under the general issue, since a judgment can only operate as an estoppel as to facts which are specially pleaded. C. & O. R. Co. v. Rison, 99 Va. 18, 37 S. E. Rep. 320.
Refusal to Grant Continuance.—But a judgment may be reversed on the ground that a continuance of the cause should have been granted, instead of ruling the party to trial when unprepared. Hook v. Nanny, 4 H. & M. 157.
Jointure.—In averring a jointure in bar of dower, the failure to state in the plea, that the husband “being seized in fee of the premises” made the jointure, is not a substantial defect, nor sufficient to authorize the reversal of a judgment for the tenant, the defendant having failed to assign it as a cause of demurrer. Ambler v. Norton, 4 H. & M. 23.
Erroneous Instruction.—A judgment for the plaintiff ought not to be reversed, on the ground that the court, at the instance of the defendant, gave an erroneous instruction to the jury. Murrell v. Johnson, 1 H. & M. 45Ó; Preston v. Harvey, 2 H. & M. 55.
“A judgment will not be reversed by the appellate court for an erroneous instruction, if it can clearly see that the losing party could nothave been prejudiced by it. In Kincheloe v. Tracewells, il Gratt. 587, 609, this court said ; 'If the questions involved in the instructions, are decided erroneously the judgment should not on that account be reversed, if the court can see from the bill of exceptions that they did not and could not affect the merits of the case before the jury.’” Danville Bank v. Waddill, 27 Gratt. 448; Binns v. Waddill, 32 Gratt. 588, and note.
Judgment Depending on Prior Judgment.—A judgment depending on a prior judgment, which prior judgment is reversed, may be reversed without error apparent on the record of the subsequent judgment, other than the connection between the subsequent and the prior reversed judgment. Conway v. Hall, 1 Va. Cas. 6.
Admission of Improper Evidence.—But a judgment ought not to be reversed on the ground that improper evidence offered to the jury by the appellant, was admitted by the inferior court, where it appears that such evidence did not influence the verdict. Hamlin v. Harriss, 2H. & M. 550; Harrison v. Brock, 1 Munf. 22.
Admission of Illegal Evidence.—So also, a judgment ought not to be reversed on the ground that the court below admitted illegal evidence, or gave an erroneous instruction to the jury, unless it appears that some injury could possibly haveresulted therefrom to the party appealing. Preston v. Harvey, 2 H. & M. 55.
Compelled to Join in Demurrer to Evidence.—Nor ought a judgment to be reversed on the ground that the court erroneously compelled the other party to join in a demurrer to evidence. Harrison v. Brock, 1 Munf. 22. See also, Rheims v. Ins. Co., 39 W. Va. 672, 20 S. E. Rep. 670.
Exclusion of Evidence—Relevancy.—Moreover, the judgment of a court shall not be reversed for excluding evidence, unless the case stated in the record shows the relevancy of the evidence excluded. Rowt v. Kile, 1 Leigh 216.
Re-examination of Witnesses.—And a judgment will not be reversed because the court permitted witnesses to be recalled for further examination in chief, unless the second examination was palpably improper. Tate v. Bank, 96 Va. 765, 32 S. E. Rep. 476 ; Burke v. Shaver, 92 Va. 352, 23 S. E. Rep. 749 ; Brooks v. Wilcox, 11 Gratt. 411 ; Fant v. Miller, 17 Gratt. 187.
*205Joint and Several Note of Three.—A judgment cannot be set aside on the ground that the note upon which the judgment was rendered, was the joint and several note of three persons, while the action was brought and judgment obtained against only two of them. No evidence conld be introduced on that subject until after the judgment had been set aside. Such evidence might be used after the judgment was set aside in order to prevenía new judgment, but not to set aside a judgment already in force. Ramsburg v. Kline, 96 Va. 465,31S. E. Rep. €08.
Effect of Striking Out Part of Erroneous Judgment.—
When a plaintiff, who has recovered a judgment which, as rendered, is clearly erroneous, seeks to avoid a reversal by striking out a part of the judgment, it is incumbent on him to satisfy the court either by materials in the record or by fair presumption, that this can be done without injustice to the defendant. If he cannot do this, the defendant is entitled to have the erroneous judgment reversed. Orange, etc., R. Go. v. Fulvey, 17 Gratt. 366.
Rule under Statute,—Under Va. Code 1873, ch. 177, §3, judgment will not be reversed for any defect, imperfection, or omission in the pleadings, unless, in the court below, there was a demurrer. The statute is held to cure a defective statement of a good cause of action, but will not validate a declaration which does not state any canse of action at all. Roanoke Rand &Imp. Co. v. Karn, 80 Va. 589; Raughlin v. Flood, 3 Munf. 273; Boyles v. Overby, 11 Gratt. 202.
1. Extent or Reversal.
Reversal of Part of Judgment.—A judgment may sometimes be set aside in whole or in part only. Enos v. Stansbury, 18 W. Va. 477. See also, W. Va. Code, ch. 131, § 19.
Though at common law a joint judgment erroneous as to one must be reversed as to all, still this rule does not apply to void judgments, which are mere nullities. Gray v. Stuart, 33 Gratt. 351.
Reversal as to One Party.—At common law, a judgment erroneous as to one is erroneous, and must be reversed, as to all; but in equity, under the statute, if only one appeals from a joint decree, and the rights of the parties stand on different and separable grounds, there may be a reversal only in part. Vance Shoe Co. v. Haught, 41 Va. 275, 23 S. E. Rep. 553; Midkifl v. Rusher, 27 W. Va. 439; Hoffman v. Bircher, 22 W. Va. 537; Gray v. Stuart, 33 Gratt. 851.
Where the principal and sureties are sued jointly, and the judgment is erroneous as to the sureties, it must be reversed as to all, although the judgment would have been good against the principal, if he had been sued alone. Munford v. Overseers of the Poor, 2 Rand. 313.
Where an office judgment is obtained against two defendants ón a promissory note, and is erroneous as to one, it ought to be set aside as to both. Cole v. Pennell, 2 Rand. 174.
Joint Judgments.—But a joint judgment cannot be reversed as to one defendant, and affirmed as to the other. Jones v. Raine, 4 Rand. 386.
Validas to One.—Though at common law a joint judgment erroneous as to one must be reversed as to all, yet such is not the rule when the judgment is valid as to one party and absolutely void as to another. Gray v. Stuart, 33 Gratt. 351.
Effect on Execution.—When a j udgment is set aside, the execution which is issued upon it falls with it, without any express order to quash the execution. Ballard v. Whitlock, 18 Gratt. 235.
Procedure.—A j udgment can be set aside or altered only in the mode prescribed, and by the court or officer invested with jurisdiction to do so by law. Marshall v. Cheatham. 88 Va. 81, 13 S. E. Rep. 308.
Disposition of Case on Reversal.—Where the county court has decided in favor of the putative father, and the overseers of the poor have spread the facts upon record by an exception, and taken an appeal to the circuit court, that court upon reversing the judgment of the county court, should not send the cause back for a new trial, but should render a judgment in favor of the overseers of the poor for the amount appearing due, but without interest. Willard v. Overseers of the Poor, 9 Gratt. 139.
If the right judgment be rendered in the county court, and upon an appeal to the district court, the clerk sends up an erroneous record, on which the judgment is affirmed, that court will, upon a view of the record of the county court, reverse that of the district court, and direct them to issue a writ of certiorari for the true record, so that the right judgment may be given. Williams v. Slrickler, 3 Call 231.
Where a pecuniary judgment has been rendered against a defendant in a criminal case, and he pays, and upon appeal the judgment is reversed, the cause will be remanded to the court below, for an order of restitution to be made therein, if the money is yet in the hands or power of the court. Oldv. Com., 18 Gratt. 915. See Anderson v. Dudley, 5 Call 529.
Giving Such Judgment as Inferior Court Should Have.—An appellate court ought not to reverse the judgment, without proceeding to give such judgment as the inferior court should have given. Darby v. Henderson, 3 Munf. 315; Blane v. Sansnm, 2 Call 496; Smith v. Walker, 1 Wash. 135. See Anderson v. Nagle, 12 W. Va. 98; Anderson v. Dudley, 5 Call 529.
District Court.—A district court ought not, in any case, merely to reverse the judgment of a county court in general terms** but should proceed to render such judgment as the county court ought to render. Manta v.Hendley, 2H.&M. 308.
Where the court below has given judgment for the plaintiff in a scire facias, against bail, for too large an amount, the appellate court will reverse the judgment, and enter judgment for the proper sum. Bowyer v. Hewitt, 2 Gratt. 193.
It is the constant course of the court to look into the whole record, and to give the judgment which the court below ought to have given. Baird v. Mattox, 1 Call 257.
“Upon reversing a judgment at law, we must enter such judgment as the court below ought to have entered, and we can entertain no motion here for amendment.” Tucker. P. Wilson v. Bank of Mt. Pleasant, 6 Reigh 570.
Constitutional Law.—Section 35 of art. 8 of the W. Va. Constitution, does not authorize the setting aside of the judgments therein specified and the granting of new trials thereon. The judgments must stand, until by due process of law it is ascertained that they were rendered “because of acts done according to the usages of civilized warfare in the prosecution of the war,” and when so ascertained such judgments are nullities. Williams v. Freeland, 19 W. Va. 599; Griffee v. Halstead, 19 W. Va. 602; Peerce v. Kitzmiller, 19 W. Va. 565; White v. Crump, 19 W. Va, 583.
*2062. Award op Damages on appirmance.
Affirmance—Statute.—The statute allowing damages oh affirmance (Acts of 1830-31, ch. 11, § 32, Suppl. to R. C. p. 149), does not apply to the affirmance of a judgment imposing an amercement or fine; the amercement or fine not being a debt or damages, within the meaning of that act. But though the judgment of affirmance in such case awards damages according to law for retarding the execution, yet as no specific damages are thereby adjudged, and the law gives none, the error is merely formal, and the appellate court will disregard it. Abrahams’ Case, 1 Rob. 675.
Effect of Statute on Pending Cases.—A statute awarding damages on affirmance does not apply to cases pending when the statute went into effect. Beatty v. Smith, 2 Hen. & M. 395.
Amount of Damages Awarded.—1 Rev. Code, ch. 109, § 32, p. 149, provides that “Henceforth, upon the affirmance of any decree or judgment whatsoever, of any inferior court by any appellate court, no damages shall be awarded to the party prevailing,' beyond legal interest on the debt or damages, or profits of property adjudged, and the costs.” See Mulliday v. Machir, 4 Gratt. 1, for this statute.
It was held in Guerrant v. Tayloe, 2 Call 208, that if there be a judgment against a sheriff, for the amount of money levied on an execution with the thirteen per cent, damages, and he appeals, the appellee, by waiving the ten per cent, damages, for retarding the execution, and taking a simple affirmance of the judgment, may still have his fifteen per cent, damages, according to the judgment of the court below.
No Damages on the Costs.—where the appellate court reverses the judgment as to costs, the successful party is not entitled to damages on the costs. Hudson v. Johnson, 1 Wash. 10; M’Rea v. Brown, 2 Munf. 46.
X. JUDGriENTS IN CRIMINAL CASES.
A. PRESENCE IN COURT.—Unless expressly authorized by statute, no court can give judgment of imprisonment, or other corporal punishment, unless the defendant is present in court. Com. v. Crump, IVa. Cas. 172; State v. Campbell, 42 W. Va. 246, 24 S. E. Rep. 875.
Rule Modified by Statute.—In Virginia, however, the rule of the common law that judgment for corporal punishment can be pronounced against a man only when he is personally present is, in cases of misdemeanor, modified by Va. Code, § 4076, providing that no capias to hear judgment shall be necessary in any prosecution for a misdemeanor, but that the court may proceed to judgment in the absence of the accused, and if such judgment requires-confinement in jail the court may make such order as may be necessary for the arrest of the person, against whom such judgment is, and for the execution thereof. Shiflett v. Com., 90 Va. 386, 18 S. E. Rep. 838 ; Price v. Com., 33 Gratt. 819.
Therefore, as in a misdemeanor, the personal presence of the defendant is not necessary at the trial; a verdict and judgment for the fine may be found and rendered in his absence ; and after the term he must neither move for a new trial nor in arrest of judgment. But until final judgment he 'may so move. Pifer’s Case, 14 Gratt. 710.
Reason for Rule.—“Where a man is to receive any corporal punishment, judgment cannot be given in his absence and the reason is that there is a capias pro fine, but no process to take a man and put him on a pillory.” Pifer’s Case, 14 Gratt. 710.
Record Must Show Presence.—It seems to be well settled that, in order to sustain a judgment of conviction, the record must show that the prisoner appeared in person, and not by attorney. Sperry v. Com., 9 Leigh 623, 33 Am. Dec. 261; Hooker v. Com., 13 Gratt. 763, and note.
Rendition at Same Term.—But, where, at the-same term of the court, it sets aside an erroneous judgment and renders a proper one, it is not necessary that the defendant should be present in court, when the second judgment is entered. Price v. Com., 4Va. Law Jour. 426, 33 Gratt. 819, 36 Am. Rep.. 797.
Verdict Wrong—Court Should Render Proper Judgment.—Where on trial of the issue on an indictment for burglary, the jury returned a verdict of guilty as charged in the indictment, and the prisoner moved in arrest of judgment, which the court overruled, and sentenced the prisoner to the penitentiary, it was held that the judgment could not be rendered on the verdict, and the court should, on the verdict, have rendered a proper judgment for petit larceny. State v. Hupp, 31W. Va. 355, 6 S. E. Rep. 919.
Sentence by Circuit Court.—A prisoner being sentenced by the court of oyer and terminer before which he was tried, to confinement in the penitentiary for a shorter term than is authorized by the law for the offence ofwhichhe was convicted, thecircuit court of Henrico county and the city of Richmond may, upon the proper proceedings had before that court, correct the error and sentence the prisoner for the shortest period fixed by tl\e statute for the offence of which he was convicted. Logan's Case. 5 Gratt. 692.
Fine.—Where on a prosecution for a misdemeanor,, there is a verdict against the defendant for a fine, and the court enters up a judgment thereon for the fine and costs, and directs a capias ad audiendum against the defendant, and at a subsequent term sentences him to six months’ imprisonment in the county jail, it was held that the judgment for the fine and costs was final, and no further judgment could be rendered in the case. The judgment for the imprisonment was therefore erroneous. Pifer’s. Oase, 14 Gratt. 710.
Rendition for Fine Only.—Where an offence is punishable with fine and imprisonment, a superior court may render j adgment for the fine only. Com. v. Crump, 1 Va. Cas. 172.
Verdict on Bad Count.—But where the verdict is-based on a bad count the court cannot sentence thereon. State v. Cottrell, 45 W. Va. 837, 32 S. E. Rep. 162.
Several Distinct Terms.—A prisoner convicted of several distinct felonies may be adjudged to undergo several distinct terms of confinement in the penitentiary, the several imprisonments to commence respectively, from and after the expiration-of prior imprisonments adjudged against him. Com. v. Leath, 1 Va. Cas. 151.
Recital of Judgment.—“It is hardly necessary to say that a mere recital in a felony case that judgment was entered cannot be treated as equivalent to a judgment. The record must affirmatively show the sentence itself. Spurgeon’s Case, 86 Va. 652, Id S. E. Rep. 979. And as this is not shown by the record in the present case, it follows that there was nothing upon which the writ of error from the circuit court could operate, and, consequently, that the proceedings in that court were coram non judice and *207void, Saunders v. Com., 79 Va. 522.” Read’s Case, 90 Va. 168, 17 S. E. Rep. 855.
Entry of Proper Judgment.—Where the lower conrt enters an erroneous judgment or sentence, the judgment will he reversed for this error, and the proper judgment entered. Brooks’ Case, 4 Leigh 669; Murry’s Case, 5 Leigh 720; Hall’s Case, 6 Leigh 615.
Cause Must Be Remanded.—But under W. Va. Acts 1893, ch. 18, i 19, the circuit court, on reversing the judgment of an inferior court in whole or in part, hecause erroneous, is not permitted to enter up such judgment as the inferior court should have rendered, hut it must “remand the same hack” that a final judgment may be entered. State v. Bluefield Drug Co., 41 w. Va. 638, 24 S. E. Rep. 649; State v. Mooney, 27 W. Va. 546. But see State v. Gould, 26 W. Va. 258.
XL ACTIONS ON JUDGMENTS.
Judgment Conditioned on the Existence of Assets.— An action of debt or scire facias may he brought upon a judgment “when assets,” or “if assets”; and if upon the plea of plene administrara, issue is found for the executor or administrator, the plaintiff may take another judgment when assets. Braxton v. Wood. 4 Gratt. 25.
In this case the court said; “The plaintiff in thus proceeding upon his judgment guando acciderint accomplishes one of two objects, both of which are perfectly legitimate. If he can show that further assets unadministered have come to the defendant’s hands since the former judgment, or rather since the former plea of fully administered, he converts his qualified judgment guando acciderint into an absolute judgment de bonis testatoris, and thereby obtains priority over other creditors in equal degree who have not recovered judgment. If he fails in this, still he revives and keeps alive his former judgment, so as to enable him to subject any assets which may yet accrue after the second judgment.
There is express authority to prove that in a scire facias upon a judgment guando acciderint, where assets are found as to part, judgment shall be given to recover so much immediately, and the residue of assets in futuro. Perryman v. Westwood, cited in 1 Vent. 95, and Sid. 448; 2Wms. Ex’ors, 1231; 2 Tidd’s Pract. 1019. I have seen no case where upon such a proceeding and no assets whatever found, judgment has been given for satisfaction out of future assets; and I have seen none to the contrary. But there is no reason for a distinction between a partial and a total failure of assets. If the scire facias ought to be barred or abated as to the whole where it is found there are no present assets, the same result ought to follow in regard to any part as to which there is the same finding; and if it is proper to take judg. ment guando acciderint as to part where there are not present assets to satisfy that part, it is equally proper, the like state of things existing, to take such judgment in regard to the whole.”
See monographic note on "Debt, the Action of” appended to Davis v. Mead, 13 Gratt. 118.
A judgment when assets refers to the time of the plea pleaded, and, as to assets received after that time, no enquiry can be made in that suit. Gardner v. Vidal, 6 Rand. 106.
Creditors’ Bills.—A foreign jndgment is a debt, upon which a suit in equity can be maintained to avoid a fraudulent or voluntary conveyance without first obtaining a judgment at law under Code W. Va. 1868. ch. 133, § 2. Watkins v. Wortman, 19 W. Va. 78.
Eifect oí Pending Appeal.—An action rtiay be maintained upon a judgment in Virginia, rendered by the court of Texas, notwithstanding the pendency of appellate proceedings of Texas, but the Virginia conrt may order that no execution shall be issued on the judgment obtained in such action, provided the defendant gives bond and security conditioned to satisfy the judgment and pay all damages, cost, and fees, etc., in case the writ of error pending in Texas shall be determined adversely to the defendant. Piedmont, etc., Co. v. Ray, 75 Va. 821.
Record Destroyed Pending Appeal.—Also, where a defendant, against whom a judgment was rendered took an appeal therefrom, but pending the appeal, the record of the judgment was destroyed by lire, nevertheless the plaintiff is entitled to recover by action of debt on the judgment, notwithstanding the appeal taken from the judgment. Newcomb v. Drummon d, 4 Leigh 57.
Effect of Supersedeas.—Under art. 4, § 1, of the Constitution of the United States, and the act of congress of May 26,1790, a writ of error, not operating as a supersedeas, from the supreme appellate court of Texas to a judgment of a district court of that state, will be regarded as having the same effect in Virginia as in Texas. Piedmont, etc., Co. v. Ray, 75 Va. 821.
Issuance of Executlon.—l R. C. 1819, p. 489, ch. 128, sec. 5, declaring that where execution has issued and no return is made thereon, the party in whose favor the same was issued may obtain other executions for ten years from the date of the judgment and not after, does not bar such party from maintaining an action of debt on the judgment after ten years. Herrington v. Harkins, 1 Bob. 591; Fleming v. Dunlop, 4 Leigh 338, opinion of Tuokeb, P. But see Dabney y. Shelton, 82 Va. 349, 4 S. E. Rep. 605.
Executors and Administrators.—At common law,, joint obligations and joint judgments could only be enforced against the surviving obligors or defendants. The death of any of such obligors, or defendants, absolved their personal representatives, from all responsibility. Roane v. Drummond, 6 Band. 182.
But under statute, where a joint judgment is obtained against two defendants, and one dies, an action of debt on the judgment lies against the representative of the deceased defendant; the law respecting partitions, joint rights and obligations, 1 Rev. Code 359, being applicable to joint judgments.. Roane v. Drummond, 6 Rand. 182.
Action by Administrator De Bonis Non.—An administrator de bonis non may maintain an action of debt, on a judgment obtained by the executor. Dykes y. Woodhouse, 3 Rand. 287; Wernick v. Mc-Murdo, 5 Rand. 51.
Persons in Representative Capacity.—But a personal judgment or decree against an executor or administrator, or administrator de bonis non, who is sued in his representative character only, is fatally erroneous. Jones v. Reid, 12 W. Va. 350, 29 Am. Rep. 455; Spotswood y. Price, 3 II. & M. 123; Pugh y. Jones, 6 Leigh 299; Wills v. Dunn, 5 Gratt. 384; Humphreys v. West, 3 Rand. 516.
Judgment to Be Discharged by a Lesser Sum.—In an action of debt on a judgment Cor a certain sum to be discharged by a lesser; if the declaration demands a wrong sum, and no special demurrer is filed, the error is cured by the statute of jeofails, there being enough in the declaration to show the true amount of the judgment. A verdict which finds an erroneous sum, “that being the debt in the declaration. *208mentioned,” is substantially good, the sum being surplusage, and the conclusion of the verdict being, of itself, sufficient to show the real sum demanded. Roane v. Drummond, 6 Rand. 182.
Extent of Recovery.—A high sheriff, against whom a judgment is rendered, for the default or misconduct of his deputy, is entitled to recover of the deputy, not only the amount of the original judgment, but all additions thereto arising from the coroner’s commissions included in a forthcoming bond, costs of the judgment on that bond, and costs and damages on appeals, or writs of supersedeas, until its affirmance by the court of appeals. But a judgment in his favor against the deputy, if rendered for more damages than have been recovered against himself, ought to be reversed with costs. Stowers v. Smith, 5 Munf. 401.
Limitation to Sue.—The Act of 1 Rev. Code, ch. 128, § 5, p. 489, limiting proceedings upon judgments, applies to judgments “when assets” or “if assets” and will begin to run from the date of the judgment. Braxton v. Wood, 4 Gratt. 25.
Judgments Quando Acciderint.—But it was held in Smith v. Charlton, 7 Gratt. 425, that a judgment guando acciderint does not come within the operation of the statute of limitations in relation to judgments.
Revival against Personal Representative.—Moreover, a judgment obtained against a testator in his lifetime, and not revived against his personal representative after his death, within five years from the time of his qualification, is barred by the statute of limitations. Peyton v. Carr, 1 Rand. 436.
A. PLEAS.
1. Not Tiel ÍIecord.
Foreign Judgment.—If the court rendering a judgment is a foreign court, it is not judicially known by us as a court of record, and its judgments are mot considered as records, hence it follows that the plea of nul tiel record is bad, because it is not applicable to foreign judgments. Draper v. Gorman, 8 Leigh 629.
“The maxim of the law is, that the judgment of a court of general jurisdiction, imports absolute verity, and its truth cannot be questioned, either by showing, otherwise than by the record itself, that the court had no jurisdiction, or that its jurisdiction was fraudulently obtained. Both upon the merits of the cause of action, and upon all jurisdictional facts, the record imports absolute verity in law, and is to be tried by the court upon inspection of the record only. Hence at law, the validity of the judgment can be put in issue by the plea mil tiel record only, and if on inspection it turns out that the plea is not true, there is an end of the controversy. If its validity is to be impeached from without some other appropriate remedy must be found.” Wandling v. Straw, 25 W. Va. 692. See Smith v. Johnson, 44 W. Va. 278, 29 S. E. Rep. 509.
2. Nil Debet.—The plea of nil debet is not a good plea to an action of debt on a judgment of another state of the Union, for the reason that the judgments of sister states, being regarded as domestic judgments, are conclusive in other states, and hence the merits cannot be re-examined. Kemp v. Mundell, 9 Leigh 12.
In an action of debt brought in Virginia upon a judgment of the circuit court of the District of Columbia, a plea of nil debet is proper, but a special plea, alleging that the judgment was recovered on a bill of exchange drawn while the party was in a state of intoxication is an improper plea. Draper v. Gorman, 8 Leigh 628.
District of Columbia.—In was the unanimous opinion of the court in Draper v. Gorman, 8 Leigh 628, that the judgments of the District of Columbia are to he regarded as foreign judgments in the courts of Virginia, and hence the plea of nil debet, in action on such judgment, would be a good plea. The court based its opinion on the ground that the full faith and 'credit clause of the constitution of the United States and the acts of congress did not apply to the District of Columbia but only to the states.
In an action of debt on judgments of the courts of Kentucky the plea of nil debet is not a good plea. That plea assumes that the judgment is not conclusive, and if issue were taken on the plea, the plaintiff would waive the conclusive effect of his judgment; this he can only assert by a demurrer to the plea. Clarke v. Day, 2 Leigh 172.
“It is abundantly clear th^t the plea of nil debet is, in this view of the case, the proper plea. The proceedings of a foreign court are never looked upon as a record, because they have not the force of a record. This position requires neither argument nor authority for its support." Tucker, P. Draper v. Gorman, 8 Leigh 628.
Brooke, J., in Kemp v. Mundell, 9 Leigh 17, in referring to his opinion in Clarke v. Day, 2 Leigh 172, said: “I then entertained the opinion I do now,— that the judgments of our sister states, under the constitution of the United States and the acts of congress in pursuance thereof, are to be treated as domestic judgments; and that the effect of such judgments in the state from which they come, is a question of law, not a question of fact as in the case of foreign judgments. And I was surprised to hear it argued to the contrary in this case.”
Thus, it will be observed that where the courts decide that a judgment of another state is a domestic judgment, and hence conclusive, the plea of nil debet is inadmissible, but, on the other hand, where they decide that such judgment is a foreign judgment, and for that reason not conclusive upon the courts of the home state, then the plea of nil debet is admissible. Clarke v. Day, 2 Leigh 172; Draper v. Gorman, 8 Leigh 628.
Defence of Want of Jurisdiction.—In any action or proceeding at law upon a judgment of a court of general jurisdiction between the parties thereto, in which such judgment may properly be used as evidence of the right thereby established, the defendant as a matter of defence at law cannot show that the court did not acquire jurisdiction of the defendant, except by an inspection of the record. Wandling v. Straw, 25 W. Va. 692.
How Pleaded.—Where the defence of want of j urisdiction is set up, such defence ought to be specially pleaded, and cannot be m ade under the plea of nul tiel record, nor nil debet. Bowler v. Huston, 30 Gratt. 266.
General Issue.—“In those states, where the plea of nil debet is held to be a good plea to an action of debt on the judgment of a sister state, the defendant may impeach the justice of it under the plea of nil debet, upon the ground that he never had notice of the proceeding. But the party may also plead the matter specially, even in those states. And in those states in which nil debet is not a good plea, it is obvious, that the defendant is compelled to plead the special matter.” Tucker, P. Wilson v. Bank of Mt. Pleasant, 6 Leigh 570. See also, Draper v. Gorman, 8 Leigh 628.
*209Duplicity in Plea. “In Wilson v. Bank of Mt. Pleasant, 6 Leigh 570, the defendants pleaded that they never executed the power under which the j udgment sued on was confessed, and that they had no notice of the commencement or pendency of the suit in the state where the judgment was rendered. The court held that an objection to the plea on the ground of duplicity was not sustainable.
Amendment of Declaration.—Upon trial of the issue of nal Mel record, the court may allow an amendment of the declaration; and, if the defendant consents, may proceed with the trial. But if the suit be in the same court in which the judgment was rendered, it is error to inspect a transcript only, instead of the original record. Anderson v. Dudley, 5 Call 529.
Abstracts as Evidence.—An abstract as applied to records means ordinarily a mere brief, and not a copy from which it is taken, and a paper writing being only an abstract of an alleged judgment, and attested as an abstract, although attested by the clerk of the court in which the judgment was rendered, cannot ordinarily be read as proof of the alleged judgment, where the existence of the judgment is denied. Dickinson v. Railroad Co., 7 W. Va. 390.
XII. EQUITABLE RELIEF AGAINST JUDGMENTS.
A court of chancery, under our system of jurisprudence, is not invested with power to annul a judgment, set aside the verdict of the jury and order a new trial at law. It may act on the parties, but not directly on the judgment, nor on the court which rendered it. A judgment by a court having jurisdiction to render it, can be vacated only by some direct proceeding at law, either in the court in which the judgment was recovered or some other court having appellate jurisdiction. Wynne v. Newman, 75 Va. 811.
Refusal to Decide Points of Law.—Wherever a case is fully and fairly tried in a court of law, the decision is so far binding, that it can only be examined by an appellate court, and the chancery court cannot interfere, but if the court of law refuses to decide points of law, or to reserve them, it will submit such points to the jury, and if they decide inequitably, chancery may interfere. Picket v. Morris, 2 Wash. 255.
Suppression of Evidence.—if the parties in an action at law are at liberty by the issue to go fully into the examination of the evidence, and having done so, a verdict is found, after a fair trial, a court of chancery ought not to direct another trial, unless a part of the evidence was suppressed by the court. Ambler v. Wyld, 2 Wash. 36.
But the rule now is that after the canse has been once fully decided, by a court of common law, equity will not grant relief against the j udgment. Terrell v. Dick, 1 Call 546.
Judgment on Forthcoming Bond.—Judgment on a forthcoming bond, cannot be relieved against in equity on the ground that a slave which, by the condition of the bond, was to be forthcoming on a given day, had run away and could not be produced, even if a more valuable slave was offered in his .stead. Cole v. Fenwick, Gilmer 134.
Failure to Secure Evidence.—But where the judgment debtor could not secure the evidence for his defence until too late to move for a new trial, relief will be granted against the judgment in equity. Vathir v. Zane, 6 Gratt. 246; Harvey v. Seashol, 4 W. Va. 115.
Gaming Debt.—A court of equity has jurisdiction to relieve against a judgment founded on a gaming debt, although the party failed to defend himself at law, and gives no good reason for such failure, and though he made no effort to obtain a new trial in the common-law court. Skipwith v. Strother, 3 Rand. 214; Whitev. Washington, 5 Gratt. 645.
Where a judgment has been obtained against the obligor, on a bond for money won at gaming, and in the absence of any fraudulent representations by the obligor, a court of equity will relieve the obligor against the judgment on the ground of the original turpitude of the transaction. Woodson v. Barrett, 2H.&M. 80, 3 Am. Dec. 612.
Trust and Confidence.—in a case involving trust and confidence, and in which it appears reasonable to allow the complainant the benefit of the defendant’s oath, relief may be given in equity, although the party neglected to make the proper defence at law. Spencer v. Wilson, 4 Munf. 130.
Defect of Title.—Where a purchaser comes into a court of equity for relief against a judgment at law, on the ground of a defect in the vendor’s title to a part of the tract of land purchased, it is not enough for him to allege such defect or want of title; he must prove an actual eviction, or superior title in some other person. Yancey v. Lewis, 4 H. & M. 390. See Amick v. Bowyer, 3 W. Va. 7.
Remedy by Statute.—Generally, a party to a judgment or decree against him, who has been proceed ed against by order of publication must obtain relief, if he has defence against the claim on which the action or proceeding in which the judgment or decree is had, by adopting the remedy prescribed by the statute in such cases. Vance v. Snyder, 6 W. Va. 24.
A. GROUNDS OF RELIEF—GENERAL RULE.—It has become a principle, and maxim of equity, as well settled as any other whatever, that a party will not be entertained in a court of equity, on a bill seeking relief against a judgment at law, which has been rendered against him in consequence of his default upon grounds which might have been successfully taken in the court of law, unless some reason founded in fraud, accident, surprise, or some adventitious circumstances beyond the control of the party be shown, why the defence was not made in that court. Alford v. Moore, 15 W. Va. 597; Braden v. Reitzenberger, 18 W. Va. 286; Holland v. Trotter, 22 Gratt. 141; Knapp v. Snyder, 15 W. Va. 434; Meem v. Rucker, 10 Gratt. 509; Smith v. McLain, 11 W. Va. 654; Shields v. McClung, 6 W. Va. 79; Alleman v. Kight, 19 W. Va. 201; Black v. Smith. 13 W. Va. 800; Price v. Harner, 17 W. Va. 523; Sayre v. Harpold, 33 W. Va. 553, 11 S. E. Rep. 36; Haseltine v. Brickey, 16 Gratt. 120; Mackey v. Mackey, 29 Gratt. 158; Goolsby v. St. John, 25 Gratt. 146; Turner v. Davis, 7 Leigh 227; Chapman v. Harrison, 4 Rand. 336; Vanlew v. Bohannan, 4 Rand. 537; Farmers’ Bank v. Vanmeter, 4 Rand. 553; Bierne v. Mann, 5 Leigh 364; Harnsbarger v. Kinney, 13 Gratt. 511; Ayres v. Morehead, 77 Va. 588; Barnett v. Barnett, 83 Va. 504, 2S. E. Rep. 733; Cabell y. Roberts, 6 Rand. 580; Fen-wick v. McMurdo, 2 Mnnf. 244, approved in Oswald v. Tyler, 4 Rand. 37. See Thompson v. M. & M. Bank, 3 W. Va. 651; Coleman v. Anderson, 29 Gratt. 425; Hudson v. Kline, 9 Gratt. 379.
“It would perhaps seem strange, that a court of equity should not possess the power of relieving against a judgment at law, obviously unjust, and against the right of the cause. Incases of fraud, surprise, accident, trust, and the like, where that court has complete jurisdiction, it is within its peculiar province to grant relief, where the parties can*210notobtainitatlaw. * * * I admit, that the courts of law and equity should be confined within their proper spheres, and that the line which separates their respective jurisdictions should be carefully guarded.” Picket v. Morris, 2 Wash. 272.
It is not the province of courts of equity to see that justice is done, in the abstract, in all possible cases, but only to lend its aid, when from any cause, without his own default or neglect, a party defendant at law, cannot have justice done him in the courts of law; and this is true, where the discounts, abatements or damages, which are claimed to be set off in equity, arise out of a breach of the same contract on which the judgment at law is founded. Cabell v. Roberts, 6 Rand. 580.
Error In Judgment.—But error in a judgment at law, however apparent, is no ground for relief in equity, but the party must show some special equitable circumstances, such as fraud or surprise, to entitle him to the interposition of a court of chancery. Turpin v. Thomas, 2 H. & M. 139.
Mere Error in Law Court.—So chancery will not enjoin a judgment at law and grant a new trial merely for error in the law court, but only because of fraud, accident, surprise, or some adventitious circumstance unknown to the party before judgment, and beyond his control. Graham v. Bank, 45 W. Va. 701, 32 S. E. Rep. 245.
Mere Error in Law.—Moreover, a court of equity will not relieve against the judgment, on the ground of error in law only; it must appear that justice requires its interposition, that the party was prevented from obtaining it by the legal forms of pleadings, or by some fraud, accident, or mistake. Kincaid v. Cuningham, 2 Munf. 1.
Judgment Contrary to Equity.—No rule of law is better settled than that a court of equity will not relieve against a judgment on the ground of its being contrary to equity unless the defendant was ignorant of the ground of defence, or was prevented from availing himself of it by fraud or accident, unmixed with fault or negligence on his part. Gentry v. Allen, 32 Gratt. 254; Richmond Enquirer Co. v. Robinson, 24 Gratt. 548.
Negligence of Agents.—But equity will not relieve against a judgment at law if the omission of the defendant to avail himself of his defence at law was unmixed with any negligence in himself or his agents. Richmond Enquirer Co. v. Robinson, 24 Gratt. 548.
Thus the negligence of an officer of a corporation, in allowing a judgment to be rendered against his corporation as garnishee when the debt had been previously assigned to another party, and notice thereof had been given to another officer, will exclude the corporation from relief in equity against the judgment. Richmond Enquirer Co. v. Robinson, 24 Gratt. 548.
Parties Plaintiff.—No person can enjoin a judgment at law, to which he is not a party, but if he is aggrieved, he should pray an injunction to the execution. Jordon v. Williams, 3 Rand. 501.
B. BILLS FOR NEW TRIALS AND INJUNCTION.
1. Defences Not Avaebable at Law.—In general, any facts which prove it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or agents, will authorize a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judgment. Wallace v. Richmond, 26 Gratt. 67.
“It may be stated as a general principle, in regard, to injunctions after a judgment at law, that any facts which prove it to be against conscience to execute such judgment, and of which the injured party could not have availed himself in a court of law, and of which he might have availed himself in a court of law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or agents, will authorize a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judgments. * * * Neither will a court of equity relieve against a judgment at law where the case in equity proceeds upon a defence equally available at law, but the plaintiff must establish some special grounds for relief. And this doctrine goes still further, for it is the general rule that a defence cannot be set up as a ground for a bill in equity for an injunction which has been fully and fairly tried at law, although it may be the opinion of a court of equity that the defence ought to have been sustained at law.” Ensign Mfg. Go. v. McGinnis, 30 W. Va. 532, 4 S. E. Rep. 782. See Lewis v. Wyatt, 2 Rand. 114; Stafford v. Carter, 4 Gratt. 63: Franks v.Morris, 9 W. Va. 664; Spotswood v. Higgenbotham, 6 Munf. 313; Ayres v. Morehead, 77 Va. 586.
A court of equity will never enjoin a judgment, on the ground that it would have been reversible if the proper steps had been taken in the court of law, but by mistake a confession of judgment had been entered. Bank v. Vanmeter, 4 Rand. 553.
Plaintiff Entitled to Credits.—Where on a bill of injunction, to stay proceedings on a judgment at law, if it appear from the commissioner’s report, not excepted to by the defendant, that the plaintiff is entitled to a credit which the d efendant failed to give, the court ought not to set aside the order for account, and dismiss the bill, on the ground that the plaintiff had neglected to carry into effect a previous order referring, by consent of the parties, the accounts between them to a different commissioner; but the last order having been made on the defendant’s motion, the report being excepted to. for want of notice, to the plaintiff, of the time and place of taking the account, and such exception appearing well founded, a new account ought to be directed. Roberts v. Jordans, 3 Munf. 488.
If a bill of injunction to stay proceedings on a judgment, charges the plaintiff at law with having failed to do an act on which the equity of his claim depends, and in his answer, he takes no notice of that allegation, the court, on the hearing, will consider this an admission that he has not done the act in question, and will decree against him without any exception to the answer, or any interlocutory order taking the bill for confessed in part. Page v. Winston, 2 Munf. 298.
Reasons for Rule.—After a trial at law, new trials should not be granted by a court of equity, merely because injustice may have been done at law. A party, to entitle himself to a new trial, must show that he has been guilty of no laches; that he has done everything that could be reasonably required of him, to obtain relief at law. A bill for a new trial, is watched by equity with extreme jealousy. It must see that injustice has been done, not merely through the inattention of the parties, but for such causes as, in cases of complicated accounts, where the party has not made defence, because it Was impossible for him to do it effectually at law, or *211where a verdict has been obtained by fraud, or where a party has possessed himself improperly of something, by means of which he has an unconscientious advantage at law, which equity will either put out of the way or restrain him from using. But, without circumstances of this kind, equity never interferes to grant a new trial of a matter, which has already been discussed in a court of law. and over which the court of law had full jurisdiction. Per Care, J. Faulkner v. Harwood, 6 Rand. 125; Arthur v. Chavis. 6 Rand. 144.
Judgment on Fraudulent Deed of Trust.—Where property conveyed by a deed of trust is seized in execution by judgment creditors of the grantor and sold, an indemnity bond being given, and in an action by the trustee on the bond the judgment creditors set up that the deed was fraudulent, but failed to prove it, and judgment is rendered against them, and subsequently they filed a bill in equity on the ground of after-discovered evidence, establishing the fraud as to some of the debts secured, and asking for an inj unction against the judgment, that a new trial be granted, for an accounting by the trustee and for general relief, it was held, among other things, that the complainant had a right to call for an account of the trust subject, and to have it disposed of among all the parties according to their respective rights. Billups v. Sears, 5 Gratt. 31.
Trial of Caveat.—Although a party may be let into a court of equity, on grounds which he could not have used on the trial of a caveat. and which, in fact, make another case (in reference to that which he might have availed himself of on such trial), or upon a case suggesting and proving that he was prevented by fraud or accident from prosecuting his caveat: he is not to be sustained in a court of equity on such grounds as were or might have been brought forward on the trial of the caveat. Noland v. Cromwell. 4 Munf. 155. But see Christian v. Christian. 6 Munf. 534.
Right to Redeem Property.—Where a bill shows an equitable right in a wife to redeem her husband’s property from a tax sale, under a statutory provision. and the defence could not have been pleaded at law, equity will grant an injunction at her suit against a judgment in ejectment for possession against her husband, based on the tax title. Sperry v. Gibson, 3 W. Va. 522.
Condemnation Proceedings.—A court of equity does not interfere with judgments at law unless the complainant has an equitable defence of which he could not avail himself at law, or had a good defence at law which he was prevented from availing himself of by fraud or accident unmixed with negligence in himself or his agents. Thus equity has no jurisdiction to declare a judgment in condemnation proceedings null and void because it constitutes a cloud upon the title, where the complainant is out of possession of the land. He has a complete remedy at law in an action of ejectment for the recovery of the land. L. & N. R. Co. y. Taylor, 93 Va. 226, 24 S. E. Rep. 1013.
“Now I do not say, that the county court, sitting as a court of law, could not npon motion, in a summary way, try these questidhs; but I do say, that in that mode, it would not have afforded as safe or as convenient a tribunal for the trial of them, as a court of equity upon regular pleadings and proofs. And this consideration, it will he recollected, forms one of the grounds in equity for assuming jurisdiction. But there is another, perhaps a stronger ground. The indorsement of the execution for Crawford’s benefit, gave him nothing but an equitable right, which could have no weight in a court of law, belonged exclusively to equity, and must finally have brought the cause there for decision.” Crawford v. Thurmond. 3 Tjeigh 85.
It is á clearly-established principle, that a judgment of a court of common law, though erroneous, given on a legal question, shall never be corrected or disturbed in equity, upon grounds which were proper for the consideration of the common-law courts, unless the applicant to the court of equity can show some particular circumstances to have taken place, operating as an impediment to hiS' availing himself of those grounds upon the trial at law, for a court of equity, ought not. by a side wind,, to undertake to reverse a common-law judgment, although from principles before established in other cases, they would probably reverse the judgment, if regularly brought before them, on the common-law side of the court. And it is better even in the eye of a court of equity, that an individual should suffer an injury, arising from his own acts and conduct, than that court should, with the view of relieving him, usurp a jurisdiction prohibited by law, and break down the partitions wisely established in onr judiciary system. Branch v. Burnley, 1 Gall 147.
Judgment on False Return of Process.~“One line of cases holds that a party who had been injured by a judgment rendered in his absence may have relief in equity if he can succeed in showing that he was not summoned, and did not hear of the proceedings in time to make defence or to obtain a new trial, and that he has a meritorious defence. Freem. on Judgm. sec. 495. Another class of cases holds that a court of equity cannot grant relief in such a case unless the false return of service was procured or induced by the plaintiff, or he can in some way be connected with the deception; thus likening the case to those cases in which the defendant has been prevented from setting up his defence by the trickery or fraud of his adversary. The rule of this latter class of cases is perhaps the better doctrine. The risk of opening a j udgment or decree on an allegation which, like that of the failure to serve process, or the want of notice, depends upon theuncertain testimony ofwitn esses,is so great that the injured party should be left to his remedy in the same case where relief can be had in that case, or to his remedy against the officer who has made the false return, unless that return was in some way procured or induced by the plaintiff, or he is in some way responsible for the defendant’s want of notice of the suit, or of the proceedings therein.” Per Buchanan, ,7. Preston v. Kindrick, 94 Va. 760, 27 S. E. Rep. 588. See Ramsburg v. Kline, 96 Va. 465, 31 S. E. Rep. 608.
Unauthorized Appearance by Attorney.—When a defendant, by bill in equity, seeks to nullify a judgment at law obtained against him without service of process, upon the unauthorized appearance by attorney, to succeed he must have a clear preponderance of evidence sustaining the allegations of his bill. Smithv. Johnson, 44 W. Va. 278, 29 S. E. Rep. 509. See also, "Wandlingv. Straw, 25 W. Va. 692.
It was held in Raub v. Otlerback, 89 Va. 645, 16 S. E. Rep. 933, that the testimony of one of the defendants was properly admitted, to the effect that he never knew either of the attorneys who appeared in the original chancery proceedings in which the decree was rendered, that he never employed them, and that he never heard of the suit until recently, *212"where, unless counsel aid actually appear for him with his authority, the court never acquired juris•diction.
If it appears by the record that an attorney ap"peared for the defendant in a court of general jurisdiction, such appearance gives the court jurisdiction of the person of the defendant: and if the attorney so appeared without his authority, that fact cannot be shown as a defence at law in any action or proceeding upon the judgment, where the same may properly be used as evidence of the right thereby established. Wandling v. Straw, 35 W. Va. 692.
2. Defences available at Law or in Equity. Usury.—It is well settled in Virginia that a court of equity will interfere with a judgment at law, to relieve against usury. Greer v. Hale, 95 Va. 533,28 S. E. Eep. 873.
But where relief is sought in equity, against a judgment at law, on the ground of usury, the bill must put the usury directly in issue. Brown v. Toell, 5 Band. 543. See also, Bloss v. Hull, 27 W. Va. 503.
“The rule is established that a party having a good legal defence shall not, after a judgment at law, come into a court of equity upon the legal matter without alleging and proving good excuse for not using it at law; and moreover a court of equity will not grant relief merely because injustice has been done.” Allen v. Hamilton, 9 Gratt. 257; Slack v. Wood, 9 Gratt. 40; Ensign Mfg. Go. v. McGinnis, 30 W. Va. 532, 4 S. E. Eep. 782; Collins v. Jones, 6 Leigh 530, 29 Am. Dec. 216; Morgan v. Carson, 7 Leigh 238.
Equity will relieve against a judgment at law, based on a decision that a bond bears more than legal interest, and for that reason is deemed usurious in a court of law, and will decree just compensation, if the transaction be fair. Braxton v. Willing, 4 Call 288.
Effect of Statutes.—And the change in the statute, declaring that usurious contracts ’Shall be deemed for an illegal consideration, instead of void, as formerly, furnishes no warrant for departing from the long-established rule that a court of equity will go behind a judgment, to relieve against usury. Greer v. Hale, 95 Va. 533, 28 S. E. Bep. 873; Bank v. Fugate, 93 Va. 831, 23 S. E. Bep. 884; Young v. Scott, 4 Band. 415.
Evidence Doubtful—Laches.—But a court of equity will refuse to grant relief on the ground that the judgment is for usury, where the evidence is doubtful and there has been a long delay. Terry v. Dickinson, 75 Va. 475.
Refusal of New Trial.—After a verdict for the plaintiff in an action sounding in damages, and a refusal by the court of law to grant a new trial, a court of equity ought cautiously to interpose. Meredith v. Johns, 1H. & M. 584.
Refusal to Continue.—If defendant at law be ruled into a trial in the absence of some of the witnesses, to whose materiality he has made affidavit, he may •except to the opinion of the court, and proceed to obtain relief in superior court of common law, but not in chancery. Syme y. Montague, 4 H. & M. 180.
Discharge of Bond.—In a suit in equity to obtain relief against a judgment obtained on a bond, if the bond has been discharged, that fact cannot avail the complainant, as he should have set it up as a defence in the action on the bond. Barnett v. Barnett, 83 Va. 504, 2 S. E. Bep. 733.
Failure of Consideration—tinder sec. 5, 6, ch. 126, Code of W. Va., equity has jurisdiction on the three | grounds, of failure of consideration, fraud in the procurance of the note, and breach of warranty of title to personal property, and it expressly gives the right to make defence at law, or omit that and go into equity, as the debtor prefers, without giving any excuse for not defending at law. Jarrett v. Goodnow, 39 W. Va. 602, 20 S. E. Rep. 575; Bias v. Vickers, 27 W. Va. 456. See Dorsey v. Shepherd, 9 W. Va. 57.
For a party entitled to plead in an action at law the defences specified in Code W. Va., ch. 126, sec. 5, need not plead them in the action, but may avail himself of them in equity without any excuse for not using them at law. Jarrett v. Goodnow, 39 W. Va. 602, 20 S. E. Rep. 575; Bias v. Vickers, 27 W. Va. 456.
Need Not Allege Excuse.—where failure of consideration is a defence.relied upon against a bond, for the payment of money, such defence is an equitable one, and the party entitled to make it is not bound to make it, in the court of law—it is at his option whether he will make such defence .in the court of law or equity, and if judgment had been obtained on the bond in a court of law, it is not necessary to entitle him to make his defence in equity against the judgment, that he should aver in his bill any excuse, for not making such defence in the action at law. Code W. Va., ch. 126, sec. 6; Lndington v. Tiffany, 6 W. Va. 11.
Is Bound by His Election.—Though where statute gives the right to a defendant to defend at law, or obtain relief in equity, and he avails himself of his right to make his defence at law and a judgment is given against him, he cannot afterwards obtain relief in equity. Knott v. Seamands, 25 W. Va. 99; Sanders v. Branson, 22 Gratt. 364; Penn v. Reynolds, 23 Gratt. 518; 1 Barton’s Ch. Fr. (2d Ed.) 41; Bias v. Vickers, 27 W. Va. 456.
After a party has been fully heard in a court of law, in a case in which the rule is the same in equity as at law, he shall not be permitted to go into a court of equity on the same controverted points. Morris v. Boss, 2 H. & M. 408. ■
Fraud, Accident, Surprise, Mistake.—Courts of equity have always granted relief, when it is shown that the reason why the defence was not made at law, was founded in fraud, accident, surprise, mistake, or some adventitious circumstance beyond the control of the party. Holland v. Trotter, 22 Gratt. 141: Mason v. Nelson, 11 Leigh 227; Mosby v. Haskins, 4 H. & M. 427; Dey v. Martin, 78 Va. 1; Knapp v. Snyder, 15 W. Va. 434; Moore v. Lipscombe, 82 Va. 546; Erwin v. Vint, 6Munf. 267; Price v. Fuqua, 4Munf. 68; Callaway v. Alexander, 8 Leigh 114; Anderson v. Woodford, 8 Leigh 319; Halcomb v. Innis, 4 Call 364; McFarland v. Dilly, 5 W. Va. 135; Thomas v. Jones, 98 Va. 323, 36 S. E. Bep. 382.
“Courts of equity relieve against judgments at law upon the ground that the party injuriously affected thereby has a defence of which he could not have availed himself in a court of law, or of which he might have availed himself, but was prevented by fraud or accident, nnmixed with any fault or neglect on his part. * * * * The cases fully establish, that after a trial at law, a party to entitle himself to have a new trial granted by a court of equity, must show that he has been guilty of no laches; that he has done everything that could reasonably be required of him to obtain relief at law. Without such excuse, which is to be judged of according to the circumstances, he cannot get relief In equity.” Per Stables, J. *213Green v. Massie, 21 Gratt. 358; Ayres v. Morehead, 77 Va. 586.
Moreover, it is immaterial that an act was done in good faith and without fraudulent intent, for if by it an advantage has been obtained which it is against good conscience to enjoy, a court of equity will relieve against it. Thomas v. Jones, 98 Va. 323, 36 S. E. Rep. 382. citing Holland v. Trotter, 22 Gratt. 141.
Conditioned upon Payment of Costs.—A complainant whose remedy was complete at common law, but who by accident was prevented from making it there, may be relieved against the judgment, but ought to pay the costs in chancery. Degraffenreid v. Donald. 2 H. & M. 10.
Prévented from Suffering Nonsuit.—But where a plaintiff suffers a verdict and judgment to go against him at law, he cannot apply to a court of equity to grant him a new trial, on the ground of his having been surprised at the trial at law, by unexpected evidence, unless he was prevented by fraud or accident from suffering nonsuit. Oswald v. Tyler, 4 Rand. 19; Barrett v. Floyd, 3 Gall 531.
Gaming Contracts.—in an action at law on a promise founded on a gaming consideration, if the defendant is surprised at the trial, and there is a verdict and judgment against him, he may come into equity for relief, though he made no effort to obtain a new trial in the common-law court. White v. Washington, 5 Gratt. 645.
Mutual flistake of Law.—But a court of equity will not relieve against a judgment a party who was prevented from making his defence at law by a mistake of law, although it was a mutual mistake by both parties to the suit. Richmond, etc., Co. v. Shippen. 2P.&H. 327.
Mistake of Clerk.
Contra.—A judgment, however, against a sheriff, under a mistaken opinion of the clerk as to the law, that the bail piece was insufficient, the counsel having agreed that it might be filed, was relieved against in equity. Smith v. Wallace, 1 Wash. 254.
flistake by Jury.—So also, a judgment at law may be enjoined on the ground of mistake by the jury, ascertained by after-discovered evidence. Rust v. Ware, 6 Gratt. 50.
Mistake, fliscalculation.—Relief against a judgment at law rendered by a mistake and miscalculation of the jury will be granted by a courtof equity, where the evidence of such mistake and miscalculation would, if discovered in time, have furnished a good ground for a new trial. And when the case is one that requires the settlement of accounts, the court of appeals will not direct a new trial at law, but will order a reference to a commissioner, and will itself give the proper relief. Rust v. Ware, 6 Gratt. 50.
Assurances, Promises.—But where the defendant at law has been prevented from making his defence, by the assurances or promises of the plaintiff’s counsel, a court of equity will grant relief. Holland v. Trotter, 22 Gratt. 336; Dey y. Martin, 78 Va, 1; Moore v. Lipscombe. 82 Va. 546.
Reliance on Statements of Others.—Where a defendant who had an adequate remedy at law, has been prevented from resorting to it, by a fraudulent rep- : resentation or promise of the plaintiff, he ought to be relieved in equity. Poindexter v. Waddy, 6 Mnnf. 418: Knapp v. Snyder, 15 W. Va. 434. See also, Lee v. Baird, 4 H. & M. 453.
A party against whom a judgment has been entered on a bond cannot obtain relief in equity against such a judgment, on the ground that he was acting as the agent of the judgment plaintiff in the sale of territory in which to sell a patented article, and that such bond was only “a sham,” by which to induce others to purchase patent rights, and was never to be enforced against him, this being an attempt to perpetrate a palpable fraud upon innocent strangers, which cannot be countenanced or upheld in equity. In such case, the parties being in vari delirio, the complainant is not entitled to relief. Barnett v. Barnett, 83 Va. 504, 2 S. E. Rep. 733.
Acts and Representations.--'The courts of equity do not interfere with judgment at law, unless the failure of the complainant to successfully defend at law was because of the acts or the representations of the opposite party, or his agents, or was the result of fraud, accident, or surprise, or some other adventitious circumstances beyond the control of the complainant. Rosenberger v. Bowen, 84 Va. 660, 5 S. B. Rep. 697.
Relief will always be granted where failure to defend at law resulted from the acts or misrepresentations of the opposite party, or his agents, or from fraud, accident, surprise, or some other adventitious circumstances beyond the control of the party complaining. Moore v. Lipscombe. 82 Va. 546: Dey v. Martin, 78 Va. 1; Holland v. Trotter, 22 Gratt. 144.
For example, in the case of Moore v. Lipscombe, supra, the defendant brought assumpsit against the complainant, and filed a copy of the accovmt, which was served with the summons on the complainant. At the next term there was a judgment by default, on account of the complainant’s absence from the state, and failure to make defence, he relying on the statement of the defendant's attorney, that he might rest assured that there would be no trial at that term as he was incapable of attending the court, by reason of an accident. The complainant obtained an injunction to the judgment, and on the hearing an issue was directed to ascertain the amount, if any, due the defendant from the complainant. On appeal it was held that the case was proper for equitable relief, and the direction of the issue was the proper course. Moore v. Lipscombe, 82 Va. 546; Wynne v. Newman, 75 Va. 815.
Sufficiency of Allegations.—Where a bill shows a case for the interference of a court of equity, on the ground that the action at law was not defended because the plaintiff had promised to take no judgment against the party, and assured him that it was unnecessary to employ counsel, and the bill further shows that a plea was put in by counsel for the defendant, without any allegation that such appearance was unauthorized, the bill is fatally defective. Knapp v. Snyder, 15 W. Va. 434.
Injustice Merely.—It is well settled that to entitle a party to relief in*equity against a judgment at law, it is not sufficient to show merely that injustice has been done, but the party applying must show that he has been guilty of no laches, and that he has done everything that could be reasonably required of him to render his defence effectual at law. Otherwise relief will be denied, for v‘it is more important that there should be an end of litigation, than that justice be done in every case.” Dey v. Martin, 78 Va. 1; Wallace v. Richmond, 26 Gratt. 67; Slack v. Wood, 9 Gratt. 40; Bateman v. Wiiloe, 1 Sch. & Tef. 201.
Although it may be manifest that great injustice has been done a defendant at law, by the verdict and judgment against him there, yet if this injustice has not been produced by any fraud or surprise on *214the part of the plaintiff, hut is the resillt either of the defendant’s own negligence, or of his counsel’s ignorance or had management, a court of equity can give him no relief. Tapp v. Rankin, 9 Leigh 478.
“The grounds on which a court of equity will interfere to grant relief against a judgment at law in the nature of a new trial, are confessedly somewhat narrow and restricted. It is not sufficient to show that injustice has been done, but it must appear also that it was not occasioned by the inattention of the party complaining.” Lee, J. Slack v. ■Wood, 9 Gratt. 40. See Shields v. McClnng, 6 W. Va. 79; Sperry y. Gibson, 3 W. Va. 525.
Insufficient Allegations.—-Where a bill in chancery, for setting aside and enjoining a judgment, presents no substantial grounds for equitable interference, it is properly dismissed, as no errors committed by the court can be considered prejudicial to the plaintiff. Rollins v. National Casket Co., 40 W. Va. 590, 21 S. E. Rep. 722.
Insanity.—it is a sufficient ground for a perpetual injunction to a judgment against the defendant in an action of slander, that, at the time of speaking the defamatory words and of the recovery of judgment, he was insane, or partially deranged, on the subject in relation to which the words were spoken. Horner v. Marshall, 5 Munf. 466.
Laches—Eighteen Years.—where a bill to set aside a judgment on the ground of usury, simply says that the debt is usurious, without stating the usurious interest taken, and the defendant denies the usury and the charge of usury is not sustained by competent evidence, the court will not, after a long delay (eighteen years), set aside the judgment and grant a new trial. Terry v. Dickinson, 75 Va. 475.
So also, one who was defendant in an action to subject property to the payment of a judgment against him may not, after the lapse of twenty-five years after the decree of sale and confirmation, where the land has increased in value and the condition of the parties has changed, reopen, the case and relitigate the matters which were fully ad j udicated by a court of competent jurisdiction. Culbertson v. Stevens, 82 Va. 406, 4 S. E. Rep. 607.
Six Years’ Delay—Fraud.—So where a bill to obtain relief against a judgment on a bond, which it was alleged was procured by fraud, was not filed until six years after the perpetration of the fraud, relief was refused on the ground of unreasonable delay; the rule being that where a party has the right to rescind a contract on the ground of fraud, he must rescind at once on discovering the fraud, or as soon thereafter as circumstances will permit; for he is not bound to rescind, and any unreasonable delay, especially if it be injurious to the other party, will be regarded as a waiver of his right. Barnett v. Barnett, 83 Va. 504, 2S. E. Rep. 733.
Delay by Appealing.—If, by mistake of the sheriff, a writ is served on the wrong person, but such person makes no defence at law, and suffers judgment to go against him by default, execution being issued, gives a forthcoming bond, and afterwards delays the plaintiff by appealing from the judgment on that bond, he is not' entitled to relief in equity. Chisholm v. Anthony, 2 H. & M. 13.
C. LEGAL DEFENCES.
Allegations.—Where a bill avers that the written agreement between the maker and the payee of the note, in relation to the contract in pursuance of which the note is made, has been lost at the time the judgment was recovered on the note, and without which agreement the maker could not make his defence at law, such bill avers a good ground for the jurisdiction of the court of equity. Vathir. v. Zane, 6 Gratt. 246.
“It is insisted, that as the appellant has obtained a judgment at law, and the appellee comes into equity for relief, he is as much bound to negative facts, which would entitle the plaintiff at law to recover, as to affirm those which it is necessary for himself to prove. This would be against all the rules of pleading in chancery, and would be imposing on the plaintiff an impracticable duty. He may not be cognizant of the facts upon which the plaintiff at law relies, to entitle himself to recover, notwithstanding the matter relied upon by the party seeking relief in equity might, if standing alone, make out a proper case for the interposition of that court. The appellee had a right to rest his case upon the averment of such fraud as vitiates the contract; and of the fact that the security so fraudulently procured, had come to, the possession of the holder by assignment. If the circumstances under which the holder acquired the paper, are such as still entitle him to recover from the maker, they must be shown in his answer; and not being responsive to any allegation in the bill, must be proved.” Vathir v. Zane, 6 Gratt. 246.
Relief against Judgment on Gaming Contract—Less Diligence Required.—“The case of a gaming promise or security is an exception to the general rule on the subject, that rule being derived from the obligation of the party in mosteases, to avail himself of his opportunity to defend himself at law; whereas, in case of a gaming promise or security he is under no such obligation. And as he may at first waive all defence at law, and seek relief in equity, so when he has been prevented by surprise from making his defence' available at law, he is not bound to pursue it further in that forum; but may resort to a court of equity, which had from the beginning a complete and more searching jurisdiction of the controversy,and which treats all judgments founded on a gaming consideration where there has been no defence at law, or where there has not been, from adventitious circumstances, a full and fair trial of the question at law, as mere securities.” White v. Washington, 5 Gratt. 645; Goolsby v. St. John, 25 Gratt. 154.
Statute of Limitations,—A suit in equity to enjoin the enforcement of a judgment in ejectment, brought immediately after its rendition, cannot be defeated by the plea of the statute of limitations, though the deed to such agent was made more than eighteen years before the institution of the suit. Franks v. Morris, 9 W. Va. 664.
Setting Out Proceedings at Law.—Where the plaintiff in a suit exhibits with and makes part of his bill the record of an action at law, the facts disclosed by such record thereby become averments of his bill to be considered in connection with the other averments. Bias v. Vickers, 27 W. Va. 456.
Adequate Remedy at Law.—“The simple allegation that the judgment upon which the writ of possession issued was erroneous, constitutes no ground for the interference of a court of equity. It is not by injunction that the errors of a county court are to be reviewed and corrected. The law provides another remedy for that purpose—namely by writ of error or appeal. ” Rosenberger v. Bowen, 84 Va. 660, 5 S. E. Rep. 697.
Set-Off.—Where a party has been summoned to answer an action at law for the recovery of money, and allows judgment by default to go against him, *215although at the time of such recovery he had judgments against the plaintiff which he might have pleaded as a set-off, he cannot, on the ground thathe mistook the time at which the case was to he tried, combined with the fact of the insolvency of the plaintiff, come into equity to obtain the benefit of such set-off, for there is a plain, complete, and adequate remedy at law, namely by motion, whereby he can have the judgments set off against the judgment of the plaintiff. Zinn v. Dawson (W. Va.), 34 S. 33. Rep. 784, citing Shield v. McOlung, 6 W. Va. 79; Knapp v. Snyder, 15 W. Va. 434; Alford v. Moore, 15 W. Va. 597; Meem v. Rucker, 10 Gratt. 506; Hudson v. Kline, 9 Gratt. 379; Slack v. Wood, 9 Gratt. 43; Faulkner v. Harwood, 6 Rand. 125; Perkins v. Clements, 1 P. & H. 141.
But a party is not compelled to plead a set-off in such an action, and if a judgment is obtained against him, and he holds judgments against the plaintiff, he may, on motion in a court of law after notice, have his judgment set off against the plaintiff’s judgment. Zinnv. Dawson (W. Va.), 34 S. E. Rep. 784. See also, Black v. Smith, 13 W. Va. 780.
Where a jury have found a verdict for the plaintiff in an action of debt on a bond, an account of a transaction which, although partly subsequent to the date of the bond, is old and stale, ought not to be allowed, for the purpose of obtaining a discount against it. Randolph v. Randolph, 1 H. & M. 180.
Insolvency as Affecting Right of Set-Off.—The mere insolvency of a judgment creditor will not, of itself, justify an injunction against the enforcement of a judgment at law, in order to let in a set-off which might have been pleaded at law at the time such judgment was recovered. Zinn v. Dawson (W. Va.), 34 S. E. Rep. 784; Sayre v. Harpold, 33 W. Va. 553, 11 S. E. Rep. 16; Faulconer v. Stinson, 44 W. Va. 546, 29 S. E. Rep. 1011; Finke v. Fleming, 25 Gratt. 707; George v. Strange, 10 Gratt. 499; Barton's Ch. Prac. (2d Ed.) 22.
“Equity will not enjoin a judgment to let in a defence pleadable in the action, where the party has had the opportunity to do so, unless prevented by fraud, accident, surprise, or some adventitious circumstance beyond the party’s control. Shields v. McOlung, 6 W. Va. 79: Harner v. Price, 17 W. Va. 523, 548. And, as set-offs may be pleaded in defence, or made the subject of another action, equity generally will not enjoin a judgment to let them in. But it will do so where the party owning them is insolvent;. Beard v. Beard, 25 W. Va. 486; McClellan v. Kinnaird, 6 Gratt. 352; Marshall v. Cooper, 4B Md. 46; Levy y. Steinback, 43 Md. 212; Lindsay v. Jackson, 2 Paige 581: 2 High, Imp. sec. 243.*’ Jarrettv. Good-now, 39 W. Va. 602, 20 S. E. Rep. 575.
Right of Sureties.—But the insolvency of one of the parties is a ground upon which a bill may sometimes be maintained by a surety for a set-off, when it clearly appears, that in consequence of the principal’s insolvency the complainants can have no adequate remedy at law. Mattingly v. Sutton, 19 W. Va. 19. See also. Hupp v. Hupp, 6 Gratt. 310; Jarrett v. Goodnow, 39 W. Va. 602, 20 S. E. Rep. 602; Shores v. Wares, 1 Rob. 1.
Excuse for Failure to Plead Offsets.—Upon an issue made up on the plea nonassumpsit, there is a judgment for the plaintiff, whereupon the defendant applies for an injunction to the judgment, on the ground that he had offsets which he had intended to plead, but that owing to the sickness of his family at the time when the court sat, and for some time before, he was not able to attend the court or prepare for trial, and that his counsel to whom he had communicated his defence was also absent. But the court held that there was no cause for an in j unction and new trial, as it appeared that the offsets were neither pleaded nor filed, and though one of the defendant’s counsel was present, no application for a continuance was made, nor was any affidavit filed upon which such an application could have been based. Griffith v. Thompson, 4 Gratt. 147.
Rule as to Admission of Offsets.—Where an injunction to a judgment is granted, and an account between the parties directed., the commissioners ought not to give the plaintiff at law credit for claims not exhibited to the jury, nor mentioned in the answer, and which are prior in date to the commencement of the suit. Lipscomb v. Winston, 1 H. & M. 453.
1. Matters of Excuse—Failure to Defend.— It was held in Wallace v. Richmond, 26 Gratt. 67, that where a party’s counsel examines the docket but not the papers and fails to see that the suit he is employed to defend is pending against his client, whereby an office judgment is rendered against this client, equity will not relieve against such judgment, because this was negligence on his attorney’s part, not unmixed with any fault or negligence in himself.
“It is wellsettled that it is no ground for equitable interference that a party has not effectually availed himself of a defence at law. There are cases in which equity will relieve after verdict, although a defence might have been made at law; but only where there has been no fault or negligence on the part of the defendant or his agents. * * * It must appear that the omission of the defendant to avail himself of the defence at law was unmixed with any negligence in himself or his agents. This rule is absolutely inflexible, and cannot be violated, even when the judgmentis manifestly wrong in law or fact; or when the effect of allowing it to stand will be to compel the payment of a debt which the defendant does not owe, or which he owes to a third person.” Richmond Enquirer Co. v. Robinson, 24 Gratt. 548 ; Ayres v. Morehead, 77 Va. 586.
Failure of Sureties of Sheriff to Defend.—Where a high sheriff is sued for the failure of his deputy to make a return of an execution, and a judgment is recovered, a court of chancery will not relieve the sureties against it, where they might have shown facts in their defence on the trial at law, and show no reason for not having defended themselves at law. Bierne v. Mann, 5 Leigh 364.
Failure of Clerk to Defend.—So if a clerk, on a motion against him for the penalty incurred by failing to pay the taxes on law process, fails to make his defence in such action, without a competent excuse, he cannot obtain relief in equity on the same ground. Auditory. Nicholas. 2 Munf.81.
Office Judgment.—if judgment be obtained, at the rules in the clerk’s office, against the administrator; and he, at the next quarterly court, instructs his attorney to set it aside, and plead payment; and the attorney directs the clerk to set aside the judgment, and enter the plea; but he omits it; a court of equity will direct the plea to be received, the verdict upon the issues to be certified to that court, and on receipt of the certificate, will proceed to a final decree upon it. Mayo v. Bentley, 4 Call 528.
HustShow Cause for Failure to Defend.—Where, in a proceeding by one person against another to recover money which he alleged he paid as the .surety for the latter, it was determined that both were *216principals, and judgment was rendered in favor of the plaintiff for a moiety of the sum paid, the defendant having made no defence, cannot come into equity and obtain any relief, although he shows that he was the surety, and the plaintiff in the action at law the principal, unless he alleges and proves sufficient reasons for his failure to defend at law. Turner v. Davis, 7 Leigh 227.
Fraud ilust Be Alleged and Proved.—“A party who had a defence at law, but failed to make it, and seeks relief in equity against a judgment, whether confessed or rendered on a contest, should allege and prove facts that constitute a fraud perpetrated by the adverse party in procuring the judgment or preventing the defence; or facts that indicate that though the complainant used proper diligence, or such diligence would not have availed, he was, by accident, mistake or surprise, prevented from discovering important facts, or from adducing material evidence and making adequate defence.” Morehead v. De Ford, 6 W. Va. 316.
Negligence.—It is well settled that where a party, through his own, or his agent’s or attorney’s negligence, failed to avail himself of a defence which he might have made at law, he will not be relieved in equity. Ayres v. Morehead, 77 Va. 586.
“The rule is now well settled, that after a trial at law, if there appears to have been no fraud or surprise upon the part of the plaintiff, equity cannot relieve the defendant from the consequences of mere negligence, notwithstanding it may be manifest that great injustice has been done him at law. If it appears that by the use of proper diligence he could have defended himself successfully, however hard his case, equity must not interfere; and this upon sound principles of general policy, which no court is at liberty to disregard.” Tapp v. Rankin, 9 Leigh 480.
Absence oí Witnesses,—II a defendant has been grossly negligent in his preparations for his trial of the cause, a court of equity will not relieve against the verdict on account of the absence of the witnesses, and especially if the judge who tried the cause, and knew what passed at the trial, twice refused it, upon the same representation. Hoomes v. Kuhn, 4 Call 274.
Merely Writing to Attorney Insufficient.—Merely writing to an attorney asking him to take care of a a case is such negligence as equity will not relieve against. Hill v. Bowyer, 18 Gratt. 364; Stanard v. Rogers, 4 H. & M. 438.
Neglect.—It is a fundamental principle in equity, that if a party suffer a judgment to pass against him, through neglect, he cannot have relief in equity, for a matter of which he might have availed himself at law. Faulkner v. Harwood, 6 Rand. 125.
Negligent Omission, of Declaration.—Where a party brings replevin against the landlord for goods that the latter has distrained, but his action is dismissed for want of a declaration, imputable to his own neglect, whereupon the landlord brings suit on the replevin bond and recovers judgment, the defendant is not entitled to relief in eguity on the ground that the goods distrained were in fact his property. Donnally v. Ginatt, 5 Leigh 359.
“It is a general rule that where a party may defend himself at law, equity will not interfere; and where he might have done so but has failed to do it, he shall not have relief by bill in equity unless he was prevented by fraud or accident, or the act of the opposite party unmixed with negligence on his part.” Maxweli., J. Sperry v. Gibson, 3 W. Va. 522. See Richmond, etc., R. Co. v. Shippen, 2 P. & H. 327.
Sickness of Party.—A court of chancery may relieve against a verdict and judgment obtained by the plaintiff, where the defendant is taken sick on his way to the trial, and thereby prevented from making certain affidavits necessary to his case. Hord v. Dishman, 5 Call 279.
Sickness of Family.—But it was held in Griffith v. Thompson, 4 Gratt. 147, that the sickness of the defendant’s family at the time when the court sat, whereby he was prevented from pleading offsets, was not a sufficient ground for relief against the judgment.
Physical Incapacity.—A bill alleging that the plaintiff has received an accident which has so impaired his mental and physical faculties, as to incapacitate him from attending court, and making his defence, makes a proper case for equitable relief. Alford v. Moore, 15 W. Va. 597.
Ignorance.—But an injunction to a judgment at law will not be sustained where the defendant at law has failed to make his defence at law, from ignorance of the nature of proceeding against him, and a misapprehension of the steps it was necessary to take in order to subject him. Meem v. Rucker, 10 Gratt. 506; George v. Strange, 10 Gratt. 499.
No Knowledge That Suit: Exists. —On the other hand a plaintiff will be relieved against a judgment at law where it appears that he had no knowledge of the existence of the suit at law, until after j udgment was obtained. Mosby v. Haskins, 4 H. & M. 427.
Surprise—During the term of court, the counsel representing the parties plaintiff and defendant in a case, in the presence of the regular judge, are talking over the business remaining unfinished, the defendant in the case being present, who understands from the conversation that his case would not be taken up before the next Tuesday for trial, which conversation was on Friday; and under this impression the defendant, with his witnesses, left the court. On Saturday a special judge was elected, who went upon the bench on Monday morning, and tried the case, in the absence of the defendant and his witnesses, and in ignorance of the misunderstanding, although an attorney for the defendant was in town, and had notice that a jury was being called in the case, and refused to go to the courthouse, on account of some feeling existing between himself and the special judge, and on account of his beipg too unwell to attend to business, and sent another attorney to state the matters to the court in reference to the understanding. The trial is proceeded with, and a judgmentis rendered against the defendant, although he claims to have had a good defence. The trial of the cause, under the circumstances, works such a surprise upon the defendant that a motion to vacate the judgment, set aside the verdict, and award a new trial, should have prevailed. Simpkins v. White, 43 W. Va. 200, 27 S. E. Rep. 241.
An action was brought in 1875 in the county court. Two years thereafter, it was transferred to the circuit court. No order except continuances was made in it after such transfer. The judge of the circuit court could not preside at the trial, and in 1887 the plaintiff, in the absence of the defendant, and his counsel, caused a special judge to be elected, and, without the knowledge of the defendant, the case was tried and a verdict and judgment rendered for the plaintiff. The defendant, being notified of such judgment, moved the court to set the same aside *217because of the facts above stated, and it was held that, upon his affidavit, alleging surprise, and the full payment of the debt sued on, the circuit court properly set aside the judgment, and awarded the defendant a new trial. Bennett v. Jackson, 34 W. Va. 62, 11 S. E. Rep. 734.
Bill of Exceptions Lost or Unsigned.—Where a case is tried before a justice, and a bill of exceptions essential to enable a party to obtain a writ of certiorari is lost, if signed, or, if not signed, the justice sickened and died without signing it, and there appears probable ground for a writ of certiorari, it is a proper case for equitable relief against the judgment, and for retrial. Grafton & G. R. Co. v. Davisson, 45 W. Va. 12, 29 S. E. Rep. 1028.
Fraud.—A bill which alleges fraud as a defence to the original cause of action must show that the fraud is attributable to the judgment creditor. Griffith v. Reynolds, 4 Gratt. 46.
“A party, without showing more will not be permitted to contradict the solemn records of a court, on the ground that the statements therein are false: that they show, that proof was heard, when in fact no proof was heard, and charge that there was consequently fraud in both the party and the court in so entering the judgment. If a party could be heard in a court of chancery to make such charges and by the officers of the court to prove them, there would be no stability in judgments, and the most solemn acts of courts of justice, to which the people must look for the protection of their rights, would be liable to be swept away by mere oral testimony. Such assaults upon the solemn acts of courts of record never have been and never can be successfully made.” Per Johnson, J. Braden v. Reitzenberger, 18 W. Va. 286.
Province of Chancellor.—Where an application is made for relief against a judgment, the province of the chancellor is to test the conscience of the parties and not the legality of the judgment, nor to correct the errors, which may have been committed by the court. A different rule would render the jurisdiction of chancery general by converting it into a court, to which an appeal might be had in every instance. Braden v. Reitzenberger, 18 W. Va. 286.
2. Newly-Discovered Evidence.—Chancery will not relieve against a judgment at law, on the ground of newly-discovered evidence, where there is no suggestion of fraud, accident, mistake, or of any other circumstances preventing the party from having made the defence at law. Norris v. Hume, 2 Leigh 334.
Courts of equity, as well as courts of law, sometimes grant new trials on the ground of after-discovered evidence, but always with great reluctance and never except under special circumstances, which may be summed up thus: 1. The evidence must have been discovered since the trial.
2. It must be evidence that could not have been discovered before the trial by the plaintiff or defendant, as the case may be, by the exercise of reasonable diligence.
3. It must be material in its objects, and such as ought, on another trial, to produce an opposite result on the merits.
4. It must not be merely cumulative, corroborative, or collateral. Wynne v. Newman, 75 Va. 811; St. John v. Alderson, 32 Gratt. 140, and note; Harnsbarger v. Kinney, 13 Gratt. 511.
Cumulative Evidence—A judgment at law will not be relieved against in equity on the ground of after-discovered evidence, where it appears that such evidence is merely cumulative or merely goes to impeach the testimony of a witness on a former trial. Brown v. Speyers, 20 Gratt. 308, and note; Harnsbarger v. Kinney, 13 Gratt. 511; Bloss v. Hull, 27 W. Va. 503.
What Is Cumulative Evidence.—And evidence newly discovered is said to be cumulative, in its relation to the evidence on the trial, when it is of the same kind and character. If it is dissimilar in kind, it is not cumulative, in a legal sense, though it tends to prove the same proposition. Wynne v. Newman, 75 Va. 811; St. John v. Alderson, 32 Gratt. 140, and note.
Nor will a judgment at law be relieved against in equity on the ground of after-discovered evidence when such evidence relates to a fact in issue on the trial at law, and in support of which testimony was offered on the former trial, unless it is of such conclusive character, that, if it had been offered, it should have produced a different result. Bloss v. Hull, 27 W. Va. 503.
Diligence at First Trial.—Equity will not relieve a party against a judgment at law, on the ground of after-discovered evidence, or of a defence, of which he was ignorant, until judgment was rendered, unless he shows, that by the exercise of due diligence he could not discover such evidence or defence, or that he was prevented from employing the same by fraud, accident or the act of the opposite party, unmixed with laches or negligence on his part. Bloss v. Hull, 27 W. Va. 503; Ludington v. Handley, 7 W. Va. 269; Shields v. McClung, 6 W. Va. 79; Knapp v. Snyder, 15 W. Va. 434; Hevener v. McClung, 22 W. Va. 81; Enquirer Co. v. Robinson, 24 Gratt. 548; Arthur v. Chavis, 6 Rand. 141; DeLima v. Glassell, 4 H. & M. 369.
Illustration.—Though a bill charges that the judgment was recovered without appearance or defence for money which the plaintiff in the judgment alleged he had paid as surety, though he had not in fact paid one cent of the money, but the same had been paid by another surety, against whom there was a joint judgment with the plaintiff at law; and that of this fact the plaintiff in the bill had no knowledge until after the judgment, and therefore could not have defended himself, still this does not entitle the complainant to relief against the judgment, because it does not appear that he has done everything that could reasonably be required of him to render his defence effectual at law, for by the exercise of due and reasonable diligence, and by making proper inquiries in the proper quarters, he might have been readily led to discover whether the surety had in fact paid any of the money claimed to have been paid by him for the complainant, and of this information when obtained he could have fully availed himself in his defence in a court of law. Slack v. Wood, 9 Gratt. 40.
But where a bill of injunction to a judgment shows matter sufficient to have defeated a recovery at law, but to which, defence was not made because not discovered until after judgment, and until it was too late to move for a new trial, it is error to dissolve the injunction, provided a sufficient reason is shown in the bill why the matter of defence was not discovered in time to be set up in the action at law. Ferrellv. Allen, 5W. Va. 43; Harvey v. Seashol, 4 W. Va. 122; Armstrong v. Hickman, 6 Munf. 287; Mason v. Nelson, 11 Leigh 227.
Evidence Obtainable by Bill of Discovery.—If a dis*218covery is necessary to enable a defendant to prove payments or set-offs, which he might have pleaded at law, he should file his bill of discovery in aid of his defence at law, or should file interrogatories to the plaintiff under the statutes, otherwise no relief against the judgment will be given. George v. Strange, 10 Gratt. 499.
See “Bills of Discovery.”
Courts of equity relieve against judgments at law, upon the ground that the party injuriously affected thereby has a defence of which he could not have availed himself in a court of law, or of which he might have availed himself, but was prevented by fraud or accident, unmixed with any fault or' neglect on his part. If the facts upon which the application for relief is based, are unknown to the party at the time of trial in the law court, it is his duty to bring them to the consideration of the court, or furnish some reasonable and satisfactory excuse for its failure to do so. Hence, if a discovery from the plaintiff is necessary to enable the defendant to make his defence at law, he must file his bill for the discovery before the judgment has been rendered against him. And he cannot go into equity for discovery and relief against the judgment, after it has been rendered. Green v. Massie, 21 Gratt. 356.
D. VOID JUDGMENTS—ADEQUATE REMEDY AT LAW.—A judgment pronounced by a justice, without service of process upon or notice to the defendant is void. But as such a judgment may be set aside, even when rendered upon the verdict of a jury, by the circuit court, upon a writ of certiorari, the defendant in the j udgment cannot obtain relief against it in a court of equity. Kanawha & O. Ry. Co. v. Ryan, 31 W. Va. 364, 6 S. E. Rep. 924.
But in Goolsby v. St. John, 25 Gratt. 146, a bill was filed to enjoin execution on a judgment which had been rendered without service of process, or notice of the action. On demurrer to the bill, the court held that, the defendant in the judgment, having had notice of the judgment within the time limited for a motion to quash it, had a remedy at law by such motion and therefore is not entitled to relief in equity.
In Kanawha & O. Ry. Co. v. Ryan, 31 W. Va. 364, 6 S. E. Rep. 924, it was said by Snyder, J., in referring to High on Injunctions, sec. 230, in which it is said that equity will not relieve against a void judgment where there is an adequate remedy at law: “This it seems to me, correctly states the rule of law on this subject, and especially is it the rule in Virginia and in this state to deny and withhold relief in equity where there is a plain and adequate remedy at law. In Hudson v. Kline, 9 Gratt. 379, the court says: ‘It has been a favorite policy in this state, especially of late, not to afford relief in equity except in cases of concurrent jurisdiction. In all other cases he must avail himself of his legal remedy. If, without his default, he be deprived of all remedy at law, equity may relieve him; but if any legal remedy remains to him (that is, adequate remedy), though he may have lost, by misfortune, and without fault of his adversary, other concurrent legal remedies, he must resort to his remaining legal remedies.’” See also, 3 Graham & Waterman on New Trials, p. 1478 et sea.
Perpetual Injunction against Execution.—Where the judgment sought to be enjoined is absolutely void, the cause may be remanded to be proceeded in at law, and a perpetual injunction be granted against the collection of the execution on the judgment. Finney v. Clark, 86 Va. 354,10 S. E. Rep. 569. See infra, this note “Collateral Impeachment.”
E. BILL FOR INJUNCTION.
Uncertain Credit.—Where an injunction has been awarded to stay the collection of a judgment, and it appears from the answer of the defendant that there is a considerable sum in his hands, which he has agreed to apply as a credit in such judgment, and it is uncertain what is the amount which he ought, under an agreement into which he has entered, to credit on such j udgment, the court ought not to dissolve the injunction till it has ascertained, by sending the cause to a commissioner, if necessary, the amount of the credit which should be so given on such judgment. Heatherly v. Farmers’Bank, 31 W. Va. 70, 5S. E. Rep. 754.
Discharge in Bankruptcy.—Where a judgment debtor has obtained his discharge as a bankrupt subsequentto the judgment, he may enjoin the suing out or levy of any execution upon such judgment. Peatross v. M’Laughlin, 6 Gratt. 64.
Where the debtor in an execution objects that a previous execution has been levied by the sheriff upon sufficient property to satisfy the judgment, and that he has improperly misapplied the proceeds of the sale of the property, or if he insists that payment has been made to the sheriff which has not been credited on the execution, if he has an opportunity to apply to the court of law from which the execution issued for redress, he has no right to come into equity for relief. Beckley v. Palmer, 11 Gratt. 625: Crawford v. Thurmond, 3 Leigh 85, and Morrison v. Speer, 10 Gratt. 228, distinguished in Beckley v. Palmer.
1. Satisfaction before Execution Levied.—It was held in Crawford v. Thurmond, 3 Leigh 85, that where a judgment is recovered against a debtor, but before the execution is delivered to the sheriff, the debtor makes satisfaction to the creditor of the full amount of the debt, and receives a receipt therefor, a court of equity has jurisdiction to give him relief by way of injunction to inhibit further proceedings on the execution, though he might have made a motion to quash the execution at law.
But where a party claims that he has not been credited for all the money paid by him to the sheriff, on an execution, he may have any injustice done to him in that respect corrected in the court from whence the execution issued, and it is not a case for an injunction to the judgment and relief in equity. Morrison v. Speer, 10 Gratt. 228.
Whether a bill in equity for an injunction is the proper remedy to prevent a judgment creditor from proceeding to collect anew a judgment which has been in fact satisfied, has been disputed. Some of the cases hold that such an application is meritorious and should be allowed. But the better-considered doctrine upon this subject, and that most in harmony with the general principles underlying the preventive jurisdiction of equity, is that an injunction should not be granted for the purpose of staying or preventing a sale under an execution on the ground of payment, in whole or in part, and that in all such cases the person aggrieved should be left to pursue his remedy at law. Thus, in a case where, by virtue of an agreement between a judgment debtor and a judgment creditor, the judgment ought to be entered as satisfied, but in lieu the creditor has an execution issued and levied upon the goods of the debtor, the latter cannot obtain relief by injunction in a court of equity, for the reason that he has an adequate remedy at law. Howell v. *219Thomason, 34 W. Va. 794, 12 S. E. Rep. 1088; Hallv. Taylor, 18 W. Va. 544.
Writ of Possession.—Thus, an injunction will not be granted to restrain the execution of a writ of possession, based on an alleged error in the judgment upon which the execution issued, and also upon a judgment in the complainant’s favor for possession of a tract of land of which the land in question is a part, the final decision of which is pending on appeal. Rosenberger v. Bowen, 84 Va. 660. 5 S. E. Rep. 697.
Subsequent Reversal.—But where execution has been levied and returned satisfied, on a judgment which is erroneous and afterwards reversed or corrected, restitution cannot be awarded, unless it appears that the money has been paid to the plaintiff. Eubank v. Ralls, 4 Leigh 808.
Statutory Provision.—See Code of West Virginia, sec. 17, p. 870, which provides that “A motion to quash an execution may, after reasonable notice to the adverse party, be heard and decided by the court whose clerk issued the execution, or, if in a circuit court by the judge thereof in vacation; and such judge or court may, without such notice, make an order staying proceedings on the execution until such motion can be heard and determined,” etc. This provision is ample to protect an execution debtor from the levy oían execution upon a satisfied judgment, and is fully as complete and far less expensive and cumbersome than the resort to a court of chancery. Howell v. Thomason, 34 W. Va. 794,12 S. E. Rep. 1088.
Audite Querula Obsolete.—A motion to quash an execution issued on a satisfied judgment is the proper proceeding in place of an audite querula, which is now an obsolete remedy, and on such a motion the court may order questions of fact to he tried by a j ury. Smock v. Dade, 5 Rand. 639.
F. EQUITY ACTS ONLY IN PERSONAM.-Chancery cannot reverse or set aside a judgment of a law court for error or other cause, and order the law court to grant a new trial; but it can act on the person of the owner of the judgment by injunction against the enforcement of the judgment, and direct a trial by jury, and, upon verdict, either perpetuate or dissolve, in whole or in part, the injunction. Graham v. Bank, 45 W. Va. 701, 32 S. E. Rep. 345; Wynne v. Newman, 75 Va. 811.
In strictness, there is no such thing as an injunction to a judgment, because the court of chancery does not act upon the law court, and neither reverses, rescinds nor amends the judgment. It acts upon the party only, restrains him from enforcing the judgment by execution, and punishes him as for contempt for any violation of its mandate. Beckley v. Palmer, 11 G-ratt. 625.
“The court of chancery acts in personam, and not upon the court of law, which must decide all cases coming before it according to the legal rights of the parties.” Nichols v. Campbell, 10 Gratt. 560.
“The tribunal of the court of equity, does not act immediately upon that of the court of law, nor in any manner disrespectful to it; it only acts upon the party, and for good reasons existing in relation to him, restrains him from proceeding further.” Ashby v. Kiger, Gilmer 153.
“That the injunction operates upon the party only, and not upon the court, would seem to be a truism requiring no argument to support it.” Epes v. Dudley, 4 Leigh 145.
Jurisdiction.—The several superior courts of chancery have power to grant injunctions to the judgments of all courts of common law within their respective districts, and not otherwise; the place where the court of law is holden, and not the residence of the parties, furnishing the rule of jurisdiction in such cases. Cocke v. Pollok, 1 H. & M. 499.
Anomalous Condition of Affairs.—“The record exhibits the singular case of two chancellors in different districts disclaiming jurisdiction of a case brought before them by a bill of injunction to a judgment rendered in the district court of Charlottesville. The chancellor of the Richmond district, it is alleged in the bill, refused to grant the Injunction, although the defendants all resided within his jurisdiction, because the court, whose judgment was sought to be enjoined, was not within his jurisdiction. The chancellor of the Staunton district granted the injunction, but dismissed the bill afterwards, because, although the court which rendered the judgment sought to be enjoined, was within his district, yet none of the defendants resided therein." Tucker,!. Cocke v. Pollok, 1H. & M. 499. Thus, it will he seen from this opinion of Judge Tucker, the embarrassments and difficulties which arise under the statute limiting the jurisdiction of chancery to grant injunctions to judgments, the condition of affairs, as presented by him, being truly anomalous.
County Court Judge.—Under Va. Code 1873, ch. 175, sec. 6, the judge of the county court may award an injunction upon a bill addressed to the judge of the circuit court. “Whether the judgment or proceeding enjoined be of a superior or inferior court of his county or district, or the party against whose act or proceeding the injunction be asked, resides in or out of the same; provided such act or proceeding is apprehended, or is to be done, or is doing, in his county or district.” Rosenberger v. Bowen, 84 Va. 660, 5 S. E. Rep. 697.
The circuit court of Richmond city alone has j urisdiction to enjoin or affect any judgment in behalf of the commonwealth of Virginia. Code of Va. 1873, ch. 165, sec. 1; Com. v. Latham, 85 Va. 632, 8 S. E. Hep. 488.
“I have said that the general principle of our laws was that the locality of the law court determines the equitable jurisdiction. There is nothing in the act of January, 1802, singly considered, which abandons this principle; and, on the contrary, the act of February. 1802, seems strongly to support It. In most cases, the restraint upon the clerk of the law court is amply sufficient for the complainant; for without the act of the clerk no execution can go upon the judgment; and, this being the case, the defendants, wherever residing, will find their interest in coming in, submitting to the jurisdiction, and moving to dissolve the injunction. If, before the clerk of the law court receives notice that an injunction is awarded, he has, in fact, divested himself of his power, by actually issuing the execution into another district, beyond the limits of the chancery court, I am not at present prepared to say whether the process of the court may not pursue the execution, on the general principle that, where a jurisdiction exists, every necessary power shall be implied, to carry it into complete effect.” Cocke v. Pollok, 1 H. & M. 499.
Venue.—The 41st section of the circuit superior court of law, Supp. to Rev. Code, ch. 109, giving jurisdiction to each of the judges of the circuit superior courts, to award injunctions. to judgments rendered or proceedings apprehended out of his own circuit, but directing that, in such case, the *220order for the process of injunction shall be directed to the clerk of the court of that county wherein the judgment is rendered or the apprehended proceeding is to be had, gives the judge jurisdiction only to award the injunction, not to hear and determine the cause. Randolph v. Tucker, 10 Leigh 655.
The court of one county may, on its equity side relieve against a judgment at law, rendered in another county court, by way of original jurisdiction. And though it cannot award a new trial at the bar of that other court, yet it may direct an issue to be tried at its own bar. And if the relief be afforded without the trial of an issue, where that is proper, the high court of chancery may, upon an appeal, after reversal, retain the cause, and direct an issue to be tried. Ambler v. Wyld, 2 Wash. 36.
G. EXTENT OP RELIEF.
Decree Repayment of Amount Collected.—A court of equity, having dissolved an injunction against the assignee of a bond, because the payments, for which credits are claimed bj' the complainant, were made to the obligee after notice of the assignment, ought further to decree, that the obligee (being a defendant to the bill) do repay the sum so received by him, so soon as the complainant shall have paid the amount of the judgment to the assignee. Roberts v. Jordans, 3 Munf. 488.
“This bandying of suitors for justice, from court to court, may answer some purposes which, however, I am sure the gentlemen had not in view, but will not produce speedy and substantial justice, the legitimate ends of all courts, and which requires that the decree, in the present instance should be reversed anda perpetual injunction awarded. And I agree with the judge near me, that such be the decree of the court, with this addition, that it shall provide for the repayment of the money, if paid under the dissolution of the former injunction.” Branch v. Burnley, 1 Call 147. A similar order for repayment was made in Stanard v. Brownlow, 3 Munf. 229.
Cannot Enter Personal Decree.—Where upon a bill filed to enjoin a void judgment, the plaintiff is denied all relief for the reason that he has an adequate remedy at law, it is error to enter a personal decree against the plaintiff, for the amount of the judgment enjoined, upon the dissolution of the injunction. In such case, the only power possessed by the courtis to dissolve the injunction, and dismiss the bill, with costs. Kanawha & O. Ry. Co. v. Ryan, 31 W. Va. 364, 6 S. E. Rep. 924 ; Howell v. Thomason, 34 W. Va. 794, 12 S. E. Rep. 1088.
Relief against Portion of Judgment.—Where a plaintiff agrees to sell to a defendant a certain tract of land for a stated price, and put him in possession of the crops growing thereon, also of a stated value, but violates his agreement as to the crops, whereby the defendant loses them, and afterwards, the plaintiff recovers judgment for the full contract price, but the defendant refuses to pay for the crops, he may have judgment perpetually enjoined to that amount. Booth v. Kesler, 6 Gratt. 350 ; Sanders v. Branson, 22 Gratt. 369. In the latter case the court said : “The circuit court, after refusing to relieve against the whole claim, had a right, both on the case stated in the bill and the prayer for general relief, to give such relief as was equitable and just." See also, Mason v. Nelson, 11 Leigh 227.
Where a party for himself and others sells a part of a tract of land to another and receives his bonds for the purchase money, and the others refuse to confirm the contract, but sell their interest in the whole to the purchaser, the latter may enjoin a judgment recovered by the first vendor on the purchase money bonds, and be relieved in so far as he has been injured by such vendor’s failure to procure the others to execute the contract. Jaynes v. Brock, 10 Gratt. 211.
“The rule has been long established, that a court of chancery will not entertain a bill for the purpose of allowing a man to make a defence, which he might have made in the court of law; unless he shows some good reason why he did not avail himself of that defence in a court of law. This rule is founded on the principle, that there ought to be an end of litigation ; and that, consequently, where a matter has been once fairly investigated and decided in one forum, it shall not again become the subject of controversy in another. It was intended as a shield for the party who had prevailed at law, but, if he does not choose to avail himself of its benefit, if he voluntarily goes into the merits of the case, and in his answer, admits facts, which, if they had appeared to the court of law, would have there produced a different result, neither the rule, nor the principle of the rule, is violated by pronouncing a decree, justified by his own admissions.” Vanlew v. Bohannan, 4 Rand. 537.
Condition for Relief.—A person coming into a court of equity to impeach a judgment at law, must, on his part, do what equity requires. Lipscomb v. Winston, 1 H. & M. 453 ; Payne v. Dudley, 1 Wash. 196.
Judgment Stands as Security.—Where there has been a recovery at law, and _ the defendant seeks relief in equity, in the nature of a new trial, the judgment at law stands as a security for what the plaintiff may be justly entitled to. Knifong v. Hendricks, 2 Gratt. 212; Bank v. Hupp, 10 Gratt. 33; Grafton & G. R. Co. v. Davisson, 45 W. Va. 12,29 S. E. Rep. 1028.
“A judgment at law, however obtained, no matter by what fraud, accident or surprise, is allowed to stand as a security for what is justly due, whether that be a part or the whole of the debt recovered.” Bank v. Vanmeter, 4 Rand. 553, 555.
Accounts.—Where the subject of the action is accounts, a court of equity will not direct a new trial at law, but will refer the accounts to a commissioner, and itself give the proper relief, but will permit the judgment to stand as a security for the sum ascertained to be actually due. Rust v. Ware, 6 Gratt. 50. See also, Jaynes v. Brock, 10 Gratt. 214.
H. HEARING AND PINAL DECREE.—In Pinney v. Clark, 86 Va. 354, 10 S. E. Rep. 569, a bill for injunction against a judgment is brought on the ground that it is void for want of legal service of process, the prayer of the bill being to restrain the collection of the execution, to vacate the judgment, and to give the complainantin the bill an opportunity to make his defence at law, but raises no issue as to the merits. The plaintiff in his answer raised such issue. It was held that as the only question before the court of chancery was the validity, it had no right, of its own motion, to assume jurisdiction in the merits of the cause, but the execution on the judgment should be perpetually enjoined, the judgment vacated, and the cause remanded to be proceeded in at law by an alias summons properly served.
Will Set Aside Judgment in Toto,—When the plaintiff at law recovers more than he is in conscience *221entitled to, and there is no standard by which a court of equity can ascertain the amount of the excess unrighteously recovered, the" court will set aside the verdict in ioto. M’Rae v. Woods. 2 Wash. 80.
Trial of Legal Issues in Equity.—Under circumstances, inducing suspicions, that a bond (on which a judgment at law had been obtained against an executor) was counterfeit, or fraudulent, upon a bill filed by the executor, relief was given in equity, by directing an issue to try whether the bond in question was the deed of the testator or not; and, if so, -what was the consideration on which it was founded, notwithstanding the trial at law was upon the plea of payment put In by counsel, and a new trial moved for by the complainant was refused by the court. West v. Logwood, 6 Munir. 491.
A court of equity, upon enjoining a judgment at law, may direct an issue to be tried at its own bar, and if relief be afforded without the trial of an issue, when that is proper, the high court of chancery may, upon an appeal, after reversal, retain the cause, and direct an issue to be tried. Counsel need not be alarmed about objections to the form of proceeding, since being an issue out of chancery, and to be certified there, all forms in the proceeding at law will he out of the question. Ambler v. Wyld, 2 Wash. 86; Hadfield v. Jameson, 2Munf. 60.
“There are cases in which the court has required the defendant in chancery to submit to a new trial in the action at law, and restrained him from enforcing the judgment complained of. But the regular course would seem to be for the chancery court to order such issue or issues as may be proper, and to base its decree on the finding of the jury at the hearing, either dissolving or perpetuating the injunction, in whole or in part, according to circumstances. Such was the course pursued by this court in Knifong v. Hendricks, 2 Gratt. 218. In the present case, if a new trial was proper, the court should have ordered an issue, the same as in the action at law. to be tried as other issues out of chancery are tried, the verdict of the jury, if the trial was in the law court, to be certified in the chancery court, and in the meantime continue the injunction until the hearing of the cause; and if the finding was for the defendant and affirmed, dissolve the injunction; if for the plaintiff, perpetuate the injunction and decree for the complainant according to the verdict.” Wynne v. Newman, 75 Va. 811. See also, Moore v. Lipscombe. 82 Va. 546.
After an injunction has been granted and a trial at law directed, the court may, if satisfied that the injunction ought to have been dissolved, set aside the order for a new trial, and dissolve the injunction, although no verdict has been certified. Vass v. Magee, 1 H. & M. 2.
It is error for a court of equity, on application to enjoin a judgment at law and grant a new trial, to perpetuate the injunction, set aside and cancel the judgment, direct a new trial of the cause which has been terminated, and finally dispose of the suit in equity. The court of equity in such case should have continued the injunction, directed proper issues, and upon the coming in of the verdict perpetuated the injunction, or dissolved it in whole or in part, according to the finding of the jury. Knifong v. Hendricks, 2 Gratt. 212; Bank v. Hupp, 10 Gratt. 33.
Issues Directed to Be Tried by Jury.—where a bill is filed to enjoin a judgment on the ground that the debt on which it is founded is for money won at cards, it being doubtful on the evidence, whether such was the consideration, or if it was, whether the plaintiif in the judgment, who was a transferee of the debt, had not been induced to take the transfer of the debt under the belief, induced by the concealment or misrepresentation of the debtor, that the consideration of the debt was good and lawful; the court should continue the injunction, and direct issues to be tried by a jury for the purpose of ascertaining these facts. Nelson v. Armstrong, 5 Gratt. 354. See also, Hord v. Dishman, 5 Call 283.
nust Confess Judgment.—-The general rule is, that when a party comes into a court of equity, to be relieved against proceedings at law, he must confess j udgment at law, and rely solely on the court of equity for relief. Warwick v. Norvell, 1 Leigh 96. See generally, monographic note on “Judgments by Confession,” appended to Richardson v. Jones, 12 Gratt. 53.
“And even courts of equity themselves admit, that the plaintiff at law may proceed so far, as that he maybe at liberty, eo instante that the injunction is dissolved, to take out execution.” ISpes v. Dudley, 4 Leigh 145.
If proceedings on a judgment at law be enjoined by a court of chancery, and the injunction be after-wards dissolved; and on appeal, the order of dissolution is affirmed in omnibus; an execution may be sued out on the judgment at law, before the decree of affirmance is entered up in the court of chancery. Kpes v. Dudley, 4 Leigh 145.
Moreover, the judgment creditor may take any other steps, pending the injunction, so as to place himself In a condition to sue out execution as soon as the inj unction may be dissolved. Thus, a party plaintift, whose judgment has been enjoined, may, upon the death of the defendant pending the injunction, revive it against his personal representative, otherwise he will not be in a situation, upon the dissolution of the injunction, to issue execution, but must then be delayed till he can sue out his scire facias and obtain the order of revival. Richardson v. Prince George County, 11 Gratt. 190.
“There is no hardship in confining a party to one jurisdiction. It is a general principle of equity, that a man shall not be permitted to sue, both in law and equity, for the same thing; this principle has given rise to the practice of requiring a release of errors at law on obtaining inj unctions to j udgments. It is bottomed on a principle, that a man may waive any particular right or benefit, and on the evident justice of preventing a party from being vexed and harassed in various courts for the same cause, but that he shall stand or fall by the election he has made.” Roane, J. Branch v. Burnley, 1 Call 147.
Release of Errors.—when a chancellor fails on granting an injunction to require a release of errors, the court of appeals will still respect the principle. Ashby v. Kiger. Gilmer 153. See “Judgments by Confession” appended to Richardson y. Jones, 12 Gratt. 53.
If a rel ease of errors be pleaded to a supersedeas, and found for the defendant in error, the judgment should be, not that the judgment of the court below be affirmed, but that the plaintiff be barred of his writ of supersedeas. Hite v. Wilson, 2 H. & M. 268.
XIII. JUDGMENTS BY DEFAULT.
A. IN WHAT ACTIONS APPLICABLE.
Criminal Cases,—At common law no judgment by default could be rendered fin a misdemeanor case. State v. Slack, 28 W. Va. 372.
*222The term judgment by default applies strictly and technically to actions at common' law only. Davis v. Com., 16 Gratt. 134.
Effect of Statute.—But sec. 5, ol' ch. 134, W. Va. Code, includes judgments for fines in misdemeanor cases, as well as judgments in civil cases, where such judgments are entered by default. State v. Slack, 28 W. Va. 372.
Under Code W. Va. 1891, ch. 158, sec. 20, no judgment by default for imprisonment can be rendered for any misdemeanor either under chapters 32 or 151 or for any other statutory misdemeanor, but there may be a judgment for a fine by default. A defendant may appear by counsel in any misdemeanor case, though it be punishable by imprisonment, but in no case can there be judgment of imprisonment without having the defendant present at its rendition. State v. Campbell, 42 W. Va. 246, 24 S. E. Rep. 875.
1. Judgments by Deeaubt under Statutes.—All judgments, where there has been no appearance by the defendant, are judgments by default within the meaning of sec. 5, ch. 134 of W. Va. Code of 1868, and Va. Code, sec. 3451. State v. Slack, 28 W. Va. 372; Adamson v. Peerce, 20 W. Va. 59; Bank v. McElfresh, etc., Co. (W. Va.), 37 S. E. Rep. 541; Smith v. Knight, 14 W. Va. 749. But see Holliday v. Myers, 11 W. Va. 278; Carlon v. Ruffner, 12 W. Va. 298; Brown v. Chapman, 90 Va. 174, 17 S. E. Rep. 855; Davis v. Com., 16 Gratt. 134; Baker v. Mfg. Co., 6W. Va. 196; Meadows v. Justice, 6 W. Va. 198; Dickinson v. Lewis. 7 W. Va. 673; Forest v. Stephens, 21W. Va. 316; Midkiff v. Lusher, 27 W: Va. 439; Higginbotham v. Haselden, 3 W. Va. 269.
Judgment after Withdrawal of Plea.—But a judgment rendered against the defendant after withdrawal of his plea is neither a judgment by default nor by confession. Holliday v. Myers, 11W. Va.276; Carlon v. Ruffner, 12 W. Va. 297.
It is a judgment rendered upon proof of the cause made to the court without issue joined between the parties then before the court. Carlon v. Ruffner, 12 W. Va. 297.
A judgment, however, stating that the defendants were solemnly called and not appearing, on motion, etc., is a judgment by default; though it is stated at the foot of the judgment that on the motion of the defendants the. execution on this judgment is suspended for sixty days, upon the execution of a suspending bond. Goolsby v. Strother, 21 Gratt. 107, and note.
Office Judgment—An office judgment by default confirmed in an action of debt, although the service of process be insufficient, is a judgment by default within the meaning of the statute. Goolsby v. St. .John, 25 Gratt. 146.
Proceeding by Motion.—“The case of a motion comes within the reason of the statute, and I think the term judgment by default was intended to apply to all judgments where there was a default of appearance.” Davis v. Com., 16 Gratt. 134. See also, Preston v. Auditor, 1 Call 471; Cunningham v. Mitchell, 4 Rand. 189.
Proceeding by Notice.—A proceeding by notice, although not a technical judgment by default at common law, falls within the equity, and was intended to be embraced within the scope of Code of W. Va., ch. 134, sec. 3, 5, 6. Smith v. Knight, 14 W. Va. 749.
Contract Sounding in Damages.—Under Va. Code 1887, sec. 3211, providing that a person “entitled to recover money by or on any contract may, on motion, * * * obtain judgment therefor,” one cannot obtain a judgment for a breach of contract on motion in an action sounding in damages. Wilson v. Dawson, 96 Va. '687, 32 S. E. Rep. 461.
But whether the judgment be technically or strictly by default, or merely quasi by default, the effect and the law, and the reason of the law are precisely the same, for all judgments where there-has been no appearance by the defendant, are judgments by default within the meaning of the statute, Va. Code, ch. 181, sec. 5, p. 681. Goolsby v-St. John, 25 Gratt. 146; Davis v. Com., 16 Gratt. 134;. Staunton Perpetual B. & L. Co. v. Haden, 92 Va. 201,. 23 S. E. Rep. 285.
B. PARTIES TO DEFAULT.
1. In Whose Favor.
a. Deceased Plaintiff—A judgment rendered by default in a suit instituted in the name of a dead person is not void but merely erroneous or void able, and cannot be collaterally attacked, where the defendant is duly served but fails to appear and defend. Wattv. Brookover, 35 W. Va. 323, 13 S. E. Rep. 1007; McMillan v. Hickman, 35 W. Va. 705,14 S, E. Rep. 227. See also, Evans v. Spurgin, 6 Gratt. 107.
2. Against Whom.
а. Parties Not Named in Writ or Declaration.—In a suit against a mercantile company, if the names of the partners be omitted in the writ and declaration, and the writ be served on a person not named in either, a judgment against the company for that person’s failing to appear, cannot be sustained. Scott v. Dunlop, 2 Munf. 349.
б. Infants—It is error to take judgment against an infant by default, who is not stated on the record, to have appeared by his guardian to defend the suit, or that the guardian appointed by the court ever acted, or had notice of such appointment. Fox v. Cosby, 2 Call 1.
And an office judgment against an infant, who in the writ, is named as defendant “by J. K. his guardian,” cannot be supported, but must be reversed in toto, if there be nothing in the record to show that J. K. was guardian by testament, or ex provisions legis, or guardian ad litem, appointed by the court. Brown v. M’Rea, 4 Munf. 439.
c. Deceased Defendant—Where j udgment by default, is rendered against a defendant after his death, upon due servicé of process, such judgment is not void, but voidable, and cannot be collaterally attacked. King v. Burdett, 28 W. Va. 601.
d. Executors.—A judgment by default, against an executor, is prima facie admission of assets. Mason V. Peter, 1 Munf. 437.
Dissability Accruing Pending the Suit—The subsequent disability of the defendant does not render void a judgment by default where the court has once fairly acquired jurisdiction of the cause and parties. See Neale v. Utz, 75 Va. 480, holding that the judgment could not be collaterally assailed. See also, Turnbull v. Thompson, 27 Gratt. 306.
Joint Judgments.—Where, in a joint action of debt against two, a judgment by default goes against, one, and the other pleads to the action, and there is a trial, then there should be one and the same joint judgment against both. Peasley v. Boat-wright, 2 Leigh 196. Seeinfra, thisnote, II,D., “Joinder of Parties.”
Plea of Nil Debet by One.—Where an action is brought against the makers and endorsers of a, negotiable note, and one of the makers files a plea of nil debet, upon which the cause is discontinued as to him, and a judgment by default goes,against the-*223others for non-appearance, such judgment is valid against them. Code of Va. 1860, ch. 177, sec. 19; Muse v. Farmers’ Bank, 27 Gratt. 252.
3. Joint Parties.
Joint Codefendants—Irregular Service of a Portion. —A joint judgment by default against several defendants, a portion of whom are not served with process, or if served, the service is irregular, is erroneous, and may be reversed on motion under W. Va. Code, ch. 134, sec. 5, though it has been satisfied by another defendant. Ferguson v. Millender, 32 W. Va. 30, 9S. F. Rep. 38; Laidley v. Bright, 17 W. Va. 799; Carlon v. Ruffner, 12 W. Va. 299; Vandiver v. Roberts, 4 W. Va. 498; Midkiff v. Lusher, 27 W. Va. 439.
If the writ be issued against, and served upon, one person only, who alone appears and pleads, if the declaration be against him and another, and judgment be entered against “the defendants,” such judgment is to be understood as against both, and therefore erroneous as to the one who never pleaded. And such erroneous judgment may be reversed (as to the person against wh om it is improperly entered), upon appeal taken by the other defendant. Graham v. Graham, 4 Munf. 205.
Partners.—In order for a joint judgment to be rendered against all the partners of a firm, process must be served on all, otherwise such joint judgment will be reversed in toto, under Code of W. Va., ch. 134, sec. 5, on motion. Ferguson v. Millender, 32 W. Va. 30. 9 S. F. Rep. 38.
It was held in Bowles v. Huston, 30 Gratt. 266, that a judgment in New York under the Code of Procedure of that state against the members of a dissolved partnership, one of whom was not served with process and did not appear in person or by attorney in the suit, is not such a judgment as is contemplated by the constitution and act of congress, as to such person.
4. Jurisdiction of Person.—A personal judgment or decree cannot be rendered against a defendant who is not served with process, and who does not appear. McGavock v. Clark. 93 Va. 810, 22 S. E. Rep. 864; Wilson v. Bank of Mount Pleasant. 6 Leigh 574, opinion of Tucker, P.; Gray v. Stuart, 33 Gratt 351; Fowler v. Lewis, 36 W. Va. 112, 14 S. E. Rep. 447, citing, besides the above cases, Lamar v. Hale, 79 Va. 147; Wade v. Hancock, 76 Va. 620; Houston v. Mc-Cluney, 8 W. Va. 135; Capehart v. Cunningham, 12 W. Va. 750.
Invalid Service.—An invalid service is the same as no service whatever; and the law is well settled that a judgment rendered without an appearance by or service upon the defendant is void for want of jurisdiction in the court to pronounce the judgment. Kanawha & O. Ry. Co. v. Ryan, 31 W. Va. 364, 6 S E. Rep. 924; Blanton v. Carroll, 86 Va. 539, 10 S. E. Rep. 329.
Judgment on Void Process.—A judgment on a writ of scire facias, returnable on its face not within ninety days, can only be treated as a judgment rendered without service of process, because rendered on a void process, and is therefore void, because the imperative command of the statute (Code of Va. 1873, ch. 166. sec. 2), is that process from any court whether original, mesne, or final, except a summons for a witness, shall be returnable within ninety days, etc., and hence a writ not returnable within such prescribed time is in violation of the mandatory provision of the statute, and any judgment rendered thereon, is necessarily void. Lavell v. McCurdy, 77 Va. 763; Warren v. Saunders, 27 Gratt. 259.
a. Appearance and Defence as Waiver— But judgments or decrees in personam may be rendered, by state courts, against nonresident defendants, who are summoned merely by publication, where they appear and defend on the merits, for thereby they submit themselves to the jurisdiction of the court. Grubb v. Starkey. 90 Va. 831, 20 S. E. Rep. 784; Pennoyer v. Neff, 95 TJ. S. 714, distinguished.
Though where a defendant appears in term to have an irregular process quashed, it is not an appearance to the action which dispenses with further and proper process. Wynn v. Wyatt, 11 Leigh 584.
Appearance Bail Discharged.—If the defendant, in debt on a bond, appears and pleads, without giving special bail, and the court, without ruling him to give such bail, sets aside the office judgment against him, his appearance bail is thereby discharged. Grays-v. Hines, 4 Munf. 437.
Foreign Judgments.—If the plaintiff recovers judgment against the defendant, in a suit by attachment, without the defendant’s appearance, the judgment will have no eifectin another state, as a personal judgment against the debtor. But if the* defendant appears and defends himself in person or by attorney, then the judgment will have the same force and effect everywhere, as a judgment, recovered in an ordinary suit. In such a case the record may show upon its face that the debtor did or did not appear, and if it does, the judgment will have effect accordingly. If the record does not show whether he did or did not appear, the presumption is in favor of the validity of the judgment. Fisher v. March, 26 Gratt. 765.
Effect in Foreign State.—But in such a case, if the record does not state that the debtor did or did not appear, or even if it states that he did appear, in a suit upon this judgment in another state, the defendant may, by his pleading and evidence, aver and prove the contrary. Fisher v. March, 26 Gratt. 765.
Construction of Statutes.—It was held in Gilchrist v. W. Va., O. & O. L. Co., 21 W. Va. 115, that by the construction, which the New York courts put upon the New York statutes authorizing proceedings against foreign corporations, no judgment in ‘personam can be rendered in that state against a foreign corporation, unless it has appeared to the action.
“It lies at the very foundation of justice, that every person who is tobe aifected by an adjudication should have an opportunity of being heard in defence, both in repelling the allegations of fact and upon matters of law; and no sentence of any court is entitled to the least respect in any other court or elsewhere when it has been pronounced ex parte and without opportunity of defence.” Fair-fax v. Alexandria, 28 Gratt. 16; Underwood v. McVeigh, 23 Gratt. 409, and note; Connolly v. Connolly. 32 Gratt. 657.
b. Constructive Service.
.Strict Construction of and Strict Compliance with Statute.—“The procedure by constructive service of process in lieu of personal service, is a departure from the common law, and must be strictly followed. And, unless it appears from the record that the return was duly made, the judgment by default is void, and hence, if any prescribed interval of time | is required to elapse between the date of service of the process and the return day. or before the judgment by default, it must appear by the record that such required interval did intervene accordingly,, *224or else the judgment by default is void, not voidable only.” 4Min.Inst. (3d Ed.) 647; Staunton Perpetual B. & Zi. Co. v. Haden, 92 Va. 201, 23 S. E. Eep. 285.
Por instances of the strict construction that has been put upon these statutes, see Lewis v. Botkin, 4 W. Va. 533, 538: Hoffman v. Shields, 4 W. Va. 490; Capehart v. Cunningham, 12 W. Va. 750.
Judgment against Nonresident.—A personal judgment by default cannot be rendered against a nonresident defendant, on publication merely; sucha judgment is void. “Even if there be attachment of effects of nonresidents, a personal judgment on publication, without service of process or appearance, is a nullity, except as to effects attached. O’Brien v. Stephens, 11 Gratt. 610; Black, Judgm. sec. 231; Cooper v. Beynolds, 10 Wall. (U. S.) 318; Coleman v. Waters, 13 W. Va. 278; Gilchrist v. Oil, etc., Co., 21 W. Va. 115.” Fowler v. Lewis, 36 W. Va. 112, 14 S. E. Eep. 447.
Corporations.—A judgment by default against a corporation, rendered on return of a summons which shows that the requirements of the statute have not been complied with, is a void judgment, and may be assailed collaterally by third parties, and, in the language of Freeman, in his excellent work on Judgments, at sec. 117, “It neither binds nor bars anyone. All acts performed under it, and all claims flowing out of it, are void.” Staunton Perpetual B. &L. Co. v. Haden,'92 Va. 201, 23 S. E. Eep. 285; Va. Code 1887, sec. 3225, 3226.
No Legal Service of Process—Judgment Void.— Where a judgment by default is obtained against a defendant without legal service of process, the judgment, based on such service of process, is void. Staunton Perpetual B. & L. Co. v. Haden, 92 Va. 201, 23 S. E. Eep. 285; Finney v. Clark, 86 Va. 354, 10 S. E. Eep. 569.
Waiver of Defective Service.—Thus, where a judgment was Obtained by default without legal service of process, the request of the attorney for ,the defendant that an item for attorney’s fees, which was improperly included in the judgment, be omitted therefrom, is not a waiver of defective service, because the judgment, being void, could not be ratified. Staunton Perpetual B. & L. Co. v. Haden, 92 Va. 201, 23 S. E. Eep. 285.
Summons Erroneously Directed.—Where, contrary to law, the summons is directed to the sheriff of another county than the one in which the suit is brought, the judgment by default is erroneous, but not void. Brown v. Chapman, 90 Va. 174, 17 S. E. Eep. 855.
Thus, where in debt against four obligors, one of whom is the high sheriff, the process goes into the hands of his deputy, who serves it upon him as well as the other three, to which he makesno objection; and there is a judgment by default against all of them, the process is properly served and the judgment is valid. Turnbull v. Thompson, 27 Gratt. 306.
Writ Not Signed by Clerk.—A judgment by default rendered upon a writ, a copy of which was not signed by the clerk, is erroneous, but not void. Laidley v. Bright, 17 W. Va. 779; Ambler v. Leach, 15 W. Va. ■677.
Date of Writ Blank.—Moreover, a judgment by default, rendered upon a writ, the date of which is blank, is valid and binding as a judgment, unless set aside by motion to the court or by writ of error. Ambler v. Leach, 15 W. Va. 677.
Express Waiver.—Where, upon a motion to reverse a judgment by default for defective service of proc-, ess on a sheriff by his deputy, the defendant, who was sheriff, says he wishes to take no advantage of such return, if defective, this is a waiver or retraxit of the motion, and a release of error as to him, though he is a plaintiff in the motion to reverse; and, as he alone is prejudiced by the alleged defect, it is no ground for reversal as to any of the defendants. Anderson v. Doolittle, 38 W. Va. 633,18 S. E. Eep. 726.
Appearance a Waiver.—The object of the service of process is to bring the party into court. A judgment by default, with process badly executed, would not be legal. By appearance to the action in any case for any other purpose than to take advantage of the defective execution or the nonexecution of process, a defendant places himself precisely in the situation in which he would be if process were executed upon him, and he thereby waives all objection to the defective execution or the non-execution of process upon him. Bank v. Bank, 3 W. Va. 386.
When a defendant has not been served with process in the action, and has not appeared to the action, it is error for the clerk to enter office judgment against him for failing to appear and plead, and to award a writ of inquiry of damages; -and it is also error under those circumstances for the court to have the damages assessed by the jury, and to enter judgment against the defendant for the damages found by the jury. A defendant in such a case has the right under the statute to move the court, after proper notice, to reverse the judgment and correct the proceedings, and upon the court’s refusal to do so, then to bring the matter before the appellate court by writ of error. Capehart v. Cunningham, 12 W. Va. 750; Houston v. McCluney, 8 W. Va. 135.
Irregularity—Plea to Action as Waiver.—A capias ad respondendum, in debt on bond, returnable to August rules, being returned executed, and the defendant not appearing, the clerk enters the common order; at September rules the defendant appears and puts in special bail, but does not plead; the plaintiff insists that the clerk shall enter a confirmation of the common order, so as to put the case on the office judgment lists of the next term, which the clerk refuses to do; at the next term, the court orders the case to be put on the office judgment, and then the defendant puts in a plea to the action; and at the ensuing term, there is a trial, verdict, and judgment for the defendant. The court held, without deciding whether it was regular or not to order the case to be put on the office judgment list, that the defendant’s pleading to the action, was a waiver of objection to the regularity of the order. Powell V. Watson, 3 Leigh 4.
C. WHEN DEFAULT MAY BE TAKEN.
Scire Facias against Bail.—Upon a scire facias against special bail, he obtained a bail piece, arrested his principal, surrendered him to the jailer and took the jailer’s receipt for his body, and gave notice thereof to the attorney of the plaintiffs, they not residing in the county. Notwithstanding all this, there was an office judgment upon scire facias against the bail, and he not appearing to defend the case at the next term, the office judgment was confirmed. It was held that equity will not relieve the bail. Allen v. Hamilton, 9 Gratt. 255.
Time for Hearing.—Va. Code 1873, ch. 166, § 6, applies to judgments by default, and, perhaps to decrees or bills taken for confessed and not where the defendants appear and answer; and the thirty days necessary to elapse in order to ripen the cause for hearing on its merits, are thirty days from the *225service, not the return, of the process. Robinson v. Mays, 76 Va. 708.
1. Entry.
When Judgment to Be Entered.—It is error in a court of law to enter a judgment against a defendant, on the day after a conditional judgment has been confirmed at the rules. The defendant has until the next term after the conditional judgment is confirmed in the office, to set it aside, under the act of the assembly. Green v. Skipwith. 1 Rand. 460.
In the case of a judgment by default, final judgment must not be entered against a defendant 'within one month after he was served with process, for according to the true construction of onr statutes, where less than one month has elapsed between tbe service of process and the end of the succeeding term, the conditional judgment will become final at the term next succeeding the expiration of one month after the service of process. Va. Code 1873, ch. 166, sec. 6; Dillard v. Thornton, 29 Gratt. 392, and note; Robinson v. Mays, 76 Va. 708.
Entry before Return of Writ.—A judgment entered in the clerk’s office, before the execution and the return of the writ is erroneous, and cannot be supported by the writs being returned executed to the term when the judgment is made final. Higginbotham v. G arland, 2 Munf. 491; Winchester v. Bank, ,2 Munf. 339.
Entry against Defendant and Bail.— It seems that, where a judgment is entered in the clerk’s office against the defendant and bail, a copy of the bail ought to be inserted in the record. Shelton v. Pollock. 1H. & M. 422.
Entry of Judgment Containing Indorsement of Credit.—A judgment by default, for want of appearance, founded on an instrument of writing for the payment of money, on which an endorsement of credit is made by the plaintiff himself, ought to be entered subject to such credit; or if the plaintiff refuses to take the judgment in that way, a writ of enquiry should be awarded. Rees v. Conococheague Bank, 5 Rand. 326.
Appearance Bail.—If an office judgment be set aside and the suit defended by the appearance bail, and he afterwards waives his plea, judgmentis to be entered against the defendant as well as the bail. Vanmeter v. Fulkimore, 1 H. & M. 329, and note ; Wallace v. Baker, 2 Munf. 334 ; Lee v. Carter, 3 Munf. 121.
Common Order Entered Prematurely.—it is error sufficient to reverse an office judgment that the common order was entered before the plaintiff filed his declaration. Waugh v. Carter, 2 Munf, 333.
Affidavit.—The proper construction of sec. 46, ch. 125 of the W. Va. Code, is that if the affidavit required by that section is filed during the first term of the court after the office judgment at rules, or at any time during the following vacation of the court, final judgment may be entered during that term in court on or before the fifteenth day thereof, or during that vacation by the clerk. But if the affidavit be not made during that term, or during the following vacation, then the clerk has no authority to enter np final judgment, but the plaintiff must prove his -case before the court, before j udgment is given him. Farmers’Bank v. Montgomery, 11W. Va. 169; Hunter v. Snyder, 11 W. Va. 198.
Declaration Defective.—Jt seems that where an office judgment is reversed on the ground that the declaration is radically defective, the appellate court, if the writ be correct, will not enter judgment for the defendant, but will send the cause back to be proceeded in from the writ. Hill v. Harvey, 2 Munf. 525.
Cause Properly on Office Judgment Docket.—If the common order and the common order confirmed have been regularly entered at rules, the cause is properly on the office judgment docket at the next term of the court; though no endorsement of the proceedings may have been made upon the papers in the cause. Wall v. Atwell, 21 Gratt. 401.
When to Be Placed on Docket.—A capias ad respondendum was issued, returnable to the rules, on the first Monday in April, and on that day common order was entered; the first Monday in May was the next rule day, on which day the common order was confirmed in the office. On the same day the court sat’. Held, it was not regular to place that case on the office judgment docket of that term, because 1 Rev. Code 1819, ch. 128, sec. 76, p. 506-7, directs that the docket shall be made out before every term. White v. Archer, 2Va. Cas. 201.
Irregularity in Proceeding in Office.—But if the proceedings in the office have been so irregular that the cause is not properly on the office judgment docket, the court should remand it to the rules for proper proceedings. Wall v. Atwell, 21 Gratt. 401.
D. ON DEFEND ANT’S FAILURE TO PLEAD.
Rule to Plead.—The defendant in ejectment may, upon notice to the plaintiff appear at the next term of the court, and move the court to set aside the judgment by default, and allow him to plead thereon, where the plaintiff has not served the defendant with notice of a rule to plead, as the statute required. Smithson v. Briggs, 33 Gratt. 180.
But the defendant may be ruled to trial in the county court, at the first term after the office judgment. Mandeville v. Mandeville, 3 Call 225.
Interrogatories.—it is proper to permit the answers to interrogatories of one defendant to be read to the jury on the trial of the cause although the judgment has been had against him in the clerk’s office, and has become final by the rising of the succeeding term of court, no issuable appeal having been filed. Lazzell v. Mapel, 1W. Va. 43.
Failure or Refusal to Plead.—Under Va. Code 1887, § 3211, providing for the judgment in fifteen days’ notice in an action by a person entitled to recover money, the defendant is not entitled to a jury trial, on failure or refusal to plead. Preston v. Salem Imp. Co.. 91 Va. 583, 22 S. E. Rep. 486.
Submission of Issue to Jury.—Where the defendant has not appeared and made defence to a motion, upon notice, against him and his sureties, and judgment is rendered against him by the court at the instance of the plaintiff; and the record of the judgment erroneously states: “This day came the parties by their attorneys, and neither party requiring a jury, all matters of law and fact are submitted to the court,” it is not error for the court, upon the motion of the defendant at the same term to set aside the judgment. And the court may do so ex mero motis. Smith v. Knight, 14 W. Va. 749: Ballard v. Whitlock. 18 Gratt. 235.
Craving of Oyer.—If, in an action of debt on bond, the bond or deed sued on is not filed with the declaration, and the defendant appears at rules and craves oyer of it, which the plaintiff does not give, and the defendant will not plead without oyer, the clerk may properly take the rules without regard to the craving of oyer, so that the case may be ready to be disposed of at the next term of the court. Smith v. Lloyd, 16 Gratt 295.
No Plea in Cause.—If there be an office judgment *226against the defendant, in an action on. the case, and a writ of inquiry, and, afterwards, without any plea in the cause, the jury be sworn as if there were an issue, and a verdict be found for the defendant, the verdict will be set aside, and a new trial directed. M’Million v. Dobbins, 9 Leigh 422.
Expiration of Time to Plead.—Parties who are proceeded against by order of publication have one month after the order is completed to appear and plead; and it is error to confirm a conditional judgment at rules before the expiration of that time. Higginbotham v. Haselden, 3 W. Va. 266.
B. PLEADING OP DEPENDANT UNDISPOSED OP.
While Demurrer on File—Pending Motion,—“When an answer or other pleading of a defendant raising an issue of law or fact is properly on file in the case, no j udgment by default can be entered against him. To authorize a default, the answer or other pleading must be disposed of by motion, demurrer, or in some other manner. Por the same reasons, a default cannot be entered while a motion is pending.”
1 Black, Judgm. sec. 86. Approved in Johnston v. Bank, 41W. Va. 550, 23 S. E. Rep. 517.
P. STATUTE OP JEOPAILS.—In general, the statute of jeofails is not applicable in case of a judgment by default for want of appearance; but if the party has once appeared, though he makes default, afterwards, and then there is judgment against him by such default, the statute of jeofails is applicable. Bargamin v. Poitiaux, 4 Leigh 412'.
Does Not Cure Errors or Defects in Proceedings.—In cases of judgments by default, the statute of jeofails does not apply to cure errors and defects in the proceedings. Wainwright v. Harper, 3 Leigh 370; Hatcher v. Lewis, 4 Rand. 152; Payne v. Britton,
6 Rand. 104, opinion of Judge Green.
G. .WRIT OP INQUIRY.—It is error to enter a judgment on the office without awarding an inquiry of damages. Shelton v. Welsh, 7 Leigh 175.
Common-Law Rule—According to the common law, as recognized and settled in West Virginia, there can be no final judgment by default in any action at law sounding in damages, in the absence of a writ of enquiry, either in the circuit court or before a justice, when the value in controversy or the damages claimed exceed twenty dollars, and the right of either party, if he demands it, to have such writ executed by a jury, is guarantied by the West Virginia constitution. This right does not depend upon the condition of the pleadings, or the conduct of the adverse party. It is a right which may be invoked by either party, whatever may be the wishes or the actions of the opposite party. Hickman v. B. & O. R. Co., 30 W. Va. 296, 4 S. E. Rep. 654.
When Writ of Inquiry to Be Executed.—A writ of inquiry cannot be executed in the general court, or a district court, at the term next succeeding the rule day on which the office judgment was confirmed; because the defendant has the whole term to set aside the writ of inquiry, and plead to issue. Craghillv. Page, 2H. & M. 446. See Va. Code 1887, sec. 3288.
Power of Court to Correct.—But where the clerk improperly enters an order for a writ of inquiry in an action for damages, at rules, the court may correct the mistake, or disregard it, and enter judgment as though no such order had been entered. Anderson V. Doolittle, 38 W. Va. 629, 18 S. B. Rep. 724.
Insurance Policy—Provision as to Adjustment.—It was held in Commercial Union Assurance Co. v. Everhart, 88 Va. 952,14 S. E. Rep. 836, that a policy of fire insurance, containing a provision that, if there be other insurance on the property, the loss, if any, shall be adjusted among the several insurers, is not a "writing for the payment of money,” within Va. Code, sec. 3285, dispensing with an inquiry of damages in an action on such writing in case of judgment by default.
Appearance Bail Not Taken.—If j udgment be entered against the defendant and sheriff, in a case in which the sheriff was not required to take appearance bail, the court ought to set it aside as to the sheriff, when this is disclosed before executing the writ of inquiry. Williams v. Campbell, 1 Wash. 153.
Confirmation without Writ of Inquiry.—Where a joint action is brought against the drawers and endorsers of a negotiable note, an office judgment cannot be confirmed against all or either of the defendants, without a writ of inquiry. Hatcher v. Lewis, 4 Rand. 152.
Declaration in Debt for Money Lent.—A judgment at rules in the clerk’s office cannot lawfully be made final, on a declaration in debt, for money lent, and not alleged to be founded on any specialty, bill or note in writing, until a writ of inquiry has been awarded and executed. Hunt v. M’Rea, 6 Munf. 454; Shelton v. Welsh, 7 Leigh 175.
Intervention of Jury—Ejectment.—An office judgment in an action of ejectment, does not become final without the intervention of the court or a jury, but there ought, in every such case, to be an order for an inquiry of damages. The James River & Kanawha Co. v. Lee, 16 Gratt. 424, and note-. Smithson v. Briggs, 33 Gratt. 180; Hickman v. B. & O. R. Co., 30 W. Va. 296,4 S. E. Rep. 654.
Negotiable Notes.—As a negotiable note is not as to the indorser, a note for the payment of money within the meaning of the act of 1804, judgment consequently cannot be rendered in such case, without the intervention of a jury, and on reversing a judgment by default in such action, the defendant will be allowed to obj ect to the merits in the court below. Metcalfe v. Battaile, Gilmer 191.
H. APPLICATION FOR RELIEF.
Form of Notice to Reverse.—A notice to reverse or correct a judgment by default, need not be in writing. All that is requisite is, that there should be reasonable notice. Dillard v. Thornton, 29 Gratt. 392.
Default on Forfeited Forthcoming Bond.—When a judgment and award of execution upon a forfeited forthcoming bond, has been entered by default, upon a day prior to that to which notice is given, the court in which the judgment and award of execution is rendered has jurisdiction on the motion of the plaintiff to set aside the judgment and quash the execution, upon reasonable notice to the defendants. Ballard v. Whitlock, 18 Gratt. 235.
Specified Grounds of ¡lotion Stated.—But a party, who asks the court to reverse the judgment by default on notice and motion under the statute must specify in his notice a particular ground of objection, or he cannot rely upon such grounds before the circuit judge or in the appellate court. Laidley v. Bright, 17 W. Va. 779 ; Coffman v. Sangston, 21 Gratt. 263.
: ; Errors Apparent on the Record. — In Laidley v. Bright, 17 W. Va. 801, it was said obiter that the appellate court might look into the errors in the proceedings apparent on the face of the record although not specifically pointed out in the notice as. *227the basis of the motion. But this point was not essential to the decision.
Petitions for Rehearing.—The statutory remedy by motion, is, however, cumulative, and has not superseded or abolished petitions for rehearing, which may still be had according to the course of equity,' in the same manner as before the enactment of the statute allowing these motions to be made. Kendrick v. Whitney, 28 Gratt. 646.
1. Causes for Setting Aside Judgment by Default.—After judgment by default has been entered up in court, or an order of inquiry of damages has been executed, under section 46, ch. 125 of the W. Va. Code, it cannot be set aside, and a defence to the action be allowed, under section 47 of the Code, without good cause being shown therefor: and such good cause can only appear by showing fraud, accident, mistake, surprise, or some other adventitious circumstance beyond the control of the party, and free from culpable neglect on his part. Post v. Carr, 42 W. Va. 72, 24 S. E. Rep. 583.
Lack of Jurisdiction.—-A judgment by default, rendered without jurisdiction, under ch. 123, Code of W. Va., amended by ch. 46, Act 1897, is void, and may be vacated on motion. Rorer v. People’s Bldg. Loan & Savings Ass’n (W. Va.), 34 S. E. Rep. 758 ; Green, Judgm. sec. 98.
Failure of Attorney to Defend.—But it seems that the mere failure of an attorney to defend is not good cause for setting aside a judgment by default. Post v. Carr, 42 W. Va. 72, 24 S. E. Rep. 583; Hubbard v. Yocum, 30 W. Va. 755, 5 S. E. Rep. 867; Hill v. Bow-yer, 18 Gratt. 364.
Judgment by Default on Defective Return.™On the other hand, where a return of a sheriff on process is fatally defective, and there has been on such return a judgment entered by default, the defendant, under Code W. Va. sec. 5 of ch. 134, may on motion have such judgment set aside for such error, and if the motion is overruled, the judgment will be reversed on writ of error. Midkiil v. Lusher, 27 W. Va. 439.
Endorsement on Writ of Nature of Action.—If a writ be issued without an endorsement of the true nature of the action, the court may, upon inspection of the writ, dismiss the suit, if the motion be made during the term next after an office judgment has been entered, bat not afterwards. Williams v. Campbell, 1 Wash. 153.
Illness—Prevalance of Smallpox.-—Where it appears that the defendant in an action is dangerously ill, and unable to attend court, and the attorney he relies on is deterred from going to the courthouse on account of the prevalance of smallpox in the town where the courthouse is situated, whereby judgment goes against the defendant by default, such judgment should be set aside on motion, upon the presentation of sufficient affidavits proving the excuses offered for the defendant’s and attorney’s nonattendance. Johnston v. Bank, 41 W. Va. 550, 23 S. E. Rep. 517.
Mistake of Character of Suit.—In Mosby v. Haskins, 4 H. & M. 427. a judgment by default was opened where the party had made the mistake of supposing that the summons served upon him was process in a pending chancery suit instead of primal process in an action at law, the court further said; “Could there have been a more complete surprise, than in the first instance to have met with an execution instead of a capias. There certainly could not to my mind: and hence a good ground for relief in equity.”
Order of Judge Forbidding an Appearance.—Where in a proceeding to confiscate property of a person charged to be in rebellion, the counsel for such person does not enter an appearance for him, because in three cases against the same party, before the same judge, he was informed by the judge from the bench, that it was the rule of his court not to allow an appearance and defence by rebels and traitors,, the counsel is not in default for failing to enter an appearance; and the decree of confiscation entered thereon is void and of no effect. Fairfax v. Alexandria, 28 Gratt. 16.
Costs of Protest Not Demanded in Writ.—Where the judgment is by default, tbe error of claiming in the declaration costs of protest, when those costs are not demanded in the writ, may be taken advantage of. Hatcher v. Lewis, 4 Rand. 152. See also, Wainwright v. Harper, 3 Leigh 270.
Reversal of Joint Judgment by Default.—Thus, where a joint judgment is rendered against two by default and for a defective return as to one it is reversed, it must be reversed as to both of the defendants. Midkíff v. Lusher, 27 W. Va. 439; Van-diver v. Roberts, 4 W. Va. 493; Hoffman v. Bircher, 22 W. Va. 537.
Reversal on Motion under Statute.—But where a joint judgment is rendered against two or more defendants by default, it is error to reverse it on motion, under sec. 5, ch. 134 of the W. Va. Code, as to one defendant only, and not as to all. Bank v. McElfresh, etc.. Co. (W. Va.), 37 S. E. Rep. 541.
Waiver.—Where a judgment by default is set aside to allow the defendant to appear and plead, the latter cannot claim that he was not regularly brought into court. Morotock Ins. Co. v. Pankey, 91 Va. 259, 21 S. E. Rep. 487; Harvey v. Skipwith, 16 Gratt. 414; Va. Code, sec. 3260.
Filing of Affidavit—Partnership.—Upon the hearing of a motion to correcta judgment for being rendered against parties, who had not been served with process, and who had not appeared to the action, it is not error for the court to refuse to permit other parties, who were included in the judgment, but who had been duly served with process in the action, to file a plea or an affidavit denying the partnership. Carlon v. Ruffner, 12 W. Va. 297.
Parties to Motion.—it is not necessary to make those defendants, upon whom process has been duly served, and against whom judgment has been rendered, parties to a motion made to correct a judgment by defendants, who have not been served with process, and who have not appeared to the action, but against whom the judgment had also been rendered. Carlon v. Ruffner, 12 W. Va. 297.
Joint Codefendants—Portion Not Served.—Where a joint judgment by default is rendered against several defendants, and it appears that the writ, a copy of which was served on some of the defendants, was not signed by the clerk, or where the notice is otherwise improperly executed as against one party, such judgment should be reversed, and the cause remanded, to be properly proceeded with below. Laidley v. Bright, 17 W. Va. 779; Vandiver v. Roberts, 4 W. Va. 493.
No Service of Process —How Corrected.—Where judgment is given against persons, upon whom process has not been served, and who have not appeared to the action, the proper way to correct the error is upon motion before the court that rendered the judgment. Carlon v. Ruffner, 12 W. Va. 299; Gunn v. Turner, 21 Gratt' 382.
But upon the hearing of a motion made by defend*228ants, againstCwhom the court has rendered judgmenCbef ore’.process has heen served on them, and who had not appeared, it is error for the court to remandüthe cause to rules as to another defendant, upon whom process had been duly served, and office judgmentjwas confirmed, butwho had not appeared to the action, andlagainst whom the court had failed to enterljudgment. Garlón v. Ruffner, 12 W. Va. 297.
Allowance of Credits—Reformation.—Where certain plaintiffsigive notice, that they will move the court to reformtan -office judgment, by allowing certain credits, and one of the credits claimed is endorsed on the bond, and the plaintiff endorses the other at the time of the motion, the court will refuse to reform the j udgment. Gunn v. Turner, 21 Gratt. 382.
Limitation lof .Motion.—The motion to correct an error in adjudgment or decree rendered by default under ch.(177,2sec. 5, Va. Code 1873, or sec. 5, ch. 134, W. Va. Coae, is barred after the lapse of five years from,the,idatelof Isuch judgment or decree. Kendrick v. Whitney, 28 Gratt. 646; Dick v. Robinson, 19 W. Va. 159. See Wrenn y. Thompson, 4 Munf. 377.
2. When Motion to Set Aside Acted on.—Where a motion to setlaside a judgment by default and allow theldefendant to plead, is made by the defendant'jduring the ¡¡term, at which the judgment is entered,Jand goodicause is shown why that judgment should helisetl aside and the defendant allowed to plead, the court,Should act on the motion during the term, and not continue the motion until the next term, o Johnston v. Bank, 41 W. Va. 550, 23 S. E. Rep. 517.
Where, in am action of debt, the common order is confirmed at rules irregularly, the defendant having pleaded to a part of the plaintiff’s demand, this irregularity cauuot afterwards be corrected at rules. Southall v. Bank, 12 Gratt. 312.
When Become Pinal.—if the term of the circuit court lasts more than fifteen days, all office judgments in which no writ of enquiry is ordered become final judgments on the fifteenth day; and cannot afterwards he set aside by the court. Enders v. Burch, 15 Gratt. 64, and note; Hunter v. Snyder, 11 W. Va. 204; Alderson v. Gwinn, 3 W. Va.229; Lazzell V. Mapel, 1W. Va. 43.
No Plea to Issue.—Where there has been a conditional judgment at rules, in an action of debt, and the case is on the docket for hearing, the judgment becomes final on the last day of the next term of court or on the fifteenth day thereof, whichever happens first, if there is no pleading to issue. And the filing of an affidavit, requiring the plaintiff to take the suitors’ test oath, where there is no such pleading, is not sufficient to prevent a judgment by operation of law. Alderson v. Gwinn, 3 W. Va. 229.
Several Defendants—Plea to Action by One.—Where one of several defendants appears and files a plea to an action of debt, which sets up no defence as to any one but himself, and no plea is entered for or by the codefendants, the office judgment is not set aside as to any of the parties hut the one who moves so to do, and judgment becomes final against all others on the last day of the term at which the case is docketed. Greig v. Hedrick, 5 W. Va. 140.
Where a summons in debt is served on a defendant on the 3d of February, and the judgment by default becomes final on the 3d of March it is a valid judgment, because, under the statute the day of service of the process may be counted, and thirty days have elapsed between the service of process and the judgment. • Turnbull v. Thompson, 27 Gratt. 306.
During Term.—A decree by default for the plaintiff, in an action to cancel a conveyance as fraudulent, is not such a final decree as to prevent the court, for sufficient cause shown, from setting it aside during the term. Bierne v. Ray, 37 W. Va. 571, 16 S. E. Rep. 804.
Setting Aside at Subsequent Term.—Where a conditional judgment is entered in the office, in debt on a decree for money without awarding a writ of inquiry of damages, the court, at a subsequent term, may set aside the judgment as irregularly entered. Shelton v. Welsh, 7 Leigh 175. The court in this case distinguished and explained Halley v. Baird, 1H. & M. 25; Freeland v. Field, 6Call 12; Digges v. Dunn, 1 Munf. 56; Eubank v. Ralls, 4 Leigh 308. In the first case, i. e., Halley v. Baird, the court decided, in conformity with the common law, and Freeland v. Field, that a judgment entered in the order book and signed by the judge in open court, could not be amended at a subsequent term, these facts were emphatically stated, and seemed to have been considered as vitally important.
Subsequent Term.—Moreover, a final decree by default may be set aside at a subsequent term, for good cause shown, in a case where relief cannot be given by a bill of review, or bill to impeach the decree for fraud in obtaining it. Erwin v. Vint, 6 Munf. 267.
Member of Assembly—Privilege.—Where a suit has been brought against a member of the General Assembly, and the process has been served upon him, and an office judgment has heen entered up against him at the rules, whilst his privilege existed, and confirmed, he may, at the next term of the court, though his privilege has then ceased, upon motion, have all proceedings subsequent to the issue of the process set aside, and the cause remanded to the rules. McPherson v. Nesmith, 3 Gratt. 237.
3. Admission oe Pleas.—After an office judgment, the court has discretionary power to admit any plea which appears necessary for defendant’s defence, though not issuable and should refuse It only where delay seems to be intended. Downman v. Down-man, 1 Wash. 26.
General Demurrer.—But a general demurrer is an issuable plea, which ought to be received for the purpose of setting aside an office judgment. Syme v. Griffin, 4 H. & M. 277.
Puis Darrein Continuance.—After an office judgment, and before the end of the next quarterly term the plea puis darrein continuance may he pleaded. Hunt v. Wilkinson, 2 Gall 50, 1 Am. Dec. 534.
Plea in Abatement.—But a plea In abatement ought not to be received to set aside an office judgment, unless it be of matter which arose puis darrein continuance. Bradley v. Welch, 1 Munf. 284; Hunt v. Wilkinson, 2 Gall 49.
A plea in abatement not being an issuable plea, cannot be filed to set aside an office judgment, and must be filed at rules, before office judgment is entered, except where cause, making the filing of a plea in abatement necessary, occurs after the office judgment is entered at rules, in which case it may be filed at the first opportunity afterwards. Hinton v. Ballard, 3 W. Va. 582, citing Wyche v. Macklin, 2 Rand. 426; Hunt v. Wilkinson, 2 Call 49, 2 Tuck. Com. 254. See monographic note on “Pleas in Abatement” appended to Warren v. Saunders, 27 Gratt. 259.
Judgment on Docket.—An office j udgment cannot be set aside when it stands as an office judgment on *229the docket of the court, by a plea in abatement. Wall v. Atwell, 21 Gratt. 401.
Statute of Limitations.—The defendant cannot plead the act of limitations upon setting aside the office judgment, after the next succeeding term, unless good cause is shown. Backhouse v. Jones, 5 Call 462.
Defective Plea.—A defective plea, to an action upon an injunction bond, ought not to be received by the court, to set aside an office judgment. Gray v. Campbell, 3 Munf. 251.
Plea to Part of Demand.—If the plea filed by the defendant at rules, does not go to the plaintiff’s whole demand, he may sign judgment for so much as is not covered by the plea. Southall v. Bank, 12 Gratt. 312.
Discretion of Court in Receiving Pleas.—Where a plea is offered on setting aside an office judgment, the court may exercise a sound discretion about receiving them; should receive none (if objected to) that do not go to the merits of the action. Wyche v. Macklin, 2 Rand. 426; Downman v. Downman, 1 Wash. 26.
I. RELIEF BY PROCEEDING IN EQUITY.—An injunction will not be granted against a judgment by default upon summons directed to the sheriff of another county than the one where the action is brought, although the summons was issued contrary to law, as the judgment, though erroneous, is not void, and the defendant has a complete remedy at law by motion under Va. Code 1887, sec. 3451. Brown v. Chapman, 90 Va. 174, 17 S. E. Rep. 855.
Grounds for Interference in Equity.—A party cannot get relief inequity, against a judgment by default, upon grounds which might have been successfully taken in a law court, unless some reason founded in fraud, accident, surprise, or some adventitious circumstances beyond the control of the party be shown, why the defence was not made in that court. Alford v. Moore, 15 W. Va. 597; Knapp v. Snyder, 15 W. Va. 434; Braden v. Reitzenberger, 18 W. Va. 286. See infra, this note, “Equitable Relief against Judgments.”
Suit in Equity to Enforce Judgment.—In a suit in equity brought for the purpose of enforcing a judgment lien, which judgment was obtained against the defendant by default, the defendant will not be allowed in said chancery suit to make any defence against the judgment which might have been successfully made in a court of law, unless he shows some reason founded on fraud, accident, surprise, or some adventitious circumstance beyond his control, why the defence at law was not made. McNeel V. Auldridge, 34 W. Va. 748, 12 S. E. Rep. 851.
Scope of Relief.—Where for want of service of process judgment is void, collection of execution should be enjoined, the judgment vacated, and the cause remanded to be proceeded in at law by an alias summons properly served. Finney v. Clark. 86 Va. 354, 10 S. E. Rep. 569.
Relief of Bail.—Bail cannot be relieved in equity against a judgment at law by default, without assigning some good cause why he did not defend himself at law. Brown v. Toell, 5 Rand. 543.
1. Appeal from: Default.
Preliminary Application to Correct.—if a party takes an appeal from a judgment by default before applying to the court in which the decree was rendered, orto the judge thereof to correct the errors of which he complains, his appeal must be dismissed, as improperly taken. Baker v. WesternM. & M. Co.,6W. 1 Va. 196 ; Peerce v. Adamson, 20 W. Va. 57 ; Com. v. Levy. 23 Gratt. 21; Gunn v. Turner, 21 Gratt. 382.
It was held in Peerce v. Adamson. 20 W. Va. 57. that section 35 of art. 8 of the W. Va. Constitution does not authorize the setting aside of judgments therein specified and the granting of new trials therein. The judgments must stand until, by “due process of law,” it is ascertained that they were rendered because of acts done according to the usages of civilized warfare in the prosecution of the war and when so ascertained such judgments are nullities.
Supersedeas to Order.—Where a court sets aside an office judgment and the execution which has issued upon it after the fifteenth day of the term, and permits the defendant to plead, the plaintiff may have a supersedeas from the order ; and though that part of the order setting aside the judgment is interlocutory, and the appellate court will reverse the whole order. Enders v. Burch, 15 Gratt. 64, and note; Hunter v. Snyder, 11 W. Va. 201.
Review of Judgments by Default.—In reviewing a judgment by default on a forthcoming bond, the appellate court will compare it with the execution on which it was taken. Glascock v. Dawson, 1 Munf. 605.
By Va. Code 1887, § 3451, "the court in which there is a judgment by default, or decree on a bill taken for confessed, or the judge of the said court in the vacation thereof, may, on motion, reverse such a judgment or decree for any error for which an appellate court might reverse it. as if the following section had not been enacted, and give such judgment or decree as ought to be given.” See Brown v. Chapman, 90 Va. 174, 17 S. E. Rep. 855.
Justice’s Judgment—Trial De Novo upon Appeal — The j udgment of a j ustice rendered upon the verdict of six jurors in an action for damages, in which no defence was made hy the defendant, cannot be tried de novo by the circuit court upon appeal. Hickman V. B. & O. R. Co., 30 w. Va. 296. 4 S. E. Rep. 654; Vandervort v. Fouse, 30 W. Va. 326, 4 S. E. Rep. 660; Barlow v. Daniels, 25 W. Va. 512.
a. Hecord on Appeal.
Summons and Return Part of Record.—Fn all cases of a judgment by default, for want of appearance, the writ with the endorsement is a necessary part of the record, that it may be seen whether there was a proper foundation for the judgment. Nadenbush v. Lane, 4 Rand. 413; Wainwright v. Harper, 3 Leigh 270; Amiss v. McGinnis, 12 W. Va. 374.
Facts Proven-Evidence.-“It is not necessary to make the facts proven, nor the evidence, a part of the record, in case of a judgment by default, and if any part of the evidence is referred to in the preamble to the judgment, this, of itself, is insufficient to preclude the fact that other evidence might have been heard by the court, unless it affirmatively appears from the record that this was all the evidence heard by the court. Anderson v. Doolittle, 38 W. Va. 629, 18 S. E. Rep. 724.
Receipt for Executions.—A judgment by default against a sheriff, for fines collected upon executions in behalf of the commonwealth, may he sustained, although his receipt for the execution is not inserted in the record. Segouine v. Auditor, 4 Munf. 398.
Copy of Bail Bond.—A clerk’s entering and confirming an office judgment, at rules, against a defendant, and another person, as “security for his appearance,” is not sufficient to make such person liable as appearance bail; but a copy of the bail bond should be inserted in the transcript of the *230record, for want of which, the judgment should be reversed. Quarles v. Buford, 3 Munf. 487.
Record as Evidence.—Notwithstanding the fact that the defendants, in a suit in chancery, are in default, yet the record or proceedings in another suit inter alios, is not competent evidence against them. Frazier v. Frazier, 2 Leigh 642.
XIV. OPERATION AND EFFECT.
A. RES JUDICATA.—Apoint once adjudicated by a court of competent jurisdiction, however erroneous the adjudication, may be relied on as an estoppel in any subsequent collateral suit in the same or any court at law or in equity, when either the party or his privies allege anything inconsistent with it, and that, too, whether the subsequent suit is upon the same or a different cause of action; nor is it necessary that precisely the same parties should have been plaintiffs or defendants in the same suit, provided that the same subject-matter in'controversy between two or more parties to the two suits, respectively, have been in a former suit directly in issue and decided. The conclusiveness of the judgment or decree extends beyond what may appear on its face, to every allegation which has been made on one side, and denied on the other, and was in issue and determined in the course of the proceedings. If it appears by the record that the point in controversy was necessarily decided in the first suit, whether upon the law on demurrer, or upon the facts in issue, it cannot again be considered in any subsequent suit between any of the parties or their privies. McCoy v. McCoy, 29 W. Va. 794, 2 S. E. Rep. 809; Poole v. Dilworth, 26 W. Va. 583; Corrothers v. Sargent, 20 W. Va. 356; Beckwith v. Thompson, 18 W. Va. 103; Coville v. Gilman, 13 W. Va. 327; Western M. & M. Co. v. Virginia, etc., Co., 10 W. Va. 250; Tracey v. Shumate, 22 W Va. 509; Tate v. Bank, 96 Va. 765, 32 S. E. Rep. 476.
Qualification of Rule.—But the law of res judicata is subject to this qualification; no party can be estopped by any j udgment or decree if the record of the first suit shows that he had no opportunity to be heard in opposition to such judgment or decree. McCoy v. McCoy, 29 W. Va. 794,2 S. E. Rep. 809; Renick v. Ludington, 20 W. Va. 511; Renick v. Ludington, 16 W. Va. 379; Haymond v. Camden, 22 W. Va. 182; Stephens v. Brown, 24 W. Va. 234; Underwood v. McVeigh, 23 Gratt. 409.
A judgment rendered by a court of competent jurisdiction in a former suit between the same parties, and involving the same subject-matter, is conclusive. Currie v. Chowning, 2 Va. Dec. 25,21 S. E. Rep. 809, citing Diehl v. Marchant, 87 Va. 447,12 S. E. Rep. 803.
Application to Foreign Judgments.—The rule as to res adjudicata applies not only to judgments and decrees of the same state, but to the judgments and decrees of the courts of any state in the Union, whenever questioned in any sister state, provided there was personal service or an appearance of the parties to the suit in the sister state. Sayre v. Harpold, 33 W. Va. 553, 11 S. E. Rep. 16; Black v. Smith, 13 W. Va. 780.
Suit Construing Deeds.—But, a suit construing certain deeds and the rights of the parties thereunder will not be considered res judicata of an action of ejectment founded on an alleged breach of the conditions of the deeds. King v. Railway Co., 99 Va. 625, 39 S. E. Rep. 701.
Petition to Rehear—Bill of Review—Final Determina» tion.—"The court, before allowing a petition to rehear, or a bill of review to be filed on the ground of after-discovered evidence, ought to be satisfied that the evidence relied on is new and could not, by ordinary diligence, have been discovered prior to the date of the decree complained of; but when the court is so satisfied, and allows a petition to rehear, or a bill of review to be filed, those questions are finally determined, and are not open when the petition to rehear, or a bill of review is heard on the merits. 1 Bart. Ch. Pr. 332.” Craufurd v. Smith, 93 Va. 623, 23 S. E. Rep. 235, 25 S. E. Rep. 657.
Legality of an Authority to Issue nandamus.—On a rule issued against a county commissioner to show cause why he should not be fined for contempt in disobeying a peremptory mandamus issued against him and others, directing them to settle and sign a bill of exceptions in the manner therein prescribed, he cannot question the legality of the writ, and the authority to issue it, as that matter, as to him, is res judicata. State v. Cunningham, 33 W. Va. 607, 11 S. E. Rep. 76.
Partition.—It was held in Newberry v. Shef£ey,86 Va. 286,15 S. E. Rep. 548, where a purchaser of land at a sale for partition in a chancery suit was entitled to a credit on his bonds, for his wife’s interest in the lands, and he fails to pay his bonds for the purchase money, and judgment was recovered therein against the sureties, execution issued, and a forthcoming bond taken, that in a motion on the forthcoming bond, the court properly refused to continue the case until such interest could'be ascertained and credited on the judgment, because the right of the parties, so far as the proceeding at law was concerned, had been settled by the judgment. See also, Cleekv. McGuffln, 89 Va. 324,15 S. E. Rep. 896; Carter v. Washington, 2 H. &M. 345.
Cloud upon Title.—Thus, where a purchaser of land applies for and obtains an injunction in a circuit court restraining the trustee from selling on account of an alleged cloud upon the title, and the supreme court has, on appeal, reversed the circuit court, and decides that the alleged cloud and defect do not constitute sufficient ground for an injunction and dismiss the bill, the plaintiff cannot bring a second, and precisely similar, suit against the same parties for the same purpose and cause of action; and on a plea of res judicata the plea will be sustained. Kin-ports v. Rawson, 36 W. Va. 237,15 S. E. Rep. 66.
Plea of Res Judicata.—If a new suit is brought by the plaintiffs against the same defendant for the same cause of action, and the plea of res judicata is interposed by the defendant, it will bar the action. Parsons v. Riley, 33 W. Va. 464,10 S. E. Rep. 806.
For to obtain the benefit of res judicata it must be pleaded. Beall v. Walker, 26 W. Va. 741; The Western M. & M. Co. v. The Virginia, etc., Co., 10 W. Va. 250. See Biern v. Ray (W. Va.), 38 S.'E. Rep. 531.
Thus a judgment between the same parties, upon the same point, which, if pleaded, would have been a perfect bar is, when used as evidence under the general issue, not conclusive on the jury, but only evidence to be weighed by them. Cleaton v. Chambliss, 6 Rand. 86.
If in assumpsit, the defendant plead the act of limitations, and the plaintiff would avoid the plea by a former suit having been brought in time, he must reply the former specially; he cannot give it in evidence under a general replication to the plea. Bogle v. Conway, 3 Call 1.
Evidence.—Under a declaration alleging that a certain judgment in a prior suit was rendered on May 30th, a copy of such judgment purporting to *231have been rendered on May 31st, was admissible in evidence; the record showing that the verdict on which the judgment was based was rendered on May 30th. Sayre v. Edwards, 19W.Va. 352.
Copy of Judgment.—A copy of a judgment of the general court, upon a case adjoined to it by a superior court, attested by the clerk of the general court, his attestation or handwriting being proved, is competent and sufficient evidence before the same superior court, to prove what it purports to be. Gibson v. Com., 2 Va. Cas. 111.
1. Pabties and Pbivies.
a. General Bale as Begards Parties.—It is a well-settled rule of evidence that a verdict and judgment in an action at law, cannot be received in evidence upon the trial of an action between others, not parties to the first, nor standing in privity with those who were, for the purpose of proving any fact upon which such verdict and judgment were founded and which being essential to their rendition. is to be regarded as established by them. Stinchcombv. Marsh, 15 Gratt. 202; Cady v. Gale, 5 W. Va. 505; Adams v. Alkire, 20 W. Va. 480.
Unlawful Detainer.—it was held in Fishburne v. Engledove, 91 Va. 548, 22 S. E. Rep. 354, in an action for damages occasioned by taking out a distress warrant against the plaintiff for rent due in March, 1891, that a judgment rendered in November, 1890, between the same parties, in an action of unlawful detainer, is no evidence as to whether rent was due at the date of the warrant.
Amended Bill—New Parties.—If an amended bill is filed makingnew parties and additional allegations, and after it is ready for hearing, on this amended bill, a decree is rendered reciting that the cause was heard on the papers formerly read, but not reciting, that it was heard on the amended bill, and the decree is such as might have been rendered on the original bill, nothing being decided with reference to the new allegations of the facts stated in the amended bill, the failure to recite in this decree, that the cause was heard also on the amended bill, cannot be regarded as a clerical error; and the new parties are not bound by this decree as res adjudícala. Renick v. Ludington, 20 W. Va. 511.
A plaintiff suing for slaves as administrator of his wife, is not barred by a decision against her, in her lifetime, in a suit to which she was nota party; the ground of that decision having been that, under the act of limitations, the opposite party had obtained a legal title to the slaves by five years’ possession commencing during the coverture, during which also the right of the wife accrued, and the husband having never had possession in his character as husband. Blakey v. Newby, 6 Munf. 64.
Improperly Made Parties.—Proceedings by the commissioner of school lands, under chap. 134 of the W. Va. Acts of 1872-73, for the sale of foreign lands for the benefit of the school fund, was never designed to settle the title to land between opposing claimants; and if they are improperly made defendants in such a proceeding, the circuit court has no j urisdiction, in such a case, to ad j udge which of such claimants has the better title to the land so as to bind any of such improper parties by such adjudication in any controversy which they might thereafter have, involving the question, who had the better title to the land. McClure v. Manperture, 29 tV. Va. 633, 2 S. E. Rep. 761.
Thus the parties to two suits must be regarded as the same, when the complainants in both were certain taxpayers of a municipality sning on behalf of themselves and all other taxpayers, and the defendants in both, though consisting of different persons, were, in each suit, representing and acting for the municipality without any private interest. Gallaher v. Moundsville, 34 W. Va. 730, 12 S. E- Rep. 859.
Description of Parties.—it was held in Fidelity Ins., Trust & S. D. Co. Y. S. V. R. Co., 33 W. Va. 761, 11 S. E. Rep. 58, that an attachment against a defendant which summons M, president of the S. V. R. R. Co., garnishee, to answer what property of the defendant he has in hand, and a judgment is rendered that the plaintiff recover of M, president of S. V. R. R. Co., garnishee of the defendant, a sum of money, are not an attachment and judgment against the S. V?R. R. Co., as garnishee, and do not bind property in the hands of the latter company belonging to the defendant; and the sale of the property under execution upon such judgment does not pass title thereto, or bar the defendant, from setting up its claim, to such property against the S. V. R. R. Co.
General Rule as Regards Privies.—“It is well settled that a judgment is conclusive not only upon those who are actually parties to the litigation, but also upon all persons who are in privity with them. This is not only a doctrine of our own law, but also a principle of general jurisprudence, as appears from the rule of the Roman law that ‘the plea res adjudícala is available against him who has succeeded to the rights of ownership of the person who suffered the judgment’ ” 2 Black, Judgm. 549; Smith v. Parkersburg Co-Op. Ass’n (W. Va.),37 S. E. Rep. 645; Fishburne v. Engledove, 91 Va. 548, 22 S. E. Rep. 354; Tate v. Bank, 96 Va. 765, 32 S. E. Rep. 476.
“There is no doubt that a judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies, whenever the existence of that fact is again in issue between them, not only when the subject-matter is the same, but when the point comes incidentally in question in relation to a different matter, in the same or any other court, except on appeal, writ of error, or other proceeding provided for its revision. * * * * The principle underlying and supporting all these decisions is that a judgment necessarily affirming or denying the fact is conclusive of its existence whenever it becomes a matter in issue between the same parties or between the parties or . their privies with them. Therefore a judgment for the defendant in an action for obstructing a water course, if based upon the ground that there was no water course to be constructed, is, in subsequent actions, conclusive of the nonexistence of such water course; but, if the judgment had been for the plaintiff, it would necessarily have been conclusive in other actions of the existence of the water course and of its obstruction.” Freem. Judgm. § 249; C. & O. R. Co.v. Rison (Va.), 37 S. E. Rep. 320.
Right of Free Ferriage.—A former adjudication by a court of competent jurisdiction in 1810, wherein the question of the right of the ancestor of the plaintiff in the suit, his heirs and tenants, to free ferriage across a stream, and the construction of the deed on which the right was based, was decided in his favor, is binding and conclusive in a subsequent suit involving substantially the same question, not only on the original parties to ‘the deed in the former suit, but also on all those in privity with them. Williams v. Tomlin, 2 Va. Dec. 565, 28 S. E. Rep. 883; Lemmon v. Herbert, 92 Va. 653, 24 S. E. Rep. 249.
Exception to Rule.—“The general rule certainly is, that no person is bound by a judgment or decree *232except those who were parties or standing in privity with others who were parties. But there are exceptions to the rule of equal authority with the ■rule itself. Baylor v. Dejarnette, 13 Gratt. 16i. It would certainly be unreasonable and unjust that a party having a charge upon an estate affecting ■ the whole fee should be delayed or embarrassed in enforcing his claim because of limitation by way of remainder to persons to whom it might be impossible or improper to make parties to the cause. To obviate this difficulty the doctrine of virtual representation has been introduced by which certain parties before the court are regarded as representing those coming after them with contingent ■interests.” Harrison v. Wallton, 95 Va. 721, 30 S. E. Eep. 372.
Prison-Bounds Bond—Sheriff Not Party.—The sheriff, in a suit upon a prison-bounds bond, though not a party to the suit on the bond, is bound by the judgment, unless he can prove that it was obtained by collusion. Hooe v. Tebbs, 1 Munf. 501.
Remaindermen.—In Baylor v. Dejarnette, 13 Gratt. 152, the court said: “It is well settled that it is not necessary that remaindermen, after the first estate of inheritance, should be made parties: and where real estate is in controversy which is subject to'an entail it is sufficient to make the first tenant in tail in esse, in whom an estate of inheritance is vested, a party with those claiming prior interests without making those parties, who may claim in reversion or remainder after such estate of inheritance. And a decree against such tenant in tail will bind those in reversion or remainder although by the failure of all the previous estates, the estates in remainder or reversion might after-wards become vested. ” See also, Faulkner v. Davis, 18 Gratt, 684, 688.
Where the circuit court construes a will as giving a life estate, which construction is not drawn in question on appeal, and which is approved by the appellate court, the question as to what estate passed by the will is res judicata-, and the fact that the remaindermen are not parties to that suit is immaterial. Hawthorne v. Beckwith, 89 Va. 786, 17 S. E. Eep. 241.
Presence—A person, nota party to a judgment, is not bound by it, in law or equity, merely on the ground that he was present, and cross-examined the witnesses. Turpin v. Thomas, 2 H. & M. 139.
Decision as to Freedom—Privies.—A judgment deciding in favor of the freedom of persons held in slavery, has no effect against any party, except the defendant and those claiming under him, posterior to the judgment. Kitty v. Fitzhugh, 4 Eand. 600. But see Bensimer v. Fell, 30 W. Va. 15, 12 S. E. Eep. 1078.
In an action for freedom, a former verdict which found the mother of the plaintiff to be free, or a slave, is conclusive evidence, where the defendant in the second action claims under the defendant in the former suit. Shelton v. Barbour, 2 Wash. 64. But see Talbert v. Jenny, 6 Eand. 159.
Judgment in Forma Pauperis.—It seems that a judgment, in a suit in forma pauperis brought by negroes to recover their freedom, in which it is adjudged that they are slaves, is not necessarily conclusive of the status of the negroes, in a new controversy between them and the same defendants, and, under peculiar circumstances, may be no bar to the recovery of their freedom. Erskine v. Henry, 9 Leigh 188.
Where a suit in forma pauperis, is brought by negroes to recover their freedom, and it is ad j udged that the paupers are slaves, the judgment in the pauper suit is not conclusive evidence, and if the court holds them to be _ free, the plaintiffs cannot recover them. Erskine V. Henry, 9 Leigh 188.
Assignees.—Where the assignment of a chose in action is absolute in its terms, and judgment has been obtained thereon in the name of the assignor for the benefit of the assignee, which j udgment has subsequently been declared void in a suit brought by the assignee to enforce the collection of the judgment out of the lands of the judgment debtor, the assignor of the debt is bound by the decree against his assignee, and is estopped from setting up the judgment as a lien on th"e laws of the judgment debtor, even though the assignment was merely a collateral security for a debt, or intended to carry only a partial interest. The assignor and assignee are at least privies in the transaction, and the question of the lien of the judgment is res judicata. Cox v. Crockett, 92 Va. 50, 22 S. E. Hep. 840. See monographic note on "Estoppel" appended to Bower v. McCormick, 23 Gratt. 310.
Where, in an action to enjoin a sale under a trust deed on the ground that it has been merged in a judgment on the bond secured by it, a resettlement is asked of the accounts of the defendant’s testator or administrator de bonis non because of the recent discovery of a receipt showing, assets unaccounted for, and it appears that all these parties were parties to a former suit against the deceased’s administrators, in which itwas charged that the deceased had not fully accounted for the assets, the judgment in the latter case is res judicata. Gibson v. Green, 89 Va. 524,16 S. E. Eep. 661.
Determination on Appeal.—Where a question of law or fact is one definitely settled and determined by a decree of the supreme court, and the cause is remanded for further proceedings, a party to the suit cannot, by subsequent pleadings, call in question the conclusiveness of the questions determined by such decree. Seabright v. Seabright, 33 W. Va. 152, 10 S. E. Eep. 265.
A judgment which determines the issue of the legality of a dam, in an action in which such issue is raised by the pleading, is conclusive between the parties or their privies in a subsequent action, since the parties are estopped from denying such facts. O. & O. E. Co. v. Bison, 99 Va. 18, 37 S. E. Eep. 320.
Judgment Creditor—Pendency of Suit.—A judgment creditor is concluded by a decree in a cause in which he is a defendant, though he has, at the same time, a suit depending against the same parties to enforce his prior lien. Jones v. Myrick, 8 Gratt. 179.
Persons Claiming in Different Rights.—Where the same person has two separate and distinct rights or interests in the subject-matter of a suit and the allegations of the bill comprehend but one of said rights or interests, the fact that such person is made a party to such suit will not estop, conclude or prevent him from asserting or defending his rights or interests in regard to said subject-matter so far as they were not involved or comprehended in the allegations of the bill in such suit. As to the matters not so comprehended in the bill, he willnotberegarded as a party to thesuit. Thus, if a person is interested in the subj ect-matter of a suit in two capacities, the one as trustee in one deed of trust and the other as beneficiary in a different deed of trust, both deeds of trust being upon the same property, and he is made a party to a suit *233brought to set aside the latter trust deed, in which no reference is made to him as trustee in the trust deed, he will not be regarded as a party to that suit in his capacity of trustee in the former trust deed. McNult v. Trogdon. 29 W. Va. 469, 2 S. E. Rep. 328. See monographic note on “Estoppel” appended to Bower y. McCormick, 23 Gratt. 310.
Grantor and Grantee.—A grantee of land is not affected by a judgment against his grantor, after the conveyance, merely because of privity in estate. Bensimer v. Pell, 35 W. Va. 15, 12 S. E. Rep. 1078.
Trustee and Cestui Que Trust.—Rights of a cestui que trust cannot be cut off by a decree in equity rendered against his trustee in a suit in chancery to which the cestui que trust was not a party. Collins v. Lofftus, 10 Leigh 5.
Joint Parties.—Though the statute in relation to joint obligations, gives an action against the personal representative of a deceased joint obligor, 1 Rev. Code, ch. 98, § 3, p. 359; Va. Code, ch. 144, § 13, p. 582, it does not affect the principle that the defect of the remedy against one joint obligor upon aground not personal to himself, defeats it as to all of the obligors. Brown v. Johnson, 13 Gratt. 644. The court in this case further said: “If a verdict and judgment for the plaintiff against one of several who are jointly bound may be admitted in evidence in an action against another as a bar, it would seem to be a necessary corollary (if the deduction be not a fortiori) that a verdict and judgment against the plaintiff in the former action upon an issue going to the merits and ascertaining that the plaintiff never had any cause of action against that defendant, would be admissible as a bar to a subsequent action against another so jointly bound. Por the joint obligation would clearly be at an end as to the former, and therefore, as we have seen, as to all the others.”
“At common law a judgment recovered against one of two or more persons on their joint contract was a bar to an action against the others. The entire cause of action was merged in the judgment, and the j oint liability of those no t sued, or against whom the judgment was not rendered, was extinguished. And upon a joint and several contract the action had to be brought against all jointly, or against one of them singly, and could not be brought against any intermediate number. These rules, however, have been essentially changed by statutes enacted by the legislature.” See Va. Code 1887, §§ 3395, 3396, 3212: Cahoon v. McCulloch, 92 Va. 177, 28 S. E. Rep. 225.
Covenant by One Joint Obligor.—A covenant by the obligor in a bond with one of three joint obligors, that if after judgment against all the parties the money is not paid by the other two, he will relieve him from the payment of it, is not a release, and will not bar an action on the bond against all the obligors. Brown v. Johnson, 13 Gratt. 644.
Judgment as between Joint Defendants.—Where in a suit charging two administrators with the joint devastavit of the intestate’s estate, and they jointly except to the report wherein they were charged with the devastavit., and the court sustained the exception, one of these administrators cannot after-wards be heard to charge his coadministrators with the same devastavit whereby a debt due by the estate to the alleger was lost. The decree sustaining the exception is the law of the case, binding upon the parties and those claiming under them. Kent v. Kent, 82 Va. 205.
Record as Evidence.—The record of a judgment is evidence in a subsequent suit between the same parties, to the effect that claims asserted in both suits which were disallowed or set off in the former suit are not done. Johnson v. Jennings, 10 Gratt. 1.
The record of the verdict and judgment, upon a writ of inquiry, in a suit by the mother of the plaintiff, against a third person, in which record the ground of the judgment does not appear, may be given in evidence to prove, that the mother had recovered her freedom : not that she was entitled to it. But the questions, upon what ground the judgment in that suit was rendered, and whether the decedent was born after the mother acquired her right to freedom or not, ought to be leftoi)en. Pegram v. Isabell, 2 H. & M. 193.
Parties to Record.—A record of one suit cannot be read as evidence in another, unless both the parties, or those under whom they claim, were parties to both suits, it being a rule that a document cannot be used against a party who could not avail himself of it, in case it was made in his favor, nor can it be read in evidence on the ground that the defendant and one of the plaintiffs in the latter suit were parties to the former, and that the same point was in controversy in both, when another plaintiff, and the person under whom both the plaintiffs jointly claim, were not made parties to the former suit. Paynes v. Coles, 1 Munf. 373 ; Chapmans v. Chapman, 1 Munf. 398. See also, Waggoner v. Wolf, 28 W- Va. 820.
C. REPRESENTATIVE PARTIES.
Judgment against Personal Representative Not Evi** dence against Heir.—The general doctrine, without qualification or, exception, is well settled that there being no privity between the personal representative and the party to whom the real estate passes, a judgment against such personal representative is not even prima facie evidence against the heir or devisee. Bank v. Good, 21 W. Va. 455; Laidley v. Kline, 8 W. Va. 218; Custer v. Custer, 17 W. Va. 124; Mason v. Peter, 1 Munf. 437; Saddler v. Kennedy, 26 W. Va. 636; Poster v. Crenshaw, 3 Munf. 520; Shields v. Anderson, 3 Leigh 736; Chamberlayne v. Temple, 2 Rand. 396.
Not a Lien.—Such a judgment is not a lien on the real estate descended to the heir and does not prevent the statute of limitations from running in favor of the heir wherever real estate descended is sought to be subjected for the debt on which such judgment was obtained. Saddler v. Kennedy, 26 W. Va. 636.
Judgment against Executor Binds Legatees.—But a judgment against an executor is conclusive, both as to the validity and amount of the demand, on both executors and legatees. Hooper v. Hooper, 32 W. Va. 526, 9 S. E. Rep. 937; Corrothers v. Sargent, 20 W. Va. 351; Sheldon v. Armstead, 7 Gratt. 264; Freem. Judm., § 163. See also, Seabright v. Sea-bright, 33 W. Va. 152, 10 S. E. Rep. 265, in which case it was held that where the question raised by a bill in equity is as to whether certain bonds and notes therein described are a part of the estate of a decedent, or have been disposed of by assignment and delivery, as a gift to two of his brothers, and the property has by a decree of the supreme court been determined to belong to the estate of the decedent, the decision is binding and conclusive upon all the distributees of the estate.
“With the settlement before auditors, the heir as such has no concern, nor can such settlement be evidence against him either prima facie or otherwise. Even a judgment against an executor is no evidence *234against the heir, of the justice or the amount of the creditor’s demand; it is res inter alios acta. Mason V. Peter, 1 Munf. 437. A fortiori, it would seem, that the ex parte report of auditors, appointed only to settle the disbursements of the personal assets, cannot beso. The account in this case, then, was no evidence before the commissioner of the court of chancery, except so far as the acknowledgment of the brothers made it so. But in that acknowledgment the sisters did not join, and it did not therefore bind them. Therefore, it could not avail the administrator; for he could have no decree for a sale of realty without establishing his demand in such mode as would bind all the heirs. It is like the case of a confession of judgment by one of two joint obligors, and a successful defence of the action by the other; in which case, the confession avails nothing, and the judgment is entered for both defendants. The demand is entire and if disapproved as to one, is disapproved as to all, the confession to the contrary notwithstanding.” Street v. Street, 11 Leigh 498.
And a judgment or decree against an executor in favor of a creditor, payable out of assets, is conclusive evidence upon the executor and his sureties as to the existence and justness of the demand. Grim v. England, 46 W. Va. 480, 33 S. E. Eep. 310.
Lost Bond,—But a judgment upon an alleged lost bond, against the personal representative of the obligor, is not even prima facie against the heir or devisee of his estate. Board v. Callihan, 33 W. Va. 209, 10 S. E. Eep. 382. See also, Daingerfield v. Smith, 83 Va. 81,1 S. E. Eep. 599.
Intestate’s Bond.—A judgment, however, rendered against an administrator upon the bond of his intestate, is conclusive evidence of the validity of the debt as against the administrator. Montague v. Turpin, 8 Gratt. 453.
Return Nulla Bona,—A judgment against an executor or administrator as such, with an execution, and return nulla bona, are not sufficient to authorize an action on the administration bond, but a devastavit must first be established by a second suit. Gordon v. Justices of Frederick County, 1 Munf. 1. But see Meade v. Brooking, 3 Munf. 548.
Evidence of Debt.—But a judgment against the personal representative of a decedent is not even prima facie evidence of a debt against the heirs of such decedent. McKay v. McKay, 33 W. Va. 724, 11 S. E. Eep. 213; Broderick v. Broderick, 28 W. Va. 378.
In Garnett v. Macon, 6 Call 308, the court by Chief Justice Marshall said: “The defendants insist that the decree against a personal representative of George Brooks is conclusive evidence against the devisee of the existence of the debt. The cases cited by counsel, in support of this proposition, do not decide the very point. Not one of them brings directly into question, the conclusiveness of a judgment against the executor, in a suit against the heir or devisee.- They undoubtedly show, that the executor completely represents the testator, as the legal owner of his personal property, for the payment of his debts in the first instance, and is, consequently, the proper person to contest the claims of his creditors. Yet, there are strong reasons for denying the conclusiveness of a judgment against an executor in an action against the heir. He is not a party to the suit,—cannot controvert the testimony,—adduce evidence in opposition to the claim,—or appeal from the judgment. In case of a deficiency of assets, the executor may feel no interest in defending the suit, and may not choose to incur the trouble or expense attendant on a laborious investigation of the claim. It would seem unreasonable that the heir, who does not claim under the executor, should be estopped by a judgment against him. In this case, the creditor is bound to proceed against the executor and to exhaust the personal estate, before the lands become liable to his claim. The heir, or devisee, may indeed, in a court of chancery, be united with the executor in the same action, but the decree against him, would be dependent on the insufficiency of the personal estate. Since, then, the proceeding against the executor, is, in substance, the foundation of the proceeding against the heir, or devisee, the argument for considering it as prima facie evidence, may be irresistible, but I cannot consider it as an estoppel. The judgment not being against a person representing the land, ought, I think, on the general principle, which applies to giving records in evidence, to be re-examinable when brought to bear upon the proprietor of the land.”
Joint Executors.—“Between the executors of the same decedent in different jurisdictions, there is privity derived from, or through the will of the testator, and a judgment or decree is evidence against the other, and may be enforced against each (see Hill v. Tucker, 3 How. 458), and it is sufficient to ground a suit or action on or against either executor. An administrator with the will annexed is, in legal contemplation, executor of that will, and a decree against the domiciliary executor binds every executor of the same will in every jurisdiction.” Garland v. Garland, 84 Va. 181, 4 S. E. Rep. 334.
Sureties of Executor—Virginia Rule.—A verdict and judgment against an executor or administrator are not conclusive evidence against his surety; nor are they conclusive even against the party against whom they are rendered, unless they are pleaded as an estoppel. Craddock v. Turner, 6 Leigh 116; Hob-son v. Yancey, 2 Gratt. 73.
Judgment by Default—Heirs Not Parties.—A judgment by default against a personal representative in a suit to which the heirs or devisees of the decedent are not parties, is not evidence against such heirs or devisees in a suit or proceeding by the creditor to subject the real estate, descended or devised, to the payment of the debt, and the reason assigned is, that there is no privity between the representative and such heirs or devisees. Brewis v. Lawson, 76 Va. 41; Watts v. Taylor, 80 Va. 627; Daingerfield v. Smith, 83 Va. 81, 1 S. E. Eep. 599.
And Chief Justice Marshall, in delivering the opinion of the supreme court in Deneale v. Stump, 8 Peters 531, said: “It is understood to be settled in Virginia, that no judgment against the executors can bind the heirs, or in any manner affect them. It could not be given in evidence against them." See also, Eobertson v. Wright, 17 Gratt. 534, and note; Hudgln v. Hudgin, 6 Gratt. 320, 52 Am. Dec. 124; Stockton v. Copeland, 30 W. Va. 674, 5 S. E. Eep. 143.
Effect of Statute on Rule.—Va. Code 1873, ch. 127, § 3, does not alter the above-stated rule. Brewis v. Lawson, 76 Va. 36; Watts v. Taylor, 80 Va. 627.
“In all cases where the question is, whether aperson be a debtor or not, a j udgment against him or his legal representative seems to be prima facie evidence of the fact, liable to be controverted upon the ground of fraud, or upon any other just ground, by any one a stranger to the j udgment except, in the case of a real and personal representative of the same person, *235in which case either the one or the other might have been sued in the first instance." Chamberlayne v. Temple, 2 Rand. 396.
Former Report of an Account,—Where in a creditor’s suit against an administrator, to which the distributees are not parties, a master stated and reported an account of the sums collected by the administrator, which report was confirmed, and later the distributee filed a bill against the administrator and his sureties for an account of sums previously collected by him and for payment of the whole, it was held that the former report did not preclude an account of the last, especially where the sums collected, and the dates when, and persons from whom they were collected, are specified in the bill. Hurt v. West, 87 Va. 78, 12 S. E. Rep. 141.
When Judgment against Ancestor Binds Heir,—A judgment against the ancestor in his lifetime, only binds the heir, when it cannot be paid out of the personal estate of the ancestor." Rogers v. Denham, 2 Gratt. 200.
Injunction and Sale of Trust Property.—where in a bill filed to enjoin the sale of trust property, a resettlement is prayed of the accounts of the defendant’s testator as administrator de bonis non, on the ground of the recent discovery of a receipt showing assets unaccounted for, and it appears that all the parties to the bill were parties to a former suit against the decedent’s administrators, in which, it was charged that the decedent had not fully accounted for the assets, the matters set up in the bill as to the assets are res adjudicata. Gibson v. Green, 89 Va. 524,16 S. E. Bep. 661.
d. Joint Trespassers—A party injured by cotrespassers may sue either one against whom the action may be brought. He is not bound to prosecute all, and neither the omission to sue all. nor if all are sued the dismissal of one of them from the suit, can be pleaded by the others in bar. Bloss v. Plymale, 3 W. Va. 393.
A plaintiff in action of trespass may sue all, or any. or either of the alleged trespassers, and he is entitled to full satisfaction, but to only one satisfaction; and if the damages have been in part satisfied by payment or compromise with some of the defendants, the plaintiff may still proceed against those who remain on the record. Bloss v. Plymale, 3 W. Va. 393.
A judgment against one joint trespasser is no bar to a suit against another for the same trespass; nothing short of full satisfaction, or that which the law must consider as such, can make such judgment a bar. Griffle v. McClung, 5 W. Va. 131; Lovejoy v. Murray, 3 Wall. (II. S.) 1.
(i) Former Judgment.
Former Judgment in Trespass Bars.—A judgment against one of several joint trespassers, whether satisfied or not, is a bar to any action against the cotrespassers. Petticolas v. Richmond, 95 Va. 456, 28 S. E. Rep. 566. See Switzer v. McCulloch, 76 Va. 777. In the latter case it was held the former judgment did not bar the parties because of a compromise after the judgment at law, which had the effect of remitting the parties to their original rights.
Assault and Battery.—In a joint action of assault and battery, a judgment against one of the defendants is a bar to the recovery of additional damages against the rest. Ammonett v. Harris, 1H. & M. 488; Wilkes v. Jackson, 2 H. & M. 355; Brown v. Johnson, 13 Gratt. 651.
Continuing Trespass.—where a plaintiff has already recovered damages against the defendant for erecting a dam, thereby causing his land to overflow, in a second suit he can only recover for damages occasioned by the continuance of the dam subsequently. Ellis v. Harris, 32 Gratt. 684.
Right to Appeal.—A plaintiff cannot appeal from a judgment in favor of all the defendants, except one, in a joint action of trespass, until the suit has been abated, dismissed, or decided as to that one. Wells v. Jackson, 3 Munf. 458.
Judgment in Detinue.—A judgment against one person in an action of detinue for a slave, is, while unsatisfied, a bar to another action for the same slave, and by the same plaintiff, against another person. Murrell v. Johnson, 1H. & M. 450.
After a judgmentin detinue, a new action of detinue against the same defendant for the same thing, in which the former judgment is not declared upon, but is only relied on as evidence of title, cannot be maintained. Withers v. Withers, 6 Munf. 10.
After a judgmentin detinue for slaves, the plaintiff cannot come into equity for profits accruing afterwards, pending an appeal; nor to recover their increase not included in such judgment; nor to compel the delivery of them by purchasers from the defendant. Aldersonv. Biggars, 411. & M. 470.
Trover and Trespass for Same Injury.—If a plaintiff brings trover or detinue to recover a horse, and trespass for taking the same horse, a judgment for the defendant in an action of trover or detinue, is a good bar to the action of trespass. Hite v. Long, 6 Band. 457.
Ejectment.—Where an action of ejectment is brought by an adverse claimant against a tenant to recover possession of the premises, and judgment is rendered for such plaintiff against the tenant by default, and a writ of possession is executed by which the plaintiff is placed in actual possession, the possession is thereby changed, and the landlord is thereby actually turned out; and in a second action of ejectment by the plaintiffs, who derived title from the plaintiff in the first suit, against such landlord, sued as defendant, the record of recovery in the former suit is competent evidence on behalf of the plaintiff in the latter suit as showing or tending to show, that the defendant’s possession at that time was ended and changed by the execution of such writ of possession. Clark v. Perdue, 40 W. Va. 300, 21 S. E. Rep. 735.
Fictitious Plaintiffs.—But no verdict and judgment in ejectment can be relied on as a bar to a subsequent ejectment though for the same land, and. between the same defendants and lessors of the plaintiff, where the fictitious plaintiffs are not the same. Pollard v. Baylors, 6 Munf. 433.
Adverse Party .—A verdict at law against a party is no bar to a decree in his favor if he is brought into chancery by the adverse party; but it is otherwise, if he is the plaintiff in equity. Jones v. Jones, 4 H. & M. 447.
Opinion as to Safety Does Not Preclude Action for Damages.—Where a jury of inquest in a mill case are induced by the opinions expressed and facts stated by the father of the applicant, to report that no person will sustain damage from the dam allowed to be built; and the inquisition is confirmed by the court; this inquest and judgment is no bar to an action for damages sustained by the father against a vendee of the mill, which were not actually foreseen and estimated by the inquest. Calhoun v. Palmer, 8 Gratt. 88.
*236• Judgment Procured by Fraud.—If it be alleged and proved that a judgment or decree was procured by fraud, it ceases to protect the wrongdoer, or to obstruct the injured party in the assertion of his rights. Francis v. Cline, 96 Va. 201, 31 S. E. Rep. 10; N. & W. R. R. Co. v. Mills, 91 Va. 641, 22 S. E. Rep. 556.
Judgment Setting Aside Homestead—A judgment setting aside a homestead to a debtor is not a bar to ■a subsequent action by the party to the judgment to subject the homestead to his claim, after expiration of the exemption. Hanby v. Henritze, 85 Va. 177,7 S. E. Rep. 204.
Ineffectual Suit to Enforce Lien of Judgment,— Although a judgment is an indivisible cause of action in the sense that it may not be divided or split up into several causes of action, nevertheless a suit brought to enforce the lien of a judgment and prosecuted in good faith, though ineffectually, is not a bar to a subsequent suit by the same plaintiff against the same debtor to enforce the satisfaction of the same judgment. In such cases it will be the duty of the equity court to see that the creditor does not exercise his right capriciously or oppressively, and make such orders or decrees with reference to the imposition of costs as will protect litigants against unnecessary and vexatious suits. In other words the vitality of a judgment is not exhausted by one action thereon, but the judgment creditor is entitled to pursue successive actions until satisfaction is obtained. Kelly v. Hamblen, 98 Va. 383, 36 S. E. Rep. 491.
Joint Assignment of Damages.—A judgment assigning damages jointly, on the breaches assigned in a declaration on an injunction bond payable to several obligees jointly, while it is not a formal ascertaining the damages according to the statute, it is substantially so, and should be held as in full satisfaction and discharge of all the breaches alleged in the declaration, and a bar to any other or further recovery for the same breaches. Peerce v. Athey, 4 W. Va. 22.
Plea of Former Judgment—How Tried.—A plea of former judgment on the same cause of action in bar of the plaintiff’s suit, replied to by “No such judgment,” should be tried by the court by an examination and inspection of the record, and it is improper to submit the same to a jury. Davis v. Trump, 43 W. Va. 191, 27 S. E. Rep. 397.
How Available.—The mode in which a party must avail himself of a former judgment for the same cause of action is by plea in bar, or in an action of assumpsit, by evidence on the general issue. Oleaton v. Chambliss, 6 Rand. 86.
Justice’s Judgment.—Where the plaintiff already has an intelligible judgment, though defective in form and grammar, against the same parties in the same cause of action, he is precluded thereby from instituting another suit therefor before another justice, or in court. “He should have the defective judgment corrected, which the justice has the right to do on his motion, as to any clerical error committed by him, he being his own clerk.” Davis v. Trump, 43 W. Va. 191, 27 S. E. Rep. 397.
2. Issues.
a. Must Be Directly in Issue.—A fact which has been directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties in the same or any other court. It is res judicata. Hut to make it res judicata it must have been directly and not collaterally in issue in the former suit, and then decided. Parsons v. Riley, 33 W. Va. 464,10 S. E. Rep. 806; The Western M. & M. Co. v. The Va., etc., Co., 10 W. Va. 250; S. V. R. R. Co. v. Griffith, 76 Va. 914; Henry v. Davis, 13 W. Va. 230.
If it appears that the issue presented in the latter suit was involved and determined in the former suit, the judgment or decree in such former suit is not only a bar to a second suit, between the same parties or their privies upon the same claim or demand, but also bars a suit between the same parties or their privies upon a different cause of action. Such a judgment or decree is conclusive upon the parties to it until reversed upon appeal, or until set aside or annulled by some proceeding instituted for that purpose. Harrison v. Wallton, 95 Va. 721, 30 S. E. Rep. 372.
It is settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit, is conclusive as to that question, in another suit between the same parties. Corprew v. Corprew, 84 Va. 599,5 S. E. Rep. 798; Withers v. Sims, 80 Va. 658; McComb v. Lobdell, 32 Gratt. 185: Tilson v. Davis, 32 Gratt. 92, and note; Poster v. City of Manchester, 89 Va. 92,15 S. E. Rep. 497; Pishburne v. Perguson, 85 Va. 324, 7 S. E. Rep. 361; Diehl v. Mar-chant, 87 Va. 449, 12 S. E. Rep. 803.
But a former judgment cannot be pleaded in bar unless it was directly upon the same point, and between the same parties or privies. Cleaton v. Chambliss, 6 Rand. 86.
Certainty.—“It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record—as, for example: if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered—the whole sub j ect-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.” Russell v. Place, 94 U. S. R. 214, 4 Otto 606, approved in Ghrisman v. Harman, 29 Gratt. 494, and note, 26 Am. Rep. 387; Withers v. Sims, 80 Va. 651, 658; Legrand v. Rixey, 83 Va. 862, 3 S. E. Rep. 864.
Record Must Be Set Out.—Where a decision of a former suit is pleaded as an estoppel, so much of the former record must be set out or made part of the pleading, as will show that the precise question had been adjudicated in the former suit. The Western M. & M. Co. v. The Virginia, etc., Co., 10 W. Va. 250.
Opinion of Trial Judge.—When a decree in a former suit is pleaded as res judicata, and the decree does not show upon which of the several points in litigation it is based, but refers to the opinion of the trial judge, filed in the case to explain what was determined, such opinion becomes a part of the record, and must be looked to, to determine what was in issue and what was adjudicated by the decree. Legrand v. Rixey, 83 Va. 862, 3 S. E. Rep. 864.
Extrinsic Evidence.—Where a judgment or decree is relied upon as an estoppel, and the pleadings and proceedings in the former suit leave it doubtful what was the precise issue or state of facts upon *237which the judgment or decree was rendered, parol or extrinsic evidence may be received in a subsequent suit to show what was actually in issue and determined on the trial of a former suit. Withers v. Sims, 80 Va. 651; Chrisman v. Harman, 29 Gratt. 494; Legrand v. Rixey, 83 Va. 862, 3 S. E. Rep. 864.
Illustration.—If a decree be pronounced by a superior court of chancery, against an executor, in a suit brought against him and his securities, but without charging or exonerating them by .such decree, and the executor removes out of the commonwealth. without satisfying the same, a second suit may be brought against him and them in the superior court of chancery of any other district in which the securities reside, to get satisfaction from them. Crutcher v. Crutcher. 4 Munf. 457.
Sureties.—in a suit by a surety to recover for amounts paid by him on behalf of his principal, the defence of res judicata will not he sustained when it appears that the claims brought forward in the present suit were not put in issue in the former litigation, nor were they there made the basis of any prayer for relief, nor mentioned in the decree of the court. Tarter v. Wilson, 95 Va. 19, 27 S. E. Rep. 818 See Nlday v. Harvey, 9 Gratt. 454.
Conveyance —For example it has been held, that a former adjudication, in the suit brought for the sole purpose of determining whether the language in a conveyance of real estate does not create a specific lien or charge on the land, will not estop the grantors in such a conveyance from setting up a personal claim against the grantees or their estates, when such question was in no wise involved in or adjudicated in the former suit Brown v. Squires, 42 W. Va. 367, 26 S. E. Rep. 177.
Judicial Sale.—The order of a court of chancery directing a writ to issue to place the purchaser at a j udicial sale in possession of lands, made after a full hearing, at which the issuing of the writ was resisted on the ground that the purchase had been made in the trust for the original judgment debtor, and under an agreement entitling him to remain in possession, and to a conveyance of the property on his complying with certain conditions, is conclusive against him in a subsequent suit in equity seeking to enforce the same agreement upon which he relied in resisting the application for a writ of possession. Burner v. Hevener, 34 W. Va. 774, 12 S. E. Rep. 861.
Condemnation Proceedings.—Where judgment is rendered for a city in street condemnation proceedings, the landowner cannot, in a prosecution for obstructing the street, defend on the ground that the proceeding was illegal. Foster v. Manchester, 89 Va. 92, 15 S. E. Rep. 497.
Partition.—A judgment in a partition suit decreeing that the defendant is entitled to the plaintiff's share of the property under a deed by the defendant to the plaintiff, the validity of which was not then in issue, is not res judicata against the plaintiff’s right in a subsequent action to set aside the deed on the ground that it was made without consideration, and with the understanding that the defendant would reconvey the property to the plaintiff on request. Eaves v. Vial, 98 Va. 134, 34 S. E. Rep. 978.
Illegality of Contract—Authority of Agent.—In a suit upon a judgment, the questions whether it was an illegal contract on which the judgment was recovered, or whether the agent who made the contract was authorized to make it, are concluded by the judgment. Fisher v. March. 26 Gratt. 765.
Right of Widow in Personalty.—Where after the death of the testator, one of the devisees brings suit to obtain a partition of real estate and a distribution of the personal estate, the court assigning the widow dower in one-third of the real estate and decreeing payment to her of one-third of the personal estate by the executor without words of qualification, it is not necessary to determine what estate in the personalty the widow took, she being entitled to the possession of it in any event, and such decree is not res judicata of the quantity of estate in personalty she took under the will. Houser v. Ruffner, 18 W. Va. 245.
Failure of Consideration.—Where, in the court in which the judgment was rendered, the question of the paramountcy of a defendant’s homestead has been raised and decided adversely, the same question cannot be raised a second time in another suit brought to ascertain priorities of liens on the defendant’s realty, and the defence of failure of consideration must be set up either in the suit wherein the judgment is rendered, or by a chancery suit brought by the defendant for that purpose. Spoils v. Com.. 85 Va. 531, 8 S. E. Rep. 375.
Forfeiture of Lease.—when it has been determined that a senior lease has been forfeited by a failure of the lessee to comply with the condition therein, the senior lessee cannot afterwards file a bill against the landlord and junior lessees praying for relief against such forfeiture, because the fact of forfeiture of the senior lease is res judicata, and cannot be brought into question and again litigated inasuitin equity. Hukill v. Guifey, 37 W. Va. 425,16 S. E. Rep. 544.
Hatters Not Submitted on First Motion.—Where the matters involved in a second motion were not sub mitted to the j ury on the trial of the first motion, or if submitted could not have been legally adjudicated by them, no question of estoppel can arise. Allebaugh v. Coakley, 75 Va. 628.
No Decision Necessary to Decide Case.—Where a claim is made in the defendant's answer, but has no connection with the relief sought in the bill, and is not necessary tobe decided in passing upon the case so made in the bill, then the decree does not conclude the question when it is afterwards set up by the defendant by a cross bill in the cause,though the court in its decree expressed an opinion in favor of the defendant. Niday v. Harvey, 9 Gratt. 454.
1). What Might Have Been Litigated— it is well settled that an adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated, as incident thereto, and coming within the legitimate purview of the subiect-matter of the action. It is not essential thatthe matter should have been formally put in issue, in the former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata. Rogers v. Rogers, 37 W. Va. 407, 16 S. E. Rep. 633; Sayre v. Harpold, 33 W. Va. 553,11 S. E. Rep. 16.
When a judgment or decree has been rendered by a court of competent jurisdiction in a suit, it is abar to any further action between the same parties upon the same matter of controversy. 1 Barton’s Haw Prac. (2d Ed.) 553, 554;-7Rob. Prac. 172; Findlay v. Trigg, 83 Va. 543, 3 S. E. Rep. 142; Simpson v. Dugger andBoisseauv. Same. 88 Va. 963,14 S. E. Rep. 760. The decree in the first cause is not only final as to matters *238actually determined, but as to every matter which the parties might have litigated, within the scope of the pleadings, and which might have been decided Diehl v. Marchant, 87 Va. 447,12 S. E. Rep. 803; Withers v. Sims, 80 Va. 660, 661; Blackwell v. Bragg, 78 Va. 529; Fishburnev. Ferguson, 85 Va. 321,7 S. E. Rep. 361; Davis v. Brown, 94 U. S. 428; Cromwell v. County of Sac, 94 TJ. S. 357; Wells, Res Adj. §252; Stearns v. Beckham, 31 Gratt. 391; Durant v. Essex Co., 7 Wall. 107; Malloney v. Horan, 49 N. Y. 116; Freem. Judgm. §§ 246, 254. In the case of McCullough v. Dashiell, 85 Va. 41, 6 S. E. Rep. 610, the learned judge, delivering the opinion of the court, says; “The doctrine of res adjudicata applies .to all matters which existed at the time of the giving of the judgment or rendering the decree, and which the party had the opportunity of bringing before the court.” Beale v. Gordon, 2 Va. Dec. 35, 21 S. E. Rep. 667.
A judgment upon the merits of the case is a bar or estoppel against a prosecution of a second action upon the same demand, and is a finality to the claim or demand in controversy and concludes parties and those in privity with them, not only as to every matter which was offered and received to sustain and defeat the claim, but also any other admissible matter which might have been used for that purpose ; such demand or claim having passed into judgment cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever. These principles apply with equal force as well to judgments of the inferior courts of record of the United States rendered in this state between parties subject to their jurisdiction, as to judgments of the circuit courts of the state. Wandling v. Straw, 25 W. Va. 692; Parsons v. Riley, 33 W. Va. 464, 10 S. E. Rep. 806.
Points Essential to Former Judgment.—The doctrine of res judicata embraces not only what was in point of fact adjudicated, but the judgment or decree is conclusive as to all questions in issue, whether formally litigated or not. It is not necessary that the issue should have been taken upon the precise point which it is proposed to controvert in the collateral action. It is sufficient if that point was essential to the former judgment. Every point which has been specifically decided, and, by necessary implication, every issue which must have been decided, in order to support the judgment or decree, is concluded. But where one of the parties to the second suit was not a party to the former suit, and the land sought to be subjected in the second suit was not the same as in the former, the plea of res judicata is not available. Kelly v. Hamblen, 98 Va. 383, 36 S. E. Rep. 491.
Matters Produceable by Diligence.—The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties, to form an opinion and pronouuce the judgment, but to every point which properly belonged to the subject-matter of litigation and which the parties exercising reasonable diligence, might have brought forward at the time. State Iron Co. v. Rarig, 93 Va. 595, 25 S. E. Rep. 894; S. V. R. R. Co. v. Griffith, 76 Va. 913; Withers v. Sims, 80 Va. 660; McCullough v. Dashiell, 85 Va. 41, 6 S. E. Rep. 610; Fishburnev. Ferguson, 85 Va. 321,7 S. E. Rep. 361; Osburn v. Throckmorton, 90 Va. 316, 18 S. E. Rep. 285; Beale v. Gordon, 2 Va. Dec. 35, 21 S. E. Rep. 667; Campbellv. Campbell, 22Gratt. 666;Findlay v. Trigg, 83 Va. 543, 3 S. E. Rep. 142; Roller v. Pitman, 98 Va. 613, 36 S. E. Rep. 987; Bradley v. Zehmer, 82 Va. 685; Adams v. S. V. R. R. Co., 76 Va. 913; Legrand v. Rixey, 83 Va. 862, 3 S. E. Rep. 864.
A judgment or decree upon the merits of the case is a bar or estoppel against the prosecution of a second suit upon the same demand, not only as to every matter which was offered and received to sustain or defeat the claim, but also any other admissible matter which might have been used for that purpose. Biern v. Ray (W. Va.), 38 S. E. Rep. 530.
In order for the defence of res judicata to prevail, the judgment or decree in the former suit must have been rendered in a proceeding between the same parties or their privies and the matters in controversy must have been the same in the former suit as in the latter, and have been determined on the merits. The adjudicatlon when so made, constitutes a bar not only to the points actually decided, but to every point which properly belonged to the particular matter in litigation, and which the parties might have brought forward at the time, for a party is required to present the whole of his case and not omit a part, which by the exercise of reasonable diligence, he might have brought forward at the time; all those matters which were offered and received, or which might have been offered to sustain the particular claim or demand litigated in the prior suit, and all those matters of defence, which were presented or might have been introduced under the issue to defeat the claim or demand, are concluded by the judgment or decree in the former suit. Dillard v. Dillard, 97 Va. 434, 34 S. E. Rep. 60. State Iron Co. v. Rarig, 93 Va. 595, 25 S. E. Rep. 894; Miller v. Wills, 95 Va. 354, 28 S. E. Rep. 337.
Matters Assumed True.—A proposition assumed or decided by the court to be true, and which must be so assumed or decided in order to establish another proposition, which expresses the conclusion of the court, is as effectually passed upon and settled in that court as the very matter directly decided. Blake v. Ohio River R. Co. (W. Va.), 35 S. E. Rep. 953.
Formal Presentation.—But in order that a matter may thenceforth be considered as res judicata, the claims of the respective parties concerning the matter must be formally presented to the court, and duly passed upon. Tarter v. Wilson, 95 Va. 19, 27 S. E. Rep. 818.
Illustrations.—For example, ithas been held, when a report of sale which contains a statement of the commissions, charged by the commissioner, has been confirmed by the trial court, and the decree confirming the report is affirmed by the court of appeals, without raising any question as to the propriety of the commission charged, the question becomes res judicata, and the amount of the commission charged, is beyond the reach of judicial inquiry. Roller v. Pitman, 98 Va. 613, 36 S. E. Rep. 987.
Right of Wife to Join by Next Friend.—Where a wife, in a suit by the husband, was required to be made a party, but was not allowed to join by her next friend, and upon appeal, and after petition for rehearing, the decree in favor of the plaintiff was reversed, as the question of the wife’s right to join by her next friend, might have been presented upon the first appeal, the adjudication is final, and binding upon her, and a bill brought by the wife alone, concerning the same subject-matter should be dismissed. McCullough v. Dashiell, 85 Va. 37, 6 S. E. Rep. 610.
Where the plaintiff is met, in a scire facias proceeding to revive a decree with the plea of mil Mel record and statute of limitations, and upon these issues there is a final, general, judgment in favor of the defendants, this ends all right in the plaintiff to *239enforce the decree against the defendant, either at law or in equity. Iiaub v. Otterback, 92 Va. 517, 23 S. E. Rep. 883.
Cross Actions.—If a physician sue for his services and judgment goes by default, for the nonappearance of the patient, defendant in that suit, recovery by the former does not estop the latter from bringing a cross action for malpractice; but if he appear, unless the record shows that it was not to defend, but solely to disclaim the waiver of his own right, he is estopped by the recovery, Hoi/r, J.. dissenting. Lawson v. Conaway, 37 W. Va. 159, 16 S. E. Rep. 564.
But where a party files a bill attacking a trust deed as fraudulent and void, and it is so adjudged by the court, he cannot afterwards file a cross bill to have the deed equitably enforced for his benefit, which he might have set up in the original bill. If such a thing were allowed there would be no end of litigation, and judicial proceedings would be a farce. Simpson V. Dugger, 88 Va. 963, 14 S. E. Rep. 760.
“Whenever a former judgment is relied on as a
bar, whether by pleading or in evidence, it is competent for the plaintiff to show that it did not relate to the same property or transaction in controversy, and the question of identity thus raised is a matter of fact to be decided upon the evidence, if the record is itself silent. And so if the cause is divisible or the pleadings involve two distinct propositions, it is competent to show that only one of them was submitted to and passed upon by the jury. 1 Greenl. Ev. § 532; Southside Railroad Co. v. Daniel, 20 Gratt. 344; Kelly v. Board of Public Works, 25 Gratt. 755; Packet Co. v. Sickels, 5 Wall. 580; Chrisman v. Harman, 29 Gratt. 494.” Allebaugh v. Coakley, 75Va. 629.
The contention that a judgment in a condemnation proceeding, which authorized the construction of a dam, established the fact that the dam was lawful, which will defeat an estoppel arising from a subsequent judgment finding it to be legal, cannot be sustained, where the former judgment only authorized its construction, and did not find that the dam actually constructed was lawful. C. & O. R. Co. v. Rison, 99 Va. 18, 37 S. E. Rep. 320.
In Cleaton v. Chambliss, 6 Rand. 86. the court by Caur, J., said, in regard to unnegotiable bonds which were given but not paid, and judgment was obtained upon them, that: “Here the foundation of the action is the promise, there the foundation is the bond. The issue there, was upon non est factum-, that was the point decided, the allegation taken and found; an allegation not put in issue, and which could not possibly be put in issue, in the case before
us. If then, the judgment on the bonds had been pleaded, the plea could not have availed; for, if it had stated the record correctly, a demurrer would have lain; and if incorrectly, the replication of nut tiel record would have overthrown it.”
Relief was given in equity, in a pauper’s suit for freedom, by awarding a new trial at law and a decree rendered for the plaintiff (a verdict being certified) upon a bill stating, that in the previous proceedings, he had not been permitted to obtain testimony, and on proof now produced in his support of right, notwithstanding the defendant pleaded, in bar to such relief, a former verdict and judgment, by which the plaintiff was declared to be a slave, and a decree of another court of chancery dismissing a similar bill, exhibited on his behalf from which judgment and decree he had not appealed. Isaac v. Johnson, 5 Munf. 95.
If a judgment of reversal states that it "is not to bar or prejudice any future claim for the appellee, made on fuller proof to the auditor," and the new case does not differ from the former, the first judgment concludes the cause. Innis v. Roane, 4 Gall 379.
Inference or Argument.—In order that a former decision shall operate as res judicata, it must be certain and clear that the precise question was definitely and finally determined; and it cannot be made out by inference or argument. Windon v. Stewart (W. Va.), 37 S. E. Rep. 603.
Illustration.—A suit in chancery and decree therein, can neither be pleaded in bar, nor given in evidence, in an action at law between the same parties, unless the very same matter of controversy was involved in both suits, and unless the court of chancery had competent jurisdiction to decide the matter. For example, where a plaintiff filed a bill in chancery against the defendant, charging fraud practiced by the defendant, in the sale of a slave, and praying that the contract might be rescinded, and that the defendant might be enjoined from taking measures to recover the purchase money of the plaintiff, and the bill was dismissed on a hearing, and then the plaintiff brought an action against the defendant to recover damages for breach of warranty of soundness of the slave, it was held that the proceedings and decree in the suit in chancery could neither be pleaded by C in bar of the action at law, nor was the record thereof admissible evidence on the trial of the action at law. Pleasantsv. Clements, 2 Leigh 474.
c. Identity of Issues—It is essential to estoppel by record that the identical question upon which it is invoked was in issue upon the former proceedings. The ruléis thus stated in Black, Judgm. §610; “There must be an identity of issues, and by this is meant that the issue raised in the second suit, upon which the evidential force of the former judgment is to be directed, must be identical with the issue, or one of the issues, raised and determined in the first action.” C. & O. R. R. Co. v. Rison, 09 Va. 18,37 S. B. Rep. 320. See also, Sangster v. Com., 17 Gratt. 124; Fishburne v. Engledove, 91 Va. 548. 22 S. E. Rep. 354; Currie v. Chowning, 2 Va. Dec. 25, 21 S. E. Rep. 809; Weaver v. Vowles, 2 Rob. 438.
Lands Not the Same in Both Suits.—Moreover a verdict, on which a judgment is rendered, is conclusive evidence in any subsequent suit between the same parties or their privies; the same point coming in question; though the lands or other things in controversy be not the same. Preston v. Harvey, 2 H. & M. 63; Shelton v. Barbour, 2 Wash. 64; C. & O. R. Co. v. Rison, 99 Va. 18,37 S. E. Rep. 321.
Trust Deeds.—Where a trustee files a bill to enforce a trust deed, and a decree is entered accordingly, and he afterwards files a second bill to set aside the trust deed, on the ground that it is fraudulent, the decree in the first suit is not a bar to the second, because the question whether the deed was fraudulent was not put in issue in the first case, and therefore could not be decided. Quarles v. Kerr, 14 Gratt. 48.
Points Same—Objects Different.—Judgment upon a direct point in a former suit, on a writ of quo warranto, or an information in the nature of said writ, is conclusive upon the same point in a latter suit, though the objects of the two suits be different. Thus, where a plaintiff instituted a proceeding in the nature of quo warroxto, to try title to, *240an office, against one appointed by the legislature in his place, it was held that a judgment rendered in that proceeding for the defendant was a bar to the plaintiff’s proceeding by mandamus to compel the board of supervisors to pay him salary as officer de jure; the writ of mandamus being prayed for on the same grounds set up in the auo warranto proceeding. Shumate v. Fauquier County, 84 Va. 574, 5 S. E. Rep. 570.
A judgment is conclusive if on a direct point, though the objects of the two suits are different. Gallaher v. Moundsville, 34 W. Va. 730, 12 S. E. Rep. 859; Winston v. Starke, 12 Gratt. 317.
Facts Necessarily in Issue.—A fact necessarily involved in an issue, on which there has been a judgment, is thereby conclusively settled in any suit thereafter between the same parties and their privies, but the facts in controversy on the trial of an issue, but not necessarily involved in the issue, though ever so important in its determination, are not settled by a judgment on the issue, but are open to controversy in any other suit between the same parties and their privies. Beckwith v. Thompson, 18 W. Va. 103; Houser v. Ruffner, 18 W. Va. 244; Doonan v. Glynn, 28 W. Va. 715. See Coville v. Gilman, 13 W. Va. 314.
Facts Necessary to Decision.—But a judgment is conclusive by way of estoppel as to facts without the existence and proof or admission of which the judgment could not have been rendered. Blake v. Ohio River R. Co. (W. Va.), 35 S. E. Rep. 953.
“Where every objection urged in the second suit was open to the party, within the legitimate scope of the pleadings, in the first suit, and might have been presented at that trial, the matter must be considered as having passed inremjudicatam, and the former judgment in suqh a case is conclusive between the parties. It is notnecessary to the conclusiveness of the fcormer judgment that the issue should have been taken upon the precise point which it is proposed to controvert in the collateral action. It is sufficient if that point was essential to the former judgment. * * * The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps or the ground-work upon which it must have been founded. * * * It is not only final as to the matters actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided.” Diehl v. Marchant, 87 Va. 447, 12 S. E. Rep. 803. See Fishburne v. Ferguson, 85 Va. 321, 7 S. B. Rep. 361; Blackwell v. Bragg, 78 Va. 529.
Test.—if it is doubtful whether a second suit is for the same cause of action as the first; it is a proper test to consider whether the same evidence would sustain both, and what was the particular point or matter determined in the former action. Gallaher v. Moundsville, 34 W. Va. 730, 12 S. E. Rep. 859.
d. Must Be on the Merits.—Dismission of a suit on its merits at the hearing, whether on plea in bar or demurrer for want of equity or cause of action, is a bar to another suit for the same subject-matter between the same parties, unless the dismission be ■“without prejudice,” etc.; whereas if the bill is dismissed for defect of form or structure, not going to the merits, it is no bar to a future suit for the same subject-matter. Payne v. Grant, 81 Va. 164; Hughes v. U. S., 4 Wall. (U. S.) 237; Durant v. Essex Company, 7 Wall. (U.S.) 107. See also, Seamster v. Blackstock, 83 Va. 232, 2 S. E. Rep. 36; Cornell v. Hartley, 41 W. Va. 493, 23 S. E. Rep. 789, 1 Barton’s ■Ch. Pr. (2d Ed.) 358; Burner v. Hevener, 34 W. Va. 774, 12 S. E. Rep. 861; Wandling v. Straw, 25 W. Va. 692; Riley v. Jarvis, 42 W. Va. 43,26 S. E. Rep. 366.
“In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings or parties, or a misconception of form of proceedings, or want of jurisdiction, or was disposed of on any ground, which did not go to the merits of the action, the judgment rendered will prove no bar to another suit. Hughes v. U. S.,4 Wall. 237.” Tate v. Bank, 96 Va. 765,32 S. E. Rep. 476. See Fishburne v. Engledove, 91 Va. 548, 22 S. E. Rep. 354.
A judgment for the defendant upon pleadings not going to the foundation of the action, is no bar to the plaintiffs bringing another action for the same cause. Lane v. Harrison, 6 Munf. 573.
Decree Dissolving Injunction.—A decree dissolving an injunction upon the merits, where no relief but an “injunction” is sought, is final, and res judicata. Fluharty v. Mills (W. Va.), 38 S. E. Rep. 521; Gal laher v. City of Moundsville, 34 W. Va. 730, 12 S. E. Rep. 859; Burner v. Hevener, 34 W. Va. 774, 12 S. E. Rep. 861.
Sufficiency.—The defence of res judicata, made by answer, is sufficient when supported by the production of the record of the former suit between the same parties, touching the same matter, showing a final decree therein on.the merits. 1 Barton’s Ch. Pr. (2d Ed.) § 114; Miller v. Miller, 92 Va. 196, 23 S. E. Rep. 232.
Bar to Recovery in Equity.—A verdict and judgment at law, against a plaintiff, is no bar to his recovery in equity for the same cause of action, where it does not appear that the merits of the controversy were fully and fairly tried and determined at law. Hawkins v. Depriest, 4 Munf. 469.
Petition to Rehear.—Where a petition to rehear is rej ected on the ground that it is not accompanied by an affidavit, and because it does not state why the matters set up were not brought to the attention of the court before the decree was rendered, the matter does not become res judicata, and it is error to refuse leave to file a new petition, accompanied by an affidavit that the matter therein set up was unknown to the petitioners, and could not have been known by the use of reasonable diligence. Kara v. Rorer Iron Co., 86 Va. 754, 11 S. E. Rep. 431. See Seamster v. Blackstock, 83 Va. 232,2 S. E. Rep. 36.
Motion to Reverse Overruled.—Where a party makes a motion, under sec. 5, ch. 134 of the W. Va. Code, to reverse a judgment on the ground that one of several defendants, against whom a joint judgment is rendered, was not served with process, and did not appear, and such motion is overruled, the decision of the circuit court overruling that motion, makes such judgment valid and binding under the doctrine of res judicata, though it was void before, unless such decision be reversed. Ferguson v. Millender, 32 W. Va. 30,9 S. E. Rep. 38.
It was held in Pettus v. Atlantic Savings & Loan Ass’n, 94 Va. 477, 26 S. E. Rep. 834, that an order of a hustings court, in the exercise of its special statutory jurisdiction, appointing a trustee to take the place of the trustee named in the deed, who has resigned the trust, determines nothing as to the rights of the parties under the deed, nor as to the character of the deed, and will not debar the grantor from asserting its true character.
Nul Tiel Record, Act of Limitations.—Where, to a *241scire facias to revive a decree, the defendants plead nultiel record and the statute of limitations, and on these pleas issue is joined, and there is a final general judgment in favor of the defendants, this ends all right in the plaintiff to enforce the decree against the defendants, either at law or in equity. Raub v. Otterback, 92 Va. 517, 2B S. E. Rep. 883.
Demurrer to Cross BilL—Where a county files a cross bill admitting the validity of certain of its bonds, yet on the ground that the plaintiff has not complied with its contract with the county, the county asked the court to decree that it was not bound, except to bona fde_ holders of the bonds for value and without notice, the effect of a dismissal of the cross bill on demurrer, when it appears that the demurrer was sustained upon the grounds going to the merits of the question raised by the pleadings, is to adjudge that the county is bound; and such a decree is, as between the same parties, a final determination of the question. W., O. & W. R. R. Co. v. Cazenove, 83 Va. 744, 3 S. E. Rep. 433.
e. Judgments Must Be Pinal.—‘'It is well settled that the doctrine of res judicata applies only to final judgments, not to interlocutory judgments or orders, which the court which rendered has power to vacate ormodify at any time.” 2 Black, Judgm. § 509, cited with approval in Rheiins v. Ins. Co., 39 W. Va. 672, 20 S. E. Rep. 670; Quarles v. Kerr, 14 Gratt. 48; Yates v. Wilson. 86 Va. 625, 10 S. E. Rep. 976.
A final adjudication of a court of competent jurisdiction upon the merits of the controversy, so long as it remains unreversed, is a bar to any new suit for the same cause of action between the same parties. Burner v. Hevener, 34 W. Va. 774, 12 S. E. Rep. 861.
Suit by Legatees.—It seems that a final decree, in a suit by legatees, for the division of a testator’s estate, is a bar to a bill exhibited by the same persons, or their legal representatives, suggesting that the executor had kept back part of the property, but not averring that this was new matter since discovered, or that the decree was obtained by fraud. Regrand v. Francisco. 3 Mnnf. 83.
Partition—Rights of Children Not Adjudicated.— Where, in partition, the issue was whether the complainants were entitled to the shares of their deceased brothers and sisters, under the will of the complainant's grandfather, or whether such shares belong to their .father, it was held that a decree that the complainants were entitled to such shares was binding on the father, who was a party to the suit, since it settled the question that he had no interest in the property, though it did not finally adjudicate the rights of the children as between themselves; and in the absence of fraud, such decree cannot be assailed by the creditors of the father, and the lands subjected to their claims. Gardner v. Stratton. 89 Va. 900, 17 S. E. Rep. 558.
3. Courts in General.“A judgment rendered by a court of competent jurisdiction is a bar to a subsequent action between the same parties upon the same matter directly in issue. There is no difference between a judgment in a court of common law and a decree of a court of equity; both stand on the same footing. And as we have seen, the doctrine of res judicata is equally applicable to those matters which have been, and those which might have been, adjudicated. Adams v. S. V. R. R. Co.,76 Va. 913; Blackwell v. Bragg, 78 Va. 529: Burner v. Hevener, 34 W. Va. 774, 12 S. E. Rep. 861; Tilson v. Davis, 32 Gratt. 92: Tracey v. Shumate. 22 W. Va. 474; Western M. & M. Co. v. The Virginia, etc., Co., 10 W. Va. 250; Parsons v. Riley, 33 W. Va. 464, 10 S. E. Rep. 806.
No Difference between Decrees and Judgments.—It is well established law that a final decree in chancery is as conclusive as the judgment at law. A verdict and judgment in a court of record or a decree in a court of chancery puts an end to all points decided between tbe parties to the suit. There is and ought to be no difference between the verdict and judgment in the court of law and a decree in a court of equity. They both stand on the same footing and may be offered in evidence under the same limitations: it would be difficult to assign a reason why it should be otherwise. There is nothing anomalous or unusual in setting up a former adjudication as an estoppel to an action for equitable relief. The rule is a beneficiary one, and it is a matter in which it is said that the public has an interest as well as the parties, that there should be an end to litigation. Tilson v. Davis, 32 Gratt. 92; Tracey v. Shumate, 22 W. Va. 474; Western M. & M. Oo. v. The Virginia, etc., Co., 10 W. Va. 250; Parsons v. Riley, 33 W. Va. 464, 10 S. E. Rep. 806.
a. Probate When a paper is propounded for probate to the proper court by a devisee, and there is a sentence of the court fairly obtained and pronounced on the merits, excluding the paper from the probate, such sentence of exclusion from probate is conclusively binding upon all claiming under the paper. Schultz v. Schultz, 10 Gratt. 358; Connolly v. Connolly, 32 Gratt. 657; Ballow v. Hudson, 13 Gratt. 672.
The sentence of a court of probate fairly obtained and pronounced upon the merits, by which a paper propounded as a will by the nominated executor is rejected, in a proceeding in which .some of the next kin interested to defeat it, are parties defendants, is conclusively binding upon a legatee in the paper, though he was an infant at the time, and no party to the proceeding. And the paper cannot again be propounded by the legatee. It would be intolerable evil, if the controversy could be renewed, from time to time, at the pleasure of the same, or even of other parties. Obvious considerations of justice and sound policy require that in a proceeding of so much publicity and notoriety, intended to sanction or condemn perpetually an important muniment of title; affecting various interests, original and derivative, which time only can fully develop and determining prospectively, channels of succession, powers of representation, and classes of ownership; there should be, as far as practicable, uniformity, consistency and finality. Such a proceeding becomes to a great extent, a matter of public as well as private interest; and both the general good and individual security prohibit that it should be, so far as can be avoided, in any wise uncertain, vacillating or precarious. Wills v. Spraggins, 3 Gratt. 555.
Analogous to Judgments in Rem.—'‘When a will has been propounded by the party interested, and fairly rejected on the merits, it would defeat the policy of the law, and be productive of many mischiefs, if it could be again propounded by the same party or by others who might be interested, and the contest thus renewed from time to time. The sentence therefore against the will must be regarded as a sentence against all claiming under it. It stands upon a footing analogous to the cases known as judgments in rem, which being adjudications upon the subject-matter are regarded as final and conclusive not only in the courts in which they are *242pronounced, but in all others in which the same question arises.” Schultz v. Schultz, 10 Gratt. 358; Connolly v. Connolly, 32 Gratt. 657.
Pendency of Bill in County Court.—The pendency of a bill in equity, in a county court, after dissolution of an injunction, is no bar to the complainant’s obtaining another injunction from the superior court of chancery. Roberts v. Jordans, 3 Munf. 488.
6. Appellate Gowrts.
Effect on Parties Not Appearing.—It is settled that if a party sues out a writ of' error from a judgment against him, and the judgment is affirmed, the judgment of the appellate court affirming the judgment of the lower court has all the force of res judicata, and makes that judgment binding. It is binding as a judgment, even on parties who did not appeal, and were not served with appellate process, if a joint judgment. Ferguson v. Millender, 32 W. Va. 30, 9 S. E. Rep. 38; Camden v. Werninger, 7 W. Va. 528; Armstrong v. Poole, 30 W. Va. 666, 5 S. E. Rep. 257; Campbell v. Campbell, 22 Gratt. 649; Board v. Parsons, 24 W. Va. 551; Henry v. Davis, 13 W. Va. 230; Mason v. Harper’s Perry Bridge Co., 20 W. Va. 223; Newman v. Mollahan, 10 W. Va. 488.
Where exceptions have been taken to an administrator’s account, because, among other things, of payments made to unpreferred creditors, and the account is confirmed, and an appeal therefrom taken to the court of appeals, where the decision of the lower court is affirmed, a bill in equity against the administrator by a party to the former proceeding, charging devastavit on account of such payments, cannot be sustained, although the validity of the payments was not, in fact, questioned in the court of appeals. Findlay v. Trigg, 83 Va. 539, 3 S. E. Rep. 142.
Where a judgment of the circuit court has been affirmed by the supreme court, such judgment cannot be impeached or set aside by a court of equity, in a suit brought for that purpose, upon any ground of error upon theface of such judgmentorupon the record of the casein which it is rendered. Armstrong v. Poole. 30 W. Va. 666, 5 S. E. Rep. 257.
Chancery Courts.—Moreover, a court of chancery cannot, upon the same facts, alter a decree of the court of appeals. Price v. Campbell, 5 Call 115; White v. Atkinson, 2 Call 376.
Decision as to Jurisdiction.—Where the court of appeals decides, whether rightfully or wrongfully, that it has jurisdiction of a cause, and orders the trial court to enter judgments therein, after the close of that term, the question of jurisdiction becomes res judicata, and cannot be raised in a subsequent action on the judgment. This ruléis established by an unbroken line of decisions. Stuart v. Peyton, 97 Va. 796, 34 S. E. Rep. 696; Griffin v. Cunningham, 20 Gratt. 81; Campbell v. Campbell, 22 Gratt. 667; Stuart v. Heiskell, 86 Va. .l91, 9 S. E. Rep. 984; Roanoke St. Ry. Co. v. Hicks (Va.), 32 S. E. Rep. 790; Reid v. Strider, 7 Gratt. 76; Bank v. Craig, 6 Leigh 400; Renick v. Ludington, 20 W. Va. 537.
Commissioner’s Report.—If, in a chancery cause, a commissioner reports that the lands of certain persons not parties to the cause are liable to be sold in the cause, and the court confirms this report and orders the sale of their lands, and they appeal from this decision, and the appellate court on their appeal hears the cause on its merits and affirms the decree, these appellants are bound by this decree as res adjudicata, as the appellate court in so deciding, must have held that it had jurisdiction not only of the cause but of the parties; and this j udgment as well as that on the merits of the case is binding on the parties. But if the appeal had been taken in such case not by these persons, but by some other party to the cause, neither the judgment in the court below nor its affirmance by the appellate court would have bound such persons as res adjudicata; for in such case there would be no implied judgment of the appellate court, that it had jurisdiction over such persons as parties to the cause. Renick vLudington, 20 W. Va. 511.
Questions Decided on Appeal.—It is a settled rule of the appellate court, that a question which has been decided on the first appeal in any cause, cannot be reviewed or reversed in any subsequent appeal in the same cause. Stuart v. Preston, 80 Va. 625; Ins. Co. v. Clemmitt, 77 Va. 366; White v. Offleld, 90 Va. 336, 18 S. E. Rep. 436.
Thus, where in a suit to correct a mistake and for an accounting, the court below held that payment by the grantee in a deed of certain incumbrances on the land should be considered payments on the price, which decree was affirmed in that respect on appeal, on a second accounting, under the decree of the appellate court, the question, whether the payments of the incumbrances were payments on the price or to be treated as set-offs, is res judicata. Stuart v. Heiskell, 86 Va. 191, 9 S. E. Rep. 984.
Title to Lands.—Where in the original cause the title to lands was investigated by a commissioner whose report was confirmed by the circuit court and an appeal from its decision to the supreme court was dismissed, a contention that there is a defect in the title will not be considered. Hudson v. Yost, 88 Va. 347, 13 S. E. Rep. 436.
Final and Interlocutory Decrees.—A decree of the supreme court upon a question decided by the court below is final and irreversible; and upon a second appeal in the cause, a question decided upon the first appeal cannot be reversed, being res judicata, and such a decision is alike conclusive whether the decree appealed from is final or interlocutory. Turner v. Staples, 86 Va. 300, 9 S. E. Rep. 1123; Miller v. Cook, 77 Va. 806.
Boints adjudicated by the supreme court on a former appeal must be regarded as res judicata during the further progress of the cause. Wick v. Dawson (W. Va.), 37 S. E. Rep. 639.
Correction by Rehearing in Lower Court.—Where a decree has been affirmed by the supreme court on appeal, it becomes res judicata, and no error in it can be corrected by rehearing in the court below. Lore v. Hash, 89 Va. 277,15 S. E. Rep. 549.
Effect of Talcing Additional Evidence in Lower Court. —Moreover, the conclusiveness of a decision by the supreme court on appeal, by which the principles of a cause are settled, is not affected by the fact that additional evidence is taken after the case goes back to the trial court. Turner v. Staples, 86 Va. 300, 9 S. E. Rep. 1123.
Important Questions Omitted.—Although the opinion of the supreme court should indicate that important questions involved in the pleadings had been overlooked, which, had they been considered, might have changed the adjudication, nevertheless the decision, when it has been rendered and has become final, settles the rights of the parties in that particular case, and it may be pleaded as an estoppel. Northwestern Bank v. Hays, 37 W. Va. 475,16 S. E. Rep. 561.
Matters Not Actually Adjudicated.—Matters once determined on appeal in the supreme court cannot be reopened; and this is true whether those mat*243ters were actually adjudicated or not. If they could have been adjudicated in that suit they are equally settled. Carter v. Hough, 89 Va. 503. 16 S. E. Rep. 665; Findlay v. Trigg, 83 Va. 539, 3 S. E. Rep. 142; Campbell v. Campbell, 22 Gratt. 649.
Matters Contained in Record.—Whatever is contained in the record on an appeal is supposed to have been passed upon, and whatever is passed upon here, and whatever might have been passed upon in consideration of the record, is concluded and settled, and cannot be reopened by the court below. Krise v. Ryan, 90 Va. 711, 19 S. E. Rep. 783; Campbell V. Campbell, 22 Gratt. 649.
Construction of Records.—When the supreme court has placed a construction upon the legal character and effect of certified copies of entries or memorandums in certain public records, such construction is res judieala in the supreme court and all other courts of the state, on a second appeal. Holleran v. Meisel, 91 Va. 148, 21 S. E. Rep. 658; Chahoon’s Case, 21 Gratt. 822, and note: Campbell v. Campbell, 22 Gratt. 649; Turner v. Staples, 86 Va, 300, 9 S. E. Rep. 1123; Stuart V. Heiskell, 86 Va. 191, 9 S. E. Rep. 984; Norfolk, etc., R. Co. v. Mills, 91 Va. 613, 22 S. E. Rep. 556.
Entry That Plaintiff Takes Nothing by His Motion.— If a judgment on a summary motion be reversed on the ground that the plaintiff’s claim is not supported by the evidence, the appellate court should proceed to enter judgment, that the plaintiff take nothing by his motion; snch judgment would be a bar to another motion for the same cause of action. But if such judgment be not entered, the judgment of reversal is too imperfect to be a legal bar. Webb v. McNeil, 3 Munf. 184.
4. Rutbaxit.—A retraxit is an open and voluntary renunciation by the plaintiff in open court of his suit, and the cause thereof. A dismissal by a plaintiff who no longer has any interest in the cause of action is not a retraxit, and cannot prejudice the rights of the real owner of the subject of litigation, who is neither a party to the action, nor a privy of the plaintiff. Tate v. Bank, 96 Va. 765, 32 S. E. Rep. 476; Wohlford v. Compton, 79 Va. 336.
Maker and Accommodation Endorser.—In an action against the maker and accommodation endorser of a negotiable note by one who held the note as collateral for a debt, the plaintiff haying received satisfaction of his debts from his original debtor, dismissed the action at the defendant’s costs, with the knowledge and acquiescence of the endorsers, the collateral notes being at the time transferred to the defendant in error who was not a party to the action on them, and had no notice or knowledge of the pendency of the action. Held, the dismissal was not a retraxit, precluding the defendant in error from subsequently recovering from an endorser who was a party, and acquiesced in the dismissal. Tate y. Bank, 96 Va. 765, 32 S. E. Rep. 476.
Dismission of Suit Agreed.—The dismission of a suit agreed is not a retraxit and cannot be pleaded in bar of a subsequent suit between the same parties, for the same cause of action. Makshaiil, C. J„ in Hoffman v. Porter, 2 Brock. R. 156, disapproved in Hoover v. Mitchell, 25 Gratt. 387.
Judgment for Costs.—Also, a dismissal of a suit by the plaintiff’s order is no bar to his bringing another suit for the same cause of action, even though there was a judgment by the court for the defendant against the plaintiff for costs. Coffman v. Russell, 4 Munf. 207.
Discontinuance.—A discontinuance is not a retraxit. Muse y. Bank, 27 Gratt. 252.
Must Be Entered in Person.—A retraxit can only be entered by the plaintiff in person, and in open court. Muse y. Farmers’ Bank, 27 Gratt. 252.
Damages by Statute.—The damages of five dollars, given by the act of the assembly, in cases of non-suits, ought not to be awarded in the case of a retraxit. Pinner v. Edwards, 6 Rand. 675.
Retraxit in Criminal Cases—A dismission of a presentment is not a retraxit, nor is a retraxit known to the criminal law, where the prosecution is carried on by the commonwealth. This power of a retraxit is a dispensing power, and the law has not entrusted it to a prosecuting attorney. Wortham y. Com., 5 Rand. 669.
5. Nonsuit.—A nonsuit is not a final judgment, but the opposite. By suffering a nonsuit the plaintiff ends his present suit without prejudice to his right to bring another. Mallory v. Taylor, 90 Va. 348, 18 S. E. Rep. 438; 4 Min. Inst. (3d Ed.) 958; Pinner y. Edwards, 6 Rand. 675; Railway Co. v. Long, 26 W. Va. 699.
Must Qo to the Herits.—A nonsuit, to be such at all, must go to the whole case, as there is no such thing as a partial nonsuit. Railway Co. v. Long. 26 W. Va. 692.
Nonsuit Ordered by Justice.—A nonsuit ordered by a j ustice must be regarded, after a trial on the merits, as a judgment for the defendant, and consequently a bar in any other litigation between the same parties (in regard to the same subj ect-matter), even though the order was made with the consent of the plaintiff. Parsons y. Riley, 33 W. Va. 464. 10 S. E. Rep. 806.
Voluntary Nonsuits.—The court may recommend a nonsuit, but cannot direct it to be entered, against the will of the plaintiff. Ross y. Gill, 1 Wash. 87.
Not Appealable.—But If the court directs the plaintiff to be nonsuited, and he submits to it (which he is not bound to do), he deserts his cause, and cannot by an exception, avail himself of any legal o bj action to the opinion of the court. Thornton v. Jett, 1 Wash. 138.
Omission of Joint Defendants —If one of several joint contractors be omitted as defendant, and the omission is disclosed only by the evidence, the plaintiff will be nonsuited. Prunty v. Mitchell, 76 Va. 169.
Variance between Allegata and Probata.—If the evidence differs from the statement in the declaration, judgment of nonsuit will be given by the court of error. Calvert v. Bowdoin, 4 Call 217.
Damages in Case of Dismission.—The damages of five dollars, given by the act of the assembly ought to be awarded in all cases of dismissions and discontinuances, produced by a voluntary abandonment of the cause by the plaintiff, after the defendant’s appearance, whether in the office, or in court, and such dismissions ought to be entered up as nonsuits. But the dismission of a suit for a failure to give security for costs, is not such a voluntary failure to prosecute, as authorizes the judgment of nonsuit. Pinner v. Edwards, 6 Rand. 675.
Reasons for Suffering Nonsuit.—The nonsuit is resorted to where the plaintiff finds himself unprepared with evidence to maintain his cause, either in consequence of his being ruled into a trial when not ready, or when surprised by the testimony of a witness, or some ruling of the court, or some similar reason. Cahoon v. McCulloch, 92 Va. 177, 23 S. E. Rep. 225.
Setting Aside a Nonsuit.—Where a nonsuit, in a *244writ of right, has heen suffered under a misapprehension on the part of the defendants and their counsel as to the legal effect of an instruction given at the trial, the court, in the exercise of a sound discretion, should, on the motion of the defendants, set aside the nonsuit; and if this is not done, the judgment, overruling the motion, will be reversed. Walkers v. Boaz, 2 Rob. 485.
Effect of Nonsuit.—The only effect of a judgment of nonsuit is to put an end to the pending suit, without precluding another for the same cause of action. Cahoon v. McCulloch, 92 Va. 177, 23 S. E. Rep. 225.
Contrast.—In 2 Tuck. Com., p. 251, it is said : “A retraxit differs from a nonsuit in that the one (the latter) is negative, and the other (the former) is positive. The nonsuit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again upon the payment of costs; but a retraxit is an open and voluntary renunciation of his suit in court, and by this he forever loses his action.” Quoted in Hoover v. Mitchell, 25 Gratt. 387. See Pinner v. Edwards, 6 Rand. 675 ; Railway Co. v. Long, 26 W. Va. 699.
Non Pros. Species of Nonsuit.—The judgment of non pros, for the plaintiff's failure to file a verification does not bar another suit for the same cause, this judgment is a species of nonsuit. “Such a judgment is not regarded as one on the merits, but only as a nonsuit, and, while final in the particular case, is not conclusive upon the matter of action. It is treated as a nonsuit by 3 Bl. Com. 296; by 4 Min. Inst. (4th Ed.) 867 ; 2 Black, Judgm. § 702; 1 Freeman, Judgm. § 261. Judge Summers regarded it as a non-suit in Pinner v. Edwards, 6 Rand. 675. All authorities hold that a nonsuit does not bar a second suit for the same cause. The authorities just given say that a judgment on non pros, will not defeat a second suit." Henry v. Ohio River R. Co., 40 W. Va. 234, 21 S. E. Rep. 863.
Where there is a plea of new matter, concluding with a verification, and the plaintiff fails to reply to it, there ought to be a judgment of non prosequitur against him, after a rule to reply, but such need not be served. Henry v. Ohio River R. Co., 40 W. Va. 234,21 S. E, Rep. 863.
6. Dismissal inequity.—A bill in equity dismissed generally, without any reservation to the plaintiff to sue thereafter, is conclusive between the parties, and those claiming under them, of all the issues made up in the cause, even though there was no jurisdiction in equity because of an adequate remedy at law. Watson v. Watson, 45 W. Va. 290, 31 S. E. Rep. 939; Carberry v. Railroad Co., 44 W. Va. 260, 28 S. E. Rep. 694; Taylor v. Yarbrough, 13 Gratt. 183. See also, Wandling v. Straw, 25 W. Va. 692; McCoy v. McCoy, 29 W. Va. 794, 2 S. E. Rep. 809.
But the dismission of a suit, not conclusive on the merits, by one court of equity, will not prevent another co-ordinate court of equity from taking jurisdiction. Carter v. Campbell, Gilmer 159.
Merits.—In order that a judgment may constitute a bar to another suit, the point in controversy must be the same in both cases, and in the first must have been determined on the merits. An order simply dismissing the suit is not a determination on its merits, and so is not a bar to the maintenance of a second suit for the same cause of action. Wilcher v. Robertson, 78 Va. 602. See also, Saunders v. Marshall, 4 H. & M. 455.
Order Dismissing Caveat.—For example, it has been held that an order dismissing a caveat, when not on the merits, is not conclusive of the controversy. Hunter v. Hall, 1 Call 206.
Dismissal of Suit Agreed.—But an order dismissing a case agreed is a bar to another suit on the same cause of action. Pethtel v. McCullough (W. Va.), 39 S. E. Rep. 199; 2 Black, Judgm. § 706.
The judgment of a court of competent jurisdiction, dismissing a suit agreed, upon the ground that it has been agreed by the parties, is at least prima facie a final determination as to those parties of the matters litigated in that suit. It is virtually an acknowledgment by the plaintiff in open court, as in retraxit, that he has no cause of action, or rather, no further cause of action. It is not merely an abandonment of his suit, by the plaintiff, as in a nonsuit; it is the concurrent action of both parties. Hoover v. Mitchell, 25 Gratt. 387.
Embraces What i"light Have Been Litigated.—The judgment of a court of competent jurisdiction, dismissing a suit agreed, upon the ground that it has been agreed by the parties, is a final determination as to those parties of the matters litigated in that suit, and this principle embraces not only what was actually determined, but also extends to every other matter which the parties might have litigated in the suit. Wohlford v. Compton, 79 Va. 333; Wilcher v. Robertson, 78 Va. 602; Hoover v. Mitchell, 25 Gratt. 387; Siron v. Ruleman, 32 Gratt. 223. These cases were cited with approval in Pethtel v. McCullough (W. Va.), 39 S. E. Rep. 199.
Fraudulent Deeds.—A decree, by a court of competent jurisdiction, dismissing a bill, upon the ground that the deed under which the complainant claimed was fraudulent, is a complete bar to another original bill to try the validity of the sam^ deed; the proper remedy, if such decree be erroneous, being by appeal, writ of error, supersedeas, or bill of review, and not by original bill. Holliday v. Coleman, 2 Munf. 162.
Effect of Order of Dismissal.—It is provided by statute that “after the dismission of an appeal, writ of error or supersedeas, no other appeal, writ of error or supersedeas shall be allowed to or from the same judgment, decree or order.” This statute has been construed to apply as well to an order dismissing an appeal for failure to print the record as to a similar order made on any other ground. Woodson v. Leyburn, 83 Va. 843, 3 S. E. Rep. 873; Barksdale v. Fitzgerald, 76 Va. 892; Beecher v. Lewis, 84 Va. 630, 6S. E. Rep. 367; Cobbs v-Gilchrist, 80 Va. 503.
It was held in Alvey v. Cahoon, 86 Va. 173, 9 S. E. Rep. 994, if one writ of error be dismissed for matter merely formal, the effect is, so far as any rehearing is concerned, the same as an affirmance in the appellate court.
Effect of Adding “Without Prejudice.”—Where an action for damages for breach of the conditions of a written contract is brought before a justice, and upon a general denial by the defendant of the complaint the justice hears the case upon the evidence and arguments of counsel, and enters a judgment dismissing the plaintiff’s suit for failure to prove the execution of the contract sued on, with costs, he cannot by adding the words "without prejudice to a new suit” authorize a new suit for the same cause of action. Parsons v. Riley, 33 W. Va. 464, 10 S. E. Rep. 806. ' >
7. Evidence.
Judgment of Justice Evidence of Probable Cause.—A judgment by justice, though reversed, is prima facie evidence of probable cause in an action for malicious prosecution and false imprisonment, and it *245has been thought by some that such judgment is conclusive evidence of such probable cause. Womack v. Circle, 29 Gratt. 192.
Judgment as Evidence between Creditors.—But a judgment in favor of one creditor, declaring a conveyance by the debtor void, is not evidence in favor of or against another creditor. Winston v. Starke, 13 Gratt. 317.
Judgments against Sheriff—Sureties.—So, judgments obtained against a sheriff for breach of duty in an action against his sureties, are not evidence against such sureties. Nor are the admissions of the sheriff evidence against the sureties. M’Dowell v. Bur-well, 4 Rand. 317.
On a notice and motion by the administratrix of a high sheriff against a deputy and a surety, for the default of the deputy in not paying over money collected on an execution, the judgment recovered by a creditor, showing that it is for such default of the deputy, is prima facie evidence against the deputy and his sureties, that the administratrix had been subjected to the liability for the default of the deputy, although the deputy was not notified of the action. Cox v. Thomas, 9 Gratt. 323.
Judgment as Evidence for Officer.—A judgment against an officer is evidence for him in an action against the deputy and his sureties to show that he had been subjected to the payment of money by reason of the default of the deputy. Cox v. Thomas, 9 Gratt. 323.
Judgment on Official Bond as Evidence of Defalcation.
—Judgment against a public officer on his official bond is not only not conclusive evidence of a defalcation, but it is not even prima facie of such a fact. Courtney v. Beale, 84 Va. 692, 5 S. E. Rep. 708.
Mandamus .—Where application is made for a mandamus to enforce a judgment against a town, the judgment conclusively determines that the town is chargeable with the sum, for which the judgment was rendered. Wells v. Town of Mason, 23 W. Va. 456.
a. Chancery Cause as a Title Link— The record in a chancery cause is legal evidence for the defendant as a link in his chain of title, though the plaintiff was not a party to the cause. Baylor v Dejarnette, 13 Gratt. 152, and note; Waggoner v. Wolf, 28 W. Va. 825.
An order of court, appointing commissioners to assign the widow her dower, although made exparte, and on motion, without regular proceedings in chancery, and the report of the commissioners, are proper evidence, to show that the slave was allotted to the widow for life only; especially, where the widow and her second husband were present and consented to the allotment. Hunter v. Jones, 6 Rand. 541.
But a record to which neither the demandant nor tenant was a party, is not even prima facie evidence against the tenant that the grantor in the deed to the demandant was heir at law of the grantee in the patent in which the demandant claimed title. Duncan v. Helms, 8 Gratt. 68.
In tracing the title to land in controversy, a decree in a suit between other parties, is not evidence, against the person claiming under neither of them, that one of those parties was in fact, as therein described, eldest son and heir of the former proprietor; it being incumbent upon the party, wishing to avail himself of such issue to prove it by evidence, aliunde, but such decree may be received (as a link in the chain of evidence) to prove the fact that it was rendered. Lovell v. Arnold, 2 Munf. 167.
B. LIEN OP JUDGMENT—ORIGIN AND HISTORY.
1. Writ or Elegit—At common law, except for debts due the king, the lands of the debtor were not liable to the satisfaction of a judgment against him, and consequently no lien thereon was acquired by a judgment. This was in accordance with the policy of the feudal law introduced into England after the Conquest, which did not permit the feudatory to charge, or to be deprived of, his lands lor his debts, lest thereby he should be disabled from performing his stipulated military service, and which, moreover, forbid the alienation of a feud without the lord's consent. The goods and chattels of the debtor, therefore, and the annual profits of his lands, as they arose, were the only iunds allotted for the payment of his debts. This continued to be the law until the passage of the statute Westm. 2, IB Edward I, by which, in the interest of trade and commerce, the writ of elegit was for the first time provided for. By that statute the judgment creditor was given his election to sue out a writ oi A fa. against the goods and chattels of the defendant, or else a writ commanding the sheriff to deliver to him all the chattels of the defendant (except oxen and beasts of the plough), and a moiety of his lands, until the debt should be levied by a reasonable price or extent. When the creditor chose the latter alternative, his election was entered on the roll, and hence the writ was denominated an elegit. and the interest which the creditor acquired in the lands by virtue of the judgment and writ was known as an estate by elegit. This statute was substantially adopted in Virginia at an early day, and in consequence of this right to subject a moiety of the defendant’s lands, the courts held that a lien was acquired by the judgment, which extended to all the defendant’s lands within the state, and which was superior to the claims of subsequent purchasers, though for valuable consideration and without notice. Hutcheson v. Grubbs, 80 Va. 254; Borstv. Nalle, 28 Gratt. 423; Renick v. Ludington, 14 W. Va. 367.
Right to Take Out Elegit Not Suspended by Suing Out Writ of Fi. Fa.—“There is no statute in Virginia which, in express terms, makes a judgment a lien upon the lands of the debtor. As in England, the lien is the consequence of a right to take out an elegit. During the existence of this right the lien is universally acknowledged. Different opinions seem at different times to have been entertained of the effect of any suspension of the right. * * * A case was soon afterwards decided in the court of appeals of the state in which this question of the execution law of the state of Virginia is elaborately argued and deliberately decided. That decision is, that the right to take out an elegit is not suspended by suing out a writ oi.fieri facias, and, consequently that the lien of the judgments continues pending the proceedings on that writ. This court, according to its uniform course, adopts that construction of the act which is made by the highest court of the state.’' Per Mr. Ottiee Justice Marshall in U. S. v. Morrison, 4 Peters 124; Burton v. Smith, 18 Peters 464.
Under Va. Code 1873, ch. 182, sec. 9. a judgment lien may be enforced in equity without a A fa. thereon, it being unnecessary for the judgment creditor, under that act, to exhaust his remedies at law before going into equity to subject the land oi his *246debtor, or his fraudulent alienees to satisfy his judgment. Moore v. Bruce, 85 Va. 139, 7 S. E. Rep. 195; Price v. Thrash, 30 Gratt. 515.
Fi. Fa. Need Not Be Returned “Nulla Bona.”—Under the statute, Code 1873, ch. 182, § 9, it is not necessary that an execution of fieri facias should have been returned nulla tona, before the plaintiff in the judgmentmay sue in equity to subject the lands of his debtor to satisfy the judgment. Barr v. White, 30 Gratt. 531.
Right to Go into Equity—Remedy at Law.—[t is not necessary since the revision of the law in 1849, that a judgment creditor shall exhaust his remedies at law before going into equity to subject the land of his debtor or his fraudulent alienees to his judgment. The remedy in equity against the real estate is not dependent upon the inadequacy of the legal remedy to satisfy the judgment out of the personal estate, or the insufficiency of such estate for that purpose, but it may always be resorted to whether there is or is not personal estate of the debtor, sufficient to satisfy the debtor. Price v. Thrash, 30 Gratt. 515; Stovall v. Border Grange Bank, 78 Va. 188.
Actual Issuance of Elegit Unnecessary.—The lien on land created by a judgment, depends upon the right of the plaintiff to sue out an elegit, and it is not essential to the existence of the lien, that the elegit should have actually issued before the judgment creditor can come into equity for relief. Scriba v. Deane, 1 Brock. (TJ. S.) 166; Taylor v. Spindle, 2 Gratt. 44. But see Eppes v. Randolph, 2 Call 125.
Moreover, judgments do not bind lands after twelve months from the date, unless execution be taken out within that time, or an entry of elegit be made on the record. Eppes v. Randolph, 2 Call 125.
Elegit Abolished.—The lien resulting from the writ of elegit was not abolished in Virginia until the revisal of 1849, and a lien given by statute upon the debtor’s entire real estate. Gordon v. Rixey, 76 Va. 694; Hutcheson v. Grubbs, 80 Va. 251.
2. Nature or the Lien.— Liens of judgments and their priorities and the right to enforce the same, are plain legal rights, expressly created by statute, and cannot be judicially modified to soften the supposed hardship of secret incumbrances. Gurnee v. Johnson, 77 Va. 712.
Judgment Vested Right—Retroactive Law.—A judgment is such a vested right of property that the legislature cannot, by a retroactive law, either destroy or diminish its value. It cannot alter its amount or destroy the effect theretofore given to it as a lien on real estate. The right to the Hen upon the debtor’s real estate is, in many cases, the sole inducement to the credit, which constitutes the basis of the judgment. Without the benefit of that lien, guaranteed by the law at the time the judgment is taken, the credit would not have been given. Merchants’ Bank v. Ballou, 98 Va. 112, 32 S. E. Rep. 481.
• 3. Certain Essentials.
a. Specific Sum of Money.—Ho create a lien the judgment must be for a specific sum of money. Thus, a decree providing that if the defendant does not, in a given time, pay the plaintiff a certain sum, that certain real and personal property of the defendant, on which the plaintiff has a specific Hen, shall be sold, is not a judgment which creates a Hen on other real estate of the defendant. Linn v. Patton, 10W. Va. 187.
Insanity.—A judgment against a person insane at its rendition is not for that cause void, and is a Hen on land. Withrow v. Smithson, 37 W. Va. 757,17 S. E. Rep. 316.
Lien of Decree.—A decree in chancery, equally with a judgment at law, creates a Hen on lands. Scriba v. Deane, 1 Brock. (U. S.) 166; Lee v. Swepson, 76 Va. 173; Parker v. Clarkson, 4 W. Va. 407. See mono-graphic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
t. Docketing of Judgments— A judgment is not a Hen on real estate as against subsequent purchasers for value and without notice, unless it is docketed in the mode and within the time prescribed by statute. Va. Code 1873, ch. 182, §8; W. Va. Code, ch. 139, § 7; Gurnee v. Johnson, 77 Va. 712; Duncan v. Custard, 24 W. Va. 737; Renick v. Ludington, 14 W. Va. 367; Hill v. Rixey, 26 Gratt. 72; Gordon v. Rixey, 76 Va. 694. See also, Bankers’ Loan, etc., Co. v. Blair, 99 Va. 606, 39 S. E. Rep. 231; Va. Law Reg., April 1902.
But the protection to purchasers for valuable consideration without notice of a judgment given them under sec. 7, ch. 139 of the W. Va. Code, only extends to the land so conveyed to such purchaser, it being Hable to the satisfaction of judgments docketed according to law and to such judgments only. Renick v. Ludington, 14 W. Va. 367; McClaskey v. O’Brien, 16 W. Va. 792.
Where two judgments were recovered, one in 1868, and the other in 1869, and the one last recovered is docketed in 1870, while the one first obtained is docketed in 1871; but both are docketed before a contract in writing or deed to a purchaser for valuable consideration without notice is recorded, the judgment first recovered though last docketed had priority. Anderson v. Nagle, 12 W. Va. 98.
Where a valid judgment has been docketed, it is notice which will affiect all subsequent purchasers of land from any of the defendant's in the judgment. Redd v. Ramey, 31 Gratt. 265; Shari tz V. Moyers, 99 Va. 519, 39 S. E. Rep. 166.
Subsequent Recorded Mortgages.—And undocketed judgments are subject to subsequent recorded mortgages. Duncan v. Custard, 24 W. Va. 730.
Undocketed Deeds.—A deed executed before judgments have been obtained against the grantor, under which the purchaser has been put in possession and paid the purchase money, but which was not recorded until after judgments were obtained, is void as against such creditors, and the land conveyed thereby is subject to satisfy the judgments. McClure v. Thistle, 2 Gratt. 183; Campbell v. Nonpareil, etc., Co., 75 Va. 291; Murdock v. Wells, 9 W. Va. 552. See also, Trout v. Warwick, 77 Va. 731; Davis v. Landcraft, 10 W. Va. 718.
Prior Unrecorded Deed of Trust.—A prior deed of trust unrecorded is null and void as to a subsequent judgment; and the judgment is a lien upon the land embraced in the deed. McCance v. Taylor, 10 Gratt. 580. See Hill v. Rixey, 26 Gratt. 72.
If the owner of a tract of land executes a deed of trust, conveying his land to a trustee to secure certain debts, and afterwards a judgment is rendered against him, which is duly docketed, and he then makes a contract with a third party to advance for Mm the amount secured by the deed of trust, and to secure such advance, mortgages this land to the person advancing the money for him, and such mortgagee pays off the debts secured by the deed of trust, it would be a complete satisfaction of these debts both in law and equity; the deed of trust becomes wholly inoperative, and the mortgagee cannot be subrogated to the rights of the cestui gue trust *247and have the deed of trust kept alive for his benefit, thus securing priority over the judgment debtor. Hoffman v. Ryan, 21 W. rVa. 415.
Statutory Provisions.—The act of March 3, 1843, Sess. Acts 1842-3, p. 51, does not apply to purchasers before the passage of the act. As to such the lien of a prior judgment is valid though not recorded. McGance v. Taylor, 10 Gratt. 580.
The act of March 2,1866, Sess. Acts, 1865-66, p. 191, ch. 77, sec. 1, “to preserve and extend the time for the exercise of certain civil rights and remedies,” is retrospective in its operation, and applies in favor of a judgment creditor as to the docketing of his judgment. Hill v. Rixey, 26 Gratt. 72.
Stay Law.—But the act of March 2,1866, Sess. Acts 1865-66, ch. 69, p. 180, called the stay law, does not apply to a judgment creditor to relieve him from the necessity of docketing his judgment. Hill v. Rixey, 26 Gratt. 72.
Docketing as Affecting the State.—President Johnson, in a dictum, in Hoge v. Brookover, 28 W. Va. 304, was of opinion that the act requiring judgment liens to be docketed in order to preserve them as against purchasers of the property, to which they are attached, does not affect a judgment in favor of the state. See Va. Law Reg., April 1902.
As between Judgment Debtor and Creditor.—Moreover, it has been held that, as between the judgment creditor and debtor the statute requiring the judgment to be docketed has no application or force. Renick v. Ludington, 14 W. Va. 367; Grantham v. Lucas, 24 W. Va. 231; McClaskey v. O’Brien, 16 W. Va. 792.
Actual Notice or Knowledge of Unrecorded Lien.—
Previous actual notice or knowledge by a subsequent purchaser’s agent or trustee of a prior unrecorded lien on his real estate, will affect the creditor, provided the notice or knowledge was imparted or given to the agent in the same transaction, unless one transaction is closely followed by and connected with the other. Morrison v. Bausemer, 32 Gratt. 225; Johnson v. Bank, 33 Gratt. 473.
Lands in Another County.—A purchaser of land at a judicial sale in the county where the land lies, under a decree of the circuit court of that county, cannot be affected by constructive notice of a judgment obtained in another county, which is not recorded in the county where the land is situated, before the confirmation of the sale; actual notice or knowledge of the judgment must be brought home to the purchaser before the payment of the purchase money. Logan v. Pannill, 90 Va. 11, 17 S. E. Rep. 744.
Indexing Unnecessary.—it has been decided that indexing is not a necessary part of the docketing of a judgment, but the land is subject to the lien of the judgment without it. These decisions, however, were rendered on account of the particular wording of the statutes. Granite Co. v. Clarke, 28 Gratt. 617; Calwellv. Prindle, 19 W. Va. 604.
Mistake as to Name of Party to Judgment.—Where the plaintiff obtains judgment against Mrs. T. Frank 5., which is indexed in the name of Mrs. T. Frank 5., on July 31, 1891, but in 1897 is indexed in the judgment lien docket as against May M. S. such docketing and indexing of the judgment are not constructive notice to a purchaser that the judgment constituted a lien on the property of May M. S. in the absence of evidence that the purchaser had actual knowledge of the judgment or knew that Mrs. T. Frank S. and May M. S. were the same persons. Bankers’ Loan & Investment Co. v. Blair, 99 Va. 606, 39 S. E. Rep. 231.
Authenticated Copy of Abstract.—An authenticated copy from the recorder’s docket of an oifieia] abstract of a j udgment docketed under the provisions of the 3d and 4th sections of chapter 139 of the Code of 1868 of West Virginia, is evidence that such abstract was docketed, and when, and of notice to purchasers of lands upon which the alleged judgment is claimed to be a lien, when the existence of such judgment is properly proved; but where the judgment is put in issue, ordinarily, an authenticated copy of such abstract, as docketed by the recorder, will not be received as proof of the judgment and dispense with the necessity of producing a properly authenticated copy of the judgment. Dickinson v. Railroad Co.; 7 W. Va. 390; Anderson v. Nagle, 12 W. Va. 98.
Purpose of Docketing.—-The docketing of a judgment is an act to be done to preserve or prevent the loss of a civil right or remedy, within the meaning of the acts of March 4, 1862, acts of 1861-2, ch. 81, and of March 2,1866, Code of Va. 1873, ch. 146, §§ 6 and 7, pp. 998-99. And therefore in computing the time within which a judgment is required by §8, ch. 186 of Va. Code of 1860, to be docketed, in order to preserve the lien of such judgment against purchasers, the period between the 17th of April, 1861 and the 2d of March 1866 is not to be computed as a part of such terms. Borst v. Nalle, 28 Gratt. 423.
Docketing Creditor’s Privilege Not Duty.—To docket his judgment is a creditor’s privilege, not his duty. If he fails to docketit, he may lose his lien on the real estate aliened to a purchaser for value without notice. Gurnee v. Johnson, 77 Va. 712.
Docketing, Conclusive Notice to AH —The docketing of a judgment is constructive but conclusive notice to all the world of the lien of such judgment. Citizens’ Nat. Bank of Charlottesville v. Manoni, 76 Va. 802.
4. Interest Subject to Lien.
Real Estate.—A judgment creditor has a legal lien on the lands of his debtor, and has a right to rest on that lien without pursuing his debtor’s personalty. Blakemorev. Wise, 95 Va. 269, 28 S. E. Rep. 332.
Judgment Regarded as Lien in Chancery.—In equity, judgments are liens on the whole of the debtor’s equitable estate; and the whole is first to be applied to the elder judgment, then the whole of the residue to the junior judgment; and in neither case is only a moiety to be applied to their satisfaction. Haleys v. Williams, 1 Leigh 140,19 Am. Dec. 743. See Buchanan v. Clark, 10 Gratt. 164; Withers v. Carter, 4 Gratt. 407; Parrill v. McKinley, 6 W. Va. 67.
For a judgment creditor has a lien in equity on the equitable estate of the debtor, in like manner as he has a lien at law on his legal estate. Coutts v. Walker, 2 Leigh 268; Michaux v. Brown, 10 Gratt. 612.
Equitable Interest—Rule in Equity, at Law.—A judgment creditor, who has recovered judgment against the eestui que trust, under a deed of marriage settlement to a trustee, cannot, while the annuitant is still living, subject such equitable interest, at law, to the satisfaction of his debt, but such equitable interest is bound by the judgment in equity, which will apply it to the satisfaction of the debt. Coutts v. Walker, 2 Leigh 268.
Partial Payment for Land.—Where a party purchases land, and pays a part of the purchase money, but fails to pay the balance, whereby the land is resold, he has an equitable interest in the land, *248■which is liable to a judgment subsequently obtained against him by another party, on a debt existing against the delinquent purchaser at the time he made them partial payment on the land. Davis v. Vass CW. Va.),35S.E. Rep. 826.
Unrecorded Assignment—Subsequent Judgment.— Where a person has an equitable title to land under an executory written contract, and by written assignment transfers it to another, which assignment is not recorded, and a judgment goes against the assignor, the assignment is void as to such judgment, and the equitable right to the land under the contract and assignment is sub j ect to the j udgment, because of failure to record the assignment. Damron v. Smith, 37 W. Va. 580,16 S. E. Rep. 807. ■
Equity of Redemption.—A judgment is alien upon an equity of redemption in laud; and will be preferred to a subsequent purchaser of the equity of redemption not having the legal title. And the lien of the judgment extends to the whole equity of redemption. Michaux v. Brown, 10 Gratt. 612; Hale v. Horne, 21 Gratt. 11'2.
Judgment Subsequent to Deed of Trust.—A creditor, whose judgment is subsequent to a deed of trust on the debtor’s laud, has only a lieu on his equity of redemption, and cannot have the deed of trust enforced, and the laud sold to pay the debts thereby secured, until default. Wytbeville Ice Co. v. Frick, 96 Va. 141, 30 S. E. Rep. 491; Shurtz v. Johnson, 28 Gratt. 657, and note-, Wise v. Taylor, 44 W. Va. 492, 29 S. E. Rep. 1003.
Equity of Redemption First Liable.—The equity of redemption in land conveyed in trust by a j udgment debtor must first be sold to satisfy a judgment before recourse can be had to aliened lands. McClung v. Beirne, 10 Leigh 394; Michaux v. Brown, 10 Gratt. 612. See Buchanan v. Clark, 10 Gratt. 164.
Damages on Dissolution of Injunction.—The damages on the dissolution of an injunction to a judgment become, as to the party obtaining it, a part of the judgment, and are embraced in the lien of the judgment upon the equity of redemption. Michaux v. Brown, 10 Gratt. 612.
Lien on Curtesy during Wife’s Life.—where property which constitutes a wife's separate estate is conveyed by a deed in which the husband unites, a judgment against bim does not constitute a lien on the husband’s estate by curtesy in such property, since during the wife’s life the husband had no interest in the property to which the judgment could attach. Bankers’ Loan and Investment Co. v. Blair, 99 Va. 606, 39 S. E. Rep. 231. See-mono-graphic note on “Curtesy.”
Interest of Vendee.—Where a party by parol contract conveys property to another, under which the grantee takes possession and holds the property, and pays the purchase money, it will be unaffected by judgment recovered before a deed, made by the grantor to the grantee, is docketed, and the judgment is not a lien on the land, it being well settled that parol contracts are riot embraced in the meaning of the registration acts, Va. Code 1873, ch. 182, § 67. Long v. Hagerstown Agrie., etc., Co., 30 Gratt. 665; Burkholder v. Ludlam, 30 Gratt. 255; Floyd v. Harding, 28 Gratt. 401; Withers v. Carter, 4 Gratt. 407; Marling v. Marling, 9 W. Va. 79; Hurt v. Prillaman, 79 Va. 257; Powell v. Bell, 81 Va. 222.
So, where the purchasers under a parol contract, take actual, visible, and notorious possession and pay the purchase moneyin full before notice of the judgment, a subsequent judgment against the vendor of the land, before the deed is recorded. creates no lien thereon. Brown v. Butler, 87 Va. 62i, 13 S. B. Rep. 71. See also, Anderson v. Nagle, 12 W. Va. 98.
A purchaser of laud by a parol contract, which has been so far executed as to vest the right to compel his vendor to execute the parol contract in a court of equity, has an equitable right in the land so purchased, which a court of equity will fully protect against the lien of a subsequent judgment creditor of his vendor. Snyder v. Martin, 17 W. Va. 276; Pack v. Hansbarger, 17 W. Va. 313; Snyder v. Botkin, 37 W. Va. 355, 16 S. B. Rep. 591; Young v. Devries, 31 Gratt. 304.
Where a party sells land, by a verbal contract, to another, without receiving the purchase price, and subsequently becomes surety for his vendee, whereby the vendee agrees to allow his vendor to retain the legal and equitable title to the land until he pays the purchase money and until his liability as surety is discharged, which agreement is not recorded, and later the vendee becomes a bankrupt, it was held that as against the other judgment creditors of the vendee (bankrupt) the agreement between the vendor and vendee is valid though not recorded, and that they only have the equities of the vendee against the vendor. Coffman v. Niswander, 26 Gratt. 737.
Parol Contract Must Be Certain and Definite.—But in order that an equitable right held by a bonaMe purchaser, under a parol contract, who has paid the purchase money arid received possession, may be preferred in equity to the liens of judgment creditors subsequently acquired against the vendor, the parol contract relied on must be certain and definite in its terms, and sustained by satisfactory proof. Hurt v. Prillaman, 79 Va. 257; Floyd v. Harding, 28 Gratt. 401; Wright v. Pucket, 22 Gratt. 370.
Adverse Possession for Ten Years.—When the conveyance is by an unrecorded deed, and the vendee has held the property adversely for the period of ten years, before a judgment is recovered against the grantor, the land cannot thereafter be subj ected to the lien of such judgment. As soon as such deed is made and delivered, though unrecorded, the holder thereunder will be adverse to the world. Parkersburg Nat. Bank v. Neal, 28 W. Va. 744.
Lands Purchased by Debtor under Executory Contract.—A judgment creditor has no lien on land which his debtor has purchased under an executory contract of sale, where the contract is set aside because of misrepresentation by the vendor, or because of default of the debtor in making stipulated payments, and it is immaterial whether the contract was set aside because of fraud in its procurement or the failure of the vendee to comply with his contract. Nelson v. Turner, 97 Va. 54, 33 S. E. Rep. 390.
When a Lien on Lands in Purchaser’s Hands.—On the other hand, a judgment is a lien on the lands of the debtor after they pass into the hands of bona Me purchasers, if at the date of the judgment they were owned by the debtor. Rodgers v. McCluer, 4 Gratt. 81.
injunction.—A judgment, moreover, is a lieu upon land in the hands of a purchaser, though at the time of the conveyance execution upon the judgment was suspended by an injunction. And the lien exists though the judgment was not docketed, the purchaser having had notice thereof. Craig v. Sebrel), 9 Gratt. 131. See Hutsonpiller v. Stover, 12 Gratt. 579.
Judgments Recovered in Decedent’s Lifetime.—The *249judgment obtained during the life of an intestate is a lien upon the lands in the hands of his heirs for the payment thereof, and is entitled to priority of payment out of the proceeds of the sale thereof over a simple contract creditor, who acquired no equal or superior lien (or his debt upon the realty during the life of the debtor. Laidley v. Kline, 8 W. Va. 218.
Judgment against Administrator Not Lien.—But the judgment obtained by a creditor against the administrator is not a judgment lien on the realty of the Intestate. Laidley y. Kline, 8 "W. Va. 218; Woodyard v. Polsley, 14 W. Va, 211.
Judgment Confessed by Administrator d. b. n., No Lien.—A judgment confessed by an administrator de bonis non, is no lien upon the lands of the intestate. And a decree showing upon its face, that it was enforcing such a judgment as a lien against such land, may be reviewed aDd reversed upon a proper bill of review brought for that purpose by the heirs. Custer y. Custer. 17 W. Va. 113,
Homestead.—While the lien of a judgment which attaches before a homestead in the land is claimed, cannot be enforced during the existence of the homestead, yet it will have priority on the land after the homestead is abandoned over a deed of trust executed during the occupancy of the land as a homestead. Blose v. Bear, 87 Va. 177, 12 S. E. Bep. 294.
Subsequently Acquired Realty.—The lien of a judgment extends to all the land owned by the judgment debtor at the date thereof, or which may have been afterwards acquired. McClung v. Beirne, 10 Leigi 394; Brockenbrough v. Brockenbrough, 31 Gratt. 580, and note.
So long as a judgment may be revived, it is a lien upon a moiety of all the lands owned by the debtor at the date of the judgment, or which are afterwards acquired, in whosesoever hands they may have come. Taylor v. Spindle, 2 Gratt. 44.
The lien of a judgment will attach to after-acquired lands of a debtor. And such lands acquired and liened by the debtor subsequent to the rendition of a judgment, are within the terms and reason of sec. 10. ch. 186, Code of W. Va. 1860. Handly v. Sydenstricker, 4 W. Va. 605.
Judgments for Honey, — Judgments for money, whether docketed or not, bind the nnaliened lands to the debtor; certainly those owned by him at the date of the judgments, it may be. those subsequently acquired in the order in which the judgments are recovered, and the same is true of decrees for money; and so. though not docketed, they bind the debtor’s lands subsequently aliened to a purchaser with notice, even though he be a purchaser for value; but unless docketed, they are not liens on lands subsequently aliened to bona fide purchasers for value without notice, and a trustee in a deed of trust given to secure a debt and the creditor secured are purchasers for value within the meaning of the registration law. Rhea v. Preston, 75 Va. 757; Hill v. Bixey, 26 Gratt. 72, and note.
Personal Estate.—if a judgment creditor (without suing out execution) flies a bill in chancery, to get satisfaction out of the real and persona] property of the debtor, the whole being conveyed by a deed of trust, executed during the terms in which the judgment was obtained, and providing that the property conveyed may be sold by the trustees to answer the purposes of the trust, the court ought to dismiss the bill as to the personal property, without prejudice to the plaintiff’s right, if any, to the residuary money resulting to the debtor, from the sale of that property, after satisfying the deed; but should direct the trustees to sell the lands, and out of the proceeds thereof, to satisfy the judgment in the first place, and afterwards perform the trusts reposed in them by the deed. Mutual Assur. Society v. Stanard, 4 Munf. 539.
Purchase Honey Bonds.—It was held in Logan v. Pannill, 90 Va. 11.17 S. E. Bep. 711, that a judgment not docketed in the county wherein the land of the debtor lies, and is sold under a decree in partition, does not, upon being docketed in such county, become a lien upon bonds for the purchase money in the hands of the assignee who has no notice of the j udgmen t, though title to the land was retained by the prior owners as security for the payment of the bonds, because the bonds are personalty, and not subject to the lien of any judgment when no execution is sued out upon them.
So also, a judgment is not a lien on notes given by a purchaser for unpaid purchase money for the land on which the judgment is a lien, nor do such notes, together with the unaliened lands of the judgment debtor, constitute a common fund for the payment of the judgment. Blakemore v. Wise, 95 Va. 269, 28 S. E. Rep, 332.
Equity Jurisdiction.—Section 8 of chap. 139, W. Va. Code 1868, confers upon courts of equity, jurisdiction and authority to enforce judgment liens against the lands of the judgment debtor, whether he has personal property or estate, out of which the judgment might be made by process of execution, or not. Marling V. Robrecht, 13 W. Va. 440; Pecks v. Chambers, 8 W- Va. 210.
Lands Exchanged—Failure of Grantee to Record. -If upon an exchange, the parties executed mutual conveyances, bnt the grantee of one tract fails to record his deed, judgment against the grantor binds the land so given in exchange as well as that received in exchange, the rights of the parties are not affected by the character of the consideration for the unrecorded deed. Price v. Wall, 97 Va. 334, 33 S. E. Bep. 599.
Principal’s Lands—Sureties Secured.—A judgment against the principal debtor and sureties iu the debt is a lien on the land of the principal, although the sureties are secured by a deed of trust. Kent v. Matthews. 12 Leigh 573.
Damages and Costs.—A judgment lien includes not only the amount of the original judgment, but also the damages and costs in the court of appeals. McClung v. Beirne, 10 Leigh 394: McCance v. Taylor, 10 Gratt. 586.
5. Amount on Lien.—One who purchases land subject to a judgment lien is not affected by a subsequent judgment against the same land for an amount in excess of such lien to which he was not a. formal party and in which the true amount of the first judgment lien was not litigated, and he may satisfy such lien by the payment of the amount called for by the judgment under which he purchased. Bensimer y. Pell, 35 W. Va. 15, 12 S. E. Bep. 1078.
6. Territorial Extent.
Lands in Another County.—Where a creditor has judgments in one county against persons who have an interest in lands in another county, and knows of the pendency of a suit to partition such lands, and he does not intervene in such suit or record his judgments in the latter county till after a sale of the land is confirmed, and does not give the purchaser actual notice of his judgments before the *250purchase money is paid, he cannot subject the land to the payment of such judgments. Logan v. Pannill, 90 Va. 11,17 S. E. Rep. 744.
Where a judgment was recovered in the county court of Monroe county, W. Va., in March 1861, against three debtors, W., S. and &., and the latter lived in Bath county, but during the war, died, leaving real estate in Bath county, it was held that the judgment constituted as between the parties thereto, a lien on the real estate in Bath county, whether the judgment was docketed or not, and the lien of the judgment on the lands of G. in Bath county, was neither lost nor impaired by reason of the division of the state of Virginia into two states, and the falling of the county of Monroe into the state of West Virginia, moreover, the certificate of the clerk of the circuit court of Monroe county, West Virginia, of the records of which court the records of the former county court of Monroe form apart, is proper evidence of the judgment. Gate-wood v. Goode, 23 Gratt. 880.
7. Commencement and Precedence of Lien.—The statutes give a direct, positive, express, and absolute lien of a judgment against all the lands of or to which the debtor shall be possessed or entitled at or after the date of such judgment, or if it was rendered in court, at or after the commencement of the terms, at which it was so rendered; and such lien continues until it is in some legal manner discharged. Code West Va., ch. 139, § 5; Code Va. 1860, ch. 186, § 6; Renick v. Ludington, 14 W. Va. 367; McClaskey v. O’Brien, 16 W. Va. 792; Duncan v. Custard, 24 W. Va. 730; Anderson v. Nagle, 12 W. Va. 98; Borst v. Nalle, 28 Gratt. 423; Gurnee v. Johnson, 77 Va. 712.
Judgment liens in their priorities should be fixed according to the dates of the judgments. Grant-ham v. Lucas, 24 W. Va. 231.
Forfeited Forthcoming Bond.—A forfeited forthcoming bond has the force of a judgment, so as to create a lien upon the lands of the obligors, only from the time the bond was returned to'the clerk’s office. Cabell v. Given, 30 W. Va. 760, 5 S. E. Rep. 442; Land Co. v. Calhoun, 16 W. Va. 361; Jones v. Myrick, 8 Gratt. 210; Lipscomb v. Davis, 4 Leigh 305.
Though a forthcoming bond is forfeited, and not quashed, yet in equity the lien of the original judgment still exists; and if the obligors in the bond prove insolvent, so that the debt is not paid, a court of law will quash the bond so as to revive the lien of the original judgment. Jones v. Myrick, 8 Gratt. 179.
Where the only evidence of the time a forthcoming bond was returned to the clerk’s office was an indorsement as follows; “Notice proved and docketed in court, 10 October, 1868, and mo. to quash,” —such bond would have the force of a judgment from the date in the endorsements, and the requirement by the statute (Code W. Va. 1860, ch. 189, sec. 2) that the clerk of the court shall indorse on a forfeited forthcoming bond, “the date of its return,” is directory. Cabell v. Given, 30 W. Va. 760, 5 S. E. Rep. 442.
Lien Not Divested by Cancellation of Deed of Trust.— A judgment becomes a lien on property conveyed to the judgment debtor as a trustee for his wife, where the husband, who was insolvent, paid the consideration, and such is not divested by a return and cancellation of the deed unrecorded. Kline v. Triplett, 2 Va. Dec. 429, 25 S. E. Rep. 886.
Priority of Judgment Lien Limited to Amount of Judgment.—A purchaser of land which is subject to the lien of a judgment takes it subject only to the amount called for by the judgment, and it is not liable to the judgment, increased by usury, under a subsequent agreement between the creditor and judgment debtor. Bensimer v. Eell, 35 W. Va. 15,12 S. E. Rep. 1078.
Whether Lien Attaches to Fund Received from Sale.— Where a judgment creditor has made an election to receive part of his debt out of the proceeds from the sale of lands on which his judgment was a prior lien, he cannot afterwards enforce his lien against the land. Efflnger v. Kenney, 92 Va. 245, 23 S. E. Rep. 742.
Judgment against Sheriff—When Lien Commences.— A judgment against a sheriff is, under ch. 195 of W. Va. Code of 1872, a lien from the time he is served with notice or summons pursuant to which the judgment is afterwards rendered, and is superior to a deed of trust executed by the sheriff after such service of summons. Hoge v. Brookover, 28 W. Va. 304.
Order of Subjection of Lands—Lands Retained by Debtor.—If the judgment debtor retains sufficient lands to pay the judgment they should be first subjected. Blakemore v. Wise, 95 Va. 269, 28 S. E. Rep. 332.
Equity requires, where a judgment lien is sought to be enforced, that the lands owned by the debtor at the time of the attempt to enforce, should be applied to the discharge of the judgment before resorting to land upon which the judgment is, also a lien, then in the hands of his alienee. Handly v. Sydenstricker, 4 W. Va. 605.
If a judgment is obtained which is a lien on the lands of the judgment debtor, and the judgment debtor sells and conveys part of it, generally the judgment creditor should be required in the first instance to exhaust the unsold portion. McClaskey v. O’Brien, 16 W. Va. 791.
If the first alienee of a portion of the land liable to judgment liens fails to put his deed of record, and a subsequent alienee, who bought another portion of the lands, liable to the judgment liens, puts his deed of record, still the lands of such last alienee must be held liable for such judgment liens before the lands of the first alienee. Renick v. Ludington, 20 W. Va. 511.
But if the lands owned by the debtor are not sufficient to satisfy the judgment lien, then the real estate last owned and aliened is liable, until it is fully satisfied. In the suit for the purpose of enforcing the lien, unless it shall appear that the land first liable would be sufficient to discharge it, it would not be error to decree or advertise together the sale of all the lands upon which the lien existed, and then proceed to sell it in the order in which it was liable until a sufficient sum is realized to pay ofi the suit. Handly v. Sydenstricker, 4 W. Va. 605.
Residue of Land Unaliened First Liable.—Where some of the land conveyed by a judgment lien is included in a deed of trust, subsequent to the judgment and the residue of it is not, such residue, not included, should first be sold to satisfy the prior judgment, and if insufficient to discharge the judgment, then the lands included in the deed of trust should be sold, and so much of the proceeds thereof, as, with the proceeds of the land not included in the deed, amount to a moiety of the whole, should be applied to the satisfaction of the judgment. If there is another judgment having priority over the deed of trust, the proceeds of the. other moiety of the land sold, included in the deed *251of trust, should be applied to satisfy it. Buchanan v. Clark, 10 Gratt. 164.
Liens of Undocketed Judgments—Proceeds of Land Unsold.—Various judgments are rendered against a debtor, and the junior judgments are docketed, and the senior undocketed, and in this state of things the debtor conveys a part of the land to a purchaser for valuable consideration without notice of the undocketed judgments, and the docketed judgment liens are not discharged, the liens of the undocketed judgments must be discharged out of the proceeds of the unsold lands, although the effect might be to require the holders of the docketed judgment to resort in whole or in part to the land so conveyed for the satisfaction of their judgment liens. Renick v. Ludington, 14 W. Va. 867; McClaskey v. O’Brien, 16 W. Va. 792. See also, Duncan v. Custard, 24 W. Va.730.
Priority over Unrecorded Deed.—A judgment creditor, whose judgment has been duly docketed, and who has brought suit to enforce the lien on the judgment debtor’s land, is entitled to priority over a grantee of the judgment debtor claiming under a deed, not recorded until after the commencement of the suit, and after the expiration of twenty months from its execution and acknowledgment; since such a deed is void, under Va. Code, § 2465, as to creditors whose rights have attached before it was recorded. Robinson v. Bank. 1 Va. Dec. 769, 17 S. E. Rep. 739.
Priority of Judgment over Purchase Honey Notes.— Also judgments recovered against the vendor of land and docketed before his deed of conveyance to the purchaser is admitted to record, have priority over the notes given by such purchaser for deferred payments on the land, though such notes are secured by a deed of trust made contemporaneously with the deed of conveyance to him, and duly recorded before the recovery of such judgments. Jones v. Byrne, 94 Va. 751, 27 S. E. Rep. 591.
Priority of Trust Deed over Judgment.—Where a party conveys land in trust to secure the payment of a debt, and subsequently sells lands he holds as trustee for his wife and children to pay the debts, the wife and children have an implied trust in their favor on the tract of land deeded to secure the payment of the debt, which refers back to the date of the trust deed, and has priority over judgment creditors who recovered judgments between the recording of the deed and the payment out of the proceeds of the land held by him as trustee for his wife and children, even though the judgments were recovered before the payment by the husband. Warwick v Warwick, 31 Gratt. 70.
Priority of Vendor’s Lien.—Where the vendor’s lien is retained in a contract for the sale of land, though the contract is not recorded, the vendor’s lien has priority to that of the judgment creditors of the vendee. Shipe v. Repass, 28 Gratt. 716.
As between Principal and Surety.—In a suit to enforce judgment liens on the lands of the principal debtor and his sureties, the principal’s lands should be exhausted before subjecting that of the sureties. Wytheville Ice Co. v. Frick, 96 Va. 141. 30 S. E. Rep. 491; Womack v. Paxton, 84 Va. 9, 5 S. E. Rep. 550; Stovall v. Bank, 78 Va. 188. See Horton v. Bond, 28 Gratt. 815; Gentry v. Allen, 32 Gratt. 254. See Ross v. M’Lanchlan, 7 Gratt. 86.
Where judgment is rendered against a principal and his sureties, which is paid by the sureties, the judgment is a lien in favor of the sureties prior to a subsequent trust deed, although the sureties have permitted the proceeds of other property conveyed by their principal in trust for them to be applied in satisfaction of another judgment against their principal. Kent v. Matthews, 12 Leigh 573.
As between Two Trust Creditors of Same Debtor.— As between two trust creditors of the same debtor, secured on separate properties, a prior judgment lien must be first paid out oí the proceeds of the property subject to the second trust, to the relief of the property subject to the first, both by reason of the statute and the doctrine of subrogation. First Nat. Bank v. Simms (W. Va.), 38 S. E. Rep. 525. See Woods v. Douglas, 46 W. Va. 657, 33 S. E. Rep. 771; Ball v. Setzer, 33 W. Va. 444, 10 S. E. Rep. 798.
Judgments Superior to Wife's Trust Deed.—Where during the pendency of a suit against an insolvent husband, instituted for the purpose of obtaining a judgment on a note executed by him, the husband executes a deed of trust on his real estate to a trustee, to secure to his wife the payment oí a sum of money which she claims she had loaned him, which he had used in his business, and which sum was barred by the statute of limitations when the trust was executed, and amounted to nearly the value of the real estate, such trust deed cannot, as alien, take precedence over judgments obtained by the bona Me creditors of the husband on debts created before the trust was executed, on the unsupported testimony of the husband and wife. Miller V. Cox, 38 W. Va. 747, 18 S. E. Rep. 960.
Specific Liens Paid First.—The proceeds of lands of a judgment debtor sold by a commissioner must be applied to the satisfaction of specific liens against such lands according to their respective priorities, and a j udgment subsequently rendered cannot be made a general lien on such lands until the specific liens are paid. Hutton v. Lockridge, 22 W. Va. 159.
Equitable and Legal Estates on Same Footing.—As to the order of subjecting lands to a judgment lien, those conveyed by an equitable title stands on the same footing as those conveyed by a legal title. Rodgers v. McCluer, 4 Gratt. 81.
a. Lands Subject to Lienin Inverse Order of Alienation. —Lands subject to a judgment lien, parts of which have been aliened at different times, are liable to the satisfaction of the lien in the inverse order of alienation. McClung v. Beirne, 10 Leigh 394, overruling Beverley v. Brooke, 2 Leigh 425; Harman v. Oberdorfer, 33 Gratt. 497, and note; Nelson v. Turner, 97 Va. 54, 33 S. E. Rep. 390; Hutton v. Lockridge, 22 W. Va. 159; Rodgers v. McCluer, 4 Gratt. 81; Alley v. Rogers, 19 Gratt. 389; Jones v. Phelan, 20 Gratt. 229; Jones v. Myrick, 8 Gratt. 179; Brengle v. Richardson, 78 Va. 406. See Londons v. Echols, 17 Gratt. 20.
“The law is now well settled that where land which is subject to the lien of a judgment or other incumbrance, is sold in parcels to different persons by successive alienations, it is chargeable in the hands of the purchaser in the inverse order of such alienations. This rule is not only established by the decisions of courts of equity, but in Virginia it is prescribed by statute. Harman v. Oberdorfer, 33 Gratt. 497.” Per Staples, J. Whit-ten v. Saunders, 75 Va. 567; Renick v. Ludington, 20 W. Va. 567. See also, Schultz v. I-lansbrough, 33 Gratt. 567; Miller v. Holland, 84 Va. 652, 5 S. E. Rep. 701.
Lands Primarily Liable.—Lands being liable for judgments in the inverse order of alienation, those primarily liable should be first subjected before proceeding against the purchaser whose land is *252only secondarily liable. Nelson y. Turner, 97 Va. 54, 33 S. E. Rep. 390.
Oldest Unpaid General Lien.—The holder of the oldest unpaid judgment lien is entitled to be first paid out of the property of the debtor, where his lien is a general one. Max Meadows Land & Imp. Co. v. Mc-Gavock, 98 Va. 411, 36 S. E. Rep. 490.
Parties to Suit Subsequent to Order for Account of Liens.—Where a judgment creditor brings suit to enforce his lien, and after an account of liens is ordered to be taken by the commissioner and other liens are proved, several other judgment creditors become parties to the suit and prove their liens, they are entitled to have the lands sold for their relief in the order of their respective merits and rights, and each is entitled to relief in the cause according to the merits of his cause, and the lands of the debtor are liable in the inverse order of alienation under Va. Code 1873, ch. 182, § 10. Brengle v. Richardson, 78 Va. 406.
Effect of Release or Waiver of Lien on One Parcel.—A judgment creditor having, by his contract, waived or lost his right to subject the land first liable to satisfy his judgments, is not entitled to subject the lands next liable for the whole amount of his judgment but only for the balance after crediting thereon the value of the land first liable. Jones v. Myrick, 8 Gratt. 179.
Release of Lands Aliened by Debtor.—The lands aliened by the debtor constitute a secondary fund for the payment of the judgment, and neither a release of these lands, nor the failure to subject certain notes for unpaid purchase money on land is prejudicial to subsequent judgment creditors who obtained their j udgments after the alienation, but before the release by the first judgment creditor. Blakemore v. Wise, 95 Va. 269, 28 S. E. Rep. 332.
Effect of Release, by Prior Party of Property Subject to Second Deed.—If a prior judgment lienor releases the property subject to a second deed of trust, the proceeds of which are amply sufficient to satisfy his judgment lien, he cannot enforce paymentof such judgment lien out of the property subject to a first deed of trust until such latter trust is fully satisfied. First Nat. Bank v. Simms (W. Va.), 38 S. E. Rep. 525.
A defendant bought a tract of 166 acres of land for $1,400, giving a deed of trust to secure the purchase money. He afterwards paid $800 in cash, in consideration of the vendor’s releasing 66 acres of the land, and agreeing to look to the other 100 acres for payment of the balance of $600, for which the defendant executed new notes. These were assigned to the plaintiff, in whose favor the defendant afterwards confessed judgment thereon. Held, that the lien of this judgment extended to the defendant’s interest in the whole tract of 166 acres, notwithstanding the release of part of it from the vendor’s lien, of which the plaintiff had no notice. McFarland v. Fish, 34 W. Va. 548,12 S. E. Rep. 548.
Failure to Record—Voluntary Release.—Where a grantee of land fails to record his deed until after a judgment is obtained against the grantor, the lien of the judgment plaintiff will not be postponed, as to other land of the grantor, to the liens of judgments rendered after such deed was recorded, because such judgment plaintiff voluntarily released his lien on the land conveyed. Blakemore v. Wise, 95 Va. 269, 28 S. E. Rep. 332.
Effect of Release of One of Several Joint Judgment Debtors,—One of several joint judgment debtors may be proceeded against to enforce the payment of his part of the judgment, where the complainant has released him on the record from all liability for the shares of the other judgment debtors. Moreover, this objection, raised for the first time in an appellate court, comes too late. Preston v. Bank, 97 Va. 222, 33 S. E. Rep. 546.
Lands Sold Contemporaneously.—Where the different parcels of land are sold contemporaneously, they must contribute pro rata to the satisfaction of the judgment. Harman v. Oberdorfer, 33 Gratt. 497.
Voluntary Purchasers of Land Subject to Lien.—It seems that voluntary purchasers of lands subject to the lien of a judgment are personally responsible in equity to the creditors (the goods and chattels of the debtor being exhausted) for half the profits (or so much of half as may be sufficient to satisfy the judgment) jointly and not prorate, notwithstanding they hold tracts of unequal values, and by distinct conveyances. Winston v. Johnson. 2 Munf. 305.
b. HoctHne of Relation.—“At common law, all judgments were, by legal fiction, it is said, supposed to be entered on the first day of the term of the court at which they were recovered. This rule has always prevailed in this state whenever the action, in which the judgment was rendered, was in such condition that it might have been tried, if it had happened to occupy the first place on the docket. And the law, not regarding fractions of a day, the lien of a judgment began by relation at the first moment of the first day of the term. The Mutual Assurance Society v. Stanard, 4 Munf. 539; Coutts v. Walker, 2 Leigh 268; Skipwith v. Cunningham, 8 Leigh 271; Horsley v. Garth, 2 Gratt. 474; Withers v. Carter, 4 Gratt. 407; Jones v. Myrick, 8 Gratt. 179; Brockenbroughv. Brockenbrough, 31 Gratt. 580; Yates v. Robinspn, 80 Va. 475; and Janney v. Stephen, 2 Pat. &H. 11.” Hockman v. Hockman, 93 Va. 455, 25 S. E. Rep. 534.
The lien of a judgment upon the lands of the party relates back to the commencement of the term at which it is obtained. Mutual Assur. Soc. v. Stanard, 4Munf. 539; Jones v. Myrick, 8 Gratt. 179.
Fractions of a Day.—As a general rule the law does not regard fractions of a day; but this rule is departed from in many cases where the purposes of justice require it. Courts would- be very slow to decide that a man by a fiction of law, is to be considered a felon before the conviction has actually taken place. Neale v. Utz, 75 Va. 480.
Judgment by Confession in Vacation.—The lien of a judgment or decree begins with the first moment of the day on which it attaches. If it is a judgment by confession entered in vacation, the lien commences with the first moment of the day of such entry, irrespective of the hour at which the entry was in fact made. Hockman v. Hockman, 93 Va. 455, 25 S. E. Rep. 534.
“By reason of this rule that the whole term is one day, the common-law rule was that a judgment rendered on any day has relation to, and is a judgment of, its first day. This doctrine or rule had always been recognized in Virginia before we had a statute, but it is now embodied in a statute, as regards the effect of a judgment as a lien. Code of W. Va., ch. 139, sec. 5.” Dunn v. Renick, 40 W. Va. 349, 22 S. E. Rep. 66.
Must Be in Condition to Be Heard.—But though a decree or judgment relates to the first day of the term, yet if the case was not ready for hearing or trial, and therefore no judgment or decree could have been given on such first day had it occupied the first place on the docket, it does not relate to the *253Erst day, but has the date of its actual entry of record. Dunn v. Renick, 40 W. Va. 349, 22 S. E. Rep. <56; Yates v. Robertson, 80 Va. 475; First Nat. Bank y. Huntington, etc., Go.. 41 W. Va. 530, 23 S. E. Rep. 792; Withers v. Carter, 4 Gratt. 407; Hockman v. Hock-man, 93 Va. 455, 25 S. E. Rep. 534.
A judgment in any case, fully matured, so that it could be tried on the Erst day of the term, after it had been set for that day, relates to the Erst day of the term, and this rule applies to a judgment on attachment. Smith v. Parkersburg Co-Op. Ass’n (W. Va.), 37 S. E. Rep. 645.
Commencement of Term.-—The commencement of the term to which the lien of a judgment has relation is the last day of the term upon which the court sits. Skipwith v. Cunningham, 8 Leigh 271. See Brown v. Hume, 16 Gratt. 462.
But the term is not considered as commencing on the day appointed by law for its commencement, when in point of fact the court is not held until afterwards. Skipwith v. Cunningham, 8 Leigh 271.
Judgments at Same Time Placed on Equality.—An office judgment confirmed on the last day of a term, and a judgment confessed on the first day of the same terra, must be treated as judgments rendered on the same day, at the same time, and both judgments stand as of the same date; because of the ■well-settled rule which has already been set forth, that the oiEce judgment would relate to the first day of the term, the law taking no notice of the fraction of a day. Brockenbrough v. Brockenbrough, 31 Gratt. 580.
Overreaches All Liens, etc., Entered Thereafter.—“it was the rule of common law (and this rule still obtains in some of the states) that the judgments of courts of record all relate back to the first day of the term, and are considered as rendered on that day, and therefore their lien will attach to the debtor’s realty from the beginning of the term, and it will override a conveyance or mortgage made on the second or any succeeding day although prior to the rendition of the judgment. ” Black, Judgm. 441; Smith v. Parkersburg Co-Op. Ass'n (W- Va.), 37S. E. Rep. 645. See also, Mutual Assur. Soc. v. Stanard, 4 Munf. 539; Coutts v. Walker, 2 Leigh 268.
Overreaches a Deed of Trust.—It is well settled, as a general rule, that the lie-n of a judgment upon the ’land of the debtor relates back to the commencement of the term at which the judgment was obtained, and overreaches a deed of trust on the land executed by the debtor on or after the first day of the term. Skipwith v. Cunningham, 8 Leigh 271; Brown v. Hume, 16 Gratt. 462; Brockenbrough v. Brockenbrough, 31 Gratt. 580, and note.
Under Va. Code, § 3567, providing that a judgment is a lien as of the first day of the term at which it was rendered, a judgment rendered after the recordation of a deed of trust, but at a term which commenced prior to such recordation, is prior to the deed. New South Bldg. & Loan Ass’n v. Reed, 96 Va. 345, 31 S. E. Rep. 514.
Priority over Deed Recorded Same Day.—The lien of a judgment, moreover, has priority over a conveyance recorded on the same day on which the judgment was entered, though the endorsement of the clerk shows that the judgment was, in fact, entered, after the deed was filed for record. Hockman v. Hockman, 93 Va. 455, 25 S. E. Rep. 534.
Relation after Dissolution of Injunction.—Though a judgment is enjoined by a purchaser of land at the time of the purchase, yet, upon the dissolution of the injunction, the lien relates back to the date of the judgment, and so has priority over the equity of the purchaser. Michaux v. Brown, 10 Gratt. 612.
Relation Allowed in Equity and Law.—A judgment has relation to the first day of the term at which it is rendered, and this relation is allowed in equity as well as at law. Coutts v. Walker, 2 Leigh 268.
Reasons for Rule.—This general principle of the common law, like many others, is of such remote antiquity, and so long recognized without dispute, that the reasons and policy on which it was founded are in a great degree left to conjecture. Coutts v. Walker, 2Leigh268; First Nat. Bank v. Huntington, etc., Co., 41 W. Va. 530, 23 S. E. Rep. 792; Smith V. Parkersburg Co-Op. Ass’n (W. Va.), 37 S. E. Rep. 545.
e. Judgments Obtained at Same Time.
Judgments Obtained at Same Time Share Pro Rata.— When the proceeds of lands, on which several judgments, obtained at the same time, are liens, are insufficient to pay them all, they must be paid pro rata. Janney v. Stephen, 2 P. & H. 11.
As between Judgments and Deeds of Trust.—A decree rendered or judgment confessed in vacation operates as a lien upon the first moment of the day on which the decree is rendered or judgment confessed regardless of the time of the day at which it is actually rendered or confessed, and takes precedence over the deed of trust admitted to record during the same day, though in point of fact the deed of trust may have been recorded before the decree was rendered, or the judgment confessed. The law takes no notice of the fraction of the day as to the decree, while the deed, as against subsequent purchasers for value and without notice, and creditors, is only operative from the time it is admitted to record. Hockman v. Hockman, 93 Va. 455, 25 S. E. Rep. 534.
d. Equitable Interests.
Priority of Lien as against Equitable Interest.—Judgment creditors may, in equity, have satisfaction out of the equitable estate of their debtor, in real estate, according to the order of their judgments in point of time, the oldest having priority over the youngest. Haleys v. Williams, 1 Leigh 140, 19 Am. Dec. 743.
Order of Liability of Equity of Redemption. —The equity of redemption in land conveyed in trust to secure debts, is subject to the lien of judgments subsequently obtained in the order of their priority in date. Hale v. Horne, 21 Gratt. 112; Michaux v. Brown, 10Gratt. 612.
Contest between Judgment Creditor and a Purchaser.
—If a j udgment debtor purchases land and procures it to be conveyed to another as the purchaser, and he conveys it in trust to secure a bona. Jide debt, and the creditor is not informed that it has been purchased by the judgment debtor and conveyed to another as the purchaser, the judgment creditor has no lien upon the land for his debt as against the creditor under the deed of trust. Moore v. Sexton, 30 Gratt. 505.
e. Superior Rights of Third Persons— It is well settled that where statute enactments do not interfere, a judgment creditor can acquire no better right to the estate of a debtor than the debtor himself has when the judgment is recovered. He takes it subject to every liability under which the debtor held it, and sub j ect to all the equities which exist in favor of third parties; and a court of equity will limit the lien of the judgment to the actual interest which the debtor has in the estate. Snyder v. Martin, 17 W. Va. 276; Pack v. Bansbarger, 17 W. Va. 313; Snyder v. Botkin, 37 W. Va. 355,16 S. E. Rep. 591; *254Cleavenger v. Felton, 46 W. Va. 249,33 S. E. Eep. 117; Shipe v. Eepass, 28 Gratt. 716, and note; Floyd v, Harding, 28 Gratt 401, and note; Borst v. Nalle, 28 Gratt. 423, and note; Sharitz v. Moyers, 99 Va. 519, 39 S. E. Rep. 166. See Powell v. Bell, 81 Va. 222.
Extent of Lien.—“Nothing is better settled in Virginia than that where statutory enactments do not interfere, only the actual interest of the judgment debtor can be subjected to sale to satisfy judgments against him. Floyd v. Harding, 28 Gratt. 401; Borst v. Nalle, 28 Gratt. 423; Summers v. Darne, 31 Gratt. 800; Coldiron v. Asheville Shoe Co., 93 Va. 364, 25 S. E. Rep. 238; 1 Black, Judgm. sec. 445.” Dingus v. Imp. Co., 98 Va. 737, 37 S. E. Eep. 353. It was held in the latter case, that although the judgment debtor held the legal title to land, yet, as it was charged with a trust; it was paramount to the right of its judgment creditors.
“It has been over and over again decided that the judgment creditor can acquire no better right to the estate than the debtor himself- has when the judgment is recovered.” Floyd v. Harding, 28 Gratt. 401; Withers v. Carter, 4 Gratt. 407, approved.
“It is well settled that ordinarily no greater interest in real estate than the judgment debtor himself has is available for the satisfaction of a judgment against him. In other words, that the right of the judgment creditor is limited to the debtor’s interest in the land sought to be subjected. The creditor is in no sense treated as a purchaser, and has no equity beyond what belongs to the debtor. These propositions have often been affirmed by this court. Floyd v. Harding, 28 Gratt. 401; Borst v. Nalle, 28 Gratt. 423; Summers v. Darne, 31 Gratt. 791.” Lewis, P. Cowardin v.-Anderson, 78 Va. 88.
“It is well settled that a judgment lien on the land of the debtor is subject to every equity, which existed against the debtor at the rendition of the judgment; and courts of equity will always limit the lien to the actual interest of the judgment debtor. The lien of the judgment creates a preference over subsequently acquired rights, but a court of equity will always protect the equitable rights of third persons existing at the time the judgment lien attaches." Green, P. Snyder v. Martin, 17 W. Va. 299. See Withers v. Carter, 4 Gratt. 407.
Lands forfeited by nonentry on the assessor’s land books under Code W. Va. 1868, ch. 31, § 34, vests in the state upon the forfeiture by the mere force of the statute, and therefore a judgment against the former owner rendered after such forfeiture is no lien on the land. Wiant v. Hays, 38 W. Va. 681, 18 S. E. Eep. 807.
Effect of Loss of Security.—where a deed of trust is given to a creditor as collateral security for the payment of a judgment, and the property is after-wards purchased by the creditor ata sale under the trust deed, but is subsequently taken from him under a vendor’s lien existing against the property when the trust deed was made, the debtor is not entitled to credit on the judgment for the price which the creditor agreed to pay for such property, but the judgment creditor may enforce the judgment for its full amount against other property of the judgment debtor. Deaton Grocery Co. v. Pepper, 98 Va. 587, 36 S. E. Rep. 988.
Lien on a Moiety.—Though lands are conveyed in trust to secure debts, a judgment having priority to the deed is a lien upon but a moiety of the land, except an equity of redemption.
“Where the legal estate is in the debtor at the date of its judgment, the creditor can only subject a moiety; and a subsequent alienation by the debtor cannot enlarge his rights.” Buchanan v, Clark, 10 Gratt. 164; Mutual Assurance Society v. Stanard, 4 Munf. 539; Blow v. Maynard, 2 Leigh 29,37; Haleys v. Williams, 1 Leigh 140, distinguished and explained.
If a debtor conveys land fraudulently and retains other lands, on setting aside the conveyance at the suit of a judgment creditor, there will be a decree for the sale of only one moiety of the whole, embracing in the moiety the-land retained by the debtor. M’New v. Smith, 5 Gratt. 84.
Judgment in Favor of Commonwealth.—It was held in Leake v. Ferguson, 2 Gratt. 419, that prior to the act of 1822, Sup. Rev. Code, ch. 282, sec. 1, p. 339, the judgment in favor of the commonwealth against his general debtors, only binds one-half the land of the debtor.
But upon setting aside a conveyance of real estate as fraudulent, at the suit of a judgment creditor the court cannot decree a sale of only one moiety of the lands to satisfy the judgment. M’New v. Smith, 5 Gratt. 84.
Issuance of Fi. Fa.—Lien of iloiety.—where a fieri facias has been issued upon a judgment within a year and a day, the judgment is alien upon a moiety of all the land owned by the debtor at the date of the judgment, or which were afterwards acquired, in the hands of a bona fide purchaser for value, and without notice. Taylor v. Spindle, 2 Gratt. 44. See Kent v. Matthews, 12 Leigh 573.
Rights of Purchaser of Land Subject to Lien.—The lien of a j udgment is a legal lien, and a purchaser of the legal title from the debtor takes it subject to the lien, though he had no notice of it. Leake v. Ferguson, 2 Gratt. 419.
Priority of Mortgage Executed Back to Secure Purchase Money.—Where a purchaser, contemporaneously with the delivery of a conveyance of the purchased land, executes a mortgage, trust deed, or other incumbrance to secure the purchase money, he acquires a temporary seisin, and not such an interest in the land as becomes subject to the lien of a judgment against him in preference to the deed of trust. And it applies equally in favor of a third person who advances the purchase money, and at the time of the conveyance takes a mortgage on the land for his indemnity. Cowardin v. Anderson, 78 Va. 88; Summers v. Darne, 31 Gratt. 791, 801; Straus V. Bodeker, 86 Va. 543,10 S. E. Rep. 570.
- Under Code Va. 1873, ch. 182, sec. 6, giving judgment creditors a lien on all realty of or to which the judgment debtor is possessed or entitled, where land is conveyed to a judgment debtor, and eo -instanti reconveyed by him to a trustee to secure the purchase money, he has no interest subject to the lien of the judgment as against the trust deed. Straus v. Bodeker, 86 Va. 543,10 S. E. Rep. 570..
Unrecorded Deed.—Moreover, the judgment creditor acquires no preference over the deed of trust, whether the latter be directly for the vendor’s benefit or for the benefit of a lender of the money to pay the purchase money, or whether the trust be recorded, or not, the latter and the conveyance being parts of one transaction. Cowardin v. Anderson, 78 Va. 88. See Summers v. Darne, 31 Gratt. 791.
Vendor’s Lien Reserved on Face of Conveyance.—A vendor’s lien reserved on the face of the conveyance will have priority over a judgment against the grantee. Kline v. Triplett, 2 Va. Dec. 429, 25 S. E. Eep. 886.
*2558. EXPIRATION OR EXTINGUISHMENT OF LIEN.
Expiration of Statutory Period.—It is settled law that the lien of a judgment ceases, when the right to sue out execution on the judgment, or to revive it hy scire facias, is barred by the statute of limitations. Reilly v. Clark, 31 W. Va. 571, 8 S. E. Rep. 509; Laidley v. Kline, 23 W. Va. 565; Werdenbaugh v. Reid. 20 W. Va. 588; Shipley v. Pew, 23 W. Va. 487. See also, Series v. Cromer, 88 Va. 426, 13 S. E. Rep. 859; Kennerly v. Swartz. 83 Va. 704, 3 S. E. Rep. 348; McCarty v. Ball, 82 Va. 875, 1 S. E. Rep. 189; Eppes v. Randolph, 2 Call 125.
Lien Barred at Law Unenforceable in Equity.—And it seems to be equally well settled that the lien of a judgment is not enforceable in equity after it ceases to be enforceable at law, such a lien being a creature of statute. Sutton v. McKenney, 82 Va. 46; Hutcheson v. Grubbs, 80 Va. 251; McCarty v. Ball, 82 Va. 872, 1 S. E. Rep. 189; Shipley y. Pew, 23 W. Va. 498.
It has been held, moreover, that courts of equity follow the law as respects Code Va. 1873, ch.182, sec. 12 and 13, which declares that no execution shall issue, nor any scire facias or action be brought, on a judg.ment after the lapse of ten years from the return day of an execution on which there is no return by an officer, or after twenty years from the return day of an execution on which there is such return. Hence if a legal claim, barred at law, is asserted in equity, it is equally barred there. McCarty v. Ball, 82 Va. 872,1 S. E. Rep. 189. See Coles v. Ballard, 78 Va. 149; Rowe v. Bentley, 29 Gratt. 756; Hutcheson v. Grubbs, 80 Va. 251; Dabney v. Shelton, 82 Va. 349, 4 S. E. Rep. 605.
It has been held that the language of the statute, Code of Va. 1873, ch. 182. sec. 9, “The lien of a judgment may always be enforced in a court of equity,” implies only a purpose to confer jurisdiction on courts of equity to enforce the lien, whether the remedies at law are adequate or not. Hutcheson v. Grubbs. 80 Va. 251.
Execution Issued and Returned.—Where an action is brought to subject real estate to the payment of a judgment, 10 years after its rendition, it is not barred by the statute of limitations when the record shows that within a year thereafter an execution had been issued and returned, “no property.” Kennerly v. Swartz, 83 Va. 704, 3 S. E. Rep. 348; Hutcheson v. Grubbs, 80 Va. 251, distinguished.
Legal Statutory Lien—Collateral Lien.—It was said, by the court, in Paxton v. Rich, 85 Va. 378, 7 S. E. Rep. 531: “The case of Hutcheson v. Grubbs, 80 Va. 251, referred to by counsel, has no application. In that case it was held that the lien of a judgment ceases with the life of the judgment, and obviously so, because the lien is a legal lien, conferred hy statute, and is not collateral to, but grows out of the judgment. Hence the lien and the judgment are inseparable, and the extinguishment of the latter is the extinguishment of the former. But not so where there is a judgment for a debt secured by a mortgage, deed of trust, or a vendor’s lien. There the lien is collateral to the judgment and may he enforced in equity although the judgment be barred or annihilated.”
a. Extension of Lien.
(i) Issuance of Execution.—The lien of a judgment, on which no execution has ever issued, will not be enforced in a court of equity in a suit brought after the lapse of ten years from the date of the judgment, and where the debtor dies, the time in which it can he enforced may be less as in no case can it exceed five years after the qualification' of his personal representative, unless perhaps, it may be kept alive by suing out successive executions after the death of the debtor, or, by having sued out a scire facias, continued his right to do so. Werdenbaugh v. Reid, 20 W. Va. 588.
Where an execution has been issued upon a judgment more than ten years after the return day of the last preceding execution issued thereon, and a suit is brought by the creditor to enforce the lien of such judgment against the real estate of his debtor, the issuance of such execution will not avoid the bar of the right to enforce such lien, notwithstanding the execution is merely voidable, and not liable to be assailed in a collateral suit. Reilly v. Clark, 31 W. Va. 571, 8 S. E. Rep. 509.
Summons by Publication.—Where nonresident judgment creditors are summoned by order of publication and no order is made to suspend the issuing of executions, a suit to enforce a contract for the sale of the judgment debtor’s land, is no such “legal process,” as under Va. Code 1873, ch. 182, sec. 13, suspends judgment creditors’ right to sue out executions and stops the running of the statute of limitations against such judgments. Straus v. Bodeker, 86 Va. 543, 10 S. E. Rep. 570.
Act Requiring Issuance and Return of Pi. Fa.—It was held in Burns v. Hays, 44 W. Va. 503, 30 S. E. Rep. 101, that ch. 95 of the W. Va. Code, Acts 1891, requiring the issue and return of a fi. fa. unsatisfied before a chancery suit to enforce thelien of ajudgment, does not apply to suits pending when it went into force.
Execution Issues upon Dissolution of Injunction.— Upon the dissolution of an injunction to a judgment, execution may issue thereon within a year and a day from the dissolution of the injunction, without a scire facias, though the injunction was in force for more than ten years. Hutsonpiller v. Stover, 12 Gratt. 579.
Proceedings to Stay Execution.
Suspension of Limitation—Object of Suit.—in order that a proceeding instituted may have the effect of suspending the right to sue out execution on a judgment, it mustbe brought for that purpose, and when such is not the object of the suit, the rights of the judgment creditor under his judgment will be unaffected. Dabney v. Shelton, 82 Va. 349, 4 S. E. Rep. 605; Straus v. Bodeker, 86 Va. 543, 10 S. E. Rep. 570.
Under the law of West Virginia, a plaintiff, after obtaining a judgment for his debt can issue a writ of fieri facias against the personalty of the defendant; if the execution be returned unsatisfied in whole or in part, and he wishes to reach the land of the defendant, he must file a bill in equity in aid of the execution. Such chancery suit will have the effect of holding the statute of limitations in abeyance until the date of the final decree. Ryan v. Kanawha Val. Bank (W. Va.), 71 Fed. Rep. 912.
Judgment Entered with Stay of Execution.—A judgment, with a stay of execution, creates no lien on. land, until the plaintiff has a right to issue execution thereon. Scriber v. Deane, 1 Brock. (U. S.) 166: Enders v. Board of Public Works, 1 Gratt. 378.
But the right to file a bill in equity to enforce a. judgment lien is coextensive, as to time, with the right to issue execution thereon; and under Va. Code, sec. 3577, which prescribes the limitation of proceedings to enforce a judgment, in computing time there shall, as to a writ of scire facias, be omitted the time elapsed between January 1, 1869, and March 29* *2561871. Hence the limitation to a suit in equity to enforce a judgment obtained June 3,1870, commenced to run, March 29,1871. James v. Life, 92 Va. 702, 24 S. E. Rep. 275.
Limitation Not Suspended by Agreement.—In a suit to enforce the lien of a judgment against real estate brought more than ten years after return day of the last execution issued thereon, the creditor cannot avoid the bar of the statute by a parol agreement binding him not to sue out execution or enforce the judgment until within ten years before the bringing of such suit. Reilly v. Clark, 31W. Va. 571, 8 S. E. Rep. 509.
How Creditor Hay Avoid Bar of Statute.—To avoid the bar of the statute of limitations in respect to the right to enforce the lien of a judgment, the creditor must bring his case within one of the exceptions declared in the statute, and he cannot, by parol evidence or otherwise, avoid such bar upon any ground not embraced in the statute. Eeilly v. Clark, 31 W. Va. 571, 8 S. E. Rep. 509.
Revivor of Judgment.—A judgment creditor may bring his suit imequity against the personal representative and heirs or devisees of his deceased debtor, before reviving his judgment at law. James v. Life, 92 Va. 702,24 S. E. Eep. 275. See also, Bank v. Allen, 76 Va. 200; Suckley v. Eotchford, 12 Gratt. 60; Burbridge v. Higgins, 6 Gratt. 119.
Entry of Satisfaction—Fraud.—A judgment is recovered and an execution issued thereon, and while it is in the hands of the sheriff, an agreement is made between the creditor and debtor, by which certain claims are transferred to the creditor in satisfaction of the judgment, and thereupon the sheriff, at the instance of the creditor, returns the execution ‘'satisfied,” but it appears, that the agreement on the part of the debtor was fraudulent and the execution was not in fact satisfied; the lien of the judgment is not destroyed, and the position and priority is not disturbed, although its payment may-affect purchasers of part of the land of the debtor, but it does not appear in the pleadings and proofs, that such return was brought home to the purchaser, and by it he was misled to his injury. Renick v. Ludington, 14 W. Va. 367.
Effect of Appeal from Justice’s Judgment.—Where an appeal from the judgment of a justice or other inferior tribunal, has the effect of transferring the action to an appellate court for trial de novo, and the controversy is to be settled by a judgment in such court regardless of the judgment appealed from, the appeal operates not 'only to suspend the judgment of the justice or inferior tribunal, but vacates and sets it aside, so that it cannot be used as evidence or as the foundation of an action in any court. An appeal in such case is very different in its effect from a proceeding, which seeks to review a judgment by writ of error. In the latter case the judgment is merely suspended, but in the former the judgment is vacated and made ineffectual for any purpose. The judgment in legal construction no longer remains in force and cannot be the foundation of a new action. Evans v. Taylor, 28 W. Va. 184.
Effect of Partial Reversal and Affirmance.—It is a familiar doctrine, that where a decree is reversed in part and affirmed as to the residue, the reversal in part does not destroy the lien of so much of the decree as is unreversed or affirmed; and one prominent reason for this is, that equity looks to the substance of things, and not to the mere form. 2 Barton’s Gh. Pr. (2d Ed.) sec. 295; Knifong v. Hendricks, 2 Gratt. 212; Moss v. Moorman, 24 Gratt. 97.
But the rule does not applyto a reversal of judgment and award of a new trial. Shepherd v. Chapman, 83 Va. 215, 2 S. E. Eep. 273.
Where an injunction to a judgment is only perpetuated as to a part of it, or a reversal is only as to a part of a judgment, the lien of the part not affected continues from the date of the judgment. Grafton & G. E. Co. v. Davisson, 45 W. Va. 12, 29 S. E. Eep; 1028; Moss v. Moorman, 24 Gratt. 97; Graham v. Bank, 45 W. Va. 701, 32 S. E. Eep. 245.
Payment Delayed by injunction.—where a judgment is rendered for the penalty of a bond, to be discharged by the payment of the principal sum due and interest; and the payment of the money has been delayed by an injunction until the principal sum and the interest exceed the penalty, the lien of the judgment only extends to the penalty, the damages upon the dissolution of the injunction, and the costs at law, without continuing interest. Michaux v. Brown, 10 Gratt. 612.
Judgment on Attachment—Merger,—On the rendition of a judgment on an attachment the lien of an attachment is merged in the judgment, and the priority of the lien is thereby preserved. Smith v. Parkersburg Co-Op. Ass’n (W. Va.), 37 S. E. Eep. 645.
Joint Judgment—Effect of Service of Ca. Sa. on One.— It was held in Leake v. Ferguson, 2 Gratt. 419, that on á joint judgment against several, the service of ca. sa. on one, and the execution and forfeiture of a forthcoming bond by him, does not extinguish the lien of the judgment upon the land of the others.
Effect on Lien of Discharge of Debtor Taken under Ca. Sa.—A judgment creditor, whose debtor, after being taken in execution, has been discharged from custody by the jailer, for nonpayment of the jail fees, is remitted to the lien of his judgment, and will be entitled to satisfaction out of the debtor’s land, in preference to creditors claiming under a deed of trust executed by the debtor, conveying the land, but not recorded in the county where it lies. McCullough v. Sommerville, 8 Leigh 415.
Destruction of Lien by Actual Service of Ca. Sa.—A recovers a judgment against B, at the August rules, and sues out a ca. sa. thereon in October, under which B. is taken in execution, and in November takes the oath of insolvency, and is discharged under the statute for the relief of insolvent debtors; and in the interval between the date of A’s judgment and the service of his ca. sa. on B, sundry mortgages are executed by B, and duly recorded, to secure sundry debts to other creditors. Held, that by the actual service of A’s ca. sa. on B, the lien of A’s judgment was destroyed, and A, could then stand on the lien given to the ca. sa. executed by the statute of limitations, 1 Rev. Code, ch. 134, sec. 10, and that, therefore, the mortgagees are entitled to the benefit of their mortgages. Rogers v. Marshall, 4 Leigh 425. See also, Foreman v. Loyd, 2 Leigh 284.
Land, conveyed by deed of trust, which is void as to subsequent judgment creditors, because unrecorded, is subject to satisfy the judgments of a creditor, although he has issued a ca. sa. upon his judgment, whereupon the grantor in the deed is discharged as an insolvent. McClure v. Thistle, 2 Gratt. 182.
Purchase of Lands Subject to Lien of Judgment.— When, after the purchase of land subject to a judgment lien, another creditor brings suit to convene and enforce liens against the lands of the judgment debtor, but not against the land so purchased, and without making the administrator or heirs of the purchaser formal parties, and a personal decree is *257rendered in such suit against the original debtor, based on the original judgment for the amount thereof increased by usury under an agreement between such debtor and his judgment creditor subsequent to the rendition of the judgment, and that the lands of the debtor be sold to pay that and the other liens convened, the administrator and heirs of the purchaser, in proceedings under an amended bill to subject the lands purchased to the payment •of the first judgment debt as fixed by the personal decree, are not estopped from showing the usury and disputing the amount of the debt as fixed by such decree, although they proved a claim in the convention of creditors. Bensimer v. Fell, 35 W. Va. 15, 12 S. IS. Rep. 1078.
Discharge in Bankruptcy .—The lien oí a judgment is not defeated by the discharge of the debtor as a bankrupt; it may be enforced in the state courts. Me Canee v. Taylor, 10 Gratt. 580.
Judgments Acquired Pendente Lite.—Where a suit in equity is pending to enforce judgment liens against a debtor’s lands, the fact, that persons after the commencement of a suit have acquired judgments against the debtor, generally does not make it necessary for the plaintiff to file an amended bill, making the answer of such subsequent or pendente lite judgment creditors parties to the suit; nor is it necessary for them generally to file their petitions asking to be made parties, if their judgments are obtained before the order of reference is made in the cause, or in time after the order of reference for them to prove their judgment before the commissioner. For such subsequent judgment creditor may be allowed to prove his judgment before his commissioner under the general order <of reference, and thus make himself at least a quasi party to the cause, and be bound thereby as to his ■debt. Marling v. Robrecht, 13 W. Va. 440.
9. Satisfaction, by Rents and Profits, in Five "Years.—A judgment debtor’s real estate cannot be decreed for sale to pay the judgment liens thereon until the real estate has been properly ascertained, and it appears to the court that the rents and profits thereof will not satisfy the liens within five years, or in a reasonable time. Newlon v. Wade, 43 W. Va. 283, 27 S. E. Rep. 244; Duncan v. Custard, 24 W. Va. 730; Hillv. Morehead, 20 W. Va. 429; Rose v. Brown, 11 W. Va. 122; Horton v. Bond, 28 Gratt. 815, and note; Ewart v. Saunders, 25 Gratt 203. See also, Cronie v. Hart. 18 Gratt. 739.
“The fact of the insufficiency of the rents and profits to satisfy the judgment within the prescribed period should be made to appear before any sale is made, and if the appellant desires it. he may have aninquiry to determine thatfact.’’ Pricey. Thrash. 30 Gratt. 530. But see Barr v. White, 30 Gratt. 531.
The debts of both trust and judgment creditors ought to be ascertained, and the property sold, if the rents and profits will not satisfy the liens in five years, and the reference, if it does not appear in the papers, ought to be had to determine this latter •question. Laidley y. Hinchman, 3 W. Va. 423.
Presumption of Waiver.—The failure by a defendant to demand an inquiry whether the rents and profits of the land would not satisfy the judgment within a reasonable time, raised a presumption that such right is waived. McClung v. Beirne, 10 Leigh 394.
How Shown.—But the insufficiency of the rents and profits to satisfy the judgment within the statutory period may be shown by the pleadings, by the admissions of the parties, by evidence taken, or by the report of a commissioner on inquiry ordered. Horton v. Bond, 28 Gratt. 815.
Rule under Statute.—Under the" Code of W. Va. 1868, it would seem unnecessary to aver, in a bill to enforce a judgment lien, that the rents and profits will not pay the debt in five years. Handly y. Sydenstricker, 4 W. Va. 605.
Account of Rents.—A party coming into equity to enforce the lien of a judgment is not entitled to an account for rents accrued before the decree. Leake v. Ferguson, 2 Gratt. 419.
Settlement of Administrator’s Accounts.—Generally the court should not decree the sale of the realty of an intestate to pay debts or judgment Hems before the accounts of the administrator have been settled and the administered assets ascertained. Laidley v. Kline, 8 W. Va. 218; Martin v. Rellehan, 3 W. Va. 480.
Partnership Accounts.—The court ought not, in a chancery suit brought to enforce the lien of a judgment between partners, order a settlement of partnership accounts with a view of ascertaining the amount for which the lands of each partner should be primarily subject, and with a view to the rendering of a proper decree among the codefendants after such settlement. Kent v. Chapman, 18 W. Va. 485.
Must Ascertain Amount of Liens and Their Priorities.—Where there are various judgment liens on the land of the judgment debtor, itis error to decree a sale of land without first ascertaining the amount of the liens and their priorities; and this should be done in an intelligible manner, for the reason that to decree such sale before ascertaining the amount of the several liens, and their respective priorities has a tendency to sacrifice the property, by discouraging the creditors from bidding, as they probably would, if their right to satisfaction of their debts and the order in which they were to be paid out of the property, had been previously ascertained. Marling v. Robrecht, 13 W. Va. 440; McClaskey v O’Brien, 16 W. Va. 791. See Crawford v. Wells, 23 Gratt. 835.
Ascertaining Value of Real Estate —In a suit to subject real estate to the payment of the judgment liens thereon, it is not necessary to ascertain the value of the real estate before its sale is ordered. Grantham v. Lucas, 24 W. Va. 231.
Two Judgment Liens.—But it is wholly unnecessary to refer a cause, in which it appears that there are but two judgment liens to a commissioner to ascertain the amount and priorities of liens, where the pleadings and proof show clearly what they are. Anderson v. Nagle. 12 W. Va. 98.
Commissioner’s Report of Lien Presumed Correct.— In a suit brought by judgment creditors against the judgment debtor and other judgment and trust creditors, to obtain satisfaction of their several judgments by a sale of the lands owned by said debtor, and the cause has been properly referred to a commissioner to ascertain and report the .several liens thereon, and their respective priorities, and also to ascertain and report the lands owned by said debtor, chargeable therewith, and where such commissioner has made and returned such report and no error appears upon the face thereof, it will be presumed by the court, that the character, amounts and priorities of the several liens, as well as the lands owned by the judgment debtor chargeable therewith, are correctly setforth therein “except in so far only, as to such parts thereof, as may be obI jected to by proper exceptions taken thereto before *258the hearing” of the cause. Hutton v. Lockridge, 32 W. Va. 159.
10. Who May maintain Skit to Enforce.
Judgment Creditors.—A suit to enforce the lien of a judgment, may be maintained by the judgment creditor, during the pendency of an action by attorneys to cancel satisfaction of such judgment, if it should be found to be subsisting in such latter suit; this second action should be treated as a cross bill in the first action. Higginbotham v. May, 90 Va. 233, 17 S. E. Rep. 941.
A judgment creditor has a right to come into a court of equity to enforce his judgment lien against the lands conveyed in a deed of trust prior to the obtaining of the judgment, subj ect to the debts secured by the trust; and after the debt secured by the trust falls due and no sale is made thereunder, the court will interfere for the benefit of judgment liens younger than the trust, and will direct a sale of the land, and not the redemption alone to satisfy the debts of both classes of creditors. Laidley v. Hinchman, 3 W. Va. 423.
Purchasers of Land.—Where there are several purchasers of land subject to a judgment lien, some may file a bill to question the lien, and if it is valid, asking that the different purchasers may be subjected to pay it. And though they ask for a ratable contribution, this will not prevent the court’s subjecting the land last sold to satisfy the creditor. Michaux v. Brown, 10 Gratt. 612.
Special Receiver—Creditors’ Bill—Practice.—A special receiver may bring a chancery suit to enforce the lien of a judgment against the judgment debt- or’s lands, for his own benefit, and that of all the other judgment creditors of the judgment debtor, or he might make other judgment creditors of the debtor defendants, in which case the court would have to audit all the judgment liens against the debtor, before it decreed a sale of the land; and if the special receiver made only the judgment debtor a defendant, and didnot bring his suit as a creditors’ bill, yet, where the judgment debtor alleges that he has other judgment creditors, the court will convert this suit into a creditors’ bill by directing a commissioner to audit all judgment liens against the judgment debtor; but it would do the same had any other judgment creditors, by petition or otherwise, asked the court to do so. Howard v. Stephenson, 33 W. Va. 116,10 S. E. Rep. 66.
How Suit to Be Brought.—if in a bill brought by a judgment creditor against a debtor to enforce the lien of his judgment against his lands, the creditor should fail to sue on behalf of himself and all other judgment creditors, but the court should afford to all judgment creditors an opportunity to have their judgments audited before a commissioner by directing a publication to be made, calling on them to present their judgments for auditing, the appellate court will regard this as a creditors’ bill, the same as if the plaintiff in his bill had sued on behalf of himself and all other judgment creditors except those made defendants. Neely v. Jones, 16 W. Va. 625.
11. Parties to Suit.
Judgment Creditors.—Judgment creditors are necessary parties in proceedings to subject lands, upon which there are liens, to the payment of other judgment liens. Hoffman v. Shields, 4 W. Va. 490; Snyder v. Brown, 3 W. Va. 143.
It is necessary, in a bill to enforce a judgment lien by a surety, where such surety has paid the judgment, that the original judgment creditors, whose j judgment he had paid, be made parties. Hoffman, v. Shields, 4 W. Va. 490; Conaway v. Odbert, 2 W. Va. 25.
A creditor, who brings suit againt a debtor to-enforce against his lands a judgment lien, should sue on behalf of himself and all other creditors excepting those made defendants, and he should make formally defendants in the suit all creditors who have obtained judgments in the courts of record in the county or counties in which the debtor owns lands sought to be subjected to the payment of the judgments, also all creditors who have obtained judgments in courts of records or before justices in any part of the state, and have had them docketed, on the judgment lien docket of such county or counties. Neely v. Jones, 16 W. Va. 626; Eeamster v. Tyree, 21 W. Va. 83.
Convention of Judgment Creditors.—Where there are several judgment creditors whose judgments are of equal dignity with that of the plaintiff, it is proper that they should be convened in a suit by a creditor seeking to enforce his judgment; but if it appears from the pleadings and proof, that such judgment creditors are enforcing their liens or debts in another court, against the parties liable for such other debts, and that there is a large fund under control of the latter court, applicable to such judgments or debts, it is error to decree a sale of the land, on the failure of the debtor to pay the entire amount of such judgment, without taking any steps to ascertain what would remain unpaid, after the application of such fund to the liquidation of such judgments. Murdock v. Welles, 9 W. Va. 552.
Effect of Failure to Make Judgment Creditors Parties. —If all the judgment creditors are not made parties to a suit by a creditor against a debtor to enforce against his lands a judgment lien, either formally or informally, and this is disclosed in any manner by the record, the appellate court will reverse any decree ordering the sale of the land or the distribution of the proceeds of such sale. Neely v. Jones, 16 W. Va. 626.
Judgment Creditors of Vendee.—Where a vendor of land, who has retained the title, files a bill against the widow and infant children of the vendee, for a sale of land to satisfy his debt, the judgment creditors of the vendee may make themselves parties to -the cause, and have the land, subject to the vendor’s lien, and the widow’s dower, applied to the payment of their debts. Simmons v. Lyles, 27 Gratt. 922, and note.
Judgment Debtors.—But where a special receiver obtained judgment against two debtors in the circuit court of a county, and then brought a chancery suit in that court to enforce the lien of this judgment against the lands of one of the debtors in the county where the judgment was obtained, it was held unnecessary to make the other judgment debtor a party defendant in this chancery suit, as in it the plaintiff sought no redress against him or his property. Howard v. Stephenson, 33 W. Va. 116, 10 S. E. Rep. 66.
Lien Creditors—Trustees.—In a proceeding in chancery by a judgment creditor to subject the real estate of his debtor to the lien of his judgment it is the duty of the plaintiff to make all the lien creditors of the debtor known to him, and which are disclosed by the judgment lien docket, or the records of the court of the counties in which the lands sought to be sold are situated, parties to the suit, and where there are liens by trust deeds *259the trustees in such deeds must be made formal parties before any sale of the debtor’s lands can be ordered, and such trustees cannot be made informal parties by publication. McMillan v. Hickman, 35 W. Va. 705, 14 S. B. Bep. 227; Bilmyer V. Sherman, 23 W. Va. 656. See also, McCoy v. Allen, 16 W. Va. 725.
Prior Lienors.—Moreover, in a suit in equity, to sell land to satisfy a judgment lien, orto enforce the payment of the purchase money, if it appears that there is a prior lien for unpaid purchase money on the land, those entitled to the benefit of such prior purchase money lien, should be made parties to the suit. Dickinson v. B. Co., 7 W. Va. 390.
Trust Creditors.—So also, to a bill by a judgment creditor to enforce his lien against the subject of the trust, creditors in interest should be made parties. Laidley v. Hinchman, 3 W. Va. 423.
Trustee and Cestui Que Trust.—And, in a suit to enforce a judgment lien against lands covered by a deed of trust, both the trustee and cestui am trust are necessary parties defendant. Bensimer v. Fell, 39 W. Va. 448, 19 S. B. Bep. 545.
Moreover, a judgment adjudging creditors’ liens on land of a debtor will not bar a holder of a debt by deed of trust, who does not prove his debt, from sharing in the proceeds of the sale under the decree, unless the trustee and cestui que trust are made formal parties thereto. Bensimer v. Fell, 35 W. Va. 15, 12 S. B. Bep. 1078.
Remaindermen—On the other hand, the remainder-men are not necessary parlies to a bill to subject a life estate to the lien of a judgment. Moore v. Bruce, 85 Va. 139, 7 S. E. Bep. 195.
Assignor and Assignee.—But, the assignor and assignee of a judgment may be properly made coplaintiffs in a chancery suit to enforce the lien of the judgment on the debtor’s lands. Neely v. Jones, 16 W. Va. 626.
Personal Representative of Surety.—In a chancery suit however, to enforce the lien of a judgment against a principal and sureties, where it appears that judgment has also been obtained against the personal representative of another surety for the same debt, such personal representative and sole devisee and legatee of the deceased surety are necessary parties in order that the deceased surety’s part of the judgment remaining unpaid, after exhausting the realty of the principal, may be ascertained, and his estate sub j ected to its payment. Wytheville Ice Co. v. Frick Co., 96 Va. 141, 30 S. E. Bep. 491.
Butin a suit in chancery to enforce a lien in judgment against the principal and sureties, if other judgments are proved upon which others than those before the court are also bound, it is not necessary to make such others parties. Wytheville Ice Co. v. Frick Co., 96 Va. 141, 30 S. B. Bep. 491.
Heirs of Deceased Purchaser.—Where, in a suit by a judgment creditor to subject lands in the hands of a bona fide purchaser for the vendee, and the purchaser dies pending the suit, his heirs are necessary parties. Taylor v. Spindle, 2 Gratt. 44.
Creditor Holding Lien against Debtor.— A. creditor holding a debt against a judgment debtor constituting a lien on his land, who is not made a formal party to a judgment adjudging creditors’ liens on the land of the debtor, and who does not prove his lien in such proceeding, is thereby barred from sharing in the proceeds of the sale under the decree, except in the surplus remaining after the satisfaction of the liens decreed. The debt, as a personal debt against the debtor, is not barred by such proceeding. Bensimer v. Fell, 35 W. Va. 15. 12 S. E. Bep. 1078.
Former Owner of Land.—But, a judgment adjudging creditors’ liens on the land of a debtor will not bar a lien thereon created by a former owner of the land because of a failure to prove the lien, unless its owner is made a formal party to the proceeding. Bensimer v. Fell, 35 W. Va. 15, 12 S. B. Bep. 1078.
Joint Obligors.—Moreover, a judgment at law being obtained ag'ainst one of two obligors, in a joint and several bond, and no proceedings to enforce it appearing, a court of equity ought not to charge the lands of the other obligor, in the possession of his devisees, without having made the obligor, against whom the judgment was rendered, or his representatives, parties to the suit. Foster v. Crenshaw, 3 MunC. 514.
How Parties Interested May Come into Sait.—When a suit in equity is brought by a judgment creditor to enforce his lien against the land of his debtor, and persons claiming to be purchasers of the debtor’s land complain that they were not made parties to that suit, their remedy, if they have notice of that suit, is by motion or petition to be made parties defendant thereto, and not by an independent suit to set aside the decree in the cause, upon the principal ground that the judgment therein sought to be enforced was itself void. Neale v. Utz, 75 Va. 480.
Allegation in Bill to Enforce.—ft is unnecessary to allege, in a chancery suit, brought by a special receiver, to enforce a judgment lien against the lands of a judgment debtor, that the suit in which the judgment on the common-law side of the court was had, or that the chancery suit brought to enforce the judgment, was brought by the receiver, by the direction of the court which appointed the receiver. Howard v. Stephenson, S3 W. Va. 116, 10 S. E. Bep. 66.
Supplemental BUI.—'Where a suit is brought to enforce a judgment lien, and is revived in the name of an administrator d. b. n., who subsequently assigns the judgment to another, and the suit proceeds in the name of the administrator d. b. n., and it is charged in the answer of a defendant that a party other than the assignee of such administrator had become the owner of the judgment, and that it had been paid off and ratified therein, it becomes necessary for the assignee to file a supplemental bill, and it is error in the court to’ refuse to permit him to do so. List v. Humphrey, 3 W. Va. 672.
Exhibits.—Where a judgment or decree is obtained for a debt, in a proceeding in chancery to enforce the lien of such judgment or decree against lands ordinarily it is not necessary that a complete copy of the whole record of the case in the court in which the judgment or decree was had, should be produced or filed, but only a properly authenticated copy of such judgment or decree. In such case a copy of the judgment is an extract from the record of the cause, and not a complete copy of the whole record, and being an extract from the record, and a copy of the judgment, as entered, it may be read as evidence in the cause. Dickinson v. B. Co., 7 W. Va. 390; Sayre v. Edwards, 19 W. Va. 353; White v. Clay, 7 Leigh 68; Wynn v. Harman, 5 Gratt. 157.
Real Estate Held Jointly—Extent of Decree.—Where a suit in equity is brought by a party to enforce his judgment lien against real estate which his debtor holds jointly with another, and both of the owners of the real estate are made parties to the suit, and *260served with process, although no allegation is made or lien asserted against the party holding the real estate jointly with such judgment debtor, and the cause being referred to a commissioner to ascertain the liens existing against the real estate, and their priorities, who reports a judgment lien existing against the real estate belonging to the party who is not the judgment debtor mentioned in the bill, it is error to decree a sale of the entire'property, and such a decree may be set aside by a bill of review filed in proper time. Calvert, v. Ash fW. Va.), 35S. E. Rep. 887.
So also, where a bill to enforce a judgment lien, filed against the j udgment debtor, alleges that after the judgment was rendered, the debtor obtained an injunction against the judgment, giving 01. and T. as sureties in the injunction bond, that the injunction was dissolved and the bill dismissed, but the bill only seeks the sale of the judgment debtor’s real estate, a personal decree against Cl. for a balanceoftbe judgment, after exhausting the judgment debtor’s estate would be proper but, under this bill, a decree for the sale of the real estate of Cl. would be erroneous. Sinnett v. Cralle, 4 W. Va. 600.
Time to Redeem.—It is not perse error to decree a sale of land to enforce judgment liens without giving the debtor time to redeem, as in the foreclosure of mortgages, though such practice ought not in general to be pursued, but where the debtor does not show that he has sustained any damage by the failure to do so, itis not ground for setting aside the sale. Crawford v. Weller, 33 Gratt. 835.
Resistance to Enforcement.—After a judgment has been recovered in an action at law, and a suit in equity has been pending for more than ten years to enforce the lien of the judgment, the defendant cannot prevent the enforcement of this judgment, on the ground that they did not employ counsel to defend them in the action at law, and that their appearance by counsel was false, when' it appears in the record of the action at law, in which the judgment was recovered, that the defendant did appear by counsel and file pleas. Cabell v. Given, SO W. Va. 760, 5 S. E. Rep. 442.
Only Two Judgment Creditors.—Where a suit in chancery is instituted to enforce a judgment lien and the bill alleges that there is but one other judgment lien on the real estate sought to beheld liable to the satisfaction of the judgment, and sets it up also as a lien on the land, the decree should provide for the payment of both judgments, if the land is subject thereto. Anderson v. Nagle, 13 W. Va. 98.
XV. COLLATERAL IMPEACHIIENT.
A. IN GENERAL.—The judgment of a court possessing competent jurisdiction in the proceeding before it and over the person against whom it is rendered, is binding and conclusive, and however irregular and erroneous it may be, yet so long as it remains unreversed, it cannot be drawn in question in a collateral proceeding, nor can any allegation be made against its validity. Pates v. St. Clair, 11 Gratt. 23; Spotts v. Com., 85 Va. 531, 8 S. E. Rep. 375; Wimbish v. Breeden, 77 Va. 324; Woodbouse v. Fill-bates, 77 Va. 317; Wilson v. Smith, 22 Gratt. 493. See Shelton v. Jones, 26 Gratt. 898; Brengle v. Richardson, 78 Va. 406; Adams v. Logan, 27 Gratt. 201; Lawson v. Moorman, 85 Va. 880, 9 S. E. Rep. 150.
Limits to Judgment.—Though the court has j urisdiction of the subject-matter and the parties, yet it is limited in its mode of procedure and the extent and the character of its judgment; and if it transcend such limits, its judgments are void and may be so treated collaterally. Anthony v. Kasey, 83 Va. 338, 5 S. E. Rep. 176.
Want of Jurisdiction Apparent on Record.—While it is well settled that every reasonable presumption will be indulged in the support of the regularity of the proceedings, and the validity of the judgment of a court of competent general jurisdiction when both the subject-matter and the parties are within the territorial limits of the court’s jurisdiction; yet, even with respect to such a court, no presumption is allowable when the want of jurisdiction affirmatively appears on the face of the proceedings. Want of jurisdiction makes such judgments null, and they may be so treated by any court in any proceedings direct or collateral. Dillard v. Cent. Va. Iron Co., 82 Va. 734,1 S. E. Rep. 124.
Must Be Shown by Record.—The judgment of a court of competent jurisdiction is presumed to be right, but it will not be presumed that a question has been determined, unless it be shown by the record expressly or by necessary implication that it was in fact determined. Wynn v. Heninger, 82 Va. 172; Ferguson v. Teel, 82 Va. 690.
The validity of a judgment cannot be collaterally attacked on the ground that the court had no jurisdiction, unless the want of jurisdiction appears upon the face of the record. Wandling v. Straw, 25 W. Va. 692; Smith v. Johnson, 44 W. Va. 278, 29 S. E. Rep. 509.
But, in a collateral attack'upon a judgment of a court of general jurisdiction, the recital in the judgment that the defendant was duly served with notice as required by law, is conclusive of that fact, unless there is something in the record which plainly shows that the defendant did not have notice, or the character of the proceeding is such as to make it necessary that the evidence of notice should affirmatively appear in the record. Chesapeake & Western R. Co. v. Washington, Cincinnati & St. Louis Railway, 99 Va. 715.
“To impeach and overturn judgments of courts of competent jurisdiction involves consequences of too much moment to be lightly regarded; and when a coart of general jurisdiction has pronounced judgment, its adjudication should be as conclusive on the question whether a party was duly notified as on any other point necessary to a proper determination of the canse.” Ferguson v. Teel, 82 Va. 696.
B. GROUNDS OF ATTACK.—A judgment of a court of record cannot be impeached in another action, except for want of jurisdiction in the court, or fraud in the parties or actors in it. “This is a settled doctrine of the courts. It is not merely an arbitrary rule of law, established by the courts, but it is a doctrine founded upon reason and the soundest principles of public policy. It is one which has been adopted in the interest of the peace of society and the permanent security of titles. If, after the rendition of a judgment by a court of competent jurisdiction, and after the period has elapsed when it becomes irreversible for error, another court may in another suit enquire into the irregularities or errors in such judgments, there would be no end to litigation, and no fixed established rights. A judgment, though unreversed and irreversible, would no longer be a final ad judication of the rights of litigants, but the starting point from which a new litigation would spring up; acts of limitation would become useless and nugatory; purchasers on the faith of judicial process would find no protection; *261every right established by a judgment would be insecure and uncertain, and a cloud would rest upon every title." Lancaster v. Wilson, 27 Gratt. 624, and note; Woodhouse v. Fillbates, 77Va. 317; Gray v. Stuart, 33 Gratt. 351; Lavell v. McCurdy, 77 Va. 763; Blanton v. Carroll, 86 Va. 539,10 S. E. Rep. 329; Fair-fax v. Alexandria, 28 Gratt. 16, and note.
Errors Not Affecting Jurisdiction.—Where a judgment or decree of a court of civil jurisdiction is offered in evidence, collaterally in another suit, its validity cannot be Questioned for errors which do not affect the jurisdiction of the court. Hall v. Hall, 12 W. Va. 1; Miller v. White, 46 W. Va. 67, 33 S. E. Rep. 332; Cooper v. Reynolds, 10 Wall. (U. S.) 308.
The maxim, omnia prasumuntur rite esse acta, applies to sustain the judgments and decrees of a court, rather than forced presumptions to defeat them. Pennybacker v. Switzer, 75 Va. 671.
“The settled rule of law is, that jurisdiction having attached in the original cause, everything done within the power of that jurisdiction, where collaterally questioned, is to beheld conclusive of the right of the parties unless impeached for fraud. Every intendment is made to support the proceedings ; it is regarded as if it were regular in all things, and reversible for error.” Connett v. Williams, 20 Wall. (U. S.) 249, approved in Pennybacker v. Switzer, 75 Va 671.
Judgment Presumed Right.—Where the judgment of, and actions of, the court below is definite, and intelligibly presented in the record, and does not appear from the record to be wrong, it is presumed to be right, and cannot be collaterally attacked. Rams-burg v. Erb, 16 W. Va. 777; Anderson v. Doolittle, 38 W. Va. 629, 18 S. E. Rep. 724 ; Cox v. Thomas, 9 Gratt. 323 ; Shelton v. «Tones, 26 Gratt 891, and note ; Ferguson v. Teel, 82 Va. 690 ; Wright v. Smith, 81 Va. 777 ; Womack v. Tankersley, 78 Va. 242 ; Harman v, Lynchburg, 33 Gratt. 37 ; Shipman v. Fletcher, 91 Va. 473, 22 S. E. Rep. 458; Hill v. Woodward, 78 Va. 765 ; Sargeant v. Irving, 2 Va. Dec. 338, 24 S. E. Rep. 334.
“Nothing is better settled than that the judgments and decrees of a court of general jurisdiction, acting within the scope of its authority, are presumed to be right until the contrary appears, and are not open to collateral attack ; and this is so even though the party against whom, or in whose favor, the judgment or decree was rendered was dead at the time. Such a judgment or decree is irrevocable in a collateral action, not because a judgment rendered without notice is good, but because the law does not permit the introduction of extrinsic evidence to overthrow that which, for reasons of public policy, it treats as an absolute verity. The record is conclusively presumed to speak the truth, and can be tried only by inspection.” Pughv. McCue, 86 Va. 475, 10 S. E Rep. 715.
The rule was stated thus in Board v. Dunn, 27 Gratt. 608: “The principle is universal, that an appellate court in reviewing the decision of the trying court, will always presume that the verdict and judgment were founded upon sufficient evidence unless the contrary is plainly made to appear. This principle is carried so far, that where there is a bill of exceptions professing to state the evidence, this presumption will still prevail, unless it can be fairly inferred that it contained all the evidence adduced af the trial. See Cooper v. Hepburn, 15 Gratt. 551.”
Motion to Abate, Bill of Exceptions, etc,—Where there is in the record no motion to abate the attachment, no exception to the rulings of the court below, no bill of exceptions, no certificate of the evidence or of the facts proved, then the supreme court must presume the judgment tobe right. Kenefickv. Caulfield, 88 Va. 122,13 S. E. Rep. 348.
Want of Notice—Onus Probandi.—However assailed, unless want of authority plainly appears on the face of the record, every presumption exists in favor of the judgments of courts of general jurisdiction, and the entire record will be inspected. The same rule prevails where the defendant alleges want of summons or notice, and the onus of showing want of notice is on the impeacher. Mere failure of the record to state affirmatively that notice was given, is insufficient for the impeachment. Hill v. Woodward, 78 Va. 765 ; Ferguson v. Teel. 82 Va. 690.
Jurisdiction Statutory,—The rule as to the conclusiveness of an unreversed judgment of a court of competent jurisdiction, applies with equal force in respect to a judgment where the jurisdiction exercised is purely statutory. Wimbish v. Breeden, 77 Va. 324; Pennybacker v. Switzer, 75 Va. 671.
Judgment in Personam against Nonresident.—A personal judgment for money against a nonresident on publication, without service of process or appearance is void, is no lien on the land, and may be attacked collaterally. Fowler v. Lewis, 36 W. Va. 112, 14 S. E. Rep. 447. See also, Gray v. Stuart. 33 Gratt. 351.
Judgment for Costs.—Where a court is wholly without jurisdiction to render any judgment against a party, a judgment or decree rendered by such court for costs is wholly inoperative and void in any direct or collateral suit or proceeding. Hall v. Hall, 30 W. Va. 779, 5 S. E. Rep. 260. See also, Grinnan v. Edwards, 21 W, Va. 347.
Right to Be Heard.—“it is a cardinal principle in the administration of justice, that no man can be condemned or divested of his rights until he has had the opportunity of being heard ; and if judgment is rendered against him before that is done the proceeding will be as utterly void as though the court had undertaken to act where the subject-matter was not within its cognizance.” Underwood v. McVeigh, 23 Gratt. 419 ; Staunton Perpetual B. & L. Co. v. Haden, 92 Va. 201, 28 S. E. Rep. 285.
Absence in Military Service.—Where process in an action of debt was served upon a defendant whilst he was in the military service of the Confederate States, and there is an office judgment confirmed whilst he is in the service, the judgment is a valid judgment, and cannot be questioned in another suit Terry v. Dickinson, 75 Va. 475 ; Turnbull v. Thompson, 27 Gratt. 306.
Mere Absence of Return.—Thus, mere absence of return of service on summons is insufficient for impeachment where the record shows that at rules the cause was matured as to all the defendants. The assailant must show want of summons. Ferguson V. Teel, 82 Va. 690.
United States Court.—A judgment rendered in a United States district court in 1830 vacating a commission of bankruptcy issued in 1801, cannot now be collaterally impeached. Harman v. Stearns, 95 Va. 58, 27 S. E. Rep. 601.
County Courts.—“The county court is a court of record, and its judgments or sentences cannot be questioned, collaterally in other actions, provided it has jurisdiction of the cause. And this is to be understood as having reference to jurisdiction over the subject-matter ; for though it may be that the facts do not give jurisdiction over the particular case, *262yet if the jurisdiction extends over that class of cases, the judgment cannot he questioned; for then the question of jurisdiction enters into and becomes an ■essential part of the judgment of the court. Thus, if a county court were to give judgment of death against a white man, the sheriff would have no lawful authority to execute him ; or if a court of chancery were to grant probate of a will, it would be ipso facto void, since that court has no jurisdiction in any case of probates. It is held void ipso facto because no inquiry is necessary to ascertain its invalidity. But where the court has jurisdiction of cases ejusdem generis, its judgment, in any case, is not merely void; because its invalidity cannot appear without an inquiry into the facts ; aninquiry, which the court itself must be presumed to have ■made, and which will not therefore be permitted to be revived collaterally." Fisher v. Bassett, 9 Leigh 131. See Devaughn v. Devaughn, 19 Gratt. 556 ; Shelton v. Jones, 26 Gratt. 891.
Unauthorized Appearance of Attorney.—“It has been contended by eminent jurists, and many adjudicated cases have given color of authority to the proposition insisted upon by the defendant in error here, that where there has been no service of process on the defendant, and he has not personally appeared to the action or proceeding, and the record shows that the defendant ‘appeared by his attorney, ’ in a collateral proceeding founded upon such judgment, or in a proceeding wherein the effect of such judgment properly comes in question, such defendant may in such collateral proceeding impeach such judgment by proving that he did not in fact so appear by attorney, and that the attorney who assumed authority to appear for him, had no authority to do so.” Wandling v. Straw, 25 W. Va. 692.
Courts of General Jurisdiction.—If a court of general jurisdiction had jurisdiction to render the judgment which it did render, no error in its proceeding which did not affect its jurisdiction will render the proceeding void, nor can such errors be considered when the judgment is collaterally brought in question. Wandling v. Straw, 25 W. Va. 690; Cox v. Thomas, 9 Gratt. 323; Woodhouse v. Fill-bates, 77 Va. 317.
Where the case is submitted to the court in lieu of a jury, upon its merits, it is presumed that the prerequisites necessary to the making of the judgment were complied with by the court, whether the record of the judgment recites the fact or not. Phelps v. Smith, 16 W. Va. 522.
The judgment of the circuit court against a high sheriff is conclusive of its jurisdiction, unless reversed on appeal, and his deputy and sureties cannot question it on the motion of the personal representative of the high sheriff against them. Cox v. Thomas, 9 Gratt. 323.
Special Statutory Court.—Where a court of general jurisdiction acts within the scope of its general powers, its judgments will be presumed to be in accordance with its jurisdiction, and cannot be collaterally impeached. So also, when a court of general jurisdiction has conferred upon it special powers by special statute, and such special powers are exercised judicially, that is, according to the course of the common law and proceedings in chancery, such judgment cannot be impeached collaterally. Pulaski County v. Stuart, 28 Gratt. -872, and note.
But where a court of general j urisdiction has conferred upon it special and summary powers, wholly derived from statutes, and which do not belong to it as a court of general jurisdiction, and when such powers are not exercised according to the course of the common law, its action being ministerial only and not judicial, in such case its decision must be regarded and treated like those of courts of limited and special jurisdiction, and no presumption of jurisdiction will attend the judgment of the court. But in such cases the facts essential to the exercise of the special jurisdiction must appear upon the face of the record. Pulaski County v. Stuart, 28 Gratt. 872.
Degree of Proof Required.—Mere absence of return of service on summons against husband and wife is insufficient for impeachment, where there is nothing in the record to show affirmatively that process was not served on the wife as well, and where the record shows that at rules the cause was matured as to all the defendants, the court saying, “To impeach a judgment under, such circumstances, it being a judgment of a court of general jurisdiction, and the party being within its jurisdictional limits, it is not enough to raise a doubt merely; nor will it suffice that the record fails to show that notice was given, the onus lies upon the party assailing the j udgment to show that it is wrong, and it is only when he satisfies the conscience of the court that the judgment is wrong, that it should be disturbed, the recognized rule being that everything must be presumed in favor of the proceedings of a court of general jurisdiction, unless there is a plain excess or want of authority." Ferguson v. Teel, 82 Va. 697.
Void Judgments.—“Avoid judgment is exm termini a nullity, and may be so declared and treated by this and every other court when the validity or invalidity of the judgment is a question to be determined; either in a direct or collateral proceeding.” Burks, J. Wade v. Hancock, 76 Va. 620; Lavell v. McCurdy, 77 Va. 763; Hollins v. Patterson, 6 Leigh 457; Morgan v- Ohio River R. Co., 39 W. Va. 17,19 S. E. Rep. 588.
“A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings on it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void.” Freem. Judgm. § 117; Anthony v. Kasey, 83 Va. 338, 5 S. E. Rep. 176; Wade v. Hancock, 76 Va. 626; Lavell v. Jordan, 77Va. 763; Staunton Perpetual B. & L. Co. v. Haden, 92 Va. 201, 23 S. E. Rep. 280; L. &. W. R. Co. v. Taylor, 93 Va. 226, 24 S. E. Rep. 1013; Grinnan v. Edwards, 21W. Va. 347; Neale v. Utz, 75 Va. 484.
Jurisdiction of Subject-natter.—1The general and well-established rule of law is that when proceedings are collaterally drawn in question and it appears upon the face of them that the subject-matter was within the j urisdiction of the court, they are voidable only. The errors and irregularities of any court are to be corrected by some direct proceeding either before the same court to set them aside, or in an appellate court. Pennybacker v. Switzer, 75 Va. 671; Lancaster v. Wilson, 27 Gratt. 624; Gibson v. Beckham, 16 Gratt. 321, and note.
Judge and Counsel.—where a judge sits in an action in which he is or has been counsel, such act renders the judgment voidable only, and not void. The proceedings are good and valid until set aside upon motion to the court in which they were had, or until reversed upon appeal or error by an appellate court. L. & N. R. Co. v. Taylor, 93 Va. 226, 24 S. E. Rep. 1013.
Judgment upon Defective Summons.—So also, a *263judgment rendered upon a defective summons after general appearance of the defendant is not void. Blair v. Henderson (W. Va.), 38 S. E. Rep. 552; Brown v. Chapman, 90 Va. 174.17 S. E. Rep. 855.
Nonresident Heirs.—A judgment or decree authorizing the sale of decedent’s lands to pay his debts is erroneous, where it appears upon its face that the affidavit on which rested the order of publication against the heirs as nonresidents was defective and insufficient. Hull v. Hull, 35 W. Va. 155, 13 S. E. Rep. 49.
Process, Notice, Summons.—But, a judgment against a person who has not been served with notice is a void judgment, and is ex vi termini, a nullity. Ferguson v. Teel, 82 Va. 690; Eavellv. McCurdy, 77 Va. 763; Wade v. Hancock, 76 Va. 620.
Notice to Officers—Strict Compliance with Statute.— For example, in a proceeding to confiscate property •of a person charged to be in re bellion, the directions of the attorney general are, that the method of seizure of the property shall be conformed as nearly as may be to the state law, if there be such; when therefore the proceeding is to confiscate debts due from a municipal corporation, the notice to the debtor must be upon the mayor or other officer named in the Virginia statute; and notice given to the auditor of the corporation is of no effect; and the judgment based upon such notice is null and void. Fairfax v. Alexandria, 28 Gratt. 16.
Fraud.—But, a judgment, valid on its face, cannot be impeached by other creditors except for fraud; and that cannot be done otherwise than by a direct proceeding brought to set it aside on that ground. First Nat. Bank v. Huntington, etc., Co., 41 W. Va. 530, 23 S. E. Rep. 792.
Thus, where it is sought to set aside or annul a regular judgment or decree upon the ground that it was obtained by fraud practiced by a party, or in prosecuting the suit or obtaining the judgment or decree, it is necessary, it is said, that the plea should state a case of actual fraud; and that the suit should be brought for the express purpose of impeaching the judgment or decree, otherwise it will be regarded as a collateral attack. Harrison V. Wallton, 95 Va. 721, 30 S. E. Rep. 372.
“The rule is, however, settled that unless there is good reason to impute fraud or collusion, a judgment is conclusive of the existence and amount of the debt, and cannot be impeached collaterally either by parties or by strangers.” Gentry v. Allen, 32 Gratt. 254.
Fraud and Collusion.—Where a judgment creditor files a bill against a debtor to subject his lands to the lien of his judgment, and makes a trust creditor of the same debtor who holds a deed of trust on the land a party, such trust creditor cannot question the validity of the judgment against the debtor, except upon grounds that would avoid it, between the judgment creditor and the debtor, or on the ground that there was fraud and collusion between them in procuring the judgment. Gentry v. Allen, 32 Gratt. 254.
Mistake, Surprise, Accident.—A judgment of a justice founded on a sufficient summons cannot be collaterally attacked in equity on the ground alone that the cause of action arose in another county, the place of the defendant’s residence; he can only be relieved therefrom collaterally on such equitable grounds as fraud, accident, mistake, surprise, or some adventitious circumstance beyond the control of the party. The question is purely legal, and does not give equity jurisdiction to review such j udgment. Newlon v. Wade, 43 W. Va. 283, 27 S. E. Rep. 244. See Hubbard v. Yocum, 30 W. Va. 740. 5 S. E. Rep. 867. See infra, this note, title, “Equitable Relief against Judgments.”
Unwarranted Reservation.—Thus, a judgment reserving from sale a sawmill on certain land, though there is nothing on the record to warrant the reservation, is not void, but voidable only by appeal, and cannot be collaterally attacked. First Nat. Bank v. Hyer, 46 W. Va. 13, 32 S. E. Rep. 1000.
Coverture—On the other hand, a judgment rendered by a court of common law against a married woman, either in her own name or in the name of the company, under which she does business, upon a contract made during coverture, is absolutely void, and an execution or suggestion sued out upon such judgment is invalid and ineffectual for any purpose. Such judgment may be assailed collaterally in proceedings upon a suggestion thereon. White v. Foote Humber & Mfg. Go., 29 W. Va. 385, 1 S. E. Rep. 572.
Infancy.—It is well settled, as a general rule, that an infant is as much bound by a decree against him as a person of full age. The law recognizes no distinction between a decree against an infant and a decree against an adult. Therefore an infant can impeach a judgment or decree only upon such grounds as would invalidate it in the case of another person, such as fraud, collusion, or error. Harrison v. Wallton, 95 Va. 721, 30 S. E. Rep. 372; Pennybacker v. Switzer, 75 Va. 688; Zirkle v. McCue, 26 Gratt. 517; 1 Min. Inst. (3d Ed.) 507, 508.
Thus the judgment of the board of commissioners, under the land law, is conclusive and cannot be impeached, notwithstanding the plaintiff was an infant at the time the j udgment was given. Stephens v. Cobun, 2 Call 440.
Death.—When there is a joint action against two or more persons, all of whom are served with process, and one dies before judgment, and his death is not suggested on the record, and there is a judgment rendered against all the defendants, such judgment cannot be collaterally attacked. King v. Burdett, 28 W. Va. 601; Watt v. Brookover, 35 W. Va. 323, 13 S. E. Rep. 1007, 29 Am. St. Rep. 811; McMillan v. Hickman. 35 W. Va. 705, 14 S. E. Rep. 227; Evans v. Spurgin, 6 Gratt. 107.
Commonwealth’s Lien.—Where a bond given to the commonwealth to secure the purchase money of land bought at a sheriff’s sale is on default returned to the circuit court from whence the venditioni exponas issued, whereby it acquired the force of a judgment against the principal and sureties, under Va. Code 1873, ch. 40, § 16, the lien of the commonwealth so acquired cannot be collaterally impeached in a suit brought by the trustee of one of the sureties, claiming a homestead under an earlier purchase of the land, to audit the liens of the latter’s creditors, in which suit the commonwealth, becomes a party. Spoils v. Commonwealth, 85 Va. 531, 8 S. E. Rep. 375.
C. WHO MAY IMPEACH.
Strangers.—All strangers are not entitled to impeach a judgment; it is only those strangers who, if the judgment were given full credit and effect, would be prejudiced in regard to some pre-existing right, that are permitted to impeach the judgment. Wilcher v. Robertson, 78 Va. 602; Cecil v. Clark, 44 W. Va. 659. 30 S. E. Rep. 216.
State.—Where a proceeding is instituted by a commissioner of school lands in a circuit court of a county to sell land forfeited for nonentry in that county, and there is a redemption under it, and the *264land declared exonerated from forfeiture, and it turns out that no part of the land is in the county of the court rendering the judgment, yet the state cannot, in a collateral proceeding, deny the validity of the judgment or redemption, for want of jurisdiction in the court. Cecil v. Clark, 44 W. Va. 659, 30 S. E. Rep. 216.
Third Persons.—Though a judgment cannot be collaterally attacked by one of the parties thereto; a third person, whose rights are affected thereby, is not thus precluded. Perpetual B. & L. Co. v. Haden, 92 Va. 201, 23 S. E. Rep. 285.
“The learned judge of the chancery court has declared that neither the judgment nor the substitution of other securities will prevent a court of equity, where a deed is sought to be impeached as voluntary, from looking to the original cause of action in order to ascertain whether it was a subsisting debt contracted at the time the deed was made. The correctness of that proposition will not be controverted; but where the rights of third persons have intervened, as in the case of a settlement upon a wife and children, it is certainly competentfor them to show that not only the judgment, but the debt upon which it is founded, has been satisfied and discharged by the substitution of a new security.” Morriss v. Harveys, 75 Va. 726.
XVI. CONCLUSIVENESS OP JUDGMENTS.
It is a well-established doctrine, that the unreversed judgment of a court of competent jurisdiction is conclusive, and cannot be collaterally attacked. Hill v. Woodward, 78 Va. 765; Wimbish v. Breeden, 77 Va. 324; Woodhouse v. Fillbates, 77 Va. 317; Fox v. Cottage Association, 81 Va. 677; Wilson v. Smith, 22 Gratt. 493; Howisonv. Weeden, 77 Va. 710; Cottom v. Cottom, 4 Rand. 192.
Jurisdiction of Subject-Hatter, Parties.—Jurisdiction of the subject-matter and the parties is essential to the conclusiveness of judgments or decrees. A court may rightfully obtain jurisdiction, and its decrees may be void, because, in the progress of the cause, it has exceeded its jurisdiction. In such case the decrees may be attacked directly or collaterally. Seamster v. Blackstock, 83 Va. 232, 2 S. E. Rep. 36.
“Golden Rule.”—The general rule is that verdicts and judgments bind conclusively, parties and privies ; because privies in blood in estate, and in law, claim under the person against whom the judgment is rendered; and they, claiming his rights are, of course, bound as he is. But, as to all others, they are not conclusively binding, because, it is unjust to bind a party by any proceeding, in which he has had no opportunity of making a defence, of offering evidence, of cross-examining witnesses, or of appealing if he was dissatisfied with the judgment; and this is called by the court, in Bourke v. Granberry, Gilmer 25, “a golden rule.” Munford v. Overseers of the Poor, 2 Rand. 313.
Judgment against Principal—Sureties.—But a judgment against a principal in a bond, is not conclusive evidence against his sureties. Munford v. Overseers of the Poor, 2 Rand. 313.,
It was said by Judge Green in Munford v. Overseers of the Poor, 2 Rand. 313, that, “the question, how far sureties are bound by a judgment, or other evidence against their principal, which estops or concludes him, has never as far as I am informed, been settled in this court, except in the case of Baker v. Preston, Gilmer’s Rep. p. 235, decided in the special court.”
The hooks kept by the treasurer are conclusive evidence of the balance actually in the treasury at any given time, both against the treasurer, and his sureties, without being pleaded as an estoppel, so as to charge them with balances carried forward from year to year, as if those balances were actually on hand. “These books thus conclusive against the treasurer, are also conclusive against his sureties. If a judgment against him is to bind them, so also is the evidence on which that judgment is rendered.” Baker v. Preston, Gilmer 235.
The admissions of partners are not evidence against each other after the dissolution, though both are bound, and both were conjunct and principals in the partnership transactions. Skelton v. Cocke, 3 Munf. 191; Bootes v. Wellford, 4 Munf. 215.
Judge Green in Munford v. Overseers of the Poor, 2 Rand. 313, said that these decisions seem to have a strong bearing on the question how far a judgment against a principal is conclusive against his surety.
But it has been held in an action by an execution creditor against the high sheriff for the failure of his deputy to pay over money made on the execution, where the deputy is present at the trial and examined as a witness, but there is verdict and j udgment for the plaintiff, that in the subsequent action by the high sheriff against the deputy and his sureties, on their bond with condition to indemnify the high sheriff from all loss and damages for the conduct of the deputy in the office, the- judgment against the high sheriff, in the absence of fraud and collusion, is conclusive evidence of the default of the deputy against not only the deputy, but also his surety, even though the declaration in the action by the high sheriff does not allege that the deputy was requested to defend the suit against the high sheriff or had an opportunity of doing so, or had notice thereto, but his presence at the trial and act of defence of the action may be proved by the oral testimony. Crawford v. Turk, 24 Gratt. 176, and note. In this case the court distinguished and explained the cases of Munford v. Overseers, 2 Rand. 213; Jacobs v. Hill, 2 Leigh 393; Baker v. Preston, Gilmer 235; Cox v. Thomas, 9 Gratt. 323.
Foreign Court of Admiralty.—The judgment of a foreign court of admiralty is not conclusive that the property and owners are enemies, in a suit between the underwriters and insured. Bourke v. Gran-berry, Gilmer 16.
Where the issue in a cause is one of law and fact namely, whether a judgment pleaded by the defendant as a set-off was assigned to him with the fraudulent intent of depriving the plaiDtiff of his legal right to exemptions and a second trial is had in a justice’s court upon this issue, and judgment rendered, such judgment, rendered in the second trial, is final and irreversible, and conclusive between the parties thereto as to all matters involved in that controversy, and under art. 3, sec. 13 of the Constitution of West Virginia. The facts involved in this issue, having been tried by a jury, cannot be otherwise re-examined than according to the rules at common law, and under sec. 91, ch. 50 of Va. Code, no new trial can be had in a court of equity. Ensign Mfg. Co. v. McGinnis, 30 W. Va. 532, 4 S. E. Rep. 788.
Legally Authenticated Record.—A record legally authenticated, of the proceedings of a court of competent authority, in any other of the United States, is conclusive evidence in the courts of Virginia, to show that a judgment was rendered, and that the party was compellable to pay the amount recovered *265against him; butit may be opposed by proof of fraud or collusion, or of subsequentpayments or discounts. Buford y. Buford, 4 Mnnf. 241.
Suit to Enforce Judgment Lien.—In a suit in equity to enforce a j udgment lien against the real estate of the judgment debtor, the judgment, as between the judgment creditor and other judgment creditors, is conclusive of the justness and amount of the debt. First Nat. Bank v. Huntington Distilling Co., 41W. Va. 530, 23 S. E. Rep. 792.
Conclusiveness as to Strangers.—Moreover, a judgment for a debt is conclusive, not only between the parties, but also as to strangers, to establish the amount and existence of the debt, and strangers can attack it only for fraud or collusion. Bensimer V. Fell. 35 W. Va. 15, 12 S. E. Rep. 1078.
Judgment Prima Facie Evidence.—Where a creditor, who claims under a judgment at law, comes into equity to enforce his judgment, that judgment is prima facie evidence against the debtor, or mere strangers; unless they can impeach it on the ground of fraud, or by showing that a full defence was not made, and can produce new proof showing that the debt is not due. Garland v. Rives, 4 Rand. 282; Bensimer v. Fell, 35 W. Va. 15, 12 S. E. Rep. 1078; Chamberlayne v. Temple, 2 Rand. 384.
XVII. ARREST OF JUDGMENT.
A. GROUNDS OF ARREST.
Errors Apparent on Face of Record.—It seems to be a well-established rule of law that a motion in arrest o f j udgment lies only to correct an error that is apparent on the face of the record. Gray's Case, 92 Va. 772, 22 S. E. Rep. 858; Hall’s Case, 80 Va. 555; Watts’ Case, 4 Leigh 672; Stephen’s Case, 4 Leigh 679; Hughes v. Frum, 41 W. Va. 445, 23 S. E. Rep. 604; Gerling v. Agricultural Ins. Co., 39 W. Va. 689. 20 S. E. Rep. 691; State v. Martin, 38 W. Va. 568, 18 S. E. Rep. 748; Com. v. Linton, 2 Va. Cas. 476.
Defect in Pleading—Joinder of Parties.—When a person, who ought to join as plaintiff, is omitted, and the objection appears upon the pleadings, the defendant may demur, move in arrest of judgment, or bring a writ of error. Prnnty v. Mitchell, 76 Va. 169.
Declaration Sufficient.—But where the declaration sufficiently sets forth a good cause of action, and there is no objection to the form or sufficiency of the verdict, a motion in arrest of judgment will be overruled. Travis v. Ins. Co., 28 W. Va. 584.
Defective Declaration.—Likewise, it is not error sufficient in arrest of judgment, in an action of assumpsit in a superior court of a county, that the declaration lays the venue in a different county and omits to state that the cause of action arose within the jurisdiction of the court. Buster v. RufEner, 5 Munf. 27.
Proferí.—Nor will judgment be arrested for omission to make profert of a bill. Terrell y. Atkinson, 2 Wash. 143.
No Offence Charged.—On the other hand where an information is filed on a defective presentment, but the defendant pleads to the information, and there is a verdict against him, he can arrest the judgment because the presentment charged no offence. Com. v. Chalmers, 2 Va. Cas. 76.
Improperly Receiving Juror.—Thus, a motion in arrest of judgment does not lie to correct an error in improperly receiving a juror, where the impropriety, if any, is only shown by a bill of exceptions. Gray’s Case, 92 Va. 772, 22 S. E. Rep. 858.
Petty Juror Not a Freeholder.—Nor is it a good reason for arresting a judgment, on a motion in arrest, that several of the petty jury were not freeholders, when this is a matter of fact not appearing on the record. Stephen’s Case, 4 Leigh 679.
Juror Pardoned.—So, a motion for arrest of judgment does not lie because a juror, convicted of a felony, had been pardoned in 1868. Puryear v. Com., 83 Va. 51, IS. E. Rep. 512; Edwards’Case, 78 Va. 43.
Consideration for Assignment—But judgment may be arrested, if, in assumpsit against the assignor of a bond, a consideration for the assignment is not set forth in a declaration. Hall v. Smith, 3 Munf. 550.
Statutory Elements Apparent.—Likewise, omission to direct a new venire facias or omission of any statutory essential apparent on the record, is such an error as may betaken advantage of after verdict by motion in arrest of judgment. Hall v. Com., 80 Va. 555.
Action in Requiring Bill of Particulars.—On the other hand, motion in arrest of judgment is not the proper method of raising the question as to the propriety of the court’s action in requiring the defendants in ejectment to file the particulars of their defence; the question should be raised by a bill of exceptions. Va. & Tenn. Coal & Iron Co. v. Fields, 94 Va. 102, 26 S. E. Rep. 426.
Failure to Set Forth Award.—A judgment in favor of a plaintiff, ought to be arrested after verdict, where he nfeglects to set forth the award in his declaration, and reply generally, in debt on bond with condition to perform an award, to be made by certain arbitrators, and aver a breach of the condition by special replication, the conditions being made a part of the record by oyer, and the defendant haying pleaded “conditions performed.” Green v. Bailey, 5 Munf. 246.
Variance.—However, where a party fails to take advantage in due time of a variance between the presentment of the grand jury and the indictment, a judgment thereon cannot be reversed by the appellate court. Wells v. Com., 2 Va. Cas. 333; Com. v. Jones, 2 Gratt. 555; Com. y. Chalmers. 2 Va. Gas. 76.
Objection to Jurisdiction—Nonresidence.—For example, nonresidence is not a ground for arresting a judgment; if it is good ground for objection to the jurisdiction of the court, it must be taken by plea in abatement before the defendant pleads in bar. Washington & New Orleans Telegraph Co. v. Hobson, 15 Gratt. 122. See Va. Code, ch. 171, § 19, p. 648.
Jurisdiction over Felonies.—But if upon an indictment for a felony the prisoner is tried and found guilty in the county or corporation court having no jurisdiction to try the prisoner, the verdict should be arrested, and all proceedings subsequent to the indictment should be quashed. Rider v. Com., 16 Gratt. 499.
After a verdict convicting a prisoner of a felony, a plea in arrest of judgment, that he has not been examined for the offence by a court of competent jurisdiction (alleging that the cori>oration court, by which he was examined, has no criminal jurisdiction), ought to be overruled; because the said plea suggests matter making no part of the record, but matter which, if true, is proper for a plea in abatement, or for a motion to quash the indictment. Com. v. Cohen, 2 Va. Gas. 158.
Verdict Uncertain and Defective.—But, judgment against a prisoner tried for a felony will be arrested, where the verdict against him is too uncer*266tain and defective to authorize a judgment thereon. Com. v. Hatton. 3 Gratt. 623.
Defective Service of Writ.—So also, if hy direction of the plaintiff, the writ be served on one only of two partners in trade, when the declaration shows that the plaintiff knew the names of both, and he gets a verdict upon the plea of nonassumpsit, pleaded by the partner, on whom the writ was served, judgment ought to be arrested. Shields V. Oney, 5 Munf. 550.
Errors of Committing Magistrate.—On the other hand, judgment will not be arrested because of errors in the examination before the committing magistrate, or because he was not examined for the felony of which he is indicted, for such objection comes too late after verdict. Morris v. Com., 9 Leigh 636; Angel v. Com., 2 Va. Cas. 231.
Statute of Limitations.—But after verdict for the plaintiff, on the plea of nil debet, it is no ground for arresting the judgment, that the claim, as shown by the declaration, was barred by act of limitations. Murdock v. Herndon, 4 Hen. & M. 200.
Informal Errors.—Where the clerk, in arraigning the prisoner, erroneously states to the jury the maximum punishment for the offence, but the jury fix the maximum punishment, showing that they were not misled by the error of the clerk, such error is not sufficient to set aside or arrest the judgment. Mitchell v. Com., 75 Va. 856. See also, Burgess v. Com., 2 Va. Cas. 483.
Arrest of Judgment, New Trial—Order of Consideration.—Where a motion in arrest of judgment and a motion for a new trial are made at the same time, and are acted upon by the court at the same time, the order in which they may be considered by the court is not material, as under such circumstances the motion in arrest of judgment cannot be regarded as a waiver of objection to its verdict, or as an admission that the verdict is unobjectionable. Gerling v. Agricultural Ins. Co., 39 W. Va. 689, 20 S. E. Bep. 691. See also, Sweeney v. Baker, 13 W. Va. 158.
Court May Arrest Ex Mero ilotu.—'Where the indictment and the verdict are fatally defective, a judgment may be reversed by the appellate court, though no motion in arrest of judgment was made in the court below. Bandall v. Com., 24 Gratt. 644; Old v. Com. 18 Gratt. 915.
Anything which is good cause for arresting a judgment, is good cause for reversing it, though no motion in arrest is made. Matthews v. Com., 18 Gratt. 989. See also, Bandall v. Com., 24 Gratt. 644.
Effect of Arrest—Discharge of Prisoner.—-Where the court, at a trial for murder, overrules a motion in arrest of judgment, but sets aside the verdict the next day ex mero motu, the defendant is not entitled to discharge on the ground that his motion in arrest of judgment has been allowed. Curtis v. Com., 87 Va. 589,13 S. E. Bep. 73.
Time for Motion.,
File Errors at Next Term.—It seems, that the party, to whom a new trial is granted, may, at the next term, without claiming such trial, file errors in arrest of judgment. Hall v. Smith, 3 Munf. 550.
Delay until after Verdict.—Where the objection to sending to the jury an indictment endorsed with verdict of guilty found atafirst trialis delayeduntil after verdict, such error, if any, cannot be remedied by motion in arrest of judgment. Forbes v. Com., 90 Va. 550,19 S. E. Bep. 164; Angel v. Com., 2 Va. Cas. 231.
Where the administrator of a defendant in detinue, who dies pending the action, consents that the cause shall stand revived against him, and instead of pleading de novo, goes to trial upon the plea put in by his intestate, he cannot, after verdict against him, arrest the judgment because of his own failure to plead anew. Greenlee v. Bailey, 9 Leigh 526.
Other Errors after Verdict.—Judgment cannot be arrested, after verdict against a defendant, because the presentment does not state whether the witnesses on whose evidence it was found, were called by the grand jury, or sent to them by the court, or because the name of the prosecutor was notwritten at the foot of the information. Com. v. Chalmers, 2 Va. Cas. 76.
Practice.—The appellate court, upon overruling a motion in arrest of judgment, will not send the case back for a decision upon the motion for a new trial, but will proceed to give final judgment for the plaintiff. Sims v. Alderson, 8 Leigh 479.
XVIII. SATISFACTION.
A. PAYMENT TO WHOM.
Attorneys.—The payment of a judgment or decree to an attorney of record, who obtained it, before his authority is revoked, and due notice of such revocation given to the defendant, is valid and binding on the plaintiff, so far as the defendant is concerned, and his receipt will discharge the judgment. Harper v. Harvey, 4 W. Va. 539; Yoakum v. Tilden, 3 W. Va. 167; Branch v. Burnley, 1 Call 147.
Cancellation of Satisfaction by Attorney.—The attorney who obtains a judgment may maintain an action to cancel an indorsement of satisfaction of the judgment, made by them, on the ground that the satisfaction was procured by fraud or mistake. Higginbotham v. May, 90 Va. 233, 17 S. E. Bep. 941. See monographic note on “Attorney and Client" appended to Johnson v. Gibbons, 27 Gratt. 632.
Deposit in Branch Bank.—Where the judgment debtor of a bank deposited money with the branch subject to his own check, and the money was lost by the bank’s failure, it was held that the deposit did not discharge the judgment. Spilman v. Payne, 84 Va. 435, 4 S. E. Bep. 749.
Payment to Sheriff after Return Day of Writ.—A payment to sheriff in discharge of an execution, after the return day of the execution is passed, is not binding on the creditor. Chapman v. Harrison, 4 Band. 336.
Payment to Clerk—Acceptance.—Where a judgment debtor, who is absent in the army, sends confederate money to his sonto pay the judgment, and the payment is made to the clerk, who deposits the money in the bank, with an “ear-mark.” and subsequently the judgment debtor and his son see the judgment creditor and tell him of this payment, but the latter does not accept in so many terms, such payment to the clerk does not discharge the judgment. Moore v. Tate, 22 Gratt. 351.
B. MEDIUM OF-PAYMENT.
Money.—The payment of the judgment or decree to an attorney of record must be a payment of money, or if not a payment of money, it must be accepted by the plaintiff in lieu of money, or the attorney must have special authority to receive it. Harper v. Harvey, 4 W. Va. 539; Wilkinson v. Holloway, 7 Leigh 277.
Confederate1 Honey.—The1 payment of confederate states treasury notes made to an attorney, without the authority of the plaintiff to receive them, was held not a payment in money that would satisfy a *267judgment or decree against the defendant. Harper v. Harvey. 4 W. Va. 539.
Bond.—An attorney at law has no power to receive in satisfaction of his client's judgments a bond from the judgment debtor. Smock v. Dade, 5 Rand. €39.
Substituted Note.—When the parties provided for the extinguishment of the judgment it may be fairly presumed they contemplate the extinguishment of the debt upon which it is founded. If the substituted note is accepted in satisfaction of the judgment the presumption is, in the absence of proof to the contrary, that it was accepted in satisfaction of the debt represented by the judgment. Morriss v. Harveys, 75 Va. 726.
Faulty Forthcoming Bond.—A faulty forthcoming bond, whilst in force, is a satisfaction of the judgment. and a second execution cannot issue until it is quashed. Downman v. Chinn, 2 Wash. 189; Rhea v. Preston. 75 Va. 757.
Forfeited Forthcoming Bond.—But where judgment is obtained against a principal and surety to a bond, and the latter gives a forthcoming bond, which is forfeited, the original judgment is not thereby satisfied, although any further proceedings on it will be barred, until the forthcoming bond shall be quashed. Randolph v. Randolph, 3 Rand. 490; Rhea v. Preston, 75 Va. 757.
Fi Fa. Returned “No Property.”—Where a ft. fa. issued on a judgment based on a forthcoming bond has been returned “noproperty,” equity will regard the bond as a nullity, and the original judgment as in full force. Cooper v. Daugherty, 85 Va. 343,7 S. E. Rep. 387. The court in this case said: “And in Rheav Preston, 75 Va. 744, it is said by this court: ‘When the obligors in a forthcoming bond, which has been forfeited and returned, though solvent when the bond was taken, become insolvent after-wards. the plaintiff may have the bond quashed, and be restored to his original judgment. And though the bond be not quashed, a court of equity will regard it as a nullity, and the original judgmentin full force.’ Jones v. Myrick, 8 Gratt. 211-12; Leake v. Ferguson, 2 Gratt. 432; Robinson v. Sherman, 2 Gratt. 178; Garland v. Lynch, 1 Rob. 545; Powell v. White, 11 Leigh 309.”
Satisfaction by Set-Off.—1The practice of setting off judgments is indicated in 2 Freem. Judgm. § 467, where it is said: “The satisfaction of a judgment may be wholly or partly produced by compelling the judgment creditor to accept in payment a judgment against him in favor of the judgment debtor, or. in other words, by setting off one judgment against another. This is usually brought about by a motion in behalf of the party who desires to have his judgment credited upon, or set off against, a judgment against him. The court in a proper case, will grant the motion. Its power to do this cannot be traced to any particular statute, and exists only in virtue of its general equitable authority over its officers and suitors.” See Zinn v. Dawson (W. Va.), 34 S. E. Rep. 784.
In West Virginia, opposite demands arising out of judgments or decrees between the same parties in the right may be set off against each other when it is equitable to do so and when the interests of third parties are not involved, but the court is not bound to set off such judgments in all cases, but in the same exercise of its discretion even when the set-off might be legally made, will not allow the set-off if it clearly appears that injustice will be done thereby. A party entitled to such set-off, having subject to his controla special fund primarily applicable to the satisfaction of the judgment, will not be permitted to avail himself of his right to set off against the assignee of such opposite judgment or decree until such special fund is exhausted, and then only for any unsatisfied balance of his demand. Payne v. Webb, 29 W. Va. 627, 2 S. E. Rep. 330, following Nuzum v. Morris, 25 W. Va. 559.
Judgment Annulled on Appeal.—A debtor cannot set off a judgment which has been annulled on appeal. Magarity v. Succop, 90 Va. 561, 19 S. E. Rep. 260. See Shipman v. Fletcher, 83 Va. 349, 2 S. E. Rep. 198.
Allowance of Set-Off Inequitable.—Where a suit in chancery was pending to subject land to the payment of liens charged thereon, and a decree of sale, and a decree confirmed in the sale were on petition of the debtor reversed in the appellate court and the judgment there entered for the debtor against the first lien creditors, for the costs in the appellate court, which judgment the creditor assigned to his attorney in part payment of his attorney’s fee and the cause was remanded, and it appeared that the property was sufficient to pay the first lien, and the court refused to allow the assignee and attorney to be paid out of the fund, but set off the judgment for costs against a part of the judgment against the assignor, it was held, that under the circumstances, the allowance of the set-off was inequitable, and should not have been made; but a decree should have been entered for the whole amount of the plaintiff’s claim against the debtor, and then the decree should have required the creditor, out of the money realized, to pay the assignee and attorney the amount of his claim. Payne v. Webb, 29 W. Va. 627. 2 S. E. Rep. 330.
Payments on Reversed Judgment.—If payments have been made on a judgment which has been reversed, they should be credited on the debt on which the judgment was rendered. Effinger v. Kenney, 92 Va. 245, 23 S. E, Rep. 742.
Voluntary Payment-Subrogation.—The voluntary payment of a debt by judgment constituting a lien on land, does not entitle the party paying it, to be substituted to the lien of the judgment creditor, the benefit of the doctrine of subrogation being extended by courts of equity only to those who are bound by law to pay debts or liens, as sureties or otherwise, or are compelled to pay in order to protect their own rights. Janney v. Stephen. 2 Pat. & H. 11.
Promise to Pay—Consideration.—A creditor’s forbearance to enforce a judgment against land on which it was a lien is a sufficient consideration for a promise by a subsequent purchaser of the land to pay it, although the landowner was not previously liable for the judgment. Bradshaw v. Bratton, 96 Va. 577, 32 S. E. Rep. 56.
It was held in Rowe v. Hardy, 97 Va. 674, 34 S. E. Rep. 625, that payments made in 1885 on a judgment rendered in 1869, admit that the judgment hadnot been discharged.
Effect of Releasing Principal.—A recovered judgment against B and C, his surety, and issued execution, which was levied on the property of B. A, on receiving a part payment of the judgment, gave B further time for the payment of the balance, and ordered the property to be released to B. It was held that in consequence the judgment was discharged at law, and the surety, not having assented to, or acquiesced in the agreement, was discharged inequity, and could have an injunction against a *268second execution. Baird v. Rice, 1 Call 18, 1 Am. Dec. 497.
C. PROOF OF PAYMENT.
Presumption of Payment from Lapse of Time.—Presumption of payment of a judgment cannot arise from lapse of time less than the period of limitation. James y. Life, 93 Va. 702,24 S. E. Rep. 275. See mono-graphic note on “Laches” appended to Peers v. Barnett, 12 Gratt 410.
Legal and Natural Presumption.—Upon a scire facias to revive a judgment which had been suspended by an injunction for forty-six years, issue was made up on the plea of payment and upon the trial the court instructed the jury, that the pendency of the injunction cause repelled the legal presumption of payment which would have arisen from lapse of time if the injunction had not been- pending, and it was held that such instruction was proper, and it was not necessary to distinguish to the jury between legal presumption and natural presumption arising from lapse of time. Hutsonpiller v. Stover. 12 Gratt. 579.
Lapse of Twenty-Three Years.—It was held in Brown v. Campbell, 33 Gratt. 402, that under the circumstances of the case, the proof is sufficient to establish the payment of a debt on which judgment had been rendered and execution issued twenty-three years before the filing of a bill to enforce the payment of the judgment. See also, Cox v. Carr, 79 Va. 28.
Insufficient Proof of Payment.—Where a defendant testified that he had satisfied a judgment filed in a creditors’ suit, with 'a debt due him from the plaintiff, who swore the contrary, and showed by receipts how he had paid the debt, and that at the time of the alleged satisfaction the judgment had been assigned as collateral to a third party, by whom it was subsequently reassigned, it was held that a confirmation of a commissioner's report, showing the judgment unpaid, was proper. Barrett v.. Wilkinson, 87 Va. 442,12 S. E. Rep. 885.
Indorsement on an Execution.—It was held in Saunders v. Prunty, 89 Va. 921,17 S. E. Rep. 231, where an execution issued on a judgment was indorsed levied, April 14,1861, on a negro named Wyatt, and was returnable on the first Monday in May following, that there was no prima facie presumption that the judgment was satisfied by such levy as the stay law was passed on the 30th of April, 1861, which fully accounts for no sale having been made, and a succession of stay laws prevented the sale of the slave, until the property was destroyed by emancipation. See also,' Shannon v. McMullin, 25 Gratt. 211; Hamilton v. McConkey, 83 Va. 533, 5 S. E. Rep. 724.
ilisrepresentation or Fraud.—A charge that a confession of judgment was obtained by fraudulently representing that the lien on the defendant’s land, for which lien the judgment was confessed, was still in force, when in fact, it was at the time barred by the statute of limitations, of which (the defendant was ignorant, is not sustained when it appears that, while the lien was in force, the defendant, for a valuable consideration, gave the plaintiff a promise in writing to pay the lien, for this he might have been compelled to do. Bradshaw v. Bratton, 96 Va. 577, 32 S. E. Rep. 56.
Arrest on Ca. Sa.—If a debtor be arrested on a ca. sa. and discharged by order of the creditor or his agent, no other execution can be had on the same judgment or decree. Windrum v. Parker, 2 Leigh 361.
But the taking in execution the bond of one of two joint obligors is no satisfaction of the debt, and does not bar an action against the other obligor. Atwell v. Towles, 1 Munf. 175.
But a judgment or decree authorizing the sale of decedent’s lands to pay his debts, but not declaring upon its face what particular debts are to be paid, or fixing their order or priority, is erroneous, and will not support a sale thereunder. Hull v. Hull, 35 W. Va. 155,13 S. E. Rep. 49.
Decree of Sale to Satisfy Judgment.—It is a settled practice in Virginia, to entertain the suit of the judgment creditor for relief in equity, when the debtor has, subsequent to the judgments, conveyed his land in trust for the payment of debts, or on other trusts authorizing the sale of land. And in such case, the court will decree a sale to satisfy the judgment. Taylor v. Spindle, 2 Gratt. 44.
XIX. FOREIGN JUDGMENTS.
While the judgment of a competent court of any state that has jurisdiction over the person or subject-matter is conclusive upon the merits of th.e controversy in every state, a court of another state has not the power, without service of process or voluntary appearance, to render a judgment on a contract, which is absolutely void, under the statute of the state where it is made. Stewart v. Northern Assur. Co., 45 W. Va. 734, 32 S. E. Rep. 218.
“Jurisdiction of the cause and parties is essential to the conclusiveness of the judgment or decree. To acquire jurisdiction of the defendant, it is necessary that in some appropriate way he be notified of the pendency of the suit. If upon inspection of the record, it appears that no such notice had been given, the judgment or decree is void. On the other hand, if it be a judgment or decree of a domestic court of general jurisdiction, and the record declares that notice has been given, such declaration cannot be contradicted by extraneous proof. * * * The record is conclusively presumed to speak the truth, and can be tried only by inspection. * * * * And especially is this so in respect to decrees under which sales are made to bona fide purchasers.” Wilcher v. Robertson, 78 Va. 602.
In order that the judgment of one state may have in another the effect provided for by the Constitution of the United States, art. 4, § 1, and the act of congress made in May 26, 1790, the court in which the judgment was rendered must have had jurisdiction of the case when itpronounced the judgment. Bowler v. Huston, 30 Gratt. 266.
Presumption as to Jurisdiction.—If the court of another state, which rendered a judgment sought to be enforced in the home state, is a court of general jurisdiction, the presumption is that it had jurisdiction of the particular case, and to render the judgment void, this presumption must be overcome by proof. Gilchrist v. W. Va. O. & O. L. Co., 21 W. Va. 115; Stewart v. Stewart, 27 W. Va. 167.
Inquiry as to Jurisdiction.—Where the judgment of a sister state is sought to be enforced in the home courts, the jurisdiction of the court rendering the judgment may be inquired into, and if it appear that the court had not jurisdiction, the judgment will be void. Crumlish v. Cent. Imp. Co., 38 W. Va. 390, 18 S. E. Rep. 456 ; Gilchrist v. W. Va. O. & O. L. Co., 21 W. Va. 115 ; Stewart v. Stewart, 27 W. Va. 167.
Where a court of law in the state of Maryland, having jurisdiction of the subject and person of the citizen, renders judgment in the cause, therein pending against such citizen, for money, the valid*269ity of such judgment, rendered by such court, cannot be questioned in the courts of West Virginia; nor will the courts of that state look int'o the transaction npon which the Maryland judgment is founded, in order to ascertain if that judgment ought not to have been rendered by that court. But while this is true generally, a judgment of the court of law rendered in West Virginia based npon a judgment of the court of law of Maryland, may be inquired into for equitable causes and equities, and, if not for all, for most of the causes, which would authorize an injunction in equity to a j udgment of a court of law of West Virginia. Black v. Smith, 13 W. Va. 780.
Judgment having been obtained in Louisiana against executors, and only partially satisfied by them, it is competent to pursue the assets in the hands of heirs and legatees in Virginia, and the Virginia court will only look at the Louisiana judgment, and not go behind it into the merits of the case. DeEnde v. Wilkinson, 2 Pat. & H. 663.
Partners Not Served with Process.—A judgment rendered in another state, against all the former members of a dissolved partnership, will not personally bind one of the partners who was not served with process and did not appear, although by the law of that state such judgment is enforceable against the joint partners; and in an action on such judgment in Virginia, such partner may show that he was not served and did not appear, although the record states that he was summoned and appeared. Bowler V. Huston, 30 Gratt. 266.
The following language was used by Tucker, P., in delivering the opinion of the court in Wilson v. Bank of Mt. Pleasant, 6 Leigh 574: “It seems to be agreed, on all hands, that the doctrine of the conclusiveness of the judgments of the respective states, is to be taken with the qualification that where the court has no jurisdiction over the subject-matter or the person, or where the defendant has no notice of the suit, or was never served with process and never appeared to the action, the judgment will be esteemed of no validity.”
“It is not a question of state policy, whether we will or will not give effect to the j udgments of courts of competent jurisdiction of other states. It is a question, whether he will in good faith live up to the constitutional obligations, which we have assumed.” Stewart v. Stewart, 27 W. Va. 167.
Illustration.—Where the plaintiff’s intestate is killed, through the defendant’s negligence, in West Virginia, and the plaintiff institutes his action in Virginia to recover damages therefor where the defendant is found, a judgment of the Virginia court would be a bar to au action by an administrator appointed in West Virginia, brought in that state against the defendant, the rights of the parties being determinable by the laws of that state, which do not provide that suit shall be brought only by a personal representative appointed there. Nelson v. C. & O. R. Co., 88 Va. 971, 14 S. E. Rep. 838.
A. JUDGMENTS OP SISTER STATES.—It is well settled that the judgment of a sister state must be accorded in the home state the same faith and credit which it has in the state where rendered. Wells-Stone Mercantile Co. v. Truax, 44 W. Va. 531, 29 S. E. Rep. 1006; Crumlish v. Imp. Co., 38 W. Va. 390, 18 S. E. Rep. 456; Gilchrist v. W. Va. O. & O. L. Co., 21 W. Va. 115; Stewart v. Stewart, 27 W. Va. 167.
But a judgment in a court of a sister state, without service of process in any manner, and without appearance, is void in the home state. Crumlish v. Cent. Imp. Co., 38 W. Va. 390, 18 S. E. Rep. 456.
Judgments of Sister States Are Domestic Judgments. —Under the provision of the Constitution of the United States, art. 4, § 1, judgments of another state of the Union, are not to be regarded in Virginia as foreign judgments, but have the same effect as judgments of our own courts. Clarke v. Day. 2 Leigh 172.
“In American state courts, the unbroken current of decision has been that foreign judgments, as contradistinguished from the judgments of the courts of a sister state, are not conclusive.” Parker, J. Draper v. Gorman, 8 Leigh 637.
“It seems beyond controversy that the validity of the contract upon which a judgment is rendered by a court of competent jurisdiction in a foreign state is established by the judgment, and the judgment must be given the same credit and effect in the state, in which it is sought to be enforced, as it had in the state where rendered. 2 Black, Judgm. § 925; Clarke v. Day, 2 Leigh 172; Dicey, Confd. Laws 435.” Vaught v. Meador, 99 Va. 569, 39 S. E. Rep. 225.
It was held in Black v. Smith, 13 W. Va. 780, that the defendant to a Maryland judgment, to whom a day and opportunity has been allowed to make his defence in the court of law in Maryland, which rendered the last-named judgment, against the demand, for which such judgment was rendered, but who has wholly failed to avail himself of them, will not be entertained in the court of equity of West Virginia on a bill seeking relief against a judgment rendered by a court of law, based upon said Maryland judgment, rendered in consequence of his default, upon the ground, which might have been successfully taken in the Maryland court of law, unless some reason founded in fraud, accident or surprise, or some adventitious circumstances beyond the control of such defendant, be shown why the defence was not made in the Maryland court.
Does Not Affect Land Elsewhere.—A judgment or decree of a court of another state has no effect to pass title to or affect land in West Virginia, nor can a sale or conveyance under it by a trustee or commissioner appointed by it do so. Wilson v. Braden (W. Va.), 36 S. E. Rep. 367.
“No court, which is but a creature of the state, can, by its judgments or decrees, directly bind or affect property beyond the limits of that state ; and hence it is axiomatic that no writ of sequestration, or execution, or order, judgment or decree of foreign court, can be directly enforced against real estate situate without the limits of the foreign state.” Wimer v. Wimer, 82 Va. 890, 5 S. E. Rep. 536. See also, Dickinson v. 1-Ioomes, 8 Gratt. 410.
Foundation of Right.-The seizure of the property of the defendant under the proper process of the court, is generally the foundation of the court’s jurisdiction in proceedings^ rem, and defective or irregular affidavits, though they might reverse a judgmentor decree in such case for error, in departing from the directions of the statute, do not render such a judgmentor decree, or the subsequent proceedings, void. Hall v. Hall, 12 W. Va. 1.
Statute of Limitations,—It was held in Watkins v. Wortman, 19 W. Va. 78. that a judgment obtained in Ohio, if no bar there, is no bar in West Virginia, under § 13, ch. 104, Code W. Va. 1868, which provides that, “Every action upon a judgment or decree rendered in any other state or country shall be barred, if by the laws of such state or country such action *270would there be barred, and the judgment or decree be incapable of being otherwise enforced there.”
A judgment or decree against heirs in a suit in one state, authorizing the sale of decedent’s lands situated there to pay his debts, will not prevent the running of the statute of limitations against the suit in another state to subj ect the land situated therein to the payment of the same debts. Hull v. Hull, 35 W. Va. 155,13 S. E. Rep. 49.
Construction of Statutes.—If the validity of a foreign judgment depends upon the construction of the statutes of the state in which the foreign court rendered the judgment, the home courts will adopt the construction put upon the statutes by the courts of the state which enacted them. Gilchrist v. W. Va. O. & O. F. Co., 21 W. Va. 115.
Conflict of Laws.—In an action brought in Virginia, on a judgment obtained in North Carolina, the act of limitations of North Carolina cannot be pleaded in bar; but the law of the former must prevail; the act of limitations affecting the remedy, and not the right. “I consider the law as clearly settled, that whatever relates to the essence of the contract, is to be governed by the law of the place where the contract was formed ; but that which relates to the remedy for enforcing the contract is to be governed by the law of the place where the contract is sought to be enforced.” Jones v. Hook, 2 Rand. 303.
Merger.—A judgment in Maryland upon a covenant, binding upon the covenantor’s heirs, is not so merged with the covenant (the execution thereon having been returned “no effects”) as to prevent the covenantee from proceeding upon the covenant against the heirs of the deceased covenantor or in respect to real assets in Virginia. Beall v. Taylor, 2 Gratt. 532.
Federal Judgments.—Code of West Virginia 1868, ch. 130, § 5, applies as well to the record of the district court of the United States, held within the state, as to the records of the courts of the state ; and the copy of the judgment rendered in a district court of the United States, in the state of West Virginia attested by the clerk of that court according to the statute above mentioned, will ordinarily be received as evidence of the existence of such judgments ; but sec. 19 of ch. 130 of the W. Va. Code 1868, does not apply to the records and judicial proceedings of the district court of the United States, held within the state of West Virginia. Dickinson V. Railroad Co., 7 W. Va. 390.
Evidence.
Admiralty.—Qumre, how far is the sentence of a foreign court of admiralty, or other foreign tribunal, to be regarded as evidence by the courts of Virginia. Hadfield v. Jameson, 2 Munf. 53. See also, Bourke v. Granberry, Gilm. 16.
Authentication.—For a discussion of what is sufficient evidence to authenticate, in the courts of this country, the sentence, or act, of a foreign tribunal, or government, after the destruction of such government by revolution or conquest, see Hadfield v. Jameson, 2 Munf. 53.
Where in a suit pending in the court of probate of New Orleans, against the executors of a Louisiana testator, a certified copy of the record of a suit in Virginia against the administrator of the decedent, appointed by a court of competent jurisdiction in Virginia, is offered in evidence, and is held by the supreme court of Louisiana to be proper and sufficient evidence of a debt due from the estate, the court of Virginia cannot question the propriety of that decision, but must give effect to the judgment rendered in accordance with it. DeEnde v. Wilkinson, 2 Pat. & H 663.
Judgment against Decedent.—A record of a judgment against heirs in one state, authorizing the sale of decedent’s lands situated there for the payment of his debts, is not admissible as against such heirs, in an action in another state to subject lands of decedent situated therein to the payment of the same debts, either for the purpose of establishing them or fixing their amounts. Hull v. Hull, 35 W. Va. 155, 13 S. E. Rep. 49.
So also, a judgment or decree rendered in one state, authorizing the sale of decedent’s lands there to pay his debts, but which is void as to his-heirs, is not admissible against them in a suit in another state to subject the lands of the decedent situated there to the payment of the same debts. Hull v. Hull, 35 W. Va. 155, 13 S, E. Rep. 49.
Pendency of Suit in Foreign State.—It seems to be well settled that the pendency of a suit for a matter in a foreign state or territory is no bar to an action for the same matter in another state, either at law or in equity. The states in a jurisdictional sense are foreign to one another. The judgment of the court of another state does not merge the original cause of action in the home state. Davis v. Morriss, 76 Va. 21; Beall v. Taylor, 2 Gratt. 532.
XX. CONSTRUCTION.
A judgment in the name of the commonwealth, for W, treasurer of C county, founded on a notice in the name of the commonwealth proceeding by W, late treasurer of O, against F, the collector of township M, and his sureties, upon his official bond, is a judgment in the name of the commonwealth. On such a judgment the commonwealth, at" the relation of the auditor of accounts, may maintain a suit against F, collector of township M, and his sureties. Com. v. Ford, 29 Gratt. 683. See also, Brown v. Greenhow, 80 Va. 118.
Judgment in General Terms.—In an action against several defendants, the capias being returned executed in part only, who appeared and defended the suit, and a discontinuance as to the rest having taken place, by a failure to take out a further process against them, a judgment against the defendants in general terms, must be understood as against those only who appeared, notwithstanding the declaration charged them all as “in custody” etc., and the caption of the entry of the judgment in the order book mentioned the names of all. Moss v. Moss, 4 Hen. & M. 293; Graham v. Graham, 4 Munf. 205.
When the writ and declaration in the cause are against two defendants therein named, and the record shows that the defendants appeared in court by their attorney, and pleaded in bar to the declaration, and that the defendants made a motion, at the same time to the court in the cause, and after-wards, at another term of the court, the record recites, “this day came the parties,” etc., and judgment is rendered in favor of the plaintiff against the defendants, it must be taken that the judgment is against the defendants mentioned in the writ and declaration. Perry v. McHuffman, 7 W. Va. 306.
A judgment on a verdict virtually overrules all demurrers to the declaration, and each count thereof. Fleming Oil & Gas Co. v. South Penn. Oil Co., 37 W. Va. 645,17 S. E. Rep. 203; Hood v. Maxwell! 1 W. Va. 219. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481425/ | By the Court.
The judgment is affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481426/ | By the Court.
The judgment is affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481427/ | By the Court.
The judgment is affirmed.
Smith and Lomax, J’s, dissented. | 01-04-2023 | 11-07-2022 |
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