Reigne V. Dewees. are bound to give some damages if ever so small, even one cent, as laid down in 3 Black. 398. 1 Har. K. B. 190. 2 Str. 1259. Verdict set aside, with permission to plaintiff to send his cause to another jury. Present, GRIMKE, JOHNSON and TREZEVANT. Charleston District,1802. Privilege of one of the WILLIAM HASELL GIBBES against JOHN MITCHELL. DEBT on bond. Verdict for plaintiff. Motion for a debtor's in a new trial. joint and se veral bond on The bond on which this action was brought, was a joint account of his and several bond, given by the defendant and his brother being a mem ber of the le William B. Mitchell. The latter was a member of the legislature,shall the other co not protect gislature, and the suit was commenced at a time when he obligor on a was privileged from arrests, on account of his being a mem separate ac him on the same bond. tion against ber of the legislative body; he pleaded his privilege and it was allowed him; upon which his brother, the present defendant, claimed a similar privilege, on the ground that he was only security to the bond, and that the privilege extended to him as well as the principal; and that the privilege of the other co-obligor, would be illusory if it was not extended to him also; but the presiding Judge (WATIES) refused to allow the privilege to him, which had been extended to his brother the member of the legislature, or to postpone the trial, as the bond was joint and several, and the law did not know the defendant as security but as one of the principal debtors. The case then went to the jury, who found a verdict for the plaintiff against him. This was therefore a motion for a new trial, as it was alleged the judge had mistaken the law, in not allowing the defendant the same privilege which had been allowed the other co-obligor. But the other judges, after hearing argument, unanimously confirmed the decision of the judge in the circuit court below; because, on every joint and several bond, where the actions are separated against two or more defendants, every individual is liable in his separate and distinct capacity; and the privilege or exemption from arrest, which the law allows to one of the defendants, will not prevent the ordinary course of justice, against any of the other co-obligors. This privilege is not to be extended by implication, because a fellow debtor is entitled to legislative exemption from arrests. New trial refused. Present, GRIMKE, JOHNSON, TREZEVANT and BRE VARD. Gibbes V. Mitchell. JAMES CHARLES and THOMAS FRASER ads. PATRICK MOTION to reverse a decision made by a judge at chambers. A motion was made at chambers, before Mr. Justice TREZEVANT, for leave to plead double, and an order was signed by him for that purpose, as one of course; and this was a motion to reverse it. After due consideration, the Judges were of opinion, that this was not one of those kind of motions which came regularly before a single judge at chambers, but should be Charleston District,1802. All motions for leave to plead double, must be made in the circuit courts,sedente curia, and not before a judge at chambers; or before the constitutional court of ap peals, which has only an appellate ju risdiction. Charles and granted by the court, where the proceedings are filed and on record, sedente curia. Fraser ads. M'Leod. The defendants then moved for leave to plead double, but this motion was refused, on the ground that this court had no original jurisdiction, only an appellate one; consequently, the defendants must make their motion for this order in the circuit court below. Present, GRIMKE, JOHNSON, TREZEVANT and BREVARD. Charleston District,1802. JOHN HART, Sheriff of Charleston District, against ISAAC In the action of debt on a TOBIAS. DEBT on a replevin bond. Verdict for plaintiff. Mo replevin bond, tion for a new trial. the measure of damages As this was a bond for the performance of covenants, the must depend on the value only point for the jury was the quantum of damages. rent is more than they The plaintiff proved the amount of rent in arrear, which were worth was due by the tenant, and contended that the jury were But if the va lue of the bound to give that amount in damages against the defendant goods be more than the rent on this bond; as the tenant had eloigned, or carried off the in arrear, then the rent due goods seized and distrained for rent, together with interest is the true from the day it was due. measure of damages in such case; no interest is re- The defendant, on the other hand, alleged, that as he was coverable in either case, as only security on this bond, for the forthcoming of the goods levied on by the distress warrant, and which were replevied the condition of the bond is only to return the goods. by the tenant, that their value only was the true measure of damages, and that the jury could give no more. The presiding Judge (BAY) told the jury, as the law did not appear to be clearly settled on this point, that the best general rule in his opinion, would be for the jury to give the amount of the rent in arrear; as the act of replevying the goods seized, interposed between the landlord and his right to the goods, and prevented his common law remedy by distress; and as the delay was occasioned by the act of the tenant, he ought in justice to pay interest. The jury found accordingly the amount of rent in arrear and in terest. This was a motion for a new trial, on the ground of misdirection in the judge, and as a verdict against law. Mr. Cheves, in support of this motion, quoted Espinasse's Dig. 348. where it is said, that the sum to be recovered should only be the value of the goods distrained; also, 4 Durnford & East, 483. to the same point. He observed, that in 1 Henry Blackstone's Rep. 36. the law had been laid down to the contrary; but in 2 Henry Blackstone's Rep. 50. the law in vol. 1. p. 36. had been overruled, and the law in Espinasse confirmed. Mr. Ford, for the plaintiff, insisted, that the rent in arrear was the true measure of damages, and for that purpose quoted 6 Bacon's Abr. (new edit.) 84. and said the case in 2 Henry Blackstone, was a case against the sheriff, and therefore it was that the value of the goods was determined to be the true measure of damages, as he could not be answerable for more than their value. The Judges after due consideration, were of opinion, that every case of this kind must depend upon its own circumstances, which probably had occasioned the contradictory decisions mentioned in the books on this subject. They took the true rule to be this, that if the rent due be more than the value of the goods distrained, then the value of the goods should be the true measure of damages. But if the value of the goods be more than the rent in arrear, then the Hart V. Tobias. Hart V. Tobias. rent due should be the true measure. By this rule, all the parties would have substantial justice done them. If the goods were fully sufficient to pay off the rent, the landlord would gain the full benefit of his remedy; but if, on the con trary, the goods were not sufficient, the security to the replevin bond would not be entrapped, or obliged to pay more than the real value of the goods he was bound to see returned. But that no interest was recoverable in either case, as the condition of the bond is only to return or rede liver the goods, or pay the value. That at all events, a new trial must be granted, that the law may be settled on this subject. Rule for new trial made absolute. Present, GRIMKE, BAY, JOHNSON, TREZEVANT and BREVARD. Charleston "District,1802. A notary pub lic making out JOHN WILLIAMSON Endorsee of Promissory note against CASE against the endorsor on a promissory note of a protest from hand. Verdict for plaintiff. Motion for a new trial. the informa tion of a clerk, The defence set up in this case, was want of due notice is not a suffi of non-payment by the drawer, and although the protest ap cient ground for his enter- peared to be in due and proper form to prove due and legal ing it up in due form; it notice, yet upon the examination of the notary himself, it should be founded on appeared that he had sent his clerk to the house of the de his own per sonal know- fendant, who returned and told him he was out of town; ledge, he must not depend upon which information he entered up the protest. The hearsay. Though the presiding Judge (GRIMKE) charged the jury, that this was on clerk himself would be a competent witness to prove due diligence, in attempting to give due notice of non-payment by a drawer. |