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APRIL, 1830

Bullitt's Executors

V.

Winstons.

the security, Rice, acquiesced in the arrangement for the discharge of the property, whereas, nothing of the kind is shewn in the case before us.

I think this a very plain case, and that the judgment of the District Court quashing the second execution, should be affirmed.

Judge FLEMING concurred.

The judgment was therefore unanimously AFFIRMed.*

Note. Some doubts, at first, existed, in this case, whether, as the second execution was not levied on the property of Samuel Jordan Winston, (the only appellee before the Court,) it was competent for him to move to quash it. But it was resolved by the Court, that he had such an interest in the question as enabled him to move to quash the execution.

Wednesday,
April 18.

1. A plea in abatement

be received to

ment; unless

Bradley against Welch.

IN an action of debt, instituted by Thomas Bradley ought not to against James Welch, in the District Court of Fredericksset aside an burg, the writ issued December 12th, 1799, with an enoffice judg dorsement thereon "that bail was required." The Serit be of matter jeant of the town returned it "Executed, and Thomas R. puis darrein Rootes, appearance bail." At Rules in the Clerk's office, May 16th, 1800, declaration was filed in the usual form, on pearance bail a promissory note; and the defendant at the same time “by is required,

which arose

continuance.

2. Where ap

the defendant his attorney offered a plea, on oath, stating, that he is a recannot appear sident of the County of Greenbriar, in the District of the

at the rules,

without giving Sweetsprings, and has resided there for five or six years;

special bail.

and that his only and known residence is in the said County and District; and that he never did reside in the County of Spottsylvania, or in the District of Fredericksburg, nor was the security entered into within the said District of Fredericksburg; and this he is ready to verify; wherefore he prays judgment of the said writ, and prays the same may be quashed.”

The plaintiff's counsel rejected this plea, and the Clerk submitted the question to the Court, whether it ought to be received, without first filing special bail.

The cause having been from time to time continued until the 14th October, 1802, the Court on that day decided "that the Clerk has no discretion; but, where appearance bail is required, the defendant cannot appear at the Rules, without first putting in special bail; and therefore the plea was rightly rejected." At the ensuing Rules, the defendant failing to file special bail, a conditional judgment was entered against him. At the Court held for the said District, May 16th, 1803, Thomas R. Rootes, the appearance bail, undertook as special bail, and again offered the same plea which had formerly been rejected. The counsel for the plaintiff again objected; but the Court (as appears from a bill of exceptions signed by the Judge)" being informed by the Clerk that the delay in this case had proceeded from some misunderstanding between the plaintiff's counsel and himself, respecting the course which ought to have been taken at the Rules, and not from any default on the part of the defendant, were of opinion that this cause should be considered as standing on the same ground as if the writ had been returnable to the last term, and therefore admitted the defendant to file his said plea, leaving it to the plaintiff to demur thereto, if he thinks proper." Whereupon, the judgment obtained in the office was set aside, and the cause sent to the Rules; where, in August, 1803, the plaintiff filed a general demurrer to the plea, and issue in law was joined; upon which the Court, at August term, 1804, gave judgment for the defendant; and the plaintiff appealed.

APRIL,

1810.

Bradley

Welch.

1 Stra. 522.

1

1

Williams and

Williams, for the appellant. The Court erred in receiv- (a) 1 Bac. 2. ing a plea in abatement to set aside an office judgment: for, Curwen v. even after imparlance, it is too late to exhibit such plea. (a) Fetcher According to the act of Assembly which limits the juris- Wash. 153. diction of the District Courts,(b) the proper time to have Roy, Ex'rs of taken advantage of the objection was at the "first calling" Campbell. S Tuck. Bl. Apof the cause, which was at the first Rules after the return of pendix, 50, 51. the writ. The proper mode of objecting to the jurisdiction Code, p. 77. s. (b) 1 Rev.

Corrie, v.

24.

APRIL, 1810.

Bradley

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Welch.

is by plea, that the plaintiff may have an opportunity to reply, that a writ had issued against the defendant in his own District, and been returned "non est inventus." But the plea could not be filed without special bail, which the defendant failed to give.

The Court's admitting it, on the ground of some misunderstanding between the Clerk and the plaintiff's counsel, cannot cure the defect; for the defendant had been guilty of default long before.

2. This plea was bad upon general demurrer. It should (a) 1 Bac. 2. have been pleaded in propria persona,(a) and not by attor(b) 1 Vent. ney, without special leave of the Court.(6)

183. 2 Keb.

143. pl Lutw. 22.

16.

Thursday, May 10. The Judges pronounced their opi

nions.

Judge ROANE. The question in this case is, whether the District Court rightly received the plea in question, on setting aside an office judgment. It is a plea, stating that the defendant was a resident of another District, and that the debt sued for was not contracted in the District in which the action was brought: it is also sworn to. It is, therefore, emphatically, a plea in abatement, and was so admitted to be by the defendant himself, by his having sworn to it it is merely dilatory, and does not go at all to the justice of the demand. I have no hesitation to say, that a plea of this character is inadmissible on setting aside an office judgment, under the provisions of our act of Assembly upon that subject. My reasons for this opinion were given (c) 2 Call, 49, at large in the case of Hunt v. Wilkinson, (c) and I shall not

repeat them. Although that opinion was in conflict with that of a majority of the Judges, in relation to the case then before the Court, nothing then said by the Court, or by the majority of the Judges, went the length of affirming, that pleas in abatement of every description, were admissible on setting aside an office judgment, or pleas of the particular character of the one now before us. In that case, the matter

pleaded happened after the office judgment was rendered; and on that ground the opinions of most of the Judges was predicated, and, perhaps, from the necessity of the case, may stand justified. That decision, however, is no authority in this case, where the matter of abatement was coeval (at least) with the institution of the suit, and the plea stating that matter, was actually sworn to within three days after the emanation of the writ. I am therefore of opinion, that the District Court erred in receiving this plea, and that the judgment should be reversed, and the cause remanded for farther proceedings.

Judge FLEMING, (after stating the case.) It seems to me that the plea in abatement was improperly admitted on setting aside the office judgment, which, by the 28th section of the District Court Law, could only be done on the defendant's pleading to issue immediately.

The case of Hunt v. Wilkinson differs essentially from the one before us. That was a plea puis darrein continuance, the cause of which arose after the office judgment had been entered, to wit, the appearance of the will, and new administration granted with the will annexed.

Judgment reversed; proceedings subsequent to the entry of judgment in the Clerk's office set aside; and cause remanded for farther proceedings.

Judge TUCKER did not sit in this cause, having signed the bill of exceptions in the District Court. He did it to settle the practice which had been different from the present decision of this Court; and expressed his entire concurrence with the decision.

APRIL, 1810.

Bradley

V.

Welch.

Wednesday,
May 2.

1. On a joint plea of not guilty," in trespass vi et

Brown and Boisseau against May

MAY brought an action of trespass vi et armis, in the Petersburg District Court, against the appellants, for breakarmis against ing and entering his close, and beating several of his slaves

two defend

his slaves, the

ants, for break- in the declaration named, "so that he was deprived of ing the plaintiff's close their service for a long time; and thrcumg down hisencloand beating sures 'round his field, whereby his wheat then and there defendants growing was trodden down and injured by a great number ought not to be permitted of cattle and horses belonging to divers people; and for to give in evidence, by way other wrongs, injuries, and enormities," &c. The defendof mitigation of damages, a ants pleaded not guilty," jointly. A bill of exceptions

license

from

to visit his ne

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the plaintiff to states that, on the trial, the defendants offered, in mitigaone of them, tion of damages, "the testimony of a witness tending to gro quarters, prove that the plaintiff had given a general permission to any of his Brown, one of the defendants, to visit his negro quarters,

and chastise

slaves who

mightbe found and to chastise any of his slaves who might be found acting acting impro

the other de

perly; the improperly; but the Court declared such testimony improbattery being committed by per on the plea of "not guilty," and would not permit the fendant; and same to be given, although the beating by the defendant no proof ap- Boisseau was in the presence, and with the assent, of the pearing that the slaves who other defendant Brown; since both the defendants had were beaten had acted im- joined in the same plea, and the act of beating the plaintiff's properly. slaves, in the declaration charged, had been committed by improper evi- the defendant Boisseau, to whom, it was admitted by the deto be fendants, no such permission had been given." Verdict and judgment for 150 dollars damages.

2. Illegal, or

dence ought

never

confided to the Jury,however unimpor tant it may be to the cause.

George K. Taylor, for the appellants. Authorities declare that, on the general issue, special matter shall not be given in evidence: but what do they mean? Not that the particular circumstances attending each case may not be laid before the Jury in mitigation of damages: for the plaintiff may lay before them what amounts to an aggrava

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