1821.

Hughes

V.

Blake.

A replication to a plea is an

plaintiff in this suit, swears to the very fact, which he had been produced to prove in the action at law respecting the declarations of Blake concerning Newman's note; and this he does without any variation from his former testimony, materially affecting the present suit. The other averment, therefore, in the plea, that no new evidence has come to the appellant's knowledge respecting the matters in litigation, is fully and satisfactorily established.

The truth of the plea being thus made out, what admission of its is to be the consequence? If the rule of Courts of point of equity, equity in England is to be applied, there can be no

sufficiency in

and all that the

defendant has doubt. If a plea, in the apprehension of the com

to do, is to

prove it in point plainant, be good in matter, but not true in fact, he may reply to it, as has been done here, and proceed to examine witnesses in the same way as in case of a replication to an answer: but such a proceeding is always an admission of the sufficiency of the plea itself, as much so, as if it had been set down for argument and allowed; and if the facts relied on by the plea are proved, a dismission of the bill on the hearing is a matter of course. Whatever objection there may be to adhering strictly to this course of proceeding in every description of cases, it is considered as the long and established practice of a Court of equity, which ought not lightly to be departed from. It is not perceived, that any serious mischief can arise from it. Counsel will generally be able to decide on the merits of any defence which may be spread on a plea, and if insufficient, it is not probable they will do otherwise than set it down for argument.

Nor will they ever take issue on it, but in a case which presents a very clear and sufficient defence, if the facts be proved. If a replication should be filed inadvertently, the Court would have no difficulty in permitting it to be withdrawn. But if the plaintiff will persevere in putting the defendant to the trouble and expense of proving his plea, it must be from an entire conviction that it contains a substantial defence, and in such case there is no hardship in a Court's considering it in the same light. But without applying the rule which has been mentioned, to the present case, the Court has no difficulty in saying, that the matters set forth in this plea, which has been drawn with great care and judgment, constitute a complete defence to the present action, and that the appellant has failed in showing any good cause why the judgment at law should not be conclusive on all the matters stated in the bill. Whatever claim he may at one time have had on Blake for one fourth of 75,000 dollars, secured by Barrel's notes, if Blake knew at the time of taking them of his interest to that extent, or for not taking a note for that amount in the name of Hughes himself, it is very certain, that with a full knowledge on his part, that Blake utterly denied a liability to account with any one but Gibson, he came to a settlement with him, by allowing him to accept of Gibson's draft, in his favour, in such way as to charge the fund on which it was drawn with so many deductions as entirely to exhaust it. And when he is apprised of this conditional acceptance by his agent, or the person who

1821.

Hughes

V.

Blake.

1821.

Hughes

Blake.

presented the draft, instead of returning it, or making any complaint, he acquiesces in it for seven or eight years, and then brings an action to enforce this very contract of acceptance, which he must have known put it in the power of the acceptor to make all the deductions from the fund in his hands, which were designated in the act of acceptance. After six years litigation in a Court of law, it is now attempted to revive the same controversy, at least in part, on an allegation that Blake received a compensation in some other way than out of the fund, on which the bill in his favour was drawn, for one of the liabilities mentioned in the acceptance. That this was not the case, is abundantly proved. But if Blake had other funds of Gibson, besides the note of Barrel, which he also considered as under Gibson's exclusive control, out of which his indemnity as bail might have been obtained, what right has Hughes now to complain, that such other funds were not applied in that way, after he had agreed or consented that this indemnity should come out of those funds of Gibson in the hands of Blake, out of which he was to be paid. Having come into the arrangement, Blake might well think himself at liberty, as it seems he did, to apply the other funds of Gibson in any other way which he and Gibson might think proper. Whether Gibson be liable to the appellant for the subtraction of any part of his fund for the payment of his debt, is a question not before the Court; but we cannot see that an application of them in express conformity with the agreement of

the parties to this suit, can give the appellant any claim on the respondent. At any rate, the plea having denied all the allegations which were relied on as grounds for removing the bar which it was anticipated would be interposed to the appellant's bill, and all the matters stated in the plea, on which issue was taken, having been fully proved, the Court is of opinion, that the decree of the Circuit Court must be affirmed, with costs.

Decree affirmed."

a Vide 1 Mason's Rep. 515. S. C.

1821.

Bartle

V.

Coleman.

(LOCAL LAW. PRACTICE.)

BARTLE V. COLEMAN.

Under the act of Assembly of Virginia, the defendant may enter special bail, and defend the suit at any time before the entering up of judgment upon a writ of inquiry executed; and the appearance of the defendant, or the entry of special bail, before such judgment, discharges the appearance bail.

If the defendant does not appear, or give special bail, the appearance bail may defend the suit, and is liable to the same judgment as the defendant would have been liable to; but the defendant cannot ap. pear and consent to a reference, the report and judgment on which is to bind the appearance bail as well as himself. Such a joint judgment is erroneous, and will be reversed as to both.

THIS cause was argued by Mr. Swann, for the March 8th.

1821.

Bartle

V.

Coleman.

March 10th.

plaintiff in error, and by Mr. Jones, and Mr. Taylor, for the defendant in error."

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This is a writ of error to a judgment rendered by the Circuit Court for the District of Columbia and county of Alexandria, against Andrew Bartle and Samuel Bartle, on a writ issued by George Coleman against Andrew Bartle, on the service of which, Samuel Bartle became bail for his appearance. The defendant in the Court below not having entered his appearance, a conditional judgment was entered at the rules held in the clerk's office, against the defendant and his appearance bail. This being an action on the case, the judgment at the rules was for no specific sum, but for the damages which the plaintiff in that suit has sustained, which damages are to be inquired into, and ascertained by a jury. After this writ of inquiry shall be executed, and not till then, a final judgment for the damages assessed by the jury is rendered by the Court. In the mean time, the cause stands on the Court docket for trial.

The act of Assembly respecting this subject is in these words: "And every judgment entered in the office against a defendant and bail, or against a de

a He cited Dunlop v. Laporte, 1 Hen. & Mun. 22. Gray v. Hines, 4 Hen. & Mun. 437. Fisher v. Riddle, 1 Hen. & Mun. 329.

b They cited Holdup v. Otway, 2 Wms. Saund. 106. and the cases there cited. Gould v. Hammersley, 4 Taunt. 148.