Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

shall be set aside at any time, after a writ of enquiry awarded thereupon shall have been executed, unless good cause be shewn therefor.(x3) The court shall have control over all other proceedings in the office, during the preceding vacation, may correct any mistakes or errors which may have happened therein, and may, for good cause shewn, set aside any of the said rules or proceedings, and make such order concerning the same, as may be just and right.(y3) They may also, for good cause shewn, (dd) reinstate any cause discontinued during such preceding vacation. 1792, c. 66, 67, R. C.

40.78. Any new issue made up, on setting aside an office judgment, unless good cause be shewn for a continuance, may be tried at the same term.(ee)

not be denied, unless the application be unreasonably delayed, and has a tendency to delay the plaintiff in his trial: it will not even then be denied, if it be essential to the justice of the case, and a good reason be shewn for not having pleaded it sooner. Tomlin's adm'r v. How's adm'r, 1 Gil. 1, 7. A plea of the stat. of lim. ought not to be received after issue joined on another plea, (ex gra. non-assumpsit,) unless some good reason be assigned, why the plea of the stat. of lim. was not sooner tendered. Martin v. Anderson, 6 Rand. 19; and see Cox v. Rolt, 2 Wils. 253. And where defendant suffered an office judgment and writ of enquiry to be awarded at rules, which not being set aside at the succeeding term of the court, was called for trial at another termthe plea of the stat. of lim. ought not to be received to set aside the proceedings, without good cause shewn, why he had not appeared and pleaded the same at rules in the office, or at the next term of the court, after the office judgment was obtained, and the writ of enquiry awarded. Backhouse's adm'x v. Jones's adm'r, 5 Call, 462.

A special plea is offered, and plf. objects to its being filed, but the ground of his objection does not appear. The record only shews that the special plea was filed a year after the general issue had been pleaded. An appellate court cannot say that the plea was improperly received. Maggort v. Hansbarger, 8 Leigh, 532.

A deft. is not inhibited from pleading specially, what he might give in evidence under the general issue, unless the matter pleaded amounts to the general issue, that is to say, denies the allegations which the plf. is bound to prove. Where the cause of action is avoided, by matter ex post facto, such matter may always be specially pleaded, whether it could be given in evidence under the general issue or not. Ibid.

Eubank et al. v. Ralls's ex'or, 4 Leigh, 317-18.

(dd) See ante, note (v) p. 116.

(ee) See Mandeville v. Mandeville, 3 Call, 225; and Craghill et al. v. Page, 2 H. & M. 446.

In what case it is not proper to allow a writ of error to a judgment of the superior court of law overruling a motion made by the prisoner for a continuance. Smith v. Com. 2 Virg. Cas. 6.

The English rule on the subject of continuances, owing to the absence of witnesses-that the party, Hemings v. Robinson, Barnes's Notes, 436, or, (under particular circumstances,) a third person, Day v. Samson, Barnes's Notes, 448; Duberley v. Gunning, Peake's Cas. 97, [Deford v. Hayes, 6 Munf. 390,] shall make affidavit that the person absent is a material witness, without whose testimony the affiant cannot safely proceed to trial, and that he has endeavoured, [Hook v. Nanny et al. 4 H. & M. 157, note (1),] to get him subpænæd, has, (in substance,) been ingrafted into the Virginia rule.

It is the duty of a party who relies on the testimony of a sea-faring man, to endeavour to procure his deposition, whilst in this country, otherwise a continuance will not be granted on account of his absence. Deans v. Scriba et al. 2 Call, 415.

In Chamberlayne v. Higginbotham et al. Sup. Ct. Law, Henrico, the defendant moved for a continuance on the ground, (among others,) that W. S. a witness living in Buckingham co. (who was sworn by one of the defendants to be material to the defence, and without whose testimony the defendants could not safely go to trial,) was absent, though a summons for him was proved to have been delivered to the sheriff in due time. The court overruled the motion, because there was an order at the last term for taking the depositions of the witnesses of the parties de bene esse, and the defendants had not taken the deposition of the said W. S. and, at the last term, the cause was continued for the defendants, principally on account of said W. S.-By the court of appeals: The superior court erred in not granting a continuance on account of (y3) See the remarks of prest. Tucker, in the absence of W. S. the reasons given by

(13) In an action on the case, if there be an office judgment against the defendant, with a writ of enquiry, 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.

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

And any writ of enquiry awarded at the rules, may be executed at the next succeeding court, and final judgment be rendered thereupon, unless good cause be shewn for a continuance. Feb. 7, 1814, c. 18. [By act of March 19, 1839, writs of enquiry are dispensed with. The provision is, That in all actions now pending or hereafter to be brought, either in the circuit superior courts of law and chancery, or the county or corporation courts of this commonwealth, founded upon judgments, bonds, notes, bills, checks, drafts, covenants or agreements for the payment of a sum certain in money, or on accounts acknowledged in writing, signed by the party chargeable therewith, and in which actions writs of enquiry are to be executed; if neither party shall require a jury, it shall be lawful for such courts, in lieu of a jury, to assess the damages, and ascertain the time from which interest on the principal sum shall run, and render final judgment, in the same manner as if such damages and such time had been ascertained by the verdict of a jury. Acts 1839, c. 66, § 3, p. 43.]

41. 79. All judgments by default, obtained in the office, for want of appearance, or bail or plea, in which no writ of enquiry shall be awarded, and which shall not be set aside on some day of the next succeeding term as aforesaid; and all non-suits and dismissions, obtained in the office, and not so set aside, shall be considered as final judgments of the last day(ff) of the term, and executions may issue thereupon accordingly. Every such execution in favour of the plaintiff in any action of debt, founded upon any bond, bill, promissory note, or other writing, for the payment of money(gg) or tobacco, shall

the court for rejecting the same being insufficient. 4 Munf. 547; and see Symes's lessee v. Irvine, 2 Dall. 383.

Though the general rule be, that it must be sworn, the subpana was delivered to the proper officer,-under particular circumstances, a continuance was granted without positive proof of that fact. See Deford v. Hayes, 6 Munf. 390.

If the party has recently become possessed of the knowledge of a material witness &c.-a continuance will be granted though a subpæna has not been issued. See Hook v. Nanny et al. 4 H. & M. 157-8, note (1); Ross v. Norvell, 3 Munf. 170.

It was held by Livingston and Edwards, Juds. Cirt. Ct. U. S. Dis. of Connec. that on a motion for a continuance, counter affidavits might be received, provided they did not deny the materiality of the evidence expected from the witness; that they might state any circumstances that rendered it impossible or improbable, that his testimony could be procured within a reasonable time. Anon. 3 Day, 308.

Upon a motion for a continuance, on the ground of the absence of a material witness, the court, if it sees cause to suspect that the party is mistaken, or that his object is delay, may examine him as to what he expects to prove by the absent witness. Harris v. Harris, 2 Leigh, 584.

In a summary motion against administrators for money paid by plaintiff for defendants' intestate, it is no sufficient ground for a continuance, that defendants had qualified only some seven or eight months before,

and so had not had time to settle their ac-
counts of administration, and that they de-
sired to defend themselves on the ground of
want of assets to pay the debt, without of-
fering any plea, or affidavit, that the assets
were insufficient.
adm'rs, 9 Leigh, 1.

Clements v. Powell's

The refusal of the examining court to grant the prisoner a continuance, is no ground for arresting judgment in the Cir. Ct.; but, if available there at all, it should be taken advantage of by plea in abatement, or motion to quash the indictment. Morris v. Com. 9 Leigh, 636; see also Moore v. Com. 9 Leigh, 639.

(f) A judgment at rules, in the clerk's office, not set aside at the succeeding term, ought to be entered by the clerk, as of the last day of that term; but, if it be entered, as at rules merely, 'tis a clerical misprision, and amendable. See Digges's ex'r v. Dunn's ex'r, 1 Munf. 56.

In such case, if the judgment be declared on as of a quarterly term, and the judgment produced be one rendered at rules, preceding the said term; the variance is immaterial. 1 Munf. 59. But, if the proceedings be founded on a judgment "entered at rules," not averring or shewing that said judgment was confirmed, by not being set aside at the ensuing quarterly term, nor even that such term had occurred prior to the proceedings aforesaid, they will be quashed. Evans v. Freeland, 3 Munf. 119; a case of scire facias.

(gg) See ante, notes (c) and (y) for the criterion of such instruments, on which final

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

be issued, as well for interest(hh) until paid, upon the principal sum due, from the time when such bond, bill, promissory note, or other writing was payable, as for such principal sum and costs. 1792, c. 66, R. C.; Jan. 29—April 1, 1805, c. 57, ed. 1808.

42.80. In all actions founded on contracts, where judgment shall be rendered in court, if interest be allowed, such interest shall be upon the principal sum due, and shall continue until such principal sum be paid. And in all actions, founded on contracts,(1) and tried before a jury, the jury shall ascertain the principal sum due, and fix the period at which interest shall commence, if interest be allowed by them; and judgment shall be rendered accordingly, carrying on the interest till the judgment shall be satisfied. (ii) Jan. 29—Ápr. 1, 1805, c. 57, ed. 1808.

43. 81. Actions of account may be brought and maintained, against the executors or administrators of every guardian, bailiff and receiver, and also by one joint tenant, or tenant in common, his executors or administrators, against the other as bailiff, for receiving more than comes to his just share or proportion, and against the executors or administrators of such joint tenant or tenant in common. 4 Ann. c. 16; 1748; 1792, c. 76, R. C.

44. § 82. In all actions on any bond, or on any penal sum for the non-performance of covenants or agreements, in any indenture, deed or writing contained, the plaintiff or plaintiffs may(jj) assign as many breaches as he or they

judgment may be entered, without the intervention of a jury.

A judgment at rules, in the clerk's office, cannot be made final on a declaration in debt for money lent, not alleged to be founded on any specialty, bill, or note in writing. The sum due must be ascertained by a writ of enquiry. Hunt et al. v. M'Rea, 6 Munf. 454.

A final judgment, when no plea is filed, may be rendered in the office at rules, for principal and interest, when the action is founded upon any instrument in writing for the payment of an ascertained sum of money. But, if the plaintiff, by any paper filed by himself, shews that the defendant is entitled to a credit, the judgment ought either to be entered subject to such credit, or if the plaintiff refuses to take such judgment in that way, a writ of enquiry should be awarded. Rees v. Conococheague Bank, 5 Rand. 327; Shelton's ex'ors v. Welsh's adm'rs, 7 Leigh, 175. If the clerk enter judgment in the office, without awarding an enquiry of damages, when such award is proper, this omission is a clerical error, which the court may correct at a subsequent term to that at which judgt. in office was made final, by not being set aside. Verdict for defendant, where office judgment with writ of enquiry has not been set aside, is erroneous. M'Million v. Dobbins, 9 Leigh, 422. (hh) Under the provisions of this section, the clerk is to issue execution for interest, though it be not mentioned in the writing, on which the action is founded; nor demanded by the declaration. Wallace et al. v. Baker, 2 Munf. 334. And the judgment may be entered in the same manner. Baird v. Peter, 4 Munf. 76.

A demand of interest in the declaration, which is not claimed in the writ, is not erroneous, since by the stat., the interest follows the principal as the shadow does the substance. Hatcher v. Lewis, 4 Rand. 152.

(1) In an action for a tort, jury finds verdict for plaintiff, assessing his damages to $400, and allowing interest thereon, &c. and court gives judgment for the damages with interest, &c. Held, it was error to give interest on the damages; and for this cause the judgment shall be reversed; but judg ment shall be entered for the damages assessed, without interest-the verdict as to the interest being impertinent and mere surplusage, and to be disregarded by the court. Brugh v. Shanks, 5 Leigh, 598.

Although a decree gives interest on a sum which, according to the mode of stating the account, is itself interest, yet if it be manifest that a settlement upon proper principles would have made the balance larger, and that such balance would have been principal, the decree will not be reversed at the instance of the debtor. Handly v. Snodgrass et al. 9 Leigh, 484.

(ii) If the jury, in assumpsit, find for the plaintiff a larger sum than is laid in the declaration, with interest from a day fixed in their verdict, the plaintiff may release the surplus, beyond the amount, and take judg ment for the balance, with interest from the day fixed. Cahill v. Pentony, 4 Munf. 371; Reed v. Renselaer Glass Factory, 3 Cowen, 393, for a full consideration of the subject of interest.

(jj) Must. See Hardy v. Bern, 5 T. R. 636. In a suit on an administration bond, if no breach of the condition of the bond be stated in the declaration, or in any other

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

may think fit;(kk) and the jury, upon trial of such action or actions, shall and may assess damages for such of the breaches as the plaintiff shall prove; and, on such verdict, the like judgment shall be entered, as heretofore has been usually done, in such actions.() And, where judgment on a demurrer, or by confession, or nihil dicit, shall be given for the plaintiff, he may(mm) assign as many breaches of the covenants or agreements as he may think fit: upon which, a jury shall be summoned, to enquire of the truth of every one of those breaches, and to assess the damages the plaintiff shall have sustained thereby; and execution shall issue for so much; and the judgment shall remain as a security to the plaintiff, his executors and administrators, for any other breaches which may afterwards happen; and he or they may have a scire facias(nn) against the defendant, his executors or administrators, and assign any other breach; and, thereupon, damages shall be assessed, and execution issued as aforesaid. May 1732, c. 13, 4 Stat. Larg. 359; 1748, 5 Stat. Larg. 509; 1792, c. 76, R. C.; 8 and 9 Will. 3, c. 11.

45. § 83. In all actions which shall be brought upon any bond or bonds for the payment of money or tobacco, wherein the plaintiff shall recover, judgment shall be entered for the penalty of such bond, to be discharged by the payment of the principal and the interest due thereon, (oo) and the costs of suit,

part of the record, judgment cannot be given thereon. Ward et al. v. The Fairfax Just. 4 Munf. 494.

(kk) The plaintiff can only recover such damages as are demanded in his assignment of breaches. Woodson v. Johns, 3 Munf. 230. In covenant on an executory contract for sale and conveyance of land, where covenantee has been put in possession, and has never been evicted, and where the breach consists in the failure of covenantor to convey, and in his not having the legal title in himself, and no fraud proved or imputed, the covenantee is not entitled to more damages, at the utmost, than the purchase money he has actually paid, with interest for the time for which he may be accountable for the profits to the true owner. Thompson's ex'r v. Guthrie's adm'r, 9 Leigh, 101. A declaration in covenant sets forth, that the defendant, by an indenture, did rent and lease to the plaintiff a tract of land, to have and to hold the same so long as he the plaintiff should live; and it avers, as a breach of the covenant, that the defendant entered upon the possession of the plaintiff, and expelled and removed him. Held, on general demurrer, that no covenant for quiet enjoyment is to be implied from the words set forth, and that the action cannot be maintained. Black v. Gilmore, 9 Leigh, 446.

(U) Judgment should be for the debt in the declaration mentioned (the penalty of the bond) to be discharged by the damages (or sum due, as the case may be) assessed, &c. reserving liberty to the plaintiff, to resort to a scire facias, to recover such other damages as may thereafter arise under the condition of said bond. See Thatcher et al. v. Taylor et al. 3 Munf. 257; Bibb v. Cauthorne, 1 Wash. 91. Judgment on verdicts in suits on official bonds, should be in favour of any other per

son injured. See Smith v. Cooper, 6 Munf. 405; Scott v. Hardaway, 4 Munf. 273; Page v. Peyton, 2 H. & M. 574.

(mm) See note (jj).

(nn) A bond, conditioned for the payment of a certain sum by instalments, is within the provisions of this section; and after judgment obtained on default of payment of one instalment, if a subsequent instalment be in arrear, the plaintiff cannot sue out execution for it, though within a year after such judg ment, without first suing out a scire facias to revive it. Willoughby v. Swinton, 6 East, 550; Collins v. Collins, 2 Burr. 820; Thatcher et al. v. Taylor et al. 3 Munf. 257. On the subject of this section, see Serj. Williams's note (1) to Gainsford v. Griffith, 1 Saund. [58,] and note (2) to Roberts v. Mariett, 2 Saund. [187 a.] See Murray v. The Earl of Stair, 2 Barn. & Cress. 82; The Mayor &c. of Albany v. Evertson, 1 Cowen, 38; Rogers v. Coleman, 3 Cowen, 62; Wood v. Wood, 3 Wendell, 454; Smith v. Bond, 10 Bing. 125. See ante, No. 5, note (c) of this TITLE.

(00) The court understands it to be a clear principle that this clause, which prescribes the sum for which judgment is to be rendered on a bond, meant that, in cases of penalties by way of security, the final justice of the case should be attained in the courts of law, for which, before, parties had been driven into courts of equity. And that, in effectuating this object, courts of law are to be governed by the same considerations which influence the courts of equity, on the principle of the case of Bonafous v. Rybot, 3 Burr. 1370, in relation to the stat. of Ann. 4 and 5, c. 16, which is substantially similar to the Virginia act. Waller v. Long, 6 Munf. 71, 77-8. See Murray v. The Earl of Stair, 2 Barn. & Cress. 82; and see Hallen v. Ardley, 3 Car. & Payne, 12, and the ed'rs note.

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

and execution shall issue accordingly; or, if, before judgment, the defendant shall bring into court(pp) the principal and interest due upon such bond, he shall be discharged, and in that case judgment shall be entered for the costs only. 5 Stat. Larg. 511; Ibid. 4 and 5 Ann. c. 16.

46.84. In any action of debt on a single or penal bill, or in debt or scire facias upon a judgment, or in debt upon a bond, if, before action brought, the defendant hath paid the principal and interest(qq) due by the defeasance or condition, he may plead payment in bar. Ibid.