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CIVIL SUITS. (Jeofails.)

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

shall not regard any other defect or imperfection in the writ, return, declaration or pleadings, than what shall be specially alleged in the demurrer as causes thereof, unless something so essential to the action or defence, as that judgment, according to law, and the very right of the cause, cannot be given, be omitted. Dec. 4, 1789, c. 28, 13 Stat. Larg. 37; 1792, c. 76, R. C.; 27 Eliz. c. 5; 4 and 5 Ann. c. 16.

3. 102. After issue joined in an ejectment, on the title only(b) no exception of form or substance, shall be taken to the declaration, in any court whatIbid.

soever.

4. § 103. No judgment, after the verdict of twelve men, shall be stayed or reversed, for any defect or default, in the writ, original or judicial; or for a variance in the writ from the declaration, (c) or other proceedings;† or for any

is plainly against the demurrant, and his
object appears to be merely to delay the de-
cision. Rohr v. Davis, et al. 9 Leigh, 30.
Where a demurrer to evidence is tendered
in a case in which the party may properly
demur, if the court refuse to compel the
other party to join in the demurrer, this is
error, for which the judgment shall be
S. C.
reversed.

See Jackson's adm'x v. Bank of Marietta, 9 Leigh, 240.

Whatever defects may be taken advantage of on a general demurrer, would, I conceive, be bad, on an appeal. Lyons, J. in Baird v. Mattox, 1 Call, 274.

In deciding on the character of a demurrer, the court will not be controlled by the fact of the assignment of special causes: If the demurrer is in fact, and in its nature a general one, the specification of causes, will not affect its character. Miller v. M'Luer, 1 Gil. R. 338.

After issue joined on any plea, 'tis too Roane's late to file a special demurrer. adm'r v. Drummond's adm'r, 6 Rand. 182. The utmost strictness is required to pleas in abatement; and a general demurrer to such a plea has all the effect of a special one. Hortons & Hutton v. Townes, 6 Leigh, 47.

Where pleadings terminate in a demurrer on either side, any error in the previous pleadings, may be taken advantage of. Ibid. and Sprigg v. The Bank of Mount Pleasant, 10 Peters, 257, 264.

If a replication which ought to conclude
with a verification, concludes to the country,
and the replication be substantially a good
answer to the plea, and there is a general
demurrer to the replication, the irregularity
of the conclusion is cured by this section.
Carthrae et al. v. Clarke, 5 Leigh, 268.

On demurrer taken by a plf. to a plea, the
court goes back to the first fault, and if plf.'s
declaration be defective, gives judgment
for deft. on the demurrer; nor is the defect
Bennett's
cured by deft. pleading over.
ex'r v. Giles, Gov. ex rel. of Loyd, 6 Leigh,
316. Yet, if the delaration shews a just de-
mand, if properly asserted, plaintiff shall
not be turned out of court, but the cause
shall be remanded for further and correct

proceedings.

Shelton's ex'rs v. Welsh's
adm'rs, 7 Leigh, 175. But, where a plea in
murrer thereto, the court sustain the plea,
bar is to the whole declaration, and on de-
final judgment will be entered for deft. un-
less plf. move and obtain leave to withdraw
his demurrer and reply. Maggort v. Hans-
barger, 8 Leigh, 532, 541.

(b) If the demise and ouster be laid pre-
Dural v. Bibb, 3 Call,
cures the defect.
cedent to the plaintiff's title, this section
362; see Throckmorton v. Cooper's lessee, 3
Munf. 93; Paul v. Smiley, 4 Munf. 468;
and see tit. EJECTMENT.

(c) In debt on bond against the heirs of
the obligor, the writ, (of which oyer was
craved,) charge four persons as such; the
declaration, and judgment thereon for plain-
tiff, charged only three of those persons as
such heirs. The court, held the declaration
plaintiff. Watson's ex'r v. Lynch's heirs, 4
too defective to authorize a judgment for
Munf. 94. No demurrer was taken for the
variance, and verdict was had on a plea to
the merits; the plaintiff being dissatisfied,
of the appellees.
appealed, which resulted as stated, in favour

Gilman v. Rives, 10 Peters's R. 298. If in cases of recognizance, judgments, and other matters of record, such as bonds or other pleadings, that there is another to the crown, it appears by the declaration, not averred that he is living; the objection joint debtor who is not sued although it is need not be pleaded in abatement, but it may be taken advantage of on demurrer, or in arrest of judgment-p. 300.

Verdict for defendant without plea to set v. Dobbins, 9 Leigh, 422. aside office judgment is invalid. M'Million

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 the part of the plaintiff, but is the the result either of the defendant's own negligence, or of a court of equity can give him no relief. his counsel's ignorance or bad management, Tapp's adm'r v. Rankin, 9 Leigh, 478. iSee 2 Wash. 203.

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

mispleading, insufficient pleading,|| discontinuance, misjoining of issue,(d) or lack of warrant of attorney; or for the appearance of either party, being under the age of twenty-one years, by attorney, if the verdict be for him, and not to his prejudice; or for not alleging any deed, letters testamentary, or commission of administration, to be brought into court; or for omission of the words with force and arms, or against the peace; or for mistake of the christian name or surname of either party, sum of money, (e) quantity of merchan

+ If an improper plea be received, and issue be taken on it, the court may afterwards set aside the issue and the plea; and if this be in substance and effect done, though in form irregularly done, the proceeding shall not be reversed for such irregularity. Kemp v. Mundell & Chapin, 9 Leigh, 12.

See 2 Wash. 143; 1 H. & M. 153; 4 Munf. 444, 446.

(d) The mere omission of a similiter in a plea importing the general issue, if it be a fault at all, is the misprision of the clerk, and therefore amendable. Brewer v. Tarpley, 1 Wash. 363; Moore v. Mauro, 4 Rand. 488.

After the argument of a demurrer, and judgment thereon, 'tis too late to object, that there was no joinder in demurrer. Miller v. M'Luer, 1 Gil. R. 338, on the principle of the case in 2 Wash. 363.

An informal joinder of issue, fairly tried, cannot afterwards be excepted to. Walden ex'r v. Payne, 2 Wash. 1, 8.

There being two issues joined in an action-the jury is sworn to try the issue, and they find a verdict responsive to both issues-no error. White v. Clay's ex'rs, 7 Leigh, 68; Mackey v. Fuqua, 3 Call, 19.

But, an issue must be joined. Stevens v. Taliaferro, adm'r, 1 Wash. 155; Hite's heirs et al. v. Wilson et al. 2 H. & M. 268; Wilkinson's adm'rs v. Bennett, 3 Munf. 314; Totty's ex'r v. Donald & Co. 4 Munf. 430; Nadenbousch et al. v. Smith, Feb. 15, 1823. Ct. App.

To a declaration in assumpsit, defendant pleads the general issue; afterwards plaintiff, under leave to amend, files a new declaration as a substitute-defendant does not plead anew-the jury is sworn to try the issue-verdict for plaintiff: Held, that, as the plea to the first declaration was applicable to the new one, and was not withdrawn, the defendant must be understood to have still rested his defence on the same plea-and the verdict is good. Power v. Ivie, 7 Leigh, 147; Eppes v. Demoville, 2 Call, 22; Vaden v. Bell, 3 Rand. 448.

A general replication to a plea of pay ment, does not constitute an issue, (unless the parties consider it an issue, and submit the case to a jury;) and if the clerk enter a similiter without the approbation of the defendant, it is the duty of the court to correct the proceedings in the office, by giving a rule to rejoin, or take other measures in relation to the defendant's replication, Na

denbousch et al. v. Smith et al. 15 Feb. 1823. Ct. App.

The misjoinder of an issue-it being stated in the record that issue was joined-is not fatal after verdict. Moore v. Mauro, 4 Rand. 488.

But if the record does not contain materials, on which issue could have been joined, as no plea, &c. the judgment will be reversed, tho' the records state the jury were sworn to try the issue joined. Sydnor v. Burke et ux. 4 Rand. 161.

What is a misjoinder of counts fatal on general demurrer. Kayser, ex'r &c. v. Disher, 9 Leigh, 357.

The plea of payment is responsive to the negation of non-payment, in the declaration; and, in Virginia, amounts to the general issue. Henderson, &c. v. Southall, &c. 4 Call, 371.

After verdict, a general replication to a special plea, is sufficient. Ellett v.Vaughan, 6 Call, 77.

(e) After verdict, all sums, dates, &c. in the writ, are to be considered as incorporated in the declaration, for the purpose of supplying omissions, or correcting any mistakes contained therein. The writ, is always a part of the record, for the purpose of supporting judgments; but not for the purpose of reversing them, unless regularly put on the record by oyer. See Lyons, J. in Stevens v. White, 2 Wash. 212; and Roane, J. in Moss et al. v. Moss's adm'r, 4 H. & M. 309, 310.

If the damages are left out of the decla ration, as the omission might be amended by the writ, the court of appeals will consider the declaration as in fact filled up with the damages laid in the writ. But if the damages found by the jury are greater than laid in the writ, a new trial will be awarded, unless the plaintiff will release the excess. And if judgment be given for the amount found by the jury, a new trial will be awarded. Hook v. Turnbull, 6 Call, 85.

The statute of Jeofails has no effect on a judgment by default, for want of appearance; the writ, in such case, is part of the record, and the court will look into it as well as all the other proceedings. Hatcher v. Lewis, 4 Rand. 152. 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, ex'r, 4 Leigh, 412.

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

dize, day, month or year, in the declaration or pleading, (the name, sum tity or time being right in any part of the record or proceeding,) or for sion of the averment, this he is ready to verify; or this he is ready to ve y by the record; or for not alleging as appeareth by the record; or for omitting the averment of any matter, without proving which the jury ought not to have given such verdict;(f) or for setting forth, by way of recital, any matter which ought to have been set forth by averment;'(f) or for not alleging that the suit or matter is within the jurisdiction of the court; (g) 'or, for not alleging that the property in the declaration mentioned, is the property of the plaintiff; (h) or for any mistake or misconception of the form of action; (i) or

In 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, both as to the defendant and bail. Nadenbousch et al. v. Lane, 4 Rand. 413.

In cases of judgments by default, the statute of Jeofails does not apply to cure errors and defects in the proceedings. In such case, the writ is part of the record. Wainwright et al. v. Harper, 3 Leigh, 270. In a joint action, the appearance of one defendant, and verdict against him, will preclude the other defendants from availing themselves of this act. Jenkins v. Hurt, 2 Rand. 446; Rohr v. Davis et al. 9 Leigh, 30.

A count for money had and received, good after verdict. Hall v. Smith et al. 3 Munf. 550.

(f) This provision does not cure the omission of an averment of the gist or cause of action. Winston's ex'r v. Francisco, 2 Wash. 187; Chichester v. Vass, 1 Call, 83; Lomax v. Hord, 3 H. & M. 271. See the cases reviewed and distinguished in Laughlin v. Flood, 3 Munf. 255.

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Our act of Jeofails, does not cure the defect of the averment of the gist of the action. It operates 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, [Fulgham v. Lightfoot, 1 Call, 250, 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. See Roane, J. in Laughlin v. Flood, 3 Munf. 273; Buxendin v. Sharp, Salk. 662; Nerot v. Wallace, 3 T. R. 25; Jackson v. Pesked, 1 Mau. & Selw. 234; U. States v. The Virgin, 1 Peters's R. 9.

The general rule is, that no party can be required to prove on the trial, any matter not alleged by him in his pleadings, unless the fact not alleged is necessarily implied from the facts stated in the pleadings. In

cases coming within this rule, all matters necessarily implied from what is alleged, are presumed to have been proved on the trial, after verdict. But matters collateral to the fact in issue, and necessary to the right of the party, if omitted in the pleadings, cannot be presumed to have been proved, and therefore not cured by verdict at common law. Bailey v. Clay et al. 4 Rand. 346; Hatcher et al. v. Lewis, 4 Rand. 152; Dobson v. Campbell, 1 Sumner, 319.

A declaration in behalf of a co-partnership, in the name of a firm, (not setting out the partners,) will support a judgment, founded on a verdict for plaintiffs, on the general issue. Pate v. Bacon & Co. 6 Munf. 219. See The King v. Harrison & Co. 8 T. R. 508. Bentley et al. v. Smith et al. 3 Caines's R. 170; Wright et al. v. Welbie, 1 Chitty's R. 49-54-6; Porter et al. v. Cresson et al. 10 Serg. & Raw. 257.

In debt on an assigned bond, the declaration ought to charge a failure to pay the money to the obligee, and to each of the assignees, before notice of the assignment, as well as to the plaintiff; if it only charge a failure to pay to the plaintiff, a verdict will not cure the defect. Braxton's adm'r v. Lipscomb, 2 Munf. 282; Green v. Dulany, 2 Munf. 518. And, in an action by a surviving executor, for a debt due to his testator, the declaration must charge, that it was not paid to his testator, nor to either of his co-executors in their lifetime; if it does not, a verdict will not cure it. ner et ux. v. Blair, 2 Munf. 336. But see Am. Rev. 1819.

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(f) See Ballard v. Lewell et al. 5 Call, 534; and Lomax v. Hord, 3 H. & M. 269, 278 (note.)

(g) See Thornton v. Smith, 1 Wash. 81; Winder v. Eddy, 1 Wash. 87, note; Turberville v. Long, 3 H. & M. 309; Buster v. Ruffner, 5 Munf. 27.

(h) In Kent v. Armistead, 4 Munf. 72, Mar. 1813, judgment on a verdict, was reversed, the declaration not stating the subject demanded, belonged to, or was the property of the plaintiff. Vaiden et al. v. Bell, 3 Rand. 448.

(i) See Taylor v. Rainbow, 2 H. & M. 423; Cleet v. Haines, 2 Rand. 440; Williams v. Holland, (T. T. 1833,) 10 Bing. 112. Where injury is occasioned by the

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

for any other defect whatsoever, in the declaration or pleading, whether of form or of substance, which might have been taken advantage of by a demurrer, and which shall not have been so taken advantage of;'(3) or for any informality in entering up the judgment by the clerk: neither shall any judgment, entered by nil dicit, or non sum informatus, be reversed, nor a judgment after enquiry of damages, be stayed or reversed, for any omission or fault, which would not have been a good cause to stay or reverse the judgment, if there had been a verdict. (2) Ibid. 32; Hen. 8, c. 30; 18 Eliz. c. 14; 21 Jac. 1, c. 13; 16 and 17 Car. 2, c. 8; 4 and 5 Ann. c. 16; Dec. 4, 1789, c. 28, 13 Stat. Larg. 36.*

5. § 104. When there are several counts, one of which is faulty, and entire damages are given, the verdict shall be good; but the defendant may(j) apply to the court to instruct the jury to disregard the faulty count. 1789, 13 Stat. Larg. 37; 1792, c. 76, R. C

carelessness and negligence of the defendant-the plaintiff is at liberty to bring an action on the case, notwithstanding the act is immediate—so long as it is not a wilful act. See Olinger v. M'Chesney, 7 Leigh, 660-684.

(3) The failure to allege the performance of a condition precedent, in a declaration, will be cured by verdict. Bailey v. Clay et al. 4 Rand. 346.

(2) If errors in the pleadings or proceedings, are cured by the stat. of jeofails as to one defendant, they are cured as to all the defendants. Because, in a joint action on contract, the plaintiff must have judgment against all the defendants before the court, or he can have judgment against none. If, therefore, one of the defendants who had suffered judgment by default for want of appearance, could, notwithstanding a verdict against another defendant, allege errors in the proceedings, for arresting or reversing the judgment against him, which would have been cured by a verdict against him, it would have the effect of arresting or reversing the judgment as to the other party also, against whom there was a verdict; and so the provision of the stat. would be frustrated. Jenkins v. Hurt's com'rs, 2 Rand. 446.

Verdict for defendant, where no plea is filed to set aside office judment and writ of enquiry, is erroneous. M’Million v. Dobbins, 9 Leigh, 422.

See Rohr v. Davis et al. 9 Leigh, 30. *See act amending the stat. of jeofails, March 12, 1838, which provides:

§ 1. That all judgments hereafter rendered in any circuit superior court of law and chancery for default of appearance, whether entered as office judgments or upon verdicts after writs of enquiry awarded for the assessment of damages, shall be deemed and held to be within the provisions of the one hundred and third section of the act, entitled, "an act for limitation of actions, for preventing frivolous and vexatious suits, concerning jeofails and certain proceedings in civil cases," passed February the twenty

fifth, eighteen hundred and nineteen, as fully as if such judgments had been particularly named therein: Provided always, That if it shall appear by the record thereof, that any order or orders had been illegally taken or entered at rules in any such case, and that the same would have been set aside, if a motion for that purpose had been made at the term next after taking or entering the said rule or rules, or in case of any such variance between the writ and declaration as would be ground for reversal of the judgment in the court of appeals, it shall be lawful for the court, or for any judge of the general court in vacation, to award a writ of error coram nobis to such judgment, and upon the trial thereof to make such order as would have been made if a motion or plea had been submitted at the proper time to correct the proceedings at rules, or to render such judgment as might have been rendered in the court of appeals if this act had not passed.

§ 2. That in all actions on contracts against two or more defendants, if one or more of them shall be acquitted, or discharged by the verdict of a jury or otherwise, the plaintiff shall nevertheless be entitled to proceed to judgment against the other defendant or defendants in like manner as if the action had been instituted against him or them, without joining the party or parties who may have been acquitted or discharged, but the last mentioned party or parties shall be entitled to recover his or their costs of the plaintiff.

See Rohr v. Davis et al. 9 Leigh, 30. (j) If the defendant does not avail himself of this provision, and entire damages are given, the verdict will be sustained. Roe v. Crutchfield, 1 H. & M. 361; Richardson v. Mellish, 3 Bing. 334; Hall v. Smith, 3 Munf. 550.

If the court refuse to instruct the jury to disregard a faulty count, and the jury find for the defendant on the good counts, and for the plaintiff on the bad count, judgment should be given for defendant. Brown v. Shields, 6 Leigh, 440.

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

6. § 105. If, in detinue, the verdict shall omit price or value, the court may, at any time, award writ of enquiry to ascertain the same. If, on an issue concerning several things in one count, in detinue, no verdict be found for part of them,(k) it shall not be error, but the plaintiff shall be barred of his title to the things omitted. Dec. 22, 1788, 12 Stat. Larg. c. 67, § 67, p. 750. Ibid. 7. § 106. A judgment, on confession, shall be equal to a release of errors;(7) but all powers of attorney for confessing or suffering judgment to pass by default, or otherwise, and all general releases of error, made or to be made, by any person or persons whatsoever, within this commonwealth, before action brought, shall be, and are hereby declared to be, absolutely null and void. Oct. 1748, c. 8, 5 Stat. Larg. 511, and Ibid. See Nov. 1645, act 11, 1 Stat. Larg. 804; March, 1661-2, act 60, 2 Stat. Larg. 87.

8. § 107. An execution, writ or other process, appearing to be duly served in other respects, shall be deemed good, although it be not directed to any sheriff. (m) 1792, c. 76, R. C.

9. § 108. Where, in the record of any judgment(5) or decree of any superior court of law(4) or equity, there shall be any mistake, miscalculation, or misrecital, of any sum or sums of money, tobacco, wheat, or other such thing, or of any name or names; and there shall be, among the record of the proceedings in the suit in which such judgment or decree shall be rendered, any verdict, bond, bill, note, or other writing of the like nature or kind, whereby such judgment or decree may be safely amended, (n) it shall be the duty of the

Several issues made up on several pleas of defendant, one of which is faulty and immaterial, verdict for plaintiff on the material issues, but silent as to the immaterial issue; and judgment for plaintiff. On error to the judgment verdict held good. Ray v. Clemens, 6 Leigh, 600.

If the declaration is composed of good and bad counts, a general demurrer cannot avail the defendant. Roe v. Crutchfield, 1 H. & M. 361; Duke of Bedford v. Alcocke, 1 Wilson, 252.

See Cooke v. Thornton, 6 Rand. 11, 15. Where a declaration contains many counts, some of which are good, and some are bad, and there is a general demurrer, the regular course is to overrule the demurrer as to the good counts and to sustain it as to those that are bad; thus putting the bad counts out of the case, and preventing any farther question as to them, in the further progress of the cause. But though this be the regular course, yet a general overruling of the demurrer will not be sufficient cause for reversing the judgment if any of the counts be good. Per Cabell, J. See Jarrett's adm'rs v. Jarrett, 7 Leigh, 93.

It seems, that if there be several counts in a declaration, one good and all the rest bad, and a general demurrer is filed to the whole declaration, the demurrer ought to be overruled, because of the good count. And whatever be the better practice, the overruling the demurrer in such case, is no cause for reversing the judgment after verdict on issue joined. Power v. Ivie, 7 Leigh, 147. On a general demurrer to a declaration containing several counts, if any one count

be good, the demurrer must be overruled. Hollingsworth v. Milton, 8 Leigh, 50.

See also Boyle v. Townes, 9 Leigh, 158. (k) See Butler v. Parks, 1 Wash. 76; Custis v. Posey, 1 H. & M. 56, note (1.)

(1) Cooke v. Pope's adm'r, 3 Munf. 167.

The confession of a judment on a forthcoming bond, is a release of errors, if any exist, in the original judgment, as well as in the judgment on the forthcoming bond. M'Rae v. The Turnpike Co. 3 Rand. 160; and Edmonds v. Green, 1 Rand. 44; Mandeville v. Suckley et al. 1 Peters's U. S. C. Rep. 136; Stanard v. Timberlake, 3 Leigh, 681.

See act "authorizing the confession of judgments in the clerk's office, and for other purposes," March 13, 1840, Ses. Acts 1839-40, c. 53, p. 46.

(m) Purcell v. Richardson, 4 H. & M. 404. But see Crouch v. Miller, 2 Leigh, 545. (5) On motion or action. The Com'th v. Winstons, 5 Rand. 546.

(4) The general court is included by this term, it being a superior court of law as contradistinguished from an inferior court. The Commonwealth v. Winstons, 5 Rand. 546.

(n) Those only are clerical errors which are made by the clerk,-which depend only upon a comparison and calculation to be made by him, and may be safely reformed by reference to other statements contained in the proceedings, as in Gordon v. Frazier et al. (2 Wash. 130.) This section does not enlarge the subjects amendable; they, are such as require nothing but clerical skill,as mistakes, miscalculations, [see Mechanics Bank v. Menthorne, 19 Johns. Rep. 244,] or

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