UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY In Acftions at COMMON LAW BY MARTIN P. BURKS For Sale by W. C. Stuart, {Bookseller Lexington, Va. T I1I COPYRIGHT, 1905 BY MARTIN P. BURKS COPYRIGHT, 1912 BY MARTIN P. BURKS The Michie Company, Printers, ChariottesviUe, Va. 19I3 Preface The first four hundred and twenty four pages of this book were printed in the Fall of 1911, hence no reference could be made therein to the Acts of Assembly of 1912. A separate table of these Acts, so far as they affect the text, is given on p. xxxi. The residue of the book, however, contains the changes made by said Acts. No attempt has been made to cite all of the Virginia cases, except in a few of the chapters, but it is believed that the cita- tions given are sufficient to put the intelligent reader on the track of the authorities. Frequent reference has been made to the En- cyclopaedias and to monographic notes containing collections of cases .where it was deemed desirable to give a fuller citation of authorities than could be given in the notes to the text. Part II of the book consists of Stephen's Rules of Pleading, taken from the eighth American edition. Sections 434 and 435 and pages 1012-1019 are taken from the notes of this edition, which were the author's text in an earlier edition. As far as possible I have eliminated matter that was antiquated or not adapted to modern use, and wherever modern illustrations of the rules could be found I have either substituted them for the illustrations given by Stephen, or have given them as additional illustrations. The omissions from the text are indicated by stars, and the new mat- ter by brackets. I beg to acknowledge my indebtedness to Mr. Robert W. Withers of the law faculty of Washington and Lee University for the preparation of the chapters on the contract actions and the index, and to Mr. N. C. Manson, Jr., of the Lynchburg, Va. bar for the preparation of the chapter on Mechanics' Liens. These chapters have been simply edited by me. M. P. B. Lexington, Va., January, Table of Contents CHAPTER I. REDRESS OF PRIVATE WRONGS DISTRESS FOR RENT. 1. Self-defence Recaption Abatement of nuisance. 2. Distress. 3. Distress for taxes and officers' fee bills. 4. Distress for rent. 5. Interest on rent. , 6. Limitation of time to distrain. 7. By whom distress warrant levied. 8. Irregularity or illegality in making distress. 9. Disposition of property levied on. 10. Delivery or forthcoming bond and proceedings thereon. 11. What property may be distrained. 12. Redress for illegal distress At common law. 13. A year's rent under the Virginia statute. 14. Motion on delivery bond Proof. 15. Effect of general covenants to repair. 16. Abatement of rent. CHAPTER II. ACCORD AND SATISFACTION. 17. Introductory. 18. Definition. 19. Subject matter. 20. Accord without satisfaction. 21. Persons who may make satisfaction. 22. Consideration of accord. Part payment of a liquidated money demand. New or additional consideration. Unliquidated or disputed claims. Acceptance of property. Acceptance of a promise. 23. Pleadings Accord and satisfaction. VI TABLE OF CONTENTS CHAPTER III. ARBITRATION AND AWARD. 24. Introduction. 25. Who may submit. 26. What may be submitted. 27. Mode of submission. 28. Who may be arbitrator. 29. The umpire. 30. Revocation of submission. 31. Proceedings before arbitrators. 32. The award. 33. Form of award. 34. Effect of award. 35. Mode of enforcing performance of award. 36. Causes for setting aside award. 37. Relief against erroneous award. 38. Awards, how pleaded. 39. Costs. CHAPTER IV. REMITTER AND RETAINER. 40. Remitter. 41. Retainer. Order of payment of debts. Order of liability of estates for debts. CHAPTER V. COURTS. 42. Supervisors. 43. Clerks. 44. Justices of the peace. 1. Civil powers of justices. Small claims. 2. Proceedings before a justice on small claims. 3. Civil bail. Attachment. 4. Unlawful detainer. 5. Garnishment. 45. Circuit and corporation courts. Corporation courts. 46. Civil jurisdiction of court of appeals. (1) In matters pecuniary. (2) In matters not pecuniary. TABLE OF CONTENTS VII CHAPTER VI. PARTIES TO ACTIONS. 47. Proper parties to actions ex contractu generally. 48. Joint and several contracts. 49. Proper parties to actions ex dclicto generally. 50. Assignees of contracts. 51. Assignees of rights of actions for torts. 52. Joint tortfeasors. 53. Actions by and against court receivers. 54. Partnership. 55. Executors and administrators. 56. Corporations. 57. Infants. 58. Insane persons. 59. Married women. 60. Unincorporated associations. 61. Death by wrongful act. 62. Undisclosed principal. 63. Convicts. 64. Official and statutory bonds. 65. Change of parties. 66. Misjoinder and non-joinder of parties. Too many or too few plaintiffs or defendants. Mode of taking the objection at common law. 1. Actions ex contractu. 2. Actions ex delicto. CHAPTER VII. ORDINARY ACTIONS AT LAW. 67. Classification of actions. Real actions. Mixed actions. Personal actions. Local and transitory actions. Actions ex contractu and ex delicto. CHAPTER VIII. ACTION OF DEBT. 68. Nature of action. 69. What is a sum certain. 70. Debt to recover statutory penalties. VIII TABLE OF CONTENTS 71. Debt on judgments and decrees. 72. The declaration in debt. 73. The general issues in debt. 1. Nil debet. 2. Non est factum. 3. Nul tiel record. CHAPTER IX. ACTION OF COVENANT. 74. Nature of the action. 75. When covenant lies. 76. When covenant does not lie. 77. Who may bring covenant. 78. The declaration. 79. Pleas in action of covenant. 80. Covenants performed and covenants not broken. 81. Plea of non damnificatus. 82. Assumpsit as a substitute for covenant. CHAPTER X. ASSUMPSIT. 83. History of the action and when it lies. 84. When assumpsit does not lie. 85. Waiving tort and suing in assumpsit. 86. Of general and special assumpsit. Difference between general and special assumpsit. When general assumpsit will not lie. When general assumpsit will lie. 87. When necessary to declare specially. 88. Nature and constitution of special counts. 89. Account to be filed with the declaration. 90. Avoiding writ of inquiry. 91. Avoiding writ of inquiry and putting defendant to sworn pie: 92. Misjoinder of tort and assumpsit. 93. Non-assumpsit. 94. Special pleas. CHAPTER XL PROCEEDINGS BY WAY OF MOTION. 95. Scope of chapter. 96. Proceedings under 3211 of the Code. TABLE OF CONTENTS IX 97. Policy of the statute Construction of notice. 98. When motion lies under 3211 of Code. 99. When motion does not lie under 3211 of Code. 100. The manner of making defence to motions. 101. Against whom judgment may be given on motion. 102. The trial of the motion. 103. Motions to recover money otherwise than under 3211 of the Code. CHAPTER XII. ACTION OF ACCOUNT. 104. Nature of action, and general rules applicable thereto. 105. Superseded by bill in equity. CHAPTER XIII. UNLAWFUL ENTRY OR DETAINER AND FORCIBLE ENTRY. 106. Nature and object of action. 107. Plaintiff's title. 108. Pleadings. 109. Contrasted with ejectment. 110. Statute of limitations. 111. How possession of premises recovered from tenant in default for rent. 112. When proceeding to be before justice of the peace. 113. Right of appeal. CHAPTER XIV. EJECTMENT. 114. Historical. 115. Ejectment at common law. 116. Plaintiffs in ejectment in Virginia. 117. Plaintiff's title. Adverse possession. 118. What may be recovered. 119. Defendants in ejectment. 120. Pleadings in ejectment. Improvements. 121. Evidence in ejectment. 122. Statute of limitations. 123. Interlocks. X TABLE OF CONTENTS 124. Equity jurisdiction. 125. Verdict. 126. Judgment. CHAPTER XV. DETINUE. 127. Object of the action. 128. Essentials to maintain the action. 129. Parties. 130. Description and value of the property. 131. General issue. 132. Death or destruction of property pendente lite. 133. Verdict. 134. Execution. 135. Preservation of property. CHAPTER XVI. INTERPLEADER. 136. Nature of the proceeding. 137. Rights of officer. 138. Rights of creditor. 139. Rights of claimant. 140. Proceedings by the court. CHAPTER XVII. REPLEVIN. 141. Nature of action at common law. 142. The declaration. 143. Different kinds of replevin. 144. The defence. 145. The judgment. 146. The modern action of replevin. 147. Replevin in Virginia. CHAPTER XVIII. TRESPASS AND TRESPASS ON THE CASE. 148. Meaning of terms. 149. Distinction between trespass and case. TABLE OF CONTENTS XI 150. Species of trespass vi et armis. Trespass to the person. Trespass de bonis asportatis. ' Trespass quare clausum fregit. Trespass to try title. False imprisonment. 151. Species of trespass on the case ex delicto. 152. General issues. CHAPTER XIX. MALICIOUS PROSECUTION. 153. Forms and essentials of the action. 154. Parties. 155. Termination of prosecution. 156. Effect of conviction. 157. Guilt of plaintiff. 158. Probable cause. 159. Malice. 160. Evidence. 161. Damages. 162. Civil malicious prosecution. CHAPTER XX. TROVER AND CONVERSION. 163. Nature of the action. 164. Plaintiff's title. 165. What may be converted. 166. What constitutes conversion. 167. Demand. 168. Return of property. 169. Damages. 170. General issue. 171. Effect of judgment. CHAPTER XXI. SLANDER AND LIBEL. 172. What words are slanderous or libelous. 173. Parties. 174. The declaration. 175. Malice. 176. Defences. 177. Evidence. 178. Replication. xii TABLE; OF CONTENTS CHAPTER XXII. RULE DAYS AND OFFICE JUDGMENTS. 179. Nature of rules. 180. Object and purpose of rule days. Theoretically. Practically. 181. Proceedings at rules. 182. Rules in federal courts. 183. Dilatory pleas and time of filing. 184. Powers of court over proceedings at rules. 185. Setting aside office judgment. Judgment on ari issue of fact made by a dilatory plea. CHAPTER XXIII. VENUE AND PROCESS. 186. Venue. 187. How process is obtained. In assumpsit. In covenant. Motion for judgment. Unlawful detainer. Ejectment. Detinue. Trespass vi et armis. Trespass on the case. Trover. Slander and libel. 188. Nature of process. 189. Who are exempt from service. 190. Who may serve process. 191. When process to issue and when returnable. 192. Service of process on natural persons. Personal service. Substituted service. . Married woman. Non-residents. Infants. Insane persons. Court receivers. 193. Service of process on corporations. Domestic corporations. Foreign corporations. Publication of process. TABLE OF CONTENTS XIII 194. Time of service. 195. Return of process. Service on officer. Service on agent. 196. Defective service. CHAPTER XXIV. PLEAS IN BAR. 197. Different kinds of pleas in bar. Traverse or denial. The common traverse. The special traverse. The general traverse, or the general issue. Confession and avoidance. 198. Number of pleas allowed. 199. Duplicity. CHAPTER XXV. DEMURRER. 200. Introductory. 201. Definition When not applicable Time of filing. 202. Forms of demurrer General Special Applicability. 203. Election to demur or plead. 204. Who may demur. 205. Causes of demurrer. 206. Effect of demurrer. 207. Effect of failure to demur Pleading over. 208. Judgment on demurrer. CHAPTER XXVI. BANKRUPTCY. 209. Introductory. 210. Discharge in bankruptcy. 211. Plea of discharge. CIIAITKR XXVII. TENDER. 212. Definition. 213. Sufficiency of tender of money. 214. Form of plea. 215. Effect of valid tender. XIV TABLE OF CONTENTS CHAPTER XXVIII. LIMITATION OF ACTIONS. 216. Historical. ^ 217. Nature, effect and validity of statute. Limitation of remedy. Limitation of right. Adverse possession. Conventional limitations. 218. Parties affected. 219. When the statute begins to run. (1) Demand paper. (2) Bank deposits. (3) Coupons. (4) Calls on stock. (5) Cloud on title. (6) Covenant for general warranty. (7) Death by wrongful act. (8) Fraud and mistake. (9) Malicious abuse of civil process. (10) Voluntary conveyances. (11) Accounts. (12) Debt acknowledged in a will. (13) Judgments. (14) Nuisance. (15) Partners. (16) Principal and surety. (17) Co-sureties. (18) Principal and agent. (19) Attorney and client. (20) Express trustees, executors, administrators, guard- ians, etc. (21) Tenant and co-tenant. (22) Landlord and tenant. (23) Vendor and purchaser. (24) Assignor and assignee. (25) Persons under disability. 220. What limitation is applicable. (1) Tort or contract. , (2) Cases on contract. (3) Debt assumed by grantee in a deed. (4) Coupons. (5) Debt secured by mortgage, deed of trust, or pledge. (6) Lien for purchase money. (7) To recover damages for suing out an injunction. (8) Principal and surety. TABLE OF CONTENTS XV (9) Death by wrongful act. (10) Proceedings in federal courts. (11) Unmatured debts. (12) Foreign contracts. (13) Foreign judgments. 221. What stops or suspends the running of the statute. (1) Commencement of action. (2) Amendment of pleadings. (3) Removal from state. (4) Infancy. (5) Death. (6) Inability to serve process. In equity. 222. How defence of statute is made. At law. (1) By demurrer. (2) By special plea. (3) Shown under the general issue. (4) By instructions. In equity. In code states. Matters of avoidance. 223. Who may plead the statute. Fiduciaries. Strangers. 224. New promise or acknowledgment. Effect of new promise. Nature of promise or acknowledgment. Undelivered writing. Provisions in wills. By whom promise should be made. (1) By party. (2) By partners after dissolution. (3) By personal representative. To whom promise should be made. When new promise should be made. 225. Waiver and estoppel. 226. Burden of proof. 227. Appeal and error. CHAPTER XXIX. PAYMENT. 228. What constitutes payment. Voluntary payments. 229. Application of payments. XVI TABLE OF CONTENTS 230. Plea of payment. Form of the plea. Code states. Payment and set-off distinguished. CHAPTER XXX. SET-OFFS. 231. Definition. 232. Actions in which available. 233. Subject of set-off. Liquidated demands. Availability of set-offs. 234. Acquisition of set-offs. Set-off as between a bank and general depositor. 235. Application of set-offs. 236. Pleading set-off. Manner of pleading. CHAPTER XXXI. RECOUPMENT. 237. Definition. 238. Common law recoupment. 239. Virginia statute of recoupment. Reinvestment of title to real estate. Rejection of plea under statute. Action for purchase price of personal property. Notice of recoupment. Essentials of a valid plea. Relief in equity. Recoupment and set-offs contrasted. 240. Who may rely upon the statute. CHAPTER XXXIA. CONTINUANCES. 241. Discretion of trial court. 242. When motion should be made. 243. Causes for continuance. 1. Continuance of right. 2. Absence of witness. (a) Materiality of witness. TABLE OF CONTENTS XVII (b) Inability to prove same facts by any other wit- ness who is present. (c) Use of due diligence to procure witness or get his evidence. (d) Reasonable probability that witness can be had at another trial. 3. Absence of papers. 4. Surprise. 5. Absence of counsel. 6. Absence of a party. 7. Any change in the pleadings. 8. Failure to serve process. 244. Refusing a continuance. 245. Cost of continuance. CHAPTER XXXII. JURIES. 246. Who are competent to serve. 247. Qualifications of jurors. Selection of jurors. 248. Objections to jurors. Challenges. 249. Special juries. 250. Oath of jurors. 251. Trial by jury. 252. Custody and deliberations of the jury. Disagreement of the jury. 253. Misconduct of jurors. CHAPTER XXXIII. OPENING STATEMENT OF COUNSEL. 254 Nature of statement. 255. Order of statement. CHAPTER XXXIV. DEMURRER TO EVIDENCE. 256. Nature of demurrer to evidence. 257. Form and requisites of demurrer and joinder. 258. Right to demur. 259. Effect of demurrer to evidence. b XVIII TABLE OF CONTENTS 260. Joinder in demurrer. 261. Concessions on demurrer to the evidence. 262. Procedure on demurrer to the evidence. 263. Rule of decision. 264. Exceptions to rulings and writ of error. CHAPTER XXXV. INSTRUCTIONS. 265. Object of instructions. 266. Charging the jury generally. 267. Nature, construction and effect of instructions. 268. Abstract propositions partial view of case. 269. Scintilla doctrine. 270. Sufficiently instructed. 271. Conflicting instructions. 272. Conflicting evidence. 273. Directing a verdict. 274. Law and fact. Foreign laws. Written instruments. Court's opinion on the evidence. 275. Oral or written. 276. Time of giving. Order of reading to jury. 277. Multiplication of instructions. 278. Find for the plaintiff. 279. Inviting error. 280. How instructions are settled. CHAPTER XXXVI. BILLS OF EXCEPTION. 281. Origin and purpose of bills of exception. 282. How points are saved. 283. Rejected evidence. 284. Competency of witnesses. 285. Form of bill of exception where evidence is excluded. 286. Supplying defects by reference. 287. Granting or refusing instructions. 288. Motion for new trial. 289. Evidence to support an instruction. 289a. Verdict not supported by the evidence. 290. Time and manner of filing. 291. Evidence of authentication. TABLE OF CONTENTS XIX CHAPTER XXXVII. ARGUMENT OF COUNSEL. 292. Opening and conclusion. 293. Number of counsel. 294. Duration of argument. 295. Reading law books to the jury. 296. Scope of argument. CHAPTER XXXVIII. VERDICTS. 297. Different kinds of verdicts. 298. Special verdicts and case agreed. Case agreed. 299. Definition and rendition of general verdict. 300. Essentials of a general verdict. 1. The verdict must respond to all the issues. 2. The verdict must respond to the whole of each issue. 3. The verdict should not find matters outside of the issues. 4. The verdict must be certain. 5. The verdict must be unanimous. 6. The verdict should be delivered in open court. Sealed verdicts. Chance verdicts. 7. The verdict should be received and recorded. 8. Verdict should accord with instructions of the court. 9. Verdict should not be excessive. 10. Verdict should not be too small. Interest. 301. Entire damages on defective counts. 302. Objections to verdicts. CHAPTER XXXIX. MOTIONS AFTER VERDICT. 303. Motion for a new trial. 1. Error or misconduct of the judge. 2. Error or misconduct of the jury. Impeachment of verdict by jurors. 3. Misconduct of counsel. 4. Misconduct of parties. 5. Misconduct of third persons. XX TABLE OF CONTENTS 6. After-discovered evidence. 7. Verdict contrary to the evidence. 8. Accident and surprise. 9. Damages excessive or too small. 304. Number of new trials conditions. 305. Arrest of judgment. 306. Judgment non obstante vercdicto. 307. Repleader. 308. Venire facias de novo. CHAPTER XL. MINOR INCIDENTS OF TRIAL. 309. Calling the docket. 310. Pleas puis darrein continuance. 311. Profert and oyer. 312. Variance. 313. Views. 314. Retraxit. . 315. Loss or destruction of notes or bonds. Sealed instruments. Negotiable paper. Non-negotiable paper. Summary. Present state of law in Virginia. 316. Costs. Cost of new trial. 317. Nonsuit. Withdrawing a juror. 318. Bill of particulars. Object of the statute. In what cases required. Finality of the bill. Insufficient bill. 319. Second trial. CHAPTER XLL JUDGMENTS. 320. Scope of chapter. 321. Judgments as liens. 322. Commencement of the lien. Date of commencement. Time for docketing. Order of satisfaction. TABLE OF CONTENTS XXI 323. Duration of lien. 324. Docketing. 325. Judgments against executors, administrators and trustees. 326. Claim of homestead against judgments. 327. Instruments having force of judgments. 328. Death of debtor. 329. Priority of judgments inter se. 330. Judgments of federal courts. 331. Foreign judgments. 332. Collateral attack. 333. Void judgments. 334. Satisfaction of judgments. 335. Order of liability of lands between different alienees. 336. Enforcement of judgments. CHAPTER XLII. EXECUTIONS. 337. Execution must follow judgment. 338. Issuance of execution. 339. Property not subject to levy. Executions which can not be levied on any property. Executions against executors and administrators. Executions against a defendant who is dead. Receivers. Property not leviable on under any execution. Railroads and quasi-public corporations. Choses in action. 340. Execution against principal and surety. 341. Duty of officer. 342. The levy. Money. Partnership property. Mortgaged property. Shares of stock. Several executions. 343. Payments to and disbursements by officer. 344. Payment by officer for debtor. 345. Sale of property. 346. The return. Amendment of return. Title of purchaser. 347. Delivery bond. 348. Interpleader proceedings. 349. The lien and its commencement. XXII TABLE OF CONTENTS 350. Territorial extent of lien. Tangible property. Intangible property. 351. Duration of lien. Tangible property. Intangible property. 352. Rights of purchaser. Tangible property. Intangible property. 353. Mode of enforcing the lien. Tangible property. Intangible property. Situs of debt for purpose of garnishment. 354. Property undisclosed. 355. Non-resident debtor. 356. Motion to quash. 357. Vcnditioni exponas. CHAPTER XLIII. ATTACHMENTS. 358. Nature and grounds. Non-resident or foreign corporation. Removal of goods. 359. Courts from which attachments may be issued. Attachment at law. Attachment in equity. Attachment from a justice. Attachment where no suit or action is pending. 360. Proceedings to procure attachment. In equity. At law. Attachment where no suit or action' is pending. Attachment for twenty dollars or less. 361. Affidavit. Sufficiency. Jurisdiction. Conjunctive and disjunctive statements. Who may make affidavit. Time of making affidavit. Amendments. Additional affidavits. Defective affidavits. 362. What may be attached. 363. What may not be attached. TABLE OF CONTENTS XXIII 364. How and by whom property is attached. Tangible personal property. Choses in action. Real property. By whom service may be made. 365. Attachment bonds. 366. Lien of attachment. Real estate. Personal property. Priorities. 367. When attachment to issue. 368. Defences to attachments. Who may make defence. What defence may be made. When defence may be made. How defence is made. Defence to the merits. Judgment for the plaintiff. Order of publication. 369. Remedies for wrongful attachments. 370. Holding defendant to bail. 371. Appeal and error. CHAPTER XLIV. WRITS OF ERROR. 372. Difference between writs of error and appeals. Appeals. Writs of error. Supersedeas. 373. Errors to be corrected in trial court. 374. Jurisdiction of the Court of Appeals of Virginia. Original jurisdiction. Appellate jurisdiction. (1) Matters not merely pecuniary. (2) Matters pecuniary. 375. Amount in controversy. Virginia doctrine. West Virginia doctrine. United States doctrine. General doctrine. Change in jurisdictional amount. Aggregate of several claims. 376. Cross-error by defendant in error. 377. Collateral effect. 378. Release of part of recovery. XXIV TABLE OF CONTENTS 379. Reality of controversy. 380. Who may apply for a writ of error. 381. Time within which writ must be applied for. 382. Application for writ of error. The record. The petition. Notice to counsel. 383. Bond of plaintiff in error. 384. Rule of decision. 385. Judgment of appellate court. Demurrer. Demurrer to the evidence. Case heard by trial judge without a jury. Jury trial in lower court. Divided court. 386. Change in law. 387. How decision certified and enforced. 388. Finality of decision. 389. Rehearing. 390. Objections not made in trial court. 391. Putting a party upon terms. 392. Appeals of right. 393. Refusal or dismissal of writ. 394. Conclusion. CHAPTER XLV. EXTRAORDINARY LEGAL REMEDIES. 395. Mandamus. 396. -Prohibition. Parties. Procedure. 397. Quo Warranto. Procedure. 398. Certiorari. CHAPTER XLVL HOMESTEADS AND EXEMPTIONS. 399. What is a homestead. 400. History of Virginia statute. 401. Constitutional provisions. 402. Who may or may not claim the homestead. For whose benefit. Nature of the estate. TABLE OF CONTENTS XXV 403. What may be claimed. 404. How and when to be claimed. 405. Effect of homestead on debts or claims of creditors. 406. Waiver of the homestead. 407. Prior liens. 408. Effect of will of householder. 409. Deed of trust or mortgage. 410. Power over homestead. 411. Income, increase and betterments. 412. Excessive homestead. 413. How claims superior to homestead enforced. 414. Cessation of homestead. 415. Poor debtors' exemption. CHAPTER XLVIL MECHANICS' LIENS. 416. Origin and development of the lien. 417. Who may take out the lien. 418. Rights of assignee. 419. On what the lien may be taken out. 420. How lien of general contractor is perfected. The account. Description of the property. When claim of lien to be filed. 421. Remedies of sub-contractor. Independent lien. Personal liability of the owner. Benefit of general contractor's lien. 422. Protection of sub-contractor against assignments and garnish- ments. 423. Mechanics' lien record. 424. Conflicting liens. 425. Enforcement of lien. 426. How lien may be waived or lost. CHAPTER XLVIII. PRINCIPAL RULES OF PLEADING. 427. Object of pleading Principal rules of pleading. 428. Materiality of Issue. 428a. Singleness of issue. 429. Certainty of issue. XXVI TABLE OF CONTENTS CHAPTER XLIX. RULES WHICH TEND SIMPLY TO THE PRODUCTION OF AN ISSUE. 430. Introductory. RULE I. 431. After the declaration, the parties must at each stage demur, or plead by way of traverse, or by way of confession and avoid- ance. , 432. Pleadings. 433. The general issue. 434. Scope of general issue in assumpsit. 435. Scope of general issue in trespass on the case. 436. Special pleas. 437. Traverse de injuria. 438. Special traverse. 439. Use and object of special traverse. 440. Essentials of special traverse. 441. Traverses in general. 442. Traverse on matter of law. 443. Matter not alleged must not be traversed. 444. Traversing the making of a deed. 445. Pleadings in confession and avoidance. 446. Express color. 447. The nature and properties of pleadings in gen- eral Without reference to their quality, as be- ing by way of traverse, or confession and avoidance. 448. Exceptions to the rule. RULE II. 449. Upon a traverse issue must be tendered. RULE III. 450. Issue, when well tendered, must be accepted. CHAPTER L. RULES WHICH TEND TO SECURE THE MATERIALITY OF THE ISSUE. RULE I. 451. All pleadings must contain matter pertinent and material. TABLE OF CONTENTS XXVII CHAPTER LI. RULES WHICH TEND TO PRODUCE SINGLENESS OR UNITY IN THE ISSUE. RULE I. 452. Pleadings must not be double. 453. Several demands. 454. Several defendants. 455. Illustrations. 456. Several counts. 457. Several pleas. 458. Several replications. RULE II. 459. It is not allowable both to plead and to demur to the same matter. CHAPTER LII. RULES WHICH TEND TO PRODUCE; CERTAINTY OR PARTICULARITY IN THE ISSUE. RULE I. 460. The pleadings must have certainty of place. RULE II. 461. Pleadings must have certainty of time. RULE III. 462. The pleadings must specify quality, quantity, and value. 463. General statements of quantity and quality. 464. Actions to which rule inapplicable. 465. Allegation and proof. RULE IV. 466. The pleadings must specify the names of persons. 467. Misnomer. RULE V. 468. The pleadings mu'st shoit' title. 469. Derivation of title. 470. Particular estates. 471. Additional rules on derivation of title. 472. Plea of liberum tcncmcntum. 473. Title of possession. 474. When title of possession is applicable. XXVIII TABLE OF CONTENTS 475. When title of possession is sufficient. 476. Alleging title in adversary. 477. Title must be strictly proved. 478. Estoppel to deny title. RULE vr. 479. The pleadings must show authority. RULE VII. 480. In general whatever is alleged in pleading must be alleged with cer- tainty. SUBORDINATE RULES. 481. It is not necessary in pleading to state that which is merely matter of evidence. 482. It is not necessary to state matter of which the court takes notice ex officio. 483. It is not necessary to state matter which would come more properly from the other side. 484. It is not necessary to allege circumstances neces- sarily implied. 485. It is not necessary to allege what the law will pre- sume. 486. A general mode of pleading is allowed where great prolixity is thereby avoided. 487. A general mode of pleading is pften sufficient, where the allegation on the other side must reduce the matter to certainty. "488. No greater particularity is required than the na- ture of the thing pleaded will conveniently admit. 489. Less particularity is required when the facts lie more in the knowledge of the opposite party than of the party pleading. 490. Less particularity is necessary in the statement of matter of inducement or aggravation, than in the main allegations. 491. With respect to acts valid at common law, but reg- ulated as to the mode of performance by stat- ute, it is sufficient to use such certainty of alle- gation as was sufficient before the statute. CHAPTER LIU. RULES WHICH TEND TO PREVENT OBSCURITY AND CONFUSION IN PLEADING. RULE I. 492. Pleadings must not be insensible nor repugnant. TABLE OF CONTENTS XXIX RULE II. 493. Pleadings must not be ambiguous, or doubtful in meaning; and when two different meanings present themselves, that construc- tion shall be adopted which is most unfavorable to the party pleading. 494. Negative pregnant. RULE III. 495. Pleadings must not be argumentative. RULE IV. 496. Pleadings must not be in the alternative. RULE V. 497. Pleadings must not be by way of recital, but must be positive in their form. RULE VI. 498. Things are to be pleaded according to their legal effect or operation. RULE VII. 499. Pleadings should observe the known and ancient forms of expres- sion, as contained in approved precedents. RULE VIII. 500. Pleadings should have their proper formal commencements and conclusions. 501. Variations in forms. 502. Improper commencements or conclusions. RULE IX. 503. A pleading which is bad in part is bad altogether. CHAPTER LIV. RULES WHICH TEND TO PRESENT PROLIXITY AND DELAY IN PLEADING. RULE I. 504. Tlierc must be no departure in pleading. RULE II. 505. Where a plea amounts to the general issue, is should be so pleaded. XXX TABLE OF CONTENTS RULE III. 506. Surplusage is to be avoided. CHAPTER LV. CERTAIN MISCELLANEOUS RULES. RULE I. 507. The declaration must be conformable to the original writ.' RULE II. 508. The declaration should have its proper commencement, and should in conclusion lay damages, and allege production of suit. RULE HI. 509. Pleas must be pleaded in due order. RULE IV. 510. Pleas in abatement must give the plaintiff a better writ or declara- tion. RULE V. 511. Dilatory pleas must be pleaded at a preliminary stage of the suit. RULE VI. 512. All affirmative pleadings which do not conclude to the country, must conclude with a verification. RULE VII. 513. In all pleadings where a deed is alleged, under which the party claims or justifies, profert of such deed must be made. RULE VIII. 514. All pleadings must be properly entitled. RULE IX. 515. All pleadings ought to be true. CHAPTER LVI. CONCLUSION. 516. Merits of system. Acts of 1912 After the first four hundred and twenty-four pages of this book were printed, the legislature, at its session of 1912, enacted the following statutes affecting subjects treated in the text: Acts 1912, p. 15. An Act giving a remedy by motion for torts. Thirty days notice is required, and the court must have jurisdiction "other- wise than under" 3215 of the Code. See 99 of the text. Acts 1912, p. 38. Section 2920 of the Code is so amended as to make the limitation on store accounts three years instead of two, as formerly. This changes the law as laid down in 219, page 387, of the text. Acts 1912, p. 133. A remedy, by petition after notice, is given for the ascertainment and designation by the court of "the true boundary line or lines to such real estate as to one or more of the coterminous landowners." The Act declares who shall be parties, and provides the mode of procedure. See Chapter on Ejectment. Acts 1912, p. 651. Section 3211 of the Code is so amended as to allow a recovery for damages founded upon any contract, and also to recover any statutory penalty. This changes the law as laid down in 99 of the text. Constitutions and Codes Cited [References are to pages.] CONSTITUTION OF UNITED STATES. Constitution, U. S., Art. 1, 6 293 Constitution, U. S., Art. 4, 1 92, 93 Constitution, U. S., Amendment VII 475 Constitution, U. S., Amendment XIV . 312 CONSTITUTION OF VIRGINIA. Constitution, Va., (1869), art. XI, 3 801 Constitution, Va., (1902), 11 307, 312, 474, 475 Constitution, Va., (1902), 88 37, 48, 739, 741, 742, 743, 768 Constitution, Va., (1902), 98 38, 46, 737 Constitution, Va., (1902), 101 38 Constitution, Va., (1902), 106 291 Constitution, Va., (1902), 162 70 Constitution, Va., (1902), 190 789, 793, 795, 796, 807 Constitution, Va., (1902), 190, (1) 787 Constitution, Va., (1902), 191 793 Constitution, Va., (1902), 192 792 Constitution, Va., (1902), 193 .787 CODE OF VIRGINIA. 1 Rev. Code, (1819), p. 512, 104 548, 552 1 Rev. Code, (1819), ch. 133, 2, p. 523 523 2 Rev. Code, (1819), pp. 194-5 768 Code, (1849), ch. 130, 34 631 Code, (1849), ch. 168, 5 166 Code, (1849), ch. 186, 6 607 Code, (1849), ch. 186, 8 609 XXXIV CODE OF VIRGINIA CITED [References are to pages.] Code, (1873), ch. 115, 6 829 Code, (1887), 2959 171 Code, (1887), 3224 295, 296 Code, (1887), 3255 307 Code, (1887), 3485 -. 768 Code, (1887), 3570 609 CODE 1904 Code, 5, cl. 8 165, 322 Code, 5, cl. 10 698 Code, 5, cl. 13 302 Code, 173 39 Code, 174 692 Code, 177 708 Code, 181 708 Code, 198 293, 294 Code, 256 497 Code, 257 493 Code, 355 293 Code, 575 89 Code, 57G 89 Code, 615 182 Code, 622-626 4 Code, 657, 658 543 Code, 681-685 182 Code, 687 637 Code, 712 89, 182 Code, 713 89, 182 Code, 714 89, 182 Code, 723 183 Code, 746 629 Code, 863-865 182 Code, 892 295, 672 Code, . 893 295, 296 Code, 895 295, 296 Code, 898 294, 640 Code, 900 9, 47, 182, 260, 295, 323 Code, 901 .. 182 Code, 904 640 Code, 906 8, 11, 647 Code, 907 9, 647 Code, 909 : 183 Code, 910-912 183 Code, 944a 37 Code, 1044 4 CODE OF VIRGINIA CITED XXXV [References are to pages.] Code, 1103 311 Code, 1104 317 Code, 1137 381 Code, 1292 91 Code, 1294b, cl. 20 41 Code, 1294k 70 Code, 1669 309 Code, 1700 45 Code, 2038-2061, ch. 93 809 Code, 2042 4 Code, 2048 3 Code, 2233 400 Code, 2286a 68,97 Code, 2413 24 Code, 2415 50, 109 Code, 2428 642 Code, 2455 15 Code, 2460 386 Code, 2468a 715 Code, 2475..... 813, 816, 817,824 Code, 2476 816, 817, 819, 826- Code, 2477 822, 824 Code, 2478 819 Code, 2479 822, 823 Code, 2480 > 824 Code, 2481 818, 831 Code, 2482 824 Code, 2482a, cl. 1 825 Code, 2482a, cl. 2 825 Code, 2483 817, 826 Code, 2484 . 828 Code, 2485 813, 826 Code, 2486 826 Code, 2487 814 Code, 2495 47 Code, 2498 453, 620 Code, 2498a 620 Code, 2501 39 Code, 2533 45 Code, 2539 45 Code, 2542 45 Code, 2544 482 Code, 2599 45 Code, 2602 45 Code, 2639 45 Code, 2639a 38 XXXVI CODE OF VIRGINIA CITED [References are to pages.] Code, 2649 '. 808 Code, 2650 , 632 Code, 2651 632 Code, 2652 632 Code, 2654 630 Code, 2658 .' 631 Code, 2659 631 Code, 2660 34, 629, 631, 632 Code, 2661 34, 631, 632 Code, 2665 ; 34 Code, ch. 121, 2671-2711 393 Code, 2676 393, 41.1 Code, 2677 72, 630 Code, 2678 632 Code, 2679 632 Code, 2680 632 Code, 2715 193 Code, 2716 44, 47, 188, 189, 191 Code, 2717 189, 408, 577 Code, 2719 ._ 190 Code, 2721 .* 190 Code, 2723 195 Code, 2724 201 Code, 2725 195 Code, 2726 195, 200 Code, 2730 202 Code, 2731 202 Code, 2734a 205 Code, 2736 195 Code, 2737 207 Code, 2738 208 Code, 2739 207 Code, 2741 189, 202 Code, 2742 189, 202 Code, 2743 189, 202 Code, 2744 208 Code, 2746 208 Code, 2747 208 Code, 2748 208 Code, 2749 208 Code, 2751 199 Code, 2753 204 Code, 8 2754 204 Code, 2762 204 Code, 2764 204 Code, ch. 127 2781-2805 43 CODE OF VIRGINIA CITED XXXVII [References are to pages.] Code, 2785 5 Code, 2787 ". 4,6 Code, 2790 5, 6, 7, 39, 42 Code, 2791 6, 11, 12, 13, 14 Code, 2792 12, 13, 14 Code, 2793 7 Code, 2794 8 Code, 2794a 6,9 Code, 2795 10,47 Code, 2841a 52 Code, 2844a 322 Code, 2852 82, 94, 144 Code, 2853 52, 53, 83, 120 Code, 2855 52,901 Code, 2856 19,428 Code, 2857 428 Code, 2858 20, 428 Code, 2860 , 56, 109 Code, 2876 64 Code, 2887 390 Code, 2890 390 Code, 2891 390 Code, 2893 183, 730 Code, 2895. 183 Code, 2897 249, 252, 348, 487, 949 Code, 2898 728 Code, 2899 210 Code, 2900 90 Code, 2901 226, 901 Code, 2902 231 Code, 2903 384 Code, 2904 69 Code, 2906 231 Code, 2907 214, 224 Code, 2912 213, 536 Code, 2915 194 Code, 2917 206, 394, 404 Code, 2918 206 Code, 2919 404, 630 Code, 2920 387, 395, 404, 405 Code, 2921 393 Code, 2922 406 Code, 2923 416 Code, 2924 415 Code, 2927 385, 395 XXXVIII CODE OF VIRGINIA CITED [References are to pages.] Code, 2928 399 Code, 2929 386, 387 Code, 2931 394, 395, 404 Code, 2932 405 Code, 2933 384, 399, 403, 405 Code, 2934 401,402 Code, 2935 397 Code, 2936 379 Code, 2937 381 Code, 2938 398 Code, 2939 10, 40, 44, 785 Code, 2940 40 Code, 2942 41 Code, 2943 41 Code, 2946 41 Code, 2947 41, 46 Code, 2948 41, 42 Code, 2949 41, 42 Code, 2950 41, 42 Code, 2951 41 Code, 2952 41, 183 Code, 2953 41 Code, 2955 41 Code, 2955 41 Code, 2956 41, 42, 46 Code, 2957 42 Code, 2959 171, 664, 676, 681, 682, 683, 690, 691, 695, 697, 716 Code, 2961 39, 43, 678, 685, 689, 695 Code, 2962 39, 43, 678, 685, 689, 695 Code, 2963 679 Code, 2964 679, 682, 695, 716 Code, 2965 43, 685, 688, 707, 708, 721 Code, 2966 698, 716 Code, 2967 698, 699, 702, 704, 706, 707, 708 Code, 2968... 708,709,728 Code, 2970 321, 708 Code, 2971 712 Code, 2972 710 Code, 2973 711 Code, 2974 711 Code, 2975 711 Code, 2976 705 Code, 2977 661, 662, 705 Code, 2978 661, 705 Code, 2979 727 CODE; OF VIRGINIA CITED xxxix [References are to pages.] Code, 2980 717 Code, 2981 718, 721, 724 Code, 2982 726 Code, 2983 712, 726, 727 Code, 2984 710, 717, 718, 725 Code, 2985 700 Code, 2986 727, 731 Code, 2988 43, 684, 685, 691, 695 Code, 2990 708 Code, 2991 43, 730 Code, 2992 43, 669, 730 Code, 2995 731 Code, 2996 731 Code, 2997 , 730 Code, 2998 215 Code, 2999 12, 47, 217, 218, 654 Code, 3000 12, 217, 218, 219, 654 Code, 3001 215, 217, 218, 645, 650, 653, 654 Code, 3002 215, 216, 644 Code, 3003 215, 650, 654 Code, 3004 219 Code, 3006 23,24 Code, 3007 26 Code, 3009 29 Code, 3010 22, 23 Code, ch. 144, 3011-3021 781 Code, ch. 144, SOllff 777 Code, 3016 778 Code, 3017 778 Code, 3018 781 Code, 3022 781. Code, ch. 145, 3022-3028 784 Code, 3024 783 Code, 3046 47 Code, 3054 182 Code, 3055 46, 47 Code, 3058 44, 45, 46 Code, 3058b 47 Code, 3062 -. 182 Code, 3067a 47 Code, 3124 167 Code, 3138 45 Code, 3139 470 Code, 3140 , 470 Code, 3140a... . 470 XL CODE OF VIRGINIA CITED [References are to pages.] Code, 3141 470 Code, 3154 471, 472, 473 Code, 3155 472 Code, 3156 472 Code, 3158 473 Code, 3165 471 Code, 3166 475 Code, 3167 588 Code, 3200 183, 393 Code, 3207 162, 295, 296, 298, 312 Code, 3209 184 Code, 3210 9, 47, 78, 183, 292 Code, 3211 46, 56, 78, 159, 163, 164, 165, 166, 167, 168, 171, 172, 174, 175, 181, 182, 183, 292, 357, 401, 445, 610, 716, 854 Code, 3212 52, 53, 54, 180, 181, 901 Code, 3213 9, 181, 475 Code, 3214 163, 281, 282, 284, 293, 317, 318, 917 Code, 3214, cl. 4 281 Code, 3214, cl. 5 284 Code, 3214, cl. 6 285 Code, 3214, cl. 7 285 Code, 3215 163, 272, 282, 284, 285, 295, 311, 317, 322, 327, 917 Code, 3220 260, 272, 282, 297, 312, 317, 322, 627, 637, 917 Code, 3221 260, 290 Code, 3223 292 Code, 3224 162, 283, 298, 312 Code, 3225. . 283, 310 Code, 3226 309 Code, 3227 284, 310, 311, 312, 316, 322, 323, 324, 326 Code, 3231 321 Code, 3232 296, 304 Code, 3236 256, 258, 259 Code, 3237 256 Code, 3238 256,274 Code, 3239 257 Code, 3240 256, 260 Code, 3241 257 Code, 3242 257, 919 Code, 3243 287, 340, 916 Code, 3244 287, 340, 581, 1005 Code, 3245 287, 340, 360, 976, 977, 1012, 1018 Code, 3246 141, 340, 345, 360, 976,977, 1012, 1018 Code, 3246a 83, 115, 119, 120, 157 Code, 3247 , 340, 360 CODE OF VIRGINIA CITED XL) [References are to pages.] Code, 3248 148, 149 Code, 3249 9, 100, 148, 157, 178, 179, 445, 456, 599, 600, 854, 924, 1016, 1018 Code, 3250 99 Code, 3251 956 Code, 3253 1013 Code, 3255 66, 67, 270, 307 Code, 3258 257, 270, 583, 926, 1013 Code, 3258a 76, 257, 345, 1013 Code, 3259 180, 257, 270, 291, 349, 583, 998, 1013 Code, 3260 180,258,273 Code, 3261 54, 258, 271 Code, 3263 75, 1014 Code, 3264 279, 332, 339, 342, 343, 361, 909, 1000, 1015 Code, 3265 978, 981 Code, 3266 875 Code, 3267 865 Code, 3268 356 Code, 3269 977, 978 Code, 3270 909 Code, 3271 -. 341 Code, 3272 141, 269, 334, 340, 359, 975, 976, 977, 1012, 1018 Code, 3278 99, 101, 176, 269 Code, 3279 99, 114, 162, 176, 269, 332 Code, 3280 99, 176, 269 Code, 3283 261, 262, 292, 608, 610 Code, 3285 150,263,264 Code, 3286 100, 150, 263, 264, 269, 741 Code, 3287 95, 263, 275, 277, 619 Code, 3288 263, 276, 277 Code, 3259 272 Code, 3293 274, 598, 608 Code, 3294 185 Code, 3295 433 Code, 3296 245, 373 Code, 3297 245, 373 Code, 3298 97, 432, 435, 437, 440, 443, 444, 459 Code, 3299... 101, 102, 117, 171, 175, 177, 178, 269, 338, 357, 406, 408, 448, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 854 Code, 3300 357, 408, 448, 450, 454 Code, 3301 448 Code, 3302 433, 435, 448, 874 Code, 3303 436, 440, 441, 443, 597 Code, 3304 436, 441, 442, 443, 448, 449 XLII CODE OP VIRGINIA CITED [References are to pages.] Code, 3305 73 Code, 3308 73, 463 Code, 3309 73 Code, 3311 74 Code, 3316 917 Code, 3317 917 Code, 3328 948 Code, 3336 266 Code, 3354 464 Code, 3365 465 Code, 3375 254, 255 Code, 3376 527 Code, 3377a 95, 593 Code, 3378 166, 167, 258, 577 Code, 3380 468 Code, 3384 170, 467, 493, 585, 586, 587, 1014 Code, 3385 519, 523 Code, 3385a 518, 559, 764 Code, 3387 597 Code, 3388 476 Code, 3389 548, 555, 766 Code, 3390 95, 546 Code, 3392 545, 558, 569, 763 Code, 3393 95 Code, 3394 95, 265, 583, 956 Code, 3395 54, 75, 181 Code, 3396 53, 54, 181 Code, 3402a , 306 Code, 3415a 61, 633 Code, 3419 45 Code, 3447 737 Code, 3448 737 Code, 3449 355, 356. 363. 571, 737, 969 Code, 3451 535, 541, 738 Code, 3452 738, 773 Code, 3454 48, 740, 742, 744 Code, 3455 48, 740, 742, 756 Code, 3457 758, 759 Code, 3460 758 Code, 3464-5-6 758 Code, 3470 758, 760 Code, 3474 756 Code, 3484 497, 566, 603, 761, 763 Code, 3484a 517 Code, 3485 . 735, 768 CODE OF VIRGINIA CITED [References are to pages.] Code, 3488 769 Code, 3490 769 Code, 3492 770 Code, 3495 760 Code, 3518 4 Code, 3519 183 Code, 3538 594 Code, ch. 173, 3538-3556 594 Code, 3539 594 Code, 3541 469 Code, 3542 569 Code, 3543 594 Code, 3544 '. 594 Code, 3545 594 Code, 3549 464 Code, 3557 604 Code, 3558 604 Code, 3559a 618 Code, 3561 612 Code, 3562 620 Code, 3563 620 Code, 3564 620 Code, 3565 613 Code, 3566 699,712 Code, 3567 606, 607, 608, 610 Code, 3568 607, 611 Code, 3570 609, 612 Code, 3571 622 Code, 3572 623 Code, 3573 '. 389, 623 Code, 3574 616, 620 Code, 3575 620 Code, 3576 610, 615, 616 Code, 3577 405, 612, 627, 648, 659 Code, 3580 615 Code, 3581 625 Code, 3583 669 Code, 3584 214 Code, 3585 214 Code, 3587 626, 627, 655, 656 Code, 3588 641 Code, 3589 627, 636 Code, 3590 645 Code, 3591 636, 637, 648 Code. 3593 . . 672 XUV CODE OF VIRGINIA CITED [References are to pages.] Code, 3594 672 Code, 3596 646 Code, 3598 654 Code, 3599 670 Code, 3600 626 Code, 3601 428, 638, 656, 660, 699 Code, ch. 176, 3601-3616 669 Code, 3602 659 Code, 3603 665, 668 Code, 3604 662, 667 Code, 3606 668 Code, 3608 668 Code, 3609 ." 44, 297, 661, 662, 664 Code, 3610. 662 Code, 3611 661 Code, 3617 9, 650 Code, 3618 10, 43 Code, 3619 9, 47, 652 Code, 3620 183 Code, 3621 9,42 Code, 3624 653 Code, ' 3625 10, 43, 183 Code, 3626 615 Code, 3629 794 Code, 3630 793, 796, 797, 805 Code, ch. 178, 3630-3657 655 Code, 3631 793, 794 Code, 3632 793 Code, 3633 793 Code, 3634 803 Code, 3635 802 Code, 3636 795, 801 Code, 3637 802 Code, 3640 795, 801, 802 Code, 3642 795 Code, 3643 803 Code, 3644 804 Code, 3647 797, 799, 820 Code, 3648 805 Code, 3649 608, 615, 805 Code, 3649a 801 Code. 3650 12, 633, 799, 807, 808, 809, 810 Code, 3651 12, 633, 799, 807, 808, 809, 810 Code, 3652 44, 633, 663, 799, 807, 810 Code, 3652a . 89,664,809 CODE OF WEST VIRGINIA CITED XLV [References are to pages.] Code, 3652b 809 Code, 3652c 809 Code, 3652d 706 Code, 3652e 706 Code, 3652f 706 Code, 3653 808 Code, 3654 809 Code, 3655 12, 809 Code, 3656 810 Code, 3657 796, 807 Code, 3677 389 Code, 3712 639 Code, 3958 347 Code, 4115 , 72,294 Code, 4116 72 Code, 4121 294 Code, 4026 478 Code, 4029a 479 Code, 4045 550, 553 Code, 4058 335 3 Code, p. 544 462 CODE OF WEST VIRGINIA. Code, W. Va., (1899), ch. 125, 11 149 Code, W. Va., (1899), ch. 125, 21 361 Code, W. Va., (1906), 1976 65 Code, W. Va., (1906), 3485 487 Code, W. Va., (1906), 3503.... 415 Code, W. Va., (1906), 3511 385 Code, W. Va., (1906), 3541 710 Code, W. Va., (1906), 3833 308 Code, W. Va., (1906), 3834 926 Code, W. Va., (1906), 5835 998 Code, W. Va., (1906), 3840 333, 342, 344, 908, 909 Code, W. Va., (1906), 3841 , 279 Code. W. Va., (1906), 3849 335 Code, W. Va., (1906), 3852 919 Code, W. Va., (1906), 3853 581 Code, W. Va.. (1906), 3876 1020 Code, W. Va.. (1906). 3890 432 Code, W. Va., (1906), 3922 948 Code. W. Va.. (1906), 3969 924 XLVI CODE OF WEST VIRGINIA CITED [References are to pages.] Code, W. Va., (1906), 3976 465. Code, W. Va., (1906), 3979 496, 568 Code, W. Va., (1906), 3980 527, 528 Code, W. Va., (1906), 3982 476 Code, W. Va., (1906), 3985 569 Code, W. Va., (1906), 4037 733, 738 Code, W. Va., (1906), 4038 542, 744 Code, W. Va., (1906), 4058 769 Code, W. Va., (1906), 4059 335 Code, W. Va., (1906), 4125 * 595 Code, W. Va., (1906), 4128 569 Code, W. Va., (1906), 4150 . 627 Cases C ited [References are to pages.] Abbot v. Chapman 851 Abell v. Penn. Ins. Co 338, 403 Abney v. Ohio L. R. Co. ..267, 290 Ackiss v. Satchell, 612, 615, 658, 807 Acknei v. Railroad Co.. 760 Adams v. Jennings 779-780 Adams v. Lawson 255 Adamson v. Norfolk Co.. 537, 565 Adkins v. Fry 484 Adkins v. Richmond. .348, 743, 771 Adkins v. Stephens 484 Aglionby v. Towersom 953 Ailstock v. Moore Lime Co.. 240 Aldneb v. Anchal Coal Co. (Oregon) 319 Alexander v. Slavis 308 Alleghany Iron Co. v. Teaford. 529 Allen v. Bartlett 5 Allen v. Clark 797 Allen v. Hart 9, 224, 432, 441 Alley v. Rogers 621 Allis v. Billings 102 Allison v. The Farmer's Bank of Virginia 96 Allison v. Wood 751, 756, 769 Alrmeyer v. Caulfield 692 Alsope v. Sytwell 963 Alvis v. Saunders 615 Amis v. Roger 166, 184 American Bonding Co. v. Mil- stead 115, 117, 145, 155 Amer. L. Co. v. Hoffman.... 759 Amer. L. Co. v. Whitlock, 504, 505, 506 Amer. Manganese Co. v. Va. Manganese Co 449 Amy v. Dubuque 383, 396 Amy v. Watertown 310, 405 Anderson v. Com 522, 524 Anderson v. Desoer..698, 699, 713 Anderson v. Henry 13 Anderson v. Hygeia Hotel Co., 384, 769 Anderson v. Johnson, 712, 722, 725, 727, 732 Anderson v. Kanawha Coal Co 134, 697 Andrews v. Fitzpatrick 296 Andrews v. Mundy 679 Anniston Electric Co. v. Rosen 893 Anthony v. Kasey 306 App v. App 950 Archer v. Archer 113, 115, 957 Armentrout v. Gibbons 442 Arminius Chemical Co. v. White 297 Armstrong v. Taylor 28, 781 Arnold v. Cole 113, 114 Arnold v. Kelly 247 Arthur v. Ingles 212 Ashby v. Bell 411 Atlantic Coast Line v. Bryan. 380 Atlantic & D. R. Co. v. Rei- ger 471, 759 Atl., etc., R. Co. v. Laird 396 Atlantic & Tel. Co. v. Phila.. 70 Att'y-General v. Meller, 937, 939, 962 Attwood v. Davis 984 Auburn & O. Co. v. Leitch.. 354 Aultman v. Gay 541, 773 Aurora City v. West 451 Austin v. Jones, 31, 98, 211, 212, 247, 537, 580 XLVIII CASES CITED [References are to pages.] Austin v. Richardson 146 Austin v. Whitlock Ill, 114 Ayers v. Richmond, etc., R. Co 491 Aylesbury v. Harvey 1003 Aylett v. Robinson. . .413, 414, 420 Aylett v. Walker 65 Backus v. Taylor 110 Baer v. Ingram. .612, 659, 670, 671 Bailey v. Clay 355 Bailey v. Glover 386 Bailey v. Hull 831 Bailey v. McCormick 595 Bailey Construction Co. v. Purcell 829 Bainbridge v. Day 987 Baird v. Peter 95 Baker v. Blackman 888 Baker v. Dewey 870 Baker v. Morris 96 Baker v. Swineford. ...'.. .276, 626 Baker v. Watts 774 Ballard v. Whitlock 671 Ballou v. Ballou 393 B. & O. R. Co. v. Bank 131 B. & O. R. Co. v. Burke 130 B. & O. R. Co. v. Few 504 B. & O. R. Co. v. Gallahue.. 663 B. & O. v. McCullough 698 B. & O. v. Polly 133, 158, 330, 509, 538, 539, 540, 588, 993 B. & O. R. Co. v. Wightman, 69, 464 Bait, Dental Ass'n v. Fuller.. 6 Banfill v. Leigh 1004 Bank v. Allen 540 Bank v. Berkeley 518 Bank v. Byrum 680 Bank v. Kimberlands 433 Bank v. Napier 774 Bank v. Otterview Land Co. 383 Bank v. Parsons 460 Bank v. Pratt 953 Bank v. Showacre 525 Bank of Huntington v. Napier. 568 Bank of Old Dom. v. Allen.. 616 Bank of the U. S. v. Jackson. 142 Bankers' Loan & Investment Co. v. Blair 613 Bannister v. Coal and Coke Co ' 128, 133, 143, 156 Barbee v. Pannell 732 Bardwell v. Collins 314 Barker v. Lade 974 Barksdale v. Fitzgerald 616 Barksdale v. Neal 326 Barnes v. Crockett's Arm'r.. 107 Barnes Case 759, 770 Barrett v. Coal Co 491, 496, 497 Barrett v. Armstrong 129 Barrett v. Hinckley 196 Barrett v. Raleigh Coal & Coke Co 137 Bartlett v. McKinney, 190, 356, 358 Bass v. Norfolk Ry. Co 495 Bassett v. Cunningham 26, 28 Batchelder v. Richardson, 746, 750 Bateman v. Allen 932 Batt v. Bradley 878 Battershall v. Roberts 513, 520 Bauserman v. Blunt 398 Beak v. Tyrell 945 Beal v. Simpson 867 Beale v. Botetourt Justices... 628 Beale v. Hall 130 Beantz v. Basnett 429 Beard v. Arbuckle 646 Bear Lake City v. Budge 314 Beavers v. Putnam 231 Beazley v. Sims 53 Beirne v. Rosser 271, 281,774 Beirne v. Dunlap 84, 88 Bell v. Crawford 413, 415, 420 Bell v. Morrison.. 378, 413, 415, 420 Bellamy's Case 1004 Bellenot v. Richmond 381 Bemiss v. Com 760, 896 Benn v. Hatcher.. . 538 CASES CITED XUX [References Bennett v. Filkins 858 Bennett v. Finney 442 Bennett v. Perkins 486 Bentley v. Standard F. Ins. Co 402 .Benton v. Com 462 Bertha Zinc Co. v. Martin 502 Bertie v. Pickering 922 Beverley v. Holmes 144 Bias v. Vickers 456 Bickle v. Crisman 378, 386, 663 Bierly v. Williams 31 Birch v. Bellamy 964 Birch v. King 353 Birch v. Wilson 992, 994 Birckhead v. Ches. & O. R. Co 364 Bird v. Randall 853 Birmingham v. C. & O. R. Co., 59, 395 Bishop v. Harrison 416 Bishop of Salisbury's Case... 963 Bisse v. Harcourt 980, 983 Black v. Thomas 535, 538 Black v. Va. Portland Ce- ment Co 557 Blackborough v. Davis 930 Blackwell r. Bragg 395 Blackwell v. Landreth 545 Blackwood Coal Co. v. James, 346, 521 Blagge v. Ilsley 229 Elaine v. Ches. & O. R. Co... 3 Blair v. Carter 369, 411 Blair v. Wilson 134, 428 Blake v. Foster 859 Blake v. McCleng 315 Blake v. McCray 189 Blakemore v. Wise 616 Blanks v. Robinson 236 Blanton v. Com 170, 177 Bledsoe z: Robinett 360 Bleeke v. Grove . , 895, 896 Blockley v. Slater 929 Blose v. Bear 791 ' d are to pages.] Bloss v. Plymale 18 A. D. Blowers & Co. v. Can. Pac. R. Co 243 Blue Ridge L. & P. Co. v. Tutwiler 514 Blunt's Case 500 Boffinger v. Tuyes 17 Boggs v. Newton 211 Bohn v. Zeigler 692 Boisseau v. Bass 635, 702 Boiling v. Kirby 241 Bond v. Dustin 554 Bonner v. Wilkinson 870 Bonsack v. Roanoke County.. 575 Booker v. Donohoe 122, 148 Booth v. Dotson 51, 755 Borst v. Nalle 605 Boston, etc., Co. v. Ches. & O. R. Co 814, 816, 821 Boston R. Co. v. McDuffey... 69 Botton v. Cannon 908 Botts v. Pollard 258, 261 Bower v. Cook 977 Bowers v. Bristol 490,491 Bowditch v. Mawley 926 Bowie v. Poor Society 397 Bowler v. Huston, 65, 103, 293, 306 Bowles v. Brauer 322 Bowles v. Elmore 405, 422 Bowman v. Bowman 888 Bowyer's Case 914 Boyce v. Whitaker 948 Boyden v. Fitchburg R. Co... 947 Boyles v. Overby 359, 574 Boynton v. Ball 369 Braban v. Bacon 953 Bradshaw v. Ashley 198 Bradshaw's, Robert, Case.. 962, 963 Brady v. Johnson 634 Brammer v. N. & W. R. Co... 384 Braxton r. Harrison 416 Breeden v. Peale 171, 716 Bret v. Audar 958 Brewer r. Hutton 629,701 CASES CITED [References are to pages.] Bridges v. Stephens 420 Briggs v. Barnett 130 Briggs v. Cook, 175, 177, 190, 357, 358 Briggs v. Hall 15, 492, 495 Bright Hope R. Co. v. Rogers. 510 Brindley v. Dennett 996 Brinsmead v. Harrison 19, 56 Bristol Iron & Steel Co. v. Thomas 814 Bristow v. Wright 995, 996 Britton v. Williams 23 Broaddus v. Supervisors 775 Brockenbrough v. Brocken- brough 292, 833 Brooke v. Gordon 95 Brooklyn v. Life Ins. Co 319 Brooks v. Metropolitan Life Ins. Co 338 Brooks v. Scott 133, 141, 142 Brown v. Butler 402 Brown v. Campbell 658 Brown v. Com 507 Brown v. Cornwall 819 Brown v. Ferguson 532, 576 Brown v. Gates '. 633 Brown v. Gorsuch 723 Brown v. Howard 755 Brown v. Hume 611 Brown v. 111. Cent. R. Co... 973 Brown v. Norfolk & W. R. Co 252, 349, 487 Brown v. Ralston 133, 532 Brown v. Smith 924, 999 Brown v. Western State Hos- pital 67 Bruce v. Berg 820 Brudnell v. Roberts 857 Brunswick Terminal Co. v. National Bank 399 Buck v. Guarantors Co 701 Buckley v. Rice Thomas, 926, 961, 976 Buena Vista Co. v. Hickman.. 525 Buena Vista Co. v. McCand- lish 132, 138, 541, 542, 772 Buford v. Houtz 3 Buford v. North Roanoke Land Co 756 Bugg v. Seay 199, 511 Bull v. Com 517, 559 Bull v. Evans 424, 756 Bullitt v. Winston 638, 648 Bullock v. Sebrell 108 Bumgardner v. Harris. .. .385, 387 Bunch v. Fluvanna County, 175, 176 Bunting v. Cochran 438, 747 Buntin v. Danville 477, 540, 560 Burke v. Lee 508 Burkhart v. Jennings 720 Burks' Exrs. v. Treggs' Exrs. 104 Burlow v. Quarrier 326 Burroughs v. Taylor 779 Burton v. Mill 797 Burton v. Stevens 420 Burton v. Webb 955 Burwell v. Burgess 150 Bush v. Beall 631 Bush v. Campbell 75, 102 Busters' Exr. v. Wallace. .110, 111 Butcher v. Carlile 85, 88, 96 Butcher v. Hixton 142 Butcher v. Kunst 619 Butler v. Parks 213 Butterworth v. Ellis 134 Butt's Case 966, 967 Byars v. Thompson 28 Cable v. U. S. Life Ins. Co... 315 Camden Clay Co. v. New Martinsville 344 Cahoon v. McCulloch, 53, 54, 168, 181, 590, 596 Calhoun v. Williams. .789, 793, 806 Callaway v. Harding 756 Callaway v. Price 429 Callaway v. Saunders, 406, 410, 414, 620 Callis v. Kemp 207 CASES CITED [References are to pages.] Callis v. Waddey 384 Wm. Cameron Co. v. Camp- bell 374 Cammack v. Soran 713 Campbell v. Campbell 770 Campbell v. Smith 745, 753 Campbell v. Holt 379, 380, 408 Canal Co. v. Ray 17 Cann v. Cann 381,414 Capehart v. Cunningham, 300, 301, 728 Cardwell v. Talbott 92, 94, 172 Carlin & Co. v. Fraser 504 Carlisle v. Trears 920 Carpenter v. Sibley (Cal.) 235 Carmack v. Grundy 996 Carr v. Bates 281, 318 Carr v. Hinchliff 994 Carr v. Mead 169 Carrick v. Blagrave 866,891 Carrico v. W. Va. Ry. Co 482 Carter v. Cooper 599 Carter v. Grant 15 Carter v. Keeton 817, 831 Carter v. Wharton 467 Carter v. Wood 197,601 Cartin v. South Bound R. Co. 598 Carver v. Pinkney 1004 Case v. Barber 965 Case v. Sweeney 438,748 Cash v. Humphreys 744 Casseres v. Bell 952 Gates v. Allen 387 Cauthorn v. Courtney 28 Cecil v. Early 175 Cecil v. Henderson 420 Cecil t-. Hicks 546 Cella Commission Co. v. Boh- linger 320 Central Land Co. v. Oben- chain 518, 570 Chamberlain v. Greenfield, 923, 963 Chandler v. Roberts 971 Chandler v. Spear 228 Chapman v. Chapman 394 Chapman v. Comth 431 Chapman v. Pickersgill 953 Chapman v. Va. R. E. Co 764 Charlottesville v. Failes 472 Charlottesville R. Co. v. Rubin. 768 Charlottesville v. Stratton 755 Charron v. Boswell 658 Chase v. Miller 274 Cheatham v. Aistrop 403 Ches. & Nashville R. Co. v. Speakman 417-418 Ches. & O. R. Co. v. Amer. Exch. Bank 285, 333, 343, 344 Ches. & O. R. Co. v. Ander- son 351, 490 Ches. & O. R. Co. v. Bank.. 908 C. & O. Ry. Co. v. Barger.... 919 Ches. & O. R. Co. v. Ghee.. 69 Ches. & O. R. Co. v. Harris.. 543 C. & O. Ry. Co. v. Hoffman, 495, 600, 947 Ches. & O. R. Co. v. Matthews. 947 C. & O. R. Co. v. Melton.. 554, 766 Ches. & O. R. Co. v. Pierce, 481, 495 Ches. & O. R. Co. v. Paine & Co 644, 699, 713 C. &. O. v. Rison, 158, 331, 335, 343, 350, 352, 353, 366, 894 Ches. & O. R. Co. v. Rowsey..529 C. & O. R. Co. v. Scott 776 Ches. & O. Ry. Co. v. Smith.. 471 Ches. & O. Ry. Co. v. Spar- row 481 Ches. & O. R. Co. v. Stock, 142, 144, 155, 500, 505 Ches. & O. R. Co. v. Wills./ 364 Ches. & O. R. Co. v. Wills.. 766 Chestnut v. Chestnut. .99, 100, 338 Chewning v. Wilkinson 113 Chews v. Driver 563 Chicago, etc., R. Co. v. Wal- cott . . 955 CASES CITED [References are to pages.] Childers v. Dean 486 Childress v. Jordan 441 Childs v. Wescott 932 Church v. Brownwick, 953, 954, 956 Cirode v. Buchanan 715 Citizens' Bank v. Taylor, 495, 544, 762, 764 Cily of Charleston v. Seller.. 779 City Gas Co. of Norfolk v. Poudre 600 City of Richmond v. Dues- berry 5, 13 City of Richmond v. Wood.. 770 City of Washington v. Cal- houn 538 City of Wheeling v. Black 341 Claflin v. Steenbock. .676, 720, 729 Clare v. Com . : 551, 552 Clason v. Parrish 99 Clayton v. Anthony 642 Clarke's Admr. v. Day, 91, 93, 98, 103 Clark v. Com 517 Clark v. Franklin Ill Clark v. Hogeman 625 Clark v. Iowa City 383, 396 Clark v. Railroad Co 361 Clark v. Sleet 177,516 Clark v. Ward 679 Clay v . St. Albans 937 Clearwater Mercantile Co. -v. Roberts 314 Clem v. Givens 321 Clement v. Adams Bros. Payne Co 695, 696, 813 Clemmitt v. N. Y. Ins. Co 50 Clendenning v. Conrad 791 Clevenger v. Miller 646 Clinch River Mineral Co. v. Harrison 680, 875, 692 Cloud v. Campbell 145 Cobbs v. Fountaine 147 Cochran v. London Corp 380 Cockerell v. Nichols 646, 670 Coda v. Thompson... 297, 697, 704 Colborne v. Stackdale 890 Colby v. Reams 190, 358, 523 Cole v. Babcock 921 Cole v- Fenwick 651 Cole v. Martin 414,424 Coles v. Withers 833 Collett v. Baliffs of Shrews- bury 946 Collett v. Lord Keith 844, 941 Collier v. Falk 466 Collins v. Beatty , 228 Collins v. Christian 777 Collins v. George, 504, 507, 521, 541, 560 Columbia v. Cauca Co 27 Colon v. Lisk 313 Colthirst v. Bejushin 969 Columbia Accident Ass'n v. Rocky 97, 100, 102, 338, 450, 452, 457, 602 Com. Ass. Co. v. Everhart.. 323 Comth. v. Ford 797 Commonwealth v. McCue... 284 Commonwealth v. Wampler.. 58 Conley v. Mathieson Alkali Works 320 Condon v. So. Side R. R. Co., 24, 29 Connell v. Ches. & O. R. Co. 364 Connelly v. W. U. Tel. Co... 91 Connery v. R. Co 634, 701 Connor v. Johnson 230 Conrad v. Bank 410 Consolidated Ice Mach. Co. v. Trenton Ice Co 540 Cookes v. Bank 170 Cook v. Cox 972, 975 Cook v. Daugherty 743 Cookus v. Peyton 381 Cooke v. Simms 143,973 Cook v. Thornton 549 Coombs v. Jordan 605 Coons v. Coons 26, 27, 28, 130 Cooper Man. Co. v. Ferguson 316 CASES CITED [References Cooper v. Monke 969 Cooper v. Reynolds 348,693 Copeland v. Collins 412 Cornell v. Steele 30 Corbin v. Bank 26, 53, 692 Cornwallis v. Savery..882, 884, 953 Cosner v. Smith, 676, 693, 697, 708 Coughlin v. Knights of Co- lumbus 351 Countess of Northumberland's Case 896 Courtney v. Phelps 860 Coutts v. Walker 642-643 Cowardin v. Ins. Co 680 Craft v. Boite 913, 914 Craig v. Williams 714 Cragbill v. Page 145 Crawford v. Burke 580 Crawford v. Daigh..82, 87, 88, 95 Crawford v. Morris 5, 60, 536 Craufurd v. Smith... 246, 385, 386 Creekmur v. Creekmur 491 Creel v. Brown 154, 363, 765 Crews v. Lackland 999 Crispin v. Williamson 924 Criss v. Criss 397 Crockett v. Etter 299, 300, 619 Crogate's Case 856 Cromer v. Cromer. . . .35, 766, 800 Cromwell v. Sac County 546 Cross v. Hunt 863, 867, 868 Crumlish v. Central Land Co., 130, 427 Crud v. Lackland 924 Cryps v. Baynton 953, 954 Cudlip v. Rundle 940 Culbertson v. Stevens 707 Cummins v. Webb 672 Cumber v. Wane 16 Cunningham's Case 528 Cunningham v. Smith, 334, 339, 894 Cuppledick v. Terwhit 895 Curry v. Hale 727 are to pages.] Cutfordhay v. Taylor 987 Cutter v. Powell.. 131, 132, 133, 134, 135, 136, 137, 138, 139, 140 Cutler v. Southern 990 Dale v. Phillipson 922 Dally v . King.. 976 Damron v. Bank 151, 162 Damron v. Ferguson 744 Dame v. Dame 228 Danks v. Rodeheaver 518 Danville Bank r. Waddill 157 I Danville, etc., R. Co. v. Brown 290 Davidson v. Watts 269 Davis v. Alvor 821 Davis v. Bonney 638, 700 Davis v. Cleveland R. Co 702 Davis v. Com., 573, 709, 710, 728, 729 Davis v. Davis 798 Davisson v. Ford 127, 148 Davis v. Mayo 188, 190 Davis v. Miller 441 Davis v. Noll 441 Davis v. Poland 415, 592 Davis v. Roller.. 389, 400, 611, 628 Davis v. Tel. Co 588 Dawson v. Western Maryland R. Co 107 Daube v. Phil., etc., Co 557 Dauks v. Rodeheaver 559 Dean v. Cannon 595, 679 Dean v. Comstock 228 Dearborn v. Mathes 66 Deaton v. Taylor 489 Deatrick v. Insurance Co., 271, 318, 335, 358, 898 Deering v. Kerfoot 35 Deford v. Hayes 464 Dejarnette's Case 500 Delaplain v. Armstrong. .361, 676 Delaplane v. Crenshaw 507 Denham v. Stephenson, 930, 939, 962 Deni v. Penn. R. Co.. 68 IvIV CASES CITED [References are to pages.] Denison v. Richardson 918 Dennids v. Central R. Co 69 Dent v. Bryce 541 Denver R. Co. v. Harp 374 Derisley v. Custance. .937, 939, 962 Deybel's Case '948 Dickey v. Smith 749 Didier v. Patterson 679 Digby v. Alexander 946 Digby v. Fitzharbert 884,862 Digges v. Norris 145, 359 Dike v. Ricks 861 Dillard v. Cent. Va. & Co.... 318 Dillard v. Collins 251, 252, 253 Dillard v. N. Y. Life Ins. Co.. 167 Dillard v. Thornton 277, 619 Dillingham v. Hawk 63 Dimmett v. Eskridge 890 Dimmey v. Wheeling R. Co.. 463 Dinguid v. Schoolfield 417 Dingus v. Minn. Imp. Co 606 Dishazer v. Maitland.; 494 Dobbs v. Edmunds 973 Dobbins v. Thompson 300 Dobson v. Culpepper 188, 189 Doheny v. Atl. Dynamite Co. 642 Doolittle v. Co. Ct 353 Door v. Rohr 403 Dorr v. Rohr 728 Dorrier v. Masters. . .638, 703, 724 Douglass v. Central Land Co. 433 Douglas Land Co. v. T. W. Thayer Co 205, 933 Doulson v. Matthews 916 Dovaston v. Payne... 951, 968, 969 Dowell v. Cox 69, 398 Dowland v. Slade 976 Dowman's Case 946 Doyle v. Com 473, 564 Doyle v. Cont. Ins. Co 315 Drane v. Scholfield 134 Drapers' Exrs. v. Gorman, 91, 93, 99, 103, 104 Drew v. Anderson 170 Driver v. Hartman.. . 516 Driver v. So. R. Co... 514, 601, 602 Drummond v. Douglas 362 Dryden v. Steven 428 Du Bois v. Seymour 94 Dudlow v. Watchorn 988 Duff v. Com 639 Duffield v. Scott 985 Dukev. N. & W. Ry. Co... 173, 473 Duke of Newcastle v. Wright, 930, 939 Dulin v. McCaw 692 Dundas v. Lord Weymouth.. 995 Dungan v. Henderlite 86, 88 Dunlop v. Keith 678 Dunn v. Penn. R. Co 347 Dunn v. Railway Co 347 Dunn v. Remmick 415 Dunsday v. Hughes 930 Dunstall v. Dunstall 973 Durant v. Essex Company... 769 Durkee v. National Bank.... 442 Duster v. Cowdry 228 Duty v. Sprinkle 707, 723 Dyster v. Battye 976 Earl of Kerry v. Baxter, 958, 959, 960 Earle v. McVeigh, 301, 325, 728 Easley v. Valley Mut. Life Assn 504 Eastern State Hospital v. Graves 381 East v. Hyde 360 Eaton v. Moore 351 Eaton v. Southby 946 Eaves v. Vial 142, 965 Eckles v. N., etc., R. Co 585 Eden's Case 870, 914 Edmunds v. Hobbie Piano Co., 12, 216, 219, 645 Edmonson v. Potts 390, 767 Edmondson v. Thomasson, 440, 442 Education v. Holt 780 Elam v. Bass.. . 211 CASES CITED LV [References Elam i: Commercial Bank, 113, 115 Elgin v. Marshall 753 Ellington v. Ellington 229 Elliott v. Ashby 753 Elliott v. Carter 35, 36 Elliott v. Sutor 537 Embry v. Jemison 403 Emerick v. Tavener 198 Emerson v. Santa Clara County 541 Empire Coal & Coke Co. v. Hull Coal & Coke Co., 133, 136, 137 Enders v. Burch 276, 626, 670 Enos v. Stansbury 595 Erskine v. Staley 714 Essengton v. Boucher 895 Estes v. Stokes 391 Ewart v. Saunders 622 Ewing v. Ewing 573 Evans r. Atlantic C. L. Ry. Co 236, 237, 238 Evans v. Greenhow. .659, 660, 699 Evans v. Johnson 309, 397 Evans v. Prosser 982 Evans v. Rice 546 Evans v. Stevens 1000, 1001 Eppes v. Smith 104 Exchange Bank v. Southall.. 873 Executors of Grenelefe. ..896, 897 Eubank v. Smith 491 Fairfax r. Lewis 113, 493 Farinholt v. Luckhard 796 Parish & Co. v. Reigle 543 Farley z 1 . Richmond, etc., R. Co 491 Farmers' Bank v. Day 714 Farmers' Nat'l Bank r. How- ard 738 Faulconer v. Stinson. . . .748, 749 Feamster r. Withrow 646 Feazle v. Dillard 441 Federation Window Glass Co. v. Cameron Glass Co.. . 149 are to pages.] Federation Glass Co. v. Cam- eron Glass Co 277 Fentress v. Pocahontas Club, 490, 770 Ferrell v. Ferrell 308 Ficklin v. Carrington 402 Fidelity Co. v. Beale 779 Fidelity Co. v. Chambers.... 497 Fid. L. & T. Co. v. Dennis... 827 Findley v. Cunningham 416 Findley v. Smith 649 Fire Assn. v. Hogwood 465 First Nat. Bank v. Harkness. 715 First National Bank v. Kim- berlands 156 First Nat'l Bank v. Turnbull. 644 Fishburne v. Ferguson, 451, 503, 506, 508, 535, 728 Fisher v. Burdette 449 Fitch v. Leitch 149 Fits v. Freestone 851 Fitzhugh v. Fitzhugh 765 Fitzgerald v. Fitzgerald 319 Flanary v. Kane 745 Fletcher v. Pogson 968 Florance v. Morien 744, 757 Florida Cent. R. Co. v. Ash- more 967 Fla. R. Co. v. Rhodes 541 Flower v. Ross 944 Flubarty v. Beatty 30 Flynn v. Jackson 755 Foden v. Haines 864 Foley v. Ruley 297, 322 Forbes r. Hagman. . .234,- 240, 730 Ford v. Thornton 441, 442 Foreman v. Norfolk, etc., Co. 772 Forest Coal Co. v. Doolittle.. 780 Fort Dearborn Lodge r. Klein. 934 Foster v. Rison 389 Foushee v. Lea 464 Fowler v. Balto. & O. R. Co. 494 ! Fowler v. Mosher 300 Fox v. Balto. & O. R. Co., 588, 589 IvVI CASES CITED [References are to pages.] Frank v. Chosen Freeholders. 817 Frank v. Gump 20, 950 Franklin v. Peers 754 Frazier v. Littleton 36 Freitas v. Griffith 662 Fritts v. Palmer 315 Frost v. Spitley 207 Fry v. Leslie 546, 1020 Fry v. Payne 393 Fry v. Stowers, 204, 205, 206, 207, 541, 542 Fugate v. Moore 66 Fulgham v. Midland Valley R. Co 70 Fulkerson v. Taylor, 612, 613, 614, 619, 628, 629 Fulmerston v. Steward 969 Fulz v. Davis 431 Funkhouser v. Spahr 768 Furst v. Banks, 170, 401, 610, 721, 733 Gage v. Crockett 745 Gainer v. Gainer 74 Gaines v. Merryman 752 Gainsford v. Griffith 959 Gale v. Read 962 Galpin v. Poge 304 Gait v. Archer 137 Gannaway v. Tate 715 Garber v. Armentrout 120 Gardner v. Mobile, etc., R. Co. 634 Gardner v. Vidal 630 Garland v. Davis 888 Garner v. Garner 304 Gary v. Abingdon Pub. Co., 154, 342, 347, 362, 363, 765 Gatewood v. Garrett 253, 504 Gatewood v. Goode 618 Gayle v. Betts 880 Gebbie v. Mooney 554 Gee v. Hamilton 104 Geiger v. Harmon 13, 14 George Campbell Co. v. Geo. Angus Co., 148, 149, 263, 338, 600, 923 Ga. Home Ins. Co. v. Goode, 146, 359, 545, 924, 999 Gerity v. Haley 486 Gibbons v. Jameson's Exrs... 79 Gibboney v. Cooper.. 146, 359, 545 Gifford v. Perkins 993 Gilbert v, Parker 868, 869 Gillespie v. Terrance 460 Gilman v. Ryan 751, 816, 819 Ginter v. Shelton 751 Glenn v. Marbury 56 Glos v. Goodrich 374 Godfrey's Case 549 Godson v. Good 984 Gold v. Poynter 383 Goldey v. Morning News.... 319 Goldsberry v. Carter 316 Goodell v. Gibbons 424 Goodtitle v. See. . 595 Goolsby v. St. John 299, 323 Gooseley v. Holmes 576 Goram v. Sweeting 891 Gordon v. Funkhouser, 171, 176, 177 Gorman v. Steed 744 Goshorn v. Steward 128 Gourney v. Fletcher 973 Gover v. Chamberlain. .. .412, 413 Grafton R. Co. v. Foreman... 748 Graham v. Cit. Nat. Bank 476 Graham v. Peat 229 Graham & Scott v. Graham & Lane 988 Grandstaff v. Ridgely 646 Graves v. Scott k . . . 235, 764 Gray's Case 503 Gray v. Kemp 156 Grayson v. Buchanan 334 Great Western Mining Co. v. Harris 63 Green v. Disbrow 388 Green v. Dodge 424 Green v* Douglas Land Co... 432 Green v. Judith 492, 495 Green v. Palmer.. . 639 CASKS CITED LVII [References are to pages.] Greenhow v. Ilsey 935, 951 Gregg v. Sloan 715 Gregg v. Dalsheimer 151, 152 Gregory v. Ohio R. Co... 398, 529 Griffin v. 'McClury 56 Griffin v. Woolford 402, 403 Griffith v. Crockford 885 Griffith v. Eyles 972 Grimes Dry Goods Co. v. Malcolm 539 Grimstead v. Marlowe 935 Grimwood v. Barritt 920 Gring v. Lake Drummond Ca- nal & Water Co., 152, 153, 267, 275, 276 Grocer's Co. r. Archbishop of Canterbury 867 Groenvelt v. Burnell 946 Grove v. Grove 393 Grubb v.' Burford, 83, 115, 117, 128, 154 Grubbs r. Nat. Ins. Co., 169, 172, 584 Grubb v. Suit 59, 395 Guarantee Co. v. First Nat. Bank 72, 269, 285, 294, 336, 350, 680, 893, 977, 984 Gulf Ry. v. Moseley 389 Gunn v. Ohio 588 Gutch v. Fosdick 383 Gwynn v. Schwartz 744 Haffey v. Miller 714 Haines v. Cochran. . .242, 243, 245 Hale v. Chamberlain.. 164, 167, 168 Hale r. Wharton 294 Hall t-. Bank 680 Hall r. Com 535 Hall t-. Glidden 439 Hall r. Graham 548 Hall v. Hall 517 Hall z>. Lanning 65, 293, 306 Hall v. Ratliff 174, 177, 531 Hall v. Taylor 646 Hall v. Smith 143 Hallet v. Bryt 871 Hallowes v. Lucy . 981 Halsey v. Carpenter 918 Hamer v. Commonwealth.... 754 Hammen v. Minnick 649 Hammond v. Dodd 969 Hamtramck v. Selden, With- ers & Co 766 Hancock v. Whitehall To- bacco Co. 9 Handford v. Palmer 952 Handlan v. Handlan 297, 322 Handy v. Smith 381 Hanger v. Commonwealth, 348, 771 Hanks v. Lyons 164 Hannah v. Bank 750 Hanna v. Wilson 397 Hansbrough v. Neal 504, 535 Hansbrough v. Stinnett, 254, 364, 476, 753 Hansbrough v. Thomas.. 490, 492 Hansfort v. Elliott 405 Hardaway v. Jones 210 Hardy v. Cathcart 920 Hargrave v. Shaw Land Co. 507 Harkness v. Hyde 327 Harlow v. Wright 969 Harman v. City of Lynch- burg 745 Harman v. Howe 465, 468 Harman v. Oberdorfer 621 Harman v. Ratcliff 197 Harrington v. Harkins 462 Harris v. Ferrand 86& Harris v. Lewis Ill Harris v. Prett 958 Harris v. Shield 107, 396- The Harrisburg 350, 379 Harrison v. Brock 31, 98 Harrison v. Brooks 489 Harrison v. Clemens 596, 597 Harrison v. Middleton 5 Harrison v. Wissler 285 Harrison & Bro. v. Homeopa- thic Asso. . 821 IvVIII CASES CITED [References are to pages.] Harrison's Case 167 Hartly v. Herring 961 Harvey v. Epes 244 Harvey v. Skipwith 295,323 Hasher v. Hasher 391, 392 Haskin Wood Co. v. Cleve- land Co 640 Hatcher v. Lewis 95 Hatcher v. Lord 633 Hatorff v. Wellford 787,789 Hatton v. Morse 871, 872 Haupt v. Teabault 570 Hawe v. Planner 920 Hawkins v. Eccles 937 Hawkins v. New Orleans Printing Co 563 Hawk's Nest v. Co. Ct 780 Hawley v. Ferguson 537 Haworth v. Spraggs 1000 Hawpe v. Bumgardner. . .759, 620 Hayman v. Gerrard 884 Haymond v. Camden 728 Hays v. Bryant 957 Hayes v. Va. Mutual Protect- ive Ass'n 102 Hearn v. Kiehl 17 Heelyer's Case 870 Hefner v. Fidler 210 Helier v. Whytier 862 Helm v. Helm 798, 803 Henderson v. Hepburn 265 Henderson v. Stringer, 341, 342, 361 Henderson v. Southall 433 Hendricks v. Com 553 Kendy v. Stephenson 929 Henry v. Carleton 893 Herlakenden's Case 873 Herndon v. Chicago R. Co... 315 Herring v. Blacklow 860 Herring v. Ches. & W. R. Co. 745 Hess v. Gale 309 Hess v. Still 429 Hewitt v. Comth 464,465 Hickman v. Walker.. . 989 Hicks v. Roanoke Brick Co., 635, 751, 760, 774, 816 Higgenbotham v. Rucker.... 213 Higgins v. Highfield 921 Hill v. McCullough 647 Hill v. Montagu 945,953 Hill v. Rucker 598 Hill v. Saunders 938 Hilton v. Consumers Can Co., 272, 327, 711, 722 Hilton v. Dickinson 749, 750 Hinton v. Ins. Co 304 Hinton v. Roffey 945 Hitchcox v. Morrison 207 Hite v. Com 472, 759 Hite v. Wilson 576 Hix v. Drury 563 Hobson v. Hobson 772 Hobson v. Middleton 866 Hockman v. Hockman 608 Hodge v. State 539 Hodges v. Eastern 531 Hoffman v. Dickinson.. 145 Hoffman v. Shartle 544 Hogan v. Guigon 780 Hogan v. Wilmouth, 252, 254, 349, 487, 901, 949 Hoge v. Turner 509 Holker v. Hennessey 700 Holladay v. Littlepage 421, 422 Holker v. Parker 23 Holland v. Shelby 1004 Hollandsworth v. Stone 488 Holler v. Bush 871, 992 Holleran v. Meisel 514 Hollingsworth v. Sherman... 198 Hollins v. Briarfield 387 Holman v. Gilliam 51 Holman v. Omaha, etc., Co. 420 Holmes v. Catesby 844 Holmes v. Jennison 768 Holmes v. Rhodes 957 Holt v. Lynch 625, 628 Holy Trinity Church v. United States . 355 CASES CITED [References are to pages.] LIX Homestead Cases 789 Homestead Ins. Co. v. Ison.. 400 Hood v. Bloch 362 Hoover v. Mitchell 590 Hopkins v. Hopkins 391 Hopkins v. Nashville, etc., Ry. Co 482 Hopkins v. Stephens 195 Hopkins v. Ward 195,204 Hore v. Chapman 973 Horn v. Perry 322 Horner v. Speed 490 Hortenstein v. Va.-Car. R. Co., 91, 346, 364, 365, 764 Horton v. Bond 622 Horton v. Townes 977 Hortons v. Townes 269 Hoster Co. v. Stag Hotel Corp 767 Hotham v. East India Co.... 950 Hot Springs L. Co. v. Rev- ercomb 522 Houff v. German Ins. Co 507 Houston v. McVeer 132, 141 Howall v. Caryll 228 Howard v. Landsberg 67, 309 Howard v. Rawson 1000 Howdashall v. Krenning 494 Howe v. Quid 699 Howell v. Richards 974 Howell v. Thomason 670 Hubbard v. Blow 95 Hubbell v. Wheeler 229 Hubble v. Poff 409 Hudgins v. Simon 570 Hudson v. Jones 875 Huff z>. Broyles 364, 442, 451 Huff v. Thrash 186 Huffman r. Western Mort., etc., Co 315 Huggins z: Wiseman 954 Hughes v. Frum 134 Hughes r. Phillips 862 Hull r. Watts 386 Hulvey v. Roberts 348, 744, 771 Hume v. Liversedge 867 Humphrey v. Hitt 635 Humphrey v. Valley R. Co... 762 Humphreys v. Bethily 892 Humphreys v. West 492, 495 Humphries v. District of Co- lumbia 539 Hunt v. McRae 265 Hunt v. Martin 874 Hunter v. Snyder 488,493 Hunter v. Stewart 292 Huntington Nat. Bank v. Loar 494 Hurley v. Charles 197 Hutchinson v. Jackson 967 Hutchinson v. Piper 926 Hutson v. Lowry 779 Hyatt v. Wood 228 Hynde's Case 870 laege v. Bossieux, 814, 827, 829, 832 Ilderton v. Ilderton 912 Ins. Co. z'. Barton 566 Ins. Co. v. Hall 399 Insurance Co. v. Morse 24 1 Inter. Harvester Co. v. .Smith 753 Inter. & G. N. Ry. Co. v. Greenwood 953 Interstate Co. z 1 . Clintwood.. 197 Ivanhoe Furnace Corp. v. Crowder, 60, 61, 536, 559, 572, 574 Ivaia v. Eastern State Hos- pital : 67 Jackson v. Dotson. . .151, 152, 153 Jackson v. Hull 409 Jackson v. Hough 120, 133 Jackson v. Jackson 144 Jackson v. Pesked 355 Jackson z 1 . Wickham 567, 755 Jackson v. Valley Tie Co 712 Jacobs v. Nelson 969 Jacobs v. Sale 595 James v. Life 622 James v. Stokes 779 Tames River Co. r. Adams.. 542 CASES CITED [References are to pages.] James River, etc., Co. v. Lee, 203, 265, 266 J'Anson v. Stuart 844,955 Jedmy v. Jenny 946,953 Jenkins v. Montgomery 545 Jennings v. Bennett 780 Jennings v. Gravely 203 Jester v. Balto. Steam Packet Co 319 Jewett v. Ware 797 Johnson v. Balto. & O. Ry. Co 482 Johnson v. Black 381 Johnson v. Fry 149 Johnson v. Burns 496,497 Johnson v. Ches. & O. Ry. Co., 486, 487, 489, 490, 491 Johnson v. Com 479, 565, 759 Johnson v. Jennings 138 Johnson v. McClung 108 Johnson v. Miller 238 Johnson v. Picket 920 Johnson v. Powers 66 Johnson v. Stockham 722 Johnson v. Wheeler Lumber Co 168 Johnston v~ Bunn 830 Johnston v. Wilson 415 Johns v. Whitley 929 Jones v. Alexander 832 Jones v. Anderson... 692, 694, 732 Jones- v. Crim 619 Jones v. Com... 472, 527, 553, 560 Jones v. Dungan 244 Jones v. Finch 236 Jones v. Fox 207 Jones v. Lemon 378, 394, 395 Jones v. Martinsville 478, 560 Jones v. Merrell 304 Jones v. Old Dominion Cot- ton Mills 491, 762 Jones v. Perkins 17 Jones v. Stevenson 360 Jones v. Thomas.. 50, 51, 108, 110 Jordan v. Williams 213 Jordan v. Wyatt, ,225, 226, 227, 347 Judin v. Samuel 987 Justice v. Moore 212 Kain v. Angle 57 Kankakee Drain Dist. v. Coon 270 Karnes v. Johnson 309 Karnuff v. Kelch 350 Kaufman v. Mastin 5 Kaufman v. Richardson 92 Kawawanakoa v. Pollyblank.. 29 Kay v. Glade Creek & R. R. Co 514 Kecoughtan Lodge v. Steiner 772 Keene v. Monroe 507 Kelly v. Hamblen 92 Kelly v. Met. R. Co 396- Kemp v. Mundell and Chapin, 91, 98, 103 Kemper v. Calhoun 597 Kennedy v. Davidson 434 Kenefick v Caulfield, 149, 704, 708 Kenicot v. Bogan 86& Kennaird v. Jones... 142 Kennerly v. Swartz 801 Kesler v. Lapham 696, 716 Kesterson v. Hill 379 Kibler v. Com 514 Kimball v. Borden 503, 504 Kimball v. Friend 588 Kincheloe v. Tracewells 190 King qui tarn v. Bolton. . .863, 864 King v. Burdette 615, 619 King v. Davis 299 King v. Fraser 976 King v. McDaniel 121 King v. Morris (N. J.)...347, 362 King v. Mullins 196 King v. N. & W. R. Co... 148, 601 King v. Shakespeare 984 Kinney v. Beverly 576 Kinney v. Craig 387 Kinney v. McClure 392 Kinsie v. Riely..452, 457, 459, 755 CASES CITED LXI [References are to pages.] Kinsley v. County Court 433 Kirkland v. Brune 715 Kirk's Case 552 Kirn v. Champion Iron Fence Co 824, 829 Klinkler v. Wheeling 517 Knight v. Charter 635 Knight v. Farnaby 917 Knight v. Zahnhiser 780 Knowles v. Gas Light Co 305 Knowlton v. Watertown 405 Knotts v. McGregor 362 Knootz v. Knootz 525 Koonce v. Doolittle 770 Kromer v. Hein 17 Kuhn v. Brownfield 402 Kyles v. Ford 297 La Crosse, etc., Co. v. Van- derpool .". 817 Lafayette Ins. Co. v. French 319 Laidley v. Smith 382 Lake v. Raw.... 950 Lamb v. Cecil 402 Lamb v. Mills.., 941 Lamb v. Thompson..... 746, 750 Lambert v. Cook 862 Lambert v. Ensign M'fg. Co., 350, 379 Lambert v. Stroother 228 Lancton v. State 478 Land Co. v. Calhoun 490 Lane v. Bauserman. .272, 326, 327 Lane Bros. v. Bott 494 Lane Bros. v. Sealsford 346 Langford v. Webber 935,936 Langhorne v. McGhee. . . .130, 432 Langhorne v. Rich. Ry. Co., 345, 581 Lanham v. Glover 803 L'Anson v. Stuart 953 Lavell v. McCurdy 297, 614 Lawson v. Lawson 66 Lawson v. Williamson Coal & Coke Co... ..128. 133 Lawrence v. Winifred Coal Co 400, 401 Lawson v. Zinn 433 Layton v. Grindall 923 Lea v. Luthell 971 Leake v. Lacey 706 Leavell v. Smith 35 Le Bret v. Papillion 983, 984 Lee v. English 538 Lee v. Feemster 410 Lee v. Hassett 671 Lee v. Mutual, etc., Life Ass'n. 76 Lee v. Mut. Reserve Fund Ass'n 345, 347 Lee v. Rogers 991 Lee v. Va. Bridge Co 129 Lee v. Watson 745 Lee v. Willis 321,539 Leffingwell v. Warren, 198, 380, 398, 407 Leftwich v. City of Richmond. 196 Leftwich v. Commonwealth.. 754 Leftwich v. Wells 560 Legum v. Blank 348 Leigh v. Ripple 754 Leneret v. Rivet 958 Leonard v. City of Brooklyn.. 817 Leonard v. Henderson.. . .378, 394 Lester -v. Pedigo 830 Letterman v. Charlottesville Co 71, 440 Levy v. Arnsthall 731 Lewis v. Arnold 546 Lewis v. Bacon 410 Lewis v. Botkin 301 Lewis v. Ches. & O. R. Co... 494 Lewis v. Com 297, 509 Lewis v. John Crane & Son.. 350 Lewis v. Hicks.. 152, 153, 338,456 Lewis v. Long 86 Lewis v. Preston 946 Leyfield's Case 1003, 1004 Life Ins. Co. v. Hairston 511 Limer v. Trader's Co 136 Lincoln v. Stern 614 LXII CASES CITED [References are to pages.] t i Lindell v. Monroe 145 Lindley v. Miller 351 Lindsay v. Murphy 791 Linkenhoker v. Detrick. . .793, 799 Lipscomb v. Condon 644, 699 Liquid C. Co. v. N. & W. R. Co 380 Litton v. Com 589 Liskey v. Paul... 175, 177, 414, 422 Locke v. Frasher.. . 189 Lockridge v. Lockridge 744 Long v. Campbell.. 355, 356, 359 Long's Case 969 Long v. Pence... 172, 173, 800, 801 Long v. Ryan. 679 Longuville v. Thistleworth. . . 999 Loop v. Summers 680 Lord v. Henderson 128, 133 Lord Arlington v- Merricke.. 959 Lord Clinton v. Morton 905 Lord Huntingtower v. Gardine. 968 Louisville Nail Co. v. Barnes. 19 Louisville, etc., R. R. Co. v. Clark 384 Lovejoy v. Murray 19, 56, 247 Loving v. Small (Iowa) 817 Low v. Settle 537 Low Moor Iron Co. v. La Bianca 68, 506 Lowenback v. Kelley..659, 670, 671 Lucas v. Nockells 867 Lusk v. Kimball 66, 403 Lusk v. Pelter Lusk v. Ramsay 205 652 Lydick v. B. & O. Ry. Co 969 Lynchburg Cotton Mills v. Rives 196 Lynchburg Milling Co. v. Bank ' 474, 482 Lynchburg Tel. Co. v. Booker, 542, 773 Lynch v. Thomas 210, 211 Lynch. Traction Co. v. Guill.. 346 Lynnet v. Wood. Lyon v. Vance. . 992 680 McCall v. Herring 1020 Mackie v. Davis 134 Maddox v. U. S 563, 56ft Magarity v. Shipman 388, 430 Maggort v. Hansbarger 329 Mahoney v. James 803 Mainwaring v. Newman 1000 Maloney v. Barr 122, 123 Malsby v. Lanark Co 362 Manchester Loan Co. v. Por- ter 12, 521, 523, 661 Manderville v. Perry 481 Mangus v. McClelland, 452, 454, 455 Manser's Case 957, 969 Manson v. Rawlings 292 Manuel v. Norfolk & VV. R. Co 350, 379, 401, 406 Maple v. 'John, 90, 491, 495, 496, 497 Marbach v. Holmes 197 Marchant v. Healy 746, 750 Marion v. Craig 748 Markin v. Jones,. 120, 132, 133, 141 Marples v. Standard Oil Co.. 351 Marsh v. Bulteel 952 Marshall v. Palmer 195 Marshall v. Riggs 973 Marsteller v. Coryell 490 Martin v. Martin 28 Martin v. Monongahela R. Co. 350 Martin v. Ohio River Co 537 Martin v. Ry. Co 761, 767 Martin v. Smith 946, 972 Martinely v. Gerber 229 Martz v. Martz 516 Mason v. Bank 359 Mason v. Rawlings 635 Massey v. Southern R. Co.... 495 Matheny v. Allen 205 Matheson v. Grant 573 Matthews v. Gary 941 Matthews v. Com 571 Matthews v. Jenkins 139 Mathews v. Mathews 592 CASES CITED LXII1 [References Matthews Co. v. Progress Co. 770 Matthews v. Warner 69, 464 Mayo v. James 780 Meade v. Meade 474, 483 Means v. Bank of Randall... 468 Hears v. Dexter 188, 760 Medina v. Stoughton 980, 984 Merchants' Bank v. Evans 489 Merchants & Mechanics Sav- ings Bank v. Dashiell. . .134, 814 Merchants' Trans. Co. v. Mas- ury 495, 498 Mercantile Co-Op. Bank v. Brown 713 Merdith v. Alleyn 880 Merriman v. Cover 874, 986 Merriman Co. v. Thomas, 151, 152, 162 Merritt v. Bunting 564 Merryman v. Hoover 196, 206 Messick v. Thomas...- 538 Metropolitan Ins. Co. v. Ruth- erford 497, 767 Metz v. Snodgrass 516 Meyer v. Mo. Glass Co 638 Michaux v. Brown 606 Miller v. Black Rock Co 360 Miller v. Hyde 19, 56, 247 Miller v. Miller 23, 24, 360 Miller v. McLuer 339, 341 Miller v. Turner 776 Miller v. White, 693, 694, 697, 715, 718, 725 Miller v. Wills 568 Miller v. Zeigler 697, 722, 723 Milner v. Crowdall 1003 Milske v. Steiner Mantel Co.. 350 Miner v. Markham 293 Minnick v. Williams 87, 88, 96 Minor v. Minor 149 Mints v. Bethil.. .953, 954, 956, 958 Mo. Pac. R. Co. v. Tex. Pac. R. Co 63 Mitchell v. Com 295, 323 Mitchell v. Witt.. . 775 are to pages.] , Mobile, J. & K. C. Ry. Co. v. Smith , 973 Mole v. Wallis ! 990 Monk v. Exposition Corp 829 Montgomery's Case 504, 506 Monticello Bank v. Bostwick. 531 Moore v. Baltimore & O. R. Co 244, 503, 585 Moore v. Douglas 188 Moore v. Earl of Plymouth, 974, 975 Moore v. Holt 695, 704 Moore v. Mauro 148, 149, 955 Moore v. Pudsey 888 Moore v. Rolin 820 Moore Lime Co. v. Johnston. 585 Moores v. White 698 Moran v. Clark. 787 Moran v. Dawes 229 Moreland v. Moreland, 100, 152, 157 Morgantown Bank v. Foster, 143, 144, 156, 157, 363 Morley v. Lake Shore Ry. Co. 547 Morris v. Harveys 429 Morris v. Lyons 414 Morris v. Peregoy 210 Morrison v. Householder 402 Morriss v. Harveys 833 Morstock Ins. Co. v. Pankey, 163, 169, 172, 177, 180, 292 Moser v. Jenkins 970 Moses v. Trice 591 Mostyn v. Fabrigas 78, 912 Moseley v. Jones 144 Mowbray v. Com 551, 552 Mumpower v. City of Bristol. 397 Mulball v. Fallon 68 Murphy v. Richmond 793 Muse v. Farmer's Bank 590 Mutual B. Life Ins. Co. v. At- wood's Admr'x 109 Mutual Ins. Co. v. Oliver, 142, 516 I/XIV CASES CITED [References are to pages.] Mutual L. Ins. Co. v. Spratley, 317, 319 Myers v. M 1004 Read's Case 561, 761 Read v. Mississippi County... 547 Redford v. Clarke 206, 893 Reed & McCormick v. Gold, 171, 177, 474, 482 Reed v. Union Bank 799 Reedy v. Purdy 228 Rees v. Bank 266 Reese V. Bates 335, 898 Reno's Ex'or v. Davis & wife. 755 Reusens v. Lawson, 196, 205, 381, 394, 504 Reynolds v. Cook 194, 199 IvXVIII CASES CITED [References are to pages.] Reynolds v. Lumber Co 634 Reynolds v. Reynolds... Rex v. Home Rex v. Morley .. 20 .. 251 .. 972 Rhea v. Preston. .647, 653, 658, 660 Rhule v. Seaboard Air Line R. Co 198, 493, 748 Rhymer v. Hawkins 748 Rice v. Shute 65 Rice v. White 384 Richard v. Hodges 957 Richards v. Com 553, 556 Richardson v. Hoskins Lum- ber Co 707 Richardson v. Mayor of Ox- ford 863, 866 Richardson v. Planters' Bank. 471 Richardson v. Woodward.... 790 Richlands Flint Glass Co. v. Hiltebeitel 819, 821 Richmond v. Barry 489 Richmond v. Leaker 600, 601 Richmond v. Sitterding 402 Richmond ' v. Wood 600 Rich. v. Woolley 941 Richmond, etc., Co. v. Allen.. 593 Richmond, etc., R. Co. v. An- derson 491 Richmond City Railroad Co. v. Johnson 97, 432 Richmond, etc., R. Co. v. Moore 491 Richmond, etc., R. Co. v. N. Y., etc., R. Co 311 Richmond & D. R. Co. v. Medley 541, 560 Richmond Granite Co. v. Bai- ley 503 Richmond Ice Co. v. Crystal Ice Co '... 15 Richmond Loco. Works v. Ford 601 Richmond Passenger Co. v. Allen 504 Rich. Ry. Co. v. Bowles, 67, 68, 585 362 . 585 Rich. R. Co. v. Scott Rich. Ry. Co. v. West.... Richmond Spike Co. v. Ches- terfield Coal Co 587 Richmond Traction Co. v. Clarke 511 Richmond Traction Co. v. Hildebrand 503 Ricketts v. C. & O. R. Co 529 Rickett v. Rickett 557 Rider v. Smith 937, 962 Riddle v. Core... 114, 492, 493, 497 Riddle v. McGinnis 407 Riggan v. Riggan 808 Riggs v. Bullingham 963 Riley v. Jarvis 27, 31, 98 Riley v. Riley 130 Rinehard v. Baker 671 Ring v. Roxborough 920 Ringgold v. Haron 598 Rison v. Moon... 26, '819, 829, 830 Ritchie v. Holbrook 563 Rittenhouse v. Harman 692 Rivers v. Griffith 925 Riverside Cotton Mills v. La- nier 76, 345, 347 Riverside Co. v. Husted 138 Riverview Land Co. v. Dance 391 Roanoke L. & I. Co. v. Karn & Hickson, 513, 557, 822, 823, 824 Roanoke Ry. Co. v. Young. . . 754 Roberts v. Burns 694 Roberts v. Cocke 546, 547 Roberts v. Mariett 989 Robertson v. Hoge 707 Robinett v. Mitchell 615, 632 Robinson v. Allen 35 Robinson v. Bass 415 Robinson v. Burks 149 Robinson v. Welty, 118, 120, 122, 130, 138, 141, 143 Rochester Ins. Co. v. Monu- mental Association 157, 490 CASES CITED [References are to pages.] LXIX Rocky Mount Trust Co. v. Price 177, 181 Roe v . Crutchfield 549 Rogers v. Corrothers 28 Rohr v. Davis 488, 489 Rolland v. Batcheldor 249, 487 Rollo v. Ins. Co 701 Roots v. Salt Co 397, 415 Rose v. Sharpless 787 Rose v. Standen 968 Rosenbaum v. Seddon. ....... 770 Rosenbaums v. Weeden, John- son & Co 500, 501 Rosenberg v. Jett 790 Ross v. Overton 15 Ross v . Gill 599 Ross v. Milne 50, 108, 573, 574 Rossett v. Gardner 467 Rowan v. Chenoneth. .391, 404, 431 Rowan v. Givens 356 Rowe v. Bentley 384, 386 Rowe v. Hardy 323, 547, 648 Rowe v. Roach 926 Rowe v. Tutte 985 Rowland v. Rowland 754 Rowles v. Rusty 898 Ruble v. Turner 18 Rucker v. Harrison 652 Rudd v. Richmond, etc., R. Co. 491 Ruffin v. Call 265 Runkle v. Runkle 215 Russell Creek Coal Co. v. Wells 503. 1022 Russell z\ Louisville & N. R. Co 79, 89, 90 Sabine v. Johnstone 979 Sade v. Drake 1006 St. Clair v. Cox 319 St. John z'. St. John 950 St. Louis R. Co. r. Holbrook. 63 St. Louis & Sante Fe R. Co. v. Wallace 380 Sammons v. Hawvers 527 Sandheger v. Hosey 694 Sands z: Stagg 401, 759, 828 Sandusky v.. Gas Co 128, 148 Sandy" v. Randall 390 Sanger v. Ches. & O. R. Co... 745 Sangston v. Bossette 308 Sangster v. Com 122, 729 San Juan v. St. Johns Gas Co. 20 Sargeant v. Denby 816 Saunders v. Baldwin 237 Saunders v. Bank 175, 177, 770 Saunder's Case 992 Saunders v. Hussey 937 Saunders v. Lipscomb 292 Savage v. Hawkins 928 Savage v. People 680 Savings Bank v. Powhatan Clay Co 379, 409, 828 Sawyer v. Corse 533, 534 Sayre v. Minns 882, 884, 944 Scammon v. Kimball 442 Scates v. Wilson 394 Schauble v. Schaultz 394 Schalfield v. Palmer 163, 180 Schroeder v. Young 420 Schrieber v. Citizens Bank, 822, 823, 824, 826 Schumpert v. So. Ry. Co 60 Schwalm v. Beardsley 503 Scilly v. Dally 929 Scott -v. Boyd 464 Scott v. Cheatham 805 Scott v. Neeley 387 Scott v. Shelor...233, 234, 238, 239 Scott i'. Shepherd 226 Scroggs v. Hill 113 Seaboard R. Co. v. Hickey... 504 Seaboard R. Co. v. Vaughn... 510 Searl v. Bunnion 929, 936 Seas & McVitty v. Merriman. 163 Security Loan Co. v. Fields, 146, 169, 170, 179, 180 Segouine v. Auditor 300 Seig v. Accord 415 Selby v. Bardons 856 Selden v. Williams 455, 456 Sellers v. Mann. . . 537 LXX CASES CITED [References are to pages.] Sellers v. Reed 744 Settlemier v. Sullivan .' . . 299 Seward & Co. v. Miller. . .700, 713 Sexton v. Aultman, 409, 442, 444, 445 Sexton v. Holmes 143 Seymour v. Goodrich 20 Shackleford v. Beck 819, 821 Shadrack's Admr. v. Wool- fork 292 Shanklin v. Crisamore 433 Sharon v. Tucker 198, 380, 407 Sharp v. Shenandoah Furnace Co 197 Shaver v. White 641 Shaw v. Tobias 354 Shearer v. Taylor 569 Sheers v. Brooks 952 Sheff v. Huntington 544 Shelton v. Cocke 415 Shenandoah R. Co. v. Ashby. 323 Shenandoah R. Co. v. Miller.. 823 Shenandoah V. R. Co. v. Grif- fith 699, 713 Sherland v. Heaton 973 Sherman v. Shaver 646 Sheppard v. Peabody 338 Shepherd v. Thompson, 397, 413, 414, 417 Shields v. Com 591 Shields v. Mahoney 660 Shifflet v. Com 551 Shiflett v. Dowell 204 Shiflett v. Orange Humane Society 452, 454, 455 Shipman v. Fletcher 738 Shreffler v. Nadelhoffer 554 Shum v. Farrington 955 Simmons v. Lyles 636 Simmons v. Simmons 723 Simmons v. Southern R. Co.. 491 Simmons v. Thomasson 779 Simmons v. Trumbo 433 Sims v. Alderson 89 Sims v. Tyrer 693, 733 Sinclair v. Young 776 Singer Mfg. Co. v. Bryant, 60, 233, 234, 236, 239, 240, 753 Sir Francis Leke's Case 891 Sir Ralph Bovy's Case 950 Sipe v. Taylor 430 Slade v. Drake 970 Slade v. Dowland 976 Slaughter v. Green 534 Slingluff v. Collins, 323, 324, 619, 648, 649, 671 Slocum v. Compton 538 Smart v. Baugh 407 Smiley v. Provident Trust Co. 744 Smith v. Ames 312 Smith v. Blackwell 35, 833 Smith v. Brown 390, 407 Smith v. Chilton 304 Smith v. Downey 699 Smith v. Feverell 951 Smith v. Henry Co 351 Smith v. Hutchinson 407 Smith v. Ins. Co 380, 398 Smith v. Kanawha County Court 341 Smith v. Lloyd.. 353, 431, 582, 591 Smith v. Moore 751 Smith v. Packard 136, 137, 538 Smith v. Pattie 415, 416 Smith -v. Powell 738 Smith v. Smith 31, 714 Smith v. Townsend 356 Smith v. Triplett 649 Smith v. Wunderlich 228 Smith v. Yeomans 1006 Smith v. Zumbro 389 Smithson v. Briggs, 203, 265, 276, 299, 300 Snavely v. Harkrader 625, 670 Snooks v. Wingfield 516 Solenberger v. Strickler 398 Sommers v. Allen 692, 697 Southall v. Exchange Bank, 267, 598 So. Ex. Co. v. Jacobs 274 CASES CITED LXXI [References Southern Express Co. v. Mc- Veigh 154 So. Ry. Co. v. Blanford, 335, 350, 511 So. R. Co. v. Clarke 569 Southern Ry. Co. v. Cooper.. 482 Southern R. Co. v. Foster 70 Southern R. Co. v. Glenn.... 755 So. R. Co. v. Hansbrough, 571, 766 South. Ry. Co. v. Hill 48, 742 Southern Ry. Co. v. Oliver, 503, 506, 560 So. Ry. Co. v. Simmons. .. .69, 250, 335, 350, 530, 771, 893, 894 So. Ry. Co. v. Smith 543, 544 S. R. Co. v. Wiley 490 So. R. Co. v. Willcox, 143, 973, 993 South Roanoke Land Co. v. Roberts 493 S. V. R. R. Co. v. Miller.. 821, 822 S. & W. R. Co. v. Common- wealth 348, 771 Southside R. Co. v. Daniel, 357, 358 Spangler v. Booze 235 Spence v. Repass 642, 644, 700 Spencer v. Field 153, 154, 338 Spencer v. Flanary, 389, 405, 612, 659 Spencer v. Pilcher. . .154, 155, 652 Spengler v. Davy 720, 729, 730 Spiker v. Borer 973 Spiller v. Wells 828 Spilman v. Gilpin 466 Spragins v. West Va., etc., Co., 297, 322 Sprinkel v. Rosenheim 13 Spurgeon's Case 472 Stahl v. Grover 228, 229 Standard Peanut Co. v. Wil- son 525 Stansburg v. State 413 are to pages.] Standard S. Co. v. Gunter 20 Starke v. Scott 680 Starr v. U. S 508 State v. Clark 510 State v. Cobbs 509 State v. Brobston 442 State v. Hays 76S State v. Huffman 510 State v. Matthews 783 State v. Wilcox 564 State v. Wood Co. Ct 776 State Trust Co. v. Sheldon.. 420 Stanton v. Kensey 344, 366 Staunton v. Stout 744 Staunton Bldg. Ass'n v. Haden, 290, 297, 298, 322, 323, 326, 619 Staunton Tel. Co. v. Buch- anan 60, 874 Stearns v. Harman 207 Stearns v. Richmond Paper Co 73, 46S Steamboat Charlotte v* Ham- mond 831 Steele & Co. v. Brown 641 Steigleder v. Allen 822 Steinman v. Jessee 321 Steinman v. Vicars 197, 200 Stephens v. White 145, 483 Stephenson v. South. R. Co. 961 Stephenson v. Wallace. .. .517, 559 Steptoe v. Harvey 527 Sterling Organ Co. v. House. 457 Stiles -v. Laurel Fork Oil Co., ^88, 416 Stimmel v. Benthal, 177, 178, 334, 336, 440, 459 Stockton v. Baltimore, etc., R. Co 315 Ex parte Stockton 315 Stone v. Wilson 649 Stoneburner v. Motley 130 Storrs v. Frick 188 Story v. Irvington 431 Stout v. Vance 402 Stowell v- Lord Zouch 950 LXXII CASES CITED [References are to pages.] Strange v. Floyd 766 Strayer v. Long 805 Strange v. Strange 805 Straus v. Bodeker 607 Street v. Hopkinson 983,984 Stroud v. Lady Gerrard 974 Strother v. Strother 65, 360 Stryker v. Cassidy 813 Stultz v. Dickey 228 Stultz v. Pratt 275 Stuart v. James River, etc., Co. 108 Stuart v. Peyton 770 Stuart v. Simpson 598 Stuart v. Valley Ry. Co 753 Sublett v. Wood 719, 720 Suffolk v. Parker 472 Sulpher Mines Co. v. Phoenix Ins. Co 771 Sulphur Mines Co. v. Thomp- son 196 Summerson v. Donovan 65 Sun Life ^fcsurance Co. v. Bai- ley 249, 511 Supervisors v. Dunn, 98, 113, 115, 169, 174, 176, 292 Supervisors v. Gorrell 774 Sutherland v. Bank 325 Sutherland v. Emswiller 203 Sutton v. Burruss, 413, 414, 421, 422 Sutton v. Marye 627, 670 Swann v. Summers 663 Swann v. Washington & Co., 1020 Sweeney v. Baker... 334, 558, 1020 Swift v. Fue 554 Swift & Co. v. Wood 165 Switzer v. Noffsinger. .410-415, 416 Syme v. Griffin 276 Talbot v. Hopewood 983, 984 Taliaferro v. Gatewood. . .483, 493 Taney v. Woodmansee. . .625, 670 Tapscott v. Cobbs 198 Tate v. Bank 590 Tate v. Winfree.. ..390, 398 Tatem v. Perient 891 Taylor v. B. & P. R. Co... 494, 507 Taylor v. Ches. & O. R. Co... 492 Taylor v. Eastwood 935 Taylor v. Forbes 107, 396 Taylor v. Mallory 517 Taylor v. Needham 870 Taylor v. Netherwood, 819, 822, 829, 830 Taylor v. Rainbow 226 Taylor v. Sutherlin-Meade Co., 151, 162, 367, 694, 696 Tax Title Co. v. Denoon 207 Teal 77. Ohio R. Co 491, 497 Templeman v. Pugh 378,403 Tench v. Gray 164, 169 Tennant's Executor v. Gray.. 96 Tennant v. Fretts 619 Tennessee v. Condon 754 Terry v. Anderson 378,379 Terry v. Johnson 953 Terry v. McClung 37 Teter v. Teter 129 Texas, etc., R. Co. v. John- son 63, 633 The King v. Bishop of Ches- ter 875, 921 The King v. Brereton 972 The King v. Bishop of Wor- cester . 862 The King v. Lyme Regis. 948, 969 The King v. Stevens 968 Thomas v. Heathorn 874 Thompson v. Bank 383 Thompson v. Butler 754 Thompson's Case 528 Thompson v. Norfolk & P. R. Co 761 Thompson v. Thompson 120 Thompson v. Whitman. . .103, 305 Thompson v. Whittaker, 382, 385, 409 Thornton v. Adams 968 Thornton v. Com.... 521, 525,996 Thrale v. Bishop of London.. 863 CASES CITED LXXIII [References Thurman v. Morgan 306 Tidball v. Bank 548 Tidewater Quarry Co. r. Scott, 121, 123, 437, 438, 600, 602 Tiernan v. Schley 718 Tifft v. Tifft 973 Timmerman v. Stanley 967 Tingle v. Brison 723 Tippling v. Johnson 885 Title Guaranty & Trust Co. v. Crane Co 72 Todd v. Daniel '. 755 Tole's Appeal 412 Tolputt v. Wells 988 Tomlins v. Earnshaw 924,999 Tomlin v. Surface 971 Tompkins v. Burgess 463 Took v. Glascock 982 Topping v. Fuge 1005 Town of Hindsley v. Kettle River R. Co 313 Townsend v. Norfolk, etc., R. Co 329, 865 Travis v. Peabody Ins. Co., 467, 586 Traer v. Clews 386 Trevilian v. Guerrant 658 Tribble v. Frame 228 Trimble v. Covington G. Co. 724 Triplett v. Micon 536 Trout r. Va. & Tenn. R. Co., 486, 489, 491 Trueman v. Hurst 985 Trump v. Tidewater 585 Trust Co. v. Price 102 Trustee Franklin St. Church f. Davis, 817, 820, 821, 832, 833 Tunstall v. Withers 397 Turnbull v. Claiborne 645 Turnbull v. Thompson, 295, 296, 619 Turner v. Barrand 287, 308 Turner v. Stewart.. 27 are to pages.] Turpin v. Sledd's Ex'r 87 Tutt v. Slaughter 490 Tuvis v. Grandy 15 Tyler v. Ches. & O. R. Co... 500 Tyree i\ Harrison 253 Tyson v. Williamson. 454, 455, 456 Union Central Life Ins. Co. v. Pollard, 169, 172, 179, 508, 516, 950 Union Pacific Co. v. Wyler.. 988 Union Steamship Co. v. Not- tinghams 490 Union Stopper Co. v. Mc- Gara 142, 143, 147, 996 United Moderns v. Rathbun.. 767 U. S. v. Ball 539 United States v. Battiste 507 United States v. Bell Tel. Co. 310 U. S. v. Coolidge 478 United States v. Reid 561 U. S. Fidelity Co. v. Peebles. 776 U. S. Oil Co. v. Garland 291 University of Va. v. Snyder, 488, 489, 498, 823 Upper Appomattox Co. v. Hamilton 13 Urton v. Hunter 399 Usborne v. Stephenson. .478, 599 Valley Mut. Ins. Co. v. Tee- wait 527 Vanborn v. Freeman 229 Vance v. McLaughlin 698 Vance v. Vance.. 378, 379, 394, 399 Vanderwerken v. Glenn 383 Van Stone v. Stillwell 735 Vashon v. Barrett 386 Vaughan Mach. Co. v. Stan- ton Co 511 Veale v. Warner 982 Vere v. Smith 882, 883, 991 Vicars v. Sayler 699,713 Vincent v. Hurst 800 Vinol v. Core... 233, 237, 238, 239 Va. Brewing Co. v. Com 430 Va.-Car. Chem. Co. v. Knight 70 LXXIV CASES CITED [References are to pages.] Va. Cedar Works v. Dalea, 362, 554, 766 Va. Coal & Iron Co. v. Kelly 197 Va. Dev. Co. v. Rich Patch Iron Co 519 Va. Fire, etc., Ins. Co. v. Buck, 97, 156, 158, 343 Va. F. & M. Ins. Co. v. New York, etc., Co 664,760 Va. F. & M. Ins. Co. v. Saun- ders 335, 882, 899, 988 Va. Fire Ins. Co. v. Vaughan, 290, 322 Va. Hot Springs Co. v. Mc- Cray 389 Va. Iron Co. v. Cranes Nest Co 203 Va. Iron Co. v. Kiser 467 Va. Midland R. Co. v. Bar- bour 196, 198 Va. Mining, etc., Co. v. Hoo- ver 491 Va. N. C. Wheel Co. v. Har- ris 341, 361 Va. & So. R. Co. v. Hollings- worth 281 Va.-Tenn. Coal Co. v. Fields 601 Va.-Tenn. C. & I. Co. v. Mc- Clelland 793, 800, 803 Voss v. King 5 Vynior's Case 952 Wades v. Figgatt 13 Waid v. Dixon 143 Wait v. Essington 922 Wakeford v. Trinkle 257 Walker v. Com., 625, 645, 649, 670, 671 Walker v. Henry 134 Walker v. N. & W. Ry. Co., 121, 123 Walker v. Supple 598 Walker v. Tyler 381 Wall v. Atwell 274, 276 Wall v. N. & W. R. Co 634 Wallace v. Baker.. 95 Wallen v. Wallen 510,770 Wallos v. Savil 984 Walmsley v. Lindenberger. . . 54 Walsingham's Case 950 Walters v. Mace 926 Walters v. Hodges 858 Walton v. Miller 59 Van Winkle v. Blackford. . . . 416 Ward v. Blunt's Case 994 Ward v. Churn 502 Ward v. Johnston 115 Ward Lumber Co. v. Hender- son-White Mfg. Co 314 Ward v. Reasor 234 Wardsworth v. Miller 649 Ware v. Bldg. Ass'n 746,750 Ware v. Stephenson 494 Waring v. Griffiths 935 Warner v. Wainsford. . . .992, 994 Warren v. Saunders 272,327 Warren v. Wilson 230 Wartman v. Yost 440 Wash. Luna Park Co. v. Goodrich 540, 561 Wash. So. Ry. v. Cheshire... 362 Washington, etc., R. Co. v. Lacey 503 Washington, etc., R. Co. v. Quayle 503 Washington, etc., R. Co. v. Taylor 765, 766 Watterson v. Moore 569 Watkins v. Hopkins 454 Watkins v. Venable, 48, 741, 755, 782, 783 Watkins v. West Wytheville Land Co 452 Watts v. N. & W. Ry. Co., 504, 541, 560 Wattles v. So. Omaha Co.... 15 Wats v. King Cro. Pac. 353.. 873 Watson v. Blackstone 47, 737 Watson v. Reed 540 Wayland v. Tucker 441 Wayt v. Peck 641 CASES CITED LXXV [References are to pages.] Webb v. Martin 985 Webber v. Tivill 985 Wedderburn's Case 478 Weeks v. Reach 983 Wells v. Gallagher 953 Weltale v. Glover 881 Wetherill v. Howard 866 Welton v. Boggs 410, 411 Westmeyer v. Gallencamp. . . 308 West Chicago R. Co. v. Man- ning 541 Western Lunatic Asylum v. Miller 381 Western State Hospital v. General Board 285 W. U. Tel. Co. v. Bright, 91, 172, 173 Western Union Tel. Co. v. Los Angeles Electric Co... 947 W. U. Tel. Co. v. Powell 91 West Virginia, etc., R. Co. v. Mclntire 107, 396 Wettenhall v. Sherwin 973 Wetherell v. Clerkson 963 Whalen v. Gordon 402 Wheatley v. Martin 22, 27, 30 Wheeling Gas Co. v. Wheel- ing 30, 143 Whiteacre v. Rector 797 White v. Bldg. Asso 751 White v. Canadee. . . .145, 924, 999 White'z/. Cleaver 957,958 White v. Murtland 229 White v. Owen 801 White v. Palmer 614 White v. Toncray 513 White v. White 304 Whitehead r. Cape Henry Syndicate 498, 777 Whitehead v. Coleman 698 Whiting v. Story County (Iowa) 817 Whitley v. Booker Brick Co., 445, 600, 854 Whitmore r. Karrick.. . 522 Whitney v. Whitney 563 Whittington v. Christian. .483, 489 Whitten v. Saunders 621 Whitwell v. Bennett 926 Wickes v. Baltimore 758 Wicks v. Scull 613 Wickham v. Green.. 260, 275, 401 Wickham v. Richmond Spike Co 4 Wickham v. Turpin 530 Wilburn v. Raines 38, 743 Wilcox v. Servant of Skip- with 875 Wilder v. Handy 973 Wilkins v. Standard Oil Co... 347 Wilkinson v. Hike 594 Wilkinson v. Merrill 792,806 Willard v. Worsham 108 Williams v. Bruffy 736 Williams v. Com 509,589 Williams v. Ewart 569, 758 Williams v. Fowler 950 Williams v. Mathewson 351 Williams v. Simpson 600 Williams v. Watkins 615,803 Williamson v. Bowie 714 Williamson v. Gayle 441, 715 Williamson v. Mingo Co. Ct. 780 Williamson v. Payne 750 Wilson v. Dawson 173 Wilson v . Hobday 953 Wilson v. Hundley 769 Wilson v. Kemp 983 Wilson v. Koontz 403 Wilson v. Langhorne 606 Wilson v. Mackreth 228 Wilson v. McCormick 75 Wilson v . Miller 391 Wilson v. Mt. Pleasant Bank 366 Wilson v. St. Louis, etc., R. Co 304 Wilson v. Wilson 752,773 Winchester v. Carroll 951 Winchester, etc., R. Co. v. Commonwealth . . 776 LXXVI CASES CITED [References are to pages.] Winfree v. Bank 503 Windsor v. McVeigh, 305, 306, 321, 728 Wingo v. Purdy 683 Winston v. Francisco 143 Winters v. Null 518 Winters v. U. S 755 Wimbish v. Tailbois 961 Wiscot's Case 932 Wise v. Com 467 Wise v. Hogan 921 Witherley v. Sarsfield 972 Withers v. Carter 607, 611 Withers v. Fuller 724 Witten v. St. Clair 198 Wittick v. Traum 986 Wolf v. Violett, 106, 108, 347, 397, 412 Womack v. Circle, 231, 236, 500, 502, 517 Wood v. Amer. Nat'l Bank.. 601 Wood v. Buddin 891 Wood v. Com 102, 349, 535 Wood v. Shepperd 23 Wood v. Southern R. Co.... 495 Woodruff v. Zaban.. . 123 Woodson v. Wood 415 Wooten v. Bragg 182 Woody v. Flournoy 143 Woodyard v. Polsley 410 Woodward v. Leavitt 562 Woolaston v. Webb 963 Worley v. Adams 767 Worrell v. Kinnear 772 Wray v. Davenport 793,795 Wright v. Agelasto 511 Wright's Case 521 Wright v. Clements 975,976 Wright v. Collins 526 Wright v. Smith 148 Wyat v. Aland 966, 967, 968 W'yman v. Wyman 815 Wynne v. Newman 565 Wynn v. Wyatt 722 Yahoola River Co. v. Irby 228 Yates v. Carlisle 995,996 Young v. Hart 68 Young v. King 518, 559 Young v. Rudd 888 Young v. Ruddle 888 Zouch & Barnfield's Case 971 Zumbro v. Stump 369 Errata Page 28 Line 6 from top for "legal" read "illegal." Page 132 At end of line 13 from top after note (50) add "There are, however, some exceptions to this rule." Page 158 At end of note 60 for "sec. 198" read "sec. 197." Page 168 Lines 1 and 2 from top for "returnable" read "given." Page 168 Strike out last sentence of first paragraph and note 15a. Page 202 Line 2 from top for "defendant" read "plaintiff." Page 231 Line 1C from top for "malice" read "libel." Page 232 Line 14 from the bottom for "controversy" read "country." Page 253 Line 12 from bottom for "three" read "two." Page 269 Line 8 from top strike out "other." Page 273 Line 7 from bottom for "plaintiff" read "defendant." Page 288 Line 9 from bottom for "Oct. Rules" read "day next term." Page 288 Line 10 from bottom for "$500" read "$50." Page 326 Lines 3 and 5 from top after "agent" insert "or officer." Page 332 Line 5 from top strike out "not." Page 347 Note 42 for "sec. 3958" read "sec. 3258a"; also, in Code of Virginia Cited, p. xlv, same correction. Page 396 Note 89 for "44 S. E. 333" read "44 S. E. 888;" for "Shields" read "Shield;" for "112 Va. - ," read "111 Va. 643." Page 426 Line 12 from top strike out "not." Page 431 Line 13 from bottom, last word for "after" read "before." Page 579 Note 7 for "205" read "265." Page 664 Line 7 from bottom for "debtor" read "creditor." Page 673 Lines 3 and 4 strike out "and return." Page 708 Last line strike out "other." Page 718 Note 68, line 1 after "sue" insert "out." Page 781 Note 34 insert "3 Code, sec." before "3022." Page 901 Line 2 from top for "like" read "lie." Page 921 Note '9 after "Hogan" read "(Cal.) 18 Pac. 784." Page 928 Line 3 from top for "stories" read "stores." Page 956 Line 11 from bottom for "plaintiff" read "defendant." Page 973 Line 3 from top for "plea" read "complaint." Page 1013 Line 8 from bottom for "respondent" read "respondeat." Common Law Pleading and Practice. CHAPTER I. REDRESS OF PRIVATE WRONGS DISTRESS FOR RENT. 1. Self-defence Recaption Abatement of nuisance. 2. Distress. 3. Distress for taxes and officers' fee bills. 4. Distress for rent. 5. Interest on rent. 6. Limitation of time to distrain. 7. By whom distress warrant levied. 8. Irregularity or illegality in making distress. 9. Disposition of property levied on. 10. Delivery or forthcoming bond and proceedings thereon. 11. What property may be distrained. 12. Redress for illegal distress At common law. 13. A year's rent under the Virginia statute. 14. Motion on delivery bond Proof. 15. Effect of general covenants to repair. 16. Abatement of rent. 1. Self-defence Recaption Abatement of nuisance. As stated by Blackstone, all private wrongs, or civil injuries, may be redressed in one of three ways: (1) By the mere act of the parties themselves; (2) by the mere act or operation of the law ; (3 ) by the joint act of the parties and of the law, 'or a civil action. Redress by act of the parties may be either: (a) Fly the act of the party injured alone, or (b) by the joint act of both parties. Redress by act of the party injured alone may be effected (1) by self-defence, (2) by recaption of goods, wife, child or serv- XOTE. References to the Code, unless otherwise stated, are to the Code of Virginia of 1904. Other references are as follows: To the Code of West Virginia of 1906; to the third edition of Minor's In- stitutes; and to the second edition of Andrew's Stephen on Pleading. 2 REDRESS OF PRIVATE WRONGS DISTRESS FOR RENT 2 ant, (3) by re-entry upon lands, (4) by abatement of nuisance, and (5) by distress. If one is in a place where he has a right to be, and is doing what he has a right to do, in a lawful manner, he may resist any assault made upon him, even if necessary to the extent of taking his assailant's life, provided the assailant apparently threatens life or great bodily harm. The same right is extended to persons occupying the relationship of husband and wife, parent and child, master and servant, and is mutual and reciprocal between them. So also if one's goods, his wife, child or servant have been wrongfully taken from him, he may retake them when found, provided the retaking be not in a riotous manner, nor attended with a breach of the peace ; and if one has been wrongfully de- prived of the possession of his real estate, the owner may re- enter upon his land provided it be done peaceably and without force. Whatever unlawfully annoys or does damage to another is a nuisance and may under proper conditions be abated. Abate- ment is simply removing, or taking away, the nuisance, but it must not be done riotously nor by breach of the peace. If the nuisance be one of commission no notice is required before re- moval, but if it be one of omission notice of the fact that it is a nuisance should generally be given, except, perhaps, in case of overhanging trees. The abatement should not exceed the ne- cessities of the case e. g., a whole tree should not be cut down simply because the branches create a nuisance. 2. Distress. Distress is the taking of a personal chattel out of the posses- sion of the wrongdoer into the custody of the party injured to procure a satisfaction for the wrong committed. 1 Distress is generally used as a remedy in three cases: (a) to recover dam- ages for cattle, damage feasant; (b) to enforce the collection of taxes and officers' fee bills; (c) for the collection of rent. At common law, every man's boundary line was a lawful fence, and if cattle strayed upon another's land the owner of the cattle was liable in damages for the injury. In many of the 1. 3 Bl. Com. [6]. ^ DISTRESS 5 states, including Virginia and West Virginia, it has been held that this common-law rule does not apply, and it has also been held that the common-law rule is inapplicable to the public lands of the United States Government. The reason assigned is that it was not adapted to the nature and conditions of the country at the time of its settlement; that fencing materials were scarce, that there was a vast extent of land not occupied or cul- tivated, chiefly valuable for pasturage, and that the public in- terests would be best subserved by requiring each landowner to protect his crops by proper enclosures. 2 In those states where the common-law rule does not apply, the owner of the land must protect his crops against trespassing cattle by a lawful fence. But even when a landowner is required to enclose his land, if he fails to do it, the owners of cattle have no right to drive their cattle on the uninclosed land, and if they do they will be liable as for wilful trespass. 3 What constitutes a lawful fence is usually defined by statute. In the absence of such stat- ute, it means a fence adequate to keep out ordinary animals of the particular kind, or animals not given to breaking through. In Virginia, the Board of Supervisors of the county are authorized, under given conditions, to adopt the common-law rule for the county or any portion thereof, or to declare what shall be a law- ful fence, as to any or all animals designated in the statute, not exceeding the requirements of the general law. 4 At common law, cattle damage feasant, that is doing damage, or trespassing upon land, could be distrained therefor. They were simply taken as a pledge or security for the damage done. The dis- trainor could not work, use, or sell them, but could only hold them as a security for the damage done, and in the meantime must feed and otherwise provide for them. If the owner proved obdurate, the distrainor had no means of enforcing his demand, and if the distress was irregularly made, the distrainor was a trespasser ab initio. 5 In Virginia trespassing cattle may be im- pounded, and a speedy remedy is provided by a warrant before 2. Poindexter v. May, 98 Va. 143, 34 S. E. 971; Elaine v. Ches. & O. R. Co., 9 W. Va. 253; Buford v. Houtz, 133 U. S. 320. 3. Poindexter v. May, supra. 4. Code, 2048. 5. 3 Bl. Com. [10]. REDRESS OF PRIVATE WRONGS DISTRESS FOR RENT 3-4 a justice of the peace for enforcing the demand for the damage done. For a second or any subsequent trespass the owner of the animal is liable for double damages, both actual and puni- tive, recoverable before a justice, and a specific lien is given on the animal after judgment for the amount of such damages. 3. Distress for taxes and officers' fee bills. This is a purely statutory remedy, which need not be here dis- cussed. Ca 4. Distress for rent. At common law this was a remedy afforded by the mere act of the party injured, for the landlord, or his private servant (bailiff) by warrant from him, made the levy. In Virginia, West Virginia, and other states the proceeding to recover rent by dis- tress is no longer a remedy afforded by the mere act of the party injured but is a judicial remedy, one afforded by the joint act of the party injured and of the law, 7 and hence would not be properly discussed in this connection, but is here inserted merely for the sake of convenience. Rent proper is defined to be a right to a certain profit issuing periodically out of lands and tenements corporeal in retribution (or return, reditus) for the land that passes. 8 It must not be supposed from this definition that the profit must issue exclu- sively out of lands and tenements corporeal. There are many cases where personal property enters very largely into the con- sideration of the price agreed to 'be paid and yet the whole is treated as rent. It is not within the purview of these notes to discuss this question, but many of the authorities are collected and discussed in the opinion of the court in the case cited in the margin. 9 In Virginia rent of every kind may be recovered by distress or action 10 but in order to distrain, the rent must be re- 6. Code, 2042. 6a. See Code, 622-626, 1044, 3518. 7. Wickham v. Richmond Spike Co., 107 Va. 44, 57 S. E. 647. 8. 4 Min. Inst. 124. 9. Wickham v. Richmond Spike Co., supra. 10. Code, 2787. 4 DISTRESS FOR RENT 5 served by contract. 11 If a tenant holds over with the consent of the landlord, but without a new contract, he becomes a tenant from year to year. The law presumes the holding to be upon the terms of the former lease so far as they are applicable to the new situation. 12 But the rent is still rent reserved by contract implied by law, and may be distrained for. 13 An agreement, however, that a tenant is to get a house at a price stated in the agreement for one year, and to have the preference each suc- ceeding year is not a tenancy from year to year, such as will entitle the tenant to notice to quit ; 14 and an agreement by a tenant that he will surrender possession whenever a purchaser of the land requires it makes him a tenant at will or by suffer- ance, and not from year to year. 15 Where tenancy is from year to year, neither party can terminate the tenancy without notice to the opposite party. It is as much the duty of a tenant from year to year to give the landlord the statutory notice of his intention to quit as it is of the landlord to give notice to the tenant that he can no longer keep the premises, and if the tenant fails to give such notice he is liable for a year's rent. 16 In Vir- ginia the notice required from either party to the other in case of a tenancy from year to year is three months within a city or .town, and six months in the country. 17 The tenancy can, how- ever, only be terminated by notice to take effect at the end of some current year of the tenancy, and not at any other time of the year. The notice must be in writing, unconditional, and must be executed as above stated the required length of time 11. Code, 2790. 12. Peirce v. Grice, 92 Va. 763-767, 24 S. E. 392; Allen v. Bart- lett, 20 W. Va. 46; Voss v. King, 38 W. Va. 607, 18 S. E. 762. 13. City of Richmond v. Duesberry, 27 Gratt. 210, 212. 14. Crawford v. Morris, 5 Gratt. 90. 15. Harrison v. Middleton, 11 Gratt. 527. 16. Allen v. Bartlett, 20 W. Va. 46. 17. Code, 2785. The statute also provides for a tenancy from month to month. In this connection, see Kaufman v. Mastin, 66 W. Va. 99, 66 S. E. 92, holding that where a tenant holds over paying monthly rent be- yond the time of his lease for a year, in which his rent is reserved by the month, payable monthly, does not thereby alone imply a re- newal by the year, but rather a renewal by the month. 6 REDRESS OF PRIVATE WRONGS DISTRESS FOR RENT 5-7 before some current year of the tenancy. 18 In a number of states the remedy by distress for rent has been repealed or else was never adopted. Distress for rent does not exist in Colo- rado, Massachusetts, North Carolina, Mississippi, Minnesota, New York and Wisconsin. In the last three named states it once existed, but was abolished. 19 A distress warrant is in the nature of an execution against the goods of the defendant to make the amount of money set forth in the warrant, and the costs. It is issued without judgment or other judicial investigation into the liability of the defendant for the amount claimed. The defense comes afterwards. No return day is fixed in the warrant in Virginia, but the officer holding the warrant is required to return it within sixty days to the office of the clerk of his county or corporation. 20 For form of affidavit and distress warrant, see Hurst's Guide and Manual, 723, 724. 5. Interest on rent. In the absence of statute, interest is generally not allowed, the common law not allowing interest unless stipulated for express- edly or impliedly. In Virginia interest is generally allowed, the statute -declaring that in any action for rent interest may be al- lowed as on other contracts. 21 6. Limitation of time to Distrain. At common law there was no limitation to the right to dis- train so long as the property remained on the leased premises. In Virginia, rent cannot be distrained for, for a period longer than five years after maturity, where the property is still on the leased premises ; and, if it has been removed, it must be dis- trained within thirty days after removal. 22 7. By whom distress warrant levied. At common law a distress warrant was levied by the landlord himself or his private servant (bailiff), in pursuance of the au- 18. Bait. Dental Ass'n v. Fuller, 101 Va. 627, 44 S. E. 771. 19. 7 Encl. PI. & Pr. 21 and 22. 20. Code, 2794a. 81. Code, 2787. 22. Code, 2790, 2791. 8 IRREGULARITY OR ILLEGALITY IN MAKING DISTRESS 7 thority conferred by the landlord. In Virginia a warrant issues from a justice of the peace or the clerk of the circuit or corpora- tion court, regardless of the amount of the rent, and is directed to a constable, sheriff, or sergeant of a corporation. This war- rant is obtained by making and delivering to the justice of the peace, or clerk, an affidavit (written oath) of the person claim- ing the rent, or his agent, that the amount of money or other thing to be distrained for (to be specified in the affidavit) as af- fiant verily believes, is justly due to the claimant for rent re- served upon contract from the person of whom it is claimed. 23 In order to justify a distress warrant, the rent must be reserved by contract, and it must be due; that is, the warrant cannot is- sue until after midnight of the last day of the tenancy. For rent not due, the proceeding is by attachment, as will hereafter be seen. The officer levies the warrant generally by taking into custody the property subject to the levy. At common law the levy could only be made on the premises by daylight, and the dis- trainor could not break open the outer door of the tenant's dwell- ing, but might break the inner door of the dwelling house, or outer door of an outhouse, or of a stranger's dwelling provided goods liable to distress were found therein; but of this he took the risk of being held to be a trespasser ab initio. Generally by statute the rule is otherwise. In Virginia goods removed not more than thirty days, may be distrained anywhere, and, whether removed or not, an outer door of the tenant's own dwelling may be broken by the officer in the daytime, if goods are found there liable to distress ; and if goods have been clandestinely or fraud- ulently removed, he may either in the daytime or nighttime, break and enter any house wherein there may be goods so lia- ble. 24 8. Irregularity or illegality in making distress. At common law the distrainor became a trespasser ab initio, and liable for all damage done, if there was any irregularity or illegality in making the distress. In Virginia, if the rent is justly due the distress is valid, but the landlord is liable for ac- 23. Code, 2790. 24- Code, 2793. 8 REDRESS OF PRIVATE WRONGS DISTRESS FOR RENT 9-10 tual damages resulting from the irregularity or illegality. If no rent is due, he is a trespasser ab initio as at common law. 25 9. Disposition of property levied on. At common law it was simply held as a pledge or security, but long since in England and in all the states provision has been made for a sale of the property by an officer, and the payment of the rent. In Virginia, the sale is made at public auction for cash, after ten days' notice posted at some place near the resi- dence of the owner of the property levied on, if a resident of the county or corporation, and at two or more public places in the officer's county, city, or district. If the property levied on, however, be horses, mules, or work oxen, they must be adver- tised for thirty days by hand-bills posted at the front door of the courthouse, and at five or more public places in the county or corporation where the levy is made, and if it be in the county these places must be at least two miles apart. 20 10. Delivery or forthcoming bond and proceedings thereon. At common law if the validity of a distress was questioned by a tenant it was settled by an action of replevin, which will be treated of later, but in Virginia when property of a tenant is levied on for rent and he wishes to contest the right of the landlord to recover, in whole or in part, or wishes simply to re- tain the property for awhile, so as to get a breathing spell, in either case, he executes and delivers to the officer making the levy what is called a forthcoming or delivery bond. This is a plain bond, usually for an amount equal to double the amount for which the distress is made (principal, interest, and costs), regardless of the value of the property levied on, and is gen- erally executed by the tenant with one or more sureties payable to the landlord, with a condition underwritten as a part of the bond (after reciting the issue of the distress warrant, and the 25. Code, 2794. 26. Code, 906, 907. Where the property levied on is perishable or expensive to keep; these sections make provision for a sale on less than ten days' notice, but this requires on order of the court, the judge, or justice after notice to the adverse party. 10 DELIVERY OR FORTHCOMING BOND 9 levy thereof on certain personal property of the tenant, and that the tenant wishes to retain possession thereof until the day of sale) that the tenant shall have the property forthcoming at the time and place of sale mentioned in the bond, or else will pay the penalty of the bond. This time and place is fixed by the officer taking the bond. If the property is delivered to the of- ficer he advertises and sells it, and pays the rent and costs to the landlord, but if the property is not then and there delivered the bond is said to be forfeited. It is then the duty of the of- ficer to return the bond to the clerk's office of his county or cor- poration, when it has the force and effect of a judgment against such of the obligors therein as are alive at the time it was for- feited and returned. 27 The landlord then gives the obligors in the bond ten days' written notice that on a certain day he will move the court for an award of execution on this bond, and, in reply, the tenant may show "that the distress was for rent not due in whole or in part, or was otherwise illegal." 28 If no such defence is made, judgment is given for the penalty of the bond to be discharged by, the amount of the rent due (principal and interest) and the cost of the motion. The defendant may also make other defences such as non est factum, conditions per- formed, set-off, etc. 29 Generally no formal pleadings are filed by the defendants, but they state the grounds of their defence ore tenus, or, if required, in writing. 30 If an issue of fact is made, and either party desires it, he may have a jury trial. 31 27. Code, 3617, 3619, 3210. 28. Code, 3621. 29. Allen v. Hart, 18 Gratt. 722; Hancock v. Whitehall Tobacco Co., 100 Va. 443, 41 S. E. 860. 30. Code, 3249. 31. Code, 3213. As to the return of the officer, it is provided that "such return shall be to the court from which such order, war- rant, or process emanates, or to which it is returnable, and in other cases, not specifically provided for, shall be to the court of the county or corporation in or for which he was elected or appointed." Code, 900, 3619, 2794-a. As a distress warrant does not emanate from a court, and is not returnable to a court, the warrant and any bond taken thereunder cannot be returned to the Circuit Court of a city, but must be returned to the corporation court, and if the dis- tress warrant is levied on property outside of the city or county in 10 REDRESS OF PRIVATE WRONGS DISTRESS FOR RENT 10 If the tenant is unable to give bond, and yet has a valid de- fense, he may make affidavit to these facts, and the officer levy- ing the warrant is required to permit the property to remain in the possession and at the risk of the tenant, and to return the affidavit and distress warrant to the first day of the next term of the circuit court of his county, or the corporation court of his corporation, and thereupon the defendant may make the same defense as if a bond had been given. 32 The claimant of the rent, "however, may require the officer to take possession of the prop- erty and hold it subject to the order of the court, by giving bond with sufficient surety, in the penalty double the value 'of the property levied on, with condition to pay all costs and damages which may accrue to any one by reason of his suing out said warrant. No form of procedure is given, but it is presumed that the landlord makes a motion, after notice, for a judgment for his rent, and in reply to this motion the tenant makes defense, but the statute is silent both as to notice and motion. If rent be reserved in a share of the crop, or in anything other than money, a distress warrant is first obtained as in other cases, and then the claimant of the rent is required to give notice to the tenant of the time and place when he will apply to the court to ascertain the value of the share of the crop reserved. When this value is ascertained, the court makes an order for the sale of the property. It is not clear at what stage of the proceeding the tenant can make his defense, whether it is at that time of the application to ascertain the value, or whether the tenant is allowed to give a forthcoming bond and make his defense when motion on that bond is made. The forms given by Mr. Minor would seem to indicate the latter. 33 which it issues, the forthcoming bond, if one is given, must be re- turned to the circuit court of the county, or the corporation court oi the city wherein the levy was made, and not where the warrant issued. If a forthcoming bond is taken "upon a fieri facias issued by a justice," provision is made for taking judgment thereon "on motion" before a justice, but the statute is silent where the bond is taken upon a distress warrant and it is presumed that the proceeding by mo.tion before a justice does not lie (Code, 3625) and the juris- diction of the justice will be determined by the Code, 2939. 32. Code, 3618. 33. Code, 2795; 4 Min. Inst. (3rd ed.) 1619-1620. 11 WHAT PROPERTY MAY BE DISTRAINED 11 11. What property .may be distrained. At common law, generally all goods and chattels found on the leased premises were liable to distress, whether they belonged to the tenant or not, except things in which there could be no property, such as dogs, cats, wild animals, and the like; things so perishable in their nature that they could not be returned in the same condition as when taken, such as milk, fruit, and the like; things affixed to the freehold as a part thereon, such as millstones, grates, mantels, and the like; things in the actual personal possession of the tenant ; personal property not the prop- erty of the tenant, but in his possession temporarily, either for purposes of trade, such as a horse at a shop to be shod, or goods at a tailor's to be made up; or things in possession of the ten- ant without the default of the owner; as cattle which were not levant and couchant and tools of a man's trade. The purpose of the common law was to detain the property as a means of com- pelling the tenant to pay the rent, and not to sell it and apply it to the payment of the rent. Hence there was some reason for not levying on things that could not be returned in kind, and for not depriving the tenant of the use of certain things which were necessary to enable him to make the money to pay the rent, as in case of tools of a man's trade. As the object of the mod- ern distress warrant is to sell the property levied on and pay the rent, the common-law rule has been very generally changed. The common-law doctrine of exemption on account of the perishable nature of property is greatly modified, and in large measure re- pealed, in consequence of the use of modern preservatives and the provisions of modern codes, authorizing a speedy sale of articles perishable in their nature or expensive of keep. 34 Most, if not all, fruits may be preserved until a speedy sale, and such things as can be preserved are probably no longer exempt from neces- sity on account of the perishable nature of the goods. Now only the property of the lessee, his assignee or under tenant (not that of others) found on the leased premises, or removed there- from not more than thirty days, is liable to distress in Virginia. 34 * There is exempt, however, tools of a man's trade to an amount 34. Code, 906. 34a. Code, 2791. 12 REDRESS OF PRIVATE WRONGS DISTRESS FOR RENT 12-13- not exceeding $100 in value, and numerous articles of personal property, generally known as the poor debtor's exemption. 35 What is known as the poor debtor's exemption cannot be waived. 36 It will be observed that the landlord may distrain on the undertenant for the whole amount of the rent due by the ten- ant regardless of the state of accounts between the tenant and the under-tenant e. g., if the tenant owes $1,000 rent, and the un- der-tenant has contracted to pay only $100 for the part of the premises occupied by him, the landlord may levy on the prop- erty of the under-tenant found on the leased premises for the entire $1,000 rent. The statute puts no limit on the extent of the liability of the assignee, or under-tenant. 12. Redress for illegal distress. At common law, the remedies were either replevin, in- junction or trespass. If the distress was void ab initio, tres- pass ; in other cases, trespass on the case. By statute, the rights of a third person to property levied on are usually settled by a proceeding of interpleader. 37 The tenant generally makes his defenses in the proceeding on a delivery bond, which has been hereinbefore given. In a few cases where there is no ade- quate remedy at law, the tenant or a third person may have an injunction. In other cases the remedy is by action of trespass, or trespass on the case. 38 13. A year's rent under the Virginia statute. The statutory provisions on this subject will be found in 2791 and 2792 of the Code. One of the many difficulties which have arisen in construing these sections is as to when a particu- lar tenancy begins, for if a lien is created on the goods after the tenancy begins, the landlord has priority for a year's rent; if before, the lien creditor has priority. If a tenant holds over, it seems that the hold-over term is regarded as a new and different 35. Code, 3650, 3651. 36. Code, 3655. 37. Edmunds v. Hobbie Piano Co., 97 Va. 588, 34 S. E. 472; Code, 2999, 3000. 38. Manchester Loan Ass'n v. Porter, 106 Va. 138, 56 S. E. 337. 13 A YEAR'S RENT UNDER THE VIRGINIA STATUTE 13 term from the contract term, and hence if a lien be created dur- ing the contract term on goods then on the leased premises, such lien has priority over rent accruing during the hold-over term, because created before the commencement of the tenancy for which the rent is claimed. 39 A landlord in Virginia is not al- lowed to distrain for rent after the lapse of more than five years after maturity, but if he makes a levy of a distress warrant for rent that has not been due more than five years, e, g., for four years last past, before any other lien is acquired on the tenant's property, he thereby acquires a lien for his full rent, and is not restricted to the year's rent provided by 2791, 2792 of the Code. These sections were not intended to operate to the detri- ment of the landlord, but to his advantage. 40 The above sections of the Code undoubtedly seem to give the landlord a lien for a year's rent as against all liens obtained after the goods were carried on the -leased premises. Whether this lien is created by 2791 or 2792 seems to be a matter of some doubt. 41 If the lien be created by 2791, it would seem that the distress might be levied on the goods not only while on the leased premises, but for thirty days after the removal, and that the landlord would have priority over any intervening lien, but it has been held 42 that the landlord's lien for a year's rent does not extend to protect the tenant's property from execution except in cases where the goods are on the premises leased, and that a lien attaching to goods after removal, but within the thirty days, takes precedence over the landlord's subsequent levy, although within the thirty days. If property is removed from the leased premises, and within thirty days thereafter an execution is levied thereon, and after such levy, but still within the thirty days, a distress warrant for rent is levied on the same property, who has priority? The case of Geiger v. Harmon, 3 Gratt. 130, seems to hold that the execution cred- itor has priority. In that case there was no distress warrant, 39. City of Richmond -v. Duesberry, 27 Gratt. 210; Wades v. Fig- gatt. 75 Va. 575; Upper Appomattox Co. v. Hamilton, 83 Va. 319, 2 S. E. 195. 40. Sprinkel v. Rosenheim, 103 Va. 185, 48 S. E. 883. 41. Anderson v. Henry, 45 W. Va. 319, 31 S. E. 998. 42 Geiger v. Harmon, 3 Gratt. 130. 14 REDRESS OF PRIVATE WRONGS DISTRESS FOR RENT 14 but the landlord gave notice of a lien. The language of 2791 apparently gives the same right to levy within the thirty days on the property removed from the leased premises as upon prop- erty remaining thereon. But while the right to levy within thirty days is given by 2791, nothing is said as to its effect on some other creditor who has levied a fieri facias in the meantime. The statute now is the same as when Geiger v. Harmon was decided. The right of the landlord to levy within thirty days was given by statute then as it is now. But both then and now the lien for a year's rent applied only to goods "while they are on the leased premises." So also the provision of 2792 for paying or securing a year's rent is applicable only to "goods on the premises leased or rented" and the right given 'is only "to remove said goods from the premises" under certain con- ditions. This seems to have been the view in Geiger v. Harmon. Neither 2791 nor 2792 gives the landlord any lien, but simply a right to levy, that is an inchoate lien which may be perfected by a levy in time, but may be lost as to an execution creditor who first obtains a lien and perfects it by a levy. The opinion in Geiger v. Harmon is very brief, but seems to lead to the conclusion that if the levy of the distress warrant is not made on goods removed from the leased premises before an execution is levied on it, then that the latter has priority. In Geiger v. Harmon the question necessarily .involved was whether the potential lien for the rent could be perfected within thirty days by a levy so as to override an execution already levied on goods removed from the leased premises not more than thirty days, and the conclusion of the court was in effect that it could not, and hence Geiger v. Harmon would seem to decide that in order for the distress warrant to take priority over an execution it must be levied within the thirty days, and before the ex- ecution is levied. 14. Motion on delivery bond Proof. If the execution of the bond is alleged in the notice, as it generally is, it is not necessary to prove it, but as this proceeding is given to enable a tenant to make defence, it is a necessary part of the landlord's case to prove that there is rent due by 15-16 ABATEMENT OF RENT 15 contract, and the amount thereof. The burden of proof is on the landlord, and if he simply produces the bond without more, judgment should be given against him. He must establish a contract for the payment of rent and must also prove the de- fault of the obligors in the performance of the conditions of the bond. 43 15. Effect of general covenants to. repair. At common law a covenant to keep in repair, bound the tenant to rebuild buildings destroyed on the leased premises. 44 This rule has been changed by statute in Virginia, which now relieves the tenant from that duty, and also provides for abatement of the rent "for such time as may elapse until there be again upon the premises buildings of as much value to the tenant for his pur- poses as what may have been destroyed." 45 If the buildings were of no value to the tenant, but where simply leased by him to keep some one else from getting them, and thereby create a monopoly in his business conducted in another place, then the destruction ot the buildings cannot be said to lessen their value to the tenant for his purposes as tenant, and there will be no abatement of the rent. 46 16. Abatement of rent. If part of the premises be recovered by a title paramount to that of the landlord, or if part of the land be taken back by him with the tenant's consent, or there be a total destruction of part of the premises by act of God, the rent is apportioned, but if the landlord enter, against the will of the tenant on any part of the leased premises and take possession thereof, the whole rent is abated until the tenant is restored to the whole pos- session. 47 43. Carter v. Grant, 32 Gratt. 769. 44. Ross v, Overton, 3 Call. 309. See also and compare Wattles v. So. Omaha Co., 50 Neb. 251, 61 Am. St. Rep. 554 and note. 45. Code, 2455; Richmond Ice Co. v. Crystal Ice Co., 99 Va. 239. 38 S. E. 141, 6 Va. Law Reg. 824. 46. Richmond Ice Co. v. Crystal Tee Co., 103 Va. 465, 49 S. E. 650. 47. Briggs i. Hall, 4 Leigh 484; Tunis v. Grandy. 22 Gratt. 109. CHAPTER II. ACCORD AND SATISFACTION. 17. Introductory. 18. Definition. 19. Subject matter. 20. Accord without satisfaction. 21. Persons who may make satisfaction. 22. Consideration of accord. Part payment of a liquidated money demand, New or additional consideration. Unliquidated or disputed claims. Acceptance of property. Acceptance of a promise. 23. Pleadings Accord and satisfaction. 17. Introductory. In the previous chapter it was stated that redress by act of the party might be effected either by the act of the party injured alone, which was the subject discussed in that chapter, or by the joint act of both the party injured and the party suffering the injury. The latter remedy by the joint act of both parties may be effected either: (1) by Accord and Satisfaction, or (2) by Arbitration and Award. The present chapter will be devoted to a brief discussion of the subject of Accord and Sat- isfaction. 18. Definition. Accord is the agreement of one party to give or perform, and of the other to accept, instead of some claim, something different from what he is or considers himself entitled to; and satisfaction is the fulfillment, or carrying out, or execution of the agree- ment. The effect is to bar recovery on the original claim. 1 19. Subject matter. All simple contract debts may be the subject of accord and 1. 1 Cyc. 305; Monographic Note, 100 Am. St. Rep. 390; Cumber r. Wane, 1 Smith L. C. 633. 20 ACCORD WITHOUT SATISFACTION 17 satisfaction. Judgments may, by weight of authority, be settled by parol accord and satisfaction, but upon this subject the au- thorities are in conflict. 2 As to obligations under seal, it is said that a parol accord and satisfaction of an obligation which is required to be under seal is bad, 3 but the exceptions are so numerous as almost to destroy the rule. It is believed that the true rule is "that for a valuable consideration the specialty may, before breach, the same as after, be discharged by the mutual parol agreement of the parties." 4 All torts are likewise proper subjects of accord and satisfac- tion. While accord and satisfaction cannot operate to transfer title to a freehold and such title cannot be barred by a collateral satisfaction, the rights of the parties with reference to such free- hold are a legitimate subject of accord and satisfaction. 5 20. Accord without satisfaction. This is not sufficient. This would simply be agreement without consideration. The thing agreed must be done or there is no satisfaction, but the execution of an executory contract may be the thing agreed, and this would be a good satisfaction. For example, it may be agreed that a party shall give a note pay- able at a future day for an unascertained liability. If the note is actually given and accepted in pursuance of this agreement, the transaction is valid, and will bar all proceedings on the original cause of action. The time of performance must be the time fixed, if any, if none, a reasonable time. Neither readiness to perform, nor tender of performance, nor part performance and tender of the residue is sufficient. 6 2. 1 Cyc. 309; 100 Am. St. Rep. 417 ff; Boffinger v. Tuyes, 120 U. S. 205. 3. 1 Cyc. 309. 4. Bish. on Con., 132, 135; Canal Co. v. Ray, 101 U. S. 522; Phelps v. Seely, 22 Gratt. 573. 5. 4 Min. Inst. 167; 1 Am. & Eng. End. Law (2nd ed.) 409. 6. Jones v. Perkins, 64 Am. Dec. 136 and note; Hearn v. Kiehl, 38 Penn. St. 147, 80 Am. Dec. 472; Kromer v. Hein, 75 N. Y. 574, 31 Am. Rep. 491; 1 Smith L. C. 646; 7 Rob. Pr. 528; 1 Encl. L. & P. 641. 18 ACCORD AND SATISFACTION 21 21. Persons who may make satisfaction. The parties, if of contractual capacity, of course may make satisfaction. Strangers may likewise make satisfaction if pre- viously authorized, or if their acts are subsequently ratified; and it would seem that the ratification may be made by plea after action brought. There is considerable conflict, however, as to the validity of a satisfaction made by a stranger. 7 On the subject of satisfaction by one of several joint wrong- doers, there is much conflict of authority. There can be but one satisfaction for a wrong, and if complete satisfaction has been made by any one of the wrongdoers, that is a complete discharge of all the others. It is immaterial that several actions are pend- ing against the different wrongdoers. If the satisfaction by any one is for the whole wrong, it inures to the benefit of all, al- though the injured party expressly reserves his right against the others. It is said that where the release is under seal, or ex- presses full satisfaction on its face, the attempted reservation of rights against other joint wrongdoers is void as being repugnant to the effect and operation of the release. But that where the release of one is not a technical release under seal and does not purport to be a complete satisfaction for the wrong done, the reservation of remedies against other joint wrongdoers is good, and effect will be given to the intention of the parties. 8 The right of the injured party to settle with one wrongdoer does not involve any question of contribution among wrongdoers. He may sue all, or any one, or any intermediate number. They cannot apportion the wrong among themselves nor compel him to do so. This is forbidden by public policy. But as he may select whom he will sue, no reason of public policy forbids him to settle with any one for his share of the wrong, provided he settles only for his share, and does it in the proper manner. A technical release under seal of one of several joint wrongdoers saying nothing as to others is a release of all. The release being 7. Note, 100 Am. St. 396, 397. 8. 24 Am. & Eng. Encl. Law 306, 307, and cases cited; Bloss v. Plymale, 3 W. Va. 393, 100 Am. Dec. 752, which criticises Ruble v. Turner, 2 H. & M. 38, 11 Am. St. 906; 100 Am. St. 401-2; 2 Black on Judgments, 782. 21 PERSONS WHO MAY MAKE SATISFACTION 19 under seal and absolute, the law conclusively presumes that it was given in full satisfaction of the entire wrong, and for a sufficient consideration. But no such presumption arises where the injured party simply covenants not to sue one of the wrong- doers, or even where a technical release under seal is given re- serving on its face remedies against other wrongdoers, when in fact what was given by the party released was not full compen- sation. In such case, the injured party is still entitled to com- pensation for the wrong done, and may recover the full amount from the party not released, subject to credit for the amount received from the party released. In such case no rule of evi- dence is violated. It must be conceded, however, that there is much conflict of authority on this subject. 9 While such seems to be the law as to a compromise made by one of several wrong- doers, the rule is not altogether the same as to the effect of a judgment against one of several wrongdoers. In England and in Virginia a judgment against one of several joint wrongdoers, with or without satisfaction, is a bar to any action against the others. 10 The great weight of authority, however, in the United States is to the effect that judgment alone without satisfaction is not a bar to an action against the other wrongdoers, and that, in order for such judgment to constitute a bar, the judgment must be satisfied. 11 Generally, in the absence of statute, a total release of one of several joint obligors is a release of all, 12 but it is otherwise pro- vided by statute in Virginia. 13 It must be observed that the Virginia statute applies only to joint contractors or co-obligors, and has no application to joint wrongdoers. Satisfaction, however, of the whole claim to one of several joint obligees is a satisfaction to all, in the absence of fraud. 9. Louisville Mail Co. v. Barnes, 117 Ky. 860, 111 Am. St. Rep. 273 and note; 1 Encl. L. and P. 648. 10. Brinsmead v. Harrison, L. R. 7 C. P. 547; Petticolas v. City of Richmond, 95 Va. 456, 28 S. E. 566. 11. Lovejoy v. Murray, 3 Wall. 10; Miller v. Hyde, 161 Mass. 472, 42 Am. St. Rep. and note. 12. 100 Am. St. 400, 401. 13. Code, 2856. 20 ACCORD AND SATISFACTION 22 22. Consideration of accord. Part payment of a liquidated money demand was not good at common law, unless it was evidenced by a release under seal, or the transaction was founded upon a new consideration, 14 but the surrender of an instrument for cancellation is said to be equiva- lent to a release. 15 This common-law rule has been changed in Virginia and in many other states including Alabama, California, Georgia and Mississippi. 16 If there be a bona fide controversy about the currency in which an obligation is to be discharged, and the kind is afterwards agreed 'Upon and paid, this is good. 17 Any new or additional consideration will generally suffice to make the satisfaction valid. Payment before maturity, at an- other place, by a third person, abandonment of a defence and payment of costs, are all good. Receiving a debtor's note for less than the debt due is said to be a good satisfaction, and so it is said the acceptance of the check of the debtor for $100 in pay- ment of $125 is good, because it is paid by check and not in cash. 18 This seems to be straining the doctrine to the utmost limits, if it does not exceed it. So giving a new security and even the giving of an individual note by one of several joint debtors for a less sum, has been held to be good. 19 Unliquidated or disputed claims may be settled at any price or on any terms agreed upon between the parties. Retention of a check declared to be in full will constitute a good accord and satisfaction of a disputed claim. 20 Acceptance of property in satisfaction is good against any claim unless an agreed money value be fixed upon the property. In the latter case it would not be good against a liquidated de- mand for a larger sum in those jurisdictions which deny the right 14. See cases cited in note 16, infra. 15. Reynolds v. Reynolds, 55 Ark. 369, 18 S. W. 377. 16. Code, 2858; Seymour v. Goodrich, 80 Va. 303; Standard S. Co. v. Gunter, 102 Va. 568, 46 S. E. 690; Frank v. Gump, 104 Va. 306, 51 S. E. 358. 17. San Juan v. St. Johns Gas Co., 195 U. S. 510. 18. 1 Am. & Eng. Encl. Law (2nd ed.) 416. 19. Note 100 Am. St. 399. 20. 1 Cyc. 333. 23 PLEADINGS ACCORD AND SATISFACTION 21 to make part payment of a money demand a satisfaction of the whole. The same rule applies to services. Acceptance of a promise is good as a satisfaction if based upon a sufficient consideration. 23. Pleadings Accord and satisfaction. The defence of accord and satisfaction may be made under the general issues in assumpsit, case, and debt on a simple contract. In other actions it must be specially pleaded. The plea should allege (1) the accord or agreement, (2) satisfaction in pur- suance thereof, (3) the acceptance of the satisfaction. 21 In code states accord and satisfaction must be specially pleaded. 21. 4 Min. Inst. 169; 7 Rob. Pr. 55.2, et seq. CHAPTER III. ARBITRATION AND AWARD. 24. Introduction. 25. Who may submit. 26. What may be submitted. 27. Mode of submission. 28. Who may be arbitrator. 29. The umpire. 30. Revocation of submission. 31. Proceedings before arbitrators. 32. The award. 33. Form of award. 34. Effect of award. 35. Mode of enforcing performance of award. 36. Causes for setting aside award. 37. Relief against erroneous award. 38. Awards, how pleaded. 39. Costs. 24. Introduction. Usually two or more arbitrators are selected (though there may be only one), and if they cannot agree they are allowed to select an umpire. The arbitrators are "judges of the parties' own choosing." Their decision is called an "award." 25. Who may submit. Any person or corporation capable of making a contract may submit a controversy to arbitration, but in the absence of statute' personal representatives and other fiduciaries practically guarantee the correctness of the award. 1 In Virginia they are not liable for losses by arbitration unless occasioned by their fault or neglect. 2 It has been held that infants cannot submit to arbitration, and if they are parties to a submission they are not bound thereby, and hence the adults are not bound either; that the award is in the nature of a judgment, and the interest of the infant cannot be looked after and protected as in court, and the award will not 1. Wheatley v. Martin, 6 Leigh 62. 2. Code, 3010. 26 WHAT MAY BE SUBMITTED 23 be enforced, although in favor of the infant, 3 but this is not be- lieved to be sound. 4 The guardian of an infant may submit, and the award will be binding under the Virginia statute. 5 One partner cannot submit firm matters unless specially authorized, though he himself will be bound. 6 An attorney to prosecute or defend a suit may submit the matter involved in the cause to arbitration, but ordinarily agents cannot unless specially author- ized. 7 It has been held in West Virginia that an attorney cannot submit his client's case to arbitration unless the submission be in open court. 8 26. What may be submitted. Personal demands of all kinds, ex contractu, and ex delicto, disputes touching boundaries of land, 9 but not public crimes. 10 3. Britton v. Williams, 6 Munf. 453. 4. 2 Am. & Encl. Law (2nd ed.) 616. 5. Section 3010 of the Code is as follows: "Any personal repre- sentative of a decedent, guardian of an infant, committee of an insane person, or trustee, may submit to arbitration any suit or matter of controversy touching the estate or property of such decedent, infant, or insane person, or in respect to which he is trustee. And any sub- mission so made in good faith, and the award made thereupon, shall be binding and entered as the judgment of the court, if so required by the agreement, in the same manner as other submissions and awards. No such fiduciary shall be responsible fo-r any loss sus- tained by an award adverse to the interests of his ward, insane per- son, or beneficiary under any such trust, unless it was caused by his fault or neglect." 6. 2 Am. & Eng. Encl. Law (2nd ed.) 617; Wood v. Shepperd, 2 Pat. & H. 442. 7. Marshall, Ch. J., in Holker v. Parker, 7 Cranch 436, 449; 2 Am. & Eng. Encl. Law (2nd ed.) 625, and cases cited. 8. McGinnis v. Currie, 13 W. Va. 29. 9. Miller v. Miller, 99 Va. 125, 37 S. E. 792. 10. Section 3006 of the Code is as follows: "Persons desiring to end any controversy, whether there be a suit pending therefor or not, may submit the same to arbitration, and agree that such sub- mission may be entered of record in any court. Upon proof of such agreement out of court, or by consent of the parties given in court, in person or by counsel, it shall be entered in the proceedings of such court; and thereupon a rule shall be made, that the parties shall submit to the award which shall be made in pursuance of such agreement." 24 ARBITRATION AND AWARD 27-28 The award, however, cannot per se transfer title to a freehold, nor in Virginia, to a term of over five years. 11 An agreement to submit all matters in dispute that may arise in future is contrary to public policy, as it ousts the courts of their jurisdiction, 12 but particular questions of value and amount, such as the value of property destroyed by fire, extra work done by builders, or whether work was done according to specification, estimates of engineers, architects, etc., are legitimate subjects of contract in advance to submit to arbitration. 13 27. Mode of submission. An agreement to submit may be either (a) by or under rule of court, that is, the parties agree that the award shall be entered as the judgment of the court, whether a suit be pending about the controversy or not, or (b) by agreement out of court, called in pais. It may be in writing or oral, under seal or not under seal, to be entered as a judgment or not. 14 In 2 Am. & Eng. Encl. Law (2nd ed.) 543, it is said: "Where a written instrument is necessary to convey or pass the title to the subject matter of the dispute, a written submission is necessary," and this would seem to be the weight of authority, but it has been held in Virginia that parties may agree by parol to settle by arbitration the divid- ing line between their lots of land, and that an award made in pursuance of a submission for that purpose will bind the parties, although the arbitrators make a parol award, where the submis- sion does not require the award to be in writing. 15 28. Who may be arbitrator. Any one, infant or adult, married woman or unmarried, sane or insane, may be an arbitrator. 16 An arbitrator, however, must not have an interest 'unknown to the parties, or be biased, or be 11. Code, 2413. 12. 2 Am. & Eng. Encl. Law (2nd ed.) 570; note 2 Am. St. Rep. 567; Insurance Co. v. Morse, 20 Wall. 445. 13. Note 2 Am. St. Rep. 567; Condon v. So. Side R. R. Co., 14 Gratt. 302. 14. Code, 3006. 15. Miller v. Miller, 99 Va. 125, 37 S. E. 792. 16. 2 Am. & Eng. Encl. Law (2nd ed.) 633. 29 THE UMPIRE 25 related to either party without knowledge of the other. The refusal of one arbitrator to act revokes the submission unless the others are authorized to decide the controversy. 17 Text-writers with one accord say that an idiot or lunatic (if known to be such) may be an arbitrator, 18 but I can find no case so holding. In a large number of instances, insanity is only partial and there is no good reason why one known to be partially insane may not be a competent arbitrator as to most questions which might be submitted, but if parties should submit a controversy to the de- cision of one who is an idiot or totally insane it may be well doubted whether the award would be upheld, as such a decision would be a mere game of chance which is not encouraged by the law. Arbitrators need not be sworn in a common-law arbitration unless it is required by the parties to the submission, nor is any oath required of arbitrators by statute in Virginia. There is no uniformity in the statutory provisions of others states on this subject. 19 29. The umpire. There is a well-defined distinction between an umpire and a third arbitrator. Whether the person is one or the other is to be determined from the language of the submission. If the party selected is alone to determine the whole dispute, when the arbi- trators disagree, then he is an umpire, and his decision may be wholly different from that of either of the arbitrators. If the party selected is simply >to be added to the arbitrators, and to act with them, and decide with them, then he is a third arbitrator, and his decision must accord with that of one or more of the arbitrators so as to make the opinion of a majority of all the arbitrators settle the dispute. Whether the party chosen be an umpire or a third arbitrator, he must possess the same qualifica- tions as any other arbitrator. He is generally either selected by the parties at the same time as the arbitrators, or more commonly the arbitrators are allowed to select an umpire in case of dis- 17. 2 Am. & Eng. Encl. Law (2nd ed.) 642. 18. 2 Am. & Eng. Encl. Law (2nd ed.) 633; Bac. Abr. Arb. D.; Spe- cial Topics in Contracts, 279. 19. 2 Am. & Eng. Encl. Law (2nd ed.) 639. 26 ARBITRATION AND AWARD 30 agreement. According to the weight of authority, the umpire must hear the evidence himself directly from the witnesses, and cannot, except by consent, take the arbitrators' statement of what the evidence given before them was. 20 But several states, includ- ing Florida and South Carolina, hold the contrary. After hearing the evidence, the umpire is to decide the whole controversy sub- mitted, according to his own judgment, and not merely the ques- tions on which the arbitrators have disagreed, unless the sub- mission indicates a different rule. 21 If the case is decided by the umpire, he alone should sign the award, which should recite the disagreement of the arbitrators. 22 30. Revocation of submission. At common law, if submission was by rule of court it could not be revoked except by leave of court, and if revoked it was punishable as a contempt, but if revoked it is probable no award could be made. Under the Virginia statute, 23 submission under a rule of court is not revocable except by leave of court. Other submissions may be revoked at any time before the award is made, with liability on the revoking party to an action for dam- ages for the breach, but this is of little value where the damages are not liquidated. The only remedy is an action for damages for breach of the submission. The agreement to submit is no bar to an action at law or a suit in equity on the original cause of action, and no foundation for suit for specific performance. If damages are sought for breach of the agreement to submit, the measure of recovery is the costs and expenses incurred, un- less there be a bond with penalty in the nature of liquidated damages. 24 The revocation may be express or implied, and may be in writing or oral, though it is sometimes said if the submission is under seal the revocation must be also. 25 In 2 Am. & Eng. 20. 2 Am. & Eng. Encl. Law (2nd ed.) 716, and notes; Coons v. Coons, 95 Va. 434, 28 S. E. 885. 21. Bassett v. Cunningham, 9 Gratt. 684. 22. 2 Am. & Eng. Encl. Law (2nd ed.) 710, ct scq. 23. Code, 3007. 24. Corbin v. Adams, 76 Va. 58; Rison v. Moon, 91 Va. 384, 22' S. E. 165. 25. 4 Min. Inst. 175. 31 PROCEEDINGS BEFORE ARBITRATORS 27 Encl. Law (2nd ed.) 599, it is said that the revocation must be of the same dignity as the submission, and, in the notes, that "a written submission requires a written revocation, a submission under seal can only be revoked under seal." The same or equivalent language is used in "Law of Contracts, Special Topics," p. 285, and practically the same authorities are cited. But unless the matter submitted embraces some matter required by law to be in writing, a written (unsealed) contract stands on no higher footing than an oral contract; nor is it clear that a sealed con- tract may not be discharged by parol. A submission under rule of court or which has been agreed to be entered as the judgment of a court is irrevocable. 26 Rev- ocation will be implied by the death of an arbitrator or a party, but probably not by the bankruptcy of the party. 27 Express revocation to be complete must be communicated to the arbitrators. Until then the award, if made, is valid. It has been held that a submission by rule of court was not revoked by the death of the party when the suit was subsequently revived by the administrator, and the arbitration proceeded with. 28 Sovereign states cannot always withdraw from a submission. 29 31. Proceedings before arbitrators. The proceeding is judicial in its nature, and should be con- ducted like other judicial proceedings, by notifying parties of time and place of meeting, 30 swearing witnesses, and hearing only legal evidence, and excluding none that is legal, hearing argu- ments of counsel, if any, seeing that neither party is put to disadvantage, or taken by surprise, and deciding according to legal principles. The evidence must be taken in the presence of the parties, or at least after notice to them and an opportunity 26. Riley v. Jarvis, 43 W. Va. 43, 26 S. E. 366; Turner v. Stewart, 51 W. Va. 492, 41 S. E. 924. 27. 2 Am. & Eng. Encl. Law (2nd ed.) 600-602; 5 Encl. L. & P. 61, 62. 28. Wheatley v. Martin, 6 Leigh 62. 29. Colombia v. Cauca Co., 190 U. S 524. 30. Coons v. Coons, 95 Va. 434, 28 S. E. 885. 28 ARBITRATION AND AWARD 32 to be present. It must not be taken behind their backs. 31 In 2 Am. & Eng. End. Law (2nd ed.) 661, it is said that in the United States arbitrators are not bound to strict rules of law as to the admission or rejection of evidence, but may receive the evidence of witnesses who are legally incompetent if they think proper. The mere hearing of legal or incompetent evidence will not vitiate the award, but if the decision is rested on such evidence it is believed it will vitiate the award unless the arbi- trators are constituted the sole judges of the law as well as the facts. 32 In England and probably most of the states the umpire must rehear the case de novo, but in some states this right is held to have been waived unless demanded at the time. 33 32. The award. The award should decide all that was submitted, and no more (be within the submission), and be certain, definite and final in its findings. Awards are construed liberally so as to uphold them if possible. All fair presumptions are to be made in favor of an award. 34 If an award is in excess of the submission, the court may reject the excess, and render judgment for what is within the submission, if it be severable. 35 It is not necessary that the award should be delivered in order to be valid unless the submission so requires. 36 When signed and read to the par- ties as and for an award it is complete and final, though not delivered. 37 If the award is uncertain on its face and is not made certain by reference, it is void, and the parties may proceed as if there had been no submission. 38 An award once made is final, and the powers of the arbitrators then cease. They cannot thereafter, without a new submission, alter or amend it. If they attempt to change it, it may be enforced as originally made. 39 31. 1 Cyc. 645. 32. Bassett v. Cunningham, 9 Gratt. 684. 33. 2 Am. & Eng. Encl. Law (2nd ed.) 716; Coons v. Coons, supra. 34. Armstrong v. Armstrongs, 1 Leigh 491. 35. Martin v. Martin, 12 Leigh 495. 36. Byars v. Thompson, 12 Leigh 550. 37. Pollard v. Lumpkin, 6 Gratt. 398. 38. Cauthorn v. Courtney, 6 Gratt. 381. 39. Rogers v. Corrothers, 26 W. Va. 238. 33-36 CAUSES FOR SETTING ASIDE AWARD 29 33. Form of award. It it not required to be in any particular form, but if it be returnable to a court it must be in writing. In fact, all awards should be in writing to prevent mistakes and misapprehensions. 34. Effect of award. An award properly made bars action on the original cause. Some contracts provide as a condition precedent that no action shall be maintained on the contract until the amount has been first settled by arbitrators, or by an engineer, or architect, or some person selected by the parties. Under contracts contain- ing such provisions, the award is a condition precedent to the right to maintain an action on the contract. The most frequent instances of contracts of this nature are construction contracts and fire insurance policies. 40 35. Mode of enforcing performance of award. If the award has been entered as the judgment of a court, it is enforced as any other judgment by appropriate writ of execu- tion, or by process of contempt. If it has not been so entered, it may be enforced by action on the award for the thing awarded, or, if the thing awarded be land, by a bill in equity, or by ap- propriate action on the agreement of submission. If the submis- sion is by penal bond, an action may be maintained on the bond for the penalty, and in this action the damages sustained may be proved. If the submission is by agreement under seal, an action of covenant, or now in Virginia assumpsit, may be maintained on it. If by agreement not under seal, assumpsit is the ap- propriate action. 36. Causes for setting aside award. 41 An award may be set aside for improper conduct on the part of the arbitrators, such as bias prejudice, interest, hearing illegal 40. Condon v. So. Side R. R. Co., 14 Gratt. 302; X. & W. Ry. Cc. v. Mills, 91 Va. 613, 22 S. E. 556. 41. Section 3009 of the Code, relating to awards made under a rule of court, is as follows: "Xo such award shall be set aside, ex- 30 ARBITRATION AND AWARD 36 evidence, refusing to hear legal evidence and refusing continuance when proper, etc., 42 or for improper conduct of one or more of the parties, such as fraud, surprise, etc., or for errors appearing on the fact of the award, if at law ; and it is equally the rule of equity as of law, that as a rule, the reasons for setting aside an award must appear on its face, or there must be misbehavior of the arbitrators, or some palpable mistake. 43 Usually, as stated, the errors must appear on the fact of the award, but a court of equity may look into the testimony before the arbitrators for the purpose of determining from such evidence and other circum- stances, whether the errors were so gross and palpable as to indicate fraud, corruption or misconduct on the part of the arbi- trators. 44 "The weight of authority in the United States leans towards making absolute the certain and simple rule that the award of arbitrators, when made in good faith, is final, and can- not be questioned or set aside for a mistake either of law or fact" 45 But if the mistake is so gross as to amount to fraud, the parties are not bound, and may sue on the original cause of action. 46 Unless there is a perverse misconstruction of the law, or the arbitrators intend to decide according to law, but mistook the law in a palpable, material point, the award will not be set aside. If the legal question is doubtful, or is designedly left to the judgment of the arbitrators, the award is generally conclusive. It must appear that they grossly mistook the law. It is not sufficient simply that the court would have rendered a different decision or judgment. 47 "When parties submit to arbitration their rights involved in cept for errors apparent on its face, unless it appear to have been procured by corruption or other undue means, or that there was partiality or misbehavior in the arbitrators or umpire, or any of them. But this section shall no* be construed to take away the power of courts of equity over awards." 42. 4 Min. Inst. 185-187; Wheeling Gas Co. v. Wheeling, 5 W. Va. 448. 43. Wheatley v. Martin, 6 Leigh 62. 44. Fluharty v. Beatty, 22 W. Va. 698. 45. 2 Am. & Eng. Encl. Law (2nd ed.) 778. 46. N. & W. v. Mills, 91 Va. 613, 22 S. E. 556; Cornell v. Steele, 109 Va. 589, 64 S. E. 1038. 47. Portsmouth v. Norfolk, 31 Gratt. 727. 37-39 COSTS 31 law and fact, they are understood to submit the facts to the arbitrators to be decided on according to law, and if it appear upon the face of the award that they grossly mistook the law, the award will be set aside. But where it appears, as in the case before us, that the parties intended to submit the question of law alone, the decision of the arbitrators is binding, though contrary to law. If not, it would not be competent to parties to make a valid submission of a point of law; for, however the arbitrators might decide, no litigation would be avoided. The proper court would still have to consider and decide the point of law as if no award had been made." 48 This is believed to be the correct principle. 37. Relief against erroneous award. Generally relief can be given by a bill in equity only, though in some cases, where the award is offered to a court of law to be entered as its judgment, objections may there be made. 38. Awards, how pleaded. In Virginia and West Virginia and a few other states an award may be given in evidence under the general issue in assumpsit, debt on simple contract, and trespass on the case. In other ac- tions it must be specifically pleaded. Under non-assumpsit to an action upon an award under parol submission, the defendant may show that the submission was obtained by fraud. 49 While an award may in some states be shown under the general issue, an agreement to submit cannot, although it be irrevocable. Such an agreement is a matter of abatement only, and must be so pleaded. 50 If the submission and award be made in a pending suit, the award cannot be given in evidence under any of the general issues, as all pleadings speak as of the date of the writ, and at that time there was no award. 51 39. Costs. Where the submission is silent, arbitrators could not award 48. Smith v. Smith, 4 Rand. 95, at p. 101. 49. Bierly v. Williams, 5 Leigh 700. 50. Riley v. Jarvis, 43 W. Va. 43, 26 S. E. 366. 51. Austin v. Jones, Gilmer 341; Harrison v. Brock, 1 Munf. 22. 32 ARBITRATION AND AWARD 39 costs of arbitration at common law, but the weight of authority in the United States is that the authority is incident to the power to make an award on the subject of controversy. 52 52. 2 Am. & Eng. Encl. Law (2nd ed.) 693, 694. CHAPTER IV. REMITTER AND RETAINER. 40. Remitter. 41. Retainer. Order of payment of debts. Order of liability of estates for debts. 40. Remitter. The second way in which wrongs may be redressed is by the mere act or operation of the law. At common law this occurred in two cases only: (1) Remitter and (2) retainer. "Remitter is where he who hath the true property or jus pro- prietatis in lands, but is out of possession thereof, and hath no right to enter without recovering possession in an action, hath afterwards the freehold cast upon him by some subsequent, and, of course, defective, title ; in this case he is remitted, or sent back by operation of law, to his ancient and more certain title. The right of entry, which he hath gained by a bad title, shall be ipso facto annexed to his own inherent good one ; and his defeasible estate shall be utterly defeated and annulled, by the instantaneous act of law, without his participation or consent." 1 41. Retainer. "If a person indebted to another makes his creditor or debtee his executor, or if such a creditor obtains letters of administra- tion to his debtor ; in these cases" the law gives him a remedy for his debt by allowing him to retain so much as will pay himself, before any other creditors whose debts are of equal degree. This is a remedy by the mere act of law, and grounded upon this rea- son : that the executor cannot, without an apparent absurdity, commence a suit against himself, as a representative of the de- ceased, to recover that which is due to him in his own private capacity; but, having the whole personal estate in his hands, so much as is sufficient to answer his own demand is, by operation 1. 3 Bl. Com. [19]. 3 34 REMITTER AND RETAINER 41 of law, applied to that particular purpose. Else by being made executor he would be put in worse condition than all the rest of the world besides." 2 ORDER OF PAYMENT OF DEBTS. In Virginia the doctrine of retainer is abolished by a statute prescribing the order of pay- ment of the debts of a decedent. It is provided that when the assets of the decedent in the hands of his personal representative, after the payment of funeral expenses and charges of adminis- tration, are not sufficient for the satisfaction of all demands against him, they shall be applied : First: To the claims of physicians, druggists, nurses and hos- pitals, respectively, for services or articles furnished during the last illness of the decedent, to an amount not exceeding fifty dollars in each case. Second: To debts due the United States and this state. Third: To taxes and levies assessed against the decedent pre- vious to his death. Fourth : To debts due as trustee for the persons under disabili- ties, as receiver or commissioner under decree of court of this state, as personal representative, guardian or committee, when the qualification was in this state. Fifth : To all other demands except those in the next class ; and Sixth: To voluntary obligations. Debts are to be paid in the above order, and where the assets are not sufficient to pay all of any class in full, those of that class are to be paid ratably. 3 This order of liability of personal estate for the debts of a de- cedent cannot be destroyed by will of the debtor. The rule is otherwise in Virginia as to real estate. At common law the real estate of a debtor was not bound, upon his death, for his simple contract debts, nor for debts under seal, unless the heir was ex- pressly bound by the instrument. This rule is changed in Vir- ginia so as to make real estate assets for the payment of the debts of the decedent, but the language of the statute 4 is such as to permit a debtor to give a preference by his will, to such of his 2. 3 Bl. Com. [18]. 3. Code, 2660, 2661. 4. Co.de, 2665. 41 RETAINER 35 creditors as he may desire to prefer, so far as effects his real es- tate. 5 Order of Liability of Estate, for Debts. Generally, the per- sonal estate is the primary fund for the payment of all debts of a decedent, and it will not be exonerated by a charge on the real estate, unless there be express words, or a plain intent in the will to make such exoneration. This is true even when there is a specific lien on real estate for the debt. 6 If, however, real and personal property are equally and expressly charged by a testator with the payment of his debts they must share the burden ratably. 7 But a simple expression by a testator in his will of a desire that all his just debts shall be paid is not a charge of such debts upon his real estate. 8 If the assets are not sufficient to pay the whole of the debts due "the United States and this state" it would seem that the former must be first paid in full, as it is so provided by United States Statutes. 9 If the individual assets of a partner are insuffi- cient to pay all his debts, those due in fiduciary capacity will be preferred to other individual or social debts. 10 An indebtedness found against a guardian upon the settlement of his guardianship account does not cease to be a fiduciary debt simply because the debtor gives his individual bond for it, 11 but if the surety of a guardian pays a liability due to the ward, and seeks indemnity from his principal, the debt as between the principal and his surety is no longer a fiduciary debt. 12 It will be observed by the student that voluntary bonds may be enforced against a decedent's estate, but the same is not true of a note given without consideration. In this connection it may also be noted that the proper order for marshaling assets for the payment of debts is the following: (1) Personal estate at large not exempted by the terms of the 5. Deering v. Kerfoot, 89 Va. 491, 16 S. E. 671. 6. New v. Bass, 92 Va. 383, 23 S. E. 747. 7. Elliott v. Carter, 9 Gratt. 541. 8. Leavell v. Smith, 99 Va. 374, 38 S. E. 202. 9. U. S. Rev. Stats., 3466, 3467. 10. Robinson v. Allen, 85 Va. 721, 8 S. E. 835. 11. Smith v. Blackwell, 31 Gratt. 291. 12. Cromer v. Cromer, 29 Gratt. 280. 36 REMITTER AND RETAINER 41 will, or necessary implication. (2) Real estate or any interest therein expressly set apart by will for payment of debts. (3) Real estate descended to the heir. (4) Property, real or personal, expressly charged with the payment of debts, and then subject to such charge, specifically devised or bequeathed. (5) General pecuniary legacies (ratably). (6) Specific legacies (ratably). (7) Real estate devised. 13 13. Elliott v. Carter, 9 Gratt. 541; Frazier v. Littleton, 100 Va. 9, 40 S. E. 108. CHAPTER V. COURTS. 42. Supervisors. 43. Clerks. 44. Justices of the peace. 1. Civil powers of justices. Small claims. 2. Proceedings before a justice on small claims. 3. Civil bail. Attachment. 4. Unlawful detainer. 5. Garnishment. 45. Circuit and corporation courts. Corporation courts. 46. Civil jurisdiction of court of appeals. (1) In matters pecuniary. (2) In matters not pecuniary. 42. Supervisors. Boards of supervisors have the control, management and juris- diction of all county roads, causeways, and bridges, landings and wharves erected or repaired in their respective counties. 1 They have no jurisdiction of condemnation proceedings relating to mills, railroads and the like. These belong to the circuit courts. An appeal of right lies from the Board of Supervisors in case of which they have cognizance to the circuit court of the county and it may hear the case de novo, with the further right of appeal as provided by general law. 2 The constitution allows an appeal to the Supreme Court of Appeals in controversies concerning mills, roadways, 21 ferries and the like. 3 The power of eminent domain is a legislative power to be exercised by the legislature as it pleases, and, under the general road law, there is an unrestricted right of appeal to the court of appeals, but it is within the power 1. Co.de, 944a (1). 2. Code, 944a (5). 2a. A "bridle way" is not a roadway. Terry v. McClung, 104 Va. 599, 52 S. E. 355. 3. Va. Constitution (1902), 88. 38 COURTS 43 of the legislature by special enactment to limit that right of appeal to. judicial questions only. The power to condemn property for a public use is a legislative power to be exercised as the legisla- ture shall direct, but the ascertainment of the damages is a ju- dicial question and upon this question the constitution grants a right of appeal. 4 43. Clerks. The statute declares that the clerk of any circuit or corporation court may in term time or vacation appoint appraisers of estates of decedents, admit wills to probate, appoint and qualify execu- tors, administrators, curators of decedents and committees, and take bonds in the same manner as courts. 5 The Constitution 6 au- thorizes the legislature to confer this power on the clerks of the several circuit courts, but is silent as to any other clerks. Article VI of the Constitution prescribes a complete judicial system and no other courts are allowed except those mentioned in that article. The legislature, therefore, has no power to confer the jurisdiction above mentioned on the clerks of any other court, and hence the statute above mentioned, so far as it undertakes to confer such jurisdiction on clerks of city courts, is unconstitu- tional. Such clerks are not within the terms or intendment of 101 of the Constitution, nor is such jurisdiction conferred by 98, authorizing the legislature to provide "additional courts" for cer- tain cities. The additional courts authorized must be courts of similar grade, dignity and jurisdiction of existing city courts. 7 An appeal of right is allowed from an order made by the clerk, within one year (on giving bond as required by law) to the court whose clerk made the order. 8 Such clerks have no power to ap- point guardians, or to substitute trustees. The constitution au- thorized the legislature to confer this power on the clerks of the several circuit courts, but it has not done so. 9 The clerks of the circuit and corporation courts may issue distress warrants for 4. Wilburn v. Raines, 111 Va. 334, 68 S. E. 993. 5. Code, 2639a. 6. Va. Constitution (1902), 101. 7. McCurdy v. Smith, 107 Va. 757, 60 S. E. 78. 8. Code, 2639a. 9. Va. Constitution (1902), 101. 44 JUSTICES OF THE PEACE 39 rent. 10 The clerks of circuit courts of counties and of the cir- cuit or any city court of corporations may issue attachments against debtors removing their effects out of the estate, or against tenants removing their effects from the leased premises. 11 They have no power to issue an attachment holding a defendant to civil bail. The provision with reference to issuing distress warrants was inserted in December, 1903. The constitution is silent as to the power of the legislature to enact any such statute, but it is believed to be a constitutional enactment. The issuing of the dis- tress warrant can hardly be said to be a judicial act. The clerk does not hear or determine anything, but simply issues the war- rant, and the judicial feature of the case arises on subsequent proceedings. 44. Justices of the peace. I. CIVIL POWERS OF JUSTICES. They may take acknowledg- ments of deeds and other writings. 12 They may administer affi- davits when not of such a nature that they must be administered in court. 13 SMALL CLAIMS. They have jurisdiction of claims to specific personal property or to any debt, fine, or other money, or to dam- ages for any breach of contract, or for any injury done to real or personal property, if the claim to the fine, does not exceed $20.00, and in other cases "if it does not exceed $100, exclusive of interest." If the claim be such as would bear an action of as- sumpsit and there be served with the warrant a copy of the ac- count on which the warrant is brought, stating distinctly the sev- eral items of the claim, the aggregate amount thereof, the time from which interest is claimed, and the credits, if any, to which the defendant may be entitled, and such account be verified by the affidavit of the plaintiff or his agent, the plaintiff is entitled to judgment unless the defendant makes a "sworn defence." If the claim exceeds $20 the defendant may remove the case to the circuit court of the county or the corporation court of the 10. Code, 2790. II. Code, 2961 and 2962. 12. Code, 2501. 13. Code. 173. 40 COURTS 44 corporation in which the warrant is brought, at any time before trial, "upon affidavit that he has a substantial defence thereto." The justice cannot require security for the debt or costs. When removed it cannot be tried except by consent, unless it has been docketed ten days previous thereto. 14 When removed, the case is to be tried according to principles of law and equity, and if they conflict, equity is to prevail. 15 The court may correct any defects, irregularities, or omissions in the proceedings before the justice, or in respect to the form of the warrant. The statute is to be construed liberally. 10 2. PROCEEDINGS BEFORE A JUSTICE ON SMALL CLAIMS. On ap- plication, the justice issues a warrant directed to the sheriff, ser- geant, or constable to summon the defendant to appear before him or some other justice on a certain day. The warrant must be returnable "on a certain day not exceeding thirty days from the date thereof." It must be returnable to some place in the magisterial district in which the defendant, or some one or more of them, if there be more than one, resides, or in which the cause of action arose, unless the justice for good cause shown on oath direct it to be returned to some other place in his county or corporation. But in no case can it be returnable in a county or corporation other than that in which the defendants, or some of them, reside. It may be executed in any part of the county or corporation. 17 If a corporation or company be defendant, it is provided that, for the purposes of this act, it shall be construed to reside in any county or corporation through which its line (if it be a transpor- tation company) runs, or in which it conducts its business. 18 There can be no trial within five days after the service of the warrant, except with consent of the parties. If, at any time be- fore trial, the defendant shall make affidavit that he verily believes he cannot obtain justice from the justice of the peace who issued said warrant, and before whom it is returnable, the said justice 14. Code, 2939. 15. Code, 2939. 16. Code, 2939. 17. Code, 2940. 18. Code, 2940. 44 JUSTICES OF THE PEACE 41 of the peace who issued said warrant shall associate himself with two other justices of the peace of that county, who shall try said warrant, and in case of disagreement of opinion, the opinion of the majority is to prevail. 19 There seems to be no similar provi- sion for calling in additional justices in cities. The justice must write on the face of the writing, account, or other paper, on which the warrant is sued out, or on any warrant r account, or any other paper allowed as a set-off, the date and amount of the judgment and costs, and affix his name thereto. 20 The justice may allow a new trial within thirty days, but not after. The opposite party must be present, or have five days' notice of the application for the new trial. 21 The justice may -stay execution for certain periods upon secu- rity being given. 22 The justice may allow an appeal within ten days to the cir- cuit court of the county, or the corporation court of the corpora- tion, where the matter in controversy, exclusive of interest, is of greater value than ten dollars, on security being given to be ap- proved by him "for the payment of such judgment as may be rendered against the defendant, and all costs and damages." The verbal acknowledgment of the surety shall be sufficient, and the endorsement of his name by the justice on the warrant is con- elusive evidence of such acknowledgment. The appellate court may require new or additional security. 23 Costs before the justice are no part of the amount in controversy, and are not to be taken into consideration in determining the right of appeal. 24 The justice has no right to demand that costs be paid before allowing the appeal. In cattle-guard cases, appeal lies for either party, regardless of the amount involved. 25 If a judgment is rendered in a corporation in a case involving the constitutionality or validity of a by-law or ordinance of said corporation, the ap- 19. Code, 2942. 20. Code, 2943. ' 21. Code, 2946. 22. Code, 2947. 23. Code, 2947-2956. 24. N. & W. v. Clark. 92 Va. 118, 22 S. E. 867. 25. Code, 1294b, cl. 20. 42 COURTS 44 peal lies only to the circuit court having jurisdiction over said corporation. 26 The justice may issue an execution, directed to the sheriff, ser- geant, or constable, of any county or corporation, and it may be executed anywhere within the county or corporation. The exe- cution must be returnable within sixty days. If not wholly satis- fied, it may, within one year from the date of the judgment, be returned and renewed by a justice; but if not so returned and renewed it must be returned to the clerk's office of the court of* the county or corporation in which it issued. 27 Thereafter, further executions, if need be, may be issued by the clerk of the court. 28 Appeals from the justice are tried in a summary way without pleadings in writing, and if the matter in controversy exceed $20 either party may require a jury. All legal evidence is to be heard, whether heard by the justice or not, and if the judgment is given against the appellant, and his surety, the execution thereon is en- dorsed, "No security to be taken." 29 Justices may issue distress warrants for rent due. The war- rant is issued on affidavit of the claimant of the rent, or his agent, that the amount of money or other thing to be distrained for, as he verily believes, is justly due to the claimant for rent reserved upon contract from the person from whom it is claimed. Rent cannot be distrained for after five years from the time it becomes due. 30 The justice or the clerk of the circuit or corporation court may issue this warrant for any amount, however large. There is no trial of the warrant, but the warrant itself is a mandate to the officer to levy the amount. The defences are made on the forth- coming bond. When motion is made on this bond the defendant may defend on the ground that the distress was for rent not due in whole or in part, or was otherwise illegal. 31 If the tenant be unable to give the forthcoming bond, the case is provided for by 26. Code, 2956. 27. Code, 2948-2949. 28. Code, 2950. 29. Code, 2957. 30. Code, 2790. 31. Co.de, 3621 44 JUSTICES OF THE PEACE 43 3618. On the general subject of rents, see Code, ch. 127. As to judgments of justices on forthcoming bonds, see Code, 3625. 3. CIVIL BAIL. Justice may require bail of the defendant (in action or suit) if he is about to quit the state. It is a personal attachment, a capias ad respond endum. 32 For procedure thereon, see Code, 2992, et seq. 4. ATTACHMENT. An attachment may be issued by a justice of the peace in the following cases : (1) Where a debtor intends to remove, or is removing, or has removed his effects out of the state so that there will probably not be therein effects of such debtor sufficient to satisfy the claim when judgment is obtained therefor, should only the ordinary process of law be issued to obtain such judgment. 33 If issued in a pending suit, the attachment is returnable to rules, or to court. In other cases, if the claim exceed $20, it is returnable at the op- tion of the plaintiff to the next term of the circuit court of the county, or to the circuit or any city court having jurisdiction of the subject matter of the corporation in which such justice or clerk resides. If $20, or under, it is returnable before the jus- tice. 34 (2) Where a tenant intends to remove or is removing, or has within thirty days removed his effects from the leased premises, and the landlord, or his agent, believes that unless an attachment issues there will not be left on such premises property liable to distress sufficient to satisfy the rent to become due and payable within one year. 35 (3) For a claim under $20, if it is due, 36 and there is ground for the attachment. 5. UNLAWFUL DETAINER (but not unlawful or forcible entry). A justice has jurisdiction in an action of unlawful detainer against a tenant, or any person claiming under him, unlawfully de- taining possession" of premises, where the lease was originally for 32. Code, 2991. 33. Code, 2961. 34. Code, 2965. 35. Code, 2962. 36. Code, 2988. 44 COURTS 45 not more than one year, or for such time as the tenant is employed by the landlord as a laborer. 37 6. GARNISHMENT. On judgments rendered by a justice. 38 - Wages of a minor cannot be garnished for debts of parents. 39 45. Circuit and corporation courts. The single court system prevails in Virginia, and, outside a few matters of minor importance of which the tribunals hereinbefore mentioned have exclusive jurisdiction, the circuit courts of the counties are the only courts provided by law for counties. In each city there is a corporation court whose civil jurisdiction is for the most part concurrent with that of the circuit court for such city. In the cities of Richmond and Norfolk there are sev- eral courts whose jurisdiction is declared by statute. The fol- lowing discussion is not intended to apply to these excepted cities : Circuit courts have original and general jurisdiction of all cases in chancery and civil cases at law, except cases at law to recover personal property or money, not of greater value than $20, exclu- sive of interest, and except such cases as are especially assigned to some other tribunal. 41 Between $20 and $100 the jurisdiction is for the most part concurrent with that of the justice, but if the action be for a fine exceeding $20 or for a personal injury, the jurisdiction of the circuit court is exclusive. 42 Circuit courts also have jurisdiction of proceedings by quo warranto, and to award writs of mandamus, prohibition and certiorari to all inferior tri- bunals created or existing under the laws of this State, and to issue mandamus to the boards of supervisors of their respective counties, and in other cases in which it may be necessary to pre- vent the failure of justice and in which a mandamus may issue according to the course of the common law. They have also juris- diction in all cases for the recovery of fees, penalties, or any cases involving the right to levy and collect tolls or taxes, or involving the validity of any ordinance or by-law of any corporation, and 37. Code, 2716. 38. Code, 3609, et seq. 39. Code, 3652. 41. Code, 3058. 42. Code, 2939. 45 CIRCUIT AND CORPORATION COURTS 45 also of all civil and criminal cases where an appeal may be had to the Court of Appeals. 43 They also have original jurisdiction of all presentments, in- formations and indictments for felonies, or for such misdemean- ors as are made cognizable therein by statute, and of the proceed- ings therein. 44 Circuit courts may admit wills to probate, 45 grant letters of ad- ministration, 40 and appoint guardians for infants, 47 and commit- tees for lunatics, 48 and curators of estates of infants. 49 In the matters of appointment of guardians or curators the judge may act in vacation. 50 Circuit, corporation, and other courts in which a will is admitted to probate, or a deed or other writing is or might have been recorded, have jurisdiction to appoint trustees in the place of one or more who have died, resigned, removed from the state, or declined to accept the trust. The personal represent- ative, however, of a sole trustee who has died, is authorized to "execute the trust or so much thereof as remained unexecuted at the time of death" of such trustee "unless the instrument creat- ing the trust directs otherwise" or a new trustee be appointed. 51 Circuit and corporation courts may summon all persons inter- ested in a will, require production of all testamentary papers, have a trial by jury, and settle all controversies concerning wills. 52 Circuit courts (concurrently with corporation courts in cities) have jurisdiction of applications for change of names. 53 An appeal lies from the decision of the justice of the peace where the matter in controversy, exclusive of interest and cost, is greater than $10, or where the case involves the constitution- ality of a law, or the validity of a by-law or ordinance of a cor- 43. Code, 3058. 44. Code, 3058. 45. Code, 2533. 46. Code, 2639. 47. Code, 2599. 48. Code, 1700. 49. Code, 2602. 50. Code, 2599, 2602. 51. Code, 3419. 52. Code, 2539, 2542. 53. Code, 3138. 46 COURTS 45 poration. If the case arises in a city, the appeal is to the corpora- tion court except where it involves the validity of a by-law or ordinance of a corporation, when it is to the circuit court. If the case arises outside of the city, the appeal is to the circuit court. 54 Circuit courts have (concurrently with corporation courts) ju- risdiction "to enforce police regulations, and over all offences committed in any county within one mile of a city." 55 It is provided by 98 of the Constitution that "during the ex- istence of the corporation or hustings court (of cities of less than ten thousand inhabitants, called cities of the second class) the circuit court of the county in which such city is situated shall have concurrent jurisdiction with said corporation or hustings court in all actions at law and suits in equity." No statute has been enacted in accordance with this provision, but it seems to be self-executing. Circuit courts also have jurisdiction of all cases, civil and crimi- nal, which were existing or pending in the respective county courts for the counties, on January 31, 1904, and appellate jurisdiction in all cases, civil and criminal, "where an appeal may, as provided by law, be taken or allowed by the said court or the judge thereof, from or to the judgment or proceeding of any inferior tribunal." "They shall have appellate jurisdiction of all cases, civil and criminal, where an appeal, writ of error, or supersedeas may, as provided by law, be taken to or allowed by the said courts or the judges thereof, from or to the judgment or proceedings of any in- ferior tribunal. They shall also have jurisdiction of all other matters, civil and criminal, made cognizable therein by law; and where a motion to recover money is allowed in said courts other than under 3211, they may hear and determine the same, al- though it be to recover less than twenty dollars ; provided, how- ever, that no circuit court shall have original or appellate juris- diction in criminal cases arising within the territorial limits of any city wherein there is established by law a corporation or hustings court." 55a 54. Code, 2947, 2956. 55. Code, 3055. 55a. Code, 3058. 45 CIRCUIT AND CORPORATION COURTS 47 Under a general statute 56 all jurisdiction vested in the county courts on January 31, 1904, is vested in and imposed upon the circuit courts. This would embrace the following: (1) Motions on bonds returned to or filed in the county court or its clerk's office, or given to any sheriff, sergeant or constable. 57 (2) Motions for awards of executions on bonds for the forth- coming of property taken on distress warrants, 58 and also mo- tions for sale of property attached or levied on, or for rent re- served in part of the crop. 59 (3) Injunctions to restrain the removal of crops upon which advancements have been made. 60 (4) Interpleader proceedings to try the title to property levied on under a distress warrant, or fi. fa. 61 (5) Mandamus in respect of any matters arising before the board of supervisors of a county. 62 (6) Forcible or unlawful entry, or unlawful detainer, 63 and other matters not here enumerated. Corporation courts "have the same jurisdiction within their territorial limits as the circuit courts have in counties for which they are established." They also have jurisdiction for the ap- pointment of electoral boards, and such other jurisdiction as may be conferred upon them by law ; but these provisions do not apply to the courts of the city of Richmond, nor to the law and chan- cery court of the city of Norfolk. 64 The jurisdiction of the corporation court of the city of Lynch- burg extends one mile beyond the city limits. 65 The legislature has no power to allow an appeal from a cor- poration to a circuit court in any case, as the constitution makes the two courts of equal dignity and co-ordinate jurisdiction. 66 56. Code, 3058b. 57. 'Code, 3210. 58. Code, 900, 3210, 3619. 59. Code, 2795. 60. Code, 2495. 61. Co.de, 2999. 62. Code, 3046. 63. Code, 2716. 64. Code, 3055. 65. Code, 3067a. 66. Watson -v. Blackstone, 98 Va. 618, 38 S. E. 939. 48 COURTS 46 46. Civil jurisdiction of Court of Appeals. The court of appeals has original jurisdiction in cases of habeas .corpus, mandamus, and prohibition, but not quo it>arranto. GGii It has appellate jurisdiction in the following cases: (1) In matters pecuniary. Where the amount in controversy, exclusive of costs, is not less in value and amount than $300. (2) In matters not pecuniary. Here the amount is wholly im- material. The court has jurisdiction in civil cases at law of an ap- peal from any judgment or order in controversy concerning the title to or boundaries of land, the condemnation of property, the probate of a will, the appointment or qualification of a personal representative, guardian, committee, or curator, or concerning a mill, roadway, ferry, wharf, or landing, or the right of the state, county, or municipal corporation to levy tolls or taxes, or involv- ing the construction of any statute, ordinance, or county proceed- ing imposing taxes. It also has jurisdiction in case of appeal from any final order, judgment, or finding of the State Corpora- tion Commission, irrespective of the amount involved, except the action of the said commission in ascertaining the value of any property or franchise of a railroad or canal company, for the pur- pose of taxation and assessing taxes thereon. It has jurisdiction also of appeals from an order of a judge or court refusing a writ of quo warrant o, or a final judgment on said writ, and the Com- monwealth has an appeal from the action' of the said corporation commission in all cases, irrespective of the amount involved. No appeal lies from the judgment of a circuit or corporation court rendered on an appeal from the judgment of a justice, except in cases where it is otherwise expressly provided. 67 It also has ju- risdiction of cases involving the constitutionality of a statute, but if the validity of the statute be drawn in question before a jus- tice of the peace, there must be first an appeal to the circuit court of the county on the corporation of the city. There is no di- rect appeal from the justice to the Court of Appeals. 67a 66a. Watkins v. Venable, 99 Va. 440, 39 S. E. 147. 67. Code, 3454, 3455. 67a. Va. Constitution 88; Southern R. Co. v. Hill, 106 Va. 501, .56 S. E. 278. CHAPTER VI. PARTIES TO ACTIONS. 47. Proper parties to actions ex contractu generally. 48. Joint and several contracts. 49. Proper parties to actions ex delicto generally. 50. Assignees of contracts. 51. Assignees of rights of actions for torts. 52. Joint tortfeasors. 53. Actions by and against court receivers. 54. Partnership. 55. Executors and administrators. 56. Corporations. 57. Infants. 58. Insane persons. 59. Married women. 60. Unincorporated associations. 61. Death by wrongful act. 62. Undisclosed principal. 63. Convicts. 64. Official and statutory bonds. 65. Change of parties. 66. Misjoinder and non-joinder of parties. Too many or too few plaintiffs or defendants. Mode of taking the objection at common law. 1. Actions ex contractu. 2. Actions ex delicto. 47. Proper parties to actions ex contractu generally. The following succinct statement is made by Professor Minor : x "In actions ex contractu the general principle is that the action must be brought by the person who has the legal title to the benefit of a contract, inasmuch as a court of law does not usually take cognizance of an equitable title. But this principle, which was once universal, has, in process of time, in personal actions, come to be subject to many exceptions. Thus, in contracts not under seal, it has been held, for two centuries or more, that any one for zi'iwse benefit the contract was made may sue upon it; that is, if 1. 4 Min. Inst., pp. 450-451. 4 50 PARTIES TO ACTIONS 47 A promises Z, not under seal, but for valuable consideration, to pay B $1,000, B may in his own name maintain an action against A. 2 But where the promise is under the seal of the promisor, the common law never relaxed its requirement that the action should be brought by the promisee alone, or his personal representative, and not by any one for whose benefit, ever so expressly, the prom- ise was made; a rule which is particularly inflexible where the deed is an indenture or inter paries. Thus, if in a deed indented, 'between A of the first part and Z of the second part/ there be contained a stipulation that Z should pay C $1,000, C can main- tain no action for the money ; and even if it be a deed poll, whereby Z stipulates with A that he will pay C $1,000, the better opinion is that at common law no action is maintainable by C. 3 Here, however, our statute law has intervened, and permits the beneficiary to assert his merely equitable title in his own name, in a Court of Law, in both of the cases last stated. 'If a covenant or promise,' says the statute, 'be made for the sole benefit of a person with whom it is not made, or with whom it is jointly made with others, such person may maintain in his own name any action thereon which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise.' " 4 Whatever may have been the rule at the ancient common law with reference to a deed poll where Z stipulates with A that he will pay C $1,000, it has been held several times in Virginia that even at common law and independently of statute, the beneficiary C could maintain an action in his own name. It is said that such beneficiaries not described as parties in deeds poll, or even -men- tioned as having a beneficial interest therein, may sue thereon in their own names if it manifestly appears that the covenants were made for their benefit, but the beneficiary must be pointed out and designated in the instrument, though it is not necessary that his name should in terms be used. 4a 2. 1 Chit. PI. 4, 5. 3. 1 Chit. PI. 3, 4; Ross v. Milne et ux, 12 Leigh 204, 218, et seq. 4. Code, 2415; 3 Rob. Pr. (2nd ed.), 14, et seq.; Jones v. Thomas, 21 Gratt. 101-102; Clemmitt v. N. Y. Ins. Co., 76 Va. 355. 4a. Jones v. Thomas, 21 Gratt. 96, 100; Newberry Land Co. v. Newberry, 95 Va. 119, 27 S. E. 899, and cases cited. 48 JOINT AND SEVERAL CONTRACTS 51 A different rule, however, prevails as to a deed inter paries. Such a deed was only available between the parties to it and their privies, and a third person (beneficiary), though expressly men- tioned in the deed, if not a party to it, could maintain no action upon it in his own name. The reason is set forth by Judge Stap- les in Jones v. Thomas, supra. It is said that the Virginia stat- ute "does not enable one who is not a party to a deed to main- tain an action thereon unless he is plainly designated by the m- strument as the beneficiary and the covenant or promise is made for his sole benefit." 5 It would seem from these cases that if the beneficiary in a deed poll was named in the deed or definitely pointed out, he might maintain an action thereon in his own name, but under no other conditions, and the effect of the Virginia stat- ute above quoted seems to be to put deeds inter partes on the same footing with deeds poll in this respect, but does not seem to have extended the common-law rule any further. In discussing the subject of parties to actions, it must be borne in mind that, no matter what the form of action may be, whether in tort or contract, all proceedings in court must be by and against living parties. This rule applies to appellate courts as well as to trial courts. Usually, if there are more parties than one on a side, and one dies, the action survives for or against the living party. If there is only one party on a side, and the action is one which survives, it may be revived by or against the representative of the decedent. If a sole party dies before action brought, the action should be brought by or against his representative. There can be no such thing as an action by or against one who is dead. 5 * 48. Joint and several contracts. A contract may be joint only, as where all of the parties to the contract jointly promise to do a particular thing; or it may be joint and several, as where by the terms of the contract the parties jointly and severally promised to do a particular thing; and it has been held that a contract which begins "I promise to pay" signed by more than one is joint and several. 6 If the con- 5. Newberry Land Co. v. Newberry, 95 Va. 119, 27 S. E. 899. 5a. 4 Minor's Inst. 975, 977; Booth v. Dotson, 93 Va. 233, 24 S. E. 935. 6. Holman v. Gilliam, 6 Rand. 39. 52 PARTIES TO ACTIONS 48 tract be joint and several, a single action may be brought against all or several actions may be brought against each one, but gen- erally there can be no action against an intermediate number if there be more than two. An exception, however, has been made to this rule by the statute in Virginia as to negotiable instruments. The statute provides that an action of debt or assumpsit may be maintained and judgment given jointly against all liable, whether drawers, endorsers or acceptors, or against any one, or any intermediate number of them. 7 Further- more, 68 of the Negotiable Instruments Act declares that joint payees or joint endorsees who endorse are deemed to endorse jointly and severally. 8 If the obligation is joint only, and one of the parties dies, the survivor only was liable at common law and the estate of the decedent was discharged except in equity. But by statute in Virginia this has been changed so that the personal representative of the decedent may still be sued in an action at law, but the action would be a separate and inde- pendent action against the personal representative. 9 A further exception to the general rule that joint contractors can only be sued jointly has been made by statute in Virginia in a proceed- ing by motion, instead of a regular action. If the proceeding be by motion for a judgment under 3211 of the Code, although the contract be joint only, the proceeding may be against all or any one or any intermediate number, and also against the per- sonal representative of such as .are dead. 10 At common law, a judgment against one of several joint 7. Code, 2853. 8. Co.de, 2841a. 9. Code, 2855. 10. Section 3212 of the Code is as follows: "A person entitled to obtain judgment for money on motion, may, as to* any, or the per- sonal representatives of any person liable for such money, move severally against each, or jointly against all, or jointly against any intermediate number; and when notice of his motion is not served on all of those to whom it is directed, judgment may nevertheless be given against so many of those liable as shall appear to have been served with the notice: Provided, that judgment against such personal representatives shall, in all cases, be several. Such mo- tio.ns may be made from time to time until there is judgment against every person liable, or his personal representative." 48 JOINT AND SEVERAL CONTRACTS 53 contractors was a bar to any action against the others, but this has been materially changed by statute in Virginia: (1) By 3212, cited in the margin, where the proceeding is by motion for judgment. The statute permits the proceeding to be against each, all, or any intermediate number, even on a joint contract, and provides that the motions may be made from time to time until there is judgment against every person liable or his per- sonal representative; (2) where the action is brought on nego- tiable paper under 2853, allowing an action against all, any one, or any intermediate number; (3) under 3396 quoted in the margin, where the plaintiff is expressly allowed to proceed to judgment as to defendants served, and either to discontinue as to others, or proceed to judgment from time to time against them as the process is served. 11 In Judge Burks' address before the Bar Association in July, 1891, it is said: "It had been de- clared by the Court of Appeals that, in an action ex contractu against several defendants, if the action was discontinued as to one on whom the process was not served, and judgment ren- dered against the other on whom it was served, the judgment was a bar to a subsequent action for the same cause against the defendant as to whom the former action had been discon- tinued. 12 The Code provides that the discontinuance shall not operate as such a bar." 13 In Corbin v. Bank, 87 Va. 661, 13. S. E. 98, it is said that the discontinuance provided for by this section is a discontinuance as against one or more defend- ants upon whom process had not been served, and there is a plain intimation that the common-law rule still prevails if the discontinuance is after service of process. The point has not been directly decided. In Cahoon v. McCulloch, 92 Va. 177, 23 S. 11. Section 3396 of the Code is as follows: "Where, in any action against two or more defendants, the process is served on part of them, the plaintiff may proceed to judgment as to any so served, and either discontinue it as to the others, or from time to time, as the process is served as to such others, proceed to judgment as to them until judgments be obtained against all. Such discontinuance of the action as to any defendant shall not operate as a bar of any subsequent action which may be brought against him for the same cause." 12. Beazly v. Sims, 81 Va. 644. 13. Code, 3396. 54 PARTIES TO ACTIONS 48 E. 225, the proceeding was by motion under 3212. This sec- tion makes no mention of a dismissal after service, but it was held that such dismissal did not work a discontinuance and although reference is made in the latter case to important changes made by 3395 and 3396 of the Code, the decision is rested on the language of 3212. Under the very broad language of 3395 and 3396, it is doubtful at least whether a dismissal after service would operate a discontinuance of a regular action any more than it would of a motion under 3212, though it is not to be forgotten that 3212 gives an action against all, or any one, or any intermediate number on a joint contract. In the last mentioned case, Riley, Judge, said : "The statute declares in effect that there shall be no merger of the original cause of action until there has been a judgment against every person liable to a recovery on it." If the contract be both joint and sev- eral, of course a judgment against one is no bar to an action against any other, because the judgment is in strict accord with the contract of the parties ; but if there has been judgment against one, there cannot thereafter be another judgment against all, nor if there has been judgment against all can there thereafter be judg- ment against any one separately. 14 Subject to the qualifications above stated, parties jointly bound by contract can only be sued jointly, and it is a valid ground of objection if any of them are omitted. In the absence of statute, the mere fact that a claim is barred by the act of limitations as to one of several joint con- tractors, or that he has a personal defence, or that he is not a resident of the state, is generally no reason why he should not be joined. He may be willing to waive his personal defence. It has been held in Virginia that the failure to join an infant joint con- tractor as defendant is error. 15 But it is provided by statute that no plea in abatement for non-joinder of a defendant shall be allowed unless it be stated in the plea that he is a resident of this state and the place of his residence be stated with con- venient certainty in the affidavit verifying the plea. 15a 14. See Graves' Notes on Pleading, 7-14, as to all matters em- braced in this section. 15. Walmsley v. Lindenberger, 2 Rand. 478 15a. Code, 3261. 49 PROPER PARTIES TO ACTIONS EX DEUCTO GENERALLY 55 49. Proper parties to actions ex delicto generally. Professor Minor makes the following statement : 16 "In actions c.\' delicto the same general principle prevails as in actions ex contracts, namely, that the action must in general be brought in the name of the person whose legal right has been affected, and who was legally interested in the property to which the tort relates at the time the tort was committed. 17 Thus a cestui que trust, or other person having only an equitable interest, can- not, for the most part, sue in the courts of common law, either his trustee or a third person, unless in cases where the action is against a mere wrongdoer, and for an injury to the actual possession of the cestui que trust. 18 Indeed, wherever one is in possession, notwithstanding he may have only an equitable title, when that possession is invaded, as it is by a trespass upon the land, a legal wrong may fairly be considered as having been committed against him, so as to qualify him to sue there- for in a court of law. 19 "The proper defendants in actions ex delicto are those in general who committed the tort, whether by their own hands or by the hands of others. Even an infant may be made respon- sible for torts, as corporations may also be. 20 "\Yhen the defendant has occasion to invoke his own title to the subject, as a defence to the alleged tort, the title must in general be as much a legal title as if he was founding an ac- tion upon it, and for the same reason, that is to say, that as a general rule, a court of law will not take cognizance of a title merely equitable. Thus, if the defendant, in an action of eject- ment, relies upon his own better title, it must usually be a legal title, and if not, his defence, if it is available anywhere, must be made in a court of equity." Torts are in their nature joint and several, and it is so universally conceded that the injured party has the right to sue all, or any one, or any intermediate number of the tortfeasors, that it is not deemed necessary to cite authorities to sustain 16. 4 Min. Inst. 452. 17. 1 Chit. PI. 69, et seq. 18. 1 Chit. PI. 69. 19. 1 Chit. PI. 202, 203. 20. 1 Chit. PI. 87. ct seq. 56 PARTIES TO ACTIONS 50 the proposition. In England, a judgment against one tortfeasor, although not satisfied, merges the entire cause of action against the others, 21 and Virginia, following an early case, has adopted the same rule. 22 But the rule that a judgment without satisfac- tion merges the cause of action as against other wrongdoers is repudiated well nigh universally in the United States. In nearly, or quite all of the states, it is held that judgment against one must be satisfied in order to bar an action against the others. 2 '"' 50. Assignees of contracts. At common law the assignee of a contract could not sue thereon in his own name. The doctrine that, in the absence of statute, an assignee of a contract cannot sue thereon in his own name is fully sustained by Glenn v. Marbury, 145 U. S. 499, 507, holding that where an insolvent corporation had as- signed all of its assets to a trustee, an action to collect unpaid calls on stock must be brought in the name of the company, and that the trustee cannot sue in his own name. The assign- ment does not pass the legal title. In order to sue at law, he is required to sue in the name of the assignor, but this has been changed by statute in Virginia, which allows the action to be brought by the assignee or beneficial owner of any bond, note, writing, or other chose in action not negotiable, in his own name. 24 The rule, of course, was and is different as to negotiable paper, 21. Brinsmead v. Harrison, L. R. 7 C. P. 547. 22. Petticolas v. City of Richmond, 95 Va. 456, 28 S. E. 566. 23. Lovejoy v. Murray, 3 Wall. 10; Griffin v. McClung, 5 W. Va. 131; Miller v. Hyde, 161 Mass. 473, 42 Am. St. Rep. 424, and note. 24. Section 2860 of the Code is as follows: "The assignee or beneficial owner of any bond, note, writing or other chose in ac- tion, not negotiable, may maintain thereon in his own name any action which the original obligee, payee, or contracting party might have brought, but shall allow all just discounts, not only against himself, but against such obligee, payee, or contracting party, be- fore the defendant had notice of the assignment or transfer by such obligee, payee, or contracting party, and shall also allow all such discounts against any intermediate assignor or transferrcr, the right to which was acquired on the faith of the assignment or transfer to him and before the defendant had notice of the assignment or transfer by such assignor or transferrer to another." 50 ASSIGNEES OF CONTRACTS 57 for the endorsement of such paper, whether made before or after maturity, carries the legal title, and the holder of such paper has no right to sue thereon in the name of the payee who has endorsed the paper, or of any prior endorser. The holder of such paper has both the legal and equitable title and sues in his own name. As to common-law paper, the assignee is allowed by statute to assert his equitable title in his own name at law. But the statute expressly provides that he shall allow all just discounts, not only against himself, but against the obligee, payee or contracting party before the defendant had notice of the assignment. It will be observed that the statute extends this right not only to the assignee, but to the beneficial owner of any chose in action. It might be doubted whether an open account was in its nature such a paper as is the subject of an assignment, but it has been held that it is. 25 However this may be, the language of the statute is broad enough to cover the case of the beneficial owner of the account, and he may sue thereon in his own name, though not a formal assignee. The action may be brought at the option of the assignee in his own name, or in that of the assignor. If brought in the name of the assignee, then the declaration must set forth the assign- ment so as to trace title in the plaintiff. If brought in the name of the assignor, the beneficiary need not be mentioned at all, but the action may be brought in the name of the as- signor for the benefit of the assignee; or if originally brought in the name of the assignor, the fact that there is a beneficiary may, pending the action or afterwards, be endorsed on the writ or declaration. The declaration may be amended and the name of the beneficial plaintiff inserted, even after verdict. 26 If in any way it is made to appear that there is a beneficiary other than the plaintiff on the record, and there is judgment for the defendant, judgment for costs will be against the beneficial plain- tiff, and not the nominal plaintiff. The assignment need not be in writing even though the obligation assigned be under seal, but if the action be by an assignee against the assignor, the assignment must be supported by a valuable consideration. If 25. Porter v. Young, 85 Va. 49, 6 S. E. 803. 26. Kain v. Angle, 111 Va. 415, 69 S. E. 355. 58 PARTIES TO ACTIONS 51 the action be brought in the name of the assignor, upon proper indemnity to him for costs, he will not be allowed in any way to obstruct or interfere with the prosecution of the action. While the owner of a non negotiable chose in action is per- mitted to assign it, the assignment must be of the whole debt. He cannot split up his demand and assign a portion of it to one person and another portion to another so as to enable them to maintain separate actions for their different portions. If partial assignments have been made, the action must be in the name of the assignor. A single cause of action arising on an entire contract cannot be divided by partial assignments so as to en- able each assignee to sue for the part assigned. 28 Although the Virginia statute has enlarged the rule of the common law so as to make a chose in action assignable, and authorized the assignee to maintain in his own name any ac- tion which the original obligee might have brought, it does not create any new cause of action. Hence, the assignment of a chose in action does not invest the assignee, as an incident, with a right against a third party to recover damages for an injury which occurred prior to the assignment. A prior accrued right to sue a sheriff and his sureties for a failure to return a delivery b.ond and thereby create a lien on the land of the sureties does not pass as an incident to the assignment of the original judgment. 29 This rule, however, is qualified to the extent that, if a debtor has transferred his property without consideration to the prejudice of his creditors who have the right to avoid the conveyance, the right to avoid the conveyance passes with the assignment by the creditor to the assignee of the debt. 30 51. Assignees of rights of actions for torts. If the tort is purely personal, it is not the subject of assign- ment. The maxim, actio personalis moritur cum persona applies. Whether or not the tort is purely personal will be determined by the court, looking to the substance of the action rather than to its form; and, although the tort may arise out of con- 28. Phillips v. Portsmouth, 112 Va. , 70 S. E. 502. 29. Commonwealth v. Wampler, 104 Va. 337, 51 S. E. 737. 30. Nat. Valley Bank v. Hancock, 100 Va. 101, 40 S. E. 611. 52 JOINT TORTFEASORS 59 tract, and the action be in form as for breach of contract, as for example a suit to recover damages for a breach of con- tract of marriage, or against a carrier for failure to safely carry a passenger, the action is in substance purely personal, and dies with the person,* and is not subject to assignment. 31 Nor will the result be different simply because the plaintiff may have sustained special damages as an incident of a personal injury, as, for instance, a claim for medical services, as incident to an action to recover damages for a personal injury. 32 Only those causes of action are assignable which upon death would survive to the personal representative of the party sustaining the damage, and only those actions survive which consist of injuries to property, real and personal, or grow out of breach of contract. 33 52. Joint tortfeasors. It has already been pointed out that in case of joint wrongs, the plaintiff may at his election sue all, or any one, or any inter- mediate number, but in order to sue all there must have been a joint wrong. In respect to negligent injuries, there is great difference of opinion as to what constitutes joint liability, and it is said that no comprehensive general rule can be formulated which will harmonize all the authorities. 34 It has been held that when the negligence of two or more persons produces a single, indivisible injury, they are joint tortfeasors, although such persons act independently of one another ; and further that where the negligence of two or more persons concurs in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert of action. 35 But with respect to nuisances, 31. Birmingham r. C. & O. R. Co., 98 Va. 548, 37 S. E. 17; Grubb v. Suit, 32 Gratt. 203. 32. Birmingham v. C. & O. R. Co., supra. 33. Graves' Notes on PI. 16, 17, and cases cited; N. & W. R. Co. v. Read, 87 Va. 185, 12 S. E. 395. 34. Cooley on Torts (Students' Ed.), 37. 35. Walton v. Miller, 109 Va. 210, 63 S. E. 458. As to joint lia- bility of carriers of goods whose negligent acts are not simultane- ous, but successive, see Norfolk W. R. Co. v. Crull, 112 Va. , 70 S. E. 521. 60 PARTIES TO ACTIONS JZ "where different proprietors on a stream, each acting independ- ently and for his own purposes, conduct filth or refuse into the stream from their respective estates they are held not to be jointly liable." 36 Whether a master and servant can be jointly sued for a negligent injury inflicted by the servant, when the liability of the master is by relation only, has been seriously questioned, and the weight of authority seems to be in favor of the joint lia- bility, 37 though it is stated in 26 Cyc. 1545, that, as a general rule, there is no joint liability when the master is liable solely on the doctrine of respondeat superior. Certainly, on principle, the statement in Cyc. would seem to be the right doctrine, and the reasons assigned for the joint liability are not at all convincing. 38 In Virginia the joint liability has been upheld though the subject was not discussed. 39 If the plaintiff elects to sue only one of the joint tortfeasors, and there is judgment against the plain- tiff, this is no bar to an action against the others where the defence was personal to that defendant, but if the defence was equally applicable to all the joint tortfeasors, as, for instance, contributory negligence of the plaintiff, it would seem that a judgment in favor of one joint tortfeasor would be a bar to an action against another, 40 but this question has been left open in Virginia. 41 If, however, the plaintiff elects to sue all in a single action, and all are found guilty, the verdict must be joint against all, and the assessment of damages must be the same as to all of the defendants. The jury have no power to appor- tion the damages among them. 42 In a joint action of tort against master and servant, after a verdict against the master and in favor of the servant has been set aside, although the 36. Cooley on Torts (Students' Ed.), 38; Pulaski Coal Co. v. Gibboney, 110 Va. 444, 66 S. E. 73. 37. Cooley on Torts (Students' Ed.), 39, and cases cited; Huff- cut on Agency, 214 and cases cited. 38. Schumpert v. So. Ry. Co., 65 S. C. 332, 43 S. E. 813, 95 Am. St. Rep. 802. 39. Singer Mfg. Co. v. Bryant, 105 Va. 403, 54 S. E. 320; Ivanhoe Furnace Corp. v. Crowder, 110 Va. 387, 66 S. E. 63. 40. 23 Cyc. 1213. 41. Staunton Tel. Co. v. Buchanan, 108 Va. 810, 814, 62 S. E. 928. 42. Cooley on Torts (Students' Ed.), 41; Crawford v. Morris, 5 Gratt. 90. 53 ACTIONS BY AND AGAINST COURT RECEIVERS 61 evidence disclosed no negligence on the part of the master,, ex- cept that imputed on account of the negligence of the servant, it is entirely competent for the plaintiff to dismiss the action as to the servant and proceed with the second trial against the master only, as he might in the first instance have sued either or both of them. 42a 53. Actions by and against court receivers. In the absence of statute, a receiver has no authority except that conferred by the order of his appointment. He is a mere arm of the court, and has no right to institute an action without authority from the court of his appointment. For reasons of public policy, the court determines for itself what litigation it will engage in, and does not trust to the judgment of the receiver as to the conservation or preservation of the assets under its control. So, likewise, being an officer of the court, no one has a right to sue him except by leave of the court of his appointment, and" to bring such suit would be a contempt of the appointing court. The right either to sue or be sued must appear in the pleadings. This rule, however, with refer- ence to suits against receivers, has been modified by statute in Virginia, and also by Act of Congress. 43 It will be observed 42a. Ivanhoe Furnace Co. v. Crowder, supra. 43. Section 3415a of the Code is as follows: "Any receiver of any corporation appointed by the courts of this commonwealth may be sued in respect of any act or transaction of his in carrying on the business connected with such corporation without the previous leave of the court in which such receiver was appointed: provided, the institution or pendency of such suit shall not interfere with or delay a decree of sale for foreclosure of any mortgage upon the property of said corporation, and said claim shall not be a lien upon the property or funds under control of the court until filed in said court under the second section. "(2) No execution shall issue upon such judgment, but upon the filing of a certified copy thereof in the cause in which the receiver or receivers were appbinted the court shall direct the payment of such judgment in the same manner as if the claims upon which the judgment is based had been proved and allowed in said cause. "(3) Process or notice may be served upon such receiver or re- ceivers or their agents in the same manner as is provided by sec- 62 PARTIES TO ACTIONS 53 upon reading these statutes, which are quoted in the margin, that the State statute applies only to receivers of corporations, whereas the Federal statute applies to "every receiver or manager of any property, appointed by any court of the United States." It will be further observed that the basis of the action under either statue is "any act or transaction of his in carrying on the business." Hence the act does not apply to acts or omissions of the principal before the appointment of the receiver. The receivership, however, is an entirety and it has been held that the act is broad enough to cover an action against a receiver in respect to an act or transaction of his predecessor in office. It is said that "actions against the receiver are in law actions against the receivership or the funds in the hands of the re- ceiver, and his contracts, misfeasances, negligence and liabilities are official and not personal, and judgment against him as re- ceiver are payable only from the funds in his hands." 44 While there has been some difference of opinion as to what tion seven of chapter three hundred and ninety-six of acts of as- sembly eighteen hundred and eighty-five and eighty-six for serv- ing process or notice upon a trustee f or trustees or their agents where a corporation is operated by a trustee or trustees or their agents. "(4) All warrants before a justice of the peace under this act shall be tried only after ten days' notice. "(5) All suits now pending before any court in this common- wealth upon petition against any receiver or receivers shall upon the motion of the petitioner be removed to the county or corpora- tion where the cause of action arose, the issue to be made upon the petition and answer, or the petitioner shall be allowed if he so elect to dismiss his petition and institute his suit or action as is herein provided if his said action shall not have been barred by the statute of limitations before the filing of said petition." 25 U. S. Stat. 436; 1 Sup. Rev. Stat. U. S. 614, 3, provides that: "Every receiver or manager of any property, appointed by any court of the United States, may be sued in respect of any act or trans- action of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or man- ager was appointed. But such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice." 44. MacNulta v. Lochridge, 141 U. S. 327. ' 54 PARTNERSHIP 63 is the effect of the judgment against the receiver when ren- dered, it would seem that the judgment is conclusive as to the existence and amount of the claim, but that the time and man- ner of its payment is subject to the control of the court ap- pointing the receiver. 45 Although there is some conflict among the state courts on the subject, it has been held by the Supreme Court of the United States that a receiver is an officer of the court which appoints him, and, in the absence of some conveyance or statute vesting the property of the debtor in him, he cannot sue in the courts of a foreign jurisdiction upon the order of the court appointing him, to recover the property of the debtor. His right to sue will not be recognized by comity; and if he has no right to sue, jurisdiction cannot be acquired by authorizing the receiver to sue in the name of the creditor, if it appears that the prop- erty or its proceeds would be turned over to the receiver to be by him administered under the order of the court appoint- ing him. 46 The proper method of procedure in such case is to have an ancillary receiver appointed in the state in which the action is to be brought and let the action be brought by him. 54. Partnership. In partnership matters, the partners, in the absence of statute, must sue and be sued in the partnership name, giving the Christian and surnames of the individual partners composing the firm, for example, John Smith, Henry Jones and William Brown, partners, doing business under the style and firm of Smith & Company. If the firm has been dissolved, the same form should be adopted, except that they would be described as late partners, doing business, etc. Dormant and special partners need not be joined as plaintiffs, but they are nevertheless partners, and may be joined. In other words, they are proper parties, but not necessary parties. 47 It is not necessary to join them 45. Dillingham v. Hawk (C. C. A.), 60 Fed. 494; St. Louis R. Co. v. Holbrook (C. C. A.), 73 Fed. 112; Cf. Tex., etc., R. Co. v. Johnson, 151 U. S. 81; contra, Mo. Pac. R. Co. v. Tex. Pac. R. Co., 41 Fed. 311. 46. Great Western Mining Co. v. Harris, 198 U. S. 561. 47. 15 Encl. PI. & Pr. 856, and cases cited. 64 PARTIES TO ACTIONS ' 54 as defendants where it is sought only to subject the partnership assets or obtain judgment against the active partners, but if any judgment is sought against them personally, they must be made parties and served with process. This is specially pro- vided for by statute in Virginia so far as affects special part- ners. 48 If one member of the firm dies after a cause of action has arisen, but before the action is brought, the right of action generally survives for and against the survivors, and so on until the last survivor, and, in the event of his death, to his personal representative. The form of the writ and declaration where one partner has died, would be as follows : John Smith and Henry Jones, survivors of themselves, and William Brown, late part- ners, doing business under the style and firm of Smith & Com- pany. If there has been any change in the firm after a right of action has accrued, either by the retiring of a partner, or the addition of a new partner, the action should be brought in the name of the firm as it existed at the time the right of action accrued. When a partnership has no right to sue in the firm name, the objection on that account comes too late after judg- ment. The judgment is believed to be valid, certainly where there has been appearance to the merits. In no event, can the judgment be collaterally assailed. If the defendants are sued in the firm name only, it is doubtful what the effect would be. If there was appearance, and no objection, it would probably bind the firm assets as between the plaintiff and the defendants. 49 If an action is brought by a firm on a contract made with it, but the plaintiff omits to state the name of one of the partners, the objection is fatal. If the omission appears on the face of the declaration, advantage may be taken of it on a demurrer, 48. Section 2876 of the Code is as follows: "All suits respecting the business of any partnership formed or renewed, as hereinbe- fore prescribed, shall be prosecuted by and against the general part- ners only, except in those cases wherein it is provided in this chap- ter that a special partner shall be liable as a general partner, in which cases all partners so liable may join or be joined in such suits. A special partner shall also be liable to and may be sued by the firm for debts contracted with it, in the same manner as if he were not a partner." 49. 15 Encl. PI. & Pr. 956, 7, and cases cited. 55 EXECUTORS AND ADMINISTRATORS 65 or motion in arrest of judgment, or writ of error. If it does not so appear, it can be taken advantage of by a plea in abatement, or a non-suit at the trial. If the omission is the name of a defendant partner on a contract made by the firm, and it is not apparent on the face of the declaration, the objec- tion can be taken by a plea in abatement only. 50 One partner cannot sue another, or others, as such, at law, but will be compelled to go into equity. 51 One partner after dissolution cannot employ an attorney to represent the firm and thus bind the absent partners; and a judgment rendered upon such appearance against a non-resident who is not served with process does not bind him, although other members of the firm may be bound. 52 By statute in West Vir- ginia, a partnership may sue in the firm name where the action is before a justice of the peace, but the names of the individuals composing such firm shall be set forth in the summons. 53 55. Executors and administrators. Executors and administrators sue and are sued in their repre- sentative capacity, on contracts made with or by the decedent; and on contracts with an executor or administrator himself, he may sue either representatively or individually. Co-executors 50. Graves' Notes on PI., 6; Stephen on PI., 33, 35. The rea- son of the rule is that each partner is liable for the whole debt and it is no hardship upon him to make him pay the whole, as he must have credit for it in his account with the partnership, and if he knows that another is bound to .share this liability with him he should make known this fact at an early stage of the pleadings so that the plaintiff may amend and bring him, in, and if he fails to do so he will be deemed to have waived the right. "He ought not to be permitted to lie by and put the plaintiff to the delay and expense of a trial, and then set up a plea not founded in the merits of the cause, but on the forms of the proceeding." Lord Mansfield in Rice v. Shute, Burr. 2611, 1 Smith's L. Cases (8th ed.) 1405. 51. Aylett v. Walker, 92 Va. 540, 24 S. E. 226; Strother v. Strother, 106 Va. 420, 56 S. E. 170; Summerson v. Donovan, 100 Va. 657, 66 S. E. 822. 52. Hall v. Lanning, 91 U. S. 160; Bowler v. Huston,' 30 Gratt. 266. 53. Code, W. Va. (1906), 1976. 5 66 PARTIES TO ACTIONS 56-58 or administrators must all join or be joined on contracts with the decedent, but upon the death of one, the action survives to the other or others. 54 In the absence of statute, foreign ex- ecutors and administrators cannot, as a rule, sue in another jurisdiction, and this is true even in the federal courts having jurisdiction over two states. If the administration is granted in one state, the representative cannot sue in another state with- out taking out ancillary letters. 55 In a few jurisdictions, such suits are allowed by comity. The objection, however, is not to the jurisdiction of the court, but to the disability of the plaintiff to sue, and if relied upon, must be taken at the proper time and in the proper manner, otherwise it will, be deemed to have been waived; and it has been held that it comes too late after a plea to the merits, and, of course after verdict. In some jurisdictions, the action will be upheld if ancillary letters are taken out pending the action, in others not. 56 56. Corporations. Corporations sue and are sued in their corporate names. 57. Infants. Infants sue by next friend. They are sued in their proper names, but a guardian ad litem is appointed to defend them. In Virginia, the guardian ad litem must, as a rule, be an attorney at law. 57 In most states, the statutes require process to be served upon the infant personally, but there is no such statute in Virginia. 58. Insane persons. Actions by an insane person before adjudication should be brought in his name suing by his next friend, after adjudication generally by his committee. Actions against an insane person 54. 8 Encl. PI. & Pr. 658; Lawson .v. Lawson, 16 Gratt. 230. 55. Fugate v. Moore, 86 Va. 1045, 11 S. E. 1063; Johnson v. Pow- ers, 139 U. S. 156; 8 Encl. PI. & Pr. 700. 56. Lusk v. Kimball (C. C. A. 4th Cir.), 4 Va. Law Reg. 731, 91 Fed. 845; Dearborn v. Mathes, 128 Mass. 194; 13 Am. & Eng. Encl. Law (2nd ed.) 948; 8 Encl. PI. & Pr. 703. 57. Code, 3255; 10 Encl. PI. & Pr. 600-2. 59 MARRIED WOMEN 67 when no 'committee has been appointed should be against him personally, and will be defended by a guardian ad lit em appointed for that purpose by the court. 58 Usually after the appointment of a committee, actions affecting the estate of the insane person are brought by or against the committee. In a suit to subject the lands of an insane person to the payment of his debts, he is not a necessary party when he has a committee clothed with absolute power over him and his estate, together with authority to sue and be sued with respect to such estate. In a proceeding affecting the property rights of an insane person, it is the duty of the court, if he have no committee, to appoint a guardian ad litem to represent and protect his interests, but if he has a committee, the appointment of a guardian ad litem is wholly unnecessary, except where there is -a conflict of interest between the committee and the insane person. 59 It may be well to note in this connection that the right of action against the estate of an insane person for past expenses incurred in supporting him in one of the state hospitals exists only by virtue of the statute imposing a personal liability for his support. At common law no such right existed, in the absence of express contract. 60 No action lies against the State, or against one of the State hospitals for the insane, for an injury to or the death of an insane inmate oc- casioned by the negligence or misconduct of those in charge of the hospital, or their agents or employees. 60 * 1 59. Married women. Married women sue and are sued in Virginia like men. If a next friend is added, his name may be simply stricken out, as it is her suit. 61 The husband is not responsible for any contract, lia- bility of tort of his wife, whether the contract or liability was in- curred, or the tort was committed, before or after marriage. A judgment against a married woman, whether in tort or contract, 58. Code, 3255; 10 Encl. PI. & Pr. 1225. 59. Howard v. Landsberg, 108 Va. 161, 60 S. E. 769. 60. Brown v. Western State Hospital, 110 Va. 321, 66 S. E. 48. 60a. Maia v. Eastern State Hospital, 97 Va. 507, 34 S. E. 617. 61. Richmond Ry. Co. v. Bowles, 92 Va. 738, 24 S. E. 388. 68 PARTIES TO ACTIONS 60-61 binds her personally. 62 It has been said that a marrkd woman when properly sued alone defends in proper person and not b> attorney, 63 but this can hardly be true under the very comprehen- sive language of the present statute in Virginia. There is no longer any reason why she may not appear by attorney. Notwith- standing the very comprehensive provisions of the present mar- ried women's law in Virginia, the husband is still entitled to the services of his wife and in an action by her to recover damages for injuries inflicted upon her, the diminution of her ability to perform her ordinary household duties is a damage to the hus- band and not the wife. A personal injury to the wife may give rise to two causes of action ; one in favor of the husband for the loss of her services and the other in favor of the wife for the personal injury and suffering occasioned her. 64 60. Unincorporated associations. These have no legal entity and at law are treated in the nature of partnerships, and all, however numerous, must sue or be sued. There can be no action against the association as such. 65 In some instances, some members of such an association may in equity sue on behalf of themselves and others constituting the as- sociation. 66 61. Death by wrongful act. Whether a non-resident alien is entitled to the benefit of a statute giving a right of action for wrongful death is a ques- tion upon which courts are divided. The decided weight of au- thority seems to allow the action, but it has been denied in Penn- sylvania and Wisconsin and probably other States. It is allowed in Virginia. 67 Where the action is brought in the State in which 62. Code, 2286a; 6 Va. Law Reg. 52, 485; Young v. Hart, 101 Va. 480, 44 S. E. 703. 63. 4 Min. Inst. 764. 64. Richmond Ry. Co. v. Bowles, supra; Norfolk Ry. & L. Co. v. Williar, 104 Va. 679, 52 S. E. 380. 65. 22 Encl. PI. & Pr. 330. 66. Perkins v. Seigfried, 97 Va. 444, 34 S. E. 64. 67. Low Moor Iron Co. v. La Bianca, 106 Va. 83, 55 S. E. 532; Mulhall v. Fallen, 176 Mass. 266, 54 L. R. A. 934, 79 Am. St. 309; Deni v. Penn. R. Co., 181 Pa. 525, 59 Am. St. 676; McMillan v. Spi- der Lake Co., 115 Wis. 332, 60 L. R. A. 589, 95 Am. St. 947. 61 DEATH BY WRONGFUL ACT 69 the injury occurs, it is generally fairly plain who should be the plaintiff, but sometimes redress is sought in another jurisdiction. The first question then presented is, whether the action can be maintained in the foreign jurisdiction, although the defendant re- sides there. Upon this question there has been serious conflict of authority. But it is generally held that, where the statutes of the two States are substantially similar, the action may be maintained in any jurisdiction where service can be had on the defendant. 68 The law of the place where the injury is inflicted should, on principle, determine, (1) in whose name the action should be brought; (2) the time in which it should be brought; (3) who are the beneficiaries; (4) the measure of re- covery; (5) the distribution of the damages; and (6) questions touching contributory negligence, fellow-servants and the like, though upon many of these questions there is serious conflict. 69 In some jurisdictions it is said that where the personal repre- sentative is authorized to sue only for the benefit of the widow, children, or next of kin, the existence of such beneficiaries must be alleged. The Virginia statute* gives the action for the benefit of certain near relatives, but provides, if there are none, that the recovery shall be for the benefit of the estate of the deceased. 70 Under this statute it has been held that the names of the bene- ficiaries need not be stated, because the defendant has no interest in the manner of the distribution of the damages, nor is it under the control of the plaintiff. 71 Neither is it permissible to show the number and condition of the family dependent upon the deceased for support, 72 nor the value of decedent's estate, as it is said that such evidence is calculated to excite the sympathy of the jury. 73 68. Nelson v. C. & O. R. Co., 88 Va. 971, 14 S. E. 838; 8 Am. & Eng. Encl. Law 878, and cases cited; 56 L. R. A. 193 and note; 3 Va. Law Reg. 607. 69. 8 Am. & Eng. Encl. Law (2nd ed.) 882, et seq; Boston R. Co. v. McDuffey, 79 Fed. Rep. 934; Dennick v. Central R. Co., 103 U. S. 11; Nelson v. C. & O. R. Co., supra; Dowell v. Cox, 108 Va. 460, 62 S. E. 272. 70. Code, 2904. 71. Matthews v. Warner, 29 Gratt. 572; Baltimore & O. R. Co. v. Wightman, 29 Gratt. 431. 72. Southern Ry. Co. v. Simmons, 105 Va. 651, 55 S. E. 459. 73. Ches. & O. R. Co. v. Ghee, 110 Va. 527, 66 S. E. 826. 70 PARTIES TO ACTIONS 62 Nor is it permissible to show in mitigation of damages that the beneficiaries have received life or accident insurance in conse- quence of the death of the deceased. 74 Nor, on the other hand, it is permissible, in an action by an employee against the master to recover for negligent injury, for the plaintiff to show the fact that the master is insured against accidents to his employees. It is said that such evidence is irrelevant to the issue. 75 Attention is called in this connection to the State Employers' Liability Law, 76 which is applicable only to employees of railroads and not to street railways, 77 and which abolishes the doctrine of assumption of risk as to appliances, etc., but not as to the mas- ter's methods of doing business, 78 and which for the most part also abolishes the fellow-servant doctrine. Attention is also called to the Federal Employers' Liability Act, approved April 22, 1908, which is applicable only to employees of railroad companies en- gaged in interstate commerce, or operating in certain territory within the exclusive jurisdiction of the United States. The act must be consulted to ascertain its provisions, but it may be ob- served that it differs from the Virginia act in introducing the doc- trine of comparative negligence, and in fixing the time at two years instead of one, within which the action must be brought, and in placing no limit on the amount of recovery in case of the death of the employee. Does this Act repeal or supersede the State Act as to the employees affected ? 78a It probably does. 62. Undisclosed principal. An undisclosed principal may be sued in his own name on an executory contract made by and in thename of his agent, if the contract be not under seal (and probably if it be not negotiable) and the consideration be executed. In like manner, he may, as a rule, sue in his own name on a similar contract made in the name of the agent, but the other contracting party cannot be 74. Cooley on Torts (Students' Ed.) 287. 75. Va.-Car. Chem. Co. v. Knight, 106 Va. 674, 56 S. E. 725. 76. Const. (1962), 162; Code, 1294k; 8 Va. Law Reg. 245. 77. Norfolk, etc., Co. v. Ellington, 108 Va. 245, 61 S. E. 779. 78. Southern R. Co. v. Foster, 111 Va. 763, 69 S. E. 972. 78a. Atlantic & Tel. Co. v. Phila., 190 U. S. 162; Fulgham -v. Mid- land Valley R. Co. (C. C.), 167 Fed. 660. 63 CONVICTS 71 compelled to accept the undisclosed principal if the performance of the contract (being still executory) is dependent upon the solvency or skill of the agent, or upon some special confidence reposed in him. If a third party, in contracting with the agent, did not know of the agency, and the circumstances were such that he ought not to be charged with knowledge of it, he is entitled, when sued by the principal, to be placed in the same position as if the agent had been the real party in interest, and hence to assert any set-off he may have against such agent; but if he knew that the other party was acting as agent, though the name of the prin- cipal was not disclosed, no right to set-off claims against the agent can ordinarily be asserted against the undisclosed principal. In order to be entitled to set-off claims against the agent, the other contracting party must have dealt with him and believed him to be the principal in the transaction up to the time the right of set-off accrued. 79 It has been held in Virginia that "When a nonnego- tiable simple contract is entered into between an agent of an un- disclosed principal and a third person, the latter may, as a gen- eral rule, hold either the agent, or his principal when discovered, personally liable on the contract, but he cannot hold both. So, likewise, either the agent or his principal may sue upon such a contract; the defendant, when the principal sues upon it, being entitled to be placed in the same situation at the time of the dis- closure of the real principal as if the agent had been the contract- ing party. If the agent is sued, the plaintiff recovers such dam- ages as have resulted from the breach of the contract by him. If the agent sues he is entitled to recover (unless his principal in- terferes in the suit) the full measure of damages in the same man- ner as though the action had been brought by the principal." 80 63. Convicts. At common law a convict was disabled from suing, but not from being sued. Confinement in the penitentiary did not change his place of residence, and does not now, and process could be served on him, it seems, in the penitentiary, and the case 79. Meachem on Agency, 773; 55 Am. St. Rep. 916, 923. 80. Leterman v. Charlottesvilte L. Co., 110 Va. 769, 67 S. E. 281. 72 PARTIES TO ACTIONS 64 proceed to judgment. 81 Now in Virginia, if a person be sen- tenced to the penitentiary for a term longer than one year (no provision is made if he is sentenced for a year, or to be executed), a committee may be appointed for his estate, and such committee may sue and be sued in respect to debts due to or by such con- vict, and any other of the convict's estate, and where the action is against the committee judgment may be entered to be paid out of the personal estate of the convict in the hands of his committee. 82 Service upon the prisoner in person would seem to be the proper mode, but it is said that the more usual mode is by leaving a copy at his last and usual place of abode. 83 64. Official and statutory bonds. Bonds of this class are generally payable to the State or to some officer designated by statute. Statutes generally permit ac- tions on such bonds at the relation of the person injured, but in the absence of statute, no such action can be maintained. 84 Usually such actions are brought in the name of the payee of the bond, suing at the relation and for the benefit of the party injured, but the statutes giving the right of action on such bonds generally prescribe how the action shall be brought. In Virginia, an action against a sheriff on his official bond should be brought in the name of the Commonwealth of Virginia, suing at the relation and for the benefit of - - (the party injured). The bene- 81. Note, 76 Am. St. 540, 541, and cases cited; Guarantee Co. v. Bank, 95 Va. 480, 28 S. E. 909. 82. Code, 4115, 4116, 2677. 83. 19 Encl. PI. & Pr. 642. In Neale v. Utz, 75 Va. 480, the writ in the action at law was served on the defendant while being tried for felony and on the day of his conviction. There was judgment by default, while the defendant was serving his term in the peni- tentiary. In the chancery suit to subject his lands to the payment of the lien of the judgment, the writ was served on the defend- ant in the penitentiary. It was held that the judgment was valid until reversed in a proper proceeding for that purpose and that it could not be collaterally assailed. 84. Penn. Iron Co. v. Trigg Co., 106 Va. 557, 56 S. E. 329 The principle of this case is admitted, but a different conclusion was reached on the merits by the U. S. Supreme Court in Title Guaranty & Trust Co. v. Crane Co., 219 U. S. 24, 31 Sup. Ct. 140. 65 CHANGE OF PARTIES 73 ficiary is generally called the relator, and is responsible for the cost. 65. Change of parties. Although an action may be rightly brought, a change may take place pending the action. Formerly, the most frequent cause of these changes were death, marriage, insanity, and conviction of felony. Since the emancipation of married women in Virginia, marriage no longer works a change, except that upon a mere ver- bal suggestion of the marriage of a feme sole, supported by evi- dence of the fact, the action should be directed to proceed in the new name, but such suggestion is not believed to be necessary. If a change occurs for any of the above reasons between verdict and judgment, judgment may, nevertheless, be entered as though it had not occurred. 85 If there be several parties, plaintiffs or defendants, and the action be one which survives, upon the death or other incapacity of one, the cause of action survives to or against the survivor or survivors. If there be a sole plaintiff or defendant, and he dies, becomes in- sane, or is convicted of felony, or if there be more than one plain- tiff or defendant, and one or more dies, becomes insane, or con- vict, and it is desired to proceed for or against the estate of such decedent, insane person, or convict, in either case the action must be revived. The action, if revivable, may, in all cases be revived by scire facias. If the change is on the side of the defendant, the action cannot be revived in any other way, except by consent. If, however, the change is on the side of the plaintiff, the action may be revived by simple motion, zuithout notice, or by scire facias. If the proceeding is by motion, such motion can only be made in term, and the defendant is entitled to a continuance as a matter of course, without showing cause, at that term of the court. If, however, the revival is by scire facias it may be matured during vacation, at Rules, and, in that event, the opposing party is not entitled to a continuance at the next succeeding term. 86 Where 85. Code, 3305. 86. Code, 3308, 3309; Stearns v. Richmond Paper Co., 86 Va. 1034, 11 S. E. 1057. 74 PARTIES TO ACTIONS 66 a party whose powers cease is a defendant, the plaintiff may con- tinue his action against him to final judgment If the change is on the side of the plaintiff, the defendant may have it suggested on the record, and unless the representative of the plaintiff at or before the second term of the court after that at which the suggestion is made causes the action to be revived, the action will be discontinued, unless good cause be shown to the contrary. This suggestion should always be supported by affidavit, or other proper evidence of the fact suggested. Sup- pose, for example, the plaintiff dies. The defendant, by counsel, says to the court, "I desire to have the death of the plaintiff sug- gested on the record." Before the court permits the suggestion to be entered of record it should have some proper evidence of the plaintiff's death. 87 When once the order of discontinuance is entered for failure to revive, it can never be set aside after the adjournment of that term of the court. 88 66. Mis joinder and non- joinder of parties. If a person is improperly made a party plaintiff or defendant, then there are "too many" parties and this is called a misjoinder. If a necessary party is omitted then there are "too few" parties, and this is called non-joinder. The mode of taking objection at common law and the present state of the law in Virginia is thus stated by Professor Graves in 6 of his Notes on Pleading, and the note thereto. "SECTION 6. Too MANY OR Too FEW PLAINTIFFS OR DEFEND- ANTS. MODE OF TAKING THE OBJECTION AT COMMON LAW. I. ACTIONS EX CONTRACTU. 1 . Parties Plaintiff. (a) Too many. ( 1 ) When apparent on the record. Demurrer ; arrest of judgment; writ of error. (2) When not apparent on the record. Non-suit at the trial. 87. Code, 3311. 88. For a general discussion of this subject, see Gainer v. Gainer, 30 W. Va. 390, 4 S. E. 424. 66 MISJOINDER AND NON-JOINDER OF PARTIES 75 (b) Too few. ( 1 ) When apparent on the record. Demurrer ; arrest of judgment; writ of error. (2) When not apparent on the record. Plea in abate- ment, or non-suit. 2. Parties Defendant. (a) Too many. ( 1 ) When apparent on the record. Demurrer ; arrest of judgment; writ of error. (2) When not apparent on the record. Non-suit at common law. But see now Code Va., sec. 3395, al- lowing judgment for one defendant, and against an- other. And see Bush v. Campbell, 26 Gratt. 403. (b) Too few. (1) When apparent on the record, and it is also ap- parent that the party omitted is still living. Demurrer; arrest of judgment; writ of error. (2) When not apparent on the record. Plea in abatement only. No ground for non-suit at trial. Prunty v. Mitchell, 76 Va. 169; Wilson v. McCormick, 86 Va. 995 [11 S. E. 976]. For amendment of declaration, see Va. Code, sec- tion 3263. II. ACTIONS EX DELICTO. 1. Parties Plaintiff. (a) Too many. (1) When apparent on the record. Demurrer; arrest of judgment ; writ of error. (2) When not apparent on the record. Non-suit. (b) Too few. (1) When apparent on the record. Abatement or ap- portionment. (2) When not apparent on the record. Abatement or apportionment. See 63 Am. Dec. 369; 67 Am. Dec. 256. 2. Parties Defendant. (a) Too many. ( 1 ) When apparent on the record. Judgment against as many as are liable ; others discharged. 76 PARTIES TO ACTIONS 66 (2) When not apparent on the record. Judgment against as many as are liable ; others discharged, (b) Too few. (1) When apparent on the record. No ground of ob- jection. (2) When not apparent on record. No ground of ob- jection. But while too few defendants in an action ex delicto is, in gen- eral, no ground of objection, it seems that when detinue is brought for property jointly detained by several all should be made parties defendant; and if one is sued alone, he may plead the non-joinder in abatement. 14 Cyc. 265; National Fire Ins. Co. v. Catlin, 8 Va. Law Reg. 127, 130. 89 89. Too many plaintiffs or defendants Virginia statute as to mis- joinder. The above summary is still law in Virginia when there are too few plaintiffs or defendants, i. e., when there is nonjoinder. But when there are too many parties (misjoinder) it is now pro- vided by Acts Va., 1893-4, p. 489, amended by Acts 1895-6, p. 453 (Code 1904, 3258a) : "Whenever it shall appear in any action at law or suit in equity, heretofore or hereafter instituted, by the pleadings or otherwise, that there has been a misjoinder of parties, plaintiff or defendant, the court may order the action or suit to abate as to any party improperly joined, and to proceed by or against the others, as if such misjoinder had not been made; and the court may make such provision as to costs and continuances as may be just." See Lee v. Mutual, etc., Life Ass'n, 97 Va. 160, 33 S. E. 556, where it is said: "The word 'may' in a statute of this kind, which is in furtherance of justice, means the same as shall." So, now in Virginia, misjoinder of parties is not good ground for either demurrer or non-suit. The remedy by statute is to move the court to abate the suit or action as to the party or parties improperly joined, and to proceed against the other or others as if such mis- joinder had not been made. Riverside Cotton Mills v. Lanier, 102 Va. 148, 159, 45 S. E. 875. In Norfolk, etc., R. Co. v. Dougherty, 92 Va. 372, 375, 23 S. E. 777, it was held that under the original Act of February 27, 1894, "this desirable addition to our statute law" was not retrospective; and this led to the addition of the words "heretofore or hereafter instituted" in the amended act of Feb. 26, 1896, as set out above." CHAPTER VII. ORDINARY ACTIONS AT LAW. 67. Classification of actions. Real actions. Mixed actions. Personal actions. Local and transitory actions. Actions ex contractu and ex dclicto. 67. Classification of actions. Ordinary actions at law are variously classified by different au- thors. The most common classifications are: (1) Real, personal and mixed; (2) local and transitory; and (3) ex contractu and ex delicto. Each class is complete in itself, and embraces all or- dinary actions. Real actions are for the recovery of land only. At common law a freehold estate only, but by statutes generally a less estate than freehold may also be recovered. In Virginia the only real action is Unlawful Entry or Detainer, or Forcible Entry. This is purely statutory. Mixed actions are for the recovery of land and damages, or land and rents and profits or both. Ejectment in Virginia is a mixed action. Personal actions are for the recovery of money (whether debt, or damages), or other personal property. The distinction between local and transitory actions is pointed out by Professor Graves as follows r 1 "At common law all ac- tions are transitory except real and mixed actions for recovery of land, and the personal actions for injury to land, such as tres- pass (q. c. f.), case for nuisance and waste, or for wrongs done to ways, watercourses, and rights of common. To these must be added one more action, which was considered as local, viz., that for rent due when the action was brought against the assignee of a term, and was founded on privity of estate, and not on privity of contract. "In Virginia only actions for the recovery of land are local; all personal actions are considered transitory. A local action 1. Graves' Notes on PI. 38. 78 ORDINARY ACTIONS AT LAW 67 must be brought where the land lies ; but a transitory action could be brought in England, no matter in what country the cause of action arose, if the defendant was found in England, and there personally served with process. 2 And it might be brought in any English county at the plaintiff's election, subject, however, to re- moval, on defendant's motion, to the county in which the cause of action arose." 3 With reference to the third classification, it is said that all or- dinary common-law actions are either founded on contract as the cause of action, or are not so founded. The former are called actions ex contractu, the latter ex delicto. They may be classified as follows: Debt Covenant Assumpsit Account E.v Contractu ,v Delicto Motion by statute - 1. On bonds taken or given by officers. Code, 3210. 2. For money recov- erable by action on contract. Code. 8 3211. Unlawful Entry or Detainer, or Forcible Entry. Ejectment Detinue Interpleader Replevin Trespass vi et armis, or trespass, as it is ' usually called. Trespass on the case 1. Generally 2. In trover and conversion 3. In slander 4. In libel 2. Mostyn v. Fabrigas, Cowper 116; (2 Sm. L. C. 1024). 3. Stephens, 191, pp. 379, 380. CHAPTER VIII. ACTION OF DEBT. 68. Nature of action. 69. What is a sum certain. 70. Debt to recover statutory penalties. 71. Debt on judgments and decrees. 72. The declaration in debt. 73. The general issues in debt. 1. Nil debet. 2. Non est factum. 3. Nul tiel record. 68. Nature of action. "The action of debt is designed to recover a specific sum of money due by contract, verbal or written, express or implied, where the amount is either ascertained, or from the nature of the demand is capable of being ascertained, whether due on legal liabilities (as penalties denounced by statute), on simple contracts, on specialties (or obligations under seal), on records (as recognizances, judgments, etc.), or otherwise." 1 "Its dis- tinguishing and fundamental feature consists in the fact that it lies for the recovery of money, or its equivalent, in sums certain, or that can readily be rendered certain by actual com- putation," 2 while all other actions are for recovery of damages, or property, or both. It is the only action for the recovery of money, as such, eo nomine et in numero. Anciently the ac- tion was largely assimilated with detinue (which lies for the recovery of specific chattels together with damages for their detention), and was freely brought to recover chattels. 3 In modern times this usage has become obsolete, and now debt 1. 4 Min. Inst. 549, 550; Nottingham v. Ackiss, 110 Va. 810, 67 S. E. 351; Russell v. Louisville & N. R. Co., 93 Va. 322, 25 S. E. 99. 2. 5 Encl. PI. & Pr. 896. 3. 2 Tucker's Commentaries, 100; Stephen's Pleading, 124, note 2. So, in Gibbons v. Jamesons' Exrs., 5 Call. 294, it was argued that debt lay to recover a horse, thus showing that the distinction be- tween debt and detinue had not been entirely settled even then. 80 ACTION OF DEBT 68 only lies to recover a specific sum of money. A trace of the old practice still survives, however, in the rule allowing the joinder in one declaration of a count in debt with one in detinue. 4 Although debt is a common-law action, few precedents thereof can be found in the early reports. The reason for this lies in the application to debt of the quaint common-law trial by wager of law. In every action of debt on simple contract the defend- ant had the power simply to present himself in court, attended by eleven of his neighbors, and he having in open court taken an oath that he did not owe the debt, his eleven compurgators swore that they believed him, which, as being the verdict of the twelve men, was considered sufficient to discharge the defend- ant from the action. The defendant was said to wage his law, and the procedure was called wager of law. This liability to wager of laiv led to the general disuse of the action of debt on simple contract, and the substitution therefor of the action of assumpsit. 5 So also it was anciently held that the plaintiff had to recover the exact sum sued for or nothing. He could recover neither more nor less. 6 This is no longer the rule, but, according to the modern practice, the judgment need not correspond exactly with the claim. It may be for less than is demanded in the declaration, but not for more. 7 More- over, ^vager of law has long since been abolished in England, and was never in use in this State, 8 and these common-law impediments which rendered the action unpopular no longer ex- ist. But debt on simple contracts, except on promissory notes, is rarely brought even now on account of the greater flexibility of the action of assumpsit. 9 Next to assumpsit, debt is the most usual form of action ex contractu, and, among many other instances, it has been held to be the proper action in the following cases : To recover a sum certain, or for a money demand which can readily be reduced to a certainty ; to recover money due on legal liabilities ; upon simple contracts express or im- 4. 4 Min. Inst. 447, 448. 5. 4 Min. Inst. 449, and 815, 816. 6. 2 Tucker's Commentaries, 97; Stephen's Pleading, 123. 7. 5 Encl. PI. & Pr., 933; Stephen's Pleading, 123. 8. 4 Min. Inst., 449, and 815-816. 9. 2 Tuckers' Commentaries, 117, note. 68 NATURE OF ACTION 81 plied, whether verbal or written, and upon contracts under seal, or of record ; upon statutes by a party aggrieved, or by a common informer, whenever the demand, as stated above, is for a sum certain, or capable of being reduced to a certainty ; upon a replevin bond given by a testator ; by a sheriff on a forth- coming bond payable to himself ; on any writing acknowledging a debt in a certain sum ; on an acknowledgment of indebted- ness in a deed ; on an instrument sealed as to some and not sealed as to others ; on a sheriff's bond for his failure to pay over money collected by him and which he should have paid but did not ; upon all conclusive records ; by a landlord for rent; on simple contracts and legal liabilities, for money lent, paid, had and received ; for fees ; for goods sold and delivered. It lies against an executor to recover a legacy ; when an un- liquidated demand, which can readily be reduced to a certainty, is sought to be recovered ; on a recognizance to the State in criminal proceedings ; on a promissory note ; on a bill of ex- change ; for any debt or duty created by common law or cus- tom; upon an award to pay money; to recover money decreed to be paid as alimony; to recover the purchase price of land sold under articles of agreement ; to recover of a turnpike com- pany damages assessed for land taken ; on policies of insurance under seal, on annuities and on mortgage deeds ; upon an in- junction bond; and upon the judgment of a superior or an inferior court of record. 10 In brief, upon any contract, sealed or unsealed, for the payment of a sum certain of money, or a sum readily rendered certain. But it has been held that debt cannot be maintained for the recovery of an entire sum of money, payable by installments, until all the installments have fallen due. 11 In early days the courts of England looked with great dis- favor upon bills and notes, considering them in the light of innovations upon common-law principles, and consequently held 10. Hoggs' Pleading & Forms, 41, et seq., and authorities cited. See, also, 5 Encl. PI. & Pr. 896, et seq.; 4 Min. Inst. 180-183, 553. 554; 1 Barton's Law Practice, 134-175. 11. Peyton v. Harman, 22 Gratt. 643. And this seems to be the general rule, acknowledged by Prof. Minor, though he protests against it as founded upon no satisfactory reason. 4 Min. Inst. 550. 6 82 ACTION OF DEBT 68 that neither debt nor assiumpsit would lie upon them ; but since the passage of the statute of 3 and 4 Anne, by which promissory notes were rendered negotiable, which statutes have either been re-enacted or form a part of our common law by adoption, the current weight of authority fully sustains debt as an appropriate action upon these instruments. 12 At common law, before the statute of Anne above mentioned, it was held that the action of debt allowed was not upon the note or other unsealed writing, but only upon the contract witnessed by the note or writing, and the action at common law was on the promise, averring and proving a valuable consideration, and not on the writing, if there were one. 13 But now it is provided by statute in this State that: "An action of debt may be maintained upon any note or writing by which there is a promise, undertaking, or obliga- tion to pay money, if the same be signed by the party who is to be charged thereby, or his agent. And in an action of assumpsit on any such note or writing, the rule as to aver- ment and proof of consideration shall be the same as in any action of debt thereon." 14 It will be noted that the action is now brought on the note or writing, and not on the contract as at common law. 15 This has an important effect on the necessary allegations in the declaration, and in the evidence at the trial, which is noticed hereafter in treating of the declaration. 16 Another very important statute provides : "Upon any note, check, bill of exchange, or other instrument which under the laws of the State is negotiable, whether the same be payable in or out of the State, an action of debt or assumpsit may be maintained and judgment given jointly against all liable by virtue thereof, whether drawers, indorsers, or acceptors, or against any one or any intermediate number of them for the principal and charges of protest if the same should be pro- 12. 5 Encl. PI. & Pr. 899, 900; 4 Min. Inst. 550. 13. 4 Min. Inst. 550, 702; Peasley v. Boatwright, 2 Leigh 212. 14. Code, 2852. 15. Crawford v. Daigh, 2 Va. Cases 521. 16. See Infra, 72. 69 WHAT IS A SUM CERTAIN 83 tested, with the interest thereon from the date of protest, and in case of such bills for damages also." 17 It will be noted that the above statute applies only to nego- tiable instruments. As to such instruments it obviates many of the difficulties which had previously existed in this class of cases. At common law, assumpsit did not lie on any sealed instru- ment, and hence, upon such instruments it was not a con- current remedy with debt even where the promise was to pay a sum certain in money. But now it is provided by statute in Virginia that: "In any case in which an action of covenant will lie there may be maintained an action of assumpsit." 18 Under this stat- ute assumpsit lies on all sealed as well as unsealed instruments, and by reason of its greater flexibility and wider scope is frequently a preferable action. Under the statute last men- tioned a special count on a sealed instrument may be united with the common counts in an action of assumpsit, 19 thus giving the plaintiff the advantage if he fail, for any reason, in his proof on the sealed instrument, of, nevertheless, recov- ering under the common counts in assumpsit, provided the evidence warrants such recovery. 69. What is a sum certain. Perhaps more confusion has arisen on the question of whether or not debt would lie on obligations which, though in terms of dollars and cents, were conditioned, in some event, to pay or to deliver commodities or something else than money, than on any other question as to the applicability of this action. The rules applicable to such cases are succinctly stated by Prof. Graves, 20 in effect, as follows : "When a certain sum of money is to be paid in a commodity, as, for example, in ivheat, if the quantity of the commodity is not fixed, debt lies (if the defendant is in default) for the money; but if the quantity is fixed, then the essence of the contract is to deliver the com- 17. Code, 2853. 18. Code, 3246a. 19. Grubb v. Burford, 98 Va. 553, 37 S. E. 4. 20. Graves' Notes on Pleading (new) 18, 19. 84 ACTION OF DEBT 69 modity, and debt does not lie, but assumpsit or covenant for the damages flowing from the breach of the contract. Thus if I promise to pay $100.00 in zvheat by a day certain, and do not do so, debt lies for the $100.00; but not if my promise be to pay $100.00 by the delivery of 100 busJiels of wheat. Nor does debt lie on a promise to pay $100.00 in bank notes, not a legal tender, such as those of the State banks before the War; for here the quantity is considered as fixed by the denomination of the notes, and they are of a fluctuating value. But though a sum of money payable by the delivery of a certain quantity of a commodity, or in bank notes not legal tender, will not sustain an action of debt, yet the contract may be for the payment of a certain sum of money, with the privi- lege, as an alternative, to deliver in^ead a fixed quantity of a commodity, or bank notes not legai tender, and then on the promisors' default debt lies for the money. For the option to deliver the goods or notes is considered terminated by rea- son of the promisors' default." 21 The above principles are well illustrated by the following Virginia cases : In Beirne v. Dunlap 22 the court held that when, by a writing obligatory, the obligors promise, on or before a specified day, to pay the obligee eight hundred and thirteen dollars and seventy-nine cents in notes of the United States Bank, or either of the Virginia banks, debt would not lie be- cause the obligation of the bond was simply for the delivery of a commodity; it being considered that such bank notes were not money, but simply a commodity of fluctuating value, 23 and 21. See, also, 4 Min. Inst. 551; 1 Barton's Law Practice, 136-139. 22. 8 Leigh 514. 23. Judge Tucker, in his opinion in the above case, states the reasons which govern in the decision of this class of cases very clearly. He says: "An obligation to deliver wheat or bullion, or bank notes, will not sustain such action. For it is determinate in its character, and does not generally lie where the amount of the recovery in money must be ascertained by evidence of value and by the intervention of a jury. It is true that it has been in some cases decided that an action of debt will lie on a promise to pay a sum of money in a collateral article, provided the time is past when the payment was to be made. Thus in the case cited at the bar, debt was held to lie upon a promise to pay 20 in watches. The 69 WHAT IS A SUM CERTAIN 85 that the use of the terms "dollars and cents" was simply the method adopted of measuring the quantity of the commodity to be delivered. Indeed, it could not well be expressed in any other manner. In the case of Butcher v. Carlile, 24 the court held that when by bond the obligor bound himself to pay a certain sum of money with interest "which sum may be discharged in notes or bonds due on good solvent men residing in the county of Randolph, Virginia," that this was a bond for the payment of money for which debt would lie. The reason given for the decision was that the right to discharge the obligation in notes or bonds of the kind mentioned was a mere privilege to the obligor, which he had his election to exercise or not at his pleasure on or before the day when the obligation became debt was clearly ascertained and determinate. The defendant hav- ing failed to make payment in watches, which was an indulgence to him, became liable to pay money, for it is obvious that no action of any kind could lie for the watches themselves. Debt or covenant were the only remedies which the creditor could have, and in either he could only recover money, and in both he must have recovered identically the same sum, to-wit, 20. As then money only could be recovered, and the sum to be recovered was determinate, debt well lay for it." And further on he says: "I take the distinction, then, to be this: When the promise is to pay a determinate sum in an article of fluctuating or uncertain value, if the quantity is not fixed, so that the debtor must pay the full amount of the debt whether the price of the article be high or low, debt will lie for the demand. But if the quantity be fixed, so that at the day of payment it may fall short of the debt, then debt will not lie, because the es- sence of the contract was the delivery of the article, and the cred- itor can only recover the value. As if I acknowledged myself to owe 500 dollars payable in wheat at a certain day, and I fail to de- liver the wheat at the day, debt will lie; for I owed the full sum of 500 dollars, whether I paid it in coin or wheat. But if I promise to pay 500 dollars by the delivery of 500 bushels of wheat, then debt will not lie, though the day be past; for peradventure the wheat at the day of payment was worth less than 500 dollars." 24. 12 Gratt. 520. Judge Moncure said in his opinion: "While, therefore, certain general rules have been adopted, as means of as- certaining the intention of parties; the end in view in every case is to ascertain the intention from the contract; and when so ascer- tained, effect will be given to it, if lawful." 86 ACTION OF DEBT 69 due, but, having failed to exercise this privilege, he became liable absolutely for the money, and, of course, to an action of debt for its recovery. In Dungan v. Henderlite 25 the court held that, when an ob- ligation was to pay eight hundred dollars for the purchase money of land, "payable in the currency of Virginia and North Caro- lina money," this was a promise to pay this sum in the cur- rency named, and an action of debt could not be maintained upon it. The court repudiated the theory advanced by counsel that this was a condition for an alternative payment in a com- modity, but said that payable meant to be paid and not may be paid. In this case "currency" was held to mean nothing more than bank paper then currently passing as money and which was enumerated in dollars and cents as specie is, and the court said that, this being so, the quantity of the Virginia and North Carolina currency was fixed, and the contract was equivalent to an engagement to pay bank notes amounting to $800.00, or so many bank notes as on their face would nominally make that sum, and was governed by the decision in Beirne v. Dun- lap, supra. That there is a difference between the contract to pay in bank notes and in some other commodity is illustrated by the case of Lewis v. Long. 26 In that case an action of debt was brought on a bond for $250 "to be paid in trade, such as is to be had, deer-skins, furs, flax, snake-root, beef, pork, bacon, etc., for value received." No question seems to have been raised as to debt being the proper remedy. Judge Roane, on page 151, said: "This is an action of debt brought by the ap- pellant against the appellee in the county court of Harrison. It was an action for money, although it was contemporaneously agreed and stipulated in the bill itself, that deer-skins and other articles would be received in payment. In 2 Bac. 278 we are told that in the case of a bill for 20 to be paid in watches, an action of debt must be brought for the money, and not for the watches, because they are of uncertain value." In the case of Dungan v. Henderlite, supra, Judge Christian, 25. 21 Gratt. 149. 26. 3 Munf. 136. 69 WHAT IS A SUM CERTAIN 87 on page 152, refers to the above case, and says that the only question raised was one of jurisdiction of the appellate court, but "it was evident, however, that upon such a contract the liability of the obligor was to pay money, with the privilege of paying in trade, etc., when the payment was due; and in default of his paying in the mode stipulated, the obligee had the right to demand money ; and the action of debt would therefore lie," and so distinguished it from the case in which he was delivering the opinion. Where a bond was executed conditioned to pay on demand $2,400 "in gold or silver, or the equivalent thereof" it was held that this was a promise to pay $2,400 in gold or silver coin, or the equivalent thereof, that what was meant was money not bullion, and that debt could be maintained upon the bond. 27 In Minnick v. Williams 28 the court held that where a bond is conditioned to pay $350 "payable in monthly installments, either in goods at regular prices, or current money," and at the times the amounts are payable neither the goods are de- livered nor the money paid, debt will lie, as this is an obli- gation to pay money, with the privilege to the obligor to discharge the money obligation by the delivery of the goods at regular prices in equal amount, on or before the time of payment, and having failed to exercise this privilege he was held liable absolutely for the money, and to an action of debt for its recovery. In Crawford v. Daigh, 29 decided by the general court in 1826, it was held that debt will lie "on a note in writing for the payment of $64 in good State Bank paper, payable one day after date, for value received." The opinion is very brief. Referring to the language "State Bank paper," it was said: "A note for the payment of so much money in a known com- modity on a certain day is, after the day passed, a note for the payment of money. * * * We think that State Bank paper was not here mentioned as contradistinguished from money, but from other paper in circulation then less valuable 27. Turpin v. Sledd's Ex'r, 23 Gratt. 238. 28. 77 Va. 758. 29. 2 Va. Cases, 521. 88 ACTION OF DEfcT 69 than money." The court did not notice the fact that the amount of this commodity was fixed by the language used, and that the contract with the parties was only for the de- livery of a specific quantity of a given commodity, that is, for State Bank paper of the face value of $64. This holding, as well as certain Kentucky cases taking a similar view, was distinctly disapproved in Beirne v. Dunlap, supra. It is true that it is cited in Butcher v. Carlile, supra., Dungan v. Hender- lite, supra., and Minnick v. Williams, supra., but usually for the general proposition that debt will lie for a promise to pay money in a commodity, the amount of which is not fixed, and so far the case is sound. But in so far as it undertakes to decide that a promise to pay $64 in State Bank paper is a promise to pay money in a commodity the quantity of which is not fixed, it is out of harmony with the .later Virginia cases on the subject. On its face it is a promise to deliver a fixed quantity of a designated commodity at a particular time, for which an action of debt will not lie, and it would not seem to be material whether the undertaking to deliver the commodity was to be performed in one day or one year. The principle would be the same. It is true that Judge Moncure, in Butcher v. Carlile, supra, undertakes to distinguish Crawford v. Daigh from Beirne v. Dunlap by the fact that in one case the paper was payable one day after date, and in the other more than a year after date, and that the promise to deliver one day after date showed that the intention of the parties was that payment should be made in currency of equal value to money, and that the intention of the parties as gathered from the contract would govern the form of action, but this distinction does not seem to rest upon any sound basis. The same argument might be made with reference to a promise to deliver stocks, as, for example, to pay $64 in the stock of the Western Union Telegraph Company, and yet we all know that at times the value of these stocks vary considerably from day to day. According to the Virginia holding, as indicated in the cases above cited, Crawford v. Daigh must be regarded as being unsound in principle, and as having been repudiated by the later eases. . Upon paper of this class, the safer course to be pursued in Virginia is to bring assumpsit, and outside of 70 DEBT TO RECOVER STATUTORY PENALTIES 89 Virginia, either covenant or assumpsit, according to whether the paper is, or is not, sealed. 70. Debt to recover statutory penalties. It is provided by statute 30 that penalties provided for the violation of the license or revenue laws of the State may be recovered by action of debt, indictment, or information, and the procedure in the action of debt in such cases is outlined and prescribed ; and, by another statute, 31 it is enacted that, when a fine without corporate punishment is prescribed, the same, if over $20, may be recovered by action of debt, or action on the case, or by motion, the proceeding to be in the name of the Commonwealth. But, independent of an express statutory sanction, debt is the peculiarly appropriate action to recover statutory penalties, and when a statute gives a penalty to be recovered by, "bill, plaint or information" the action of debt may be brought on the statute, it being comprehended in the word "bill." 32 So, also, it has been held 33 that under the statutory provision en- acting that on a failure to construct cattle guards, a railroad company should pay the landowner $5 for every day of such failure, the remedy of the landowner, in the event of a non- compliance with the statute on the part of the company, was an action of debt to recover the penalty, and that an action on the case would not lie. The court says : "When a statute imposes a penalty for the nonperformance of a duty prescribed, no part of which penalty can accrue to the commonwealth, and the statute provides no particular mode by which the person aggrieved may recover the penalty, the common-law action of debt may be maintained therefor, and is proper. * * * "The recovery in cases like this is not measured by the dam- 30. Code, 575, 576. 31. Code, 712. See, also, Idem, 713, 714. See, also, 3652a, providing for an action of debt to recover, in the case of laboring men, payments enforced by unlawful attachment or garnishment of exempted wages. 32. Sims v. Alderson, 8 Leigh 479; 1 Barton's Law Practice 200, 201; 5 Encl. PI. & Pr., p. 907. 33. Russell v. Louisville & N. R. Co., 93 Va. 322, 25 S. E. 99. 90 ACTION OF DEBT 70 .ages sustained. The verdict does not sound in damages, but is a sum 'eo nomine and in numero; otherwise in an action on the case. The common law action of debt lies whenever the demand is for a sum certain, or is capable of being readily reduced to a certainty, and is the appropriate action for the recovery of a statutory penalty, upon the ground of an im- plied promise which the law annexes to the liability." On the other hand it has been held in West Virginia, 34 con- struing a mining statute, which provided that "if any person shall violate this section, he shall forfeit five hundred dollars to any per- son injured thereby who may sue for the same," that the penalty prescribed might be recovered by the person injured in an action of trespass on the case; that when, as in this case, the statute prescribes the penalty or the sum to be for- feited, but not the form of action, debt being the usual remedy will lie; or the form of action may be such as the particular nature of the wrong or injury may require, such as an action of assumpsit, or of trespass on the case. In the case last cited damages were not recovered, but simply the penalty pre- scribed by the statute; the court holding that the term "injured" used in the statute meant the wrong clone the party by the violation of the statute. There seems to be no difference be- tween this case and Russell v. Louisville & N. R. Co., supra., and the two cases seem to be in direct conflict on the point as to whether debt is the exclusive or simply a permissive ac- tion to recover statutory penalties like the above. The West Virginia case was decided April 1, 1896, and the Virginia case July 9, 1896, making no reference to the former. If both dam- ages and a statutory penalty are claimed, a remedy therefor is given in Virginia by an action of trespass on the case by Acts 1901-2, p. 385, amending 2900, Code of Virginia. 35 34. Mapel v. John, 42 W. Va. 30, 24 S. E. 608, 32 L. R. A. 800, 57 Am. St. Rep. 839. 35. This section provides: "Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or for- feiture be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages. And the damages so sustained, to- gether with any penalty or forfeiture imposed for the vio'lation of 71 DEBT ON JUDGMENTS AND DECREES 91 Debt, however, may still be brought to recover the statutory penalty only. It will be observed that, under the above-men- tioned statute, when an act results in actual injury to another, the latter is not precluded from recovering his real damages by reason of the fact that such injurious act is also penalized by statute. He may recover his actual damages and the statu- tory penalty all in one action of trespass on the case, setting them forth in separate counts. On the other hand, if an act be merely malum prohibitum, and its commission entails no actual damage to another, the. fact that such act is penalized by statute and thereby rendered unlawful does not give to the one for whose benefit the penalty is provided a. further right of action for damages. The purpose of the statute was merely to preserve to the person injured the right to maintain his action for the injury he may have sustained by reason of the wrongdoing of another, and to prevent the wrongdoer from setting up the defence that he had paid the penalty of his wrongdoing under a penal statute. It was not intended to create a new ground of action for damages. 36 71. Debt on judgments and decrees. An action of debt is always the proper, and in most cases, the exclusive remedy, when an action is desired to be brought on a judgment. 37 Although judgments may be enforced within the statute, may be recovered in a single action of trespass on the case upon proper counts when the same person is entitled to both damages and penalty: provided, that nothing herein contained shall affect the existing statutes of limitation applicable to the foregoing causes of action respectively." 36. Connelly 'v. W. U. Tel. Co., 100 Va. 51, 40 S. E. 618, 56 L. R. A. 663, 93 Am. St. Rep. 919; Hortenstein v. Va. -Carolina Ry. Co., 102 Va. 914, 923, 47 S. E. 996. Debt lies on 1292, Code, prescribing penalties against telegraph companies. W. U. Tel. Co. v. Bright, 90 Va. 778, 20 S. E. 146. For form of declaration see Gregory's Forms No. 39. For the essentials of such a declaration in debt, see W. U. Tel. Co. v. Powell, 94 Va. 268, 26 S. E. 828. 37. 5 Encl. PI. & Pr. 904; 11 Idem 1113; Clarke's Admr. v. Day, 2 Leigh 187; Drapers' Exr's v. Gorman, 8 Leigh 628; Kemp v. Mun- dell and Chapin, 9 Leigh 12. 92 ACTION OF DEBT 71 the jurisdictions wherein they are rendered by execution and other similar processes, actions on the judgment even in such jurisdictions are allowed, and a fortiori is this the case with judgments of other jurisdictions; but where execution is avail- able as a remedy a second action on the judgment is not favored and the courts are disposed to discourage such actions by sub- jecting them to rigorous strictness. 38 A judgment is of higher dignity than a bond, note, account or other similar evidence of debt, and hence such evidences of debt are merged in the judgment ihereon; but one judgment is of no higher dignity than another, and hence there is no merger. 39 There is no reason, therefore, why an action may not be maintained on a judgment, and another judgment thereon obtained, and the Virginia court has held that the vitality of a judgment is not exhausted by one action thereon, but the judgment creditor is entitled to pursue successive actions until satisfaction is ob- tained. 40 The form of the action will depend somewhat on the nature of the judgment sued on, though it is a safe rule always to bring debt as in such case the pleader cannot fall into error. Under the "full faith and credit" clause of the Constitution of the United States 41 a judgment of a court of record of one State of the Union is not to be regarded in the other 38. 5 Encl. PI. & Pr. 905, note; 11 Idem 1089, ct seq.; Kaufman v. Richardson (Ala.), 4 Anno. Cases 168, and note; Cardwell i. Tal- bott (Corp. Ct. Danville, Va.), 5 Va. L. Reg. 182, and note. 39. 11 Encl. PI. & Pr. 1087. 40. Kelly v. Hamblen, 98 Va. 383, 36 S. E. 491. In this case Judge Keith says: "Subject to the discretion of courts in the imposition of costs, as many successive actions may be brought upon a judg- ment as may be needful in the opinion of the plaintiff, but there can, of course, be but one satisfaction. * * * We are of opin- ion that a suit brought to enforce the lien of a judgment, and pros- ecuted in good faith, though ineffectual, is not a bar to a subsequent suit by the same plaintiff against the same debtor to enforce satis- faction of the same' judgment. In all such cases it will be the duty of the courts to see that the creditor does not exercise his right capriciously or oppressively, and make such orders and decrees with reference to the imposition of costs as will protect litigants against unnecessary and vexatious suits." 41. U. S. Constitution, Article 4, 1. 71 DEBT ON JUDGMENTS AND DECREES 93 States as a foreign judgment, but is in the nature of a domestic judgment in every other State, whose tribunals are to allow it the same force and efficacy which it has in the State where it is pronounced. 42 Such judgments, then, being treated as domestic judgments, are matters of record, and are regarded as of such a solemn nature that assumpsit will not lie ; debt only being the remedy. It may, therefore, be stated that, by the great weight of authority, in the absence of statute, where an ac- tion is brought on a domestic judgment (in which class are in- cluded judgments of courts of record of sister States), the action must be debt, and no other. 43 But, as, according to the weight of authority, a foreign judgment is not a record but only prima -facie evidence, either debt or assumpsit may be brought upon such foreign judgments. 44 So also debt lies on a justice's judgment rendered in a sister State, and, a fortiori, on judgments of justices in this State. 45 It would seem that assumpsit would also lie on such judgments, as judgments of a court not of record stand on a similar footing to foreign judgments, 46 and, as we have seen, assumpsit lies on foreign judgments. It is well settled that the judgment which will support an action of debt need not have been pronounced by a court of record. And hence debt will lie on judgments of surrogate courts and of probate or orphan's courts. 47 In earlier days there was doubt whether a decree in equity should be allowed to rank with a judgment at law, or whether it could be the basis of an action of debt, in a court of law, but there is no doubt on that question now for, according to the great weight of au- 42. Clarke's Adm'r v. Day, 2 Leigh 187; 11 End. PI. & Pr. 1155. 43. 11 Encl. PI. & Pr. 1114; Black on Judgments, 873. See post, 83. 44. 11 Encl. PI. & Pr. 1115; 2 Black on Judgments, 848; Dra- per's Exor's v. Gorman, 8 Leigh 628. In this case it was held that the District of Columbia is not a State within the provisions of Art. 4, 1, U. S. Constitution, and that the judgments of its courts were to be treated as foreign judgments when an action of debt was brought on one of them in Virginia. 45. 11 Encl. PI. & Pr. 1115, note; Idem, 1102; Idem, vol. 5, p. 906, note. 46. 5 Encl. PI. & Pr. 906. 47. Idem. 94 ACTION OF DEBT 72 thority, an action of debt can be maintained to enforce a final and unconditional decree of a court of equity, either domestic or foreign, for the payment of a specific sum of money. 48 72. The declaration in debt. The declaration in this action is generally short and simple. A great variety of forms thereof will be found in the works mentioned in the margin. 49 The declaration in debt on a simple contract to pay money, whether oral or in writing, conforms to that in assumpsit save that it is alleged that the defend- ant agreed and not that he promised to pay. 50 When this promise is "specially declared on, that is, where, omitting the common counts of indebitatus, etc., the plaintiff sets forth the promise to pay as the ground of his action, a valuable considera- tion must be stated;"^ and this was so at common law even as to promissory notes, as the theory was that the action was not upon the note but only upon the contract of which it was evi- dence. 52 But this is no longer the case in Virginia, for now by statute it is provided that "An action of debt may be main- tained upon any note or writing by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent ;" 53 and our court has held that this statute now allows the action of debt to be maintained upon the note, without averring or proving any consideration, although the defendant may dis- prove it; for if it were still needful to aver and prove a consideration in such action on the note itself, the statute just 48. See full note appended to the case of Du Bois v. Seymour (C. C. A.), 11 Anno. Cases 658; 5 Encl. PI. & Pr. 1069, et seq.; Cardwell v. Talbott (Corp. Ct. Danville, Va.), 5 Va. L. Reg. 182, and note. 49. 4 Min. Inst. 1639-1671; 1 Barton's Law Practice 350-371; Gregory's Forms, 16-61. For form of declaration in three counts, on bond, note and open account, see 4 Min. Inst. 1643. 50. 4 Min. Inst. 701. For ' form of common counts in debt, see Idem, pp. 1640-1641. For a full discussion of the declaration in debt see Idem, pp. 701-705; 5 Encl. PI. & Pr. 913, et seq. 51. 4 Min. Inst. 701; 5 Encl. PI. & Pr. 914. 52. 4 Min. Inst. 702. 53. Code, 2852. 72 THE DECLARATION IN DEBT 95 cited would be inoperative. 54 It may also be mentioned that although at one time it was held that in order to recover in- terest it must be claimed in the declaration, 55 the contrary was held under the Virginia statute passed in 1805 authorizing the judgment for interest though not demanded, 56 and it is not now necessary in an action of debt to demand interest either in the writ or in the declaration. Interest follows the principal as the shadow follows the substance. If the judg- ment is rendered in such case by default, the clerk is by the present statute 57 directed to enter it for the principal sum due with interest thereon from the time it became payable (or commenced bearing interest) until payment, and if a jury be impanelled, whether to try an issue in the cause, or only to inquire of damages, it may at its discretion allow interest, and fix the period at which it shall commence. 58 It should further be noted that in an action of debt upon an obligation to pay money in which the privilege is given to the debtor as an alternative to deliver something else than money, such as notes or goods, and the debtor has neither paid the money nor availed himself of the alternative privilege to deliver the commodity, it is not necessary, in declaring on the instrument, to notice the provision as to the alternative mode of payment in the declaration. As was said by Judge 54. Crawford r. Daigh, 2 Va. Cases 521; Peasley v. Boatwright, 2 Leigh 212; 4 Min. Inst. 702. In Crawford v. Daigh, supra, the court said: "The action is either founded on the note, or on the contract which caused it to be made. On the latter, debt lay at common law, and if it still is needful to state it in the declaration, the Act of Assembly, though it says so in so many words, does not give an action of debt on the note, and has no operation." 55. Hubbard v. Blow, 1 Wash. 70; Brooke v. Gordon, 2 Call. 212. 56. Wallace v. Baker, 2 Munf. 334; Baird v. Peter, 4 Munf. 76. 57. Code, 3287. 58. Code, 3390; Hatcher v. Lewis, 4 Rand. 152; 4 Min. Inst. 638-640. For a discussion of "debt on bond conditioned" under 3393 and 3394 of the Code of Virginia, and for the mode of assigning the breaches of the condition in such action, see 4 Minor's Institutes 703-4, Graves' Notes on Pleading (old),, pp. 126-127. See also, 3377a of Code giving a right to an action at law or motion on lost bonds, notes, etc.; Grave's Notes on Pleading (old), pp. 127-128. 96 ACTION OF DEBT 73 Moncure in Butcher v. Carlile : 59 "The privilege is in the nature of a defeasance, which need never be stated in a declaration, but is matter of defence, and ought to be shown in pleading by the opposite party." The damages in debt on a money-bond or on a promissory note are in general merely nominal, and, therefore, the amount of damages stated in the process and declaration is immaterial. There are, however, two instances where the damages are material and should be laid at a sum sufficient to cover the case, namely, the action of debt on a bond with collateral con- dition, and on a penal bond where the principal and interest together exceed the penalty. In the last case the excess of interest can only be recovered as damages. 73. The general issues in debt. The action of debt by reason of its wide application as a remedy, and the consequent diverse circumstances on which its use may be founded, has three general issues. These are as fol- lows: 1. Nil debet; 2. Non est factum; 3. Nul tiel record. These general issues differ widely both in the instances to which they are applicable, and in their respective scopes. It will, consequently, be proper to discuss each of them separately, and, briefly, to call attention to the salient rules which govern their use. 1. NIL DEBET. Nil Dcbet is the general issue in debt on simple contracts; that is, contracts not under seal. It is one of the broad general issues, and, as its form shows, 61 simply alleges that the defend- 59. 12 Gratt. 520. See also, Minnick v. Williams, 77 Va. 758. 60. 4 Min. Inst. 639, 713; 1 Barton's Law Practice 260; Allison v. The Farmers' Bank of Virginia, 6 Rand. 204; Tennant's Executor v. Gray, 5 Munf. 494; Baker v. Morris, 10 Leigh 311. 61. The plea of nil debct, as given by Prof. Minor (4 Institutes, p. 770), omitting the entitlements, is as follows: "And the said de- 73 THE GENERAL ISSUES IN DEBT 97 ant does not owe the money claimed by the plaintiff, without in- dicating in any manner why he does not owe it, thus leaving the plaintiff in the dark as to the real defence, and giving to the de- fendant the fullest possible scope as to what defences he will bring forward to avoid the payment of the claim. As said by Prof. Minor: 62 "Under the plea of nil debet the defendant may prove at the trial coverture when the promise was made, 63 lun- acy, duress, infancy, release, arbitrament, accord and satisfac- tion, payment, a want of consideration for the promise, failure or fraud in the consideration, a former judgment for the same cause of action, illegality in the contract, as gaming, usury, etc. ; or that the contract was void by the statute of parol agreements ; and, in short, anything which shows that there is no existing debt due. * * * The statute of limitations, bankruptcy, and ten- der are believed * * * to be the only defences which may not be proved under the plea, and they are excepted because they do not contest that the debt is owing, but insist only that no action can be maintained for it." But while, as stated above, payment may be shown under nil debet this will not be permitted unless a list of payments be filed. 64 That accord and satisfaction can be given in evidence under a plea of nil debet, seems to be settled in Virginia (notwithstanding an early case to the contrary), and by the weight of authority elsewhere. 65 While an award may be shown under nil debet, an agreement to submit cannot, although fendant, by his attorney, comes and says that he does not owe the said sum of dollars, or any part thereof, in manner and form as the said plaintiff hath above complained; and of this the said de- fendant puts himself upon the country." 62. 4 Min. Inst. 770. See, also, Va. Fire, etc., Ins. Co. v. Buck, 88 Va. 517, 13 S. E. 973; Columbia Accident Ass'n v. Rockey, 93 Va. 678, 25 S. E. 1009. While probably not necessary to the decision, each of these cases adopts the statement of Prof. Minor. 63. This would no longer be a defence. See Code, 2286a, giving to married women full power to contract. 64. Code, 3298; Richmond, etc., R. Co. v. Johnson, 90 Va. 775, 20 S. E. 148. 65. See authorities cited in note 62, ante, and Stephen on Plead- ing, 147; 5 Encl. PI. & Pr. 922; 1 End. Law & Practice (the dis- continued work), 656. See, however, M'Guire v. Gadsby, 3 Call. 204, and 7 Robinson's Practice 549-550, where the matter is discussed. 7 98 ACTION OF DEBT 73 it be irrevocable. Such an agreement is a matter of abatement only, and must be so pleaded. 66 If the submission and award be made in a pending suit, the award cannot be given in evidence under nil debet, as all pleadings speak as of the date of the writ, and at that time there was no award. 67 Nil debet is, ordinarily, a bad plea to debt on a specialty. If the acknowledgment of in- debtedness is under seal this imports, or dispenses with, a con- sideration, and hence if the action were debt on a bond the de- fendant could not plead nil debet, which plea allows a denial of consideration, because this is a defence forbidden by the seal. He cannot plead what he would not be allowed to prove. 68 As Mr. Tucker says, in the reference given in the margin, "the bond acknowledges the debt, and, being under seal, the defendant is estopped to deny the debt, unless he denies the deed," in other words, unless he pleads non est factum. But it is said that when the specialty is only inducement to the action, and matter of fact its foundation, nil debet is the proper plea. A prominent illustra- tion of this is an action of debt for rent under a sealed lease. 68a However, as is well said by Mr. Barton : "The distinction is too refined for ordinary practice, and the safe rule is never to plead nil debet to a specialty." 6 8b As we have seen, a judgment of this State or of a sister State is regarded as a conclusive record, and, consequently, it is held that nil debet is not a good plea to an action of debt on such judg- ments. The reason given is that nil debet assumes that the mat- ter is still in dispute and the judgment not conclusive, and if is- sue were taken on that plea the plaintiff would waive the conclu- sive effect of his judgment. 680 But it is a good plea to an action of debt on a foreign judgment, and in such action on a judg- 66. Riley v. Jarvis, 43 W. Va. 43, 26 S. E. 366. 67. Austin v. Jones, Gilmer 341; Harrison v. Brock, 1 Munf. 22. 68. 5 End. PI. & Pr. 924; 2 Tucker's Commentaries 103; Super- visors v. Dunn, 27 Gratt. 608. 68a. 5 Encl. PI. & Pr. 924; 2 Tucker's Commentaries 103, 108; Stephen's Pleading 280, 281, notes. 68b. 1 Barton's Law Practice 491. 68c. Clarke's Admr. v. Day, 2 Leigh 187; Kemp v. Mundell and Chapin, 9 Leigh 12; 5 Encl. PI. & Pr. 925-926; 11 Idem, 1154-1155. 73 THE GENERAL ISSUES IN DEBT 99 ment recovered before a justice of the peace of a sister State. 684 If, after judgment, a new action (not on the judgment) is brought for the same cause, this fact (which would defeat the second action by reason of the merger of the cause of action in the first judgment) may be shown under the general issue of nil debet. 69 As the action of debt is in so many cases brought on writings, the signatures to which, in the absence of statute, it would be necessary for the plaintiff to prove, attention is called to the Virginia statute which provides that "Where a bill, decla- ration, or other pleading alleges that any person made, indorsed, assigned, or accepted any writing, no proof of the fact alleged shall be required, unless an affidavit be filed with the pleading putting it in issue, denying that such endorsement, assignment, acceptance, or other writing was made by the person charged therewith, or by any one thereto authorized by him." 70 It has been held that the effect of this statute is to dispense with the proof of handwriting in actions on writings not under seal; nothing more. 71 By a similar statute 72 it is enacted that: "Where plaintiffs or defendants sue or are sued as partners, and their names are set forth in the declaration or bill, or where plaintiffs or defendants sue or are sued as a corporation, it shall not be necessary to prove the fact of the partnership or incor- poration, unless with the pleading which puts the matter in issue, there be an affidavit denying such partnership or incorporation." 68d. 11 Encl. PI. & Pr. 1158. In Draper's Ex'rs v. Gorman, 8 Leigh 628, it was held that the District of Columbia is not a State, and that the judgment of one of its courts was to be treated as a for- eign judgment, in an action on which in this State nil debet was a proper plea. 69. 2 Black on Judgments, 785. 70. Code, 3279. See Chestnut v. Chestnut, 104 Va. 539, 52 S. E. 348. 71. Phaup v. Stratton, 9 Gratt. 619; Clason v. Parrish, 93 Va. 24, 24 S. E. 471, 2 Va. Law Register 188, and note. See annotations to the above section of the Code in Pollard's Code of Virginia, and in Justis' Annotations to the Code of West Virginia, p. 802. As to proof of signature evidencing release, payment, or set-off, see Code of Virginia, 3250. If the instrument were under seal its execution could only be denied by a plea of non est factum which is required to be verified by oath. Code, 3278. 72. Code, 3280. See Annotations in Pollard's Code of Virginia, and in Justis' Annotations to the Code of West Virginia, p. 803. 100 ACTION OF DEBT 73 It is not the practice to write out the plea of nil debet, but when the case is called for trial, or at the rules if the defendant prefers, the counsel for the defendant simply instructs the clerk to enter a plea of nil debet, and, under the above statutes requiring affidavits, it would seem to be sufficient for the defend- ant to enter his plea of nil debet orally and, at the same time, to offer his affidavit, in which event the clerk receives it, endorses it and pirs it with the other pleadings, etc., in the case. 73 The broad general issues, including nil debet, are so general in their character, and the defences which may be introduced un- der them are so numerous, that a plea of nil debet gives to the plaintiff no intimation of what the actual defence is, and he is required to be prepared to meet all of the defences which may be made under such a plea. This often resulted in the plaintiffs' being taken by surprise. This objection is in some degree obvi- ated by the statute providing that the court may order a state- ment to be filed of the grounds of defence, and, on a failure to comply with such order, may, on the trial, exclude evidence of any matter not described in the plea so plainly as to give the ad- verse party notice of its character. 74 But, while a statement of grounds of defence which is so indefinite and general that it gives the plaintiff no more notice of the defence than the gen- eral issue, is insufficient, 75 yet, on the other hand, the defendant may allege in such statement as many different grounds of de- fence as his imagination may suggest, and, if he includes among such grounds his actual defences, he is safe. So, even with the aid of 3249 the plaintiff may still be left to conjecture in de- termining what the real defence is. 2. NON EST FACTUM. This is the general issue in debt on a sealed instrument. Un- like nil debet the plea of non est factum is a narrow general is- 73. Moreland v. Moreland, 108 Va. 93, 60 S. E. 730. This case was an action of assumpsit and the affidavit required was under 3286 of the Code, but the same reasoning would apply to an action ot debt and the affidavits above discussed. 74. Code, 3249. 75. Chestnut v. Chestnut, 104 Va. 539, 52 S. E. 348. See as to proper practice Columbia Accident Association v. Rockey, 93 Va. 678, 25 S. E. 1009. 73 THE GENERAL ISSUES IN DEBT 101 sue, and under it no defence may properly be given in evidence which does not render the instrument sued on void as distin- guished from voidable. 76 By the express provisions of the stat- ute no plea of non est factum may be received unless it be veri- fied by oath. 77 It will be seen by reference to the form of the plea that the defendant simply alleges that the instrument sued on "is not his deed," and it is not usual to file this plea unless it is intended to dispute the validity of the instrument sued on; payment being the plea most frequently used, or a sworn equita- ble plea under 3299 of the Code. 78 As said by Prof. Minor: 79 "Under this plea the burden of proof is upon the plaintiff, who affirms the execution of the bond, to prove it, and if at the trial he fails to do so satisfactorily, the verdict should be against him. But the defendant, on his part, may show at the trial either that he never executed the writing, or that it is absolutely void in law ; e. g., for coverture or lunacy; or because since its execution and before the commencement of the suit, it has been erased or al- tered fraudulently, or in a material part by the opposing party in interest. But he cannot show under it any matter which makes the deed simply voidable, but not absolutely void; e. g., infancy, duress, fraud in the consideration, or any statutory illegality, such as gaming, etc. These must be the subject of special pleas, that is, in an action on a sealed instrument ; but in an action of debt or assumpsit on an unsealed contract, all these things may be proved under the general issues of nil debet and non assumpsit respectively." If a defendant admits the execution of the sealed instrument, and intends to rely upon some fact rendering it void, the usual and better practice is to plead non est factum and to accompany it with a special affidavit setting out specifically the facts rendering the instrument void. "Though gaming consideration and usury rendered a bond void, yet it has always been held that they must be specially 76. Graves' Notes on Pleading (old) 79; Stephen's Pleading, 146; 5 Encl. PI. & Pr. 923. 77. Code, 3278. For forms of plea and affidavit, see 4 Min. Inst. 768; Gregory's Forms 328. 78. 1 Barton's Law Practice 494; 2 Tucker's Commentaries 104. 116. 79. 4 Min. Inst. 769. 102 ACTION OF DEBT 73 pleaded. 80 As to lunacy, it is doubtful whether this renders a contract void, and there are many cases to the contrary.'' 81 So, as non est factum goes to the execution of the instrument, alleg- ing it to be void in law, under such plea fraud in the factum may be shown, but not fraud in the procurement. 82 Failure in the consideration of the contract, or fraud in its procurement, or breach of warranty of the title or soundness of personal prop- erty although not provable under non est jactwm are, neverthe- less, good defences, and may be shown by a special plea under 3299 of the Code. 8 * 3. NUL TIEL RECORD. The general issue in debt on a judgment or other record is nul tiel record, a narrow general issue disputing the existence of any such record. So, nul tiel record is the general issue in an action of debt on a judgment of a court of record of the State in which it is rendered, or of a sister State. 84 Under such plea it may be shown that there is no such judgment, or that there is a variance between the judgment set forth in the declaration and that de- scribed in the record, and as a general rule these are the only questions raised by the plea. However, if want of jurisdiction affirmatively appears on the face of the record, such defence is available under this plea, and if the record fails to show juris- diction, it cannot be aided by other evidence. 85 When the decla- ration vouches the record the burden is on the plaintiff to show 80. Graves' Notes on Pleading (old) 79-80, and authorities cited. 81. Graves' Notes on Pleading (old) 80; Gould PI. 300; Bishop on Contracts (2nd ed.) 181; Allis v. Billings (Mass.), 6 Mete. 415, 39 Am. Dec. 749, and note; Clark on Contracts, 268; see, however, Stephen's Pleading, 280. 82. Hayes v. Va. Mutual Protective Ass'n, 76 Va. 225; Graves' Notes on PI. (old) 80; Columbia Accident Ass'n v. Rockey, 93 Va. 678, 25 S. E. 1009. 83. Columbia Accident Ass'n v. Rockey, 93 Va. 678, 25 S. E. 1009. The plea of non est factum bars the action only as to him who pleads it, and does not affect the liability of the other defendants. Bush v. Campbell, 26 Gratt. 403; Trust Co. v. Price, 103 Va. 298, 49 S. E. 73. 84. 11 Encl. PI. & Pr. 1149, 1150. 85. 11 Encl. PI. & Pr. 1150-1153; Wood v. Comm., 4 Rand. 329. 73 THE GENERAL ISSUES IN DEBT 103 its existence, and the record itself is the only evidence receivable to prove its contents. 86 The plea of mil tiel record is not appli- cable to a declaration on a judgment of a court not of record, or of a foreign country, or, it is said to a decree in chancery, be- cause such decrees are said not to be records. 87 The proper plea in such cases would be nil debet. 88 In the United States Su- preme Court and many of the States it is held that nil debet may be pleaded to an action on a domestic judgment, or a judgment of a sister State, for the purpose of denying the jurisdiction of the Court which rendered the judgment, but the plea would not be allowed the broad scope usually given it. However, this is not the rule in the majority of the States, but, on the contrary, it is held that where want of jurisdiction in a domestic court, or a court of a sister State, is available as a defence it should be made by a special plea showing with particularity such want of jurisdiction, 89 and certainly this would always be 86. 4 Min. Inst. 814; 11 End. PI. & Pr. 1152-1153. 87. 11 End-. PI. & Pr. 1150. 88. Idem, p. 1158. 89. Idem, pp. 1156, 1157, 1159-1164; 5 End. PI. & Pr. 925, 927; Thompson v. Whitman, 18 Wall. 462. In Clarke v. Day, 2 Leigh 172, and in Kemp v. Mundell, 9 Leigh 12, it was specifically held that nil debet was not a good plea to an action of debt on a judgment of a court of record of a sister State. In Draper's Exrs. v. Gorman, 8 Leigh 628, it was held that a judg- ment of a District of Columbia Court was a foreign judgment, be- cause said district was not a State under the provisions of the "full faith and credit" cause of the Constitution of the United States, and that, therefore, nil debet was a proper plea. The court evidently considered that on a foreign judgment under a plea of nil debet the jurisdiction of the court could be inquired into. Judge Parker said, on p. 636: "There are defences which may be made to foreign judg- ments without trenching upon any rule of sound policy; such as want of jurisdiction, or that the defendant had no notice of the suit, or that the judgment was obtained by fraud or founded in mistake, or was irregular and void by the local law; and there ought to be some general issue to let in these defences, without driving the de- fendant to a special plea. Therefore I think the plea of nil debet ought to have been received." This was only as to foreign judg- ments, however, and it was specifically held in Bowler v. Huston, 30 Gratt. 266, that want of jurisdiction of a court of record of a sister State must be specially pleaded and cannot be shown under nil debet. The opinion in the case is full and exhaustive. 104 ACTION OF DEBT 73 the safe procedure. Want of jurisdiction of a foreign court may be shown under nil debet. 90 No matters which are simply in dis- charge of a judgment, such as payment, accord and satisfaction, or other matters arising subsequent to the judgment, can be shown under nul tiel record. They must be specially pleaded. 91 Fraud, if relied on, must be specially pleaded, and the facts con- stituting the fraud must be distinctly averred in the plea. 92 The form of the plea may be found in the reference given in the margin. 93 The plea concludes with a verification, and the replica- tion must state that there is such a record and conclude prout patet per recordum, with a prayer that it be inspected by the court. 94 . The plea raises no issue as to the validity of the declaration, the justice of the original judgment, its payment or satisfaction, its assignment, .fraud in its procurement, nor clerical error in taxing costs. 95 The issue made upon a plea of nul tiel record is to be tried by the court on a simple inspection of the record produced, and not by the jury. Of course, a duly authenticated copy of the record is sufficient, and, if it be destroyed, secondary evidence of it may be admitted. 96 If there are other issues besides the one made by this plea, the issue on the plea of nul tiel record should be tried first. 97 90. Draper's Exrs. v. Gorman, 8 Leigh 628; 5 Encl. PI. & Pr. 925. 91. 11 Encl. PI. & Pr. 1164. 92. 11 Encl. PI. & Pr. 1166. But as to foreign judgments see quo- tation from Draper's Exrs. v. Gorman, supra. 93. 4 Min. Inst. 1757. 94. 11 Encl. PI. & Pr. 1154 and 1166; Eppes v. Smith, 4 Munf. 466. 95. 11 Encl. PI. & Pr. 1153. 96. 11 Encl. PI. & Pr. 1153, 1154; 4 Min. Inst. 814. 97. Eppes v. Smith, 4 Munf. 466; Burks' Exrs. v. Treggs' Exrs., 3 Wash. 215; Gee v. Hamilton, 6 Munf. 32. CHAPTER IX. ACTION OF COVENANT. 74. Nature of the action. 75. When covenant lies. 76. When covenant does not lie. 77. Who may bring covenant. 78. The declaration. 79. Pleas in action of covenant. 80. Covenants performed and covenants not broken. 81. Plea of non damnificatus. 82. Assumpsit as a substitute for covenant. 74. Nature of the action. The action of covenant is the appropriate remedy for the re- covery of damages occasioned by the breach of a covenant or contract in writing under seal. 1 As said by Prof. Minor: "The action of covenant is employed to recover damages sufficient to make amends for a breach of covenant, that is, of a contract un- der seal. The covenant may be to pay money or to do a collat- eral thing. If it is to pay money the damages which the cov- enantee is entitled to recover by way of compensation or amends for -the breach, is the money covenanted to be paid, with inter- est from the time that it ought to have been paid. When the covenant is not to pay money, but to do some collateral thing, there is no uniform standard of damages, but they must be es- timated by a jury, according to the circumstances of each case. Where the covenant is to pay money, it is obvious that the ac- tion of debt and the action of covenant are concurrent remedies, and may either of them be resorted to. Thus in the case of a common money bond, the action of debt will lie, because it is a promise to pay a specific sum of money, and the, action of cove- nant may be brought because it is a contract under seal. The amount recovered in either action is the same; but there is a difference in the light in which the transaction is regarded in reference to the two actions respectively. When debt is brought, 1. 5 Encl. PI. & Pr. 343. 106 ACTION OF COVENANT 74 the plaintiff demands the specific sum eo numero, which the de- fendant engaged to pay, and he recovers accordingly. When the action is covenant, the plaintiff complains that the defendant, having made a very solemn promise under his seal, has recklessly violated it, whereby the complainant has suffered damage to an amount which he names, and which a jury must be called to as- sess, although, as we have seen, the invariable criterion of amount in practice is the sum which the defendant ought to have paid, with interest." 2 In the one case he recovers money eo nomine; in the other, damages ; but the amounts are the same. The covenant may be express or implied. 3 As said in Tucker's Commen- taries: 4 "Covenants are either express or implied, or (which is the same thing) in deed or in law. Express covenants are set forth in terms in the deed; and no particular form of words is necessary to constitute them. Implied covenants are those which the law raises from the character of the transaction, or from cer- tain technical expressions used in the instrument. Thus, the word 'demise' implies a covenant for quiet enjoyment; and the words 'yielding and paying,' a covenant to pay rent." 5 But it should be carefully borne in mind that for a covenant to be im- plied so that an action of covenant will lie, the instrument from which the implication is sought to be drawn must have been signed and sealed by the party sought to be held as the cov- enantor. Such signature and seal is a sine- qua non. Thus when in a deed poll a promise or undertaking is imposed upon the grantee (who does not sign the deed), the grantee by accepting the deed is held to be liable for the performance of such promise or undertaking, on the ground of an implied contract arising from such acceptance. But this implied contract is in the na- ture of an assumpsit, and is a simple contract on which, indeed, assumpsit will lie, but not covenant. Such an agreement is not 2. 4 Min. Inst. 426. 3. 5 Encl. PI. & Pr. 346; 2 Tucker's Com. 121. 4. 2 Tucker's Com. 121. 5. So, in a note in 4 Va. Law Register 459, the editor says: "It seems that an acknowledgment of a debt, under seal, when not made diverso intuitu, is regarded as a specialty, though the promise is merely implied. Powell v. White, 11 Leigh 309, 322; 3 Min. Inst. 347. See Wolf v. Violet, 78 Va. 57." 75 WHEN COVENANT LIES 107 a specialty or contract under seal, and covenant will only lie when the instrument is actually signed and sealed by the party or by his authority. 6 75. When covenant lies. Covenant has been held to be well brought in the following instances: To enforce awards, when the submission is under seal ; to recover damages for breach of a promise to pay money when the promise is under seal, the damages being the debt due, with interest; to recover damages for the non-performance of collateral agreements under seal; 7 upon a bond payable in in- stalments, a part of which alone are due (and in this case debt will not lie) ; 8 on annuity and mortgage deeds ; on leases under seal at the suit of the lessee; by the lessor for the non-payment of rent, or for not repairing; on a sealed guaranty; for breach of a covenant to save harmless from a judgment; to do repairs, to reside on the premises, or to cultivate them in a particular manner; not to carry on a particular trade; to deliver boards; and on a bond for the delivery of goods ; upon a penal bond, or an attachment bond; always remembering that the action lies on all obligations under seal to pay money or to do anything else, but that it lies upon no contract unless it be in writing and under seal, and against no person save he who, by himself, or his duly authorized agent acting in his behalf, has executed the sealed instrument. 9 6. Taylor r. Forbes, 101 Va. 658, 44 S. E. 888; Barnes v. Crockett's Admr., Ill Va. 240, 68 S. E. 983; Harris v. Shields, 111 Va. 643, 69 S. E. 933; West Virginia, etc., R. Co. v. Mclntire, 44 W. Va. 210, 28 S. E. 696; note to Dawson v. Western Maryland R. Co., 15 Anno. Cases 683. There is some conflict in the authorities on this point, but the statement in the text is believed to be supported by the great weight of authority. 7. 4 Min. Inst. 181-185; Idem, 551, 552. 8. Peyton v. Harman, 22 Gratt. 643. And in all cases where the damages are unliquidated, covenant is the peculiar remedy, and debt will not lie. 1 Barton's Law Practice 177; 5 End. PI. & Pr. 344; Hogg's Pleading & Forms 44. 9. Hogg's Pleading & Forms, 43-45; 1 Barton's Law Practice 176- 177; 5 Encl. PI. & Pr. 345, ct scq.; Taylor v. Forbes, 101 Va. 658, 44 S. E. 888. 108 ACTION OF COVENANT 76-77 76. When covenant does not lie. In general it may be stated that the action of covenant will not lie upon any unwritten contract, nor upon a contract in writing unless it is under seal and executed by the defendant or his duly authorized agent. 10 And where an agreement under seal has been modified by a subsequent parol agreement upon some point essential to the liability of the defendant, covenant will not lie, but assumpsit is the proper remedy. 11 It has also been held that an action of covenant will not lie on a deed of trust executed merely for the collateral security of promissory notes. The trust deed does not raise the note to the dignity of a specialty, and a promise under seal cannot be im- plied from a deed executed, not as an evidence of indebtedness, but simply to create a security. The bare recital of the debt in the deed of trust does not suffice to convert the simple contract debt secured by the deed of trust into a specialty. A deed of trust is but an incident to the debt; it is not the debt itself. 12 77. Who may bring covenant. As a general rule, the covenantee is the proper person to main- tain an action on a covenant for its breach. 13 At common law an indenture or deed inter paries was only available between the parties to it and their privies, and a third person could maintain no action on a covenant therein, although named in the instru- ment and the covenant was made for his benefit. 14 The rule stated, however, did not apply to deeds poll, and at common law 10. 5 Encl. PI. & Pr. 350. 11. 5 Encl. PI. & Pr. 351; 3 Rob. Pr. 369; Hogg's Pleading & Forms 45; 11 Cyc. 1027. 12. Wolf v. Violet, 78 Va. 57. 13. 5 Encl. PI. & Pr. 352, 357; Bullock v. Sebrell, 6 Leigh 560; Poindexter v. Wilton, 3 Munf. 183; Ross v. Milne, 12 Leigh 209; Stuart v. James River, etc., Co., 24 Gratt. 294; Newberry Land Co. v. Newberry, 95 Va. 120, 27 S. E. 899; Jones v. Thomas, 21 Gratt. 96. See also monographic note on the Action of Covenant, 1 Wash. (Va. Rep. Anno.) 308. 14. See cases cited ante, note 13, especially Ross v. Milne; also, Willard v. Worsham, 76 Va. 392; Johnson v. McClung, 26 W. Va. 659; 5 Encl. PI. & Pr. 357. 78 THE DECLARATION 109 a person, though not a party to a deed poll, could sue upon it if the instrument showed upon its face that it was made for his ben- efit. 15 But the common-law rule has been so far modified by stat- ute in many States that it is now generally provided that the real party in interest may bring an action in his own name on the covenant. 16 In Virginia it is provided by 2415 of the Code that "if a covenant or promise be made for the sole benefit of a person with whom it is not made, or with whom it is made jointly with others, such person may maintain in his own name any action thereon, which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise." However, it has been held 17 that, under this statute, in order for one not a party nor a privy to such party to sue upon an indenture or deed in- ter paries, he must be named or definitely pointed out in the in- strument itself as beneficiary, and that extrinsic evidence is not admissible to show that the covenant sued on was made solely for his benefit. 18 Of course, the original right to sue in the name of the contracting party is not destroyed by the new rem- edy allowed by this statute, but, on the contrary, remains in full force. 19 78. The declaration. Prof. Minor, in his Institutes 20 says: "As the action of covenant can only be supported on a deed, there is less variety 15. See cases cited in two preceding notes. 16. 5 Encl. PI. & Pr. 352; Idem, p. 358. 17. Newberry Land Co. v. Newberry, 95 Va. 120, 27 S. E. 899. See also Mcllvane v. Big Stony Lumber Co., 105 Va. 613, 54 S. E. 473. 18. See 2860 of the Code of Virginia for a somewhat similar statute. Mr. Pollard in his notes to 2415, Code, makes the query whether the action held improper in Newberry Land Co. v. New- berry, supra, would not lie under 2860. See 4 Va. Law Register 616, where the editor seems to think that it would. See also, ante, 47. 19. Mutual B. Life Ins. Co. v. Atwood's Admr'x, 24 Gratt. 497, 509-510. 20. 4 Min. Inst. 706. 110 ACTION OF COVENANT 78 in the declarations in this action than in debt, and, therefore, but few observations will here be necessary, especially as most of the rules to be observed in framing a declaration in assumpsit or debt equally apply to covenant. "The doctrine touching the statement of the inducement or introductory matter to the material averments ; the mode of setting out the deed; the profert of it; the averments of condi- tions and their performance, of notice, etc., and the statement of the breach or breaches of the covenant, are essentially the same in this action as in assumpsit and debt. It is usual after stating the breaches of the covenant declared upon, to conclude by alleging: 'And so the said plaintiff says, that the said de- fendant (although often requested so to do), hath not kept his said covenant, but hath broken the same,' etc. ; but this is a merely formal allegation, and may be omitted." Various forms of the declaration in this action will be found in the works referred to in the margin. 21 As covenant lies only on sealed instruments and as the seal imports a consideration, it is held that the covenant should be set out without any intermediate inducements or statement of the consideration. 22 A promise, or words equivalent to a promise, must be averred or asserted in the declaration. 23 The covenant, of course, must be recited, but it is sufficient to set out in the declaration the substance and legal effect only of such parts of the deed as are necessary to entitle the plain- tiff to recover, and the whole of the agreement need not be recited. 24 As the action lies on sealed instruments only, the declaration must state that the contract sued on- was under seal; but there are certain words such as "indenture," "deed," or "writing obligatory," which of themselves import that the instrument is sealed, and the use of such words will be suffi- 21. 4 Min. Inst. 1691-1697; 1 Barton's Law Practice 409-415; Greg- ory's Forms, 9-15; Hogg's Pleading & Forms 305-309. See gener- ally, as to the declaration in covenant, the last-named work, 99-104; and also 5 Encl. PI. & Pr. 362-376; 2 Tucker's Com. 126, 127. 22. Jones v. Thomas, 21 Gratt. 96; 5 Encl. PI. & Pr. 365. 23. 5 Encl. PI. & Pr. 365. 24. Buster's Exr. v. Wallace, 4 H. & M. 82; Backus v. Taylor, 6 Munf. 488; 5 Encl. PL & Pr. 365, 366. 78 THE DECLARATION 111 cient. 25 Although a delivery of the instrument should generally be alleged, the authorities are conflicting as to whether such an allegation is necessary. 26 It may be stated as a general rule with respect to the state- ment by the plaintiff of the covenant and its breach that, as he is suing for the breach of a contract, he must, of course, show by his pleading that the defendant lias broken the con- tract, and that he, himself, is in no default, but has performed, or has been excused from performing, all acts which were in the nature of conditions precedent to his right to hold the defendant liable. 27 Thus in an action by the lessee against the lessor to recover damages for a refusal to renew the lease,, the lessee must aver and prove performance on his part, at the time and in the manner stipulated for, of all that was required of him by the terms of the lease, as a condition of such renewal, or give some valid excuse for his nonperform- ance. 28 The breach of the covenant should be clearly stated. The common-law method of doing this was to negative the words of the covenant, and this is generally sufficient. But it may be well assigned in other words coextensive with the covenant's import and effect, and as general as the words of the covenant, or by stating the covenant's legal effect, provided that the facts stated in the declaration necessarily show that the covenant is broken. 29 All that can ever be required is that the declaration shall state a breach which is clearly within the covenant declared upon. 30 The object of this action being to recover damages, they should always be stated in a sum sufficiently large to cover any possible recovery, but are usually averred in the most general manner. 31 25. 5 End. PI. & Pr. 366. 26. 5 Encl. PI. & Pr. 366. 27. See. on this general subject, Harris v. Lewis, 5 W. Va. 575;. Clark r. Franklin, 7 Leigh 1; Buster v. Wallace, 4 H. & M. 82; Aus- tin v. Whitlock, 1 Munf. 487; note on the Action of Covenant, } Wash. (Va. Rep. Anno.) 532-533; 5 Encl. PI. & Pr. 365-374. 28. Grubb v. Burford, 98 Va. 553, 37 S. E. 4. 29. 5 Encl. PI. & Pr. 369, 370; Hogg's Pleading & Forms 102. 30. Austin v. Whitlock, 1 Munf. 487; 5 Encl. PI. & Pr. 370. 31. Hogg's Pleading & Forms 102; 5 Encl. PI. & Pr. 376. 112 ACTION OF COVENANT 79-80 79. Pleas in action of covenant. Although Prof. Minor speaks of non est factum as being the general issue in covenant, 32 it is said that strictly speaking there never was any general issue in the action of covenant, as the plea of non est factum only puts in issue the execution of the deed sued on, as in debt on specialty, and not the breach of covenant, or any other defence. 33 Non est factum pleaded al6ne admits all the material averments of the decla- ration, except the execution of the instrument declared upon, or other matters rendering the instrument void, 34 and, in such case, the plaintiff is not put to proof of any thing else con- tained in his declaration, except to show the amount of dam- ages. "In order that other defences may be relied upon, they must be pleaded specially." 343 Thus all pleas to a declaration in covenant are in effect special pleas. 35 Among such matters which must be specially plead may be mentioned performance of the covenant, or excuse for nonperformance ; matters of discharge such as bankruptcy, accord and satisfaction after breach, or arbitration and award ; former recovery, foreign at- tachment, release, tender, payment, set-off, and non damnifi- catus. 3Q 80. Covenants performed and covenants not broken. A plea of "covenants performed" or one of "covenants not broken" is a proper plea to an action alleging the breach of covenants. If the allegation in the declaration is of the ex- istence of an affirmative covenant, the plea should be "covenants performed" for the declaration would be an allegation of an affirmative covenant with a negation of its performance, and 32. 4 Min. Inst. 772. 33. 5 End. PI. & Pr. 377, 378; Hogg's Pleading & Forms 183. In the reference given to Minor's Institutes, above, it is said that the rules as to the scope and effect of the plea of non est factum are the same in covenant as in debt, so it will be unnecessary to enter into 'detail here with respect to this plea. See ante, 73. 34. See ante, 73. 34a. 5 Encl. PI. & Pr. 378. 35. 5 Encl. PI. & Pr. 379. .36. Hogg's Pleading & Forms 195; 5 Encl. PI. & Pr. 379-385. 80 COVENANTS PERFORMED 113 the plea being affirmative, i. e., "covenants performed," would make an issue. For like reasons if the covenant be negative, as that the defendant would refrain from doing a thing, the plea should be "covenants not broken." 37 Sometimes the action is on a bond with condition to do or not to do a particular thing. Then the same principle applies, and the plea would be "conditions performed," or "conditions not broken" as the case may be, merely substituting the word "condition" for the word "covenant" in the pleas first above men- tioned. 38 The plea of "covenants performed," as a general rule, must show specially the time, place and manner of performing each covenant, and if it fails to do so it should be rejected. 39 The issue presented by the plea of "covenants performed" is a narrow one, limited to the defences indicated by the language of the plea. The plea can only be supported by evidence which shows that the defendant has performed his covenant, and not by evidence excusing his performance thereof, such as a failure on the part of the plaintiff to perform a condition precedent to his right to recovery, waiver of performance, or impossibility or inability to perform. All such matters must be the subject of special pleas. 40 If the declaration is upon both affirmative and negative cov- enants, then covenants performed should be pleaded to the former, and covenants not broken to the latter. The usual prac- tice is to offer both pleas wherever either would be applicable. 41 37. Chewning v. Wilkinson, 95 Va. 667, 29 S. E. 680; 5 Rob. Prac. 668; 1 Barton's Law Practice 501-502; Hogg's Pleading & Forms 183- 184, 310, note 1; 5 'Encl. PI. & Pr. 380-382; 2 Tucker's Com. 127. 38. Poling v. Mattox, 41 W. Va. 779, 24 S. E. 999; Archer v. Archer, 8 Gratt. 539; Supervisors v. Dunn, 27 Gratt. 620; Elam v. Commercial Bank, 86 Va. 95, 9 S. E. 498; Chewning v. Wilkinson, 95 Va. 667, 29 S. E. 680. 39. Norfolk & C. R. Co. v. Suffolk Lumber Co., 92 Va. 413, 23 S. E. 737; Arnold v. Cole, 42 W. Va. 663, 26 S. E. 312; 4 Min. Inst. 1202. 40. Chewning v. Wilkinson, 95 Va. 667, 29 S. E. 680; Scraggs v. Hill, 37 W. Va. 706, 17 S. E. 185; 5 Encl. PI. & Pr. 380-381, notes; Fairfax v. Lewis, 2 Rand. 40. See also original article, 5 Va. L. Reg. 586. 41. 1 Barton's Law Practice 502; Hogg's Pleading & Forms 184; 2 Tucker's Com. 127. 8 114 ACTION OF COVENANT 81 It would seem that in this action the plaintiff will only be required to prove such matters as are put in issue 'by the defendant's special plea or pleas, and that where the defendant puts in the plea of covenants performed and covenants not broken but does not plead non est factum, he admits the execution of the instrument sued on, and the warranty or covenant therein con- tained, and no proof of such matters will be required. 42 Where issue is joined on the defendant's plea of performance the burden of proof is on him. 43 It is stated that a plea of covenants performed, being an affirmative plea, should conclude with a verification;** and this would seem to be true in view of the rule that such plea must show the time, place and manner of performance, and thus introduce new matter. 45 81. Plea of non damnificatus. The plea of non damnificatus is in the nature of a plea of performance and is applicable only to an action on a bond with condition, or covenant, to indemnify and save harmless. These or equivalent words must be contained in the bond, and a general plea is allowed simply denying that the plaintiff has been damnified, and he can make the issue more specific by his replication, pointing out how, when, and wherein he was damnified. The plea is not applicable (1) where the bond sued on does not contain the words indemnify and save harm- less, or one of them, or their equivalent, (2) where the bond is not to indemnify and save harmless, but to perform some specific act, although it may pro tanto amount to indemnity. A plea that the defendant has saved harmless the plaintiff is 42. Code, 3279; Riddle & Core, 21 W. Va. 530; Arnold v. Cole, 42 W. Va. 663, 26 S. E. 312; Hogg's Pleading & Forms 310, note; 5 Encl. PI. & Pr. 379; Austin v. Whitlock, 1 Munf. 487. For forms, of these pleas, see Hogg's Pleading & Forms 309; Gregory's Forms 350-351; 4 Min. Inst. 1742-1744. 43. 5 Rob. Prac. 671. 44. 5 Encl. PI. & Pr. 381, 382. And see forms in references given in note 1, supra. 45. As to the rule when new matter is introduced, see Stephen's Pleading. 168. 82 ASSUMPSIT AS A SUBSTITUTE FOR COVENANT 115 bad, unless it specifically points out how he has saved him harmless. 46 82. Assumpsit as a substitute for covenant. In the year 1897, the Legislature of Virginia by one short statute made a revolutionary change in the law, which very intimately affects the action of covenant. This statute pro- vides that "In any case in which an action of covenant will lie there may be maintained an action of assumpsit." 47 The full effect of this statute on the rules of pleading sub- sequent to the declaration has not as yet been settled. But it is certain, as said by Prof. Graves, that "The effect of this important statute is to bridge the gulf which at common law exists between covenant and assumpsit, and to allow assumpsit to take the place of both actions." The two actions, however, are not interchangeable. "Covenant does not 'lie when as- sumpsit may be maintained, but assumpsit lies when covenant may be maintained. Covenant remains as at common law. It is the scope of assumpsit that is enlarged." 48 It has been held, under the above statute, that in an action of assumpsit, a special count on a sealed instrument may be united with the common counts in assumpsit; 49 and that a special count in assumpsit can be joined with a special count on a contract under seal, as both are counts in assumpsit. 50 46. 4 Min. Inst. 1203, 1204, 1219, 1220; Stephen's Pleading, 224; 5 Encl. PI. & Pr. 383; Archer v. Archer, 8 Gratt. 539; Supervisors v. Dunn, 27 Gratt. 608; Poling v. Mattox, 41 W. Va. 779, 24 S. E. 999. Where the defendant has already pleaded "conditions performed," the court may refuse to permit him to plead non damnificatus as the two pleas are equivalent. See cases cited and also Elam v. Com- mercial Bank, 86 Va. 95, 9 S. E. 498. This plea is more often used in debt on a bond with condition than in any other case, because debt is more frequently brought on such bonds than covenant. But covenant may be brought on such bonds (Ward v. Johnston, 1 Munf. 45); and also there may be a covenant to indemnify and save harm- less, in which case the plea would be proper. See 5 Encl. PI. & Pr. 383, note 2. 47. Code, 3246a. 48. Graves' Notes on Pleading (new) 21. 49. Grubb v. Burford, 98 Va. 553, 37 S. E. 4. 50. American Bonding Co. v. Milstead, 102 Va. 683, 47 S. E. 853. 116 ACTION OF COVENANT 82 The chief embarrassment to which this statute has given rise is, not as to the form of the declaration, but as to what effect the statute has on the form in which the defenses to sealed instruments must be presented. Are sealed instruments put on the same footing with simple contracts so that failure of consideration, fraud in the procurement, want of considera- tion, breach of warranty, etc., may be put in evidence under non assumpsit, or must such defenses to a specialty still be pleaded specially in an action of assumpsit on the instrument? It seems clear that the declaration must show whether the instrument sued on is under seal or not, and one very potent reason for this is that the defendant may know whether to plead the statute of limitations, or what limitation of the stat- ute is applicable. 51 But it is quite doubtful if, even upon a liberal interpretation of the statute, it would be allowable, under a plea of non assumpsit to an action on a specialty, to make all defenses permissible under such plea in an action on a simple contract. Under such a theory a sealed instrument would be stripped of its every attribute, save only its longer life with respect to the act of limitations, and, contrary to immemorial practice, its consideration could be inquired into, recoupment could be claimed, and fraud and breach of war- ranty could be marshaled to its defeat under the mere unsworn statement of the defendant of "non assumpsit." It is not meant to- intimate that the Legislature could not with propriety make this the rule, nor to impugn the policy of such a rule. In many ways it might be desirable. But it is not believed that the Legislature has done this in the statute under consideration, whatever its intention may have been. The statute must be strained beyond legitimate interpretation, based on a presumed but not expressed intention, before such a result is attained. The legislature dealt with the form of the action only. It left untouched the nature of sealed instruments, and the defendant's pleading to the enlarged action. When the statute allowed case to be brought wherever trespass would lie, no such difficulty was en- countered, as the two actions, were closely assimilated, and 51. 3 Va. Law Reg. 829. 82 ASSUMPSIT AS A SUBSTITUTE FOR COVENANT 117 frequently the plaintiff had his election which he would bring. The general issue was the same in each. But here the situa- tion is entirely different. The two forms of action were never interchangeable, and the plaintiff never had an election between them. It is believed that in assumpsit as in debt there should be, since this statute, two general issues, non assumpsit in ac- tions on simple contract, and non est factum on specialties ; or, at least, under the plea of non assumpsit no proof should be allowed of any matter which would contradict the nature of the instrument ; and, that, in assumpsit as in debt such de- fenses to a specialty as failure or want of consideration, fraud in the procurement, misrepresentation, or breach of warranty should be made by a sworn plea under 3299 of the Code. If the general issue of nil debet is inapplicable (as it is) to an action of debt on a sealed instrument, for exactly the same reason the general issue of non assumpsit should be held in- applicable to assumpsit on a sealed instrument. 52 52. See 10 Va. Law Reg. 766. It should be noted, however, that in the case of Grubb v. Burford, supra, the only plea filed was non assumpsit, but the facts proved in no wise contradicted the nature of the instrument or impugned its consideration; and in American Bonding, etc., Co. v. Milstead, supra, which was assumpsit on a guar- anty company's bond non assumpsit was pleaded, and, at page 690 of 102 Va., Judge Cardwell said: "The Court is further of opinion that the court below did not err in refusing to allow plaintiff in error to file the three special pleas offe.red at the February term of court, 1903, when the cause was tried. Plaintiff in error had pleaded at the prior, term the general issue, and not only were the matters set up in the special pleas such as could have been proved under the general issue, but the privilege was expressly reserved to it, in the order rejecting the pleas, to offer any evidence under the gen- eral issue that was proper to be offered under the pleas tendered, and there is no suggestion anywhere in the record that plaintiff in error was prevented from introducing any evidence which it de- sired in support of matters stated in the pleas, or prejudiced by their rejection." It does not appear what the defenses offered by the special pleas were, and in view of the reservation made, it would seem that what was said as to what was provable under the general is- sue in that case was not necessary to its decision, even if the court meant to pass upon the question now under consideration. CHAPTER X. ASSUMPSIT. 83. History of the action and when it lies. 84. When assumpsit does not lie. 85. Waiving tort and suing in assumpsit. 86. Of general and special assumpsit. Difference between general and special assumpsit. When general assumpsit will not lie. When- general assumpsit will lie. 87. When necessary to declare specially. 88. Nature and constitution of special counts. 89. Account to be filed with the declaration. 90. Avoiding writ of inquiry. 91. Avoiding writ of inquiry and putting defendant to sworn plea. 92. Misjoinder of tort and assumpsit. 93. Nonassumpsit. 94. Special pleas. 83. History of the action and when it lies. As said by Chitty, "A minute inquiry into the history of this action would at this time be matter of ciiriosity rather than of practical utility." 1 Suffice it to say that, originally, the action of assumpsit was a tort action, pure and simple, to recover damages for a wrong done. It was given first for malfeasance, the doing of a thing a man had no right to do, then it was ex- tended to acts of misfeasance, doing what a man had a right to do, but doing it in an improper manner, and was finally extended to non-feasance, the -failure to do what one ought to do, and hence, the breach of an executory contract. 2 Its nature is well suggested by its name, assumpsit, he has agreed or promised, which is descriptive of the defendant's undertaking. 3 It is the broadest in its scope and the most used of all the ex contractu actions, and is employed to recover damages, by way of amends, for the breach or nonperformance of a con- 1. 1 Chitty 99. 2. 2 Encl. PI. & Pr. 988; Pollack on Contracts 127-128; Robinson v. Welty, 40 W. Va. 385, 22 S. E. 73. 3. 1 Chitty 98. 83 HISTORY OF THE ACTION AND WHEN IT LIES 119 tract not under seal nor of record. The contract for the breach of which it lies may be implied as well as express, and it lies as well on a promise to do a collateral thing, as on one to pay money. 4 Assumpsit now lies in Virginia on sealed as well as unsealed contracts, since the enactment of the statute which provides that "In any case in which an action of cov- enant will lie there may be maintained an action of assumpsit." 5 Prior to this statute, it did not lie on contracts of record, such as domestic judgments or judgments of the courts of sister States, because these are of higher ' dignity than simple contracts, and the generality of the pleadings in assumpsit would permit of defences which are, in such cases, inadmissible. 6 Whether the statute has made any change in this respect has not been determined. The action of assumpsit as it now exists in Virginia is broader than covenant, for it lies on both sealed and unsealed contracts ; it is more comprehensive than debt for it may be employed to recover uncertain sums and unliquidated demands as well as sums certain of money; and its scope is more extended than the statutory remedy by motion, as the latter may only be employed to recover money due on con- tract, and not damages flowing from the breach of contract. The attempt to enumerate, even partially, the instances in which this action is the appropriate form of remedy would be of no practical value. It is sufficient to say that the scope of its relief is coextensive with the realm of contract, and its applicability is only limited by the prerequisite that damages shall have resulted from the breach of contractual relations. It is pre-eminently an equitable action, that is to say, it is flexible, untechnical, and lends itself as a remedy under the 4. 4 Min. Inst. 428; Stephens' Pleading 133, 134; 2 Encl. PI. & Pr. 988. As to the implied contract on the part of a grantee in a deed poll, arising from his acceptance of such deed, to perform a promise or undertaking imposed upon him in such deed, see ante, 74, where it is shown that such contract is enforceable in assumpsit. 5. Sec. 3246a Code of Virginia. The scope of the above statute, the changes made by it in the law, and the uncertainties to which it has given rise are fully treated in the discussion of the action of Covenant, 82, and the observations there made need not be re- peated here. 6. See ante, 71. 120 ASSUMPSIT 84 most diverse circumstances. As said in a case wherein it was held that assumpsit lay for money paid under a mistake, or upon a consideration which happened to fail : "The action of assumpsit is essentially an equitable action. It always lies to recover money which the defendant ex . Jones, Gilmer, 341, 348, which was an action of deti- nue. Judge Coalter in the course of his opinion said obiter: "But trover will lie although the property be dead, because the time of conversion gives the date to which the action relates, and the very conversion may cause the death of the property. Recov- ery in that action amounts to a sale of the property at the time of the conversion and vests the property in the defendant from that time, so that if he has sold it, even pending the suit or be- fore, and the plaintiff never gets his damages, he cannot bring detinue against the purchaser." The opinion, however, was simply the individual opinion of Judge Coalter and not that of the court, and was not necessary to the decision of the case. In West Virginia it has been held that a judgment for the full value of property vests the title to it in the defendant, unless the prop- erty has been returned uninjured and unimpaired in value, in which event the plaintiff could only recover damages for the de- tention. 23 In this case there was a judgment for the full value of a horse, which it appears was in possession of the plaintiff's agent at the time the action was brought, that he was in no con- dition to be removed on account of wounds which he had re- ceived after the defendant had taken him from the plaintiff's possession, and that the plaintiff had never gotten the said horse from his agent nor ever received any pay for him ; and it is not clear that the statement in the opinion that the judgment vested title in the defendant was necessary to the decision of the case. 22. Lovejoy v. Murray, 3 Wall. 1; Miller v. Hyde (Mass.), 42 Am. St. Rep. 424, and note; Cooley on Torts (Students' Ed.) 437. 23. Arnold v. Kelly, 4 W. Va. 642, 647. CHAPTER XXL SLANDER AND LIBEL. 172. What words are slanderous or libelous. 173. Parties. 174. The declaration. 175. Malice. 176. Defences. 177. Evidence. 178. Replication. 172. What words are slanderous or libelous. Mr. Justice Clifford makes the following classification of words which are slanderous at common law: 1. "Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. 2. Words falsely spoken of a person which impute that the party is infected with some contagious disease, where if the charge is true, it would exclude the party from society. 3. De- famatory words falsely spoken of a person which impute to the party unfitness to perform the duties of an office or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment. 4. Defamatory words falsely spoken of a party which prejudice such party in his or her pro- fession or trade. 5. Defamatory words falsely spoken which though not in themselves actionable, occasion the party special damage." 1 The first four of these classes are slanderous per se, the other only when special damage results. In Virginia it is provided that "all words which from their usual construction and common acceptation are construed as in- sults and tend to violence and breach of the peace, shall be ac- 1. Cooley on Torts (Students' Ed.), 105; Pollard v. Lyon, 91 U. S. 225. 173-174 THE DECLARATION 249 tionable. No demurrer shall preclude a jury from passing thereon." 2 Libel is of somewhat wider extent than slander. All slander when written is libelous, and so is any "writing, print, picture, or effigy calculated to bring one into hatred, ridicule, or dis- grace." 173. Parties. As words can only be spoken by individuals separately, there can, as a general rule, be no joinder of defendants in slander. The rule is otherwise in libel, where there may be a joint publi- cation. In libel, as in other torts, all, or any one, or any inter- mediate number may be sued. Slander of several persons by the same words should generally be redressed by separate actions, though if a partnership, as such, is slandered, all may join, and, unless special damage is done to some one partner, it would seem on principle all should join; but if a slander be of a class of persons as, for example, all the students of Washington and Lee University, none can sue except for special damage shown to have been done him. 3 It was formerly held that a corporation could not be guilty of slander, but more recent cases hold cor- porations liable in damages for slander spoken by their agents when authorized or directed by the corporation. It is well set- tled that they are liable for libel. 4 Insane persons, it is pre- sumed, are liable for the actual damage occasioned, but the au- thorities are not clear. 5 174. The declaration. Common-law slander and statutory slander may be united in the same declaration in different counts, but not in the same 2. Code, 2897. This statute applies to both spoken and written words, and it has been held that no publication of the words need be alleged or proven in an action under the statute. Holland v. Batchelder, 84 Va. 664, 55 S. E. 695. 3. 13 Encl. PI. & Pr. 29, and cases cited. 4. 18 Am. & Eng. Encl. Law (2nd Ed.) 1059; Sun Life Ass. Co. v. Bailey, 101 Va. 443, 44 S. E. 692; Brown v. N. & W. R. Co.. 100 Va. 619, 42 S. E. 664. 5. Note, 42 Am. St. 754; Cooley on Torts (Students' Ed.) 56. 250 SLANDER AND LIBEL 174 count; 6 but even if united in the same count, it would' simply pre- sent a case of duplicity, and objection on that account cannot be raised by demurrer. 7 In declaring for either libel or slander, the exact words (written or spoken) must be set out in the dec- laration in h. Ford, 2 Rand. 1; Coda r. Thompson, 39 W. Va. 67, 19 S. E. 148. 51. Code, 3220.. 52. 5 Va. Law Reg. 490. 53. Spragins 7-. West Va., etc., Co., 35 W. Va. 139, 13 S. E. 45; Handlan r. Handlan. 37 W. Va. 486, 16 S. E. 597; Foley v. Ruley,. 43 W. Va. 513, 27 S. E. 268. 54. Staunton P. B. & L. Co. r. Haden, 92 Va. 201, 23 S. E. 285. .298 VENUE AND PROCESS 192 "substituted" when it is other than personal on one who is a resident of the state, and "constructive" when applied to a like service on a non-resident of the State ; but whether it is one or the other there must be a substantial compliance with every requirement of the statute. 55 In Virginia it is provided 56 that a summons may be served as a notice is served under 3207, and the latter section pro- vides : "A notice, no particular mode of serving which is pre- .scribed, may be served by delivering a copy thereof in writing to the party in person ; or, if he be not found at his usual place of abode, by delivering such copy and giving information of its purport to his wife or any person found there, who is a member of his family, and above the age of sixteen years; or if neither he nor his wife, nor any such person be found there, by leaving such copy posted at the front door of said place of abode. Any sheriff, sergeant, or constable thereto re- quired, shall serve a notice in his county or corporation, and make return of the manner and time of service; for a failure so to do he shall forfeit twenty dollars. Such return, or a similar return by any other person who verifies it by affidavit, shall be evidence of the manner, and time of service : provided, however, that in divorce proceedings notices for the taking of depositions, or for any other purpose, shall be served only by the sheriff of the county or the sergeant or sheriff of the city in which the service is sought to be had." Personal service may be on the defendant anywhere he may be found in the officer's bailiwick, but the officer is not required to search for him at but one place, and that is at his usual place of abode, and if he be not found "at his usual place of abode," then the officer may make the substituted service, but his return must show why he made the substituted service, and that reason must be the one given in the statute, else the return will be bad. The different methods of service provided by this section are not cumulative but successive. Service can- not be made upon a member of the family if the defendant be found at his place of abode, and there can be no posting if a member of the family above the age of sixteen years be 55. 19 Encl. PI. & Pr. 625; Staunton P. B. & L. Co. v. Haden. supra. 56. Code, 3224. 192 SERVICE OF PROCESS ON NATURAL PERSONS 299 found at the place of abode of the defendant; and, when one method of service is substituted for another, the return must show a right to adopt the inferior method of service by negativ- ing ability to get the better service. The officer has no right to make the substituted service except when the statute so pro- vides. 57 The substituted service may be upon the defendant's wife or any person found there who is a member of his family above the age of sixteen years. It is immaterial what the age of the wife is, but if served on a member of the family he or she must be over the age of sixteen years. But whether served on the wife or member of the family, the service can only be made at the defendant's usual place of abode and not elsewhere. 58 The officer may serve either on the wife or a member of the family at his option, there is no choice or prefer- ence between them. Furthermore, when this kind of substituted service is adopted the officer must give "information of its pur- port" to the person upon whom the service is made, and his return must show this. "To authorize a personal judgment on substituted service of process the terms of the statute au- thorizing such service must be strictly complied with. Courts cannot dispense with any of the statutory requirements, even though satisfied that the method actually adopted for giving the defendant notice was better than that prescribed by law. "Service of a summons on a defendant by delivering a copy thereof to his wife is not sufficient where the officer's return fails to show that he gave her information of its purport, and a judgment by default on such service is void. The fact that the defendant actually received from his wife the copy left with her for him in time to have made defence to the suit is im- material. " r>!) It has been held by the Circuit Court of the United States for the Western District of Virginia 511 * (construing the Vir- ginia statute) that when the service is upon the defendant's wife, the return must show that she was a member of defend- ant's family, as they might be living separate and apart from 57. Settlemier r. Sullivan. 97 U. S. 444. 58. Smithson r. Briggs, 33 Gratt. 183; Crockett r. Etter, 105 Va. 679, 54 S. E. 864. See also Goolshy r. St. John, 25 Gratt. 146. 59. Park. L. & I. Co. r. Lane, 106 Va. 304, 55 S. E. 690. 59a. King r. Davis, 137 Fed. 198, 11 Fed. Rep. 177. 300 VENUE AND PROCESS 192 each other, but this view seems to be too technical, and is in conflict with Smithson v. Briggs, supra. In the lattter case the return was : "G. W. Smithson not being found at his usual place of abode, a true copy of the within rule was left with his daughter, at his residence, who is over the age of sixteen years and purport explained to her, this 28th day of August, 1871." No objection seems to have been made on the ground that the name of the person upon whom service was made was not given, but it was argued, and that was the view taken by Judge Anderson, that the return was bad because it did not show that the daughter was a member of the defendant's family, and also because the service was "at his residence" instead of "at his usual place of abode," but the majority of the court overruled both contentions, and held that the word "residence" in the connection in which it was used was synonymous with "usual place of abode," and that it would be presumed that the daughter was a member of defendant's family. There is some conflict as to who is "a member of his family" within the meaning of the statute. It has been held that "a mere boarder, a stranger to his blood" is not 00 a member of the family, and also that he is. 61 Substituted service by serving on a member of the family is generally held to have the same effect as personal service, and to be a sufficient basis for a personal judgment, provided the terms of the statute authorizing it have been strictly com- plied with. Certainly such service has been repeatedly recog- nized in Virginia and West Virginia. 02 Whether a service by posting at the front door of the residence when no one is found there is sufficient seems not to have been passed on in Virginia. The chief question is whether such posting con- stitutes "due process of law." Whatever else this expression may mean when applied to judicial proceedings, it means notice and a reasonable opportunity to be heard by a competent legal tribunal before which a party's rights may be fairly asserted 60. Fow'ler v. Mosher, 85 Va. 421, 1 S. E. 542. 61. Segouine v. Auditor, 4 Munf. 398; Dobbins v. Thompson, 4 Mo. 118. 62. 1!) Encl. PI. & Pr. 624; Crockett v. Etter, supra; Park L. & I. Co., supra; Capehart r. Cunningham, 12 W. Va. 750. 192 SERVICE OF PROCESS ON NATURAL PERSONS 301 or defended. As stated, we have no direct decision in Virginia on the right to take a personal judgment by default against a defendant brought before the court by a notice or summons posted at his residence, but the right to take such judgment seems to have been tacitly admitted by the profession, as the question does not appear to have been raised in any reported case, nor is it discussed by either by Prof. Minor, or Mr. Barton. The validity of the statute seems to have been conceded in the cases arising under the statute, and the contest to have been waged on other grounds. 63 It seems plain from the language of the Virginia statute that where posting is allowed at all, it must be at the then residence of the defendant, and not at his former residence. 64 Process against a married woman must be served personally. The provisions of the statute for the service of process must be substantially complied with, and the method of service can- not be otherwise than is there prescribed. The Virginia statute allowing a substituted service was enacted at a time when a 63. Lewis r. Botkin, 4 W. Va. 533; Capehart v. Cunningham, supra; Earle v. McVeigh, 91 U. S. 503. In the last-mentioned case, arising under the Virginia statute, it is said: "Notice to the defendant, ac- tual or constructive, is an essential prerequisite of jurisdiction. Due process with personal service, as a general rule, is sufficient in all cases; and such it is believed is the law of the State where the judg- ments were recovered in this controversy, in all cases where such service is practicable. But the laws of that State also provide for service in three classes of cases in which personal service cannot be effected: (1) Residents who are temporarily absent from home. (2) Service may also be made upon persons not residents of the State. (3) Where the party resides in the State, in case it is not "known in what particular county he has his residence. "1. Temporary absence from home will not defeat service, as in that case the statute provides that notice may be given to the party "by delivering a copy of the process to the party in person; or, if he be not found at his usual place of abode, by delivering such copy and giving information of its purport to his wife, or any white person found there, who is a member of his family, and above the age of sixteen years; or, if neither he nor his wife nor any such white person be found there, by leaving such copy posted at the front door of his usual place of abode." 64. Earle v. McVeigh, 91 U. S. 503; Capehart v. Cunningham, 12 \V. Va. 750. 302 VENUE AND PROCESS 192 married woman could not be sued alone at law, and has not been altered since her disabilities have been removed, and while it is true that this would make no difference if the language of the statute were broad enough to cover the case, and that 5, clause 13 of the Code provides that "a word importing the masculine gender only, may extend and be applied to females as well as males," still there is no authority for substituting "husband"' for "wife," nor for making the family her family when the husband is still alive and the head of the family. The substituted service is only allowed, under the statute, if he be not found at his usual place of abode, and the copy is to be delivered to "his wife," or to a member of his family. Such language seems to be wholly inapt to describe substituted service on the wife, and to hold it applicable to her would not be a substantial compliance with the statute. Furthermore, there may be good reasons for not allowing such service. Service of process upon a non-resident found within the jurisdiction is valid, and will warrant a personal judgment against him unless, for some reason, he is exempt from service. 65 But process of a State cannot extend beyond its own borders, and there are no means by which one State can acquire juris- diction over the person of a resident of another so as to render a personal judgment against him, so long as he does not submit to its jurisdiction, nor subject himself to service of process by going within its confines. Every State has and may exercise jurisdiction and sovereignty over persons and property within its territory, but not over persons without it. Whether the attempted service be by order of publication, or by actual service in the foreign State, it is equally void as a basis for a personal judgment or decree. The mere fact that the non- resident owns property within the State which may be subjected by appropriate proceedings for that purpose does not give juris- diction over him personally. A personal judgment by default taken against a non-resident upon process served by publication, or by service outside the jurisdiction, is a nullity. For a per- sonal judgment there must be personal service of process or what, in law, is deemed its equivalent. 66 Property within the 65. See ante, 189. 66. Pennoyer v. Neff, 95 U. S. 714. This is the leading case on the subject. It has since been affirmed in numerous cases, State and federal. 192 SERVICE OF PROCESS ON NATURAL PERSONS 303 State may be subjected because its location within the State confers jurisdiction to subject it by appropriate proceedings in rem, but this does not confer jurisdiction over the person of the non-resident. The jurisdiction to render a personal judgment against the non-resident must exist at the time the action is instituted. The following propositions taken from the head note in Pennoyer v. Neff state the law on these subjects : "A personal judgment is without any validity, if it be rendered by a State court in an action upon a money demand against a non-resident of the State, who was served by a publication of summons, but upon whom no personal service of process within the State was made, and who did not appear; and no title to property passes by a sale under an execution issued upon such a judgment. "The State, having within her territory property of a non- resident, may hold and appropriate it to satisfy the claims of her citizens against him ; and her tribunals may inquire into his obligations to the extent necessary to control the disposition of that property. If he has no property in the State, there is nothing upon which her tribunals can adjudicate. "Substituted service by publication, or in any other authorized form, is sufficient to inform a non-resident of the object of proceedings taken, where property is once brought under the control of the court by seizure or some equivalent act; but where the suit is brought to determine his personal rights and obligations, that is, where it is merely in personam, such service upon him is ineffectual for any purpose. "Process from the tribunals of one State cannot run into another State, and summon a party there domiciled to respond to proceedings against him ; and publication of process or of notice within the State in which the tribunal sits cannot create any greater obligation upon him to appear. Process sent to him out of the the State, and process published within it, are equally unavailing in proceedings to establish his personal lia- bility." It may be observed, however, that a suit or proceeding to determine the personal status of a citizen is a quasi proceeding in rein, as in a suit for divorce, for example, and there may be constructive service by publication, but the right is limited 304 VENUE AND PROCESS 192 to the determination of such status and does not extend to a personal decree for costs, alimony and the like. 67 A non-resident may, of course, submit to the jurisdiction of the court if he chooses to do so. He does submit by instituting an action in the court, or by filing a plea to the merits of an action brought against him by another, or by merely acknowl- edging due and legal service of the writ for the purpose of submitting. Mere acknowledgment of service is probably not sufficient, but if a party outside of the State acknowledges "due" or "legal" service of the writ, this is held, by the weight of authority, to be evidence of submission to the jurisdiction of the court and to warrant a personal judgment. 08 It has been held, however, in a poorly considered case in Virginia that an acknowledgment of "legal service" simply has the effect of an order of publication duly published and posted. 09 If the object of the proceeding against a non-resident is to get a personal judgment, then the service of process must be personal uithin the State from which it issues, or its equivalent. Nothing short of this will suffice. 70 Personal service on a de- fendant outside the jurisdiction of the State can never warrant a personal judgment. It may have the effect of an order of publication duly published and posted, but it cannot have any greater effect. 71 67. Pennoyer v. Neff, supra; Garner v. Garner, 56 Mo. 127; note, 50 L. R. A. 583, 584, and cases cited; Lile's Notes on Corporations 350. 68. Jones v. Merrell, 113 Mich. 433, 71 N. W. 838, and cases cited; 19 Encl. PI. & Pr. 702. See, however, White v. White, 66 W. Va. 79, 66 S. E. 2. 69. Smith v. Chilton, 77 Va. 535; White v. White, supra. See in this connection 3232 declaring that personal service of a summons, etc., on a nonresident defendant out of the State "shall have the same effect, and no other, as an order of publication duly executed." It has been held that the service under this statute must be made fifteen days before the return day, else it will be invalid. Raub v. Otterback, 89 Va. 645, 16 S. E. 933. 70. Pennoyer v. Neff, 95 U. S. 714; Wilson v. St. Louis, etc., R. Co., 108 Mo. 588, 32 Am. St. Rep. 624, and note; Galpin r. Page, 18 Wall. 367. 71. Hinton v. Ins. Co., 126 N. C. 18, 78 Am. St. Rep. 636; Code, 3232; Pennoyer v. Neff, supra. 192 SERVICE OF PROCESS ON NATURAL PERSONS 305 An action is in personam when its object is to obtain a personal judgment against the defendant, upon which a general execution may be awarded directing the collection of the judg- ment out of any property of the defendant anywhere to be found. It is in rem when it seeks to affect particular portions of his property only. After a personal judgment has been rendered, generally nothing but the jurisdiction of the court o\er the parties and the subject matter can be inquired into, either in the trial court or elsewhere. 72 But this always implies that there have been proper judicial proceedings on which to found the judgment. "Though the court may possess juris- diction of a cause, of the subject matter and of the parties, it is still limited in its modes of procedure, and in the extent and character of its judgment. It must act judicially in all things, and cannot transcend the power conferred by law." A departure from established modes of procedure will often render a judgment void. If a party be duly cited, but a hearing be denied him, the procedure is not judicial, but a mere arbitrary edict not entitled to be regarded as a judgment anywhere. 73 72. 1 Black on Judgments, ch. 13. 73. Windsor v. McVeigh, 93 U. S. 274; Nulton v. Isaacs, 30 Gratt. 726. An action may be brought on a judgment, foreign or domestic. If there was appearance to the merits, or general appearance, all defects in the process or the manner of its service are deemed to have been waived and the judgment is final and conclusive of the then rights of the parties. If the judgment was obtained by de- fault, that is without appearance, and the record shows service of process there is conflict of authority as to whether the defendant in a domestic judgment may show that there was in fact no service. See Preston z: Kindrick, 3 Va. Law Reg. 431, and note. If suit or action is brought on a foreign judgment which was ob- tained in the foreign court upon default of appearance of the defend- ant, the defendant may show: 1. That the foreign court did not have jurisdiction of either the defendant or of the subject matter. The record of the judgment showing service of process is not conclusive and may be impeached by parol. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas Light Co., 19 Wall. 58. And although the foreign law may permit service on a partner to bind all members of the firm, it can have no extra territorial effect, and the partner not served will not be personally held in another 20 306 VENUE AND PROCESS 192 Infants. It is said by Prof. Minor that "process against infants must, it is believed, be served in like manner as on adults." 74 On this subject, the following views are expressed in 1 Va. Law Reg. 153: "Whether service of process on an infant defendant is essential to jurisdiction over his person, is a question upon which there is must diversity of opinion. In some of the States it is sufficient that a guardian ad Utem be appointed, and appear on the infant's behalf; while in others it is held that service of process is as indispensable as in case of adult defendants. In many States the subject is regulated jurisdiction, and even where there was appearance for the firm by attorney, if the firm had been dissolved before such appearance, the partner not served is not bound unless he authorized the appear- ance. Hall v. Lanning, 91 U. S. 160; Bowler v. Huston, 30 Gratt. 278, 279. 2. Although the foreign court had jurisdiction, it may be shown that it did not act judicially and did not afford the defendant an opportunity to be heard. Windsor v. McVeigh, 93 U. S. 274. 3. That the foreign court departed from established modes of pro- cedure and did not permit the defendant to make defence in the form required by law, e. g., denied a jury trial where defendant was entitled to it. Nulton v. Isaacs, 30 Gratt. 726. 4. Fraud in obtaining the judgment, or any other fact that will show the judgment to be void. Furthermore, it may be noted that a judgment or decree may be assailed even in the same jurisdiction in which it is rendered on the ground that the proceeding has not been judicial, or the party has been deprived of some right to which he was entitled. Independ- ently of statute, while the receiver of a court may be a quasi-party to the suit in which he is appointed, the surety on his bond is not, and a decree against such surety on a rule is void and may be as- sailed collaterally. Thurman v. Morgan, 79 Va. 367. So likewise, a * purchaser at a judicial sale becomes a quasi-party to the suit in which the sale is made, and is bound by all decrees made affecting his rights as purchaser, but the surety on his bonds for the pur- chase money is not such party, and a decree based on a rule against a surety is void, and may be collaterally assailed. Anthony v. Ka- sey, 83 Va. 338, 5 S. E. 176. In each of these two cases the decree- was held void because the defendant was, by the mode of procedure adopted, deprived of a jury trial. Provision is now made for both, cases by allowing a jury trial on the hearing upon the rule. Code,. 3402a. 74. 4 Mm. Inst. 645. 192 SERVICE OF PROCESS ON NATURAL PERSONS 307 by statute, as it is in Virginia. The Virginia statute provides .that: 'The proceedings in a suit wherein an infant or insane person is a party, shall not be stayed because of such infancy or insanity, but the court in which the suit in pending, or the judge thereof in vacation, shall appoint some discreet and competent attorney at law as a guardian ad litem to such in- fant or insane defendant, whether such defendant shall have been served with process or not." 75 "The Virginia court of appeals seems to have been of opinion that service of process was not necessary, even before this statute was adopted. 76 The Supreme Court of the United States holds, however, that no personal decree can be had against an infant, in a federal court, without service of process, if the infant be at the time a non-resident of the State, though process be dispensed with by a statute of the State in which the court is sitting 77 a principle which is a corollary from the doctrine of Pennoyer v. Neffy 95 U. S. 714, and the long line of subsequent cases affirming it, that no personal judgment can in any case be entered against a non-resident, without per- sonal service of process within the State, unless he voluntarily appears." 78 It must be borne in mind that what was once a mere matter of state policy is now a constitutional right, and that the Fourteenth Amendment of the United States Constitution pro- vides that no State shall "deprive any persons of life, liberty, or property, without due process of law," and that what con- stitutes "due process of law is, in its last analysis, a question for the Supreme Court of the United States. 79 In view of the holding of the court in the great case of Pennoyer v. Neff, supra, and of the later case of N. Y., etc., Ins. Co. v. Banks, supra, it would seem that if the infant is a non-resident and 75. Code, 1887, 3255. 76. Parker v. McCoy, 10 Gratt. 606. 77. N. Y., etc., Ins. Co. v. Bangs, 103 U. S. 435. 78. 1 Va. Law Reg. 153. - 79. Section 11 of the Virginia Constitution also declares that no person shall be deprived of his property without due process of law. This provision, as a constitutional guaranty, appears for the first time in the Constitution of 1902. 308 VENUE AND PROCESS 192 a personal judgment is sought against him, personal service within the jurisdiction or voluntary appearance is jurisdictional, and essential to the validity of the judgment. If no judgment is sought against the non-resident infant, but it is only sought to affect his interest in property within the jurisdiction of the State the rule would be otherwise. If the infant is a resi- dent of the State and a personal judgment is sought against him, personal service of process upon him if he is not married (no provision is made for a substituted service) may be neces- sary to constitute "due process," but there is much room for doubt as to this proposition as he is already subject to the general jurisdiction and sovereignty of the State, and the stat- ute not only provides for the appointment of a guardian ad lit em who shall faithfully represent the infant, but also that "it shall be the duty of the court to see that the estate of such defend^ ant is so represented and protected." At all events, the only safe course to pursue where a personal judgment is sought against an infant is to secure proper personal service of process upon him. In West Virginia it is provided by statute that after the appointment of a guardian ad litem "no process need be served on such infant or insane person." 80 This statute has been up- held as sufficient to take the place of personal service on resi- dent infants in cases seriously affecting their property rights, though no personal judgments were sought against them. It was further said that it was necessary for the guardian ad litem to signify his acceptance by filing an answer. 81 The failure to appoint a guardian ad litem to defend the infant is generally held to be a fatal defect. 82 Moreover, as the guardian ad litem appointed is not obliged to accept the appointment, it is said that it is necessary for him to signify his acceptance of the trust by an answer filed in the cause. 83 80. W. Va. Code (1906), 3833. 81. Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291; Ferrell v. Ferrell, 53 W. Va. 515, 44 S. E. 188. 82. Turner v. Barraud, 102 Va. 324, 46 S. E. 318; Langston v. Bas- sette, 104 Va. 47, 51 S. E. 218; Westmeyer 7'. Gallencamp, 154 Mo. 28, 77 Am. St. Rep. 747 and cases cited in note last above. 83. Alexander v. Davis, supra. 193 SERVICE OF PROCESS ON CORPORATIONS 309 Insane Persons. The same statute in Virginia which provides for a guardian ad litein for infants, provides for a like guard- ian for insane persons. If action is brought before the de- fendant has been adjudged it is generally held that process must be served on the defendant. After adjudication, actions are generally brought against the committee or other custodian on the insane person under statutes authorizing the same. In Virginia "in a suit to subject the lands of a lunatic to the payment of his debts, the lunatic is not a necessary party, when he has a committee clothed with absolute authority to sue and be sued with respect to such estate. In a proceeding affecting the property rights of an insane person, it is the duty of the court, if he have no committee, to appoint a guardian ad lite in to represent and protect his interest, but if he has a committee the appointment of a guardian ad litem is wholly unnecessary, except only where there is a conflict of interest between the committee and the lunatic." 84 If, however, a proceeding be taken to determine the question of the sanity, or insanity of any person, it is believed that the insane person is entitled to notice and an opportunity to be heard, and, if denied, the proceedings are held in some States to be void, in others voidable only. 85 The right to sue court rcceiz'crs has been heretofore dis- cussed. 86 It will be recalled that it is no longer necessary to obtain the consent of the court of their appointment in order to maintain an action against them. Provision is made in Vir- ginia for service of process on the receivers, or their agents, and if none in the county or corporation wherein the action is commenced, then for the publication of the process as in case of actions against corporations. 87 193. Service of process on corporations. At common law the method of service was on the president 84. Howard r. Landsberg, 108 Va. 161, 60 S. E. 769. 85. Code, 1669; Hess v. Gale, 93 Va. 467, 25 S. E. 533; Howard v. Landsberg, supra; Evans r. Johnson, 39 W. Va. 303, 19 S. E. 624; Karnes r. Johnson, 58 W. Va. 595, 52 S. E. 658; 16 Am. & Eng. Encl. Law (2nd Ed.) 567, and cases cited. 86. Ante, 53. 87. Code, 3226. 310 VENUE AND PROCESS 193 or other chief officer of the corporation, personally, 88 but in all of the States statutes have been enacted prescribing the time and manner of service on both domestic and foreign corpora- tions, and these statutes must be consulted as to matters of detail. While there is some variation in the details, there is a very marked similarity in the general method of service. As to domestic corporations they generally provide for service on certain enumerated officers, and, if there be none, upon agents, and if no agents, then publication of some kind, or by publication and notice sent out of the State or some like provision; and as to foreign corporations, they usually provide for service on agents, or, if none be found, by some species of publication. In Virginia, the service of process on corporations is regulated by 3225 and 3227 of the Code, hereinbefore quoted in the margin, and is wholly separate and distinct from the method of service on natural persons, and the mode of procedure against foreign corporations is not altogether the same as that prescribed for domestic corporations. Federal courts, in the absence of an act of Congress, must follow the State statute as to the manner of service of process in actions at law, but not in equity. 89 Domestic corporations. Section 3225 of the Virginia Code enumerates certain officers, other than mere agents, on whom service may be made. There is no preference among these, and service on any one of the particular class is sufficient, and the return need not make any reference to the others. 90 If none of the enumerated officers can be found in the county or corporation wherein the action is commenced (having residence or place of business there as provided by 3227) then the plaintiff may either (1) have the process served on any agent residing, etc., in that county or corporation, or (2) if the action be against a railroad, canal, express, navigation, turnpike, tele- 88. 19 Encl. PI. & Pr. 652. 89. Amy v. Watertown No. 1, 130 U. S. 301; United States v. Beli Tel. Co., 29 Fed. 17; 19 Encl. PI. & Pr. 673. 90. Special provision is made as to banks and domestic insurance companies. Process against a bank must be served on an officer, and not on an agent, and there can be no order of publication against a domestic insurance company. Sec. 3225. 193 SERVICE OF PROCESS ON CORPORATIONS 311 graph or telephone company, or to recover for a tort, or where another defendant has been served in the county or corporation, he may send the process out of the county or corporation and have it served on such officer in the county or corporation wherein he resides, etc. (3) If there be no agent in the county or corporation in which the action was commenced upon whom there can be such service, then and then only may the plain- tiff, upon affidavit of that fact, have the process published once a week for four successive weeks, and make such service the basis of a personal judgment against the defendant. It will be observed that there can be no service on an agent of a domestic corporation, if service can be had on any of the enumerated officers (fulfilling the conditions of the statute) in the county or corporation in which the action is commenced, and there can be no publication of process if there be in the county or corporation any agent residing or having his place of business there on whom there can be service. But even where publication is permissible, "service of process on the late president of a corporation which has ceased to exist is suffi- cient, though the process might have been served by publication, as prescribed by 1103 of the Code. The latter method is simply cumulative." 91 The word "agent" would probably exclude a mere "servant" in cases of this kind, but the Virginia statute 92 declares: "The term 'agent,' as employed in each of the preceding sections, shall be construed to include a telegraph operator, telephone operator, depot or station agent of a railroad company, and toll-gatherer of a canal or turnpike company." Process against or notice to a corporation can only be served on an officer or agent of the corporation, under the Virginia statute, in the county or corporation "wherein he resides, or his place of business is, or the principal office of the corporation is located," and the officer's return must show this. 93 If the action be brought under 3215 the process cannot be directed to the officer of any other county or corporation than that 91. Richmond, etc., R. Co. v. N. Y, etc., R. Co., 95 Va. 386, 28 S. E. 573. 92. Code, 3227. 93. Code, 3227. 312 VENUE AND PROCESS 193 from which it issues, unless the case come within some one of the exceptions named in 3220, but no matter to whom directed, it must be served as above stated 1 . The service on an officer or agent of a corporation must be on him in person, and cannot be in any of the substituted methods provided by 3207 of the Code. It cannot be on his wife, or a member of his family, nor by posting. This section (3207) is made applicable to service on natural persons by 3224 of the Code, but the latter section expressly excepts corporations and pro- vides "that when such process is against a corporation, the mode of service shall be as prescribed by the following section," and the section providing for service on an officer or agent declares that it "shall be by delivering to him" a copy of the process, and makes no provision for any kind of substituted service. 94 Usually service on a de facto officer has the same effect as if he were also an officer de jure. 95 Whether a judgment by default can be taken on service by publication against a domestic corporation which is a going con- cern, with a known place of business within the State, without any effort to serve on an officer or agent of the corporation is a matter of serious doubt. The ground of this doubt is the constitutionality of the act allowing service by publication only. Both the State and federal constitutions 96 forbid the taking of property without "due process of law," and the ques- tion is whether this method of procedure constitutes "due process." It has been repeatedly held that a corporation is a person within the meaning of the constitution, and consequently is entitled to due process of law. 97 And while the legislature may undoubtedly authorize constructive service upon corpora- tions, the method adopted should be such as is reasonably calcu- lated to bring notice home to some of the officers or agents of the corporation, thus securing an opportunity to be heard and to make defence. 98 The right to take a personal judgment upon 94. Code, 3227. 95. 19 Encl. PI. & Pr. 657. 96. Va. Constitution, 1902, 11; U. S. Constitution, Amendment XIV. 97. Smith v. Ames, 169 U. S. 466, 522, and cases cited. 98. Pinney v. Prov. Loan Co., 106 Wis. 396, 80 Am. St. Rep. 41, 50 L. R. A. 577, and note. 193 SERVICE OF PROCESS ON CORPORATIONS 313 service by publication and mail has been recognized in several cases," but whether judgment by default may be taken on publication alone when the defendant has a known place of abode, with officers and agents upon whom process can be easily served, without any effort to make such service, is by no means free from doubt. It may be, as stated by Mr. Justice Field,, "that a State, on creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall require other than personal service upon their officers or members, and parties becoming members of such corporations or institutions would hold their interest subject to the conditions prescribed by law," yet it is equally true that the State cannot deprive the corporation of due process of law. The State Corporation Commission may charter corporations, and provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, but it cannot, by charter provisions, or otherwise, nor can the legislature, deprive them of due process of law for the protection of their property. What constitutes "due process" is a judicial question, to be determined in the last resort by the Supreme Court of the United States, and while great respect will be paid to the legislative construction of the phrase, and what the legislature regards as constituting due process, the question is at last one for the courts, and the legislature cannot declare anything it pleases to amount to due process. The defendant is entitled to reasonable notice, and a reasonable opportunity to be heard. But the legislature is not the sole judge of the kind of notice to which the defendant is entitled. The kind of notice given is of the very essence of due process, and its sufficiency is the very question the courts are to deter- mine. As said by the Court of Appeals of New York, 1 "the legislature is not vested with a power to arbitrarily provide that any preceding it may choose to declare such shall be re- garded as due process of law." On this subject, the authorities seem to hold that "the law of the land does not mean merely 99. Town of Hinckley v. Kettle River R. Co., 225 111. 197, 80 N. E. 109, 116 Am. St. 133. 1. Colon v. Lisk, 153 N. Y. 188, 47 N. E. 302. 314 VENUE AND PROCESS 193 an act of the legislature, for such a construction would abro- gate all restrictions on legislative power." 2 It is not claimed that the State cannot provide for substituted service of process on corporations, nor, in proper cases, for service by publication. The specific claim is that: Service by publication as a basis for a personal judgment is not "due process" as against a domestic corporation, which is a going concern with a known place of business, where no effort is made or required to serve process on its officers or agents. Service by publication under such circumstances does not evince a bona fide effort to give notice to the defendant, and, as said in another case, 3 where service was made on the State Register of Deeds, "such service, if hel-d to be effectual, would be well calculated to conceal from the officers and agents of the corporation the fact that such an action had been com- menced," and hence a statute which authorizes such a service is invalid. It has been held, however, in Florida and in Vir- ginia, that a 'personal judgment may be taken against a domestic corporation based upon service by publication only, where there is no officer or agent of the corporation in the county on whom process may be served, and that such publication does constitute due process, within the meaning of the constitution. 4 Foreign Corporations. Foreign corporations are not citizens within the meaning of the privilege and immunity clause of the federal constitution. They are recognized in foreign States only by comity. 5 The right to do business in the State rests absolutely in the discretion of the legislature. It may impose such terms as it pleases, whether they be reasonable or unrea- sonable, and may exclude them altogether. It is said, how- ever, that there are some constitutional limitations upon this 2. 10 Amer. & Eng. Encl. Law (2nd Ed.), 292, and cases cited. 3. Pinney v. Prov. Loan Co., 106 Wis. 396, 82 N. W. 308, 50 L. R. A. 577. 4. Clearwater Mercantile Co. v. Roberts (Fla.), 40 South. 436; Ward Lumber Co. v. Henderson-White, 107 Va. 626, 59 S. E. 476. On the other hand, it has been held that a personal judgment can- not be taken against a private person upon such service. Bardwell v. Collins, 44 Minn. 97, 20 Am. St. 547, and note; Bear Lake City v. Bud^e, 9 Idaho 703, 108 Am. St. Rep. 179. 5. Paul v. Va., 8 Wall. 168. SERVICE OF PROCESS ON CORPORATIONS 315 rule. They have been expressed as follows: 6 "But the only limitation on the right of a State to impose restrictions upon the rights of foreign corporations to do business within the domestic State, so far as the federal constitution is concerned, are that the State cannot exclude from its limits a corporation engaged in interstate or foreign commerce, 7 that it cannot re- quire foreign corporations not engaged in interstate commerce, as a prerequisite to doing business therein, to give its own residents a prior security on ihe assets of the corporation within the State, 8 and that it cannot impose restrictions on a corporation in the employ of the general government." 9 Stat- iites. however, which require an agreement not to remove causes to the federal courts, have generally been declared to be uncon- stitutional. But notwithstanding their unconstitutionality, if the agreement is violated, it has been held that the State may for that reason, and that reason only, revoke the license to do business in the State. 10 This is said to result from its right 6. 13 Am. Eng. End. Law (2nd Ed.) 861. 7. "Pensacola Tel. Co. v. West. Union Tel. Co., 96 U. S. 1; Fritts v. Palmer, 132 U. S. 282; Ex parte Stockton, 33 Fed. Rep. 95; Peo- ple v. Wemple, 131 N. Y. 64, 27 Am. St. Rep. 542; Huffman v. West- ern Mort, etc., Co., 13 Tex. Civ. App. 169. For a full discussion of this subject, see the title Interstate Commerce." 8. "Blake v. McClung, 172 U. S. 239 See infra, this section, Stat- utes Requiring Preferences of Resident Creditors in Distribution of Assets." 9. "Stockton v. Baltimore, etc., R. Co., 32 Fed". Rep. 9; Pembina Consol. Silver Min., etc., Co. v. Pennsylvania, 125 U. S. 186; New Orleans, etc., Packet Co. v. James, 32 Fed. Rep. 21; People v. Wem- ple, 131 N. Y. 64, 27 Am. St. Rep. 542; Huffman v. Western Mortg., etc.. Co., 13 Tex. Civ. App. 169. "Illustration. In the pursuit of business authorized by the govern- ment of the United States and under its protection the corporations of other States cannot be prohibited or obstructed by any State. If Congress should employ a corporation of ship-builders to con- struct a man-of-war, they would have the right to purchase the nec- essary timber and iron in any State in the Union, Stockton v. Bait., etc., R. Co., 32 Fed. Rep. 14; without the permission and against the prohibition of the State. Pembina Consol. Silver Min. Co. v. Penn- sylvania. 125 U. S. 186." 10. Doyle v. Cont. Ins. Co., 94 U. S. 535. But see Cable v. U. S. Life Ins. Co., 191 U. S. 288, 307, and cases cited, and Herndon v. Chicago R. Co., 218 U. S. 135, 158, and cases cited. 316 VENUE; AND PROCESS 195 to exclude altogether. The reason for the exclusion cannot be inquired into. When a State has once prescribed terms upon which a for- eign corporation may do business, the doing of business within the State is deemed an acceptance of the terms prescribed. But it is often a nice question as to what consti- tutes doing business within the State. It is not within the purview of these notes to go into this subject. 11 Attention, however, is called to the fact that a single act of business is not considered doing business in the State, 12 and that sales. by drummers or traveling salesmen who simply take orders are not within the purview of the statute, and only those corpora- tions are deemed to migrate and do business in another State who transact their business through resident or local agents. To prohibit sales by drummers would be an interference with interstate commerce. The business of insurance, however, is not commerce. 13 The Virginia statute on the subject of service of proc- ess on foreign corporations, which has been hereinbefore quoted in the margin, 14 provides for service on any agent of the corporation, or upon any person declared by the laws of the State to be an agent, and, under certain conditions, by publication; and it is provided by statute, 15 that the term agent shall be construed to include a telegraph operator, telephone operator, depot or station agent of a railroad company, and toll-gatherer of a. canal or turnpike company. The language of the statute is very comprehensive. It is "on any agent." The object of service of process is to give notice to the party to be affected so as to enable him to make defence, and there have been many cases discussing the subject as to whether the 11. A collection of the authorities will be found in 13 Am. & Eng. Encl. Law (2nd Ed.) 869 ff. 12. Goldsberry v. Carter, 100 Va. 438, 41 S. E. 858, 8 Va. Law- Reg. 279 and note; Cooper Man. Co. v. Ferguson, 113 U. S. 727. See also note, 85 Am. St. Rep. 914 ft. 13. 1 Va. Law Reg. 306, and authorities cited; 13 Am. & Eng. Encl. Law (2nd Ed.) 869. 14. Note to 186, ante. 15. Code, 3227. 193 SERVICE OF PROCESS ON CORPORATIONS 317 agent served was such an agent as is contemplated by law. 16 It would seem that the service should be such as would be reasonably expected to accomplish the purpose intended, and that ordinarily service upon subordinate agents or those in no way connected with the subject of litigation and having no knowledge of the defendant's business, or upon servants or employees, would not be sufficient. A foreign corporation be- fore being subjected to a personal judgment is entitled to such service as amounts to "due process of law" and as is not un- reasonable or contrary to the principles of natural justice. 17 Officers of foreign corporations are not supposed to reside in Virginia, and consequently the Virginia statute makes no pro- vision for serving process on such officers. The provision is for service on ( 1 ) any agent of such corporation, or any person de- clared by the laws of this State to be an agent, and if there be no such agent in the county or corporation in which the case is com- menced, then (2) the process is to be served by publication. Nearly all the States, including Virginia, require non-resident corporations to designate some person in the State to represent the corporation, upon whom service may be made. 18 The proc- ess may be served, as in case of other defendants, either by an officer, or by a private person who makes affidavit to the return. As in case of domestic corporations, where service is on the agent, the service must be personal and cannot be by delivering to the agent's wife or a member of his family, or by posting, and it must also be served in the county or corporation wherein the agent resides or his place of business is, or the chief office of the company is located, and the return must show this. Sections 3214 and 3215 of the Code fix the venue of all ac- tions in Virginia. If the process is such as may, under 3220, 16. Mutual L. Ins. Co. v. Spratley, 172 U. S. 602; note, 23 L. R. A. 490. 17. Note to Pinney v. Prov. Ins. Co., 50 L. R. A. 589, 594; Mu- tual L. Ins. Co. r. Spratley, supra; Monographic Note, 85 Am. St. Rep. 905 ff. See particularly 85 Am. St. Rep. 929, citing cases to the effect that service on any agent, or even on an employee is sufficient. 18. Code. 1104. This applies only to companies "doing business in this State," or intending to do business here. 318 VENUE AND PROCESS 193 be sent out of the county in which the action is brought, then the process may be served on any agent of the foreign corporation anywhere in the State, provided the service be on the agent in the county or corporation in this State, 19 wherein he resides or his place of business is, or the chief office of the company is lo- cated. It has been held under these sections that where an ac- tion is brought against a foreign corporation doing business in this State, to recover damages for a wrong in the county where the cause of action arose, the process commencing the action may be sent to the officer of the county or corporation in which the statutory agent of such foreign corporation resides, and that service upon such agent there would have the same effect in bringing such foreign corporation into court as if it were a home corporation and the statutory agenf were its chief officer residing there. 20 As a necessary corollary of this holding, it was in ef- fect also held, obiter, that a foreign corporation may be sued at the place of residence of its statutory agent, and a personal judg- ment rendered against it wherever, if it had been a domestic corporation, suit might have been brought where the president or chief officer resided. This accords with what had been pre- viously held that "where none of the grounds of jurisdiction enumerated in 3214 and 3215 exist, an action against a for- eign corporation must be brought where the statutory agent of the corporation resides. It cannot be brought in another county or city and have process sent to the county or city in which such statutory agent resides." 21 If no agent of the corporation be found in the county or corporation in which the action is com- menced, the process may be served by order of publication, but the statute does not undertake to say what is the effect of such order of publication. If it is a proceeding in rem, the order of publication is a valid mode of giving notice, but it must not be supposed that a personal judgment can be taken against a for- eign corporation on an order of publication. If the proceeding is in rem, or quasi in rem, the property of the foreign corpora- tion may be attached, and the judgment of the domestic State 19. Dillard v. Cent. Va. I. Co., 82 Va. 734, 1 S. E. 124. 20. Carr v. Bates, 108 Va. 371, 61 S. E. 754. 21. Deatrick v. State Ins. Co., 107 Va. 602, 59 S. E. 489. 193 SERVICE OF PROCESS ON CORPORATIONS 319 will be valid to the extent of the property attached, but no fur- ther. The owner of property is supposed to be in possession of it, and when the property is seized he is presumed to have notice of that fact, either personally or through the medium of the agent or servant in possession. The proceeding, however, must be in rein. A foreign corporation by doing business in the State submits to the jurisdiction of the State at least by implication, and agrees to be bound by such laws of the domestic State as are not unreasonable or in contravention of natural justice. It does not surrender its right to "due process of law." There can- not be a personal judgment against a foreign corporation which does not submit to the jurisdiction of the court except upon per- sonal service of process or its equivalent, that is, service on some agent or officer of the corporation in the State in which the ac- tion is brought. In the absence of such service or submission, a personal judgment by default against a foreign corporation is a mere nullity. It is void everywhere, and may be collaterally assailed. 22 If a foreign corporation does not do business in the State, the decided weight of authority is that process cannot be served on one of its officers casually in the State, or enticed there. This is the doctrine of the federal courts and of most of the State courts, but it is said that a different rule prevails in Louisiana, Michigan, Minnesota, Nebraska, New York and North Carolina, under the peculiar phraseology of their stat- utes. 23 If the foreign corporation is not doing business in the State, no personal judgment can be rendered against it either upon (1) service on an officer casually in the State, or (2) upon an order of publication, or (3) service on a State officer desig- 22. Pennoyer r. Xeff, 95 U. S. 714; Brooklyn v. Life Ins. Co., 90 U. S. 370; St. Clair v. Cox, 106 U. S. 350; Mutual L. Ins. Co. v. Spratley, 172 U. S. 602, and numerous other cases; Lile's Notes on Corp. 348, 350; Lafayette Ins. Co. v. French, 18 How. 404, 407. 23. 13 Am. & Eng. Encl. of Law (2nd Ed.) 893, and cases cited; St. Clair t-. Cox, 106 U. S. 350; Fitzgerald v. Fitzgerald, 137 U. S. 98; Aldneh v. Anchal Coal Co. (Oregon), 41 Am. St. Rep. 831, and note; Lile's Notes on Corporations, 327, 328; Goldey v. Morning New?. 156 U. S. 518; 19 Encl. PI. & Pr. 682-684 and notes; Jester v. Balto. Steam Packet Co., 131 N. C. 54, 42 S. E. 447; Monographic Note, 85 Amer. St. Rep. 905. 320 VENUE AND PROCESS 193 nated by statute, or (4) even upon a director resident in the State. 24 Publication of Process. 25 The subject of service of process by publication has already been discussed to some extent hereinbe- fore, but a few additional observations may be made on the subject. It .has already been noticed that the Virginia court recognizes as valid a service by publication against a domestic cor- poration, without effort to effect service on an officer or agent at defendant's known place of abode, and that upon such service a personal judgment may be rendered. It has also been noticed that no personal judgment can be rendered against a foreign cor- poration doing business in the state upon a mere publication of process. In proceedings in rem the seizure of the res brings it into the custody of the court, but does not confer jurisdiction to 24. Note, 50 L. R. A. 577; Cella Commission Co. v. Bohlinger (C. C. A.) 8 L. R. A. (N. S.) 537, and note; Conley v. Mathieson, Alkali Works, 190 U. S. 406. 25. In Virginia the "order of publication" against a corporation consists in simply publishing the process or summons for four successive weeks in some newspaper published in this State. No posting is required. The summons is in the usual form, and noti- fies the defendant when and where it is to appear, and, in the most .general way, of the nature of the action. This is essentially dif- ferent from "the order of publication" against natural persons. The subject is discussed at length in 2 Va. Law Reg. 545, 548, and the essential differences between the two are there summarized as fol- lows: Against Corporations. 1. The process in the suit is alone pub- lished. 2. This process is in the ordinary form of a summons to commence a suit. 3. The defendant is summoned to a certain rule day. 4. The publication is to be made for four successive weeks in such newspaper printed in this State, as the clerk or court may prescribe. 5. No posting is required publication in the newspaper "is sufficient." Against Individuals. 1. The order of publication is alone pub- lished. 2. This order must give the abbreviated style of the suit and state briefly its object. 3. The defendant is ordered to appear within fifteen days after due publication of the order. 4. The pub- lication is to be made in such newspaper as the court or clerk may prescribe, whether printed or published in this State or not. 5. The order must also be posted at the front door of the courthouse. 194 TIME OF SERVICE 321 render a judgment in rem. It is just as essential in such a case that there should be constructive notice as it is in a personal judgment that there should be personal notice. There must be some kind of notification. "The manner of the notification is immaterial, but the notification itself is indispensable." 26 In a proceeding in rent, as already stated, an order of publication is a valid mode of giving notice to parties interested in the res, and so a bill for specific performance of a contract to convey real estate when authorized by statute to be maintained on an order of publication is substantially a proceeding in rem, and it is en- tirely competent for the State to provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which a defendant, being a non-resident, is brought into court by publication. 27 In order to bind a party, however, by an order of publication, the statute must be strictly followed, and mistakes in the names of parties which do not come within the doctrine of idem sonans will vitiate the proceedings. 28 An order of publication in Virginia against a natural person is now required to be posted at the front door of the court-house "on or before the next succeeding rule-day after it is entered," 29 but no posting is required of an order of publication against a corporation. 194. Time of service. Generally, in Virginia, process must be issued before the re- turn day, but may be served on or before the first day of the rules to which it is returnable. It cannot be served later, and, as we have seen, the process must be returnable within ninety days from its date. Generally, service on Sunday is bad, 30 but 26. Windsor v. McVeigh, 93 U. S. 279, 281. There is a line of State cases, however, holding that the judgment is not void, but voidable only and cannot be collaterally assailed. Note, 50 L. R. A. 598. 27. Clem v. Givens, 106 Va. 145, 55 S. E. 567. 28. Steinman v. Jessee, 108 Va. 567, 62 S. E. 275. 29. Code, 3231; Acts 1902-3-4, 623. 30. Lee v. Willis, 99 Va. 16, 37 S. E. 826; Code, 2970; 19 Encl. PI. & Pr. 600. 21 322 VENUE AND PROCESS . 194 service on a legal holiday is held good in West Virginia under the phraseology of their statute, 31 and it is expressly provided in Virginia as to all legal holidays that the service shall be good. 32 Special provision is made for service of attachments on Sunday when necessary. There are two cases in which the statute re- quires the process to be executed at least ten days before the re- turn day: (1) It is provided by 3220 of the Virginia Code that if the process be issued in an action brought under 3215 (where the cause of action arose) and be executed on the defendant without the county or corporation in which the action is brought, it must be executed at least ten days before the return day; (2) under 3227, it is provided, with reference to actions against corporations, their trustees, lessees, or receivers, if the process be served on an agent of the corporation, or in any other county or corporation than that in which the action is brought, it shall be served at least ten days before the return day. 33 It is pro- vided by statute in Virginia, 34 and such is believed to be the common law, "where a statute requires a notice to be given or any other act to be done a certain time before any motion or pro- ceeding, there must be that time, exclusive of the day for such motion or proceeding, but the day on which such notice is given or such act is done may be counted as part of the time." If noth- ing is said about Sunday, it is to be included as one of the days unless the last day falls on Sunday, in which case the act may generally be done on the succeeding day, but if the act may be lawfully done on Sunday and the last day falls on Sunday, then Sunday is not to be excluded. 35 In West Virginia, process to commence an action may issue, be served, and be returnable on the same first Monday of rules. 36 31. Horn v. Perry, 11 W. Va. 694. 32. Code, 2844a. 33. Va. F. & M. Ins. Co. v. Vaughan, 88 Va. 832, 14 S. E. 754; Staunton B. & L. Co. v. Haden, 92 Va. 201, 23 S. E. 285. 34. Code, 5, clause 8. 35. Bowles v. Brauer, 89 Va. 466, 16 S. E. 356. See also 49 Am. St. Rep. 217. 36. Foley v. Ruley, 43 W. Va. 513, 27 S. E. 268; Spraggins v. W. Va. Co., 35 W. Va. 139, 13 S. E. 45; Handlan v. Handlan, 37 W. Va. 486, 16 S. E. 597. 195 RETURN OF PROCESS 323 195. Return of process. A return is a brief official statement by an officer endorsed on the process, stating what he has done in obedience to the writ, or why he has done nothing. It must be complete in itself, and cannot be added to by parol evidence. It must show that all of the statutory requirements for the particular return have been complied with. 37 It should be signed by the officer who makes it in order to authenticate it, but it has been held that the signa- ture of the officer to the return is no part of the return. 38 It is provided by Code, 3227, that in case of corporations, the re- turn shall show on whom, and when, the service was made, and that it was by delivery of a copy to the person referred to in that section in the county or corporation wherein he resides, or wherein his place of business is, or the principal office of his cor- poration is located. If served by a deputy, he must sign not only his own name but that of his principal also. 39 If a re- turn is made by a deputy in his own name alone, a motion to quash will be sustained. 40 If, however, the defendant appears, and does not object, the defect is waived. 41 If the return is de- fective in any respect pointed out by 3227, it is declared that it shall be invalid. Any judgment by default rendered thereon is utterly void, and may be collaterally assailed. 42 Courts, how- ever, are extremely liberal in allowing returns to be amended for the purpose of upholding judgments, and a return has been per- mitted to be amended years after a judgment by default, in or- der to validate a judgment that was otherwise invalid, notwith- standing the fact that the officer by whom the return was made had gone out of office, 43 or was dead. The amendment, how- 37. Rowe v. Hardy, 97 Va. 674, 34 S. E. 625; Lile's Notes on Corp. 336. 38. Slingluff v. Collins, 109 Va. 717, 64 S. E. 1055. 39. Code, 900. 40. Mitchell v. Com., 89 Va. 826, 17 S. E. 480; Code, 900. 41. Harvey v. Skipwith, 16 Gratt. 410. 42. Staunton Per. B. & L. Co. v. Haden, 92 Va. 201, 23 S. E. 285. 43. Shenandoah R. Co. v. Ashby, 86 Va. 232, 9 S. E. 1003; Com. Ass. Co. v. Everhart, 88 Va. 952, 14 S. E. 836; Staunton, etc., Co. v. Haden, 92 Va. 201, 23 S. E. 285; Goolsby v. St. John, 25 Gratt. 146. 324 VENUE AND PROCESS 195 ever, is not a matter of right, and cannot be made except by leave of court, and is only allowed in furtherance of justice, and in the exercise of an 1 enlightened discretion after notice to the opposite party. It will not be permitted unless the court is sat- isfied that the amendment is true, and, for the purpose of ascer- taining this fact, it may hear evidence, and if upon such hear- ing the evidence is contradictory, or the court is left in doubt and uncertainty as to what the truth is, it will not permit the amendment. 44 The amendment, however, when made, has the same effect as though it were an original return where the rights of third persons have not intervened, and it does not appear that injustice can result to any one. There is no specific time within which a return must be amended, but after a great lapse of time the amendment should be permitted with caution, and in no case should it be allowed unless the court can see that it is in furtherance of justice. 45 The form of the return is generally very simple ; being a brief statement of the time and manner of execution of the process. But some particularity is required in the return on process against a corporation under 3227 of the Code. The following forms are given for convenient refer- ence : Service on Officer: Executed on the Norfolk and Western Railway Company, by delivering to F. J. Kimball, the president of the said company, in the city of Roanoke, Va., in which the principal office of the said company is located, a true copy of the within summons, this October 2, 1903. R. R. WITT, Sergeant of Roanoke City. Service on Agent : Executed on the Norfolk and Western Railway Company, by delivering to S. O. Campbell, an agent of said company, in the county of Rockbridge, in which he resides^a true copy of the within summons, this October 2, 1903, there being no officer of other person in said county on whom said summons could be served. HENRY JONES. Deputy for R. R. Witt, S. R. C. 44. Park L. & I. Co. v. Lane, 106 Va. 304, 55 S. E. 690. 45. Slingluff v. Collins, supra. 196 DEFECTIVE SERVICE 325 Returns made by officers are records that cannot be collat- erally assailed. 46 Whether the return of an officer can be di- rectly assailed is a question upon which there is serious conflict of authority. In Virginia it has been held that the return cannot be directly assailed whether the case be at law or in chancery not even by a plea in abatement before judgment rendered. 47 Whether the weight of authority is with or against the Virginia holding is not material to inquire. The law is settled in Virginia, and the holdings elsewhere may be ascertained by consulting the references given in the margin. In addition to the reasons stated by the Virginia court for its holding, and they are certainly very cogent, it may be noted that the Virginia court discountenances special appearance by parties who have been actually served with process. The object of process is to give notice to defendants of actions against them, and when and where a hearing will be af- forded them, and no great amount of grace should be extended to a defendant who admits that he has received notice in ample time to make defence, but claims that there is some technical defect about the manner of service. The court, seeing that no harm has come to such defendant, or can come to him, refuses to entertain an objection upon purely technical grounds. It has been held in West Virginia that the same conclusive effect is not to be given to returns by private persons as to those made by sworn officers, and that they may be assailed in a di- rect proceeding for that purpose. 48 196. Defective service. If the writ itself is valid and the service personal, ordinarily a judgment rendered on defective service is not void, but voidable only, and cannot be collaterally assailed, 49 but a judgment by de- 46. Rader r. Adamson, 37 W. Va. 582, 16 S. E. 808; McClung v Mc\\ horter, 47 W. Va. 150, 34 S. E. 470. 47. Preston ?. Kindrick, 94 Va. 760, 27 S. E. 588, 3 Va. Law Reg. 431, and note; Ramsburg v. Kline, 96 Va. 465, 31 S. E. 608, 4 Va. Law Reg. 584, and note; Sutherland r. Bank, 111 Va. 515, 69 S. E. 341, 16 Va. Law Reg. 744, and note 949; Earle v. McVeigh, 91 U. S. 503; Lile's Notes on Corp. 340. 48. Peck v. Chambers, 44 W. Va. 270, 28 S. E. 706. 49. Note, 61 Am. St. Rep. 488. 326 VENUE AND PROCESS 196 fault on defective service which is constructive merely is utterly void, and may be collaterally assailed. For instance, if the service be on an agent of a corporation, the statute provides that the return shall show when and on whom the service was made, and that it was on the agent in the county in which he resides, or his place of business is, or the principal office of the corporation is lo- cated; otherwise, that the return shall be invalid. 50 So also where service was required to be ten days before judgment, and the return shows a less time, a judgment by default thereon is void. But where the service is on a defendant personally, al- though the statute requires the officer to return the manner and time of service, the failure to state the time and manner of serv- ice does not invalidate the judgment per se, but must be pleaded in abatement; in other words, the judgment could not be col- laterally assailed. 51 But courts are extremely liberal in allow- ing amendments of returns, as has been pointed out in the last section, and many defects may be thus cured. Defects, how- ever, in the process or the return thereon may be waived. If a defendant appears generally and defends on the merits, or makes or accepts a motion for a continuance, or makes any other motion which does not involve the question of the court's ju- risdiction, he thereby waives all defects in the process and the return thereon. 52 Generally, if a party desires to raise a ques- tion as to the sufficiency of service of process, he should enter special appearance for this purpose, but in doing so he should be particular not to allow the appearance , to assume such shape as will admit the jurisdiction of the court. "An appearance for any other purpose than questioning the jurisdiction of the court be- cause there was no service of process, or the process was defect- ive, or the service thereof was defective, or the action was com- menced in the wrong county, or the like, is general and not spe- cial, although accompanied by the claim that the appearance is only special. A motion to vacate proceedings in a cause, or to 50. Code, 3227. 51. Barksdale v. Neal, 16 Gratt. 318; 4 Min. Insi. 644; Staunton Bldg. Co. v. Haden, 92 Va. 201, 23 S. E. 285. 52. New River Min. Co. v. Painter, 100 Va. 507, 42 S. E. 300; Lane v. P.auserman, 103 Va. 146, 48 S. E. 857; N. & W. v. Sutherland, 105 Va. 545, 54 S. E. 465; Burlow v. Quarrier, 16 W. Va. 108. 196 DEFECTIVE SERVICE 327 dismiss or discontinue it, because the plaintiff's pleading does not state a cause of action, is equivalent or analagous to a de- murrer, and amounts to a general appearance." 53 Process may be merely defective, or it may be absolutely void. If merely defective the defendant appears specially, and, as a rule, pleads the defect in abatement, but if the process is not merely defective, but absolutely void, as where the writ in an action brought under 3215 is improperly sent out of the county for service, or is illegally issued or executed, the objection may be raised not only by a plea in abatement, but by a mere motion, or the court may take notice of it ex officio. 54 In Hilton v. Con- sumers' Can Co., supra, there was a motion to abate a foreign attachment which was sustained. The attachment was the only ground of jurisdiction of the court, and there was no personal service of the summons. Thereupon the defendant appeared specially and moved to dismiss the action. It was insisted by the plaintiff that the defence could only be made by a plea in abate- ment, but the court held: "A motion to dismiss for want of ju- risdiction is the proper and only mode of procedure where the defendant has not been summoned, and has not waived the sum- mons. One not before the court cannot be required to plead. A plea in abatement is proper only when the defendant has been summoned, or by appearance has waived the summons. Where the matter relied upon to abate an action is a fact not appearing on the record, or the return of an officer, it must be pleaded in abatement so as to give the other party an opportunity to trav- erse and try it, but where 'all the facts relied upon in abatement appear by the record, including the return of the officer, of which the court will take judicial notice without plea, there the action may be dismissed on motion." 53. Norfolk & O. V. Ry. Co. v. Turnpike Co., Ill Va. 131, 68 S. E. :i46. See also Harkness v. Hyde, 98 U. S. 476; Hilton v. Consum- ers' Can Co., 103 Va. 255, 48 S. E. 899. 54. Warren r. Saunders, 27 Gratt. 259; Lane v. Bauserman, supra. CHAPTER XXIV. PLEAS IN BAR. 197. Different kinds of pleas in bar. Traverse or denial. The common traverse. The special traverse. The general traverse, or the general issue. Confession and avoidance. 198. Number of pleas allowed. 199. Duplicity. 197. Different kinds of pleas in bar. A plea in bar is one to the substantial merits of the case, and, as its name imports, purports to bar the rights of the plaintiff to recover at all, as distinguished from other pleas which simply deny the jurisdiction of the court over the parties, or seek to suspend or abate the present action, but do not prevent another action upon the same cause of action in another court, or un- der other conditions. Pleas in bar are also designated peremp- tory pleas, pleas to the action, pleas to the merits, pleas to the issue, or issuable pleas. 1 Pleas in bar, or peremptory pleas, as are hereinbefore pointed out, are generally either by way of traverse or denial, or by confession and avoidance; 2 and pleas by way of traverse are either (1) the common traverse, or (2) the special traverse, or (3) the general traverse, or the general issue as the last named is called. The common traverse denies the allegation of the declaration in the language of the allega- tion traversed, 3 and it is said that not many instances of it occur in pleas. 4 At present it is rarely encountered in pleading, and when it is, it is treated as the general issue. The special traverse, or traverse with an absquc hoc, or formal traverse, or simple trav- erse has fallen into "innocuous desuetude," is rarely used, is 1. 4 Min. Inst. 760. 2. Ante, 183. 3. Stephen on PL, 145. 4. 4 Min. Inst. 761. 197 DIFFERENT KINDS OF PLEAS IN BAR 329 seldom if ever of any value, and is of interest from an historical rather than a practical standpoint. 5 "The general traverse or general issue is- a form of traverse which occurs only in the plea and at no subsequent stage of the altercation. It denies the al- legations of the plaintiff's declaration in general terms and not in the terms of the allegation denied. It appears to have been denominated the general issue because it involves the whole dec- laration, or at least the main substance of it, and is more com- prehensive than the issue tendered by the common traverse."* The general issue in each of the different common-law actions, and what is provable under each has been hereinbefore set forth in treating these actions. All pleas in bar which are not trav- erses are designated special pleas, and whenever it is said that a fact must or may be specially pleaded, it is simply meant that the defence relied on must or may be made by a plea in which the facts constituting the defence are specifically set forth as dis- tinguished from pleading the general issue and proving the facts under that plea. In other words, if any plea in bar is not a trav- erse, or denial, then it is a special plea, and the defendant is said to plead specially. Not every defence, however, which is sufficient to defeat the plaintiff's claim can be pleaded specially. If the defence amounts to the general issue, it is required to be so pleaded. That is, the general issue is to be pleaded, but there are many facts which do not amount to the general issue, but are provable under the general issue. The latter only are al- lowed to be specially pleaded. The distinction between the two is thus drawn by Judge Parker, who says : 7 "I know of no rule which inhibits a party 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 allegation which the plaintiff is bound to prove, but where the cause of action is avoided by a matter ex post facto, it may al- ways be specially pleaded, whether it could be given in evidence under the general issue or not." If, then, a plea denies some fact which the plaintiff is obliged to prove in order to maintain 5. Stephen on PL, 156 ff. A modern instance of its use may be seen in Townsend v. N. Ry. & L. Co., 105 Va. 22, 53 S. E. 970. 6. 4 Min. Inst. 761. 7. Maggort v. Hansbarger, 8 Leigh 532. 330 PLEAS IN BAR 197 his action, it amounts to the general issue and must be so pleaded. For example, if a plaintiff sues for trespass upon his garden and carrying away his vegetables, and the defendant pleads specially that the plaintiff had no garden, this plea would be bad, because it is a necessary part of the plaintiff's case to prove that he had a garden, and that the defendant trespassed upon it and if he failed to prove it, he could not recover. In such case, the clef end- ant is not permitted to plead the above fact specially, but is re- quired to plead the general issue of not guilty. The test in all cases is, would the plaintiff be obliged to prove the fact in or- der to maintain his action. The distinction between what amounts to the general issue, and what is provable under the general issue, is further drawn by Moncure, Judge, as follows: 8 ""A plea amounts to the general issue when it traverses matter which the plaintiff avers, or must prove to sustain his action, whether such traverse be direct or argumentative. * * * The plaintiff must prove the facts to sustain his action, and a plea traversing any of them or averring facts inconsistent there- with must therefore amount to the general issue. * * * Matter which amounts to the general issue cannot be specially pleaded. * * * All matters of defence which give color of action to the plaintiff may be specially pleaded, and all matters of defence which do not give color of action amount to the general issue and must be given in evidence under it." 9 Com- menting upon the above statements of Judge Moncure, Pro- fessor Lile says: "The test here laid down makes the applica- tion of the rule comparatively simple. Every defence which is by way of confession and avoidance, or gives color to the plain- tiff's action, may be specially pleaded; but if it gives no such color, and denies by anticipation what the plaintiff must affirma- tively prove, then it may not be specially pleaded, but must be set .up under the general issue." 10 Notwithstanding the well- settled rule stated above, however, if the defendant should plead a matter specially which amounts to the general issue, and the plaintiff does not object to it but takes issue on it, or if he ob- 8. B. & O. R. Co. v. Polly, 14 Gratt. 447, 453. 9. 1 Chitty PI. 526, 530. 10. 4 Va. Law Reg. 772. 197 DIFFERENT KINDS OF PLEAS IN BAR 331 jects on that ground but his objection is overruled it is no ground for reversal, but the defendant will probably be limited to the defence set up by his special plea. 11 If a defendant, there- fore, should plead a matter amounting to the general issue in a special plea, it might be to the interest of the plaintiff to take issue on it, rather than object to it, so as to narrow the line of the defence of the defendant, but of course this would be un- availing if he pleaded that matter specially and also the general issue. It has been hereinbefore pointed out that the general is- sues in debt on simple contract, assumpsit, and trespass on the case, 12 are very comprehensive, and under them any defence may be made with a few exceptions hereinbefore noted. The defend- ant, however, is not obliged to make these defences under these broad general issues but may plead most of them specially. Whether he shall be allowed to plead specially a matter provable under the general issue, and how many special pleas he will be permitted to file, lies very largely in the discretion of the trial court, whose action ordinarily will not be reversed unless plainly erroneous. While the trial court should not permit such a mul- tiplicity of pleas as would tend to confuse the jury, and while there are expressions in some of the cases indicating that spe- cial pleas are still not to be favored, still, as pointed out by Phle- gar, Judge, the plaintiff is usually benefited rather than injured by special pleas, because they give full and specific notice of the real defence upon which the defendant intends to rely; and hence, unless some improper advantage is sought by a defendant, or is likely to be obtained by him by reason of pleading spe- cially, such pleas should be favored. 13 The reason of the rule requiring matters amounting to the general issue to be so pleaded is said to be to prevent prolixity in pleading, and furthermore, as a general rule, such a plea will be either argumentative or will tcant color. 14 There is no limit to the variety of special pleas, but a few of those in most common use are treated separately in the next succeeding chapters. No pleas in bar are required 11. Norfolk & W. R. Co. v. Mundy, 110 Va. 422, 66 S. E. 61. 12. Ante, 73, 93, 152. 13. Ches. & O. R. Co. r. Rison, 99 Va. 18, 33, 37 S. E. 320; 6 Va. L. Reg., valuable note at p. 679. 14. Stephen on PL, 247. 332 PLEAS IN BAR 198 to be sworn to in Virginia, except those specially designated in some statutes. 15 198. Number of pleas allowed. At common law in order to secure singleness of issue, the de- fendant was not allowed to plead but one matter of law or fact. He might demur or plead, but he could not do both. The plain- tiff, however, was allowed to put several counts in his declara- tion, either upon different claims or varying statements of the same claim. To each of these several counts, or to distinct parts of the same count, the defendant could make one answer of law or of fact. This rule of the common law was modified in Eng- land by statute, 16 providing that "it shall be lawful for any de- fendant * * * in any action or suit, * * * in any court of record with leave of the court to plead as many several matters thereto as he shall think necessary." By a corresponding stat- ute in Virginia, it is provided that "the defendant in any action may plead as many several matters, whether of law or fact, as he may think necessary, and he may file pleas in bar at the same time with pleas in abatement, or within a reasonable time there- after, but issues on the pleas in abatement shall be tried first." 17 It is also provided by statute in Virginia that "it shall not be necessary to state in any second or other plea that it is pleaded by leave of the court, or according to the form of the statute, or to that effect." 18 It is pointed out by Professor Graves in his Notes on Pleading, 19 that the English and Virginia statutes differ in three particulars: (1) No leave of court is required in Virginia; (2) the Virginia statute extends to pleas in abate- ment as well as pleas in bar, and several dilatory pleas may be pleaded at the same time, and dilatory pleas and pleas in bar may be pleaded together; and (3) that the defendant in Virginia is permitted to both demur and plead to the declaration. It may be further noted that the English courts, under the rule requir- 15. Section 183, ante, points out the pleas which in Virginia are required to be sworn to. 16. 4 Ann. Ch. 16, 4. 17. Code, 3264. 18. Code, 3270. 19. 1st Ed., Graves' Notes on PI. 104. NUMBER OF PLEAS ALLOWED 333 ing leave of the court to file more than one plea, refused to al- low inconsistent pleas to be filed, "but with us inconsistent pleas are allowable, and in trying one, the court cannot look to the ex- istence of the other, for if it did they would neutralize each other, hence we look upon each branch of the pleading as totally separate and distinct from every other, and the defences under one cannot be straitened or curtailed by the existence of the oiher. Were it otherwise, the liberty of pleading several, and even contradictory, pleas would be defeated." 20 It will be ob- served that the Virginia statute, like the English statute, uses the word "plead" in a technical sense, and hence it applies only to the defendant's answer to the plaintiff's declaration, and does not apply to the replication, rejoinder, or any subsequent pleading. As to the replication, rejoinder, and all subsequent pleadings, the common-law rule still prevails in Virginia, and the pleader can make but one answer, whether of law or fact, to the antecedent pleading. He may demur or he may answer in fact, but he can- not do both. 21 In West Virginia it is provided that "the defendant in any ac- tion or suit may plead as many several matters, whether of law or fact, as he shall think necessary, except that if he plead the plea of non est factum, he shall not without leave of the court be permitted to plead any other pleas inconsistent therewith. To any special plea pleaded by a defendant, the plaintiff may plead as many special replications as he may deem necessary." 22 This statute differs from the Virginia statute in two important par- ticulars : (1) if the defendant pleads non est fa-ctum, it is neces- sary for him to obtain the leave of the court in order to be per- mitted to plead any other plea inconsistent therewith; (2) the plaintiff is permitted to make several replications to a defend- ant's plea, which cannot be done in Virginia, but this statute ex- tends no further than the replication, and even though several replications of fact are permitted, the plaintiff is not permitted 20. Tucker, Judge, in McNutt v. Young, 8 Leigh 542, 553. 21. Ches. & O. R. Co. v. Amer. Exch. Bank, 92 Va. 495, 23 S. E. -.935, 1 Va. Law Reg. 825, 836, note by Judge Burks. 22. W. Va. Code, 1906, 3840. 334 PLEAS IN BAR 199 both to demur and reply. 23 While only one replication is al- lowed at common law and in Virginia, if more than one is in fact filed, the defendant should move to strike out all but one and to require the plaintiff to elect on which replication he will rely, but if no such motion is made, no objection is raised, and issue is taken on each of the replications, it is presumed that the objection cannot be made in the appellate court for the first time,, and that the defendant will be deemed to have waived the rule of law in his favor. 24 199. Duplicity. It is a rule of pleading that pleadings should not be double. As applied to pleas, it means that the defendant should not be permitted to set up more than one defence in a single plea. He is permitted in Virginia to plead as many matters of law or fact as he chooses, but this does not mean that these defences can be set up in the same plea. Each defence must be set up by a separate and distinct plea, and if more than one defence is set up in a single plea, the plea is said to be double, and is objec- tionable on that account. The objection, however, is one of form and not of substance, and it is said could be taken advan- tage of at common law by special demurrer only, 25 and could not be taken advantage of by a general demurrer, 26 but special demurrers have been abolished in Virginia and West Virginia except as to pleas in abatement; 27 and there has been some dis- 23. Camden Clay Co. v. New Martinsville, W. Va. , 68 S. E. 118. 24. See Stimmell v. Benthall, 108 Va 141, 60 S. E. 765. 25. Grayson v. Buchanan, 88 Va. 251, 13 S. E. 457; Sweeney v. Baker, 13 W. Va. 158. 26. 5 Rob. Pr. 305; Cunningham v. Smith, 10 Gratt. 255. 27. Section 3272 of the Code is as follows: "On a demurrer (un- less it be to a plea in abatement), the court shall not regard any defect or imperfection in the declaration or pleadings, whether it has been heretofore deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defence, that judgment, according to law and the very right of the cause, cannot be given. No demurrer shall be sustained, be- cause of the omission in any pleading of the words, 'this he is ready 199 DUPLICITY 335 cussion as to whether the objection could be raised at all in any other way. In Virginia it has been held that duplicity in a dec- laration is a defect of form only, and cannot be taken advantage of by a general demurrer ; 28 and it is doubtful if the vice can be reached at all. If it can be, it is probably by a motion to compel the plaintiff to elect on which cause of action he will proceed. As to pleadings subsequent to the declaration, it has been held that "special demurrers having been abolished, the motion to re- ject or strike out can be made to obviate objections to pleadings, such as duplicity, and the like, which cannot now be raised by a demurrer." 29 And the same rule probably prevails elsewhere. 30 In West Virginia, it is stated in the syllabus of a case 31 that du- plicity in a plea is no longer ground of demurrer or objection to it. It is doubtful if the opinion itself or the authorities cited go quite so far, but, as the syllabus is made by the court, it is of as much authority as the opinion itself. 32 It must be remarked, however, that no matters, however mul- tifarious, will operate to make a pleading double that together constitute but one connected proposition or entire point. 33 to verify,' or 'this he is ready to verify by the record,' or, 'as ap- pears by the record'; but the opposite party may be excused from replying, demurring, or otherwise answering to any pleading, which ought to have, but has not, such words therein, until they be in- serted." W. Va. Code, 1906, 3849. 28. N. & W. Ry. Co. r. Ampey, 93 Va. 121, 25 S. E. 226; So. Ry. Co. v. Blanford, 105 Va. 373, 54 S. E. 1; So. Ry. Co. v. Simmons, 105 Va. 651, 55 S. E. 459. 29. Ches. & O. R. Co. r. Rison, 99 Va. 18, 28, 37 S. E. 320; note, 1 Va. Law Reg. 836. 30. 18 Encl. PI. & Pr. 651, 2. 31. Poling r. Maddox, 41 W. Va. 779, 24 S. E. 999. 32. It is provided both by the constitution of West Virginia (art. VIII. 5) and by statute (Code, W. Va., 4059) that the court shall prepare "a syllabus of the points adjudicated in each case." It is also provided in W. Va. that no decision of the court of appeals shall be binding on the inferior court, except in the particular case decided, unless it is concurred in by at least three judges of that court. Constitution, art. VIII, 4; Code, 4058. 33. As illustrating this rule, see Va. F. & M. Ins. Co. v. Saund- ers, 86 Va. 969, 11 S. E. 794; Reese v. Bates. 94 Va. 321, 26 S. E. 8f>:>: Deatrick r. Ins. Co., 107 Va. 602, 59 S. E. 489; and as illustra- 336 PLEAS IN BAR 199 Although the objection for duplicity may be raised in Virginia and elsewhere than West Virginia, in the manner hereinbefore pointed out, yet it must be raised, if at all, in the trial court, and cannot be raised for the first time in the appellate court. If a replication or other subsequent pleading sets up two or more separate and distinct replies, but the defendant without objection takes issue thereon, and the court renders judgment on such is- sues, the objection on the ground of duplicity will be deemed to have been waived. 34 tive of a plea in abatement held to be bad for duplicity, see Guar- antee Co. v. Bank, 95 Va. 480, 28 S. E. 909. 34. Stimmell v. Benthal, 108 Va. 141. 60 S. E. 765; 18 End. PI. & Pr. 651, 652. CHAPTER XXV. DEMURRER. 200. Introductory. 201. Definition When not applicable Time of filing. 202. Forms of demurrer General Special Applicability. 203. Election to demur or plead. 204. Who may demur. 205. Causes of demurrer. 206. Effect of demurrer. 207. Effect of failure to demur Pleading over. 208. Judgment on demurrer. 200. Introductory. Pleading is an orderly statement in a judicial proceeding of some ground of action or defence. The answer to every decla- ration or subsequent pleading must, with a few well established exceptions, assume one or the other of three forms. It must be either (1) a denial of the facts alleged, which is done by a plead- ing called a traverse, or (2) an admission of the truth of such facts, and the assertion of some new fact or facts which ex- cuses or justifies the facts adversely alleged, which is done by a plending by way of confession and avoidance, or (3) an admis- sion of the facts adversely alleged accompanied by a statement that they do not state any legal ground of action or defence (as the case may be), which is done by a pleading called a demurrer. So, likewise, if any pleading fails to measure up to one or the other of these requirements, that is, is neither a traverse, con- fession and avoidance, nor demurrer, it is bad in law, and the means of determining whether it does so measure up or not is by a demurrer. 201. Definition When not applicable Time of filing. A demurrer is a pleading by which the pleader objects to pro- ceeding further because no case in law has been stated on the other side, and of this he demands the judgment of the court before he will proceed further. It lies only for a matter al- 22 338 DEMURRER 201 ready apparent on the face of the pleadings, or which is made so to appear by oyer. It presents a question of law only, to be decided by the court. It in effect says : Admit all you say to be true, the law affords you no relief in the form sought. The word demurrer is derived from the Latin demorari and the French demorer, signifying a delay or halt in the progress of the action until the court has decided whether the pleading to which it is interposed states a case. It is the pleading by which the legal sufficiency of every other pleading is tested. It is not a mere statement, as it is sometimes called, nor is it a plea, in a technical sense, but it is a pleading raising a question of law for the decision of the court ; and, being a pleading, is per se a part of the record, needing no bill of exception to make it such. The word demurrer when used alone always signifies an objection to a pleading as distinguished from a demurrer to the evidence. A demurrer is addressed to matters appearing on the face of the pleadings. In aid of it, the court cannot look to facts appearing in other parts of the record. 1 Objections to defects appearing in other parts of the record which are not pleadings, such as ;i failure to file an affidavit with a plea where such an affidavit is required, or a bill of particulars, or the filing of an insufficient account with a declaration, cannot be raised by demurrer. Neither the affidavit filed with a plea (as under Code, 3299), nor a bill of particulars filed with a declaration, is any part of the plead- ings, and hence defects therein cannot be reached by demurrer. The point should be raised in such cases by objecting to the re- ception of the plea, or a motion to strike it out, if already in, for the want of a proper affidavit; or an objection to the suffi- ciency of the bill of particulars or account, and in either case, if the objection is overruled, by filing a bill of exception. 2 No time is fixed at which a general demurrer must be filed. It must, of course, be filed before final judgment by default, or 1. Brooks v. Metropolitan Life Ins. Co., 70 N. J. Law 36, 56 Atl. 168. 2. Lewis v. Hicks, 96 Va. 91, 30 S. E. 466; Spencer v. Field, 97 Va. 41, 33 S. E. 380; Geo. Campbell Co. v. Angus, 91 Va. 438, 22 S. E. 167; Columbia Accident Ass'n v. Rockey, 93 Va. 678, 25 S. E. 1009; Chestnut v. Chestnut, 104 Va. 539, 52 S. E. 348; Abell v. Penn. Ins. Co., 18 W. Va. 400; Sheppard v. Peabody, 21 W. Va. 368. 202 FORMS OF DEMURRER 339 before the case is heard and decided on the issues of fact. It would come too late after verdict. But it is provided by statute in Virginia 3 that "the defendant in any action may plead as many several matters, whether of law or fact, as he shall think necessary," thereby putting issues of law (which are raised by demurrer) on the same footing as issues of fact, and permitting demurrers to be filed whenever a plea in bar might be. Logic- ally, it would seem that issues of law should be first made up and decided, but under this statute the demurrer of a defendant to a plaintiff's declaration and pleas in bar are put on the same footing as to the time of filing. Whether, after the issues have been made up, a defendant should, at a subsequent term, be per- mitted to demur or to add additional pleas would seem to rest in the sound discretion of the trial court. In an early case, the defendant, three years after he had pleaded, was permitted to withdraw his plea and demur to the declaration and tender a new plea, and the case was decided in his favor on the demurrer. 4 In practice, the defendant generally first demurs to the declara- tion and, if his demurrer is overruled, he is allowed, as of course, to plead to the merits, 5 or else files his demurrer and pleas in bar at the same time, and, if his demurrer is overruled, simply stands upon his pleas. The latter practice is commended. 202. Forms of demurrer General Special Applica- bility. In the absence of statute no particular form is necessary. At common law defects of form as well as of substance could be relied on under a general demurrer assigning no cause except in the single instance of duplicity, which had to be mentioned specially. But by Statutes 27 Eliz., and 4 and 5 Anne, the judges were required to give judgment "according to the very right of the case and matter of law" without regarding any de- fect, imperfection or want of form, except those which the party demurring should "specially and particularly set down and, ex- press in connection with his demurrer as causes of the same." 6 3. Code, 3264. 4. Miller v. McLuer, Gilmer 338. 5. 1 Rob. Pr. (old) 286. 6. Martin on Civil Procedure, 196, 197; 4 Min. Inst. 890. 891; Stephen PL, 139; Cunningham v. Smith, 10 Gratt. 257. 340 DEMURRER 202 A similar statute was enacted in Virginia at an early day 7 and so the law continued till 1849 when the revisers proposed and the legislature adopted what is now 3272 of the Code, declar- ing that "on a demurrer (unless it be to a plea in abatement) the court shall not regard any defect or imperfection in the dec- laration or pleadings whether it has been heretofore deemed mis- pleading or insufficient pleading, or not, unless there be omitted something so essential to the action or defence that judgment, according to law and the very right of the case, cannot be given * * * ." Under the English statutes and the earlier Vir- ginia statute, mere formal defects could be taken advantage of on demurrer if they were "particularly set down and expressed," but the avowed object of the statute of 1849 was to abolish special demurrers in all cases except in the single case of pleas in abatement. 8 The provisions of the English statute led to the division of demurrers into general and special, the former applicable to matters of substance, and the latter to matters of form. The latter were designated special because the grounds thereof were required to be "specially" set down, while the former were called general because they excepted to the sufficiency of the antece- dent pleading in general terms without specifically pointing out the nature of the objection intended to be relied on. 9 Now, in Virginia, defects of form, except in pleas in abatement (which term includes all dilatory pleas), are no longer available as ob- jections to pleadings. 10 Formerly, general demurrers were fre- quently pleaded orally, and the clerk noted their filing and the ruling of the court thereon in the order book, and they became a part of the record. No grounds were stated except in the oral argument. Now it is provided by statute that "the form of a demurrer or joinder in demurrer may be as follows: 'The defendant (or plaintiff) says that the declaration (or other pleading) is not (or is) sufficient in law:' provided, that all demurrers shall be in writing, except in criminal cases, and in 7. 1 Rev. Code 211, 101, 103. 8. Report of Revisors, 849. 9. Stephen PI., 139. 10. See Code, 3243, 3244, 3245, 3246, 3247, 3272. 202 FORMS OF DEMURRER 341 civil cases the court, on motion of any party thereto, shall, or, of its own motion, may require the grounds of demurrer relied on to be stated specifically in the demurrer; and no grounds shall be considered other than those so stated, but either party may amend his demurrer by stating additional grounds, or other- wise, at any time before the trial." 11 It is to be observed that the statute requires that all demurrers in civil cases shall be in -writing, and the grounds thereof shall or may be required to be specifically stated in the demurrer. But long before this statute was enacted it had been held that the mere statement of the grounds of the demurrer did not make it a special demurrer. If it were for a matter of substance it was a general demurrer although the grounds were specifically enumerated, and if for matter of form it was a special de- murrer. 12 "A demurrer to an entire declaration, whether general or special, raises the question whether there be, or be not, matter in the declaration sufficient to maintain the action. If there be several counts, and one is good, that is sufficient to maintain the action, and the demurrer must be overruled. If there be a single count containing several breaches, any one of which is well assigned, that is sufficient to maintain the action. If there be a single count containing a demand of several matters which in their nature are divisible, any one of which is well claimed, that is sufficient. Whether the objection be that one of several counts, or that one of several breaches, or that part of plaintiff's demand which is of a distinct and divisible nature, is bad, the demurrer should be to that count, or to that breach, or to that part of the demand, as. the case may be, which is bad." 13 It will be seen later 14 that certain .causes of action, for exam- 11. Code, 3271. 12. Miller v. McLuer, Gilmer 338; Henderson v. Stringer, 6 Gratt. 130; Portsmouth R. Co. v. Oliver R. Co., 109 Va. 513, 64 S. E. 56. 13. Henderson v. Stringer, 6 Gratt. 130; Va. N. C. Wheel Co. v. Harris, 103 Va. 708, 49 S. E. 991; Portsmouth R. Co. v. Oliver R. Co., 109 Va. 513, 64 S. E. 56; Smith v. Kanawha County Court, 33 W. Va. 713, 11 S. E. 1; City of Wheeling v. Black, 25 W. Va. 266, and numerous other cases in Va. and W. Va. cited in 4 Digest Va. and W. Va. (West Pub. Co.) 7324-7327. 14. Post, 205. 342 DEMURRER 203 pie, tort and contract, cannot be joined in the same action. Here each count of the declaration may ,be perfect in itself and yet the pleader is attempting to do that which is forbidden. Where this is the nature of the objection ,the demurrer should be to the declaration as a whole, as the objection is no more to one count than another. The objection is to the misjoinder of causes of action, and this can only be discovered by looking at the different counts at the same time. 15 The proper form of demurring, therefore, to a declaration containing more than one count, or assigning more than one breach, is to demur to the declaration as a whole and to each count thereof, or to each breach assigned, for the demurrer to the declaration as a whole will reach the misjoinder, if any, of causes of action, and the demurrer to each count or to each breach will throw out those that are defective in substance. As to what the judgment should be and the ef- fect thereof, see post, 208. 203. Election to demur or plead. At common law a defendant could make but one answer of either law or fact to the plaintiff's declaration, and at subsequent stages of the pleading neither party could make but one reply to the antecedent pleading, and that might be of either law or fact, but not both. Hence it became necessary for the pleader, in every instance, to determine whether that answer should be one of law (demurrer) or of fact. The considerations which would determine the action of the pleader are set forth in Stephen on Pleading in 143, 16 and they need not be here repeated, as nearly or quite all of the objections to pleadings will be cured by pleading over without demurrer, by verdict, or by the stat- ute, of jeofails. 17 In Virginia a defendant may plead as many several matters of law or fact as he deems necessary 18 and if he demurs and his demurrer is overruled he may still plead to is- 15. Henderson v. Stringer, 6 Gratt. 130; Gary v. Abingdon Pub Co., 94 Va. 775, 27 S. E. 595; 1 Rob. Pr. (old) 284. 16. Andrews, 2nd edition. 17. See post, 207. 18. Code, 3264. In W. Va. there may not only be several pleas, but several replications to special pleas. Code (1906), 3840. 203 ELECTION TO DEMUR OR PLEAD 343 sue, 19 so that at this stage of the pleading he is not put to any election, but this applies only to the defendant's first pleading to the plaintiff's declaration. At all subsequent stages the com- mon-law rule prevails. 20 It then becomes necessary for the pleader to determine what course he will pursue. A practice has grown up in Virginia, which has been sanctioned by the Court of Appeals, of neither demurring nor replying to the pleading, but of objecting to the pleading when offered, or, if already in, of moving to strike it out, for just such causes as might have been assigned on demurrer. If the motion is refused a bill of exception is filed and the ruling of the trial court may be re- viewed on a writ of error, whereas if a demurrer had been filed and overruled the pleader would have been compelled to with- draw his demurrer and ask liberty to reply, and the ruling on the demurrer could not be reviewed on a writ of error, as the record would show that the demurrer had been withdrawn. The proceeding by motion to reject when offered, or to strike out a pleading which has already been received, thus possesses a marked advantage over a demurrer. 21 In practice, when a de- murrer is filed there is full argument before the trial judge and he actually decides on the sufficiency of the demurrer, and if he overrules it, and the demurrant is unwilling to risk his case on the demurrer but wants a trial on the merits, he is allowed to withdraw his demurrer and reply to the antecedent pleading, and then proceeds with the trial on its merits. The record sim- ply shows that the court intimating an opinion adverse to the demurrant, on his motion, he has liberty to withdraw his de- murrer and reply to the antecedent pleading, whereupon he withdraws his demurrer and files such a replication, or rejoinder, etc. It shows nothing of the argument and actual decision of the demurrer. This practice of withdrawing the demurrer and re- plying in fact has become so firmly established as to be a matter 19. Code, 3264. 20. Ches. & O. R. Co. v. Amer. Exch. Bank. 92 Va. 495. 23 S. E. 935. 21. Va. F. & M. Ins. Co. v. Buck & Newsom, 88 Va. 517, 13 S. E- 973; 1 Va. Law Reg. 827, note by Judge Burks; Ches. & O. R. Co. v. Rison, 99 Va. 18, 37 S. E. 320. 344 DEMURRER 204 of right. 22 The record showing the withdrawal of the demurrer, the appellate court, of course, cannot review the action of the trial court in overruling it. The record imports absolute verity and cannot be disputed, hence the demurrer was not passed on, but was withdrawn,for so the record states. Even where the record does not show the withdrawal of the demurrer, but shows the demurrer and the ruling of the trial court thereon, and then a replication, it has been held that the demurrer must be deemed to have been withdrawn. 23 In West Virginia by statute 24 a plaintiff may reply several matters of fact, but he cannot both demur and reply. If his de- murrer to a plea be overruled, leave to withdraw the demurrer will be conceded as of course and an answer in point of fact then allowed. If he both demurs and replies in fact he will be deemed to have withdrawn his demurrer as he had no right both to demur and to reply. 25 It will be seen later 26 that if a pleading states no ground of action or defence at all, the defect, as a general rule, is not cured by taking issue on it, but appearing, as it does, on the face of the record, advantage may be taken of it by a motion in arrest of judgment in the trial court, or on writ of error from the ap- pellate court. This is one of the few instances where no right or advantage is lost by a failure to demur when the pleader might have safely done so. 204. Who may demur. No person not a party to the action can file a demurrer or any other pleading therein, nor can a party demur unless his inter- ests are affected by the pleading demurred to. Independently of statute, therefore, if two persons be joined as defendants and the declaration sets forth a good cause of action against one but 22. Stanton v. Kensey, 151 111. 301; Camden Clay Co. v. New Mar- tinsville, W. Va. , 68 S. E. 118. 23. Ches. & O. R. Co. v. Bank, 92 Va. 495, 23 S. E. 935; Camden Clay Co. v. New Martinsville, W. Va. , 68 S. E. 118. 24. W. Va. Code, 1906, 3840. 25. Camden Clay Co. v. New Martinsville, W. Va. , 68 S. E. 118. 26. Post, 207. 205 CAUSES OF DEMURRER 345 not against the other, the latter only should demur, and if a joint demurrer is filed by both it should be overruled. If sev- eral defendants be joined in a declaration showing several causes of action against each but no joint cause of action against all, the demurrer may be joint, or several. 27 For a misjoinder of plaintiffs there may be a joint demurrer by all the defendants. 28 Misjoinder of either plaintiffs or defendants, however, is not a ground of demurrer in Virginia, but the proper remedy is a motion to abate as to the parties improperly joined. 29 The stat- ute provides that wherever it shall appear "by the pleadings or otherwise, that there has been a misjoinder of parties, plaintiff or defendant, the court may order the action or suit to abate as to any party improperly joined, and to proceed by or against the others as if such misjoinder had not been made, and the court may make such provision as to costs and continuances as may be just." 30 The word "may" in the clause "the court may order the action or suit to abate" means "shall." 31 205. Causes of demurrer. At common law all pleadings had to be good in form as well as substance. The sufficiency in substance was determined solely by the substantive law, while sufficiency in form was de- termined by the rules and principles of pleading. Now objec- tions of form, except as to dilatory pleas which are not favored, are seldom, if at all, available. It is provided by statute in Vir- ginia that "no action shall abate for want of form, where the declaration sets forth sufficient matter of substance for the court to proceed upon the merits of the cause." 32 The distinction be- tween what is mere matter of form and what is substance has been pointed out as follows: "If the matter pleaded be in itself insufficient without reference to the manner of pleading it, the defect is substantial; but if the only fault is in the form of al- 27. See Langhorne r. Richmond, etc., Ry. Co., 91 Va. 369, 22 S. E. 159. 28. 6 Encl. PI. & Pr. 310-313, and cases cited. 29. Riverside Cotton Mills v. Lanier, 102 Va. 148, 45 S. E. 875. 30. Code (1904), 3258a; Acts 1893-'4, p. 489; Acts 1895-'6, p. 543. 31. Lee v. Mut. Reserve Fund Ass'n, 97 Va. 160, 33 S. E. 556. 32. Code (1904), 3246. 346 DEMURRER 205 leging it, the defect is but formal." 33 Whether a pleading sets forth a good cause of action or defence is now determined solely by the substantive law. If the pleading asserts some right protected by the substantive law, and the circumstances which give rise to that right are stated with reasonable certainty, the pleading is good, regard- less of its form. If it fails in these particulars it is bad, and the proper mode of testing its sufficiency is by demurrer. The test of the sufficiency of every declaration is, does it state a case, and does it state the facts with sufficient certainty to be under- stood by the defendant who is to answer it, the jury who are to try the issue, and the court which is to render judgment. The question always is: Assuming the allegations of the declaration to be facts, has any right of the plaintiff, which the substantive law protects, been violated by the defendant? 34 The same or a similar test applies to all the subsequent pleadings. The causes of demurrer being determined, therefore, by the substantive law, no complete enumeration of them can be given, but some of the most common causes of a general demurrer to a declaration are the following: 1. That the declaration does not allege any duty owing by the defendant to the plaintiff which has been violated by the de- fendant. The declaration should allege such duty, or the facts from which the duty arises, and its breach, and should allege the facts with such reasonable certainty and particularity as will apprise the defendant of the nature of the demand made upon him, so that he may intelligently concert his defence. A state- ment of a cause in general terms, or general averments of neg- ligence on the part of the defendant which fall short of these requirements, is not sufficient. 35 2. That a declaration or count in an action of tort for the negligence of the defendant shows on its face such contribu- 33. Gould PI., Ch, IX, 18. 34. Lane Bros. v. Seakford, 106 Va. 93, 55 S. E. 556, and cases cited; Blackwood Coal Co. v. James, 107 Va. 656, 60 S. E. 90. 35. Hortenstein v. Va.-Car. R. Co., 102 Va. 914, 47 S. E. 996; Nor- folk & W. R. Co. v. Gee, 104 Va. 806, 52 S. E. 572; Lynch. Traction Co. v. Guill, 107 Va. 86, 57 S. E. 644. 205 CAUSES Of DEMURRER 347 torv negligence on the ,part of the plaintiff as bars recovery. 36 In Virginia, and in nearly all of the other states, a plaintiff is not required to negative contributory negligence in his declara- tion, though he is in a few states. 37 When not so required, of course, the absence of such a negative averment is no ground of demurrer. 3. That the plaintiff has mistaken his form of action, as for instance he has sued in trespass when he should have sued in case, or in covenant when he should have sued in assumpsit. 38 4. That there is a misjoinder of causes of action, as where some counts are in tort and others are in contract. If no amend- ment is made by striking out some of the counts so as to render the declaration harmonious, the defect is fatal, and the action will be dismissed, but such amendment should be allowed, if asked. In some states the amendment will not be permitted. 39 The rule as to misjoinder, above stated, is otherwise under code practice if the causes of action have a common origin in one transaction, or in transactions connected with the same subject of action. 40 5. That there is a non-joinder of either plaintiffs or defend- ants in cases ex contractu, when apparent on the face of the dec- laration. 41 6. The misjoinder of either plaintiffs or defendants when ap- parent on the face of the declaration was ground for demurrer at common law, but is no longer so in Virginia; the property remedy being a motion to abate as to the party improperly joined. 42 7. The want of jurisdiction of the subject matter in the court 36. Dunn v. Railway Co., 78 Va. 645. 37. 5 End. PI. & Pr. 1. 38. Jordan v. Wyatt, 4 Gratt. 151; Wolf v. Violett, 78 Va. 57. 39. See post, 208; Gary v. Abingdon Pub. Co., 94 'Va. 775, 27 S. E. 595; Penn. R. Co. v. Smith, 106 Va. 645, 56 S. E. 567; Dunn v. Penn. R. Co., 67 N. J. Law 377, 51 Atl. 465; Wilkins v. Standard Oil Co. (N. J.), 59 Atl. 14; King and Morris (N. J.), 62 Atl. 1006. 40. Phillips' Code PL, 199. 41. Stephen PL, 33, 35. 42. Code, 3958; Lee v. Mut. Ins. Co., 97 Va. 160, 33 S. E. 556; Riverside Cotton Mills v. Lanier, 102 Va. 148, 45 S. E. 875. 348 DEMURRER 205 in which the action is brought may also be raised by demurrer. 43 "By jurisdiction over the subject matter is meant the nature of the cause of action and of the relief sought; and this is con- ferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in au- thority especially conferred." 44 Want of jurisdiction of the subject matter may even be taken notice of by an appellate court ex mero motu for the first time. 45 This is not true, however, of jurisdiction over parties, for while a party can only be sued in certain designated jurisdictions, this provision is made for his benefit, and he may waive it, and will be held to have waived it unless he makes seasonable objection, and, if the court would otherwise have jurisdiction of the subject matter, it may pro- ceed to final judgment. 8. The constitutionality of an act under which an action is brought may likewise be raised by general demurrer. 46 As will be seen later 47 the plaintiff, by instituting his action, in effect, avers the existence of a law conferring a right which he is now seeking to assert, so that the defect impliedly appears on the face of the record. In order, however, to confer jurisdiction on the Court of Appeals on the ground that a constitutional ques- tion is involved, it must appear in some way that the constitu- tionality of the law was called in question and decided by the trial court. 48 9. In case of slander or libel it must be stated whether the words charged are counted on simply as insults under the stat- ute, or as slanderous at common law. If it appears that the ac- tion is founded on the statute 49 it is therein provided that no demurrer shall preclude a jury from passing thereon, though 43. Nelson v. Ches. & O. R. Co., 88 Va. 971, 14 S. E. 838; Legum v. Blank (Md.), 65 Atl. 1071. 44. Cooper v. Reynolds, 10 Wall. 308. 45. South & W. R. Co. v. Com'th, 104 Va. 314, 51 S. E. 824; Hanger v. Com., 107 Va. 872, 60 S. E. 67. 46. Adkins v. City of Richmond, 98 Va. 91, 34 S. E. 967. 47. Post, 206. 48. Hulvey r. Roberts, 106 Va. 189, 55 S. E. 585. 49. Code, 2897. 205 CAUSES OF DEMURRER 349 this provision may be waived. 50 If it does not so appear, then the action is for slander or libel at common law, and a demurrer lies as at common law. 51 10. If a sealed instrument is declared on and it is not prop- erly described in the declaration the defendant may wait until it is offered in evidence and object to its reception on account of the variance, or he may crave over of it, which makes it a part of the declaration as fully as if copied into it, and then de- mur on account of the variance. In this way the discrepancy between the instrument as it really is and as it is described in the declaration is made to appear. 52 Objection to a deed void on its face may be taken in the same manner. But if the action is founded on an unsealed instru- ment not made a part of the record, it cannot be looked to in order to disclose a variance, on a demurrer to the declaration. 53 It may be well, in this connection, to recollect that for a variance between a declaration and the writ the remedy is by craving over of the writ and pleading the variance in abatement. 54 Amendments are freely allowed in all the cases mentioned in this paragraph, and the objections are, therefore, of little prac- tical use, except to secure an accurate record that may be pleaded in bar of another action for the same cause. A party may plead nul tie! record, and if, upon inspection by the court, the record is not such as is described in the pleadings, he will have judgment: or he may crave over of the record, which makes the record a part of the pleadings in that case, and when it is spread upon the record by oyer, if the party admits that the record of which oyer is given him is a true record and relies upon the fact that it does not support the pleadings, he should not deny that there is such a record by plea, but should demur for the variance. If he wishes to deny the verity of the record of which oyer is given, he should then plead nul tiel rec- ord after oyer. 55 50. Brown v. Norfolk & W. R. Co., 100 Va. 619, 624. 42 S. E. 664. 51. Hogan 7'. Wilmoth, 16 Gratt. 80. 52. Stephen PI. 111, and notes. 53. Norfolk & W. R. Co. r. Sutherland, 105 Va. 545, 54 S. E. 465. 54. Code, 3259. 55. Wood 7'. Com., 4 Rand. 329. 350 DEMURRER 205 | 11. Duplicity in a declaration or other pleading is a matter of form, and at common law objection on that account was made by special demurrer, but since the abolition of special de- murrers (except as to pleas in abatement) it is no ground of demurrer to a declaration in Virginia and West Virginia. 56 In Maryland and Vermont, and probably in other States, objection to a pleading for duplicity may still be taken by demurrer, 57 while in New Jersey it is said that, under statutory practice, it must be taken by a motion to strike out. 58 It must be borne in mind, however, that in Virginia pleas in abatement (all dilatory pleas) are not favored, and that they must be good in form as well as substance, and that as to these duplicity is a defect which may be taken advantage of by demurrer. 59 12. The defence of the statute of limitations ordinarily can- not be made by demurrer, but where the limitation is of the right and not merely of the remedy, the declaration must show affirmatively on its face that the action was commenced within the time prescribed by the statute or else it will be bad, and the objection may be taken by demurrer. 60 Attention is again called to the fact that neither the affidavit filed with a plea which is required to be verified, nor the bill of particulars filed with a declaration is any part of the declaration, and hence defects therein cannot be raised by demurrer. 61 56. So. Ry. Co. v. Blanford, 105 Va. 373, 54 S. E. 1; So. Ry. Co. v. Simmons, 105 Va. 651, 55 S. E. 459; Martin v. Monongahela R. Co., 48 W. Va. 542, 37 S. E. 563; Poling v. Maddox, 41 W. Va. 779, 24 S. E. 999. The case last cited holds that it is not only no ground of demurrer, but no ground of objection to any plead- ing. A different view, however, is taken in Virginia, where it is held, in passing on the sufficiency of a pica, that a motion to strike out or reject can be used to obviate objections to pleadings such as duplicity and the like which cannot now be raised by de- murrer. Ches. & O. R. Co. v. Rison, 99 Va. 18, 37 S. E. 320. 57. Milske v. Steiner Mantel Co., 103 Md. 235, 63 Atl. 471; Lewes v. John Crane & Son, 78 Vt. 216, 62 Atl. 60. 58. Karnuff v. Kelch, 69 N. J. Law 499, 55 Atl. 163. 59. Guarantee Co. v. Bank, 95 Va. 480, 28 S. E. 909. 60. Lambert v. Ensign Mfg. Co., 42 W. Va. 813, 26 S. E. 431; The Harrisburg, 119 U. S. 199; Manuel v. Norfolk & W. R. Co., 99 Va. 188, 37 S. E. 957; 3 Va. L. Reg. 63. 61. Ante, 201. 206 EFFECT OF DEMURRER 351 206. Effect of demurrer. A demurrer questions the sufficiency in law of the pleading to which it is interposed; and this question of law is to be de- cided by the court. First. It is one of the fundamental principles of the common law system of pleading that every material fact not denied by the pleadings is to be taken as admitted; hence, as a demurrer does not deny any fact, it is a rule that a demurrer admits as true all averments of material facts which are sufficiently pleaded? 2 The admission is made not by the demurrer but by a failure to deny them. The effect, however, is the same. This implied admission is made only for the purposes of the demurrer, and if the demurrer is overruled and the pleader permitted to tender an issue of fact, the admission cannot be used against him, on the trial of that issue. 63 At common law the facts had to be sufficiently pleaded both as to form and substance, but at present the latter alone is required. It is to be observed further that the admission is only as to facts, and that a demurrer does not admit the pleader's inferences or conclusions of law such as an allegation that defendant's acts are "without right" and that the plaintiff will suffer "irreparable injury." The court deter- mines for itself the effect of the facts alleged. 64 The demurrer does not admit as true what the court knows judicially is untrue or contrary to law, nor what is legally or physically impossible. 63 Second. "It is a rule that, on a demurrer, the court will con- sider the zvhole record, and give judgment for the party who, on 62. Stephen PI., 165. 63. 6 Encl. PI. & Pr. 334, and cases cited; Martin's Civil Pro., 239. 64. Williams v. Mathewson, 73 N. H. 242, 60 Atl. 687; Marples r. Standard Oil Co., 71 N. J. Law 352, 59 Atl. 32; Newberry Land Co. v. Newberry. 95 Va. 119, 27 S. E. 899; Coughlin v. Knights of Columbus, 79 Conn. 218, 64 Atl. 223; Lindley v. Miller, 67 111. 244. An allegation that bonds were issued "according to law" is the plead- er's construction, inference or conclusion and is not admitted by a demurrer. See Smith r. Henry Co., 15 Iowa 385. So an allegation that a defendant "improperly stored dynamite caps" is a pleader's conclusion. Eaton r. Moore, 111 Va. 400, 69 S. E. 326. 65. Ches. & O. R. Co. v. Anderson, 93 Va. 650, 25 S. E. 947. 352 DEMURRER 206 the zthole, appears to be entitled to it."* Q The reason of this rule is this: Every judgment is the conclusion of law from all the facts of the case, and the court, to ascertain these, must look through the whole pleadings. Every judgment is the con- clusion of a perfect syllogism of which the law is the major (though unexpressed), and the fact the minor, premise. (:7 The pleader must at each stage bring himself within this major prem- ise, or else his pleading is bad, and it is incumbent on the judge to review the pleadings to ascertain whether or not the pleader has complied with these requirements, else he might enter an erroneous judgment. Let us illustrate : Suppose A sues B in debt on a bond, and the following pleadings ensue : A (Declaration) You owe me $500 due by bond. B (Plea) You released me by writing under seal. A (Replication) I delivered the release to you on condition that you would get X to release me from my bond to her for a like amount. B (Rejoinder) I procured the release from X and de- livered it to you. A (Sur-rejoinder) X was a married woman at. the time she executed the release, and therefore her release is void. B demurs, thereby admitting that X was a married woman when she executed the release, but denying the legal effect thereof. If these pleadings took place at common law, and the court looked" only to the sur-rejoinder of A and the demurrer of B, it would be compelled to give judgment against B, for the only issue presented by these two pleadings is whether a married wo- man could execute a valid release under seal, and the court, seeing that the release is void, must give judgment in favor of A. But if the court reviews all the pleadings, it will discover at a glance that such a judgment would be manifestly wrong, for A. could hot deliver in escrow a release to B. himself. The de- livery is valid -and the condition void, hence the release to B 66. This rule does not apply to a motion to strike out or reject a plea. Ches. & O. R. Co. v. Rison, 99 Va. 18, 37 S. E. 320. 67. Tucker PI., 18, 19, 45. 206 EFFECT OF DEMURRER 353 was delivered unconditionally and the judgment should be in his favor. 68 It is sometimes said that the court reviews the whole record and gives judgment against the party committing the first fault. 69 In the above illustration, A committed the first fault by averring that he delivered to B in escrow the release which he had made to him. The "whole record" means all of the pleadings from the declaration to the demurrer. To the above rule there are some qualifications and excep- tions : 1. The rule has no application to a demurrer to a plea in abatement. Such pleas are not favored, and the court will not inquire as to the sufficiency of the declaration, but if the de- murrer is sustained will render judgment of respondeat ouster 2. Though the whole record show an apparent right in the plaintiff, the court will not adjudge in his favor if he has not put his action on that ground. 71 3. If there be a demurrer to the whole declaration which con- tains more than one count, the demurrer should be overruled if there is any good count in it. So if the declaration contains more than one count, and the plea is pleaded to the whole, and not to the several counts, a demurrer to the plea should be overruled if there is any good count in the declaration, as the demurrer operates as a demurrer to the declaration as a whole. If the plea be pleaded to one or more separate counts of the declaration, a demurrer to the plea operates as a demurrer to the separate count or counts, and, if defective, the demurrer should be sustained and the count or counts stricken out. The plaintiff's demurrer to the defendant's plea cannot operate as a demurrer to the declaration to any other or greater extent than the plea was pleaded to the declaration. 72 4. The court in reviewing the pleadings on a demurrer will 68. Tucker PI., 45. 69. Ches. & O. R. Co. v. Rison, 99 Va. 18, 37 S. E. 320; Doolittle r. Co. Ct., 28 W. Va. 159; Smith v. Lloyd, 16 Gratt. 295. 70. Stephen PI., 140; Smith v. Lloyd, 16 Gratt. 295; Birch r. King (N. J.), 59 Atl. 11. 71. Stephen PI., 140. 72. Smith r. Lloyd, 16 Gratt. 295. 23 354 DEMURRER 207 only consider the right in matter of substance and not in re- spect of mere form, such as should have been the subject of special demurrer. 73 5. A demurrer to special pleas filed along with the general issue will not reach back to defects in the declaration unless the declaration is so substantially defective as not to be good after verdict. 74 207. Effect of failure to demur Pleading over. All defects apparent on the face of the pleadings are waived by a failure to demur except such substantial defects as are not cured by pleading over, by verdict, or by the statute of jeofails, or which show a complete absence of a cause of action, or a want of jurisdiction over the subject matter. 75 It is pointed out by Stephen that the effect of a demurrer is to admit the tfuth of all statements of facts well pleaded, but the converse is not true that a failure to demur admits the sufficiency in law of the facts adversely alleged, and there are many cases where a party has pleaded over without demurring and yet is allowed to avail himself of the insufficiency in the pleading of his adversary, 76 but the general rule is as above stated. An illustration of a defective pleading cured by pleading over is given in the case of trespass de bonis asportatis where the plaintiff omits the necessary allegation of possession of the arti- cles taken. If the defendant, in seeking to justify, admits that he took the goods from the possession of the plaintiff, he thereby cures the defect of the plaintiff's declaration. 77 As stated above, faults in pleading are also sometimes cured by verdict. "Where a matter is so essentially necessary to be proved, that, had it not been given in evidence, the jury could not have given such a verdict, there the want of stating that matter in express terms, provided it contains terms sufficiently general to compre- hend it in fair and reasonable intendment, will be cured by a verdict ; and where a general allegation must, in fair construc- 73. Stephen PI., 140. 74. 6 End. PI. & Pr. 332; Stephen PI., 141, note 2, citing Au- burn & O. Co. v. Leitch, 4 Den. 65; Shaw v. Tobias, 3 N. Y. 188. 75. 6 Encl. PI. & Pr. 372. 76. Stephen PI., 141. 77. Stephen PI., 141. 207 EFFECT OF FAILURE TO DEMUR 355 tion, so far require to be restricted, that no judge and no jury could have properly treated it in an unrestricted sense, it may reasonably be presumed, after verdict, that it was so restricted at the trial." 78 Faults cured by verdict are for the most part, however, cov- ered by the statute of jeofails. The statute of jeofails cures a multitude of faults. The Virginia Statute 79 is as follows: ''No judgment or decree shall be stayed or reversed for the appearance of either party, being under the age of twenty-one years, by attorney, if the verdict (where there is one), or the judgment or decree, be for him and not to his prejudice; or for want of warrant of attorney ; or for the want of a similiter, or any misjoining of issue; or for any informality in the entry of the judgment or decree by the clerk ; or for the omission of the name of any juror; or because it may not appear that the ver- dict was rendered by the number of jurors /required by law; or for any defect, imperfection, or omission in the pleadings, which could not be regarded on demurrer ; or for any other defect, im- perfection, or omission, which might have been taken advantage of on a demurrer or answer, but was not so taken advan- tage of." The object and purpose of this statute was to prevent a fail- ure or delay of justice by setting aside a verdict rendered after a full hearing on the merits because of defects that might have been used to prevent a judgment, but were not so used. To fur- ther this end, the statute should be liberally construed and ap- plied, and made to embrace cases that are within its spirit though not within its letter. 80 On the other hand, a case may be within the very letter of a statute and yet not within its spirit. 81 And, in such case, the statute should not be applied, though it must be confessed that the latter power is one to be cautiously and spar- ingly exercised. Under the latter branch of the above proposition should be embraced the case hereinbefore mentioned 82 where a 78. Jackson z: Pesked, 1 M. & S. 234, quoted in Stephen PI., 142; Bailey v. Clay, 4 Rand. 346. 79. Code, 3449. 80. Long t-. Campbell, 37 W. Va. 665, 17 S. E. 197, quite full. 81. Holy Trinity Church r. United States, 143 U. S. 457. 82. Ante, 203. 356 DEMURRER 207 party does not demur, but objects to the reception of a pleading when it is offered, or subsequently, but seasonably, moves to strike it out. Here the party is within the letter of the law and apparently subject to its penalty, but he has fully complied with its spirit, and has in fact done all that the statute was intended to accomplish, and hence should not be penalized. It would be inexpedient to attempt to enumerate all of the cases to which the statute has been applied. Reference to some of the sources of information on this subject are given in the margin. 83 It is said that where the pleading states a good case, but states it defectively, the statute applies, and the judgment should not be arrested or reversed, but the rule is otherwise if the pleading fails to state any case at all. 84 After verdict, the statute cures a defective joinder of issue, but not a total failure to join any is- sue at all (except the mere absence of similiter or joinder in de- murrer, provided for by statute), and no judgment or verdict can be properly rendered in the case. 85 It has been held, how- ever, that where the only plea a defendant was allowed by stat- ute to file was a plea of "not guilty" and he failed to file it, but the case was frequently continued on his motion, and was finally tried by a jury who were sworn to try the "issues joined," he could not, after verdict and judgment against him, make the ob- jection for the first time in the appellate court that no issue was ever joined. He had proceeded as if an issue had been joined, had introduced all of his evidence, and had a full and fair hear- ing on the merits, and the court refused to set aside the judg- ment. If he had pleaded, his only plea must have been "not guilty," as the statute so provided, and it appeared that he had not been in any way prejudiced, as the case was heard and de- cided just as if the only plea he could file had been filed, and is- sue had been taken thereon. 86 83. Code (1904), notes to 3449; Justice's Annotations 939-942; 4 Digest Va. & W. Va. (West & Co.), 7367-7387. 84. O. A. & M. R. Co. v. Miles, 76 Va. 773; Long v. Campbell, 37 W. Va. 665, 17 S. E. 197. 85. Norfolk & W. R. Co. v. Coffey, 104 Va. 665, 51 S. E. 729, 52 S. E. 367; notes Rowan v. Givens, 10 Gratt. 250, Va. Rep. Anno.; Smith v. Townsend, 21 W. Va. 486; Code, 3268. 86. Bartlett v. McKinney, 28 Gratt. 750. 207 EFFECT OF FAILURE TO DEMUR 357 A like conclusion was arrived at where the proceeding was by a motion under 3211 of the Code, for a judgment for money, and the only pleas were non assumpsit, and a special plea of recoupment under 3299 of the Code. Issue was joined on the plea of non assumpsit, but no issue was joined on the special plea. The jury were sworn to try the "issues joined," and they found a verdict for the plaintiff. This the defendant moved to set aside, because, among other reasons, no replication had been filed to his plea. The' statute (Code, 3300) provides that every issue of fact upon such a plea "shall be upon a general replica- tion that the plea is not true." The plaintiff was not let in to file a special replication of any kind. The defendant had a full and fair trial on the merits, made no objection to the want of a replication, offered no evidence in support of his special plea, and was in no wise prejudiced, and the court refused to reverse the judgment rendered. 87 In each of these cases the statute cut off all special pleadings, and the missing pleading was one to be filed as of course if any issue of fact was to be raised. The cases were heard and decided as if the only plead- ings allowed by law had been filed. Text writers and judges have frequently said that the statute cured a misjoinder of issue, but not a non-joinder. The two cases last above mentioned, which seem to have been correctly decided on .principle, show -that the rule has been too broadly stated, and that there are cases of non-joinder which are cured by the statute as completely as if there had been only a mis- joinder. These cases seem to come within a general classification of cases where the court can see that no injury could have resulted from the omission. 88 Generally, the court cannot- see this, and hence the statement of the rule as usually made. If issue is joined on an immaterial point (raised by a pleading otherwise than by confession and avoidance) and a verdict is founded thereon, the court is obliged to set it aside and award a repleacler, for it cannot see what judgment ought to be entered on the merits. So, ordinarily, if no issue at all be joined, it would be impossible for the court to see that the 87. Briggs r. Cook. 99 Va. 273, 38 S. E. 148. 88. See Southside R. Co. v. Daniel, 20 Gratt. 344. 358 DEMURRER 207 parties did not ultimately contend over an immaterial issue, and hence nothing is left for the court to do but to set aside the verdict and award a new trial. But the case is entirely differ- ent when, by some rule of law, only one issue could have been made. The oath of the jury shows that there was a contest, an issue, and the law declares what that issue was. In other cases of non-joinder where the jury is sworn to try the "issues joined," it is manifest that the defendant did contest his lia- bility, but upon what ground is not apparent, and as it may have been upon an immaterial ground, the court is compelled to set aside the verdict and award a new trial. No such necessity exists, however, when there could have been but one issue. The disposition of the courts in modern cases is to disregard mere technical objections which have occasioned no injury, and, where they can see from the record that no injury has resulted to a party from the omission to join issue on a pleading, they will disregard the defect and proceed to judgment on the merits of the case. Under such circumstances, they hold the party to be estopped from setting up the technical objection of the want of issue for the first time in the appellate court, and this seems consonant with right and justice. 89 If, however, the objection of the want of an issue is seasonably made in the trial court, the litigants should not be compelled to go to trial without an issue, and if the trial court forces a trial with- out an issue, the verdict and judgment resulting from such trial will be set aside on a writ of error. 90 A misjoinder of causes of action, as for example tort and contract, is, as we have seen, good ground of demurrer, but if no demurrer be interposed the defect is cured by the statute. 91 In an action sounding in damages, the damages should be laid in the declaration, but if not so laid but are claimed in the writ, the court, after verdict, may look to the writ 89. Southside R. Co. v. Daniel, 20 Gratt. 344; Bartlett v. McKin- ney, 28 Gratt. 750; Briggs v. Cook, 99 Va. 273, 38 S. E. 148; Deat- rick v. Ins. Co., 107 Va. 602, 59 S. E. 489. 90. Colby v. Reams, 109 Va. 308, 63 S. E. 1009. 91. Norfolk & W. R. Co. v. Wysor, 82 Va. 250. 207 EFFECT OF FAILURE TO DEMUR 359 (which is part of the record only for the purpose of amend- ment) in support of the verdict awarding damages, and will not set the verdict aside for the defect in the declaration. 92 If no damages were claimed in either the writ or the declara- tion, the verdict would probably be set aside. 93 If no damages are claimed in a declaration in trespass on the case, although they are claimed in the writ, the omission is a matter of sub- stance and cannot be disregarded on a demurrer to the declara- tion, and such defect is neither waived nor cured by the verdict when a demurrer has been interposed. 94 But it has been held that if damages are claimed, and the verdict exceeds the amount claimed, the excess must amount to a sufficient sum to be within the jurisdiction of the appellate court, or else it cannot be reviewed. 95 If a declaration or other pleading fails to state any case whatever, or if the court has no jurisdiction of the subject matter, these defects are not cured by pleading over, nor by the statute of jeofails. 96 In immediate connection with the statute of jeofails another statute should be read which declares, among other things: "on a demurrer (unless it be to a plea in abatement) the court shall not regard any defect or imperfection in the declaration or pleadings, whether it has been heretofore deemed misplead- ing or insufficient pleading, or not, unless there be omitted some- thing so essential to the action or defence that judgment, according to law and the very right of the case, cannot be given." 97 There are still other statutes which have an important bearing on this subject, making it unnecessary to allege any matter that is not traversable, abolishing the general averments of "other wrongs" committed by a defendant in actions of 92. Digges v. Norris, 3 Hen. & M. 268; McGlamery v. Jackson, W. Va. , 68 S. E. 105. 93. Georgia Home Ins. Co. v. Goode, 95 Va. 751, 30 S. E. 366. 94. McGlamery v. Jackson, W. Va. 68 S. E. 105. 95. Giboney z<. Cooper, 57 W. Va. 74, 49 S. E. 939. 96. Long r. Campbell, 37 W. Va. 665, 17 S. E. 197; Mason v. Bank, 12 Leigh 84; Boyles v. Overby, 11 Gratt. 202. 97. Code (1904), 3272. 360 DEMURRER 208 trespass, and declaring that "no action shall abate for want of form, where the declaration sets forth sufficient matter of substance for the court to proceed upon the merits of the cause." 98 208. Judgment on demurrer. As a defendant in Virginia and other States is allowed to both demur and plead to the plaintiff's declaration, he does not hazard anything by doing both. At subsequent stages of the pleadings he must elect which he will do, as he is not, in Virginia, allowed to do both. If, at the same time, a defendant should both demur and plead to a declaration the issue of law raised by the demurrer should be decided first, but an irregularity in this respect is not ground for reversal." If a statute requires the grounds of demurrer to be stated in writing, no others be- sides those stated will be considered by either the trial court or the appellate court. 1 If the record shows that a demurrer was filed, but fails to disclose any ruling thereon, the weight of authority is to the effect that it will be deemed to have been waived and not overruled, but the Virginia cases hold that it will be deemed to have been overruled. 2 If a demurrer to a plea in abatement be overruled the judg- ment is that the action do abate, but if it be sustained the judgment is responded! ouster (that the defendant plead over, or anew), for such is the prayer of the demurrer. If, however, an issue of fact be joined, whether it be upon a plea in abate- ment or a plea in bar, and that be the sole issue in the case and be found for the plaintiff, final and peremptory judgment was formerly (and even now in some States) entered against the defendant. The reason assigned for the difference is that every man is presumed to know whether his plea be true or false, and the judgment ought to be final against him if he 98. Code (1904), 3245, 3246, 3247. 99. Jones v. Stevenson, 5 Munf. 1. 1. Strother v. Strother, 106 Va. 420, 56 S. E. 170. 2. 6 Encl. PI. & Pr. 379, and cases cited; Miller v. Miller, 92 Va. 196, 23 S. E. 232; Miller v. Black Rock Co., 99 Va. 747, 40 S. E. 27; Bledsoe v. Robinett, 105 Va. 723, 54 S. E. 861; East v. Hyde, 112 Va. 92, 70 S. E. 508. 208 JUDGMENT ON DEMURRER 361 pleads a fact which he knows to be false and which is found' to be false. But every man is not presumed to know the matter of law, which is left to the judgment of the court on demurrer. 3 This result would probably not follow under the present Virginia Statute declaring that the defendant "may file pleas in bar at the same time with pleas in abatement, or within a reasonable time thereafter." 4 The corresponding statute in West Virginia is: "The defendant may plead in abatement and in bar at the same time, but the issue on the plea in abatement shall be first tried; and if such issue be found against the defendant, he may, nevertheless, make any other defence he may have to the action." 5 If there be a demurrer to a declaration as a whole, and it contains some good counts and some bad, the demurrer should be overruled and the defendant allowed to plead to the merits, for the demurrer, in effect, says that no cause of action is stated anywhere in the declaration either as a whole, or in' any count thereof. 6 The proper mode of demurring in such case has already been pointed out. 7 If the demurrer be to the declaration and to each count thereof, and some of the counts be bad and others good, the demurrer should be sustained as to the bad counts and overruled, and the defendant put to trial, as to the good. If error be committed in overruling a demurrer to a bad count of a declaration it is ground for reversal (as the court cannot tell on which count the jury rendered their ver- dict), unless the court can see from the whole record, including the evidence certified, that the defendant could not have been prejudiced thereby, as that the verdict of the jury must have been based on the good count, or that no other verdict could 3. 1 Rob. Pr. (old) 338; 1 Encl. PI. & Pr. 31, 6 Encl. PI. & Pr. 354, and notes and cases cited. 4. Code (1904), 3264. 5. Code W. Va. (1899), ch. 125, 21; Delaplaine v. Armstrong, 21 W. Va. 211, 219. 6. Henderson v. Stringer, 6 Gratt. 130; Clark v. Railroad Co., 34^ W. Va. 200, 12 S. E. 505; Va., etc., Wheel Co. v. Harris, 103 Va. 709, 49 S. E. 991. 7. Ante, 202. -362 DEMURRER 208 have been found. 8 If it is apparent that a case was tried on amended declaration to which there was no demurrer, and it states a good case, the appellate court will not look to the ruling of the trial court on the demurrer to the original declara- tion. 9 If a demurrer to a declaration be sustained on the ground of a misjoinder of causes of action, what judgment should be rendered? If there is no amendment, nor offer to amend, the objection is fatal, and final judgment should be entered for the defendant. 10 But may the plaintiff amend so as to present a consistent case? If a count in tort be united with a count in contract, may the plaintiff amend by striking out one of the counts, thus leaving a perfect declaration in tort or contract? It has been held in New Jersey that he cannot. There replevin and trover were united. The court said: "An attempt was made to cure this difficulty at the trial by abandoning the count in replevin. It was too late after a demurrer for misjoinder." 11 The authority cited for the state- ment is Chitty on Pleading, and Drummond v. Douglas, 4 Term 360. But it is doubtful if the authority supports the court. What Chitty says is this : "The plaintiff cannot, if the declaration be demurred to, aid the mistake by entering a nolle prosequi so as to prevent the operation of the demurrer, though the court will in general give the plaintiff leave to amend by strik- ing out some of the counts on payment of costs." 12 In West Virginia it is held that the objection is fatal to the declaration, if there is no amendment, 13 but it is also held that the defect may be cured by the plaintiff electing to pro- ceed on a particular cause or count. 14 8. 6 Encl. PI. & Pr. 368; Rich R. Co. v. Scott, 88 Va. 958, 14 S. E. 763; Newport News, etc., Co. v. Nicolopoolos, 109 Va. 165, 63 S. E. 443; Va. Cedar Works v. Dalea, 109 Va. 333, 64 S. E. 41; Hood V. Bloch, 29 W. Va. 245, 11 S. E. 910. 9. Wash. So. Ry. v. Cheshire, 109 Va. 741, 65 S. E. 27. 10. Gary v. Abingdon Pub. Co., 94 Va. 775, 27 S. E. 595, and au- thorities cited. 11. King v. Morris (N. J. Sup. 1906), 62 Atl. 1006. 12. 1 Chitty PI. (188). 13. Malsby v. Lanark Co., 55 W. Va. 484, 486, 47 S. E. 358. 14. Knotts v. McGregor, 47 W. Va. 566, 574, 35 S. E. 899. 208 JUDGMENT ON DEMURRER 363 In Virginia, if tort and contract be united in the same declaration, and the defendant demurs thereto, the trial court should give the plaintiff leave to amend by striking out one or more counts and thus making a consistent case, 15 but, if upon liberty to amend, the plaintiff does amend, but still retains the inconsistency in the counts of his declaration, and does not ask for liberty to strike out, so as to render the declaration consistent as a whole, final judgment should be entered for the defendant on the demurrer, but this would not prevent a new action in proper form. 16 It has been further held in Virginia that if a demurrer to a declaration for misjoinder of tort and contract has been improperly overruled, the Court of Appeals, on overruling the judgment of the trial court, will remand the cause with liberty to the plaintiff to amend his declaration, where it appears that there was no intention to create a misjoinder, and that in an action of assumpsit a special count intended to be in contract was so inartificially framed as to be a count in tort. 17 If there has been no demurrer, however, an objection for a misjoinder of tort and contract comes too late after verdict. 18 Independently of statute, it is said that: "On timely appli- cation, the court will in general give the plaintiff leave to amend by striking out some of the counts, on payment of costs." 19 The courts are extremely liberal in the matter of amendments in the interest of substantial justice, and no good reason is preceived why such amendment should not be made where it would not take the defendant by surprise. If it occa- sions such surprise a continuance should be granted, and, in either event, such order made as to costs as would be just in the particular case. If there be a demurrer to some counts of a declaration while issues of fact are pending on other counts, final judgment cannot be entered upon sustaining the demurrer while such issues of fact are pending. 20 The same 15. Creel v. Brown, 1 Rob. 265. 16. Gary v. Abingdon Pub. Co., 94 Va. 775, 27 S. E. 595. 17. Penn. R. Co. v. Smith, 106 Va. 645, 56 S. E. 567 18. Code, 3449; Norfolk & W. R. Co. v. Wysor, 82 Va. 250. 19. Martin on Civil Procedure, 229, citing 1 Chitty PI. 206. 20. Morgantown Bank v. Foster, 35 W. Va. 357, 13 S. E. 996. 364 DEMURRER 208 rule applies where issues of law and fact are pending on several pleas. But if the question of law raised by demurrer goes to the whole merits of the case, final judgment may be entered thereon without trying the other issues. 21 If a demurrer to a declaration or a count is sustained, the plaintiff is generally given liberty to amend, as of course, if the defect is curable by amendment. If he amends, he thereby waives any error in the ruling on the demurrer, and it is immaterial that the motion to amend recites that it is made without waiving such objection. 22 If the plaintiff declines to amend, final judgment is entered against him, and if this be affirmed on writ of error, no leave to amend, as a rule, is granted there. 23 If the trial court overrules a demurrer to a declaration and, on writ of error, it appears that it should have sustained the demurrer, the appellate court, on reversing the judgment on demurrer, will generally remand the case to the trial court with direction to the trial court to permit the plaintiff to withdraw his joinder in the demurrer and to amend if so advised. 24 Where, however, a demurrer to a declaration has been over- ruled, and the plaintiff of his own motion has filed an amended declaration to which a demurrer was also overruled by the trial court, it will be presumed that the plaintiff has stated his case as strongly as the facts would warrant, and the appellate court, upon sustaining the defendant's demurrer to both declara- tions, will enter up final judgment for the defendant. 25 It is often important to determine whether the judgment on demurrer is final so as to preclude another action for the same cause, or the same defence to another action. If the ruling on the demurrer to a declaration involves the merits of the cause so as to preclude a recovery on the facts stated, the 21. Huff v. Broyles, 26 Gratt. 283; 6 Encl. PI. & Pr. 355. 22. Connell v. Ches. & O. R. Co., 93 Va. 44, 24 S. E. 467; Birck- head v. Ches. & O. R. Co., 95 Va. 648, 29 S. E. 678. 23. Hortenstein v. Va.-Car. R. Co., 102 Va. 914, 47 S. E. 996. 24. Hansbrough v. Stinnett, 25 Gratt. 495; N. & W. Ry. Co. v. Stegall, 105 Va. 538, 54 S. E. 19. It will be observed that these are cases of demurrers to a declaration and not to a plea. 25. Ches. & O. R. Co. v. Wills, 111 Va. 32, 68 S. E. 395. 208 JUDGMENT ON DEMURRER 365 judgment is final and bars recovery not only in that action, but in any other based on the same facts. A judgment on demurrer involving the merits is as conclusive as one rendered on the proof. 26 Facts may be admitted as well by the plead- ings as by evidence. But if the plaintiff has simply miscon- ceived the form of action, as if he has sued in covenant when he should have sued in assumpsit, or has omitted a material statement in his first declaration which he has supplied in the second, or has misjoined causes of action in the first declaration which he has corrected in the second, in all such cases the judgment on demurrer is not final, and the plaintiff is allowed to amend or to bring a new action as the case may be. When a demurrer to a declaration is sustained, before a judgment to that effect is finally entered, two courses are o*pen to the plaintiff. He may either (1) ask liberty to amend, or (2) may stand on the ruling on demurrer. 27 If he amends, he thereby waives his objection to the ruling on demurrer. If he stands on the case stated in his declaration and the judgment of the trial court sustaining the demurrer thereto be affirmed by the appellate court, the latter court makes no order except one of affirmance, and whether he can bring another action or not is dependent upon the principles above stated. 28 If the 'judgment of the trial court is reversed the case should be re- manded for trial of the issues made on the pleas, if any, but if none with liberty to the defendant to plead. As the defendant has the right to both plead and demur to the declaration, it is presumed that this liberty would be accorded him even after the decision on the demurrer if he had not previously tendered his pleas. It is not unusual in practice for a defendant to await a decision on his demurrer before tendering his pleas. When a demurrer to a plea is sustained, the defendant is usually permitted to withdraw his plea and file another plea in its stead. If he does this he waives his objection to the ruling of the court on the demurrer. If the demurrer is 26. Norfolk & W. R. Co. v. Scruggs, 105 Va. 166, 52 S. E. 834; North Pac. R. Co. v. Slaght, 205 U. S. 130, and cases cited; Ship- man PI., 179, p. 270. 27. 1 Va. Law Reg. 836, note by Judge Burks. 28. Hortenstein v. Va.-Car. R. Co., 102 Va. 914, 47 S. E. 996. 366 DEMURRER 208 overruled, the plaintiff, likewise, is permitted to withdraw his demurrer and reply to the plea. 29 If there is but one plea in a cause and that is demurred to, and the demurrer is sustained, final judgment should be ren- dered by the trial court on the demurrer, unless leave is given to amend. 30 Suppose, however, the plaintiff demurs to a plea, and the demurrer is sustained, and the defendant stands upon his plea and does not ask to put in a new plea, and judgment is entered for the plaintiff for the lack of a plea, and in this condition the case is taken to an appellate court, which decides that the plea is good, what is the result? What judgment should the appellate court enter upon the pleadings? It has been held thaf final judgment should be entered up for the defendant; that the appellate court cannot remand with liberty to withdraw the demurrer and reply; 31 that the plaintiff had the right to reply only one matter of law or fact, and, having made his election, must abide by it, and that the appellate court enters such judgment as the trial court ought to have entered, on the pleadings as they stood; no liberty of amendment of the pleadings being extended to the appellate court. In the case last referred to in the margin, Judge Tucker, in concluding his opinion, says : "I have struggled hard to see if we could not send the cause back, with leave to the plaintiffs to with- draw the demurrer, and take issue. But I can find no warrant for such a proceeding. Upon reversing a judgment at law, we must enter such judgment as the court below ought to have entered, and we can entertain no motion here for amendments." This case was decided by a divided court composed of three very able judges. The majority opinion was delivered by Judge Tucker, one of the best pleaders and ablest lawyers that ever adorned the Virginia bench, and was concurred in by Judge Cabell, who was likewise a judge of great ability. In strictness the conclusion reached may be sound, and we 29. Stanton v. Kinsey, 151 111. 301, 37 N. E. 871. 30. Chesa. & O. R. Co. v. Risen, 99 Va. 18, 37 S. E. 320. 31. Wilson v. Mt. Pleasant Bank, 6 Leigh 570, 575. 208 JUDGMENT ON DEMURRER 367 may well hesitate to depart from it, and yet it is to a degree technical. The statute, then as now, required the appellate court, upon reversing a judgment at law, to enter such judg- ment as the trial court ought to have entered. Now upon sustaining a demurrer to a plea the trial court would enter judgment for the plaintiff, but if the defendant asked it would permit him to withdraw his plea and substitute another in its stead; so if the trial court overruled the demurrer, it would permit the plaintiff to withdraw his demurrer and object to the reception of the plea, or reply to it. Undoubtedly these powers are constantly exercised by the trial courts, and under a liberal construction of the statute, it may be held that it was the legislative intent to invest the appellate court (upon reversing a judgment) with the same powers over the pleadings and procedure as the trial court had. Such seems to have been the view of Judge Brockenbrough in the case above cited, and such was probably the view of the court in Penn. R. Co. r. Smith, supra, note 17. The two cases appear to be in conflict, though the latter does not refer to the former, and seems to be based ( on its peculiar facts rather than upon a construction of the statute. A liberal construction of the statute would seem to be in aid of justice and to be preferable to a construction that would defeat substantial rights by a mere technical con- struction of the language of the statute. A still more recent case, where the Court of Appeals reversed and remanded a case, but declined to authorize an amendment of the pleadings in the trial court, 32 leaves it doubtful what construction it will put upon the statute. 32. Taylor v . Sutherlin-Meade Co., 107 Va. 787, 60 S. E. 132. This was an attachment where the court refused to allow the affidavit to be amended, and may probably be rested on different grounds from those here under consideration. The subject here considered is very fully and ably discussed by Professor C. B. Garnett in 14 Va. Law Reg. 836, maintaining the view that the appellate court has power to allow amendments to be made, and has frequently ex- ercised it. CHAPTER XXVI. BANKRUPTCY. 209. Introductory. 210. Discharge in Bankruptcy. 211. Plea of Discharge. 209. Introductory. It has been hereinbefore pointed out that the only defences which may not be made under the broad general issues of non assumpsit and nil debet are bankruptcy, tender and the Act of Limitations. But little need be said on the subject of bank- ruptcy, so far as it relates to the subject of pleading. 210. Discharge in bankruptcy. It is the discharge in bankruptcy, and not the adjudication, which is effective to bar the action. The fact of adjudication is a matter of suspension and not of bar to the action. If a party has been sued, but has been -adjudged a bankrupt before judgment, and wishes to interpose his bankruptcy as a defence to the action, he should plead his adjudication in suspension of the action until such reasonable time as will enable him to obtain his discharge, which may then be pleaded in bar. The discharge, when applicable, operates as a release of the bank- rupt personally, and of all of his after acquired property from all liability for debts which are provable against him. Debts not provable, and hence not discharged by the discharge in bank- ruptcy, are best set forth in 17 of the Bankruptcy Act, as amended, which is as follows : "A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as (1) are due as a tax levied by the United States, the State, county, district, or municipality in which he resides; (2) or liabilities for obtaining property by false pretenses or false representations, or wilful and malicious injuries to the person or property of another; or for alimony due or to become due, or for maintenance of unfe 210 DISCHARGE IN BANKRUPTCY 369 or child, or for seduction of an unmarried female, or for criminal -conversation; (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy; or (4) were created by his fraud, embezzlement, misappropriation, or de- falcation while acting as an officer or in any fiduciary capacity." Discharge in bankruptcy, however, is generally a personal de- fence, which the debtor may waive if he chooses, provided it does not affect substantial rights of innocent third persons, but if it is necessary for -a purchaser of the bankrupt's land to defend his own title by defending that of his vendor, and this can only be ddne by setting up the discharge in bankruptcy of his vendor and his release from debts evidenced by judgments against his vendor, he will be permitted to plead such discharge in bankruptcy of his vendor. 1 Unless, however, the rights of third persons will be affected in some such manner as above in- dicated, a personal judgment may be taken against the bankrupt for his antecedent debt, if he fails to plead his discharge. So. likewise, the antecedent debt furnishes a good consideration for a new promise to pay it, and if the new promise is clearly and distinctly proved, a personal judgment may be rendered for the debt. The new promise may be made at any time after adjudication. It need not have been made after discharge. It may be conditional, provided the condition has been fulfilled. 2 \Yhether a judgment rendered against a bankrupt on a prov- able debt, after the commencement of proceedings in bank- ruptcy, but before his discharge and when he has interposed no defence, continues to bind him and his after acquired prop- erty, or he is discharged by his discharge in bankruptcy, is the subject of much conflict of authority, but it is believed that upon reason and the weight of authority the judgment is dis- charged. 3 1. Blair v. Carter, 78 Va. 621, and cases cited. 2. 16 Am. & Eng. Encl. Law (2nd Ed.) 789 ff, and cases cited. 3. Boynton v. Ball, 121 U. S. 457; Blair r. Carter, 78 Va. 621; Zum- hro v. Stump, 38 W. Va. 325, 18 S. E. 443; 16 Am. & Eng. Encl. Law (2nd Ed.) 772. and notes; Note by Freeman. 53 Am. Dec. 296. 24 370 BANKRUPTCY 211 211. Plea of discharge. The proper form of a plea of discharge in bankruptcy is as follows : The defendant says that the plaintiff ought not to have or main- tain his action aforesaid against him, because he says that after the making of the supposed writing obligatory (or other evidence of the debt, as the case may be) in the declaration mentioned, and before the commencement of this suit, to-wit, on the day of he was granted a discharge by the District Court of the United States of America for the District of from all provable debts then existing against him, which discharge is in the words and figures following, to-wit: (here insert the discharge in its exact language) And the defendant further says that the supposed writing obliga- tory (or other evidence of the debt, as the case may be) in the declaration mentioned was given for a debt or claim which by the said Act of Congress was made provable against the estate of the defendant and which existed on the day of ; and the defendant further says that the supposed writing obligatory was not given for, or as evidence of, any debt or claim excepted by said Act from the operation of a discharge in bankruptcy, and this the said defendant is ready to verify, wherefore he prays judgment if the plaintiff ought to have .or maintain his action aforesaid against him. The plaintiff may take issue on this plea, thereby raising the question as to whether or not any such discharge was in fact granted as set forth in the plea, or he may deny that the debt for which the action was brought is such a debt as would be discharged by the defendant's bankruptcy, or he may rely upon some fraud in procuring the discharge. In either of the two latter events, a special replication will be necessary setting forth the facts. CHAPTER XXVII. TENDER. 212. Definition. 213. Sufficiency of tender of money. 214. Form of plea. 215. Effect of valid tender. 212. Definition. "Tender is an offer or attempt to perform, and may be either: (a) An offer to do something promised, in which case the offer, and its refusal by the promisee, discharge the promisor from the contract, (b) An offer to pay something promised, in which case the offer, and its refusal by the promisee, do not discharge the debt, but prevent the promisee from recovering more than the amount tendered, and in an action by the promisee en- title the promisor to recover the costs of his defence." 1 213. Sufficiency of tender of money. In order to constitute a valid tender at common law it is essen- tial that the tender should be made at the time and place stipulated in the contract, in money, of the correct amount, unconditional, and that the tender should be kept good and the amount brought into court with the plea. A tender either before or after the time stipulated in the contract, or at a different place, is bad. If no time is fixed it is to be made within a reasonable time, and if no place is designated it is the duty of the debtor to seek the creditor, if within the State, but he is not obliged to seek him outside the State. Usually the tender must be of current money 2 not checks, certificates of deposit or other evidences 1. Clark on Contracts (2nd Ed.) 440. 2. Currency which may, or may not be tendered for private debts: (1) Gold coin is a full legal tender at its face value if not sweated, etc.; (2) Gold certificates are not a legal tender at all; (3) Silver dollars are a full legal tender unless otherwise stipulated expressly in the contract; (4) Silver certificates are not a legal tender; (5) United States notes (greenbacks) are a full legal tender for all pri^ 372 TENDER 213 of debt but this provision may be waived and will be deemed to have been waived if refused on other grounds. It is unneces- sary to tender the exact amount due if a sum sufficient is offered from which the creditor can take what is due him with- out the necessity for making change. Generally it is necessary that the tender should be unconditional. The creditor can not demand, as a condition, the execution of releases, or convey- ances, or receipts in full, or delivery of property or the like. If the evidence of the debt is negotiable paper, the authorities are conflicting as to whether the payer has the right to demand its surrender, 3 without invalidating his tender, and in some cases it has been held that he may demand a receipt for the sum paid, though not a receipt in full. Furthermore, the tender must be kept good, and the amount brought into court with the plea. If at any time after the tender the debtor is not ready and willing to pay, he loses the benefit of the tender previously made, but he is not expected to carry the money on his person all the time, and if a subsequent demand is made upon him, after tender refused, he must be accorded a reasonable time within which to comply. Tender can only be made by the debtor or his agent, to the creditor or his agent. The common law requirements of a tender ad diem (on the very day the money was due) and of keeping the tender good and bringing the money into court so restricted its use that finally a statute was passed in England allowing the sum clue to be paid into court in nearly all personal actions. Similar* statutes have been adopted in a number of the States. 4 In Virginia, while the common law doctrine of tender has not been specifically repealed or abolished, it has been practically vate debts in the United States; (6) Treasury notes of 1890 are also full legal tender unless otherwise expressly stipulated; (7) National bank notes are not a legal tender except to national banks; (8) Sub- sidiary silver coins are a full legal tender up to $10.00; (9) Minor coins, such as nickels, cents, etc., are a full legal tender up to 25c.; (10) Currency certificates are not a legal tender at all. Benjamin on Sales, 705. 3. 38 Cyc. 154. 4. 28 Am. & Eng. End. Law (2nd Ed.) 4 ff; 4 Min. Inst. 735, 736; 38 Cyc. 127 ff. 214 FORM OF PLEA 373 superseded by statute, declaring that "in any personal action, the defendant may pay into court, to the clerk, a sum of money on account of what is claimed, or by way of compensa- tion or amends, and plead that he is not indebted to the plaintiff (or that the plaintiff has not sustained damages) to a greater amount than the said sum;" 5 and "The plaintiff may accept the said sum either in full satisfaction, and then have judgment for his costs, or in part satisfaction, and reply to the plea gen- erally, and, if issue thereon be found for the defendant, judg- ment shall be given for the defendant, and he shall recover his costs." 6 These enactments apply to all personal actions whether upon tort or contract, and if a tender, after maturity of a money demand, be made of the full amount (principal and interest to date of tender), and be arbitrarily refused, and the debtor keeps his tender good and pays the money into court and files a plea under 3296, it is not likely that any court or jury would require more. 214. Form of plea. The following is the form of plea given by Prof. Minor 7 and states the essentials of a valid tender: Circuit Court for A County, to-wit: Rules, 19 D. D. v. C. C. And the said defendant, by his attorney, comes and says that the said plaintiff ought not to have or maintain his action aforesaid thereof against him to recover any damages or interest by reason of the non-payment of the said sum of dollars in the said declaration mentioned, because he says that the said defendant, on the day when the said sum became due and payable, to-wit, on the day of , in the year of our Lord nineteen hundred and . . . . , was ready and willing, and 5. Code, 3296. 6. Code, 3297. 7. 4 Min. Inst. 1754. 374 TENDER 215 then tendered and offered to pay to the said plaintiff the sum of dollars, to receive which of the said defendant the said plaintiff then wholly refused, and the said defendant avers that from thence hitherto he hath been and still is ready to pay to the said plaintiff the said sum of dollars, and the said defendant now brings the same into court here, ready to be paid to the said plaintiff if he will accept the same. And this the said defendant is ready to verify. Wherefore he prays judgment if the said plaintiff ought to have or maintain his action aforesaid thereof against him as to any damages or interest by reason of the non-payment of the said sum of dollars. C. A. S., p. d. The plea must show the amount tendered, time, place, kind of money, and continued readiness, and the defendant must bring the money into court with his plea. 215. Effect of valid tender. If the promise was to do something other than to pay money, it relieves the promisor from the obligation of his promise. If the promise was to pay money, it relieves him from the liability for interest thereafter accruing, and from the costs of the subsequent action, but does not relieve him from liability for the debt. Whether the defendant can thereafter escape liability for the full amount tendered has been the subject of conflicting views. On the one hand, it is said that as tender is an admission of the sum tendered there can never be a verdict for a less sum. 8 On the other hand, it has been held that if there is a tender of an amount which is larger than the sum shown by the evidence to be really due, the court is not bound to give judgment for the larger sum tendered. 9 In the absence of mistake, the overwhelming weight of authority is that tender is an admission that the amount tendered is due, even though the tender was insufficient in form, or made in a 8. Denver R. Co. v. Harp, 6 Colo. 420; Wm. Cameron Co. v. Camp- bell (C. C. A.), 141 Fed. 42. 9. Glos v. Goodrich, 175 111. 20, 51 N. E. 643. 215 EFFECT OF VAUD TENDER 375 case where a valid tender could not be made, 10 and this con- clusion seems to accord with reason. It is generally held that a valid tender of the amount due upon a debt secured by a mortgage or other lien on real or personal property operates to discharge the lien and leaves the creditor with only his personal claim upon the debtor, but it is said that this rule does not apply to the lien of a judgment, and probably not to an attachment. So, also, if the debt be secured by a surety (that is, a surety is bound personally for the debt) a valid tender operates to release the surety, though the principal debtor still remains liable. 11 Money tendered and refused remains the property of the person making the tender and may be taken to pay his debts, but he must be ready, able and willing at all times to substitute other money and thus keep his tender good. 10. 38 Cyc. 163, 164, and cases cited. 11. 38 Cyc. 163; 28 Am. & Eng. Encl. Law (2nd Ed.), 13, 14. See also McClain v. Balton, 50 W. Va. 130, 131, 40 S. E. 509. CHAPTER XXVIII. LIMITATION OF ACTIONS. 216. Historical. 217. Nature, effect and validity of statute. Limitation of remedy. Limitation of right. Adverse Possession. Conventional limitations. 218. Parties affected. 219. When the statute begins to run. (1) Demand paper. (2) Bank deposits. (3) Coupons. (4) Calls on stock. (5) Cloud on title. (6) Covenant lor general warranty. (7) Death by wrongful act. (8) Fraud and mistake. (9) Malicious abuse of civil process. (10) Voluntary conveyances. (11) Accounts. (12) Debt acknowledged in a will. (13) Judgments. (14) Nuisance. (15) Partners. (16) Principal and surety. (17) Co-sureties. (18) Principal and agent. (19) Attorney and client. (20) Express trustees, executors, administrators, guard- ians, etc. (21) Tenant and co-tenant. (22) Landlord and tenant. (23) Vendor and purchaser. (24) Assignor and assignee. (25) Persons under disability. 220. What limitation is applicable. (1) Tort or contract. (2) Cases on contract. (3) Debt assumed by grantee in a deed. (4) Coupons. (5) Debt secured by mortgage, deed of trust, or pledge. 216 HISTORICAL 377 (6) Lien for purchase money. (7) To recover damages for suing out an injunction, (8) Principal and surety. (9) Death by wrongful act. (10) Proceedings in federal courts. (11) Unmatured debts. (12) Foreign contracts. (13) Foreign judgments. 221. What stops or suspends the running of the statute. (1) Commencement of action. (2) Amendment of pleadings. (3) Removal from state. (4) Infancy. (5) Death. (6) Inability to serve process. In equity. 222. How defence of statute is made. At law. (1) By demurrer. (2) By special plea. (3) Shown under the general issue. (4) By instructions. In equity. In code states. Matters of avoidance. 223. Who may plead the statute. Fiduciaries. Strangers. 224. New promise or acknowledgment. Effect of new promise. Nature of promise or acknowledgment. Undelivered writing. Provisions in wills. By whom promise should be made. (1) By party. (2) By partners after dissolution. (3) By personal representative. To whom promise should be made. When new promise should be made. 225. Waiver and Estoppel. 226. Burden of proof. 227. Appeal and error. 216. Historical. At common law there was no limitation of actions except the presumption of payment arising from the lapse of time, and .378 LIMITATION OF ACTIONS 217 even after a statute was passed in England there was conflict among the judges as to whether the statute was one of presump- tion, or one of repose. Lord Mansfield held that the statute, in case of money demands, was a mere presumption of satisfaction, and consequently allowed almost anything to be proved that showed that the debt had not been paid to defeat the plea of the statute. While Chief Justice Best held that it was a statute of repose, and this led to the adoption of what is known as Lord Tenterden's Act in 1829 (9 Geo. IV, Chap. XIV) adopting in effect the view of Chief Justice Best. The latter view is the one held in Virginia, and in practically all of the States. 1 Being statutes of repose they are liberally con- strued. 2 217. Nature, effect and validity of statute. "A limitation fixed by statute is arbitrary and peremptory, admitting of no excuse or delay beyond the period fixed, unless such excuse be recognized by the statute itself." 3 The legisla- ture has full power to make any exception it chooses, or to refuse to make any at all, and, whether or not an exception exists, for instance in favor of infants, insane . persons or others, is to be determined from the statute itself. If the statute makes exceptions, they exist; if not, they do not exist, as there is no limitation of actions at common law. 4 Statutes of limitation may be of several different kinds. The statute may (1) simply interpose a barrier between a claimant and the remedy for the enforcement of his right, and such is generally the statute applicable to personal actions ex contracts and ex delict o, or it may (2) limit the right of recovery as dis- tinguished from the remedy, or it may (3) constitute a muni- ment of title to property, real or personal. In addition to this there may be conventional limitations. The first class may be 1. Templeman v. Pugh, 102 Va. 441, 46 S. E. 474; 19 Am. & Eng. Encl. Law (2nd Ed.) 146. 2. Bell v. Morrison, 1 Pet. 351. 3. Peoria F. & M. Ins. Co. v. Hall, 12 Mich. 202. 4. Vance v. Vance, 108 U. S. 514; Terry v. Anderson, 95 U. S. 634; Leonard v. Henderson, 23 Gratt. 331, 338; Bickle v. Chrisman, 76 Va. .678; Jones v. Lemon, 26 W. Va. 629. 217 NATURE, EFFECT AND VALIDITY OF STATUTE 379 designated as a limitation of remedy, the second as a limitation of the right, and the third as title by adverse possession. Limitation of remedy. This is the limitation generally re- ferred to in speaking of the statute of limitations. A limitation may be prescribed to the enforcement of a right to which there was no limitation at the time the right accrued, or an existing limitation may be reduced, provided always a reasonable time is allowed to elapse before the expiration of the time prescribed. So also the limitation may be extended, or, in some jurisdictions, taken away altogether. 5 It has been held by the Supreme Court of the United States that no person has a vested right in the statute of limitations as a defence to his promise to pay money, that the right to defeat payment of a just debt by the statute is not a vested right, hence if the statute were repealed after the bar had attached, in those cases (that is where the bar did not con- fer title in the adversary), the right might be enforced. 6 The same doctrine is held in West Virginia, Texas, Florida, New York, Pennsylvania and one or two other states but the weight of authority is against it. 7 In Virginia this doctrine is distinctly repudiated by statute enacted for that very purpose. 8 Limitation of right. If a statute confers a right for the first time (i. e., a right that did not exist at common law) and at the same time fixes the period within which the right may be en- forced, then the limitation is of the right, and not merely of the remedy. Here time is of the essence of the right and a condition of its existence and duration (and not a mere limitation of the remedy) and it should be alleged and proved that the action is "brought within the period of existence of the right. The right is lost if not asserted within the statutory period. 9 5. Terry r. Anderson, 95 U. S. 628; Vance v. Vance, 108 U. S. 514. 6. Campbell v. Holt, 115 U. S. 620. 7. McEldowney v. Wyatt, 44 W. Va. 711, 30 S. E. 239; 19 Am. & Eng. Encl. Law (2nd Ed.) 171, 172. 8. Code, 2936; Kesterson z/. Hill, 101 Va. 739, 45 S. E. 288; Burks' Address, p. 25. 9. Lambert v. Ensign Man. Co., 42 W. Va. 813, 26 S. E. 451; The Harrisburg, 119 U. S. 199; McCartney v. Tyrer, 94 Va. .203; Manuel r. X. &. W. R. Co., 99 Va. 188, 37 S. E. 957; Savings Bank v. Powha- tan Clay Co., 102 Va. 274, 46 S. E. 294; 3 Va. Law Reg. 63. Iff 380 LIMITATION OF ACTIONS 218 Adverse possession. Statutes in the states generally fix a time beyond which no action can be brought to recover either real or personal property in the adverse possession of another. The object of these statutes is to quiet titles to property, and to- require claimants out of possession to assert their claims within such reasonable time as the statutes prescribe. The effect of the statutes is not merely to bar the remedy of the claimant to the property, but to take away from him altogether the right to the property, and vest it in the defendant in possession, thereby giv- ing the latter the superior title. It is one of the most valuable muniments of title, and is absolutely essential to the repose of society. Title thus obtained is superior to any paper title, and no repeal of the statute can operate to divest the adverse claim- ant of the title thus acquired. The right and title thus acquired is a vested right which the legislature has no power to disturb. 10 Conventional limitations. Parties may agree upon a less time within which an action may be brought than that prescribed by law, unless prohibited by statute, as it may be, 11 and the agree- ment will be enforced. 12 An agreement that a claim for loss or damage to goods shipped by rail shall be made in writing within thirty days is valid. It is not really a limitation of the time to sue. 13 Agreements to extend the time for the statute to run, or to waive it altogether, are treated hereinafter in 225. 218. Parties affected. Generally the statute operates upon every person, natural and artificial, but there is one notable exception, and that is the public government. State. As a rule, statutes of limitation do not apply to the State unless expressly mentioned, and it is said that the same is true of county governments and municipalities when 10. Campbell v. Holt, 115 U. S. 620; Leffingwell v. Warren, % Black (U. S.) 599; Sharon v. Tucker, 144 U. S. 544; 19 Am. & Eng. Enc. Law (2nd Ed.) 172; Code, 2915, and cases cited. 11. Smith v. Ins. Co., 112 Va. , 70 S. E. 482. 12. Cochran v. London Corp., 93 Va. 553, 25 S. E. 597. 13. Liquid C. Co. v. N. & W. R. Co., 107 Va. 323, 58 S. E. 569; Atlantic Coast Line v. Bryan, 109 Va. 525, 65 S. E. 30; St. Louis & Santa Fe R. Co. v. Wallace (Ark.), 119 S. W. 254. 219 WHEN THE; STATUTE BEGINS TO RUN 381 asserting rights of a purely public and governmental nature, as they are then mere arms of the State, but this is not true when they are engaged in trade or commercial matters, such as issuing bonds, collecting debts and the like. 14 In Virginia it is provided by 2937 of the Code that no statute of limitations which shall not in express terms apply to the commonwealth shall be deemed a bar to any proceeding by or on behalf of the same. In West Virginia it is provided by Code, 1137, that "every act of limitation, unless otherwise expressly provided, shall apply to the State." It has been held, however, that, notwithstanding the latter statute, the public ease- ments in the public highways of the State are not subject to the statute of limitations. 15 Hospitals for the insane are in Virginia State institutions and the statute of limitations does not run against debts due to them. 16 If the State or one of its agencies sues in the courts of another State, however, they stand on the footing of an individual, and the ordinary statute of limitation applies. 17 219. When the statute begins to run. The statute begins to run when a party has a right to sue, that is, when there has been a breach of duty, or a violation of a contract, giving rise to a cause of action. 18 In the following cases the relations of the parties to each other, or the subject matter, is such as to require special mention. (1) Demand paper. For the purpose of the statute of limitations all demand paper is, as to the persons primarily liable thereon, due as of its date, and the act of limitations 14. 19 Am. & Eng. Encl. Law (2nd Ed.) 191; Reusens v. Lawson, 91 Va. 226, 21 S. E. 347; Johnson v. Black, 103 Va. 477, 49 S. E. 633; Bellenot r. Richmond, 108 Va. 314, 61 S. E. 785. 15. Ralston r. Weston, 46 W. Va. 544, 33 S. E. 326, overruling sev- eral prior cases. 16. Eastern State Hospital v. Graves, 105 Va. 151, 52 S. E. 837. 17. Western Lunatic Asylum r. Miller. 29 W. Va. 32fi. 1 S. E. 740. 18. Cookus t-. Peyton, 1 Gratt. 431; Walker v. Tyler, 94 Va. 534, 27 S. E. 434; Handy i<. Smith, 30 W. Va. 195, 3 S. E. 604; Cann v. Cann, 40 W. Va. 138, 20 S. E. 910. 382 LIMITATION OF ACTIONS 219 1 begins to run from that date. The action itself is a demand. 191 Under 7 of the Negotiable Instruments Act, the following in- struments are payable on demand: "(1) Where it is expressed' to be payable on demand or at sight, or on presentation, or (2) when no time of payment is expressed." A bond or note which fixes no date of payment or is expressed to be payable- on demand is due and payable as soon as it is executed and delivered. Where paper is payable so many days after demand it means that number of days after actual demand, which may- or may not be on the day of the date of the paper. If pay- able at sight, it would seem that, independently of statute, the paper must be shown for payment, and that the act begins to run from the latter date. 20 The same rule, of course, would apply to paper payable after sight, that is, that time must ex- pire after the paper is shown for payment. To hold an endorser bound on a note payable on demand,, there must be an actual demand, non-payment, and notice thereof, and until then the statute does not begin to run. 21 "If a demand be necessary before action, the statute does not begin to run until the date of the demand, but demand must be made within a reasonable time, which is the time fixed by the statute of limitations, if not made before. Where no demand is shown it will be presumed to have been made within that period, and the statute will then run." 22 Courts are not uniform in their holdings as to when interest should run on paper payable on demand. Some hold that the interest begins only with actual demand. Probably a majority, including Virginia, 23 hold that interest begins with the date of the paper. (2) Bank deposits. Whether the deposit be special (on certificate) or general (subject to check), in either case 19. Laidlcy v. Smith, 32 W. Va. 387, 9 S. E. 209; Newman v. Ket- tell, (Mass.), 13 Pick. 418; Omohundro v. Omohundro, 21 Gratt. 626; 19 Am. & Eng. Encl. Law (2nd Ed.) 197. 20. Dan. Neg. Instruments, 1215; 19 Am. & Eng. Encl. Law (2nd Ed.) 198. 21. Parker v. Stroude, 98 N. Y. 379. 22. Thompson v. Whittaker, 41 W. Va. 574, 23 S. E. 797. 23. Omohundro v. Omohundro, 21 Gratt. 626. 219 WHEN THE STATUTE BEGINS TO RUN 383 demand is necessary, and the statute does not begin to run ex- cept from the date of the demand and refusal. 24 (3) Coupons. Upon coupons, whether attached to or de- tached from bonds, the statute begins to run from the maturity of the coupon. 25 (4) Calls on stock. As between a corporation and its stockholders, and as between creditors of the corporation and stockholders, where calls have been made by the com- pany, and also by the court, the authorities are in conflict as to whether the statute begins to run from the maturity of the call by the company, or from a call by the court. In Virginia the statute begins to run from the maturity of the call by the company. 26 If no calls have been made by the company, but one has been made by the court, the statute begins to run from the maturity of the call made by the court. 27 Upon a stock subscription made by parol in Virginia the limitation is three years from the date of the maturity of the call on the stock. 28 (5) Cloud on title. This is a continuing wrong, and ordi- narily the statute does not begin to run against it so long as it exists. (6) Covenant for general warranty. Generally there is no breach of this covenant until eviction, or what is regarded as its equivalent, and until then the statute does not begin to run. (7) Death by wrongful act. The action for death by wrong- ful act is purely statutory, and most of the acts are modeled after Lord Campbell's Act. Where this is true it is said that the action is not the continuation, survival, or revival, of the decedent's cause of action, but is a new and independent cause of action, in which the measure of damages is not the same as 24. Thompson v. Bank, 82 N. Y. 1; Gutch v. Fosdick, 48 N. J. Eq. 353. 22 Atl. 590, 27 Am. St. Rep. 473. 25. Clark r. Iowa City, 20 Wall. 586; Amy r. Dubuque, 98 U. S. 470. 26. See discussion and cases cited in Gold v. Paynter, 101 Va. 714, 44 S. E. 290. 27. Vanderwerken v. Glenn, 85 Va. 9, 6 S. E. 806. 28. Bank v. Otterview Land Co., 96 Va. 352, 31 S. E. 511. 384 LIMITATION OF ACTIONS 219 in an action brought by a decedent, 29 and the time within which the action is to be brought is regulated by statute. In Vir- ginia it is one year from the death of the decedent, and not from the date of the injury. 30 If the decedent survives the injury more than a year and a day, there is no conclusive presumption that he did not die from the injury, and it may still be shown that the injury was the proximate cause of his death, and the statute will begin to run from his death. 31 It seems that the statutory action in favor of a personal represent- ative may still be brought, notwithstanding decedent's right of action was barred at the time of his death. 32 Under the Federal Employers' Liability Act applicable to employees of railroad companies while engaging in interstate commerce, the limitation to an action for the death of an em- ployee is two years from the day the cause of action accrued. It has been held under the Virginia statute that but one action can be maintained to recover damages for an injury resulting in death as there is but one cause of action in such case. An action brought by an injured employee who subsequently dies may be revived in the name of his personal representative after his death, or a new action may be brought by the personal rep- resentative. 33 (8) Fraud and mistake. Whether at law the statute begins to run from the commission of the fraud, or from its discovery, or from the time when by the exercise of ordinary diligence it should have been discovered is a question upon which the au- thorities are in conflict. 34 At common law there was no act of limitations outside of the presumption of payment and pre- scription, and hence in any common-law State if there is any limitation on any demand whatever it must be found in the stat- 29. Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S. E. 269. 30. Code, 2903. 31. Louisville, etc., R. R. Co. v. Clark, 152 U. S. 230. 32. 8 Am. & Eng. Encl. Law (2nd Ed.) 877, and cases cited; 70 Am. St. Rep. 669. 33. Brammer r. N. & W. R. Co., 107 Va. 206, 57 S. E. 593. 34. 19 Am. & Eng. Encl. Law (2nd Ed.) 242, 247; Rowe v. Bent- ley, 29 Gratt. 756. 760; Callis v. Waddey, 2 Munf. 511; Rice v. White, 4 Leigh 474; 1 Rob. Pr. (old) 87, 110; Code, 2933. 219 WHEN THE STATUTE BEGINS TO RUN 385 ute. If not found there, it does not exist. In Virginia it is pro- vided that "every personal action, for which no limitation is oth- erwise prescribed, shall be brought within five years next after the right, to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued." 35 This section seems broad enough to cover actions for fraud. The main ques- tion of difficulty is whether the statute begins to run from the commission of the fraud, or from its discovery. It has been held in Virginia that no lapse of time and no delay in bringing a suit, however long, will defeat the remedy in case of fraud or mutual mistake, provided the injured party during such interval was ignorant of the fraud or mistake, without fault on his part, and that the duty to commence proceedings can only arise upon discovery of the fraud or mistake. 36 But the case in which this language is used was one of mistake and not of intentional fraud, and the suit was in equity and not at law. At law the statute probably runs from the commission of the fraud. In West Vir- ginia it is said that where a cause of action arises out of a fraud, the statute of limitations runs from its perpetration, and that to deduct the period during which a party is ignorant of the fraud, his ignorance must arise out of some positive act on the part of the defendant. Mere silence is not sufficient, but there must be some act designed to conceal the existence of liability and operate in some way upon the plaintiff to prevent or delay suit for it, other- wise it will not come within the saving clause of the statute di- rected against obstructing the prosecution of a right "by any other indirect ways or means.'' 37 This rule, however, does not apply to fraudulent transfers of property. 38 It is said that the tend- ency of modern decisions and also of modern statutes is to place actions at law on the same footing with suits in equity, 35. Code. 2927. 36. Craufurd v. Smith. 93 Va. 623, 23 S. E. 235. 37. Thompson v. Whittaker Iron Co., 41 W. Va. 754, 23 S. E. 795; Code, W. Va., 1906, 3511. 38. Thompson v. Whittaker Iron Co.. supra; Bumgardner r. Har- ris, 92 Va. 188, 23 S. E. 229. 25 386 LIMITATION OF ACTIONS 219 where the defendant fraudulently conceals the cause of action, and to start the statute only from the time the fraud was, or ought to have been, discovered. 39 Equity certainly does not apply the statute in case of fraud or mistake except from the time that the fraud or mistake was, or should have been discov- ered. 40 Mere ignorance, however, on the part of the opposite party will not prevent the running of the statute. 41 Money paid under a mistake of law with knowledge of the facts can- not, according to the weight of authority, be recovered back in the absence of any fraud or misconduct on the part of the payee. 42 (9) Malicious abuse of civil process. Time runs from the termination of the suit. 43 (10) Voluntary conveyances. Generally the statute runs from the time of discovery of the right to avoid the conveyance, though in some states it is from the time the conveyance is made. 44 In Virginia it is provided that the suit shall be brought within five years after the right to avoid the conveyance has -ac- crued. The debt need not be due. 45 Formerly it was neces- sary for the creditor to first establish his debt at law, but now he may proceed at once in Virginia, whether his debt is due or not, to set aside the conveyance and to subject the property con- veyed and he is given a lien from the time of the institution of his suit. 46 So in Virginia it would seem that the act begins to run from the time of the conveyance, or at least from the time of the recordation of the conveyance and not from its discov- ery, unless the failure to discover the existence of the convey- ance resulted from 'the fraud of the grantee. 47 The limitation 39. 19 Am. & Eng. Encl. Law (2nd Ed.) 245, note 2; Bailey v. Glo- ver, 21 Wall. 342; Traer v. Clews, 115 U. S. 528. 40. Craufurd v. Smith, 93 Va. 623, 23 S. E. 235; Hull v. Watts. 95 Va. 10, 27 S. E. 829; Rowe v. Bentley, 29 Gratt. 756, 760, and cases cited. 41. Vashon v. Barrett, 99 Va. 344, 38 S. E. 200. 42. Note, 55 Am. St. Rep. 517, and cases cited. 43. Note, 93 Am. St. Rep. 471, and cases cited. 44. 14 Am. & Eng. Encl. Law (2nd Ed.) 353. 45. Code, 2929. 46. Code. 2460. 47. Bickle v. Chrisman, 76 Va. 678; Vashon v. Barrett, 99 Va. :M4. 7 Va. Law Reg. 36, and note, 38 S. E. 200; 1 Va. Law Reg. 507. 21^ WHEN' T11K STATUTE BEGINS TO RUN* 387 for setting aside a voluntary conveyance prescribed by the Vir- ginia Code, 2929, has no application to a suit to set aside a conveyance for actual fraud. As to the latter there is no limi- tation, though the right may be lost by the laches of the cred- itor. 48 A suit to set aside a voluntary conveyance is always in equity. Notwithstanding the fact that the Virginia statute gives a lien from the filing of the bill, if the suit be brought in the Federal court, or in the State court and afterward removed into the Federal court, the Federal courts refuse to recognize any such lien, and hold that there is no such federal equity jurisdic- tion, and that the plaintiff, before filing a bill to avoid the con- veyance, must first establish his debt at law by obtaining a judg- ment. Federal courts have their own rules of procedure in equity, operating uniformly throughout the United States, and are not bound by State statutes in such matters. 49 (11) Accounts. The act begins to run from the time the account is due, and that depends upon the terms, express or im- plied, upon which the articles are sold. It is provided by stat- ute in Virginia that "upon any oral contract, express or implied, for articles charged in a store account, although such articles be sold on a written order," the action shall be brought within two years next after the right to bring the same shall have first accrued. 50 If the well-known custom of the merchant is to sell on credit, until the end of the week, month, half year, or year, accounts will fall due at these periods and the statute begins to run from that date. The Code of 1887 changed the phraseology of this statute so as to insert the words "express or implied." Before this insertion, it had been held that the statute applied only to implied promises to pay the account, and hence if there was an express promise to pay it, the limitation was five years and not two, and this was the view of Professor Minor, 51 but 48. Bumgardncr v. Harris, 92 Va. 188, 23 S. E. 229; 1 Va. Law Reg. 590; Kinney r. Craig, 103 Va. 158, 165, 48 S. E. 8G4. 49. Scott v. Neeley, 140 U. S. 106; Rollins v. Briarfield, 150 U. S. 371; Gates r. Allen, 149 U. S. 451. 50. Code, 2920. 51. 4 Min. Inst. 612, 613. 388 LIMITATION OF ACTIONS 219 the construction would be different under the present statute. Under the former statute, it was also held that the time could be extended by an account rendered. 52 But since that time it has been held that an account stated which is not sup- ported by a writing signed by the debtor, or his agent, will not prevent the running of the statute of limitations against previously existing items of indebtedness included therein. 53 As to mutual accounts between parties, growing out of the same transaction, or where there is more than one transaction, and the parties have agreed to run accounts with each other for a stated period, the statute begins to run from the termination of the transaction or period, as the case may be. The action in such case is for the balance due, and not for the items of the account. 54 (12) Debt acknowledged in a will. If there is no other evi- dence of a debt but the will, or if the will is relied upon as a new promise or acknowledgment, the statute begins to run from the death of the testator, provided the will fixes no time of pay- ment. 55 (13) Judgments. The duration of the life of a judgment is fixed by statute in each State. In Virginia the lien of a judg- ment on land continues as long as you may issue a ft. fa. on the judgment or revive the judgment by a scire facias. Upon a judgment a writ of fieri facias may be issued within a year, and thereafter other writs of fieri facias may be issued at any time within ten years from the return day of a writ upon which there has been no return by an officer, or within twenty years from the return day of a writ upon which there has been such a re- turn. So that it may be kept alive perpetually. If no execution issues within the year the judgment may be revived by scire facias at any time within ten years from its date. 56 It is pro- 52. Radford v. Fowlkes, 85 Va. 820, 851-852, 8 S. E. 817. 53. Magarity v. Shipman, 93 Va. 64, 24 S. E. 466; Stiles v. Laurel Fork Oil Co., 47 W. Va. 838, 35 S. E. 986. As to what constitutes an account stated, see 62 Am. Dec. 81-96. 54. Green v. Disbrow, 75 N. Y. 1, 35 Am. Rep. 496. 55. Perkins v. Siegfried, 97 Va. 444, 34 S. E. 64. 56. Post, "Executions," and cases cited. 219 WHEN THE STATUTE BEGINS TO RUN 389 vided, however, by the section of the Code just cited that where the scire facias or action is against the personal representative of a decedent, it shall be brought within five years from his qualification, thus cutting down the life of a judgment against a judgment debtor who dies to five years from the qualification of his personal representative, unless within that time the judg- ment be revived by scire facias or an action be brought thereon. 57 No suit in equity can be maintained to enforce a judgment barred at law. 58 It has been held in Virginia that if an execution is made out and signed by the clerk ready for delivery to the officer and marked "To lie," it is a sufficient issuance within the meaning of 3677 of the Code, although it has not been placed in the hands of the officer to be levied. 59 (14) Nuisance. Where the injury created by a nuisance is recurrent, each recurrence of the nuisance creates a new cause of action upon which the statute begins to run from that time ; but if the nuisance be permanent in its nature, and all the dam- ages which will flow therefrom can be recovered in a single ac- tion, the statute begins to run from its original creation. 60 (15) Partners. Until the affairs of a partnership are settled and all outstanding engagements made good, the partnership is regarded in legal contemplation as continuing, 61 and the limi- tation to a suit by one partner against another for the settle- ment of the partnership affairs does not begin to run until the "cessation of the dealings in which they are interested together." The words quoted refer to the time when the affairs of a part- nership are wound up, and not to the cessation of active opera- tions, but the parties may have a partial settlement of partner- ship affairs before that time, or may bring a suit for such set- tlement. 62 Not until all the assets are collected and debts paid, 57. Spencer v. Flanary, 104 Va. 395, 51 S. E. 849. 58. Code, 3573. 59. Davis v. Roller, 106 Va. 46, 55 S. E. 4. 60. Va. Hot Springs Co. r. McCray, 106 Va. 461, 56 S. E. 216; Gulf Ry. r. Moseley (C. C. A.), 161 Fed. 72. 61. Smith r. Zumbro, 41 W. Va. 623, 24 S. E. 653. 62. Foster v. Rison, 17 Gratt. 321. 390 LIMITATION OF ACTIONS 219 or at least until it be demonstrated that no further assets can be collected or debts paid, does the statute begin to run. 6 " The trouble is more serious where the statute does not fix the time at which the statute is to begin to run. 64 (16) Principal and surety. Time begins to run from pay- ment by the surety of the debt or any part of it, and the obliga- tion is an open account liability, although .the original undertak- ing was by bond. 65 If the surety has paid the debt before ma- turity, then his right of action against the principal does not be- gin to run until the maturity of the original debt. 66 (17) Co-sureties. The surety has no right to call upon a co- surety until he has paid more than his proportion of the debt. "It may be that one of the two sureties pays half of the debt; five years expire, and then the principal pays the other half. The right of action of the surety against his co-surety does not exist until the principal has paid the last half, for until that is paid the surety had not paid more than his proportion, and could not recover from the co-surety. Consequently, in this case, the statute of limitations does not begin to run until the principal has paid his half of the debt. The endorser of a note who pays it in whole or in part has his right of action against the principal, and that right of action accrues at the time of pay- 63. Sandy v. Randall, 20 W. Va. 245; Smith v. Brown, 44 W. Va. 342, 30 S. E. 160. 64. Note, 40 Am. St. Rep. 574-576. 65. Tate v. Winfree, 99 Va. 255, 37 S. E. 956. 66. Attention is called to the Virginia statute giving a surety the right to require a creditor to sue, or else release the surety. If a right of action has accrued, the surety may give notice to the creditor or his personal representative in writing forthwith to institute suit thereon, and it he fails to prosecute the suit with due diligence to judgment, he forfeits his right to go against the surety. The notice, however, must show a clear, unequivocal, and distinct demand upon or command to the creditor "forthwith to institute suit upon the paper." A notice to take such action as is necessary to get the en- dorser's name off a note, or to sue one of the parties to a note, is not a sufficient compliance with the statute. Code, 2890, 2891; Ed- monson v. Potts, 111 Va. 79, 68 S. E. 254. Provision is also made by statute in Virginia to enable a surety on an official bond to be re- lieved from further liability. Code, 2887, and cases cited thereto. 219 WHEN THE STATUTE BEGINS TO RUN 391 ment. If he has paid the whole note he may sue upon it as en- dorser, or he may maintain an action for money paid. In case the note itself is barred by the statute at the time his action was brought, five [three] years having elapsed since he paid the money, it seems that he may recover for money paid for the use, etc., though if he sued on the note his action would be barred. A contrary rule is said to prevail in some of the States, but is not sustained by English authorities, nor does it prevail in Virginia." 67 (18) Principal and agent. In case of a general or continu- ing agency, as distinguished from a special or isolated agency, the statute of limitation runs between the parties to it from its close. 68 As to whether the relation is one of trust or not, see Hasher v. Hasher, 96 Ya. 584, 32 S. E. 41 ; Wilson v. Miller, 104 Ya. 466, 51 S. E. 837. (19) Attorney and client. Attorneys at law are within the general statute limiting the time within which actions for breach 67. 1 Barton L. Pr. (2nd Ed.) 106, 107. 68. "Where there is an isolated or special agency, one for a par- ticular act or acts, one to collect a specific debt or debts, the statute begins from the act or collection in each particular case; but where the agency has currency, is continuous, is general, involving many acts, or a course of business involving many transactions, the statute begins from the termination of the agency. The contract of agency is a lump, covering several years, covering many items, and the parties reserve them for settlement some day ahead. You cannot start the statute at date of each collection or each item of liability, innumer- able items in an account which both sides treated as open, and there is a necessity to fix some day. 1 Rob. Pr. 488; 1 Wood 347, 349 n. 2; Angell, Lim., 181, n. 2; Hopkins v. Hopkins, 4 Strobh. (S. C.) Eq 207; Estes v. Stokes, 2 Rich (S. C.) 320. The Virginia case of Riverview Land Co. v. Dance, 98 Va. 329, 35 S. E. 720, holds that in continuous agencies the statute begins at their termination; but that if the law gives a right to either to demand payment before, it runs from demand and refusal. No doubt there can be a demand for ad- justment giving cause of action at once; but, as a general rule, in the absence of special circumstances, changing it, as there may be, the statute starts at ihe close of the agency. The books show that the statute applies between principal and agent. It's wise policy to have an end of liability and give peace of mind, happiness of life and to prevent litigation, should be liberally applied, as well to this relation as others." Rowan r. Chenoweth, 49 W. Va. 287, 38 S. E. 544. 392 LIMITATION OF ACTIONS 219 of contract must be brought. They do not occupy such a rela- tion of trust towards their clients as would debar them from pleading the statute of limitations. 69 The statute begins to run from the time the cause of action accrued, and not merely from the time the damage was suffered, unless the defendant used fraud to conceal the wrong done until a right of action had be- come barred. 70 For funds collected by him, the statute begins to run from the time that the attorney should have paid the money to his client. It is said that it is the duty of the atttorney when he has collected money for his client, to give him notice and to pay it over promptly when called for or demanded, but if the client has notice of it, it is unnecessary to go through the idle ceremony of giving him notice, but that sometimes the at- torney is enable to give notice to his client, as, for example, where he is out of the country, or his whereabouts unknown, or he has no means of communicating with him. In such cases, he would be excused from giving the notice. 71 But if the where- abouts of the client is known, it is the duty of the attorney to give him notice of collections and to pay over the money, and the general duty of the creditor to seek his debtor and pay him applies to attorneys as well as to other debtors. There is con- flict of authority, however, on the subject of the necessity for a demand of payment by the client. Of course if -the client does not know of the fact of collection, and is not negligent in this respect, no demand is necessary, especially if the attorney con- verts the money to his own use. 72 If the client knows of the collection of funds and makes no demand for payment, the statute will probably run from the date of the acquisition of that knowledge. 73 This subject is regulated to some extent in Virginia by the statute cited in the margin. 74 Under this 69. Kinney v. McClure, 1 Rand. 284. 70. 3 Am. & Eng. Encl. Law (2nd Ed.) 399. 71. Pidgeon v. Williams, 21 Gratt. 251, 259. 72. 1 Bart. Law Pr. 109. 73. Hasher v. Hasher, 96 Va. 584, 32 S. E. 41, a case of attorney in fact and principal. 74. Section 3200 of the Code is as follows: "Every attorney at law- shall be liable to his client for any damage sustained by him by the neglect of his duty as such attorney. If any attorney receive money for his client and fail to pay the same on demand, it may be re- 219 WHEN THE STATUTE BEGINS TO RUN 393 statute it would 'seem that a demand upon the attorney and re- fusal on his part is essential to subject the attorney to the pen- alty therein prescribed. If the attorney has acted in good faith, it is presumed that the statute of limitations will begin to run from the time of collection, or within a reasonable time there- after. (20) Express trustees, executors, administrators, guardians, etc. Ordinarily the right of action on their bonds accrues at, and hence the statute begins to run from, the time that the plaintiff has the right to demand settlement, or payment, or delivery of estate. In the absence of statute there is no limitation to the right to sue them personally, and not on their official bonds. 75 (21) Tenant and co-tenant. The right of a tenant to enforce against the share of his co-tenant the equitable lien arising from the payment by the tenant of more than his share of the pur- chase money, does not arise until suit for partition is brought, and the statute of limitations has no application to such suits. 76 Possession of one co-tenant is the possession of both, and the statute does not begin to run as between them until ouster or its equivalent. 77 It must not be supposed, however, that the tenant could npt sue his co-tenant personally for contribution. covered from him by warrant, or by suit, or motion, according to the amount; and damages in lieu of interest, not exceeding fifteen per centum per annum until paid, may be awarded against him." "If any fiduciary mentioned before in this chapter, or any agent or attorney at law, shall, by his negligence or improper conduct, lose any debt or other money, he shall be charged with the principal of what is so lost, and interest thereon, in like manner as if he had re- ceived such principal." Section 2676. 75. Redford v. Clarke, 100 Va. 115, 40 S. E. 630, 7 Va. Law Reg. 851; Code, 2921. It is provided by statute in Virginia that if the fiduciary has set- tled an account under the provisions of ch. 121 of the Code, a suit to surcharge or falsify the same or to hold such fiduciary or his sureties liable for any balance stated in such account to be in his hands shall be brought within ten years after the account has been confirmed. Code, 2921. 76. Grove r. Grove, 100 Va. 556, 42 S. E. 312; Ballou v. Ballou, 94 Va. 350, 26 S. E. 840. 77. Fry v. Payne, 82 Va. 759, 1 S. E. 197. .394 LIMITATION OF ACTIONS 219 (22) Landlord and tenant. A tenant cannot set up a claim adverse to his landlord without full notice to the landlord of the tenant's disclaimer to hold under him, or his assertion of an ad- verse title, but such notice need not be so conclusive as to pre- clude all doubt. 78 The statute begins to run from the time of .such notice, or knowledge. (23) Vendor and purchaser. The statute will not com- mence to run in favor of a vendee against the vendor who has retained title until the vendee has dissevered the privity of title between them by the assertion of an adverse right, and the open and continuous disclaimer of the title of his vendor, and until such disclaimer has been clearly brought home to the knowledge >of the vendor. 79 (24) Assignor and assignee. "The right of action by an as- signee against his assignor accrues when the assignee is defeated in his suit against the debtor. If he prevails in his suit, the statute will begin to rim from the time that he has done all that the law requires him to do in order to bind his assignor; that is, to obtain judgment, issue execution, and have a return of nulla bona." 80 (25) Persons under disability. While statutes of limitation, as previously stated, generally contain a saving clause in favor .of infants, married women and other persons laboring under disabilities, it is entirely competent for the legislature to omit such saving clause, and, when omitted, statutes of limitation ap- ply to such persons as though no disability existed. 81 In Vir- ginia the statute of limitations makes no exception in favor of married women in respect to matters relating to, or affecting, their separate estates 82 nor as to the right to make entry on or to bring an action to recover land. In statutes making savings in favor of persons under disability, the saving is confined to 78. Reusens v. Lawstm, 91 Va. 226, 21 S. E. 347. 79. Chapman v. Chapman, 91 Va. 397, 21 S. E. 813. 80. 1 Barton's L. Pr. (2nd Ed.) 107, 108; Scates v. Wilson, 9 Leigh 473. 81. Vance v. Vance, 108 U. S. 514; Schauble v. Schaultz (C. C. A.), 137 Fed. 389; Jones v. Lemon, 26 W. Va. 629; Leonard v. Henderson, :23 Gratt. 331. 82. Code, 2917, 2931. 220 WHAT LIMITATION IS APPLICABLE 395 disabilities existing at the time the right of action accrues. No other disability is available than the one which then existed, and no disability subsequently arising can be "tacked" on to the one so existing, for instance if a female infant marries after the right accrues, the disability of coverture cannot be "tacked" to that of infancy, but if both exist when the right accrues the statute is suspended until the last one is removed. Here there is no "tacking." 83 The period of disability of a married woman saved to her as to her common law lands by 2931 of the Virginia Code is not allowed where action is brought by a husband and wife during the coverture, and the husband is living at the time of trial. But if the husband be dead, and the action survives to the wife, the period of her coverture is deducted, provided the whole time elapsing from the time the right of action accrued until action brought does not exceed twenty years. 84 220. What limitation is applicable. 85 (1) Tort or contract. Whether the limitation to be applied in a particular case is a tort or contract limitation, where either may be brought, is determined by the object of the action, and not simply by its form. If the injury sought to be redressed is merely personal, whether resulting from breach of contract or from tort, the action dies with the person and the tort limitation applies. M; The following distinction, between actions for tort or con- tract is made by the English Court of Appeals : "The distinc- tion is this: If the cause of complaint be for an act of omis- 83. Parsons v. McCracken. 9 Leigh 495; Blackweli v. Bragg, 78 Va. 529; Jones v. Lemon, 26 W. Va. 629. 84. McMurray v. Dixon, 105 Va. 605, 54 S. E. 481. See post, note 21 to 221. 85. In Virginia the limitation on contracts under seal is ten years, on contracts in writing not under seal five years, on oral contracts three years, on store accounts two years, on personal torts one year. For all other actions for which no limitation is prescribed the limi- tation is five years if the action would survive to the personal repre- sentative, and if not, one year. Code, 2920, 2927. 86. Grubb v. Suit, 32 Gratt. 203; Birmingham v. C. & O., 98 Va. 548, 37 S. E. 17. 396 LIMITATION OP ACTIONS 220 sion or non-feasance which, without proof of a contract to do what was left undone, would not give rise to any cause of ac- tion (because no duty apart from contract to do what is com- plained of exists) then the action is founded upon contract, and not upon tort. If, on the other hand, the relation of the plain- tiff and the defendants be such that a duty arises from that re- lationship, irrespective of contract, to take due care, and the defendants are negligent, then the action is one of tort." 87 (2) Cases on contract. Where the plaintiff has two causes, of action upon contract open to him and elects one, and adapts his pleading and proof thereto, he will be bound by his election,, and cannot thereafter adopt the other. The act of limitation applicable will be the one appropriate to the cause of action se- lected. 88 (3) Debt assumed by grantee in a deed. The assumption by the grantee in a deed, who does not sign it, of the payment of bonds given by his grantor for purchase money, is a simple con- tract debt, and is barred in Virginia in three years from the time of assumption. 89 (4) Coupons. Coupons are mere interest certificates, and when annexed to bonds partake of the nature of the bonds. They are intended to be parts and parcels of the principal un- dertaking, and are annexed for convenience of the collection of the interest. When annexed to bonds they may be said to be little bonds, and the limitation on the coupon is the same as that applicable to the principal obligation. They mature, how- ever, and the statute begins to run on them from the times they are payable, and not from the time when the original undertak- ing is payable. 90 87. Kelly v. Met. R. Co. (1895), 1 Q. B. 944; Atl., etc., R. Co. v. Laird, 164 U. S. 393. 88. Noell z. Noell, 93 Va. 433, 25 S. E. 242. If an accommodation endorser pays a note he may sue either on the note, or on the im- plied contract of indemnity. 89. Taylor v. Forbes, 101 Va. 658, 44 S. E. 333; Harris v. Shields, 112 Va. , 69 S. E. 933; W. Va. R. Co. v. Mclntire, 44 W. Va. 210, 28- S. E. 696. 90. Clark v. Iowa City, 20 Wall. 583; Amy v. Dubuque, 98 U. S. 470. 220 WHAT LIMITATION IS APPLICABLE 397 (5) Debt secured by mortgage, deed of trust, or pledge. A debt secured by mortgage, deed of trust, or other lien may be barred so that no action can be brought thereon, but the lien still remains and may be enforced. 91 Whether or not giving se- curity for a prior existing debt is a renewal of the debt, is said to be a question upon which the authorities are greatly at va- riance. 92 Where a creditor holds a pledge or collateral security for his debt he may enforce the debt against the security, al- though it is barred. 93 (6) Lien for purchase money. In the absence of statute, no time bars the right to enforce a lien reserved for purchase money. Presumption of payment from lapse of time and laches will alone rebut the claim. 94 In Virginia it is provided by Code, 2935, that even a lien reserved for the purchase price of prop- erty shall not be enforced after twenty years from the time the right to enforce the same shall have first accrued. If, however, the title is retained as a security for the purchase price no limi- tation is fixed for the time of its enforcement. The fact, how- ever, that a limitation was fixed upon all other liens to secure the purchase price after the lapse of twenty years would greatly strengthen the common law presumption of payment after that lapse of time, and this presumption would be well nigh as effec- tive as an absolute bar. The limitation placed upon deeds of trust and mortgages by 2935 above mentioned has no applica- tion to such instruments made by corporations. (7) To recover damages for suing out an injunction. An ac- tion for maliciously and without probable cause suing out an injunction whereby the operation of a mill was suspended is barred in one year, as it is for a mere personal tort. 95 91. Hanna v. Wilson, 3 Gratt. 243; Bowie v. Poor Society, 75 Va. 300; Tunstal! v. Withers, 86 Va. 892, 11 S. E. 565; Criss v. Criss, 28 W. Va. 388; 1 Va. Law Reg. 854, and cases cited. 92. 19 Am. & Eng. End. Law (2nd Ed.) 303; Wolf v. Violet, 78 Va. 57. See also an excellent discussion in 8 Va. L. Reg. 401; Shep- herd v. Thompson, 122 U. S. 231; post, 224. 93. Roots v. Salt Co., 27 W. Va. 483. 94. Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623. 95. Mumpower v. City of Bristol, 94 Va. 737, 27 S. E. 581, 3 Va. L. Reg. 439, and note. 398 LIMITATION OF ACTIONS 220 (8) Principal and surety. The liability of a principal to in- demnify the surety is a simple contract debt, although the origi- nal debt may be under seal. 96 (9) Death by wrongful act. "The limitation prescribed by the law of the State where the injury occurred governs the time within which the action must be brought, regardless of where the action is tried, if the limitation is contained in the act creat- ing the right of action. But where the statute giving the right of action in such State provides no limitation, the limitation pre- scribed by the law of the forum will govern." 97 (10) Proceedings in federal courts. State statutes of limita- tion are as a rule binding on Federal courts. 98 (11) Unmatnred debts. If a debt is payable at a future day, and an act of limitation is enacted for the first time, or an existing act is changed, the act in force when the debt becomes due, and not the one (if any) existing when the debt was con- tracted, prevails in the absence of any saving clause in the stat- ute. 99 The Virginia statute 1 contains no such saving clause as to causes of action which had not matured at the time the Code took effect, May 1, 1888. A promise to pay a debt after a certain specified debt is paid matures when the specified debt should have been paid by the debtor if of ability to pay. To postpone payment when able to pay is a fraud on the other creditor. 2 (12) Foreign contracts. Upon a contract made in one State and sought to be enforced in another, the laws of the latter (lex fori) generally prevail, but the rule is otherwise where a 96. Tate v. Winfree, 99 Va. 255, 37 S. E. 956. 97. 8 Am. & Eng. Encl. Law (2nd Ed.) 886, and cases cited; Greg- ory v. Ry. (D. C.), 157 Fed. 113; Dowell v. Cox, 108 Va. 460, 62 S.. E. 388. 98. Bauserman v. Blunt, 147 U. S. 647, 652; Leffingwcll v. Warren, 2 Black. 599. 99. 19 Am. & Eng. Encl. Law (2nd Ed.) 168, 176; Smith v. Ins. Co., 112 Va. , 70 S. E. 482. 1. Code, 2938. 2. Solenbcrger v. Strickler, 110 Va. 273, 65 S. E. 566. 221 WHAT STOPS RUNNING OF STATUTE 399 statute creates a new liability which did not exist at common law, and prescribes the period of limitation. 3 (13) Foreign judgments. It is expressly provided by statute in Virginia that "every action upon a judgment or decree ren- dered in any other State or country shall be barred, if by the laws of such State or country such action would there be barred, and the judgment or decree be incapable of being otherwise en- forced there ; and whether so barred or not no action against the person who shall have resided in this State during the ten years next preceding such action shall be brought upon any such judg- ment or decree, rendered more than ten years before the com- mencement of such action." 4 221. What stops or suspends the running of the statute. When the statute begins to run, nothing will stop or suspend it except what is expressly so provided by the statute. Neither marriage, death, insanity, removal from the State, nor any other cause will suspend its operation unless expressly so provided. 5 Such statutes usually, however, except from their operation in- fants, insane persons and married women during the period of their disability and for a reasonable time thereafter, and also exclude from the computation the time during which any party may, by absconding, concealing himself, or by any other indi- rect ways or means, obstruct the prosecution of a legal right. As these are common exceptions, it will be necessary to consider them somewhat more in detail, also to consider the effect of the amendment of pleadings. (1) Commencement of action. The commencement of an action of course stops the running of the statute, and is gen- erally the only thing that will stop it. Other causes may sus- pend it for a time, but the commencement of an action stops it. The language of the statutes usually is that every action of a designated kind shall be brought within a specified number 3. Urton v. Hunter, 2 W. Va. 83; Brunswick Terminal Co. v. Na- tional Bank. 99 Fed. 635, 5 Va. Law Reg. 787. 4. Code, 2928. 5. Vance r. Vance. 108 U. S. 574; Ins. Co. v. Hall, 12 Mich. 202. 6. Code. 2933. 400 LIMITATION OF ACTIONS 221 of years from the time the right accrues, or that no action shall be brought except within a given time after the right accrues. Hence, if the action be brought within the time speci- fied, it of necessity stops the statute from running. What constitutes the commencement of an action so as to stop the running of the statute is a question about which there is serious conflict of authority. In Virginia it is provided that proc- ess to commence a suit shall be a summons and that it shall be "issued" on the order of the plaintiff, his attorney or agent. 7 On the one hand it is claimed that when the plaintiff has made his memorandum and the clerk has filled out the writ for the purpose of .delivery, this is all that can be required of him. On the other hand, it is insisted that to "issue" is to put forth, to send out, to deliver by authority, and hence that the writ or summons must not only be filled out, but delivered, or at least put in the course of delivery to some one who may legally serve it. The latter view would, on principle, seem to be preferable. 8 The references in the margin will show the au- thorities for the different views. 9 In Davis v. Roller, 106 Va. 46, 55 S. E. 4, a writ of fieri facias was simply filled out by the clerk and never sent out, but marked "to lie" and this was held a sufficient "issuance" under the statute authorizing the issuance of other executions thereafter. The endorsement "to lie" would seem to indicate that there never was any bona fide intention that the writ should be put in the hands of an officer to be executed. In Homestead Ins. Co. v. Ison, 110 Va. 18, it is more properly said that the legal definition of "issuance" is "to send out officially, to deliver for use, to put into circu- lation." If the latter view of issuance be adopted, then the con- clusion of the author of the article in 12 Va. Law Reg. 675 is the correct view. Where the record shows that suit or action was brought 7. Code, 2233. 8. See Davis v. Roller, 106 Va. 46, 55 S. E. 4, construing the word "issue" as applied to executions. See also Lawrence v. Winifred Coal Co., 48 W. Va. 143, 35 S. E. 925, and cases cited. 9. 8 Va. Law Reg. 624, and cases cited; 12 Va. Law Reg. 675, and cases cited; note, 15 Am. Dec. 341; Compare Davis v. Roller, supra, and Homestead Ins. Co. v. Ison, 110 Va. 18, 65 S. E. 463. 221 WHAT STOPS RUNNING OF STATUTE 401 within the time prescribed by the statute of limitations, the court will take judicial notice of the date of the writ in order to ascertain the time of the institution of the suit. The date of the writ is usually conceded to be prima facie evidence of the time of issuance. 10 If the proceeding is by motion to recover a judgment for money under 3211 of the Code of Virginia, the action cannot be deemed commenced within the meaning- of the attachment law until the notice has been executed and re- turned to the clerk's office. 11 By parity of reasoning, the act of limitations would not cease to run until the same time. If a plaintiff suffers a non-suit and his cause is afterwards reinstated on the docket there is in legal contemplation no break in the continuity of his action, and the date of the in- stitution of the original action is the proper test. It is other- wise if the action is not reinstated. 12 If an action brought in due time be dismissed for failure of the plaintiff to file his declaration in the time prescribed by law and a second action be brought for the same cause, the time during which the first action is pending is not deducted in computing the period of limitation. The dismissal for such cause is in the nature of a voluntary non-suit. 13 10. Sands v. Stagg, 105 Va. 444, 52 S. E. 633. 11. Furst Bros. v. Banks, 101 Va. 208, 42 S. E. 360. 12. Manuel z>. X. & W. R. Co., 99 Va. 188, 37 S. E. 957. See also Wickham i: Green, 111 Va. 199, 68 S. E. 259. 13. Lawrence v. Winifred Coal Co., 48 W. Va. 139, 35 S. E. 925; Wickham v. Green, 111 Va. 199, 68 S. E. 259. Section 2934 of the Code of Virginia is as follows: "If an action commenced within due time in the name of or against one or more plaintiffs or defendants abate as to one of them by the return of no inhabitant or by his or her death or marriage, or if in an action com- menced within due time judgment for the plaintiff shall be arrested or reversed upon a ground which does not preclude a new action for the same cause, or if there be occasion to bring a new suit by reason of the loss or destruction of any of the papers or records in a former suit which was in due time, or if :n any pending case or in any action or suit hereafter commenced within due time in any of the courts of this commonwealth, the plaintiffs proceed or have proceeded in the wrong forum or bring the wrong form of action or against the wrong defendant, and judgment is rendered against 26 402 LIMITATION OF ACTIONS 221 (2) Amendment of Pleadings. If the amendment sets up no new cause of action or claim, and makes no new demands, but simply varies and expands the original cause of action, the amendment relates back to the commencement of the action and stops the running of the statute as of that date; but an amendment which introduces a new or different cause of ac- tion, or makes a new or different demand, does not relate back and the statute continues to run till date of amendment. 14 If the amendment simply consists in claiming larger damages than were claimed in the original declaration, the statute stops run- ning at the commencement of the action, and not at the time of making the amendment. 15 Generally, where neiu parties are introduced by the amend- ment, the statute continues to run up to the time of the amend- ment, so far as it affects the rights of such new parties. 10 See particularly Code, 2934, as to suspension in certain cases. 17 (3) Removal from State. In Ficklin v. Carrington, 32 Gratt. 219, it was held that removal from the State after creating a debt was of itself an obstruction which would stop the run- ning of the statute. This holding is apparently overruled in Brown v. Butler, 87 Va. 621, 13 S. E. 71, citing Wilson v. the plaintiff solely upon such ground, in every such case, notwith- standing the expiration of the time within which a new action or suit must otherwise have been brought the same may be brought within one year after such abatement or arrest or reversal of judgment or loss or destruction or judgment against the plaintiff, but not after, provided, however, that the time that any such action or suit first brought shall be pending in any appellate court shall not be in- cluded in the computation of said year." 14. Whalen v. Gordon, 95 Fed. 305, and cases cited; 16 C. C. A. 508, and note; 5 Va. Law Reg. 411, and cases cited; note, 50 Am. St. Rep. 737; New River Min. Co. v. Painter, 100 Va. 507, 8 Va. Law Reg, 430, and note; note, 51 Am. St. Rep. 430; Stout v. Vance, 1 Rob. (Va.) 169; Morrison v. Householder, 79 Va. 627; Lusk v. Kimball, 4 Va. Law Reg. 731; Lamb v. Cecil, 28 W. Va. 653; Kuhn v. Brownfield, 34 W. Va. 352, 12 S. E. 519. 15. Bentley v. Standard F. Ins. Co., 40 W. Va. 729, 23 S. E. 584. 16. I Encl. of PI. and Pr. 623, a.nd cases cited; Richmond v. Sitter- ding, 101 Va. 354, 43 S. E. 562. 17. Griffin v. Woolford, 100 Va. 473, 41 S. E. 749. 221 WHAT STOPS RUNNING OF STATUTE 403 Koontz, 7 Cranch 202, but is reaffirmed in Cheatham v. Aistrop, 97 Ya. 457, 34 S. E. 57. In Embry r. Jemison, 131 U. S. 336, it was held that 2933 of the Code, relating to removal from the State, does not ap- ply when the defendant, though once a resident of the State, removed therefrom before any right of action accrued against him, and before the transaction occurred out of which the plain- tiff's cause of action arose. The same doctrine is held in Griffin v. Woolford, supra. In Abell v. Perin, 18 W. Va. 400, it was held that, where a contract was made out of the State to be performed in the State, with the plaintiff, a citizen and resident of the State, by a defendant who had been a resident of the State, but is then temporarily absent from it, the time during which the defendant remains out of the State is not to be computed as any part of the time within which the creditor is required by the statute of limitations to prosecute his action on the contract. The continued non-residence of the maker of a note who was never a resident of this State did not prevent the running of the statute as it existed prior to the amendment of 1897-98. 18 Under Code, 2933, as amended by acts of 1897-98, p. 441, "continuing to reside without the State" is made an obstruction, and such time is not counted in computing the time within which an action is to be brought. If a non-resident, owning effects in this State, makes a simple contract, to be performed in this State, and then dies outside of this State, before the accrual of a right of action on such contract, the action must be brought within the statu- tory period, notwithstanding the amendment above mentioned, as the debtor, having died before the plaintiff's cause of action accrued, did not, and could not, obstruct its prosecution. 19 (4) Infancy. It has been pointed out that the statute need not make any saving in favor of infants or other persons under disability, but they usually do. 20 A common provision is that if any person to whom the right accrues under the act shall, 18. Griffin v. Woolford, supra; Door r. Rohr, 82 Va. 359, 3 Am. St. Rep. 106. 19. Templeman r. Pugh, 102 Va. 441. 46 S. E. 474. 20. Ante, 212. 404 LIMITATION OF ACTIONS 221 at the time the same accrues, be an infant, married woman, or insane, the same may be brought within a like number of years after he has become of full age, unmarried, or sane, that is allowed to a person having no such impediment to bring the same after the right accrues, except that it shall in no case be brought after a given number of years from the time when the right accrues. 21 In Virginia, the exception in favor of married women does not apply in cases relating to or affecting their separate estates. 22 (5) Death. The running of the statute is not affected by the death of either the creditor or the debtor, in the absence of a statute so providing. 23 In Virginia it is provided that "the period of one year from the death of any party shall be ex- cluded from the computation of time within which, by opera- tion of any statute or rule of law, it may be necessary to commence any proceeding to preserve or prevent the loss of any right or remedy." 24 It is further provided that "the right of action against the estate of any person hereafter dying, on any such award or contract which shall have accrued at the time of his death, or the right to prove any such claim against his estate in any suit or proceeding shall not in any case con- tinue longer than five years from the qualification of the per- . sonal representative, or if the right of action shall not have accrued at the time of the decedent's death, it shall not continue longer than five years after the same shall have so accrued." 25 It is further provided : "If a person die before the time at which any right mentioned in this chapter would have accrued to him if he had continued 21. Code, 2931. In Virginia, not exceeding twenty years. 22. Code, 2917, 2931. 23. Rowan v. Chenoweth, 49 W. Va. 287, 38 S. E. 544. 24. Code, 2919. This section also provides that there "shall be excluded from the computation the time within which, by the terms or operation of any statute or rule of law, it may be necessary to commence any action or other proceeding, or to do any other act to preserve or prevent the loss of any civil right or remedy, or to avoid any fine, penalty, or forfeiture," the period between the seven- teenth day of April, 1861 and the first day of January, 1869, com- monly known as the Stay Law. 25. Code, 2920. 221 WHAT STOPS RUNNING OF STATUTE 405 alive, and there be an interval of more than five years between the death of such person and the qualification of his personal representative, such personal representative shall, for the pur- poses of this chapter, be deemed to have qualified on the last day of the said five years." 20 The foregoing section seems to indicate that, if a party died before a right in his favor accrued, the statute would not begin to run until after the qualification of his personal repre- sentative, actually or constructively, and this is the view taken of the prior statute of limitations in Virginia. 27 It will be observed that 2920 is applicable only to awards and contracts. It is provided by 3577 that if a judgment debtor dies, the lien of the judgment will be lost, unless the judgment is revived against his personal representative or- ac- tion be brought thereon within five years from the qualifica- tion of his personal representative. 28 6) Inability to serve process. In some jurisdictions it is held that the mere inability to serve process upon a defendant, caused by his intentional elusion of it, is no excuse for not commencing an action within the prescribed period. 29 In the case first cited in the margin there was no obstruction to the institution of the action, but the parties, seeing that, because the chief officers of the town resigned, they could get no service of process, did not bring their action. The court said that this was a very different case from suspending the running of the act during the existence of a fraud of which the plaintiff did not know, for then the plaintiff could not know that he had a cause of action, while here he knew it, but failed to sue because he thought he could not get service of process. Whether this case would be followed elsewhere depends largely on the phrase- ology of the particular statute. It would probably not be fol- lowed in Virginia, in view of the language of the Code, 2933. 26. Code, 2932. 27. Hansfort v. Elliott, 9 Leigh 79; Bowles r. Elmore, 7 Gratt. 393. 28. Code, 2920; Spencer r. Flanary, 104 Va. 395, 51 S. E. 849. 29. Amy r. Watertown, No. 2, 130 U. S. 320. In Wisconsin the statute does not stop running until service of process or an attempt to serve followed by service or publication within sixty days. Knowl- ton v. Watertown, 130 U. S. 327. 406 LIMITATION OF ACTIONS 222 IN EQUITY. A creditor's bill, filed by a creditor, suing on behalf of himself and others, or an order for an account of debts or liens, as the case may be, stops the running of the statute as to all creditors who ultimately come in and prove their claims, but not as to others. 30 222. How defence of statute is made. At law. The defence of the statute of limitations may be raised (1) by demurrer, where it is of the right and not of the 'remedy; (2) by special plea this is ordinarily necessary; (3) under the general issue, where it is a basis of title, as in ejectment and detinue; (4) by instructions, where there has been no opportunity to plead it, as in case of replication to a plea under Virginia Code, 3299. (1) By demurrer. It has already been pointed out 31 that where a statute confers a right for the first time and at the same time fixes a period within which the right may be en- forced, then the limitation is of the right and not merely of the remedy. Where the limitation is of this nature, it must be alleged in the pleadings and proved on trial that the right existed at the time of the institution of the action, and a failure to allege in the declaration when the right accrued will be good ground of demurrer as it does not show the present existence of a right conferred by the statute. 32 (2) By special plea. This is generally the proper and only method. The others are exceptions. If this were not true, the plaintiff would be compelled to set out his whole case in his declaration, including not only the grounds of his action, but also excuses for not sooner bringing it, or else he would be cut off from relying upon a new promise in writing, coverture, infancy, insanity and many other answers to the plea. It is especially necessary in those jurisdictions which, like Virginia, allow the plaintiff either to bring his action on the old promise and reply to the new, or else to bring it on the new. 33 The 30. Callaway v. Saunders, 99 Va. 350, 38 S. E. 132. 31. Ante, 217. 32. Manuel v. N. & W. R. Co., 99 Va. 188, 37 S. E. 957. 33. Code, 2922. 222 HOW DEFENCE OP STATUTE IS MADE 407 form of the plea is as follows: And the said defendant, by his attorney, comes and says that the supposed cause of action in the declaration mentioned did not accrue to the said plaintiff at any time within - - years next before the commencement of this action in manner and form as the said plaintiff hath above complained against him, and this the said defendant is ready to verify. p. d. As a general rule, subject to exceptions to be pointed out in the next section, the defence is purely personal to the debtor, and if not made by him in the proper manner is deemed to have been waived. 34 (3) Shown under the general issue. In ejectment and detinue the statute of limitations need not be pleaded by the defendant, but adverse possession in him may be shown under the gen- eral issue, because such adverse possession does not only bar the remedy of the plaintiff but takes the right from him and vests it in the defendant, thereby giving him superior title. 35 The reasons for allowing the statute to be relied upon in this manner and the difference between the use of the statute as a muniment of title and as a mere bar or obstacle to the en- forcement of a personal assumpsit are well set forth by Rob- ertson, C. J. in Smart i: Baugh (Ky.), 3 J. J. Marshall 364, which was an action of detinue to recover a slave. He says : "The plea is non detinet in the present tense, and under this plea anything which will show a better right in the defendant than in the plaintiff may be admitted as competent evidence. The plea puts in issue the plaintiff's right. Five years uninter- rupted adverse possession of a slave not only bars the remedy of the claimant out of possession, but vests the absolute legal right in the possessor. Therefore, proof of such possession may show that the claimant had no right to the slave and cannot recover. Consequently, it would seem to result from the reason of the case that the adverse possession may be 34. Smith r. Hutchinson, 78 Va. 683; Riddle v. McGinnis, 22 W. Va. 253; Smith r. Brown. 44 W. Va. 342, 30 S. E. 160. 35. Leffingwell v. Warren, 2 Black (U. S.) 599; Sharon v. Tucker, 144 U. S. :44. 408 LIMITATION Of ACTIONS 222 proved under the general issue. * * * The same reason does not apply to assumpsit, because the statute of limitations does not destroy the right in foro conscientiae to the benefit of assumpsit, but only bars the remedy if the defendant chooses to rely on the bar. Time does not pay the debt, but time may vest right of property." Furthermore, the learned judge says: "This is perfectly true in detinue for a slave because in such a case the lapse of time has divested the plaintiff of his right of property and vested it in the defendant. * * * But it is not so in debt, because the statute of limitations does not destroy nor pay the debt. "A debt barred by time is a sufficient consideration for a new assumpsit. The statute of limitations only disqualifies the plaintiff to recover a debt by suit if the defendant rely on time in his plea. It is a personal privilege accorded by law for reasons of public expediency and the privilege can only be asserted by a plea." 36 (4) By instructions. When a defendant has had no oppor- tunity to plead the statute, as where under 2717 of the Vir- ginia Code in unlawful detainer the only plea allowed is not guilty, and under the Virginia Code, 3299, where the only replication is a general replication (see 3300), the statute of limitations cannot be replied, but may be relied on in evidence. So, likewise, set-offs may be formally pleaded, or notice may be given of set-offs and a list filed. If formally pleaded, and the statute of limitations is relied on in answer to the plea, it must be specially replied, else it will be deemed to have been waived, but if only a list be filed there is no pleading to reply to, and the plaintiff may rely on the statute as a bar to such set-offs without pleading it. This is done by simply asking the court to instruct the jury that if they believe that more than a given time (the statutory period) had elapsed between the time that the set-off became due and the filing thereof, then on that question they must find for the plaintiff. The defendant in such case cannot claim that he is taken by sur- prise by using the defence of the statute of limitations in this manner, as the plaintiff has had no other opportunity of giving 36. Campbell v. Holt, 115 U. S. 624. 222 HOW DEFENCE OF STATUTE IS MADE 409 him notice of his intention to rely upon the statute, and a correct instruction upon a point which the evidence tends to prove can never work a surprise at law. 37 hi equity. In Virginia, following precedent, it is said that the defence of the statute of limitations cannot be raised by a demurrer where the limitation is of the remedy only, but must be raised by a plea, answer, exceptions to report, or in some other manner, 38 but the rule is otherwise in West Vir- ginia and most of the States. 39 Where, however, the limitation is of the essence of the right, and not merely of the remedy, it must affirmatively appear from the bill that the suit was brought within the time limited by the statute, else the bill will be bad on demurrer. Here time is of the essence of the right and hence the defence may be made by demurrer. 40 /;/ Code States. In Code States the defence of the statute of limitations is generally allowed to be raised by demurrer. It is said that the right to demur is well established by authority of precedent, but it is criticised as indefencible upon principle. It is said: "The doctrine of the right under consideration is this, then, that before the demurrer is filed, the complainant states sufficient facts; but, upon the filing of the demurrer, questioning only the sufficiency of these facts, they at once become insufficient. The error of this doctrine is that it either makes the mere lapse of time vitiate the right asserted, which is beyond the purpose and office of the statute, or it makes the demurrer operate as a defence, which is beyond the office of the demurrer. If it be said that a cause of action, on its face subject to a bar of the statute, is good if the statute is not asserted because the statute is waived by not asserting it, then we have the anomaly of a waiver validating that which is de- fective in substance." 41 37. Sexton v. Aultman, 92 Va. 20, 22 S. E. 838. 38. Hubble z: Poff, 98 Va. 646, 37 S. E. 277. 39. Jackson v. Hull, 21 W. Va. 601; Thompson r. Whittaker, 41 W. Va. 574, 23 S. E. 795; Xewberger v. Wells, 51 W. Va. 624, 42 S. E. 625: 13 Encl. PL and Pr. 201. 40. Savings Bank v. Powhatan Clay Co., 102 Va. 274, 46 S. E. 294. 41. Phillips on Code Pleading, 295, 336, 337. 410 LIMITATION OF ACTIONS 223 Matters of avoidance. Matter in avoidance of the statute of limitations, or forming an exception thereto, should, as a rule, be specially pleaded, or the pleadings (bill or declaration) be amended. It cannot be relied on under a general replication. 42 223. Who may plead the statute. Generally the statute is a personal defence and can be relied on by the party only. But in equity when the court is ad- ministering the estate of a decedent one creditor may set up the statute against the claims of another, 43 and in sales to wind up an insolvent partnership, where the partners are non-resi- dents and do not appear, and the contest is wholly between creditors of the firm, one creditor of the firm may set up the statute against another ; 44 and in Virginia it has been held that in suits to enforce liens against a Hinng defendant one creditor may set up the statute against the claims of another. 45 In the case of McCartney v. Tyrer, cited in the margin, the debtor was dead, while in Callaway v. Saunders, likewise cited in the margin, he was living, and yet the latter case is based solely on the former. The West Virginia court, with better reason it would seem, refuses to allow one creditor to set up the act against another where the debtor is alive and does not plead the act. 40 In the course of the opinion in the case last cited, the following quotation is made from the opinion of the court in Lee v. Feemster, 21 W. Va. 108: "In Woodyard v. Polsley, 14 W. Va. 211, we held that 'After a man is dead, and his estate is distributed among his creditors in a court of equity, a creditor might rely on the statute of limitations to defeat the claim of another creditor.' But this is put upon the prin- ciple that it is then impossible for the debtor to plead the statute of limitations ; his voice is hushed ; the law made it the duty of his personal representative to plead the statute of limitations, and if the personal representative did not do it the 42. 2 Abbott's Trial Brief on PI. 1090, and cases cited; Lewis v. Bacon, 3 Hen. & Munf. 89; Switzer v. Noff singer, 82 Va. 518. 43. McCartney v. Tyrer, 94 Va. 198, 26 S. E. 419. 44. Conrad v. Bank, 21 W. Va. 396, 410, 411. 45. Callaway v. Saunders, 99 Va. 300, 38 S. E. 182. 46. Welton v. Boggs, 45 W. Va. 620, 624, 32 S. E. 232. 224 NEW PROMISE OR ACKNOWLEDGMENT 411 creditors might do so as against each other. With a living man it is altogether different. The law does not compel him to plead the statute of limitations. It is a personal privilege that he can avail himself of or not, as he pleases." The plea of the statute by one surety which is not purely per- sonal to him inures to the benefit of all. 47 Fiduciaries. It is the duty of a fiduciary to set up the statute as a defence to claims asserted against the person he represents which are barred by the statute of limitations and his failure to do so will generally render him liable for the resulting loss. It is provided by statute in Virginia 48 that if any personal representative, guardian, curator or committee shall pay any debt the recovery of which could be prevented by reason of illegality of consideration, lapse of time, or otherwise, knowing the facts by which the same could be so prevented, no credit shall be allowed him therefor." Privies in estate. Privies in estate, such as devisees, vendees, and mortgagees of property have a right to rely upon the statute of limitations in favor of those under whom they claim in order to protect their property. 49 Strangers. Generally a mere stranger to a claim can neither interpose the statute of limitations himself nor compel his debtor to do so. Hence if there be several creditors of a com- mon debtor, one of such creditors cannot interpose the statute as a bar to the claim of the other nor compel the debtor to do so when all are living, though the debtor be insolvent. 50 224. New promise or acknowledgment. Statutes of limitation generally provide for the removal of the bar of the statute on promises to pay money by a new promise in writing of the debtor, or an acknowledgment from which a promise to pay will be implied. The Virginia statute 47. Ashby v. Bell, 80 Va. 811. 48. Code. 2676. 49. McLaugherty v. Croft, 43 W. Va. 270, 27 S. E. 246; Blair v. Carter, 78 Va. 621. 50. Welton r. Boggs, 45 W. Va. 620, 32 S. E. 232. But see McCart- ney v. Tyrer, and Callaway v. Saunders, ante, notes 43, 45. 412 LIMITATION Of ACTIONS 224- is given in the margin. 51 The antecedent debt as a general rule, furnishes all the consideration necessary for the new promise. Effect of new promise. The effect of the new promise or acknowledgment is not to stop the running of the statute on the old promise, but to fix a new period from which the statute will begin to run on the old promise, and, unless the new promise amounts to a novation of the debt, the limitation on the new promise will be the same as on the old in the absence of language in the statute showing a different intent. 52 Furthermore, a new promise to pay a debt secured by a mortgage or other lien will keep alive the lien, but whether the giving of a security for a debt will revive the personal liability of the debtor is the subject of much conflict. 53 A part payment of the principal or payment of interest does not, at least in Virginia, remove the bar of the statute. 54 If the new promise is limited to a part of the debt or a new security is given to pay the debt, or so much thereof as the 51. 2922. Limitation of Action When There Is a New Promise in Writing. How Plaintiff to Sue in Such Case. If any person against whom the right shall have so accrued on an award, or any such contract, shall, by writing signed by him or his agent, promise payment of money on such award or contract, the person to whom the right shall have, so accrued may maintain an action for the money so promised, within such number of years after such promise, as it might be maintained under 2920, if such promise were the original cause of action. The plaintiff may sue on such promise or on the original cause of action, except that where the promise is of such a nature as to merge the original cause of action, then the action shall be only on the promise. If the action be on the original cause of action, in answer to a plea under 2920, the plaintiff shall be allowed without pleading it, to show such promise in evidence, to repel the bar of the plea, provided he shall have given the defendant reasonable notice, before the trial, of his intention to rely on such promise. An acknowledgment in writing, as aforesaid, from which a promise of payment may be implied, shall be deemed to be such promise in the meaning of this section." 52. Copeland v. Collins, 122 N. C. 619, 30 S. E. 315; Tole's Appeal, 54 Conn. 521, 9 Atl. 402. 53. 19 Am. & Eng. End. Law (2nd Ed.) 289, 303, and notes; Wolf v. Violett, 78 Va. 57; 8 Va. L. Reg. 401. 54. Cover v. Chamberlain, 83 Va. 286, 5 S. E. 174. 224 NEW PROMISE OR ACKNOWLEDGMENT 413 security will pay, it has been held that this does not revive the whole debt in the first instance nor any part of it except so far as the security -goes in the second, 55 but on this point the authorities are conflicting. 56 Nature of promise or acknowledgment. It must in most States be in writing and signed by the debtor or his agent, and must be an unconditional promise to pay money, or else the condition must have been fulfilled. 57 The following require- ments have been laid down for an acknowledgment to take a case out of the statute : the acknowledgment must be ( 1 ) con- sistent with a promise to pay, (2) must be such that a promise to pay will naturally be implied, (3) must be unconditional or the condition must have been fulfilled, (4) must be unqualified and unequivocal hopes, excuses, etc., are not sufficient; (5) must be definite as to the sum and the debt intended, (6) may be before or after the bar has fallen,' (7) must have necessary formalities writing; (8) must be (a) to the creditor or his agent, (b) duly communicated, (c) by the debtor or his agent. 58 With some qualifications and differences, nearly the same re- quirements are stated in a monographic note, in 102 Am. St. Rep. 751. The amount must be definite. It has been held that the new promise must not be uncertain, but must acknowledge a fixed sum or balance which admits of ready and certain ascertainment. If the balance has not been agreed, the promise is insufficient. Hence a promise to pay "the agreed balance on your judgment" is not sufficient when the amount of such balance does not appear. 59 An acknowledgment must admit both a liability and a willingness to pay. 60 Of course, if the promise is conditional, the condition must be complied with before the promise becomes operative. It is said that an acknowledgment that the debt is unpaid, accompanied by an expression of a willing- 55. Shepherd v. Thompson, 122 U. S. 231. 56. 19 Am. & Eng. Encl. Law (2nd Ed.) 803; 8 Va. Law Reg. 401. 57. Stansburg v. State, 20 W. Va. 23; Bell v. Crawford, 8 Gran. 110; Aylett v. Robinson. 9 Leigh 45. 58. 19 Am. & Eng. Encl. Law (2nd Ed.) 291 ff. 59. Quarrier r. Quarrier, 31 W. Va. 310, 15 S. E. 154. 60. Bell r. Morrison, 1 Pet. 351; Sutton v. Burriiss, 9 Leigh 381; Cover r. Chamberlain, 83 Va 286, 5 S. E. 174. 414 LIMITATION OF ACTIONS 224 ness to pay, but an inability, is insufficient to take a case out of the statute. 61 But there are many cases contra. Where the debtor said, "I cannot pay it now, as I- have two members of my family now to support," it was held sufficient to take the case out of the statute. So also, "I am sorry to inform you that the prospect at present is not very pleasing, as it is utterly out of my power to pay anything." These and other expres- sions have been held sufficient, but it is very generally held that a promise "to settle" is not sufficient. 62 A promise to pay an unascertained balance, or to settle and pay the balance found due, will not stop the running of the statute. 63 But where there is a promise to pay, not specifying any amount, but the amount can be made certain, extrinsic evidence may be received to ascertain the amount due. It is sufficient if the true amount is capable of being made certain. 64 Under the Virginia statute, and under the statutes generally, the promise must be to pay money or a debt. The statute has no application to torts. Hence where detinue was brought for a breast-pin, to a plea of the statute of limitations, the replication was filed that within five years before suit was brought the defendant had acknowledged the breast-pin to be the property of the plaintiff, the replication was held bad as the statute did not apply to such a case, or provide such a method for divesting the defendant of his title acquired by adverse possession. This was not a promise to pay money, but an acknowledgment of title of the complainant. 05 Undelivered writing. An action cannot be maintained on an undelivered writing or a due bill found in the supposed debtor's papers after his death. Such writing so found is not a suffi- cient acknowledgment to prevent the bar of the statute. 66 61. 19 Am. & Eng. Encl. Law (2nd Ed.) 300, and cases cited. 62. Monographic note, 102 Am. St. Rep. 770, et scq. See also Shep- herd v. Thompson, 122 U. S. 231; 8 Va. Law Reg. 401. 63. Liskey v. Paul, 100 Va. 764, 42 S. E. 875; Aylett v. Robinson, 9 Leigh 45; Sutton v. Burruss, 9 Leigh 381. See on this subject post, 225. 64. Cole v. Martin, 99 Va. 223, 37 S. E. 907. 65. Morris v. Lyons, 84 Va. 331, 4 S. E. 734. 66. Cann v. Cann, 40 W. Va. 138, 20 S. E. 910; 102 Am. St. Rep. 75S. 224 NEW PROMISE OR ACKNOWLEDGMENT 415 Provisions in wills. It is expressly provided by statute, both in Virginia and West Virginia, that no provision in the will of any testator devising his real estate or any part thereof subject to the payment of his debts, or charging the same there- with, shall prevent the statute from operating on such debts unless the contrary intent plainly appears. 67 By Whom Promise Should Be Made. (1) By party. A new promise should be made by the debtor or his authorized agent, and not by his personal representative or heir. 68 An insolvent debtor may give a new promise to pay a debt barred by the statute and may secure the debt by a specific lien. In the absence of fraud, other creditors cannot object if the case does not come within some provision of the bankrupt law. 69 (2) By partners after dissolution. Whether a new promise or acknowledgment by one partner after dissolution will take a case out of the statute of limitations as to the other partners is much controverted. In England it is provided by statute that it shall not (9 Geo. IV., chap. 14). In the United States there is great conflict. Many courts say it will not take it out, viewing it virtually as a new contract. In Virginia, one partner cannot, by his sole act, bind his copartner against his consent, so as to impose a new liability, or to revive one barred by the statute of limitations. Xor can his declarations or ad- missions be received as the only evidence of the existence of a debt against the partnership. 70 The new promise, when made, must be to pay a debt; a promise "to settle" with the claimant is not sufficient. 71 67. Va. Code, 2924; W. Va. Code, 3503; Dunn v. Remmick, 33 W. Va. 476, 10 S. E. 810; Johnston v. Wilson, 29 Gratt. 821. 68. Seig r. Accord, 21 Gratt. 365; Smith v. Pattie, 81 Va. 654; Swit- zer v. Xoffsinger, 82 Va. 518. 69. Robinson v. Bass, 100 Va. 190, 40 S. E! 660. 70. Bell z: Morrison, 1 Pet. 367; Woodson z>. Wood, 84 Va. 478;: Shelton r. Cocke, 3 Munf. 191; Davis v. Poland, 92 Va. 225; Roots z>- Salt Co., 27 W. Va. 483. See note collecting cases 1 Gr. Ev. (16th. Ed.) 307. 71. Bell v. Crawford, 8 Gratt. 110; Bell z: Morrison, 1 Pet. 361. 416 LIMITATION OF ACTIONS 224 (3) By personal representative. A personal representative, cannot, under the statutes of Virginia and West Virginia, make a new promise which will remove the bar of the statute against the debt of his decedent. 72 In Bishop v. Harrison, 2 Leigh 532, it was held that an executor might promise to pay a debt of his testator not already barred and that it was no devastavit for him to do so, that the estate would be bound by the promise and the administrator d. b. n. might be sued therefor. After that, what is now 2923 of the Code of Virginia was enacted, declaring that no acknowledgment or promise by any personal representative of a decedent should charge the estate of such decedent in any case where, but for such acknowledgment or promise, the decedent's estate could have been protected under the statute of limitations. After the passage of this statute the case of Bishop v. Harrison was cited with approval in Braxton v. Harrison, 11 Gratt. 57, in Smith v. Pattie, 81 Va. 665 and Switzer v. Noffsinger, 82 Va. 524, 525, but the question decided in Bishop v. Harrison, was not involved in any of the cases citing it. 'The question of the effect, however, of 2923 or its equivalent in West Virginia did come under review in Findley v. Cunningham, supra, where it was held that the promise of the representative did not bind the estate of the decedent. The court, however, stood three to two. The ma- jority opinion seems to be right. The language of 2923 seems to prevent the personal representative from making any promise or acknowledgment that will remove the bar or prevent the operation of the statute from affecting the debt, and such seems to have been the intention of the revisors of 1849. 73 To whom promise should be made. Under the English rule, such a promise to a third person is sufficient, but the weight of American authority seems to be that it must be to the cred- itor or his agent, or at least for his benefit; and, in one case in Virginia, an acknowledgment made in a deposition by which the deponent was seeking credit for a payment as against a 72. Stiles i'. Laurel Coal Co., 47 W. Va. 838, 35 S. E. 986; Findley v. Cunningham, 53 W. Va. 1, 44 S. E. 472; Van Winkle v. Blackford, 33 W. Va. 573, 11 S. E. 26; Smith v. Pattie, 81 Va. 654. 73. See Report of Revisors, Chap. 149, 8, p. 744. 225 WAIVER AND ESTOPPEL 417 deceased partner, the acknowledgment was held to be sufficient as a new promise to pay that debt. 74 When new promise should be made. If made before action brought, it is immaterial whether it was made before or after the bar had fallen. 75 It would seem to be too late after the institution of action. 76 225. Waiver and estoppel. In a monographic note in 95 Am. St. Rep. 411, it is said: "Notwithstanding some conflict in the authorities, the great weight of legal adjudication and the universal trend of modern cases firmly establish the rule that an agreement or promise, whether oral or written, by the debtor not to plead the statute of limitations, made before the expiration of the statutory period, and relied upon by the creditor, until after the statutory period has expired, operates as an estoppel in pats as against the debtor, and precludes him from interposing the defence of the statute to defeat the action." In a qualified sense this is true. When the creditor has relied upon the assurance of the debtor that he would not plead the statute of limitations to such an extent that to permit the interposition of the defence would be unconscientious, inequitable, and unjust, and would operate a fraud upon the creditor, then the courts generally hold that the debtor will be estopped to set up the defence, and so where by fraudulent representations the debtor has misled the creditor and caused him to delay instituting his action, and in some cases where the debtor has fraudulently concealed from the creditor the existence of a cause of action against him, the courts generally hold that the debtor will be estopped to make the defence of the statute. One of the most common cases arising is that where a defendant induces the plaintiff not to sue by assurances that he will settle his liability without suit, and lulls the plaintiff into inaction until after the claim is barred. The case of Ches. & Nashville R. Co. v. Speak- 74. Note, 102 Am. St. Rep. 754, 756 ff; Diuguid v. Schoolfield, 32 Gratt. 803, 809, 810; 1 Va. Law Reg. 782. 75. Shepherd v. Thompson, 122 U. S. 231. 76. 19 Am. & Eng. End. Law (2nd Ed.) 318, 319. 27 418 LIMITATION OF ACTIONS 225 man 77 is simply typical of this class of cases. There the railroad company induced an employee to refrain from suing for injuries by promising to retain him on its pay-roll, pay him for his injuries and give him a life job, which promise it ful- filled until after the period of limitation had expired, and it then discharged him and refused to pay for the injuries re- ceived. In an action against the company, the latter set up the defence of the statute of limitations, but it was held that the company was estopped to plead the statute. When the estoppel is of this nature, it may be by words or conduct, and if by words, they may be oral or written. It is the common case of estoppel by conduct. The defendant having induced the plaintiff to change his position for the worse by the representa- tion that he would not plead the statute, is not thereafter al- lowed to set up the statute against the plaintiff's claim. As to the duration of this estoppel, there is some conflict of authority, quite a number of the cases holding that the statute runs against the agreement not to plead as well as against the original cause of action, and that the effect of the agreement is simply to fix a new period from which the statute will begin to run, and this would seem to be a very reasonable conclusion, where there is nothing in the language of the agreement to indicate a differ- ent intention. If the promise not to plead the statute of limitations is not made until after the bar has fallen, then it is held by a number of courts and it would seem upon good reason, that the promise is without consideration and therefore not binding. In such case a creditor has not altered his position to his detriment in consequence of the promise, and if the promise was not en- forced he is in no worse condition than he was before it was made. If the promise not to plead the statute is made contempo- raneously with the original agreement and is part and parcel thereof, there is- no uniformity in the holdings of the courts as to what is the result. Some courts hold flatly that such an agreement is contrary to public policy and void and in con- travention of the statute which requires a new promise or an 77. 114 Ky. 628, 71 S. W. 633, 63 L. R. A. 193. 225 WAIVER AND ESTOPPEL 419 acknowledgment to take a case out of the statute of limitations to be in writing. Of course the courts entertaining this view hold that such a promise contained in the original undertaking is simply nugatory, and if made subsequent to the original un- dertaking, under such circumstances as do not amount to a fraud on the debtor, it is either of no effect at all, or else has only the effect of starting a new period from which the statute is to be computed. On the other hand, a number of courts of the highest respectability and noted for their learning, hold that an agreement by the debtor, made at any time before the debt is barred, not to plead the statute of limitations is not con- trary to public policy, is based upon a valuable consideration and estops the debtor from setting it up. While statutes of limitation, they say, are essentially statutes of repose, they were enacted for the benefit and repose of individuals. The enact- ments were dictated by public policy, but the beneficiaries are not the public as such, but individuals. The right to rely upon the statute is a privilege personal to the individual and hence he may waive it if he chooses. The privilege being personal, generally no one can plead the statute for him, nor compel him to plead it. He, however, may waive it if he chooses, and one of the commonest ways of waiving it is by a failure to plead it. If he may waive it by a failure to plead, there is no good reason why he may not waive it by an agreement to that effect. If the waiver is by agreement, then, like all other contracts, it must be supported by a valuable consideration. If made at any time before the bar has fallen, the act of the creditor in re- fraining from suing furnishes all the consideration necessary to support the agreement. The duration of the waiver is to be determined by the language of the agreement. There is no reason why the parties may not make the waiver perpetual if they choose. The policy which dictated the statutes being for the benefit of individuals and not for the public as such, such an agreement cannot be said to contravene any rule of public policy. The agreement affects the individual only and not the public. Hence there is no reason why parties may not agree not to plead the statute at any time. Statutes enacted to secure general objects of policy or morals cannot be modified by the agreement of parties, but where no principle of public policy 420 LIMITATION OF ACTIONS 225 is violated, the protection of a statute enacted for the benefit of parties may at any time be waived by the parties, and the waiver, when made, is continuous, unless by its terms it is limited to a specified time. Covenants not to sue, or not to sue for. a limited time, or except on given conditions, are up- held everywhere, and it is not perceived why a like covenant on the part of the defendant or an agreement supported by a valuable consideration, either to lengthen the running of the statute, or to suspend it, or to waive it altogether, may not be validly entered into. The waiver or estoppel is not a new promise nor an acknowledgment of a debt from which a new promise may be implied, but simply an abandonment or post- ponement of. the right to set up the statute as a defence, and hence the plaintiff must establish his demand after the waiver as well as before. The authorities on the foregoing propositions, as hereinbefore pointed out, are not altogether in harmony, and the cases are too numerous to be cited in this connection, but a fair collection of them may be found in the references given in the margin. 78 Whether the right to wafve the statute of limitations is or is not contrary to public policy has not been settled in Virginia. Here, as elsewhere, it has been held that a ''promise to settle" is not sufficient to take the case out of the statute and in effect does not amount to a waiver. 79 In Aylett v. Robinson, 9 Leigh 45, the debtor, when applied to to settle his account, replied, "I am too unwell to do business now, but when I am better, I will settle your account." This was held not to amount to a promise to pay, nor an acknowledgment of a debt. The judges delivered seriatim opinions. Judge Tucker, in the course of his opinion, in which, however, the other judges did not con- cur, uses this language: "But it is said, the promise ought to be 78. Monographic note, 95 Am. St. Rep. 411; mon. note, 63 L. R. A. 193; 19 Am. & Eng. End. Law (2nd Ed.) 123ft; Bridges v. Steph- ens, 132 Mo. 524, 34 S. W. 555; Holman v. Omaha, etc., Co., 117 Iowa 268; 90 N. W. 833, 94 Am. St. Rep. 293; Schroeder v. Young, 161 U. S. 334, 344; Burton v. Stevens, 24 Vt. 131, 58 Am. Dec. 153; State Trust Co. v. Sheldon, 68 Vt. 259, 35 Atl. 177; Cecil v. Henderson. 121 N. C. 244, 28 S. E. 481. 79. Bell v. Morrison, 1 Peters 351; Bell v. Crawford, 8 Gratt. 110. 225 WAIVER AND ESTOPPEL 421 sufficient to give a new cause of action. And so it is. The balance not being ascertained, indeed, nor the precise amount known which may be due, the plaintiff has only title to nominal damages, unless he proves the amount of his account, and to entitle him to recover at all, he must show that there is some balance at least in his favor. Suppose the defendant had ex- pressly said, 'As soon as I am well I will go into a settlement, and whatever balance appears against me, I will pay you.' Can it be doubted, that after five years from the original contract, an action would lie against him or his executor, in which the balance might be proved and recovered? I imagine not. And if so, the promise in this case gave a right of action, for a promise to settle, amounts, at the least, to an engagement to pay the balance when ascertained. I cannot make this matter plainer by argument." In Sutton v. Burruss, 9 Leigh 381, the defendant acknowl- edged the items of the plaintiff's account to be just, but said he had some offsets, and subsequently promised the plaintiff that he would settle all their differences and accounts fairly, and would not avail himself of the act of limitations, and this was held not sufficient to warrant a verdict for the plaintiff on the plea of the statute of limitations. In the course of his opin- ion in this case, however, Judge Parker said : "The promise by the defendant that he would not, after a fair settlement, take advantage of the act of limitations, could only avail the plain- tiff ( after showing that such a settlement has been made inter partcs] as a justification to the jury in implying a promise to pay the balance, without proof of an express promise. No con- sideration arises upon such a promise, until the debt is estab- lished." From this it might be inferred that if the debt were es- tablished the defendant would be bound by his agreement, but none of the judges dealt with the agreement as a waiver. Each treated it in the light of an acknowledgment or new promise, and held it insufficient as such. In Holladay v. Littlepage, 2 Munf. 316, the debtor was about to sail to Europe for an extended visit (which in fact lasted sixteen years) and it was agreed between him and his creditor that no action should be brought on the debt until his return. 422 LIMITATION OF ACTIONS 225 The agreement was upheld as valid, and the running of the stat- ute was suspended during that period. In Bowles v. Elmore, 7 Gratt. 385, the maker of a note be- came the surety of the payee on a bail bond in an action of detinue brought against him. The payee, in order to indemnify the maker against loss by reason of becoming his bail, delivered to him the note. The liability of the bail continued fifteen years. Action was then brought on the note by the payee against the maker and he relied on the statute of limitations, but the court held that the statute did not run from the time of the delivery of the note to the maker until his liability as bail ceased, and consequently upon the facts of that case, the statute of limita- tions did not apply. There was a valuable consideration for the suspension and the decision was clearly right. It was in effect an agreement that the statute should not run during the period that the liability as bail continued, so that in this case, as in the case of Holladay v. Littlepage, supra, the running of the statute was suspended by the agreement, express or implied, of the parties. If parties may make a valid agreement for the suspension of the statute for any length of time they choose, it would seem that they might abrogate it altogether. But in Liskey v. Paul, 100 Va. 764, 42 S. E. 875, it was held that a promise to settle and pay the balance found due on the settle- ment will not stop the running of the statute of limitations dur- ing the time such settlement is delayed. It was said that it was at most only a promise to pay an unascertained balance, wjiich is not sufficient. The promise in this case to settle and to pay the balance found due would seem to be in effect a promise to waive or not to plead the statute of limitations against any bal- ance that might be found due, but the reasoning of the court, and the quotation made from Sutton v. Burruss, supra, leads inevitably to the conclusion that the Virginia court regards an agreement to waive the statute of limitations as contrary to pub- lic policy and therefore void. The substance of the replication filed in this case is given in the opinion of the court, and is in effect. an estoppel to plead the statute, though it is not pleaded as an estoppel, but as an obstruction to the prosecution of the plaintiff's claim. The court said it was not an obstruction within 225 WAIVER AND ESTOPPEL 423 the meaning of the statute and hence was bad as a replication. As the facts were not formally relied upon as an estoppel, and as estoppels are required to be very precise, it is possible that the court might have taken a different view if the facts had been re- plied as estoppel. But the reasoning of the opinion can leave little room for doubt that the court regards an agreement not to plead the statute of limitations as in contravention of public policy, and therefore bad. It is believed, however, that if the promise not to plead the statute is such as would operate a fraud upon the plaintiff to allow it to be pleaded, the Virginia court will hold, with the majority of other courts, that the de- fendant is estopped to set it up. Aside, however, from estoppel on account of fraud, or prom- ises "to settle," or "to settle and pay an unascertained balance," which may not be intended to operate as a waiver of the stat- ute, there seems to be no reason of public policy or of other kind why a debtor may not in a writing evidencing a debt stipu- late that the statute shall never run against it. There is no stat- ute forbidding it, and no reason of public policy which renders the stipulation void. Equally true, if the agreement is supported by a valuable consideration, there is no reason why a debtor may not at any time, after the debt has been contracted, agree that he will not plead the statute. Such an agreement should be very clearly and distinctly proved, and the intention of the debtor to waive the statute should be very clearly manifested, but when it has been so proved and manifested, and the agree- ment is supported by a valuable consideration, there is no reason why it should not be enforced. It is not in contravention of good morals, it is no more burden upon the courts than a re- fusal to plead the statute would be, and there is no reason of public policy which forbids a debtor to waive a statute enacted for his benefit when to be available he must positively claim it. The statute of limitations is not self-operative. It is a privi- lege extended to those who choose to avail themselves of its benefit. It is not forced upon the debtor. It is a shield erected, behind which the debtor may step, if he chooses to seek protec- tion from his creditor, but behind which no one as a rule, can compel him to step, and no honest man, admitting a just lia- bility, will step. Such a statute can hardly be said to render void 424 LIMITATION Of ACTIONS 226-227 all agreements not to plead it. The right to plead it would seem, therefore, to be a personal privilege which the debtor may waive if he chooses, and which he may waive as well before action brought as after. He may waive it for a limited time, or for all time. The duration of the waiver will be determined by the facts of the particular case. Where no question of fraud or in- justice is involved, probably by the analogy to the statute re- quiring a new promise or acknowledgment to be in writing, and for like reasons, the waiver should be in writing, but the right to make the waiver seems not to be denied by any statute, nor forbidden by any rule of public policy. As hereinbefore pointed out, however, there is much conflict of authority on this subject. 226. Burden of proof. In Virginia the burden of proof is on the party pleading the statute, but elsewhere the authorities are conflicting. 80 227. Appeal and error. It is held in some States that the statute of limitations must be pleaded in bar of an appeal or writ of error, 81 but in Virginia the practice is to move to dismiss the appeal or writ of error be- cause not granted within the time prescribed by law. 82 In fact the court is without jurisdiction to grant an appeal or writ of error after the expiration of the statutory period, and if one is inadvertently granted, the court, upon discovery of the fact, will dismiss it ex mero motu. 80. Goodell v. Gibbons, 91 Va. 608, 1 Va. Law Reg. 340, and note, 22 S. E. 504; Coles v. Martin, 99 Va. 223, 37 S. E. 907; Green v. Dodge (Vt.), 64 Atl. 499; 13 Am. & Eng. Encl. Law (2nd Ed.) 771. 81. 13 Encl. PI. and Pr. 187. 82. Bull v. Evans, 96 Va. 1, 30 S. E. 468. CHAPTER XXIX. PAYMENT. 3J8. What constitutes payment. Voluntary payments. 229. Application of payments. 830. Plea of payment. Form of the Plea. Code states. Payment and set-off distinguished. 228. What constitutes payment. Payment in a general sense is the discharge of a pecuniary obligation of a debtor by the delivery of money, or anything that is accepted as such, to the creditor or his agent. It generally means the discharge of a pecuniary obligation. It involves two elements, the tender of the amount due by the debtor and its acceptance by the creditor. Payment can only be made by a party who, or whose property, is in some way liable for the debt, or by the agent of such party, and it must be made to the creditor or his agent. If there is more than one payee, payment to any one will discharge the entire debt, unless otherwise stip- ulated. One cannot make himself the creditor of another by vol- untarily paying that other's debt without request from him, but the same result is often practically accomplished indirectly. The manner in which this is done is clearly pointed out by the learned Judge Green, of West Virginia, as follows i 1 "1. A stranger who pays the debt of another without his re- quest or authority cannot sustain a suit against the debtor un- less he has ratified the act of the stranger by promising to repay him, or in some other manner. "2. If such payment by a stranger is neither authorized nor ratified by the debtor, it will not be held to be a discharge of the debt. "3. If such payment by a stranger is neither authorized nor ratified by the debtor, the stranger may sue the debtor at law in 1. Neely v. Jones, 16 W. Va. M5. 426 PAYMENT 228 the name of the creditor for his own use; but the debtor may by pleading or relying on the payment of the stranger ratify it, and such ratification being the equivalent of a previous request, the debt will be thereby discharged, and the debtor will be liable to be then sued by the stranger for money paid for him at his request. "4. A stranger who pays a debt without the request or au- thority of the debtor, when the payment is not afterwards rati- fied, may, if he chooses, bring a suit in equity stating this fact, and praying that if the payment be not ratified by the debtor, the debt may be enforced in his favor as the equitable owner thereof, or, if the payment be not ratified by the debtor, that the court will decree to the stranger the repayment of the amount so advanced by him for the use of the debtor; and the court will give the one relief or the other prayed for. "5. The stranger, when he pays the amount of the debt to the creditor, may, without the consent of the debtor, take an assignment of the debt and enforce it against the debtor; and if, when he pays the amount, it is agreed between the creditor and him that the creditor will assign him the debt, though no actual assignment be made, the stranger will be regarded as the equi- table assignee of the debt, and the transaction will be considered equivalent to the purchase of the debt. "6. If a sheriff who has had, or who has, an execution in his hands, pays the debt to the creditor, whether he takes an as- signment of the judgment or not, he will have the same rights and remedies against the debtor that a mere stranger would have.. But quccre : Does not public policy forbid that such sheriff should have the same rights and remedies as against sub- sequent judgment creditors who have acquired liens on the debtor's lands, or against a purchaser of such lands for valuable consideration without notice that the sheriff set up such a claim?" If the payment made by a stranger is ratified by the debtor, then of course the debt is paid, and all securities therefor are released. The original debt is gone, but the ratification makes the payment one by request, and the stranger may sue in as- sumpsit as for money paid on request, but he gets no benefit of the securities (judgment or otherwise) held by the original cred- 228 WHAT CONSTITUTES PAYMENT 427 itor. If the payment is not ratified, but repudiated, the stranger, under the conditions stated in paragraph (5) above mentioned, takes the place of the original creditor and gets the securities held by him for the original debt. 2 As between a stranger and a debtor, a payment by the stranger which is neither authorized nor ratified by the debtor does not discharge the debt, 3 but as between the original creditor (who has received payment and sat- isfaction of his debt from a stranger) and the debtor, in an action by the former against the latter, while there is much conflict of au- thority, it would seem that the debtor can plead that the debt has been satisfied, and thereby ratify the payment. In other words, the creditor having received payment from any source cannot call on the debtor to repay the debt. 4 "A third person who is under no obligation to pay the debt of another cannot, without his request, officiously pay that other's debt and recover of the debtor the amount so paid, where the debtor whose debt is paid does not ratify the payment; and the better doctrine seems to be that though the debtor takes ad- vantage of the payment of his debt by a third person who is under no obligation to pay it and who does so without the debt- or's request, express or implied, such third person acquires no right against the debtor for reimbursement," 5 but this difficulty is generally avoided in the method hereinbefore pointed out. Part payment of a money demand, though accepted in full, was not good at common law, unless there was a release under seal, or the evidence of the debt was surrendered for cancella- tion, which was said to be equivalent to a seal. In the case of such part payment it was said that there was no consideration for the promise not to collect the residue of the debt. So, also, at common law, the creditor could not compound or compromise with a joint contractor or co-obligor and release him from lia- bility on his contract without releasing the other joint contract- ors or co-obligors. In Virginia, by statute, a part payment of a money demand, when accepted by the creditor in satisfaction, 2. Neely v. Jones, supra. 3. Neely v. Jones, supra. 4. Crumlish f. Central Land Co., 38 W. Va. 390, 396, ff, 18 S. E. 456. 5. 22 Am. & Eng. Encl. Law (3d Ed.) 537. 428 PAYMENT 228 is good without any new consideration, 6 and a creditor is al- lowed to compound or compromise with any joint contractor or co-obligor and release him from all liability on his contract or obligation, without impairing the contract or obligation as to the other contractors or co-obligors, 7 but when the compromise is made, the contract or obligation is to be credited with the full share of the party released, except where the compromise is with a surety or co-surety, and, in that case, as between the creditor and the principal, the credit is only for the sum actually paid by the compounding debtor. 8 Payment in counterfeit money is no payment, but if made, the payee must use due diligence to ascertain the character of the money, and when found to be counterfeit give notice thereof to the payer, or else he will be concluded by the payment. 9 A payment to an assignor before notice of the assignment is a good payment, and may be pleaded in bar ; and so likewise a payment to a creditor before notice of an execution against him is good, but it is not good if made after notice of such execution. 10 A check or draft is generally a conditional payment only, but if the money is lost by failure to present in due time the loss falls on the creditor. Of course, a check or anything else may, by agreement of the parties, be accepted as payment. 11 Bills, notes, or bonds of the debtor are generally conditional payments, or collateral, only. They are not payments unless so agreed, and may be returned, and an action may be brought on the original cause of action. 12 If it is agreed between the parties that the note of a third person may be taken for a debt, and such note is so given and received, it will be a payment of the debt. 18 The note of a debtor does not operate as a payment of an antecedent debt, unless so intended by the parties. In the 6. Code, 2858. 7. Code, 2856. 8. Code, 2857. 9. Pindall v. Northwestern Bank, 7 Leigh 607; 22 Am. & Eng. Encl. Law (2d Ed.) 550. 10. Code, 3601. 11. Blair v. Wilson, 28 Gratt. 165. It. Benj. on Sales, 699 to 701. IS. Dryden v. Steven, 19 W. Va. 1. 228 WHAT CONSTITUTES PAYMENT 429 absence of such intention, express or implied, the note is treated as a conditional payment merely. If the antecedent debt has passed into judgment, the same rule applies. The new note is considered simply as a conditional satisfaction of the judgment and upon the dishonor of the former the latter revives and may be enforced at law or in equity. If the note, however, is ac- cepted in satisfaction of the judgment, it is presumed, in the absence of evidence to the contrary, that it was accepted in sat- isfaction of the debt represented by the judgment. It is not essential that any particular form of words be used such as "full satisfaction" or "absolute payment," but any language will be sufficient which, under the circumstances, plainly indicates the satisfaction of the debt. 14 Whilst the mere taking of a negoti- able security, payable at a future day, does not, unless so agreed, operate as a payment of an antecedent debt, it does operate to suspend the right of action on the original demand until the ma- turity of the bill or note. It is a conditional satisfaction as to the principal, and as to the surety it is absolute unless it plainly appears that the parties intended otherwise. 16 But if the note be that of a third person, the taking of such new note and the surrender of the old will be treated prima fade as a discharge of the old note and the release of the maker from personal li- ability, and if the old note was secured by a lien on land, the pay- ment of which such third person has assumed, the lien on the land will not be released although the original debtor be dis- charged. 1 * It is said that a sale for cash cannot be settled by a set-off against the vendor; 17 but on this point there is conflict of au- thority. Payment by mail or in any other indirect way, unless authorized expressly or impliedly, is at the risk of the payer. Voluntary Payments. The mere fact that at the time of pay- ment a protest is entered and notice given of intention to sue to recover the money back is unavailing. In order to render the 14. Morris v. Harveys, 75 Va. 726. 15. Callaway v. Price, 32 Gratt. 1. 16. Hess v. Still, 23 W. Va. 90. See, as to what constitutes a nova- tion of a debt, Beantz v. Basnett, 12 W. Va. 772. 17. Benj. on Sales, 702. 430 PAYMENT 229 payment compulsory so as to allow a suit to recover it back, the compulsion must have been illegal, unjust or oppressive, and usually the payment must have been made to emancipate the per- sonal property of the payor from a duress illegally imposed upon it by the party to whom the money is paid, or to prevent a seizure by a party armed with apparent authority to seize the property. 17 * Payments are generally presumed to have been voluntary. 18 If there is in fact, illegal compulsion formal protest is unnecessary. 229. Application of payments. When a debtor makes a payment he may direct its application as he sees fit. If he fails to exercise the right the creditor may then make the application, and if neither makes the application, it becomes the duty of the court to so apply the payment as a sound discretion under the circumstances may dictate, and in the exercise of this discretion the interests of the debtor and cred- itor are alone to be considered. Even sureties have no advan- tage in this particular. Where the creditor had two claims against the debtor, the one secured and the other not, and a payment has been made which neither the debtor nor the creditor has applied, and the court is called upon in the exercise of its discretion to make the application, and there is no other fact or circumstance upon which the court can lay hold to guide and direct its discretion, the payment will be appropriated to that debt which is least secured, 19 that is, in the interest of the cred- itor. It is said that this is no hardship on the debtor as he owes both debts, and ought to pay both. Many courts, however, fol- low the rule of the civil law and apply the payments in accord- ance with the presumed intention of the debtor, that is, in the way most beneficial to him. Others following, it is said, a strict 17a. Va. Brewing Co. v. Com., 113 Va. 145, 73 S. E. 454. 18. 22 Am. & Eng. End. Law (2nd Ed.) 613; Phoebus v. Manhattan Club, 105 Va. 144, 52 S. E. 839. 19. Pope v. Transparent Ice Co., 91 Va. 79, 20 S. E. 940; Sipe v. Taylor, 106 Va. 213, 55 S. E. 542. In Magarity v. Shipman, 82 Va. 784, 1 S. E. 109, the secured debt was undisputed, the oldest in point of time, and carried a higher rate of interest than the unsecured debt, and the payment was therefore credited by the trial court to the secured debt, and this application was affirmed on appeal. 230 PLEA OF PAYMENT 431 construction of the common law, apply the payments as above indicated in favor of the creditor. 20 Where there is but a single debt, upon which partial payments have been made, in those jurisdictions which do not allow inter- est upon interest, the interest should be computed on the princi- pal debt up to the date when the partial payment or payments equal or exceed the interest due. The payment or payments should then be deducted from the aggregate of the principal and interest, and thereafter interest calculated only on the remain- ing principal. Where the payment does not amount to as much as the interest, then accrued interest on the first principal should be calculated up to the time when the aggregate of the partial payments equal or exceed the amount of interest due when the payment is made, which, with the prior payments, equals or ex- ceeds the accrued interest, and such aggregate of payments should then be deducted from the sum of the original principal and accrued interest, and the balance found due will constitute the new principal upon which interest is to be calculated. The principal can never at any time be larger than what it was after payments were deducted from principal and accrued interest to a given date. Where there have been partial payments and the parties undertake to settle the amount due the creditor, it is error to. calculate the interest on the principal up to the time of settlement and interest on the different payments up to that time and subtract one from the other. 21 If payments are made on a running or continuous account, and no application has been made by either the debtor or the creditor, the law applies the payment to the oldest items of the account. 22 230 Plea of payment. Payment is a special plea, not amounting to the general issue, 20. 2 Am. & Enc. Encl. Law (2nd Ed.) 454-5 and cases cited. 21. 16 Am. & Eng. Encl. Law (2nd Ed.) 1036, and cases cited; Fulz 7-. Davis, 26 Gratt. 903; Peyson v. Myers, 138 N. Y. 599, 32 N. E. 699; Story v. Irvington, 13 Pet. 359. 22. Smith v. Loyd, 11 Leigh 512; Chapman v. Comth., 25 Gratt. 721; Rowan r. Chenoneth, 55 W. Va. 325, 47 S. E. 80; Peale v. Grossman . E. 1057. 7. Tompkins r. Burgess, 2 W. Va. 187; Dimmey r. Wheeling R. :o.. 27 W. Va. 32. 464 CONTINUANCES 243 pected to be proved by the absent witness can be proved by an- other witness who is present. 8 Sometimes, however, the char- acter of the witness himself, or of the other witnesses, or the number of contradicting witnesses on the other side, may dis- pense with this requirement, as when the absent witness is a man of very high character and well known, and the other wit- nesses who know the same facts are Indians or negroes, or when the absent witness is one of several attesting witnesses to a paper the execution of which is disputed, or in matters of character. (c) Use of due diligence to procure the zvitness or to get his evidence. It is generally sufficient to show that a subpoena was issued for the witness in due time and has been returned ex- ecuted, or, if not returned executed, that it was placed in the hands of the officer in ample time for service, and that the party himself is in no fault. If the materiality of the witness has been shown, it would be good ground for a continuance, if the party could show that he had made diligent search for the witness and had been unable to find him, but that there was reasonable probability of being able to have him present at another term if the case were continued. 9 A witness is not compellable to at- tend unless there is paid or tendered to him when summoned, if he demands it, allowance for one day's attendance and his mileage. 10 A party will not be deemed to have exercised due diligence unless he has paid or tendered to the witness his mile- age and attendance, if demanded before trial. 11 8. Scott v. Boyd, 101 Va. 28, 42 S. E. 918. 9. Foushee v. Lea, 4 Call 279; Deford v. Hayes, 6 Munf. 390; B. & O. R. Co. v. Wightman, 29 Gratt. 431; Matthews v. Warner, 29 Gratt. 570; Hewitt v. Comth., 17 Gratt. 627. 10. Code, 3354. In Virginia the amount of attendance is 50c a day, and the mileage is 4c per mile for each mile over 10, going and coming, the same amount each way. Code, 3549. 11. The first process to obtain the attendance of the witness is a subpoena. When this is executed the witness may demand mileage and attendance. If the process is returned duly executed, and the witness fails to attend, the court may award a rule against him to show cause why he shall not be fined and attached for his contempt. This is a proceeding by the court to enforce obedience to its process, and no mileage or attendance is required to be tendered. If the wit- 243 CAUSES FOR CONTINUANCE 465 (d) Reasonable probability that the witness can be had at another trial. Unless such reasonable probability exists, there will be no reason for continuing the case on account of the ab- sence of the witness, as a party would be in no better fix at the next term, hence it is always necessary to show that it is prob- able that the witness or his evidence can be had at the next terra. If an absent witness is a non-resident, and so not amenable to the jurisdiction of the court, and especially if he is in the em- ployment of the applicant for the continuance, it is not error to refuse a continuance on account of his absence after the party has had an opportunity to secure his presence. 12 In Virginia, if a witness be more than one hundred miles from the place of trial, his deposition may be taken and read in an action at law, but the trial court may, for good cause shown, compel his at- tendance in person. This cause may be shown by either party. 13 It is not the practice in Virginia to require the applicant to state what he expects to prove by the absent witness, unless the court doubts the motives of the applicant, and suspects that the object of the motion is merely to obtain delay. 14 In West Vir- ginia, however, it is expressly provided by statute that if a mo- tion is made for a continuance on the ground of the absence of a material witness, an affidavit must be filed, if required by any party opposing, setting forth, in addition to other matters re- quired in order to obtain a continuance, the name of the witness and the testimony he is expected to give, and the affiant must, if required by the opposing party, submit to cross-examination in open court upon the matters set forth in his affidavit. 15 The current of authority elsewhere seems to hold that the court may, ness fails to appear in answer to the rule which has been executed upon him, then the court may issue an attachment directing the sheriff to arrest the witness and bring him into court. This, too, is a process to enforce obedience to the court's order, and no mileage or attendance is required to be tendered to the witness. 12. Fire Assn. v. Hogwood, 82 Va. 342, 4 S. E. 617. 13. Code. 3365. 14. Hewitt T-. Com., 17 Gratt. 627; Harman r. Howe, 27 Gratt. 676. 686-7. 15. Code, W. Va., 3976. -30 466 CONTINUANCES 243 in the first instance, require the applicant to state what he ex- pects to prove by the absent witness. 16 3. The absence of papers necessary to a party's action or de- fence stands on practically the same footing as the absence of a witness. 4. Surprise. Surprise at the trial, without negligence on the part of the party or his counsel, is a ground for continuance. It has been held that where the wrong witnesses were sum- moned by mistake, but the mistake was not discovered until too late to correct the error, it was good ground for a continu- ance, where the court was satisfied that it was an honest mis- take on the part of the applicant's counsel; 17 but where the is- sue had been made up in a personal injury case at one term of the court, and no bill of particulars of the plaintiff's claim was required until the next succeeding term, the action of the trial court in refusing a continuance for the defendant on the ground of surprise at the elements of damage claimed by the plaintiff was approved by the Court of Appeals, at least it was held that the appellate court could not say that the action of the trial court was erroneous. It would seem in this case that the de- fendant was negligent in not having asked for the bill of par- ticulars at an early date. 18 Parol stipulations of counsel will not be regarded by the courts, but if they work a surprise, it may be good ground for a continuance. 19 5. Absence of counsel. The absence of the leading counsel in a case by reason of sickness has been held good ground for a continuance, 20 and so of the sole counsel where there has not been sufficient opportunity to employ other counsel. Of course the rule would not apply in case of the protracted illness of the counsel, with no probability of his being able to be present. 21 It has likewise been held that a party is entitled to a continu- 16. 4 Encl. PI. & Pr. 884; Abbot's Trial Brief 25, 32. 17. Myers v. Trice, 86 Va. 835, 11 S. E. 428. 18. N. & W. Ry. Co. v. Spears, 110 Va. 110, 65 S. E. 482. 19. Spilman v. Gilpin, 93 Va. 698, 25 S. E. 1004; Collier v. Falk, 66 Ala. 224; 4 Encl. PI. & Pr. 831. 20. Myers v. Trice, supra. 81. 4 Encl. PI. & Pr. 840; Abbott's Trial Brief 17. 243 CAUSES FOR CONTINUANCE 467 ance by reason of the absence of his counsel in an adjoining cir- cuit, in attendance upon a trial under a prior engagement, when there was no want of diligence on the part of the applicant; 22 but if the trial court refuses the continuance on account of the absence of one of the counsel, and other counsel are present and conduct the case, the appellate court will not for this cause set aside the judgment, where it does not appear that there was any mismanagement or mistake on the part of the applicant's counsel who conducted the defence, nor that any injury resulted to the applicant by reason of the absence of one of the counsel. 23 6. Absence of a party. This is not per se ground for a contin- uance, but if he is a witness, he stands as any other witness, ex- cept, perhaps, it would not be necessary to show that he had been summoned. If his presence as a witness is needed, and from sickness, or other good cause, he is unable to attend, and it ap- pears that he has been diligent in the preparation of his case and expected to appear to testify, it is good ground for a con- tinuance. 24 7. Change in the pleadings. Any change which materially affects the issue to be tried and necessitates evidence not before required would justify a continuance, otherwise not. 25 If there is a variance at the trial between the allegation and the proof, and the party is allowed to amend his pleadings to fit the proof, it is good ground for a continuance, if the amendment is ma- terial and it would prejudice the other party to be compelled to go on with the trial. 26 8. Failure to serve process. In case of a joint tort in those jurisdictions where a judgment against one tort feasor merges a cause of action, or of a joint contract where the same result would follow, failure to serve process, without fault of the plaintiff, is good cause for continuance. Generally, where the 22. Rossett v. Gardner, 3 W. Va. 531. See, also, Wise v. Com., 97 Va. 779, 34 S. E. 453. 23. Va. Iron Co. v. Kiser, 105 Va. 695, 54 S. E. 889. 24. Carter v. Wharton, 82 Va. 264; Abbott's Trial Brief 14. 25. Travis v. Peabody Ins. Co., 28 W. Va. 583. 26. Code, 3384. 468 CONTINUANCES 244-245 party has done all that is required of him and the fault is with a public officer, there is good ground for a continuance. Motions for continuances may be supported by affidavits or depositions, or by the examination of parties or witnesses in open court, and the motion may be Resisted by like evidence. By professional courtesy counsel are generally not required to be sworn; their verbal statements being accepted as if sworn to, but this is not obligatory on the opposite party, his counsel, or the court. In order to speed the hearing of causes and prevent the trial courts from continuing them on the docket without good cause, it is provided by statute in Virginia that "any party asking the court to hear a case may, if the court refuses to hear it, have his application spread upon the record with a statement of the facts in relation thereto." 27 This statute is a dead letter, and it is not believed that any case has ever arisen under it. 244. Refusing a continuance. Refusing a continuance when it should have been granted is good ground for reversal. Generally, a court will refuse a con- tinuance where the opposite party will admit (not the truth of what the witness would state) but that if the absent witness were present, he would state what the applicant says he can prove by him, and so it would be refused if it could be shown that the absent witness had no such knowledge as was imputed to him, or was not material, and the like. But an appellate court will not reverse the ruling of the trial court on a motion for a con- tinuance unless such ruling appears to have been plainly wrong and may have resulted in material injury to the applicant. 28 245. Cost of continuance. The question of the cost of continuances usually rests in the discretion of the trial court, but costs are generally awarded 27. Code, 3380. 28. Harman v. Howe, 27 Gratt. 676, Va. Rep. Anno.; Means v. Bank of Randall, 146 U. S. 620; N. & W. Ry. Co. v. Spears, 110 Va. 110, 65 S. E. 482. 245 COST OF CONTINUANCE 469 against the applicant when the motion is allowed. If the con- tinuance is general, that is, by consent of both parties, the costs abide the final determination of the cause, and are given in favor of the party in whose behalf the judgment is rendered. In Virginia the cost of continuances is placed largely in the dis- cretion of the trial court. 29 29. Code, 3541. CHAPTER XXXII. JURIES. 246. Who are competent to serve. 247. Qualifications of jurors. Selection of jurors. 248. Objections to jurors. Challenges. 249. Special juries. 250. Oath of jurors. 251. Trial by jury. 252. Custody and deliberations of the jury. Disagreement of tfte jury. 853. Misconduct of jurors. 246. Who are competent to serve. This is, of course, purely statutory. In Virginia all male citi- zens over twenty-one years of age, who have resided in the state two years, and in the county, city or town in which they reside one year next preceding their being summoned to serve, and who are in other respects competent, are qualified to serve as jurors, except: (1) Idiots and lunatics; (2) persons con- victed of bribery, perjury, embezzlement of public funds, trea- son, felony, or petit larceny. No male person, however, over sixty years of age can be compelled to serve as a juror. Of those competent to serve, many are for various reasons exempt from service if they choose to rely upon the exemption. 1 All persons while actually engaged in harvesting, or securing grain or hay, or in cutting or securing tobacco, are exempt from serv- ice, so also are licensed undertakers. Officers, soldiers, sea- men, and marines are not considered residents for the purpose of jury service merely because stationed in the state. 2 The right "to vote and hold office" is no longer a test of qualification. 247. Qualifications of jurors. Jurors must be physically able to see, and to hear and com- 1. Code, 3140. 2. Code, 3139, 3140, 3140a, 3141. 248 OBJECTIONS TO JURORS 471 prebend the evidence and the instructions, and must be disinter- ested. In an action to which a corporation is a party, a juror who has shown on his voir dire that he is in other respects qual- ified cannot be asked whether he is prejudiced against corpora- tions. 3 While a juror is not competent to sit in a case in which he has any interest, or is related to either /party, or has formed or expressed any opinion, or is sensible of any bias or prej- udice, the mere fact that he is indebted to one of the parties does not render him incompetent to sit, nor does the fact that one of the parties to the case being tried is the family physician of the juror render him incompetent to sit, where it appears from his statement on his voir dire that the relationship will not influence his verdict. 4 It is provided by statute in Virginia that the court shall, on motion of either party to a suit, examine a juror when called to ascertain whether any of the above ob- jections do exist. 5 In Virginia, a person who has any con- troversy which has been or is expected to be tried at a term of the court is incompetent to serve as a juror at that term. 6 Selection of jurors. Those who are to serve as jurors for the year are required to be selected annually between January 1 and July 1 by the judge of the Circuit or City Court, as the case may be. The names are written on slips, folded and put into a box provided for the purpose, and are drawn out under the direction of the court, or judge from time to time during the year as their serv- ices are needed. The writ used for summoning a jury is called a venire facia-s, and the jury itself is often spoken of as the rcnlrc. If a sufficient number qualified to serve do not attend, or for any cause there is a deficiency of qualified jurors others of like qualifications (talesmen} may be obtained by another rcnire facias. 248. Objections to jurors. Xo exception to any juror on account of his age or other 3. Atlantic & D. R. Co. r. Reiger, 95 Va. 418. 28 S. E. 590. 4. Richardson r. Planters' Bank, 94 Va. 130. 26 S. E. 413; Ches. & O. Ry. Co. r. Smith. 103 Va. 326, 49 S. E. 487. 5. Code, 3154. 6. Code. 3165. 472 JURIES 248 legal disability will be allowed after he is sworn, except by leave of the court, though the exception would have been good if made in time. 7 Exceptions to competency of jurors should be made before they are sworn. 8 The grounds of disqualification, such as -prejudice, relationship, etc., may be disclosed by examining the juror on his voir dire (a special oath administered to the juror to make true answer to such questions as shall be pro- pounded to him), or it may be shown by extraneous evidence. 9 The objection comes too late after the juror is sworn, except by leave of the court, and is certainly too late after verdict, save in very exceptional cases. It is provided in Virginia that no irregularity in any writ of venire facias, or in the drawing, sum- moning, returning or empanelling of the jurors shall be suf- ficient to set aside a verdict unless the party making the ob- jection was injured by the irregularity, or the objection was made before swearing the jury. 10 Writs of venire facias, how- ever, are not properly parts of the record unless made so by a bill of exception, or otherwise. 11 Challenges. Challenges of jurors may be (1) peremptory or (2) for cause, and the latter may be (a) a principal challenge; that is, for a cause which per se (as a matter of law) disqual- ifies, or (b) to the favor; that is, which raises some question of fact which may or may not disqualify ; e. g., bias, prejudice, etc. The following are held good grounds for challenging: Bias, prejudice, relationship, interest, dependence, formation of decided opinions, and the like. The interest which will dis- qualify must be in the results of the particular case, and not merely in the legal questions involved. Relationship at common law must be within the ninth degree, counting from the juror back to a common ancestor, and then down to the party, reck- oning one for each except the common ancestor. The relation- 7. Code, 3155; Hile v. Com., 96 Va. 489, 31 S. E. 895; Suffolk v. Parker, 79 Va. 660. 8. Parsons v. Harper, 16 Gratt. 64; Code, 3156. 9. Code, 3154. 10. Code, 3156; Charlottesville v. Failes, 103 Va. 53, 48 S. E. 511. 11. Spurgeon's Case, 86 Va. 652, 10 S. E. 979; Jones' Case, 100 Va. 842, 848, 41 S. E. 951. 249-250 OATH OF JURORS 473 ship may be by consanguinity or affinity. 12 Citizens of a county or town cannot serve in a case where the county or town is in- terested, nor stockholders where the corporation is interested. Jurors in Virginia are not generally interrogated as to their qual- ifications except upon application therefor, or suggestion of dis- qualification ; but the rule is otherwise in many states. Where the jury is to contain seven, plaintiff and defendant are each en- titled to one peremptory challenge, 13 that is to strike off one without assigning any reason therefor. 249. Special juries. A special jury may be allowed by any court. The court di- rects such jurors to be summoned as it shall designate for the purpose, and from those summoned a panel of twenty qualified jurors is made, from which sixteen are drawn by lot. Then the plaintiff and defendant, or their counsel, alternately (begin- ning with the plaintiff) strike off one until the number is re- duced to twelve, who shall compose the jury for the trial of the cause. 14 If parties or their counsel fail or refuse to strike the required number from the sixteen to reduce it to twelve, the jury of twelve is obtained from the sixteen by lot. 15 The stat- ute provides for the sixteen to be chosen from the panel of twenty by lot, but, if from the panel of twenty, four are drawn out by lot, this makes the sixteen selected by lot, and is a com- pliance with the statute. 16 * 250. Oath of jurors. Where an issue, or issues, have been made in a civil case, the jury are sworn to well and truly try the issue, or issues, joined between the plaintiff and the defendant, and a true verdict render according to the evidence. If no issues have been made, and the jury are simply executing a writ of inquiry, the oath 12. Doyle v. Com., 100 Va. 808, 40 S. E. 925. 13. Code, 3154. 14. Code, 3158. 15. Code, 3158. 16. Duke r. N. & W. Ry. Co., 106 Va. 152, 55 S. E. 548. 474 JURIES 251 administered is that they will diligently inquire of the damages sustained by the plaintiff by reason of the matters and things in the declaration mentioned. It sometimes happens that a jury is sworn to try the issue, or issues, when in fact no issue has been joined, usually in consequence of oversight on the part of one of the parties to join issue on some pleading that has been filed. It has already been pointed out 17 that the verdict of the jury in such case will not be set aside if the court can see that no injury could have resulted from the omission to take issue on a pleading. It is there stated that "the disposition of the courts in modern cases is to disregard mere technical objections which have occasioned no injury, and, where they can see that no injury has resulted to a party from the omission to join is- sue on a pleading, they will disregard the defect, and proceed to judgment on the merits of the case. Under such circumstances they hold the party to be estopped from setting up the technical objection of the want of issue for the first time in the appellate court." The same rule, for a like reason, should be applied in the trial court as in the appellate court when the objection is raised for the first time after verdict. 251. Trial by jury. The constitution of Virginia 18 provides that "in controver- sies respecting property and in suits between man and man, trial by jury is preferable to any other and ought to be held sacred." This is regarded as mandatory, but is not applicable to that class of cases where no jury was allowed at the time the provision was first adopted. 19 The constitution preserves the right of jury trial where it existed when the constitution was first adopted, but does not confer it in any case not expressly mentioned, and hence the right to demur to the evidence, as here- inafter pointed out, 20 has not been taken away. 21 The pro- 17. Ante, 207. 18. Va. Constitution, 1902, 11. 19. Pillow v. Southwest Va. Imp. Co.. 92 Va. 144, 23 S. E. 32. 20. Post, 256. 21. Reed & McCormick v. Gold, 102 Va. 37, 45 S. E. 868; Lynchburg Milling Co. v. Bank, 109 Va. 639, 64 S. E. 980; Meade ?.-. Meade, 111 Va. 451, 69 S. E. 330. 252 CUSTODY AND DELIBERATIONS OF THE JURY 475 vision of Amendment VII to the Constitution of the United States which grants a trial by jury "in suits at common law" in- volving over $20 applies only to the federal courts. A common law jury was a jury of twelve, but by the Vir- ginia constitution 22 you may have a jury of not less than seven in cases not cognizable by a justice of the peace at the time the constitution was proclaimed, or not less than five in cases so cognizable. Provision is also made for a jury of three, by con- sent of parties entered of record, each party to select one, and they to select the third, and it is provided that any two con- curring shall render a verdict in like manner and with like effect as a jury of seven. The jurors so selected are required to be persons who are eligible as jurors. 23 It is also provided by statute in Virginia : 24 "In any case, unless one" of the parties demand that the case be tried by a jury, the whole matter of law and fact may be heard and determined and judgment given by the court ;" and a similar provision is made as to proceedings by motion. 25 It will be observed that the court is to try the case unless a jury is demanded, but if either party demands it, he is entitled to it. 252. Custody and deliberations of the jury. Jurors are not generally required to be kept together in civil cases, though for good cause the court might probably require it. During the progress of the trial they may be adjourned from time to time in the discretion of the court, but always with the admonition that they are not to speak to any one, nor permit any one to speak to them on the subject of the case they are considering. A violation of this admonition would be a contempt of court, and, if the conversation were with a party to the litigation touching the subject of the controversy, would generally be good ground for a new trial. It is provided by statute in Virginia that papers read in evidence, though not un- 22. Va. Constitution, 1902, 11. 23. Code, 3166. 24. Code, 3166. 25. Code. 3213. 476 JURIES 252' der seal, may be carried from the bar by the jury, 26 and it has been held that a deposition which has been read to the jury may be taken with them in their retirement, if what is objection- able in it has been erased. 27 A similar statute exists in West Virginia, declaring that "depositions or other papers read in evidence, may, by leave of the court, be carried from the bar by the jury." 28 It has been held, however, under this section, that depositions read in a trial at law by a jury cannot be car- ried out by the jury to be considered when deliberating on the case, except by leave of the court. 29 It was formerly held that the jury could take with them only such evidence as was under seal, but it is now generally held that all papers and documents given in evidence may properly be allowed to go to the jury, except that in some jurisdictions the depositions of witnesses are excluded, though it would seem that, even as to depositions, in the absence of statute, the question rests largely in the dis- cretion of the trial court. 30 Disagreement of the jury. Formerly, when the jury re- turned into court and reported their inability to agree, one of the jurors was withdrawn by consent of the parties and thereby the panel was broken, and the rest of the jury from rendering a verdict were discharged, which, of course, operated a continuance of the case. If the parties refused to consent to the withdrawal of a juror, the jury was adjourned from day to day until they agreed, or until the par- ties consented to withdraw a juror, or until the end of the term,, when the jury was discharged of necessity. 31 The entry made upon withdrawal of a juror was: "A. B., one of the jurors, is, by consent of the parties and for reasons appearing to the court, ordered to be withdrawn, and the rest of the jury from giving their verdict are discharged." This practice is still sometimes observed where consent to withdrawal is given, but the better practice would seem to be simply to discharge the jury when 26. Code, 3388. 27. Hansbrough v. Stinnett, 25 Gratt. 495. 28. W. Va. Code, 3982. 29. Graham v. Cit. Nat. Bank, 45 W. Va. 701, 32 S. E. 245. 30. 12 Encl. PI. & Pr. 590, ff. 31. 1 Rob. Pr. (old) 354. 252 CUSTODY AND DELIBERATIONS OF THE JURY 477 they were unable to agree without going through the outworn formality of withdrawing a juror. Indeed, the court has said that it is improper for a trial court to make threats of keeping a jury until the end of the term, or to use any species of coer- cion to force a verdict, and that it is the safer and better prac- tice to refrain from any expression of opinion which may be claimed to savor of threat or coercion as to the time the jury will be kept together if a verdict is not sooner rendered. 32 Sometimes a party may, without fault on his part, be taken by surprise in the midst of a trial, under such circumstances as that to compel him to proceed further with the trial would be a manifest injustice, and do. him serious or irreparable wrong. When the plaintiff finds himself in this position, it is always per- missible to him, at any time before the jury retire to consider of their verdict, to suffer a non-suit, and so prevent the injury which he would otherwise sustain. Such non-suit does not pre- vent a new suit for the same cause of action. If, however, by compelling him to institute a new action, his claim would be barred by the statute of limitations, the court may for good cause reinstate the action after the non-suit and thus preserve the continuity of his original action. The defendant, however, does not occupy so advantageous a position. He cannot suffer a non- suit, but if the case is one of genuine surprise, without fault on his part, and presents a situation where it would be unjust and unfair to compel him to proceed with the trial, it would seem that the trial court is invested with discretion to discharge the jury and continue the case until another term. There is no direct decision in Virginia to this effect, but it has been held that if a party, pending the trial, discovers an important witness that he did not know of before, and is without negligence in the premises, he should bring the matter promptly to the atten- tion of the trial court, and ask to have the case delayed until the attendance of the witness can be procured, and that, failing to do this, he cannot make a motion after verdict for a new trial on the ground of after-discovered evidence. The reason- ing of these cases leads to the conclusion that, if it is a case of genuine accident or surprise which would work injustice to the 32. Buntin v. Danville, 93 Va. 200, 24 S. E. 830. 478 JURIES 253 defendant to compel him to proceed with the trial, the trial court may dismiss the jury, and continue the case to another term. 33 253. Misconduct of jurors. The subject of the misconduct of jurors generally arises on motions for new trial, and the discussion of it is postponed till the consideration of that subject. 33. Norfolk v. Johnakin, 94 Va. 285, 290, 26 S. E. 830; Jones v. Martinsville, 111 Va. 103, 68 S. E. 265. The origin of withdrawing a juror is given in Lancton v. State, 14 Ga. 426, as quoted in 21 Encl. PI. & Pr. 1004, as follows: "There is but little satisfactory information to be obtained from the books in regard to the ancient practice, which used to be resorted to when a party was taken by surprise on a trial, of withdrawing a juror, and thus causing a mistrial, and, of necessity, a postponement of the case. It was originally confined to criminal cases, and seems to have been adopted for the purpose of avoiding a rule which once obtained, based largely upon a dictum of Lord Coke, that a jury sworn and charged in any criminal case could not be discharged without giving a verdict. To escape the effect of this rule, and yet apparently observe it to the letter, the courts resorted to the fiction of directing the clerk to call a juror out of the box when it appeared that the prosecution was taken by surprise on the trial, whereupon the prosecution objected or was supposed to object to proceeding with the eleven jurors, and the trial went over for the term; 2 Hawk. P. C. 619; 2 Hale P. C. 294; Wedderburn's Case, Foster 22; People v. Olcott, 2 Johns. Cas. (N. Y.) 301; U. S. v. Coolidge, 2 Gall. (U. S.) 364, 25 Fed. Gas. No. 14,858. It was nothing more, however, than a means of obtaining a continuance or postponement of the trial after the jury had been impaneled and sworn. Usborne v. Stephen- son, 36 Oregon 328." It is now provided by statute in Virginia (Code, 4026) that, in a criminal case, "the court may discharge the jury, when it appears that they cannot agree in a verdict, or that there is a manifest neces- sity for such discharge." CHAPTER XXXIII. OPENING STATEMENT OF COUNSEL. 254. Nature of statement. 255. Order of statement. 254. Nature of statement. Immediately after the jury is sworn, counsel are expected to state the case to the jury, so that they may know at this early stage the questions to be decided by them, and make an intel- ligent application of the evidence as it is adduced. This is called the opening statement of counsel. 1 It should be a clear, concise, and brief statement of what the parties expect to prove. It should not be an argument. Gen- erally a chronological order of events will be the most readily understood and borne in mind by the jury, but the facts of some cases are too complex to render this order practicable. In any event, that statement should "be clear and clean-cut." Counsel should have every fact readily at command, and definitely fixed in his mind, and so present his facts that the jury may see the case as he does, from his standpoint, through his glasses. Defences, so far as known, should be stated by anticipation, and the replies thereto plainly and clearly set forth. Legal prop- ositions or contentions, and the application of the facts thereto should also be stated, but the statement should not be expanded into an argument. Too much emphasis cannot be laid on the im- portance of a proper opening statement. Minor or doubtful points should not be given too much prominence, but the strong points should be so put as to carry conviction to the minds of the court and jury, if possible. To impress the jury in the first instance, and put your adversary on the defensive from the start, is the desideratum. 1. Such a statement is now allowed in criminal cases also, but is not compulsory. Code, 4029a; Johnson v. Com.. Ill Va. 877, 69 S. E. 1104. 480 OPENING STATEMENT OF COUNSEL 255 255. Order of statement. In Virginia the practice is for the counsel for the plaintiff (or the party having the burden of proof) to make his state- ment first, and immediately thereafter the defendant's counsel makes his statement. As a rule, no counter statement from the plaintiff is allowed, but this is in the discretion of the trial court, and will be allowed to prevent surprise, or to aid the court or jury in a clear understanding of the evidence. Immediately after these statements, the introduction of evidence begins, and it is introduced in the same order as the opening statements. In many of the states the plaintiff's counsel makes his statement and follows it with his evidence, and then the defendant's coun- sel makes his statement and follows it with his evidence. Of course, these statements are not evidence, except, perhaps, by way of admissions. CHAPTER XXXIV. DEMURRER TO EVIDENCE. 256. Nature of demurrer to evidence. 257. Form and requisites of demurrer and joinder. 258. Right to demur. 259. Effect of demurrer to evidence. 260. Joinder in demurrer. 261. Concessions on demurrer to the evidence. 262. Procedure on demurrer to the evidence. 263. Rule of decision. 264. Exceptions to rulings and writ of error. 256. Nature of demurrer to evidence. A demurrer to the evidence is not a mere statement. It is a pleading, and, upon being filed, is as much a part of the record as any other pleading, and no bill of exception is necessary to make it a part of the record. 1 If, however, such a bill is filed, it does not affect the demurrer. 2 Like all other pleadings, it should be signed by counsel. The omission of the names of counsel, however, may be supplied at any time when the atten- tion of the court is called to it, 3 and if it appears from the record that the opposite party joined in the demurrer, and that the case was heard and decided upon such a demurrer in the trial court the record will be deemed complete in this respect although the demurrer and joinder are not signed by counsel at all. 4 A de- murrer to a pleading, in effect, says that the opposite party has not stated any ground of action or defence (as the case may be) while a demurrer to the evidence in effect says that the opposite party has not proved his ground of action or defence. It is thus seen that the former goes to the statement of the case, and the latter to the proof to sustain it. The very terms of the demurrer 1. Manderville v. Perry, 6 Call 78; Ches. & O. Ry. Co. v. Sparrow, 98 Va. 630, 37 S. E. 302. 2. Ches. & O. Ry. Co. v. Pierce, 103 Va. 99, 48 S. E. 534. 3. Mclntyre v. Smith, 108 Va. 736, 62 S. E. 930. 4. Ches. & O. Ry. Co. v. Sparrow, 98 Va. 630, 37 S. E. 302. 31 482 DEMURRKR TO EVIDENCE 256 to the evidence show its functions. It says that the matters shown in evidence are not sufficient in law to maintain the issue joined on behalf of the party offering it. This method of procedure, it is said, has been expressly recog- nized and allowed in nineteen of the States. In the other States, the courts direct non-suits or order verdicts, and thereby, in effect, accomplish the same results. 5 The right to demur to evi- dence existed at common law and has not been taken away by constitutional provisions for trials by jury in civil cases. It ex- isted before the constitutions of the several States were adopted and was not meant to be taken away by them. The constitu- tions preserved the right of jury trial where it then existed, but did not confer it in any case not expressly mentioned. If evidence is relevant to the issue, although entitled to but little weight, it is generally admissible, and a motion to reject when offered, or to strike it out after it has been received, is in- applicable. // relevant, but not deemed sufficient to maintain the issue joined, the opposing party should demur and not move to strike out. Such, at least, is the Virginia doctrine, which holds that a motion to strike out is not equivalent to a demurrer to the evidence. 7 A somewhat different rule, however, seems to prevail in West Virginia where it is held that a motion to ex- clude the evidence of the opposing party is equivalent to a de- murrer to such evidence, at least, as to the rule of construing it. 8 The right to demur to the evidence on the trial of an issue devisavit vel non under 2544 of the Code exists as well as upon the trial of common law actions, and the demurrer to the evidence in such cases is not an invasion of the province of the jury in the trial of such issues. The jury are not the judges of the law in such cases, and the language of the statute "a trial 5. Hopkins v. Nashville, etc., Ry. Co., 96 Tenn. 409, 34 S. W. 1029, 32 L. R. A. 354. 6. Reed & McCormick v. Gold, 102 Va. 37, 45 S. E. 868; Lynchburg- Milling Co. v. Bank, 109 Va. 639, 64 S. E. 980. 7. Southern Ry. Co. v. Cooper, 98 Va. 299, 36 S. E. 388. 8. Johnson v. Balto. & O. Ry. Co., 25 W. Va. 570. As' to when it is proper to allow such a motion, see Carrico v. W. Va. Ry. Co., 35 W. Va. 389, 14 S. E. 12. 257 FORM AND REQUISITES OF DEMURRER AND JOINDER 483 by jury shall be ordered" only means a jury trial accompanied by all the incidents and the mode of procedure attendant upon such a proceeding. The word "shall" in the sentence above quoted does not prevent a waiver of trial by jury, but is to be construed in the sense of "may." 9 257. Form and requisites of demurrer and joinder, "The original practice was to require the demurrant to admit upon the record the existence of all facts which the evidence of- fered by the other party conduced to prove. Those facts were to be ascertained by the court; and in this respect, the court might err in opinion ; and if so, and the party refused to make the admission, he lost the benefit of his demurrer, or, if he made the admission on record, it bound him irrevocably. In the latter case, the error of the court could never be corrected ; and in the former, not without a protracted litigation attended with great delay and expense, to wit: by bill of exception and appeal. To avoid this inconvenience, the modern practice is (especially in Virginia, where it has been sanctioned by repeated decisions of the court of appeals) to put all the evidence on both sides in the demurrer, and then to consider the demurrer as if the demurrant had admitted all that could reasonably be inferred by a jury from the evidence given by the other party, and waived all the evidence on his part which contradicts that offered by the other party, or the credit of which is impeached, and all inferences from his own evidence which do not necessarily flow from it. With these limitations, the party whose evidence is demurred to has all the benefit which the ancient practice was intended to give him, without subjecting the other party to its inconveniences; and no disputed fact is taken from the jury and referred to the court. Green, J., in Whittington v. Christian, 2 Rand. 357, with which opinion the decision of the court accorded. See also, Roane, J., in Stephens v. White, 2 Wash. 210; and Coalter, J., in Taliaferro v. Gatewood, 6 Munf. 326." 10 It has been ear- nestly contended that the recent Virginia act on demurrers to evidence, requiring the demurrant to "state in writing specific- 9. Meade v. Meade, 111 Va. 451, 69 S. E. 330. 10. 1 Rob Pr. (old) 351. 484 DEMURRER TO EVIDENCE 257 ally the grounds of demurrer relied on," 11 was a return to the "original practice" above mentioned, 12 but the contention does not seem to be sustained either by the language of the Act, or the history of its enactment. 13 The Act seems to place demur- rers to evidence on the same footing with demurrers to plead- ings. It does not require the demurrant to admit upon the rec- ord the existence of all facts which the evidence of the demur- ree conduces to prove. Inferences are left where they were be- fore the Act was passed. The object of the Act seems to be twofold : first, to notify the demurree of the grounds or causes of demurrer which the demurrant intends to rely on, and, second, to prevent the demurrant from relying upon one or more grounds in the trial court and then assigning different grounds in the appellate court. The present form of stating the grounds of demurrer is given in the margin, and is so general as to give the demurree but little more information than he had under the old form. It has been held that on a demurrer to the evidence it is not necessary to state in the record that the evidence set forth is all that was offered, but the court should not compel a joinder unless all of the evidence is set out in the demurrer. 14 The present statute in Virginia requires that "the party tendering the demurrer to evidence shall state in writing specifically the grounds of demurrer relied on, and the demurree shall not be forced to join in the said demurrer until the specific grounds upon which the demurrant relies are stated in writing, nor shall any grounds of demurrer not thus specifically stated be consid- ered except that the court may, in its discretion, allow the demur- rant to withdraw the demurrer; may allow the joinder in the demurrer to be withdrawn by the demurree, and new evidence admitted, or a non-suit to be taken until the jury retire from the bar." 15 The mode of procedure is as follows : After all the evidence on both sides has been introduced (or, if the demur- 11. Acts (Va.) 1912, Chap. 42, p. 75. 12. 11 Va. Law Reg. 959; 12 Va. Law Reg. 275. 13. 12 Va. Law Reg. 195, 355. 14. Adkins v. Fry, 38 W. Va. 549, 18 S. E. 737; Adkins v. Stephens, 38 W. Va. 557, 18 S. E. 740. 15. Acts (Va.) 1912, ch. 42, p. 75. 257 FORM AND REQUISITES OF DEMURRER AND JOINDER 485 rant does not wish to introduce any, after demurree has intro- duced all of his evidence), counsel for the party wishing to de- mur to the evidence states that fact to the court, and then writes out and signs his demurrer to the evidence. The counsel for the opposing party then writes out and signs his joinder in de- murrer. This is the usual method of procedure. The form of such a demurrer and joinder is given in the margin. 16 The jury 16. Form of Demurrer to Evidence and Joinder: Norton Coal Co. ~\ Ads. v Trespass on the case. Charles Creditor J And the said plaintiff by his counsel produces to the jury to main- tain the issue on his part the following evidence, to wit: (Here insert plaintiff's evidence as given by witnesses and shown by the stenographer's report marked X hereto attached, pages 1-50.) And the said defendant, by his counsel, produces to the jury the following evidence to maintain the issue on his part, to wit: (Here insert defendant's evidence as given by witnesses and shown by stenographer's report marked X, hereto attached, pages 50-100.) And the said defendant says the matter aforesaid so introduced and shown in evidence to the jury by the plaintiff is not sufficient in law to maintain the said issue on the part of the plaintiff and that it, the said defendant, is not bound by the law of the land to answer the same; wherefore, for want of sufficient matter in that behalf to the said jury shown in evidence the said defendant prays judgment and that the jury aforesaid may be discharged from giving any verdict upon the said issue, and that the said plaintiff may be barred from having or maintaining his aforesaid action against it, and for grounds of its said demurrer to the evidence, the defendant states in writing: 1. That the said evidence does not show that the defendant was guilty of any negligence which was the cause of this accident. 2. That the evidence shows that the proximate or contributory cause of the accident was the carelessness of the plaintiff, and that the plaintiff was guilty of contributory negligence. 3. That the evidence shows that the injury was the result of an accident which was unforeseen and could not be guarded against. 4. That the injury was the result of an accident which was ordi- narily incident to the employment of the plaintiff and of which he assumed the risk: and, 5. Because if the defendant was guilty of any negligence whatso- ever which caused the accident, yet the plaintiff had full knowledge thereof and assumed the risk of it. AYERS & FULTON, Attys. for the defendant. 486 DEMURRER TO EVIDENCE 258 are not then discharged, but counsel proceed at once to argue before them the measure of damages, and they retire to consider of the damages, and, after agreeing upon the amount, bring in a verdict assessing the damages subject to the opinion of the court on the demurrer to the evidence. The amount of the dam- ages being thus ascertained, counsel proceed to argue the case on its merits before the court. The court decides whether or not there shall be any recovery. If there is a recovery, the ver- dict of the jury ascertains the 'amount thereof. 258. Right to demur. Either party may demur to the evidence of the other, but this method of procedure is not advisable for the party who has the burden of proof on any issue, if there is any countervailing evidence, for it will be seen presently that the demurrant waives all of his evidence in conflict with that of the demurree, and this he could not afford to do if he had the burden of proof. If, however, he should demur to the evidence and there should be a joinder, he cannot avail himself of his error in the appel- late court. He will not be allowed to take advantage of his own errors. 17 The right to demur extends to all actions, including actions for negligence. 18 It is provided by statute, both in Vir- Charles Creditor v. I Joinder in Norton"coal Co. ) Demurrer to Evidence. And the plaintiff says that the matters aforesaid, to the jurors in form aforesaid, shown in evidence, are sufficient in law to maintain the issue joined on the part of the plaintiff. Wherefore, for as much as the said defendant has given no answer to the same, the said plain- tiff demands judgment, and that the jury be discharged, and that the defendant be convicted, etc. KILGORE & BANDY, Attys. for the plaintiff. The above form is taken chiefly from the record in the case of Norton Coal Co. v. Murphy, 108 Va. 528, 62 S. E. 268. 17. Childers v. Dean, 4 Rand. 406; Bennett v. Perkins, 47 W. Va. 425, 35 S. E. 8; 1 Rob (old) Pr. 350; Johnson v. Ches. & O. Ry. Co., 91 Va. 171, 21 S. E. 238. 18. Trout v. Va. & Tenn. R. Co., 23 Gratt. 619; Gerity v. Haley, 29 W. Va. 98, 11 S. E. 901; Johnson v. Ches. & O. R. Co., 91 Va. 171, 21 S. E. 238. 259-260 JOINDER IN DEMURRER 487 ginia and West Virginia, that in an action for insulting words, no demurrer shall preclude the jury from passing thereon. 19 Hence, in such an action the plaintiff cannot be compelled to join in a demurrer to the evidence by the defendant, 20 but the statute was enacted for the benefit of plaintiffs, and they may waive it if they choose, and if they do, the case may be heard on a demurrer to the evidence, just as other civil actions. 21 This statute does not apply to actions for common-law slander, but only for "insulting words" under the statute, and it is necessary for the plaintiff to show by his declaration that he is suing under the statute, else it will be held to be common-law slander, and a demurrer may be interposed as in other common-law ac- tions. 22 259. Effect of demurrer to evidence. The effect of a demurrer to the evidence is to withdraw the case from the jury and submit it to the determination of the court. It is usually resorted to chiefly by corporations, who get scant justice at the hands, of juries, for the purpose of having the case determined by the court. The success of such a pro- cedure is always dependent upon the weakness of the demur- ree's evidence, and the inferences to be drawn therefrom. It has been found in practice that the courts are more apt to say that a particular inference could not have been drawn by the jury if the case had been submitted to them, than they are to set aside a verdict by the jury after they have drawn such in- ference. 260. Joinder in demurrer. Where a party has the right to demur to the evidence, and does so, it is the duty of the court to compel the other party to join in the demurrer. 23 Whether or not, in a particular case, a party 19. Va. Code. 2897; W. Va. Code (1906). 3485. 20. Rolland z: Batcheldor, 84 Va. 664. 5 S. E. 695. 21. Brown v. Norfolk & W. R. Co.. 100 Va. 619, 42 S. E. 664. 22. Hogan v. Wilmouth, 16 Gratt. 80. 23. Johnson v. Ches. & O. Ry. Co., 91-Va. 171. 21 S. E. 238; Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. 888. 488 DEMURRER TO EVIDENCE 260 has the right to demur so that it becomes the duty of the court to compel the demur ree to join therein, is, in a large measure, a question addressed to the sound discretion of the trial court. It is not an arbitrary but judicial discretion, the exercise of which may be reviewed on a writ of error. 24 An objection, however, to joining in a demurrer must be made in the trial court. It cannot be made in the appellate court for the first time. 25 It was formerly held that there were two classes of cases in which the court would not compel a joinder : the first when the case is clearly against the demurrant, and his motive for interposing the demurrer is to delay the decision; the second when the court doubts what facts may be reasonably inferred from . the evidence demurred to, for in such case the jury is the most fit tribunal to decide. On a demurrer to the evidence it is necessary to incorporate the evidence into the demurrer. This sometimes requires considerable time. Formerly there were no steno- graphic reports or other means of speedily incorporating the evidence into the demurrer, and no provision was made for hear- ing such cases in vacation. The combined effects of these two difficulties rendered the continuance of the case to another term a practical necessity. Hence a party who had no case might gain a term of court by demurring to the evidence, although he was positive that the demurrer would be decided adversely to him. The practical removal of both these difficulties has led the Court of Appeals of Virginia, in a recent case, to say, obiter, that the fact that the evidence is plainly against the demurrant is no longer a ground for refusal to compel joinder in the demurrer. 26 If, however, a state of facts should arise in which the demurrer would cause such a delay it can hardly be doubted that the court, now, as formerly, would refuse to compel a joinder for that rea- son. The second ground for a refusal to compel a joinder still ex- 24. Rohr v. Davis, 9 Leigh 30; University of Va. v. Snyder, 100 Va. 567, 42 S. E. 337. The court may refuse to compel a plaintiff to join in a demurrer to evidence when he asks leave to introduce other relevant evidence, although he has rested his case. Hunter v. Snyder, 11 W. Va. 198. 25. Hollandsworth v. Stone, 47 W. Va. 773, 35 S. E. 864. 26. University of Va. v. Snyder, 100 Va. 567, 42 S. E. 337. 261 CONCESSIONS ON DEMURRER TO THE EVIDENCE 489 ists. The court may doubt what facts are to be reasonably inferred from the evidence demurred to -for various reasons. Chief among these, is the deficiency of evidence on the part of the demurree. Sometimes also, the evidence on the part of the demurree is loose, indeterminate and circumstantial, or is conflicting, and as a result the court is in doubt as to what facts should be inferred. 27 These are the principal sources of doubt which beset the court in determining whether a joinder should be compelled or not. Of course, under the Virginia doctrine, if doubt should arise from contradictory evidence on behalf of the demurrant, this is no objection, as he waives such contradictory evidence by de- murring to the evidence. The contradiction is removed by the waiver. 28 It has been held that it is not error for a court to compel the defendant to join in the plaintiff's demurrer to the evidence where it would be the duty of the court to set aside a verdict for the defendant. 29 261. Concessions on demurrer to the evidence. The demurrant is considered as admitting the truth of all his adversary's evidence and all just inferences that can be properly drawn therefrom by the jury, and as waiving all of his own evi- dence which conflicts with that of his adversary, or which has been impeached, and all inferences from his own evidence (al- though not in conflict with his adversary's) which do not necessarily result therefrom. 30 The court, however, is not 27. Harrison v. Brooks, 1 Munf. 22; Whittirgton v. Christian, 2 Rand. 357; Rohr r. Davis, 9 Leigh 30; Trout v. Va. & Tenn. R. Co., 23 Gratt. 635; Johnson v. Ches. & O. R. Co., 91 Va. 171, 21 S. E. 238; Merchants' Bank z 1 . Evans, 9 W. Va. 373. 28. University of Virginia r. Snyder, 100 Va. 567, 42 S. E. 337. 29. Deaton r. Taylor, 90 Va. 219, 17 S. W. 944. 30. Ware v. Stephenson, 10 Leigh 155; Trout v. Va. & Tenn. R. Co., 23 Gratt. 619: Johnson r. Ches. & O. R. Co., 91 Va. 171, 21 S. E. 238; University of Va. r. Snyder, 100 Va. 567, 42 S. E. 337; Richmond v. Barry, 109 Va. 274, 63 S. E. 1074. Concessions made by the demurrant have been variously stated in different cases. It is said, "on a demurrer to the evidence, the court is to consider all of the demurrant's evidence in conflict with that of the demurree withdrawn, the credibility of the latter's witnesses admitted, and all facts admitted, which the demurree's evidence, thus 490 DEMURRER TO EVIDENCE 261 obliged to accept as true what it knows judicially to be untrue, nor what, in the nature of things, could not have occurred in the manner and under the circumstances mentioned, nor what is not susceptible of proof. 31 considered, proves or conduces to prove, or which may be reasonably inferred from his whole evidence both direct and circumstantial; and, if several inferences may be drawn from that evidence, differing in degrees of probability, the court must adopt those most favorable to the demurree, provided they be not forced, strained, or manifestly repugnant to reason." Horner v. Speed, 2 Pat. & H. 616. Another phrasing of the rule is, "by a demurrer to the evidence the party de- murring is considered as admitting the truth of the adversary's evi- dence, and all just inferences which can be properly drawn therefrom by a jury, and as waiving all of his own evidence which conflicts with that of his adversary, and all inferences from his own evidence (al- though not in conflict with his adversary's) which do not necessarily result therefrom." Johnson v. Ches. & O. R. Co., supra. Still again it is said that, "the demurrant is entitled to the benefit of all of his unimpeached evidence not in conflict with his adversary's and to all inferences that necessarily flow therefrom." Bowers v. Bristol, 100 Va. 533, 42 S. E. 296. Upon the subject of necessary inferences, see Rochester Ins. Co. v. Monumental Association, 107 Va. 701, 60 S. E. 93. As to just inferences, see Norfolk & Western R. Co. v. Suther- land, 105 Va. 545, 54 S. E. 465; Marsteller v. Coryell, 4 Leigh 325; Union Steamship Co. v. Nottinghams, 17 Gratt. 115; Hansbrough v. Thorns, 3 Leigh 147; Tutt v. Slaughter, 5 Gratt. 3G4; Land Co. v. Calhoun, 16 W. Va. 374. A demurrer to evidence in an action of ejectment does not have the effect of excluding from the consideration of the court the title papers of the demurrant. If a junior patent covers land embraced by a senior patent, there is a conflict in the grants to the extent that the same land is covered by both, but this is not a conflict of evidence. The grants do not contradict each other. The common- wealth issued both. The demurrant in such case does not waive the evidence of his title manifested by such title papers. Fentress v. Pocahontas Club, 108 Va. 155, 60 S. E. 633. For a full collection of Virginia and West Virginia cases on the subject of concessions on demurrer to evidence, see Va. Reports An- notated, Tutt v. Slaughter, 5 Gratt. 364. 31. Ches. & O. R. Co. v. Anderson, 93 Va. 650, 25 S. E. 947; Norfolk & W. R. Co. -v. Crowe, 110 Va. 798, 67 S. E. 518; S. R. Co. v. Wiley, 112 Va. 183, 70 S. E. 510. 262 PROCEDURE ON DEMURRER TO THE EVIDENCE 491 Such great concessions are required of the demurrant by the demurrer as a condition of his withdrawing the cause from the jury that it becomes a very dangerous proceeding, and should not be resorted to when the demurrant's case depends on evi- dence in conflict with that of his adversary. The occasion for resorting to it is the extreme weakness of the adversary's case, coupled with a distrust of the jury, as in the corporation cases. 32 In nearly all the States where a demurrer to the evidence is used, the demurrant waives all of his evidence, but the rule is otherwise in Virginia; and "as is well understood, the demur- rant is entitled to the benefit of all of his unimpeached evidence, not in conflict with his adversary's, and to all inferences that necessarily flow therefrom." 33 Such also was the holding in West Virginia until comparatively recently. Recent decisions in that State have modified the former holdings. Under what is termed the new rule in that State, the court considers all the evi- dence in the case. The demurrant does not waive any of his evidence which is competent, but where it conflicts with that of the demurree it is regarded as overcome unless it decidedly pre- ponderates. If the evidence, though conflicting, decidedly pre- ponderates in favor of the demurrant, the demurrer will be SUS L tained. 34 262. Procedure on demurrer to the evidence. A case is regularly proceeded with as any other action at law would be until all the evidence on both sides has been introduced, 32. See Trout v. Va., etc., R. Co., 23 Gratt. 619; Richmond, etc., R. Co. v. Anderson, 31 Gratt. 812; Creekmur v. Creekmur, 75 Va. 430; Orange, etc., R. Co. v. Mills, 76 Va. 773; Eubank v. Smith, 77 Va. 206; Richmond, etc.. R. Co. v. Moore, 78 Va. 93; Rudd v. Richmond, etc., R. Co., 80 Va. 546; Farley v. Richmond, etc., R. Co., 81 Va. 783; Jones r. Old Dominion Cotton Mills, 82 Va. 140; Va. Mining, etc., Co. v. Hoover, 82 Va. 449, 4 S. E. 689; Norfolk, etc., R. Co. v. Harman, 83 Va. 553, 8 S. E. 251; Ayers v. Richmond, etc., R. Co.. 84 Va. 679, 5 S. E. 582; Johnson v. Chesapeake, etc., R. Co., 91 Va. 171, 21 S. E. 238; Simmons v. Southern R. Co., 96 Va. 152, 31 S. E. 7. 33. Bowers 7'. Bristol, 100 Va. 533, 42 S. E. 296. 34. Maple r. John, 42 W. Va. 30, 24 S. E. 608; Teal v. Ohio R. Co.. 49 W. Va. 85. 38 S. E. 518; Barrett r. Coal Co., 55 W. Va. 395, 47 S. E. 154. 492 DEMURRER TO EVIDENCE 262 if the demurrant elects to introduce any evidence. Then the counsel for the party desiring to demur states that he demurs to the evidence. Usually, counsel for the opposing party states that he joins in the demurrer. The demurrer and joinder are then drawn up, as hereinbefore indicated, and signed by coun- sel. Of course, if objection is made to joining in the demurrer, the objection is stated to the court and the question argued and decided by the court. If joinder is compelled, then the demur- rer and joinder, after being reduced to writing, are signed by counsel. Under the English procedure the jury, at this stage of the proceedings, is discharged, and, if need be, after the de- cision is rendered, another jury is called to assess damages. In Virginia and West Virginia, the practice is not to discharge the jury, but to proceed with the argument before them as to the measure of damages, and, after the argument, the jury render their verdict subject to the opinion of the court on the demurrer to the evidence. 35 The question of whether there shall or shall not be any recovery in the case is a question of law for the court, and with this the jury are not concerned. 36 They are only required to assess damages conditionally, and, for this pur- pose, can consider the evidence only so far as it bears on the measure of damages. Counsel may argue upon all the evidence in mitigation of damages, but not in bar. 37 The usual and com- mon form of the verdict, and the one adapted to most cases, is : "We, the jury, find for the - - (demurree) and assess his damages at $ - subject to the opinion of the court on the demurrer to the evidence." Probably a more correct form, and one adapted to all cases, would be a finding in the alternative^ thus: "If, upon the demurrer to the evidence, the court be of opinion for the plaintiff, then we find for the plaintiff and as- sess his damages at $ , but if for the defendant, we find for the defendant." (and if any damages are to be assessed in 35. Hansbrough v. Thorn, 3 Leigh 147; Green v. Judith, 5 Rand. 1; Norfolk & W. R. Co. v. Harman, 83 Va. 553, 8 S. E. 251; Taylor v. Ches. & O. R. Co., 41 W. Va. 704, 24 S. E. 631; 1 Rob (old) Pr. 351. 36. Humphreys v. West, 3 Rand. 516; Briggs v. Hall, 4 Leigh 484; Riddle v. Core, 21 W. Va. 530. 37. Norfolk & W. R. Co. v. Harman, 83 Va. 553, 8 S. E. 251. 262 PROCEDURE ON DEMURRER TO THE EVIDENCE 493 his favor) "and assess his damages at $ ." 38 As has been seen, no bill of exception is necessary to the ruling of the court on the demurrer to the evidence. Nor is a motion for a new trial necessary to enable the Court of Appeals to review the de- cision of the trial court on the question as to whether the evi- dence does or does not support the issue. A demurrer to the evidence is as much a part of the record as any other pleading, but if the amount of damages assessed by the jury is deemed excessive, a motion must be made in the trial court to set aside or abate the verdict. Objection to the amount of damages can- not be made for the first time in the appellate court. If too large or too small, objection on that account must be made in the trial court. 39 Proceedings on a demurrer to the evidence are largely under the control of the trial court, and in extreme cases, to prevent a manifest failure of justice, the trial court may, in the absence of a statute prohibiting it, permit the demurree to introduce addi- tional evidence, even after joinder in demurrer, but this is rarely done. This is usually accomplished by permitting the demurree to withdraw his joinder and then introduce the evidence and the opposite party has then again to determine whether or not he will demur to the evidence, 40 or he might suffer a non-suit or probably amend under 3384 of the Code. 41 The present stat- ute in Virginia quoted in 257, ante, permits the withdrawal of joinder in the demurrer and the introduction of new evi- dence, or a non-suit. After the jury have rendered their verdict and it has been received by the court, they are discharged, and it then 38. South Roanoke Land Co. v. Roberts, 99 Va. 487, 39 S. E. 133. 39. Rhule v. Seaboard Air Line R. Co., 102 Va. 343, 46 S. E. 331; Riddle v. Core, 21 W. Va. 530; Proudfoot v. Clevenger, 33 W. Va. 267, 10 S. E. 394. 40. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. 88; Norfolk & W. R. Co. v. Coffey, 104 Va. 665, 51 S. E. 729. See, also, Hunter v. Snyder, 11 W. Va. 198. As to additional evidence before joinder, sec Pocahontas Coal Co. v. Williams, 105 Va. 768, 54 S. E. 868; Taliaferro v. Gatewood, 6 Munf. 321; Fairfax v. Lewis, 11 Leigh 233; Hunter v. Snyder, 11 W. Va. 198. 41. 2 Va. L. Reg. 192. Note by Judge Burk?. 494 DEMURRER TO EVIDENCE 262 becomes necessary for the court to decide the issue of law arising on the demurrer. In determining the facts proved, the court looks to the whole evidence, including the cross-exami- nation of witnesses, and defects in one answer may be supplied by statements in another. It is not permissible, however, to take a detached statement of a witness for the demurrant and say that that particular statement is not contradicted by evidence for the demurree, but the statements of the witness must be taken as a whole, and if, when so considered, they cannot be reconciled with the demurree's evidence the statements must be rejected. 42 If incompetent evidence has been admitted and duly excepted to, this will be excluded in considering the demurrer. The de- murrer does not waive the exception. 43 The rule is probably otherwise outside of Virginia and West Virginia. 44 In cases of doubt as to what inferences should be drawn, those most favor- able to the demurree should be adopted. 45 In determining what judgment should be entered, the court should consider, if a ver- dict were found in favor of the demurree, would the court be justified in setting it aside. If not, then the demurrer should be overruled. 46 The judgment of the court on a demurrer to the evidence in the trial court is final. 47 If the demurrer to the evidence is overruled, but the condi- tional verdict of the jury is set aside, what judgment should be rendered by the trial court? Two courses would seem to be open to it, either to order a writ of inquiry or a new trial de 42. Ware v. Stephenson, 10 Leigh 155; Norfolk & W. R. Co. v. Holmes, 109 Va. 407, 64 S. E. 46. 43. Dishazer v. Maitland, 12 Leigh 524; Taylor v. B. & O. R. Co., 33 W. Va. 39, 10 S. E. 29; Huntington Nat. Bank v. Loar, 51 W. Va. 540, 41 S. E. 901; but if after discarding the illegal evidence, there is still left sufficient legal evidence to support the judgment, it will not be set aside. Lane Bros. v. Bott, 104 Va. 615, 52 S. E. 258. 44. See 6 Encl. PL & Pr. 443. 45. Ware v. Stephenson, 10 Leigh 155. 46. Ware v. Stephenson, 10 Leigh 155, 165; Lewis v. Ches. & O. R. Co., 47 W. Va. 650, 35 S. E. 908. If some only of the defendants demur to the evidence and there is a conditional verdict as to all, it should be set aside as to those who do not demur on the ground that the verdict is not responsive to the issue. Howdashall v. Krenning, 103 Va. 30, 48 S. E. 491. 47. Fowler v. Balto. & O. R. Co., 18 W. Va. 579. 263 RULE OF DECISION 495 novo. The oath of a juror in civil cases requires him to well and truly try the issues joined and a true verdict render accord- ing to the evidence. The duty devolved on the jury, however, is twofold. It is not only to try the issues joined but to assess damages, and for this latter purpose, it may hear evidence. 48 By a demurrer to the evidence, the first duty, to wit, to decide the issue joined, is taken away from the jury and assigned to the court. The second duty it proceeds to discharge. When the court overrules the demurrer, it decides that the demurree is entitled to recover something at least. We have, then, the de- cision of the court to whom the demurrant especially referred the question that the demurree is entitled to recover, and the only thing that is left open is the amount. It would seem, there- fore, that the proper mode of procedure would be to call another jury simply to assess the amount of the demurree's damages. The question of the liability of the demurrant, having been de- termined adversely to him, there can be no good reason why he should have another hearing on that question, although he is en- titled to further hearing as to the amount of his liability. 49 The contrary view, however, was taken in a recent Virginia case. 50 263. Rule of decision. In Virginia the rule of decision of a demurrer to the evidence has been stated in many cases to be that where, upon a demurrer to the evidence, the evidence is such that a jury might have found a verdict for the demurree, the court tmtst give judgment in his favor; and if reasonably fair-minded men might differ about the matter, the demurrer should be overruled. 51 But in determining what verdict a jury might have found, the demur- 48. McNutt v. Young, 8 Leigh 542. 49. Humphreys v. West, 3 Rand. 516; Green v. Judith, 5 Rand, at p. 10; Briggs v. Hall, 4 Leigh 490; Maple v. John, 42 W. Va. 30, 34, 34 S. E. 608. 50. Merchants' Trans. Co. v. Masury, 107 Va. 40, 57 S. E. 613. 51. Bass v. Norfolk Ry. Co., 100 Va. 1, 40 S. E. 100; Ches. & O. R. Co. r. Pierce, 103 Va. 99, 48 S. E. 534; Citizens' Bank v. Taylor, 104 Va. 164, 51 S. E. 159; Wood v. Southern R. Co., 104 Va. 650, 52 S. E. 371; Massey v. Southern R. Co., 106 Va. 515, 56 S. E. 275; C. & O. Ry. Co. r. Hoffman, 109 Va. 44, 63 S. E. 432. 496 DEMURRER TO EVIDENCE 263 rant is considered as admitting the truth of all his adversary's evidence, and all just inferences that can be properly drawn therefrom by a jury, and as waiving all of his own evidence which conflicts with that of his adversary, or which has been impeached, an'd all inferences from his own evidence (although not in conflict with his adversary's) which do not necessarily result therefrom. Such was also the rule in West Virginia until a comparatively recent time. The present rule in West Virginia may be stated in the same terms, but the result is different because the concessions are not the same as formerly. In that State the demurrant is not con- sidered as waiving all of his unimpeached evidence that conflicts with that of his adversary. Under the new rule now prevailing in West Virginia, the concessions of the demurrant are stated thus: "On the subject of the conflict of evidence the rule then would be that the evidence of the demurrant in conflict with the evidence of the demurree should be rejected unless the conflict- ing evidence of the demurrant so plainly preponderates over the evidence of the demurree, that if there were a verdict in favor of the latter it would be set aside, and in such case, the demurrer must be sustained. For if the evidence, although conflicting, plainly preponderates in favor of the demurrant, judgment should be entered accordingly." 52 This change in the concessions made by the demurrant is said to be the result of a change in the statute (made in 1891) which requires the trial court to cer- tify all the evidence, on a motion for a new trial, and the Court of Appeals to consider the evidence, both upon the application for and the hearing of a writ of error. 53 It is said that the Court of Appeals must, under this statute, set aside a verdict if it is against a clear preponderance of the evidence, and that the stat- ute has "thereby incidentally modified the rule relating to the consideration of the evidence on demurrer, and this is the new rule established in the case of Maple v. John. To hold other- wise we must say in cases of demurrer to evidence, that when the word verdict is used, it is according to its ancient effect prior to the decision of Johnson v. Burns. This would make unneces- 52. Barrett v. Coal & Coke Co., 55 W. Va. 395, 398, 47 S. E. 154. 53. W. Va. Code (1906), 3979. 264 EXCEPTIONS TO RULINGS AND WRIT OF ERROR 497 sary confusion between the present rule relating to motions to set aside verdicts of juries, the motion to exclude the evidence, the motion to direct a verdict and a demurrer to the evidence, all which motions should be governed by the same principles of law, and this is that where the evidence plainly preponder- ates in favor of a litigant, he is entitled to judgment." 54 No such change has been made in the statute of Virginia, but where the evidence (not the facts) is certified, a plaintiff in error, seeking to reverse a verdict because contrary to the evidence, still goes up as on a demurrer to the evidence by him. 55 264. Exceptions to rulings and writ of error. After a case has been decided by the trial court, on a demurrer to the evidence, that is the end of the case in the trial court. The demurrer containing all of the evidence, being a pleading, is a part of the record, and the record of the case is complete. Absolutely nothing remains to be done to prepare the case for the appellate court. No bill of exception is necessary, nor any kind of objection in any form to the ruling of the court on the demurrer. 56 If a writ of error is desired, a copy of the record is obtained as in other actions at law, and application is made for the writ of error as in other civil cases. If the writ of er- ror is granted, the case is heard in the appellate court exactly as it was in the trial court, subject to the same concessions, but no more. If the appellate court is of the opinion to affirm the de- cision of the lower court, it does so, and that terminates the pro- cedure in the appellate court as it does in any other case. If, however, the appellate court is of the opinion to reverse the de- cision of the trial court ; it generally enters final judgment for the party prevailing. It does not remand the cause for a new trial. 57 54. Barrett r. Coal & Coke Co., supra; Johnson v. Burns, 39 W. Va. 68, 20 S. E. 686; Maple v. John, 42 W. Va. 30, 24 S. E. 608; Teal v. Ohio Ry. Co., 49 W. Va. 85, 38 S. E. 518. 55. Va. Code (1904), 3484. 56. Ante, 256: Norfolk & W. R. Co. v. Dunnaway, 93 Va. 29, 24 S. E. 698; Fidelity Co. r. Chambers, 93 Va. 138, 24 S. E. 896; Riddle v. Core, 21 W. Va. 530; Proudfoot v. Clevenger, 33 W. Va. 267, 10 S. E. 394. 57. Norfolk & W. R. Co. v. Marshall, 90 Va. 836, 20 S. E. 823; Metropolitan Ins. Co. v. Rutherford, 98 Va. 195, 35 S. E. 361. 32 498 DEMURRER TO EVIDENCE) 264 If the error committed by the trial court consisted in the fail- ure to compel a joinder, and all of the evidence is in the record so that the court can do complete justice between the parties, and can plainly see not only that joinder should have been compelled, but also what judgment should have been rendered thereon, it will treat the verdict as an award of damages rendered upon a de- murrer to the evidence, and proceed to enter such judgment thereon as the trial court ought to have entered if joinder had been required; thus ending the controversy without subjecting the parties to further delay. 58 Generally, the judgment rendered in the appellate court on a demurrer to the evidence is final, but sometime^ the case is re- manded upon a question of damages, and occasionally for prej- udicial error committed by the trial court in the procedure on the demurrer. 59 58. University of Va. v. Snyder, 100 Va. 567, 42 S. E. 337. 59. In N. & W. v. Coffey, 104 Va. 665, 51 S. E. 729, after joinder in demurrer and a conditional verdict, the court and the plaintiff's coun- sel were taken by surprise by finding no replication to a plea of the statute of limitations, and it was held that the court should have set aside the demurrer to the evidence, and the award of damages thereon and have caused the issue to be made up on the plea, and ordered a new trial of the case, and for a failure to do this the judgment of the trial court should be reversed, and the cause remanded for further proceedings. In Merchants' Trans. Co. v. Masury, 107 Va. 40, 57 S. E. 613, it was held that when the demurrer to the evidence was over- ruled but the conditional verdict of the jury was set aside for lack of evidence to support it, the trial court should have permitted the withdrawal of the demurrer, and have directed a new trial of the whole case, and for failure to do this, the judgment of the trial court was reversed and the case remanded for a new trial de novo. In Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. 88, the court of appeals of West Virginia set aside the verdict of the jury and also the demurrer to the evidence and awarded a new trial, because that was what the trial court ought to have done. If, on a writ of error, the appellate court be of opinion that a demurrer to the evidence in the trial court should have been over- ruled and judgment entered for the demurree, but the amount of the verdict is excessive and the amount of the excess plainly appears from the record, the appellate court will not remand the case nor put the demurree upon terms, but will enter up final judgment for the correct amount which the record shows the demurree is entitled to re- cover. Whitehead v. Cape Henry Syndicate. Ill Va. 193, 68 S. E. 263 CHAPTER XXXV. INSTRUCTIONS. 265. Object of instructions. 266. Charging the jury generally. 267. Nature, construction and effect of instructions. 268. Abstract propositions partial view of case. 269. Scintilla doctrine. 270. Sufficiently instructed. 271. Conflicting instructions. 272. Conflicting evidence. 273. Directing a verdict. 274. Law and fact. Foreign laws. Written instruments. Court's opinion on the evidence. 275. Oral or written. 276. Time of giving. Order of reading to jury. 277. Multiplication of instructions. 278. Find for the plaintiff 279. Inviting error. 280. How instructions are settled. 265. Object of instructions. The object of instructions is to point out the issues involved and the evidence relevant thereto, and to give the jury a brief, clear, and succinct statement of the law applicable to the case. Frequently no reference is made in the instructions to the evi- dence, but the jury is instructed only on the law applicable to the issues involved. Sometimes, however, it is desirable to make the instruction more concrete, and this is done by stating the facts hypothetically, leaving the jury to ascertain what facts are established by the evidence, without expression of opinion on the part of the court as to the weight of the evidence, or what facts are established. This is accomplished by instructing the jury that if they believe such and such facts to be established, then the law is so and so. 500 INSTRUCTIONS 266 266. Charging the jury generally. In England and in the federal courts it is common practice for the judge, after the argument, and immediately before the jury retire, to sum up the evidence as the judge understands it, and to charge the jury upon the law of the case upon this sum- ming up. No such practice exists in Virginia. On the contrary, it would be regarded as an invasion of the province of the jury for the judge to do so. It is not the practice in Virginia to give instructions unless requested, except where it is necessary to pre- vent a failure of justice, and, while the giving of instructions by the court unasked is not error if the instructions correctly pro- pound the law, still the practice is condemned. 1 Any opinion as to the weight, effect, or sufficiency of the evidence submitted to the jury, or any assumption of a fact as proved, is generally re- garded as an invasion of the province of the jury, and observa- tions and instructions as to the weight to be given to the oral evidence is ground for reversal. 2 The duty of charging the jury generally is regarded in Vir- ginia as a burden which counsel cannot impose upon the court. "It has not been the practice in Virginia, as in England, for the courts to charge the jury upon the law of the case, and it is not error to refuse to give such charge, or to refuse to instruct gen- erally upon the law of the case. If either party desire any spe- cific instruction to be given, he has the right to ask it, and the court is bound to give it, provided it expounds the law correctly upon any evidence before the jury. A party cannot, by asking for an erroneous instruction, or, as I apprehend, by asking for a general instruction, devolve upon the court the duty of charg- ing the jury on the law of the case. See Rosenbaums v. Wee- den, Johnson & Co., 18 Gratt. 785, 799. As before stated, if the refusal of an erroneous instruction asked for tends to mislead the jury, a proper instruction should be given in its stead, and it would be error not to give it." 3 In a late case 4 the defendant 1. Blunt's Case, 4 Leigh 689; Dejarnette's Case, 75 Va. 867. 2. Tyler v. Ches. & O. R. Co., 88 Va. 389, 13 S. E. 975; N. & W. R. Co. v. Poole, 100 Va. 148, 40 S. E. 627. 3. Womack v. Circle, 29 Gratt. 192, 208. 4. Ches. & O. R. Co. v. Stock, 104 Va. 97, 51 S. E. 161. 266 CHARGING THE JURY GENERALLY 501 asked certain instructions, and then presented the following re- quest: "The defendant prays the court that, should the hypoth- esis of the facts whereon the several facts propounded by it be incorrect, or should the said instructions be inartificially or in- correctly expressed, or should the conclusion of law therein an- nounced be incorrectly stated, the court will so amend the same as to accord with the facts and law of this case, to the end that the jury may be duly instructed on the phases of the case at bar presented by the said instructions." The court, after ex- amining the authorities, declares : "We know of no authority in this court, or elsewhere, which imposes upon trial courts the burden sought to be placed upon them by the 'prayer' under con- sideration." In discussing the subject of refusal of erroneous instructions the court says : "It cannot be doubted that, if the instruction correctly states the law, and there be sufficient evi- dence to support the verdict, it should be given. It is equally plain that if it does not correctly state the law, it should not be given. The sole question is as to the duty of the court to amend an instruction offered by counsel. The rule as stated in Rosen- baums v. Weeden, supra, and approved in numerous decisions of this court, is that when an instruction offered is equivocal, so that either to give or refuse it might mislead the jury, the duty is imposed upon the court so to modify it as to make it plain; that if it be right, it should be given ; if it be wrong, it should be rejected : if it be equivocal, it should be amended. By what test is a court to measure the duty thus imposed, and how is the jury to be misled by an instruction which the court declines to give? An equivocal instruction of course should not be given, because an equivocal instruction is an inaccurate expression of the law, and for that reason should be refused. To say that a jury may be misled by a refusal to give an instruction, and therefore the instniction should be amended and given, is to prescribe a rule so vague and indefinite as to embarrass rather than to assist trial courts in the performance of their duty. It is the duty of juries to respect the instructions given them. It is not to be supposed that they have any knowledge with respect to those which the court refuses to give ; and finally, if it be conceded that the offer of instructions, their discussion, and the judgment of the court upon them, take place in the presence of the jurors, it is an im- 502 INSTRUCTIONS 266 peachment of their integrity, or of their intelligence, to assume that they were influenced or misled by what has occurred." There is room for difference of opinion as to the last statement in the foregoing quotation. It is easily conceivable that cases may arise where, without impeaching either the integrity or the intelligence of the jury, they may be influenced or misled by a refusal to instruct on a given point, or to correct an equivocal or erroneous instruction. While in practice instructions are generally discussed out of the hearing of the jury, still it not un- frequently happens that disagreement between counsel in the midst of the argument necessitates a request for an instruction in the presence of the jury and, as said in another case, "While the language used in each of the instructions upon one point was objectionable and they could not have been given as offered, the court ought to have amended them; or, if it rejected them, as it did, it was error to give its own in lieu of them without in- structing them upon that point which was a vital one in the case." 5 If the point upon which the instruction is asked is "a vital one," the jury should not be left wholly in the dark as to what the law on the subject is. If, for instance, in an action for malicious prosecution, where conviction before a justice has been reversed on appeal, the court should be asked in the presence of the jury to instruct them that such conviction was conclusive evidence of probable cause, and the instruction should be couched in such language as to be either erroneous or equivocal in some aspects, and the court should simply refuse on that account to give it, the jury might, without impeaching either their integrity or intelligence, assume either that such conviction was not con- clusive evidence, or was not even prima facie evidence, and the point being a vital one, and one which should terminate the case at once, it would seem to be error not to instruct the jury on the point, when the court could easily do so without having to charge the jury at large. 6 Of course if, under such circumstances, the jury nevertheless find a correct verdict, the verdict would not be set aside simply because the court failed to instruct the jury on 5. Bertha Zinc Co. v. Martin, 93 Va. 806, 22 S. E. 869. 6. Womack v. Circle, 29 Gratt. 192; Ward v. Churn, 18 Gratt. 801, 810. 267 NATURE, CONSTRUCTION, ETC. 503 the point, and if it found an erroneous verdict, the verdict would be set aside because contrary to the law and the evidence, and yet it is plain that the erroneous verdict was the result of the failure of the court to instruct on a "vital point" in the case, and hence the trial court should have given a correct instruction on the subject, and thus have speedily terminated the litigation. 267. Nature, construction and effect of instructions. Instructions must not assume facts not admitted, nor other- wise infringe on the province of the jury to weigh the evi- dence. 7 They must be read in the light of the evidence applica- ble to the issues joined. 8 When given, they are instructions of the court, no matter by whom asked, 9 and must be read as a whole, and a defect in one may be corrected by a correct state- ment of the law in another, if the court can see that (when read and considered together) the jury could not have been misled by the defective instruction. 10 All error, however, is presumed to have affected the verdict, unless the contrary plainly ap- pears. 11 But if it can be seen from the whole record that, even under proper instructions, a different verdict could not have been rightly found, the verdict will not be set aside. 12 Furthermore, if, upon the whole record, the appellate court can see that the jury could not have found a different verdict, it will not stop to con- sider objections to instructions, nor will a verdict be set aside simply because it is in accord with an erroneous instruction to 7. Fishburne v. Engledove, 91 Va. 548, 22 S. E. 354. 8. N. Y., etc., R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264; Richmond Granite Co. r. Bailey, 92 Va. 554, 24 S. E. 232. 9. Gray's Case, 92 Va. 772, 22 S. E. 858. 10. Washington, etc., R. Co. v. Lacey, 94 Va. 460, 26 S. E. 834; Washington, etc., R. Co. v. Quayle, 95 Va. 741, 30 S. E. 391; Russell Creek Coal Co. -c. Wells, 96 Va. 416, 31 S. E. 614; Kimball v. Borden, 97 Va. 477, 34 S. E. 45. 11. Kimball r. Borden. supra; Richmond Traction Co. v. Hilde- brand, 99 Va. 48, 34 S. E. 888; Richmond, etc., Co. v. Allen, 101 Va. 200, 43 S. E. 356. 12. Winfree r. Bank, 97 Va. 83, 33 S. E. 375; Southern Ry. Co. v. Oliver, 102 Va. 710, 47 S. E. 862: Moore r. Baltimore & O. R. Co., 103 Va. 189, 48 S. E. 887; Schwalm v. Beardsley, 106 Va. 407, 56 S. E. 135. 504 INSTRUCTIONS 268-269 which no objection was made, if, upon the whole cause, there appears to be sufficient evidence to warrant the verdict. 13 268. Abstract propositions partial view of case. A proposition is said to be abstract when there is no evidence to support it, or the question is outside of the issues. Instruc- tions on mere abstract legal propositions are calculated to mis- lead the jury, and should not be given. 14 So, likewise, instruc- tions which ignore all the evidence on one side of a case, thus giving only a partial view of it, or which give undue weight to the evidence on one side, or call special attention to only a part of the evidence and the fact or facts which they tend to prove, and ignore other important evidence in the case which, if believed, ought to produce a different result, are misleading and should not be given. 15 269. Scintilla doctrine. It was formerly the settled law in Virginia, that "if an instruc- tion is asked which correctly propounds the law, and there is evi- dence tending to support the hypothetical case stated, to however little weight the evidence may appear to the court to be entitled, or however inadequate, in its opinion, to make out the case sup- ported, it should be given." 16 And such, it is said, is the law of Alabama, Arkansas, Illinois, Georgia, Indiana, Maryland, Iowa, 13. Collins v. George, 102 Va. 509, 46 S. E. 684; Watts v. N. & W. Ry. Co., 39 W. Va. 196, 19 S. E. 521; Richmond Passenger Co. v. Allen, 103 Va. 532, 49 S. E. 656. 14. Easley v. Valley Mut. Life Assn., 91 Va. 161, 21 S. E. 235; B. & O. R. Co. v. Few, 94 Va. 82, 26 S. E. 406; Seaboard R. Co. v. Hickey, 102 Va. 394, 46 S. E. 392. 15. N. Y., etc., R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264; Hans- brough v. Neal, 94 Va. 722, 27 S. E. 593; Kimball v. Borden, 95 Va. 203, 28 S. E. 207; N. Y., etc., Ins. Co. v. Taliaferro, 95 Va. 522, 28 S. E. 879; Montgomery's Case, 98 Va. 852, 37 S. E. 1; Gatewood v. Garrett, 106 Va. 552, 56 S. E. 335; Carlin & Co. v. Eraser, 105 Va. 216, 53 S. E. 145; Amer. L. Co. -v. Whitlock, 109 Va. 238, 63 S. E. 991. This is an important case and quite full on various questions relating to instructions. 16. Reusens v. Lawson, 96 Va. 285, 31 S. E. 528. 270-271 CONFLICTING INSTRUCTIONS 505 Missouri, Nebraska, Ohio, South Carolina and Texas. 17 In a very recent case the Court of Appeals of Virginia says : "It is true that what is known as the scintilla doctrine, has heretofore prevailed in this State, by force of which courts have been re- quired to give instructions though the evidence by which they were to be supported was such that a verdict founded upon it could not be sustained. In other words, a trial court might, un- der what is known as the scintilla doctrine, be reversed for fail- ure to give an instruction which rightly propounded the law, and then be again reversed for sustaining a verdict in obedience to the instruction, because not supported by sufficient evidence. Such a doctrine does not seem consonant with reason, nor pro- motive of good results in the administration of justice." And thus this "heir-loom," which has been treasured for more than a century, has been cast aside not merely as worthless, but as per- nicious. 18 Since this decision, probably the correct rule is that if an instruction is asked which correctly propounds the law it should be given, if there is sufficient evidence in the cause to sup- port a verdict found in accordance therewith. 18 270. Sufficiently instructed. A jury is said to be sufficiently instructed when the instructions already given cover the points embraced in an offered instruction. It is not error to refuse further instructions when the instruc- tions already given fully and fairly submit the case to the jury on the phases sought to be presented, even although they cor- rectly state the law. 20 271. Conflicting instructions. A material error in an instruction, complete in itself, is not cured by a correct statement of the law in another instruction. 17. 11 End. PI. & Pr. 181. 18. Ches. & O. R. Co. v. Stock, 104 Va. 97, 51 S. E. 161, 11 Va. L. Reg. 263, and note. 19. Amer. L. Co. v. Whitlock, 109 Va. 238, 63 S. E. 991. 20. Nicholas' Case, 91 Va. 741, 21 S. E. 364; N. & W. Ry. Co. v. Mills, 91 Va. 613, 22 S. E. 556; N. & W. Ry. Co. v. Marpole, 97 Va. 594, 34 S. E. 462; Amer. L. Co. v. Whitlock, 109 Va. 238, 63 S. E. 991. 506 INSTRUCTIONS 272-273 The two being in conflict, the verdict of the jury will be set aside, as it cannot be told by which instruction the jury was con- trolled. 21 This is undoubtedly the general rule, but if, notwith- standing such conflict, the court can see from the whole case that no other verdict could have been properly found than that which the jury has found, the verdict will not be set aside. 22 272. Conflicting evidence. If the evidence is conflicting, instructions to meet the different views of the case should be given, if asked. 23 This rule, how- ever, is subject to the rule previously stated that the instructions should not take a partial view of the evidence, nor so empha- size the evidence on one side as to mislead the jury. 273. Directing a verdict. If the evidence is such that the court would set aside any ver- dict found thereon in favor of a particular party, the great weight of authority is that the court may direct a verdict against such party, and such is the constant practice in the federal courts. 24 Such, however, has not heretofore been the practice in Virginia, and it has been held, even in a criminal case, that it is not the practice to give instructions which amount in substance to telling the jury that the evidence is not sufficient to convict the prisoner, and that such instructions should not be given. 25 In Virginia the practice has been either to demur to the evidence in a proper case, or to ask an instruction directing a verdict upon a hypothetical case, that is, to tell the jury if they believe so and so their verdict should be for the plaintiff, or the defendant, as the case may be. The tendency, however, of modern cases, leans towards permitting the trial court to direct a verdict, and it is said that "while directing a verdict is not in accordance with the 21. Amer. L. Co. v. Whitlock, supra, 22. Southern Ry. Co. v. Oliver, 102 Va. 710, 47 S. E. 862. 23. Fishburne v. Engledove, 91 Va. 548, 22 S. E. 354; Low Moor Iron Co. v. La Bianca, 106 Va. 83, 55 S. E. 532. 24. Phoenix Ins. Co. v. Doster, 106 U. S. 30; Abbott's Civil Trial Brief, 375, ff; 6 Encl. PI. & Pr. 678. 25. Montgomery's Case, 98 Va. 852, 37 S. E. 1. 274 LAW AND FACT 507 practice in this state, yet where it appears, as in this case, that no other verdict could have been properly rendered, the error was harmless, and the judgment will not be reversed on that ground.''- The basis of the holding is that the party complain- ing could not have been prejudiced by the instruction. It is now provided by statute in Virginia, however, "that in no action tried by a jury shall the trial judge give to the jury a peremptory in- struction directing what verdict the jury shall render." 27 274. Law and fact. Generally the court determines questions of law and the jury questions of fact, and the jury are bound by the law as laid down by the court. If, however, the verdict is correct, it will not be set aside merely because the trial court erroneously in- structed the jury. 28 It is error to refer a question of law to the jury. 29 In one case the court said: "It is a duty which the court owes to its own self-respect, as well as to the speedy ad- ministration of justice, not to allow counsel to discuss before the jury the same matter which has already been decided by it." 30 In another case, 31 the court quotes with approval the following language by Mr. Justice Story in United States v. Battiste, 2 Sumn. 240 : "My opinion is that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case tried upon the general issue. In each of these cases, their verdict, when general, is necessarily compounded of law and fact, and includes both. In each they must necessarily determine the law as well as the 26. Hargrave v. Shaw Land Co., Ill Va. 84, 68 S. E. 278; Taylor v. B. & O. R. Co., 108 Va. 817, 62 S. E. 798. 27. Acts 1912, ch. 27, p. 52. 28. Collins v. George, 102 Va. 509, 46 S. E. 684; 11 Encl. PI. & Pr. 59. 29. For example, whether or not an alteration in a written instru- ment is material is a question of law, but whether or not it was made is a question of fact. Keene v. Monroe, 75 Va. 424; People v. Alton (111.), 56 L. R. A. 95. For further illustration, see Houff v. German Ins. Co., 110 Va. 585, 66 S. E. 831. 30. Delaplane v. Crenshaw, 15 Gratt. 457. 31. Brown r. Com., 86 Va. 466, 10 S. E. 745. 508 INSTRUCTIONS 274- fact. In each they have the physical power to disregard the as laid down to them by the court. But I deny that, in any case, civil or criminal, they have the moral right to decide the law ac- cording to their own notions or pleasure. On the contrary, it is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law as it is laid down by the court." 32 Foreign lazus. Foreign laws, or the laws of other states,. though regarded as facts to be proved as other facts, are to be interpreted and their effect declared by the court. 33 Written Instruments. It is the duty of the court, and not of the jury, to construe all written instruments, and an instruction giving the court's construction of such instruments is no inva- sion of the province of the jury. 34 Court's Opinion, on the Evidence. In England, in the Fed- eral courts, and in some of the State courts, where not prohib- ited, the court may express its opinion as to the weight of the evidence, or any part thereof, but the decided weight of author- ity is against thus infringing upon the province of the jury, and, even where it is allowed, the court must be careful to state to- the jury that they are the sole judges of the facts, and not in any way bound by the opinion of the court as to what facts are established by the evidence. It is said that, while the judge may sum up the facts to the jury and express an opinion upon them, he should take care to separate the law from the facts and leave the latter in unequivocal terms to the judgment of the jury. 85 In Virginia, no such expressions of opinion are allowed, and if made they will vitiate the verdict. 36 32. Newport News, etc., R. Co. v. Bradford, 100 Va. 231, 40 S. E. 900. 33. Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 26 S. E. 421. But see 1 Gr. Ev. (16 Ed.), 81-g. 34. Burke v. Lee, 76 Va. 386; Pettyjohn v. Bank, 101 Va. Ill, 45 S. E. 203. 35. Starr v. U. S., 163 U. S. 614; 11 End. PI. & Pr. 91-93. 36. Fishburne v. Engledove, 91 Va. 548, 22 S. E. 354; N. & W. R. Co. v. Poole, 100 Va. 148, 40 S. E. 627. 275-276 TIME OF GIVING 509 275. Oral or written. In the absence of statute, instructions may be oral, or in writ- ing, or partly one and partly the other. When statutes exist they are generally held to be mandatory, and apply to explanations and modifications as well as to the original instruments. 37 In Virginia we have no statute on the subject, but the practice is to give all instructions in writing. 276. Time of giving. The time of giving instructions is regulated by statute in some states, and, where so regulated, that time should be observed, but, in the absence of statute, it rests in the sound discretion of the trial court. Unless there is some good reason to the con- trary, they should be applied for and given before argument, for in this way much bad law and useless discussion is kept from the jury. Developments, however, may render it proper, if not necessary, to give instructions during a concluding argument, or even after the jury has retired to consider its verdict. Certainly they may be then given by the court on a request of the jury, but generally it is not allowed as a matter of right at the instance of a party. 38 Order of Reading to Jury. In West Virginia, the statute not only prescribes the time when instructions shall be given, but also the order in which they shall be read to the jury. The statute declares: "All instructions shall be read before the ar- gument to the jury in the following order, to wit: the instruc- tions given by the court upon its own motion, if any, shall be read first; those given upon the motion of the plaintiff shall be read second, and in any event before the instructions for the de- fendant are read ; and those given upon the motion of the de- fendant shall be read last ; no instructions shall be read twice, unless it is necessary to read them after being changed as pro- vided in section one of this chapter, or upon special request by 37. Abbott's Civil Trial Brief, 411-425. 38. Williams v. Com., 85 Va. 807, 8 S. E. 470; State v. Cobbs, 40 W. Va. 718, 22 S. E. 310; B. & O. v. Polly, 14 Gratt. 457-8; Hoge v. Turner, 96 Va. 624, 32 S. E. 291; Lewis v. Com.. 78 Va. 732; 11 Encl. PI. & Pr. 283-6. 510 INSTRUCTIONS 277-278 the jury." 39 This act has been held to be mandatory, and hence trial courts have no discretion in the premises, but must read in- structions in the order named, or else it is reversible error. 40 In construing this act, it has also been held that if an instruction of- fered by a party is refused "as offered," and is amended by the court over the objection of the party offering it and given in its amended form, it must be read as an instruction given by the court upon its own motion, and read in that order, else it will be reversible error, but that the right given by the statute may be waived, and will be deemed to have been waived unless objection is made at the time the instructions are read to the jury. 41 There is no such statute in Virginia. 277. Multiplication of instructions. The Court of Appeals of Virginia has more than once warned against the multiplication of instructions. 42 In a recent case it repeats the caution, saying that the practice of asking for a great number of instructions in cases which involve few law questions has grown up in recent years, and, instead of aiding the juries in reaching right conclusions, tends to mislead and confuse them, and imposes a heavy and unnecessary burden upon trial courts. 43 278. Find for the plaintiff. An instruction which concludes with a direction to the jury to "find for the plaintiff" or "find for the defendant," as the case may be, should state a complete case, and embrace all elements necessary to support a verdict. It should also be based upon the evidence in the case, and not be partial, nor omit all reference 39. Acts W. Va. (1907), ch. 38, 5, p. 224. 40. State v. Clark, 64 W. Va. 625, 63 S. E. 402; State v. Huffman (W. Va. Jan. 12, 1912), 73 S. E. 292, 295. 41. See cases cited in last note. 42. Bright Hope R. Co. v. Rogers, 76 Va. 454; Newport News Co. v. Beaumeister, 102 Va. 677, 43 S. E. 821; Wallen v. Wallen, 107 Va. 131, 57 S. E. 596. 43. Seaboard R. Co. v. Vaughan, 104 Va. 116, 119, 51 S. E. 452. 279-280 HOW INSTRUCTIONS ARE SETTLED 511 to material evidence in the case. 44 If the evidence be such that if the jury believe one state of facts, they should find for the plaintiff, and if they believe another state of facts, they should find for the defendant, then the instruction should be given in the alternative. 279. Inviting error. A party cannot complain of an erroneous instruction given at his instance. He cannot invite the court to commit an error, and then complain of it. He is estopped from making such an objection. 45 280. How instructions are settled. After the evidence is all in, the court usually affords counsel an opportunity to prepare such instructions as they may desire to offer. Counsel on each side thereupon prepare such instruc- tions as they think necessary or proper to present their views of the law to the jury. The argument on these instructions is gen- erally heard in chambers, away from the presence of the jury. Counsel repaip to such place as the judge may designate to hear argument on the instructions. Usually counsel for the plaintiff will read such instructions as he desires the court to give, and then counsel for the defendant reads the instructions he has pre- pared. Generally, counsel for the plaintiff will then argue be- fore the court his ground for thinking that the instructions ten- dered by him should be given, and the objections, if any, which he has to the instructions tendered by counsel for the defendant. Counsel for the defendant then makes his argument in support of his own instructions, and points out and argues the objections which he has to instructions tendered by the plaintiff. To this argument counsel for the plaintiff generally replies. The whole 44. Sun Life Assurance Co. v. Bailey, 101 Va. 443, 44 S. E. 692; Wright v. Agelasto, 104 Va. 159, 51 S. E. 191; Vaughan Mach. Co. r. Stanton Co., 106 Va. 445, 56 S. E. 140; So. Ry. Co. v. Blanford, 105 Va. 373, 54 S. E. 1; Life Ins. Co. v. Hairston, 108 Va. 832, 62 S. E. 1057. 45. Richmond Traction Co. v. Clarke, 101 Va. 382, 43 S. E. 618; Bugg v. Seay, 107 Va. 648, 60 S. E. 89. 512 INSTRUCTIONS 280 process, however, is very informal. The argument is before the judge in chambers, and there is no definite order fixed as to who shall open and conclude. This will be regulated in large meas- ure by the trial judge. After the arguments pro and con the judge takes time to consider, if he so desires, if not, he will pass on the instructions at once, designating which he will give and which he will refuse, sometimes adding one or more independ- ent instructions of his own, and frequently making some addi- tions to or subtractions from those offered by counsel. Instruc- tions are no part of the record, and hence if either party is dissatisfied with the ruling of the court, either on his own instruc- tions or on the objections to the instructions of his adversary, or to instructions given by the court, or modifications of instructions made by the court, he states that he excepts to the ruling of the court thereon, and at the proper time prepares and tenders his bill of exception. A fair copy of the instructions which the court decides to give is generally then made, the court and coun- sel repair to the court room, and the court gives the instructions to the jury, and the trial proceeds. CHAPTER XXXVI. BILLS OF EXCEPTION. 281. Origin and purpose of bills of exception. 282. How points are saved. 283. Rejected evidence. 284. Competency of witnesses. 285. Form of bill of exception where evidence is excluded. 286. Supplying defects by reference. 287. Granting or refusing instructions. 288. Motion for new trial. 289. Evidence to support an instruction. 289a. Verdict not supported by the evidence. 290. Time and manner of filiner. 291. Evidence of authentication. 281. Origin and purpose of bills of exception. Bills of exception are wholly creatures of statute. They were unknown to the common law and were unnecessary as no writ of error would lie on rulings on questions of fact. 1 The record in a civil case "is made up of the writ (for the purpose of amend- ment, if necessary), the whole pleadings, papers of which pro- fert is made and oyer demanded, and such -as have been spe- cially submitted to the consideration of the court by a bill of ex- ception, a demurrer to the evidence, or a special verdict, or are inseparably connected with some paper or evidence so 'referred to. These, with the several proceedings at the rules, or in the court, until the rendition of the judgment, constitute the record in common law suits, and are to be noticed by the court, and no others." 2 It will be observed that this record is a mere skele- ton, and gives nothing of the interesting details of a trial. It contains none of the evidence nor the rulings of the trial court on its acceptance or rejection. It does not contain the instruc- 1. Battershall v. Roberts, 107 Va. 269, 58 S. E. 588; 3 Encl. PI. & Pr. 378. 2. White f. Toncray, 9 Leigh 351, cited and approved in Roanoke, etc., Co. r. Karn, 80 Va. 589. 33 514 Bins OF EXCEPTIONS 282 tions of the court, nor the rulings of the court in matters affecting the alleged misconduct of the parties or their counsel, or of third persons, nor of the jury. If any of these matters are to be made a ground of complaint in the appellate court, they must be made a part of the record of the trial court, and the method of doing this is by a bill of exception. Of course, no bill of exception is necessary to introduce a matter already a part of the record. If the record sufficiently shows a fact, for instance, that -a motion was made to require a bill of particulars, either of the plaintiff's claim or the defendant's grounds of defence, and was overruled, no bill of exception is necessary, as the order showing the ruling of the court is in the nature of a judgment, and is per se a part of the record. 3 The object of the bill is to put that into the re- cord which would not otherwise be there, or appear. The mere copying of instructions into the record by the clerk, however, will not suffice. The noting at intervals in stenographic notes that objections to questions were made and overruled, and exceptions taken, is not sufficient. There must be a bill of exception signed by the judge. 4 , The rule is otherwise in West Virginia. 5 Nor will the bill be dispensed with, although counsel so stipulate in writing. 6 The office of the bill is "to set forth a specific and definite al- legation of error, and so much of the evidence as is necessary to a clear apprehension of the propriety or impropriety of the ruling made by the court." 7 Two or more points may be saved in one bill if they are dis- tinctly set forth with necessary circumstantiality, but the better practice is to file a separate bill for each point saved. 8 282. How points are saved. The trial of a case is not ordinarily stopped in order to pre- 3. Driver v. So. R. Co., 103 Va. 650, 49 S. E. 1000; Blue Ridge L. & P. Co. v. Tutwiler, 106 Va. 54, 55 S. E. 539. 4. N. & W. v. Shott, 92 Va. 34,. 22 S. E. 811. 5. Kay v. Glade Creek & R. R. Co., 47 W. Va. 467, 35 S. E. 973. 6. Kibler v. Com., 94 Va. 804, 26 S. E. 858. 7. Holleran v. Meisel, 91 Va. 143, 21 S. E. 658. 8. Holleran v. Meisel, supra', N. & W. v. Shott, supra. 283 REJECTED EVIDENCE 515 pare the bill of exception. There are several good reasons for this. One is to save delay, and another is that the case may be decided in favor of the party filing the bill of exception, and then he would not need a bill being content with the verdict. When a question is asked which is objected to, the party simply says, "I Object," and assigns his reasons for his objection, and if the trial court decides adversely to him, he says, "I wish to save the point," or, "I except.'- A uis darrein continuance. To be such it must set up some matter which has arisen since former pleadings were filed. It is not sufficient that it was not then knozwi if it in fact existed. "There is a distinction between a plea setting up matter of de- fence which has arisen since the commencement of the action, but before plea, and one alleging matter originating after plea pleaded. Those facts which occur after the commencement of the suit, but before plea pleaded, must be pleaded to the further maintenance of the suit." 7 Payment, release, and other defences arising since action commenced may be pleaded under the last mentioned plea. If such matters are pleaded along with other defences, ( where more than one plea is allowed) then there is no waiver of the other defences, although matter so pleaded arose since the institution of the action. Pleadings, as a rule, speak as of the time of the institution of the action, and general issues and special pleas, unless otherwise 6. See Andrews' Stephen, p. 200. and cases cited. 7. 17 Encl. PI. & Pr. 205. 580 MINOR INCIDENTS OF TRIAL 310 specially set forth, speak as of that date, hence matter arising after that date should be specially pleaded, though the plea would not be technically a plea puis darrein continuance. Neither pay- ment, nor any other matter arising since action brought,, can be shown under the general issue, but must be pleaded specially either to further maintenance of the suit (action) or puis darrein continuance.* In Virginia a defendant may plead as many several matters, whether of law or fact, as he may see fit, and therefore new mat- ters previously existing, though unknown to the defendant, may be pleaded as additional pleas, and not as substitntional, and it is not necessary to show on the face of the plea why there was de- lay in filing it, but if objection is made to the time of filing it, the reason may be shown dehors the plea. This is believed to be the rule as to matter not arising since the last continuance. But if the matter is really of the latter nature, is the plea setting it up substitutional ? Judge Tucker thinks not, but admits he knows of no case taking his view. 9 He simply bases his argu- ment on the statute allowing the defendant to file as many pleas as he desires, and this seems to be sound. The authorities, in the absence of statute dealing with pleas, seem to hold otherwise, and to regard such a plea as a waiver of all other defences. There seems to be no Virginia case directly in point. 10 Pleas in abatement puis darrein continuance, contrary to the general rule, may be pleaded after pleas in bar, but must be at the first term after the matter of abatement arose. 11 While any proper matter may be pleaded specially puis darrein continuance, the student will observe that there is no such plea as a plea puis darrein continuance. To speak of such a plea in the sense of setting up any particular defence is simply absurd. 8. Nichols v. Campbell, 10 Gratt. 560. 9. Tucker's Pleading, p. 88. 10. See Crawford v. Burke, 105 U. S. 176, citing 111. cases; 17 Encl. PI. & Pr. 262, giving full citation of cases; Austin v. Jones, Gilmer, 341. 11. 4 Minor (3d Ed.) 729. 311 PROFERT AND OVER 581 311. Profert and oyer. It is a rule of pleading that where a deed is alleged under which a party claims or justifies, profert of such deed must be made, that is, it must be tendered along with the pleading. This tender was made by the language in the pleading "now to the court here shown." For example, in debt on a bond, the allega- tion is that the defendant "made his certain writing obligatory, now to the court here shown, bearing date, etc." This formula is called making profert. The rule in general applies to deeds only. No profert, therefore, was necessary of any writing, agreement or instrument not under seal, nor of any instrument, which, though under seal, does not fall within the technical defi- nition of a deed, as, for example, a sealed will or award. Exec- utors and administrators, however, were required to make pro- fert of letters testamentary and letters of administration. The rule applies only to cases where there is occasion to men- tion the deed in pleading. Where the course of allegation is not such as to lead to any mention of the deed, a profert is not necessary, even though in fact it may be the foundation of the case or title pleaded. Furthermore, the rule extends only to cases where a party claims or justifies under a deed, and hence profert is not necessary of a deed which is mentioned only as a matter of inducement. 12 This profert of the deed, however, did not make it a part of the record, and if the opposite party wished to have it made a part of the record, so as to make it the basis of any pleading on his part, he asked to have it read, which was called craving oyer of it. In Virginia, and West Virginia it is provided by statute that it shall be unnecessary "to make profert of any deed, letters testamentary or commission of administra- tion, but a defendant may have oyer in like manner as if profert was made." 13 While it is unnecessary in Virginia for the plain- tiff to make formal profert of a sealed instrument which he makes the basis of his action, yet it is the practice for him to file such instrument or a copy thereof along with his declaration. If 12. Stephen on Pleading, 256; Langhorne v. Rich. Ry. Co., 91 Va. 369, 22 S. E. 159. 13. Code. 3244; W. Va. Code, 3853. 582 MINOR INCIDENTS OF TRIAL 311 he does so, and the defendant wishes to have oyer of it, he simply takes it in his pleading. He does that in this way. He writes out his pleading, in which he says : "The defendant comes and craves oyer of the deed in the plaintiff's declaration mentioned, which, being read to him, is in the words and figures following, to-wit: (here he copies into his plea the deed filed by the plain- tiff with his declaration) and thereupon the defendant for plea says." This, it will be observed, may be done at rules as well as in term. 14 If the plaintiff fails to file the deed along with his declaration, and it is necessary as the basis of the defence to be made by the defendant, he may give notice in writing to the plain- tiff to produce it, and, if it is a proper case, and can be produced, the court will compel its production, and when produced, oyer may be taken of it in the manner above indicated. 15 When oyer is thus had of the instrument it thereby becomes per sc a matter of record as fully to all intents and purposes as if it were copied at large in the plaintiff's declaration. The method of taking ad- vantage of defences arising upon oyer differs according to the circumstances of the case. If the object is to show a misdescrip- tion of a deed which is made the basis of the action, advantage is taken of it by a demurrer to the declaration. Thus, if a bond is misdescribed as to the date, amount, names of parties, or other- wise, the defendant comes and craves oyer of the bond, which, as seen, 'makes it a part of the declaration. It thereupon appears on the face of the declaration that the bond described in the dec- laration is different from the bond as it actually exists. This makes a variance apparent on the face of the declaration, and the course of the defendant is to demur. 16 We have heretofore seen that the writ may be consulted for the purpose of amendment so as to support a judgment, but not to defeat it, and, as a general rule, it is no part of the record. But if there is a variance between the declaration and the writ, and the defendant wishes to take advantage of this variance, he may do so only by a plea in abatement. The course of the defendant in such case, therefore, would be to crave oyer of the writ and 14. Smith ?'. Lloyd, 16 Gratt. 295. 15. Smith v. Lloyd, supra. 16. Ante, 205, p. 349. 311 PROFERT AND OVER 583 plead in abatement the variance between the declaration and the writ. 17 If, however, the only variance is misnomer of a party, this is not the subject of a plea in abatement in Virginia, but on defendant's motion, and on affidavit of the right name, the decla- ration is amended by inserting the right name. ls If the object of the defendant is not to show a misdescription of the deed sued on, nor a variance between the declaration and the writ, but to base his defence on the terms of the deed, the course of the defendant is to crave oyer of the deed, and of the condition thereunder written, if there is one, and then to plead the substance of the matter relied upon. This generally arises in cases where the plaintiff has sued upon a deed with some condi- tion thereunder written. In an action of debt on a bond with collateral condition there were two modes of suing both in England and in Vir- ginia. The plaintiff might declare upon the obligatory part of the bond, taking no notice whatever of the condition, that is, the action appeared to be for the penalty of the bond. If then the defendant, as he might, craved oyer of the bond and of the con- dition underwritten, and pleaded that he had performed the con- dition of the bond, the plaintiff must then by his replication as- sign particularly the breaches of the condition, or if there was no appearance for the defendant, it is said that the plaintiff must assign the breaches by a suggestion of them in writing. In either event, he might assign as many breaches as he chose. This was one remedy that the plaintiff, had, or he could set out the bond with the condition underwritten and assign specific- ally the breaches in his declaration, and that is what was generally done. In this latter case, of course, there was no necessity for craving oyer, as the plaintiff has set out the bond with the con- dition thereunder written. Now it is believed that the statute in Virginia 19 compels a plaintiff to adopt the latter course, as the statute declares that the plaintiff shall in his declaration or scire facias assign the specific breaches, and this is believed to be man- 17. Code, 3259. 18. Code, 3258. 19. Code, 3394. 584 MINOR INCIDENTS OF TRIAL 312 datory. If so, a declaration which failed to assign breaches would be bad on demurrer if the defendant craved oyer of the writing obligatory and demurred. 20 If the instruments sued on is sealed, but is misdescribed in the declaration, and the defendant wishes to take advantage of the misdescription, he may do so in either of two ways: (1) he may crave oyer and demur as hereinbefore set forth, or (2) with- out craving oyer, he may wait until the deed is offered in evi- dence, and, when offered, object to its reception for the variance. In the latter event, he in effect says to the plaintiff, "You have sued me on one obligation, and you now offer in evidence another." This cannot be done as the allegation and proof must correspond. If, however, the instrument sued on is not sealed, here there can be no oyer of it, and hence there is no method of taking advantage of the misdescription except to object to its introduction in evidence in the manner hereinbefore pointed out. If the instrument sued on is in fact a sealed instrument, but is not sued on as such, that is, the plaintiff in his declaration does not declare on it as a sealed instrument, the defendant cannot crave oyer of the instrument, but can only take advantage of the variance by objecting to its introduction when offered in evi- dence. 21 At common law, if the plaintiff sued upon a sealed instrument, and failed to make profert of it in his declaration as he should do, it was good ground for demurrer ; but, as hereinbefore pointed out, no profert is now necessary in Virginia, but in all cases where profert would be proper oyer may be had as though profert were made, and, if the instrument is not actually pro- duced, its production may be compelled upon notice. 312. Variance. In every system of reasoning, and certainly in all modes of procedure, the allegation and the proof must correspond. A party will not be allowed to hale his adversary into court on one statement of facts, and then prove another. The variance, how- 20. 4 Min. Inst. 703-'4. 21. Grubbs v. Nat. Ins. Co., 94 Va. 589. 27 S. E. 464. 312 VARIANCE 585 ever, between the allegation and the proof must be in a material matter. Mere immaterial variances will be treated as surplus- age. The cases illustrating what variances are material and what are not are so numerous that it would be impracticable to cite them. A few are mentioned in the margin. 22 Assuming that a variance is material, it is important to determine how the objec- tion is to be raised, and when raised, how, if at all, it may be obviated. If the objection is that a written instrument, sealed or unsealed, varies or is different from the instrument as set forth in the pleadings, in other words there is a misdescription, the method of taking advantage of it has been pointed out in the last preceding section. So also, there was pointed out in that section the method of taking advantage of a variance between the writ and the declaration. The variance now to be discussed, and the one which most frequently arises, is a variance between the alle- gations in the pleadings, and the evidence, other than writings, offered to support them. The object of a declaration is to set forth the facts which constitute the cause of action so that they may be understood by the defendant who is to answer them, by the jury who are to ascertain whether such facts exist, and by the court which is to give judgment. 23 Supposing the declaration or other pleading to be sufficient, the proof must substantially correspond with it. If it does not, objection should be made on that account, but this objection should be made at 'the proper time. In case of variance between the evidence and the allega- tions, the usual and correct practice is to object to the evidence when offered, or if it is already in, to move to exclude it. At- tention is thus called to the discrepancy and an opportunity af- forded the adverse party to meet the emergency in a proper case in one of the modes prescribed by law. The objection cannot be raised for the first time in the appellate court. 24 It will be ob- 22. Rich. Ry. Co. r. Bowles, 92 Va. 739, 24 S. E. 388; Eckles v. N., etc.. R. Co., 96 Va. 69, 25 S. E. 545; Rich. Ry. Co. v. West, 100 Va. 184, 40 S. E. 643; Moore r. B. & O. R. Co., 103 Va. 84, 48 S. E. 887. See. also, citations to 3384 of the Code. 23. Eckles f. X. & W. R. Co., 96 Va. 69., 25 S. E. 545. 24. Portsmouth Street Ry. Co. r. Peed. 102 Va. 662, 47 S. E. 850; Moore Lime Co. r. Johnston, 103 Va. 84, 48 S. E. 557; Trump v. Tidewater, 46 W. Va. 238. 32 S. E. 1035. Section 3384 of the Code is as follows: "If. at the trial of any 586 MINOR INCIDENTS OF TRIAL 312 served that the method of avoiding the effect of a variance between the allegations and the proof provided by the Vir- ginia statute is either (1) by allowing the pleadings to be amended, or (2) the court may direct the jury to find ihe facts, and, after such finding, if it considers the vari- ance such as could not have prejudiced the opposite party, shall give judgment according to the right of the case. Courts, in the exercise of their general jurisdiction, may permit plead- ings to be amended independently of statute, except in so far as they are prohibited by statute. 25 The subject is largely placed in the discretion of the trial court by the Virginia statute which allows pleadings to be amended on such terms, as to payment of costs or postponement of the trial, or both, as it may deem rea- sonable. Generally, the trial courts are liberal in allowance of amendments, and, unless the amendment is of such nature as would permit the introduction of evidence which might take the opposite party by surprise, no delay is occasioned, but the amend- ment is made at the bar, and the trial proceeds as though no vari- ance had taken place. If the amendment would occasion sur- prise by permitting the introduction of evidence which would otherwise not be admissible, then the case should be continued, and the opposite party permitted to make such amendment of his pleadings in reply as may be necessary. Of course, a party is never permitted to make an entirely new case by his amendments. The Virginia Court of Appeals has made frequent reference to the provisions of section 3384 of the Code, permitting a special ver- dict finding the facts, and there may be cases where this method of procedure would be advantageous, but they are of rare occur- action, there appears to be a variance between the evidence and allegations or recitals, the court, if it consider that substantial justice will be promoted and that the opposite party cannot be prejudiced thereby, may allow the pleadings to be amended, on such terms as to the payment of costs or postponement of the trial, or both, as it may deem reasonable. Or, instead of the pleadings being amended, the court may direct the jury to find the facts, and, after such finding, if it consider the variance such as could not have prejudiced the opposite party, shall give judgment accord- ing to the right of the case." 25. Travis r. Peabody, 28 W. Va. 583. 313 VIEWS 587 rence ; the other provision of the statute with reference to amend- ments being the one usually adopted. If there is a variance be- tween the allegation and the proof, and objection is made on that account, and the party against whom the variance is alleged neither asks to amend his pleadings, nor for a special verdict finding the facts, the trial court should exclude the offered evi- dence.- If, however, notwithstanding the variance, no objec- tion was made to the admissibility of the evidence, and no mo- tion was made to exclude on account of the supposed variance, the objection must be considered on appeal as waived, and it is said that a different rule of practice would deprive the plaintiff in such case of the benefits of 3384 of the Code, noted in the mar- gin. 27 If the party should adopt the course of a special verdict finding the facts, and it should develop from the evidence that the variance is not material, and is such as could not have prej- udiced the opposite party, then of course the court will give judg- ment according to the right of the case, and thereby avoid a con- tinuance. An amendment, however, of the pleadings to conform to the facts where the variance is immaterial would disclose the immateriality of the variance, and, in such case, even if the plead- ings are amended, no continuance would result ; and hence, as stated, the procedure by special verdict is seldom resorted to. 313. Views. At common law "in most real and mixed actions, in order to ascertain the identity of the land claimed with that in the tenant's possession, the tenant is allowed, after the demandant has counted, to demand a rim* of the land in question, or, if the sub- ject of claim be a rent * * * a view of the land out of which it issues. This, however, is confined to real or mixed actions, for, actions personal, the view does not lie." 28 This sort of view is not known in Virginia, as the kind of actions to which it was applicable do not exist, but provision is made by statute to give 26. Richmond Spike Co. r. Chesterfield Coal Co., 102 Va. 417, 46 S. E. 397. 27. See ante, p. 585, note 24; Newport News R. Co. v. McCormick, 106 Va. 517, 56 S. E. 281. 28. Stephen on Pleading, 109. 588 MINOR INCIDENTS OF TRIAL 313 a jury a view of the premises, or place in question, or any matter, or thing, relating to the controversy between the parties, when- ever it shall appear to the court that such a view is necessary to a just decision. 29 A motion under this statute is peculiarly within the discretion of the trial court, and its ruling refusing the view will not be disturbed, unless it is made clearly manifest that such view was necessary to a just decision, was practicable, and the request therefor denied to the probable injury of the party ap- pealing. 80 It is said that the view of the grounds at the scene of an accident which is the basis of an action may better enable the jury to apply the testimony disclosed upon the trial, but does not authorize them to base their verdict on such view, nor to be- come silent witnesses to facts which were not testified to in court. 31 The theory that a view by the jury is not a means of proof, and is only had to enable the jury to understand the evi- dence better, is also held by other courts. But it is said by Wig- more 32 that: "While, as already pointed out, autoptic prefer- ence is to be distinguished from evidence, both testimonial and circumstantial, in the strict sense of the word, it is, at any rate, an additional source of belief or proof, over and above the state- ments of witnesses and the circumstantial evidence. Its signifi- cance in this respect has often been discussed by courts in ruling upon instructions as to the nature of jury views, and, in spite of some opposing precedents, the generally accepted and correct doc- trine is that a view furnishes a distinctly additional source of 29. Section 3167 of the Code is as follows: "The jury may, in anjr case, civil or criminal, at the request of either party, be taken to view the premises or place in question, or any property, matter or thing, relating to the controversy between the parties, when it shall appear to the court that such view is necessary to a just de- cision: provided, that in a civil case the party making the motion shall advance a sum sufficient to defray the expenses of the jury, and the officers who attend them in taking the view, which expenses shall be afterwards taxed like other legal costs." 30. Gunn v. Ohio, 36 W. Va. 165, 14 S. E. 465; Davis v. Tel. Co., 53 W. Va. 616, 45 S. E. 926; B. & O. R. Co. v. Polly, 14 Gratt. 447, 470. 31. Kimball v. Friend, 95 Va. 125, 27 S. E. 901; Fox r. Balto. & O. R. Co., 34 W. Va. 466, 12 S. E. 757. 32. 1 Gr. Ev. (16 Ed.) 33-4. 314 RSTRAXIT 589 proof, i. e., the thing itself as autopically observed." And it has been held in \Yest Virginia that to instruct the jury to dis- regard everything they saw, and every impression they derived from the view would be to mislead them, because it is apparent that the view would be useless and would not conduce to a just decision if closed against the results naturally to be derived from an inspection of the premises. 33 It is impossible to deprive the jury of the impression derived from the view. They may at a mere glance get a more accurate description of the surroundings than any number of witnesses could ever give them, and it would seem impracticable to undertake to deprive them of evi- dence thus acquired. For example, any number of witnesses may_ testify as to the rotten and defective character of railroad ties, but when a jury takes a view of the premises and one juror pulls a spike out of a tie with his fingers, no amount of testimony of witnesses would make so great an impression upon the jury as to the condition of those ties. Views are allowed in criminal cases as well as civil, and may be had against the protest of the prisoner. \Yhether it is necessary for the prisoner to be present at the view has not been decided, but if the view be regarded as a method of proof, it would seem that his presence is necessary. If the pris- oner is present, it is not indispensable that his counsel should be also. 34 314. Retraxit. "A retraxit is an open and voluntary renunciation by the )laintiff in open court of his suit, and the cause thereof. The isual and proper order, where there is a retraxit, is as follows: 'This day came the plaintiff in his proper person, and here in )pen court acknowledges that he cannot support his action, and voluntarily withdraws the same, and renounces the cause thereof ; therefore on motion of the defendant by his attorney, it is con- sidered by the court that the plaintiff take nothing by his bill, nit for his false clamour be in mercy, etc., and that the defend- 33. Fox v. B. & O. R. Co.. 34 W. Va. 466, 12 S. E. 757. 34. Williams t'. Com.. 93 Va. 769, 25 S. E. 659; Litton r. Com., 101 r a. 833, 44 S. E. 923. 590 MINOR INCIDENTS OF TRIAL 315 ant go thereof without day, and recover against the plaintiff his costs by him about his defence expended.' Rob.'s Forms, p. 96. " 'It differs from a non-suit/ says the court in Hoover v. Mitch- ell, 25 Gratt. 390-91, 'in that the one (the latter) is negative, and the other (the former) is positive.' " :{r> A retraxit can only be entered by the plaintiff in person in open court, and, when entered, it not only terminates the present action, but bars all other actions for the same cause. 36 Where an action is "dismissed agreed," it stands on the same footing as a retraxit? 1 But, as hereinbefore pointed out, the mere dis- continuance of a case is not a retraxit, but stands on the same footing as a non-suit, and does not bar another action for the same cause. 38 "Where a plaintiff sued two defendants in another State, and subsequently filed an amended complaint in which, after setting out his reasons therefor, he states that he makes no personal claims against one of the defendants, and will take such steps as are necessary to discontinue his action as to that defendant, this does not amount to a retraxit, but to 3 mere discontinuance or dismissal of his action as to that defendant, and does not bar a future action against that defendant for the same cause, and hence cannot be pleaded as an estoppel." 39 315. Loss or destruction of notes or bonds. Where the destruction of choses in action, whether negotiable or non negotiable, has been distinctly proved by clear and sat- isfactory evidence, there is not and never was any good reason why an action at law might not be maintained thereon. The rule is different, however, where the proof is not of the destruc- tion of the paper, but of its loss, and here a distinction is drawn between sealed instruments and unsealed, and those which are negotiable and those which are not negotiable. 35. Tate v. Bank, 96 Va. 765, 771, 32 S. E. 476. 36. Muse v. Farmers' Bank, 27 Gratt. 252. 37. Hoover v. Mitchell, 25 Gratt. 387. 38. Gaboon v. McCulloch, 92 Va. 177 22 S. E. 225. 39. Portsmouth Oil Co. v. Oliver Ref. Co., Ill Va. 745, 69 S. E. 958. 315 LOSS OF DESTRUCTION OF NOTES OR BONDS 591 Scaled Instruments. It was a rule of the common law that whenever a plaintiff based his right of action upon a sealed in- strument, he was required to make profert of it, but if it was lost he could not do this. Equity then took jurisdiction of the matter on account of the inadequacy of the remedy at law, and not only undertook to set up the lost instrument, but, having all the parties before it, to enforce it. Many reasons have been assigned by the courts for the jurisdiction in equity and for the want of jurisdiction at law, amongst others, the inability to make profert, avoidance of the effect of an accident, the inabil- ity of a court of law to require indemnity, and the like. 40 It is said : "It was at one time doubted whether the loss of a deed was a good excuse for not making profert, and the jurisdiction of equity in such cases was founded on the idea which formerly existed, that there was no remedy at law, but in Read v. Brook- man, 3 T. R. 151, it was held by the Court of King's Bench that it was a sufficient excuse for not making profert of a deed that it was 'lost and destroyed by time and accident/ This is a lead- ing case on the subject, and placed it on the true ground, which is that the law compels no one to do an impossibility." 41 It has been held from an early date in Virginia that an action at law will lie on a lost bond, 42 and such jurisdiction has continued to be exercised. Negotiable Paper. If the paper, however, be negotiable, whether lost before or after maturity, no action at law would lie thereon, because upon payment? the party had a right to de- mand the surrender of the paper, and this the plaintiff could not do, nor could a court of law require proper indemnity for his protection. 43 It is s.aid, however, in the case cited in the margin, that the action might be maintained if the note had been destroyed, or if, at the time of trial, a recovery upon the lost note would be barred by the statute of limitations, and it has been held in Maine that an action at law may be maintained 40. 13 End. PI. & Pr. 356, ff; 25 Cyc. 1610. 41. Smith i'. Lloyd, 16 Gratt. 305, 306. 42. Shields r. Com., 4 Rand. 541. 43. Moses 7-. Trice. 21 Gratt. 556; note 94 Am. St. Rep. 468. 592 MINOR INCIDENTS Of TRIAL 315 against the maker of a lost note, but the plaintiff may, in the discretion of the court, be required to furnish a reasonable kind of indemnity, or the case may be continued from term to term until the note is barred by the statute of limitations. 44 It will be observed that both the case in Virginia and the one in Maine seem to authorize an action at law on the lost note, if at the time of trial the action on the lost note is barred by the statute of limitations. This would seem to be a somewhat doubtful proposition, and that the statement should be that the action should lie if at the time when the action was brought, and not at the time of trial, it would be barred by the statute of limita- tions. In an action on a negotiable note, the note is a necessary part of the plaintiff's evidence, and there can be no judgment for the plaintiff without the production of the note. 45 The re- sult is that in Virginia and other states, which hold that a court of law has not the necessary machinery to require proper indem- nity, no action at law will lie on lost negotiable paper. The rule is otherwise in some States. 46 Non-Negotiable Paper. If the paper was not negotiable, the finder could not transfer good title to any party, and the party bound could always make his defences as well against the finder or party holding under him as against the true owner. No in- demnity was necessary there, and consequently the right to main- tain an action at law seems to be clear. 47 Summary. Prior to the recent Virginia statute, now to be considered, an action at law oould be maintained on lost bonds, and lost choses in action of any kind, provided they were not negotiable. If the paper was negotiable, and there was clear and satisfactory proof that it was destroyed, an action at law could likewise be maintained, but upon negotiable paper which was simply lost or mislaid and not destroyed, no action at law would lie. Such was the state of the law in Virginia when the present statute was enacted. 44. Mathews v. Mathews, 97 Me. 40, 53 Atl. 831, 94 Am. St. Rep. 464, and note. 45. Davis v. Poland, 92 Va. 225, 23 S. E. 292. 46. Note, 94 Am. St. Rep. 471. 47. Note, 94 Am. St. Rep. 469, and cases cited. 316 COSTS 593 Present State of the Law in Virginia.^ By the present stat- ute in Virginia it is declared that an action at law or motion may be maintained on any past-due lost bond, note, or other evidence of debt, but the party in whose favor judgment is rendered is not to have the benefit of the judgment, nor be allowed to issue any execution upon it, unless and until he has executed a proper indemnifying bond as set forth in the statute. It will be ob- served from an examination of this statute (1) that it allows an action at law on lost negotiable paper, which was not al- lowed prior to the enactment of the statute; (2) that an indemni- fying bond is required in all cases of actions on lost bonds, notes, or other written evidences of debt. Prior to the statute an action at law lay on lost bonds and other non negotiable paper without requiring any indemnifying bond. (3) It is not necessary to give the indemnifying bond required by the statute before or at the time that the action is brought, but only after judgment. Giving the indemnifying bond is not a prerequisite to the right to obtain judgment, but is to the right to enjoy the benefit of the judgment, or have an execution thereon. (4) It should be fur- ther noted that formerly no bonds were negotiable, but the fact that an instrument is under seal does not now destroy its ne- gotiability, and, since the adoption of the negotiable instruments act, the law applicable to other negotiable instruments is likewise applicable to negotiable bonds, so far as affects the right to sue. (5) The statute leaves the former law unchanged as to paper which has been destroyed, and not simply lost. 316. Costs. The subject of costs in actions at law is generally regulated 48. Section 3377a of the Code is as follows: "Hereafter an action at law or motion may be maintained on any past-due lost bond, note, or other written evidence of debt: provided, however, that the party in whose favor judgment may be rendered shall not have the benefit of the same, nor shall execution issue upon it until he, or someone for him, shall have executed bond in such penalty as the court may deerri just, requiring him to refund such amount of principal, interest and costs, as may fully indemnify the person against whom said judgment has been rendered, in case the said past-due lost bond, note, or other evidence of debt should after- wards be discovered in the hands of an innocent holder." 38 594 MINOR INCIDENTS OF TRIAL 316 by statute. In suits in equity, costs are largely in the discretion of the trial court. 49 As a general rule, a party for whom final judgment is given, is entitled to recover his costs against the opposite party. 50 Usually, poor persons who are unable to sue or defend, and yet have a meritorious cause of action, have counsel assigned them by the court, and are given the services of the officers of the court without compensation. 51 It is the policy of the law not to encumber the courts of record with the trial of trivial cases. Consequently, it is provided in Virginia that, as a rule, if the plaintiff in an action of contract recovers less than $20, exclusive of interest, judgment shall be given for the defendant, unless the court will enter of record that the matter in controversy was of greater value than $20, exclusive of interest, in which case it may give judgment for the plaintiff for what is ascertained to be due him, with or with- out costs as it may seem right. 52 If the action be not upon con- tract, and the verdict found for the plaintiff be for less than $10, he is not permitted to recover any costs, unless the court will enter of record that the object was to try a right, irrespective of damages, or that the trespass or grievance was wilful or ma- licious. 53 If the court renders a judgment for costs in violation of this statute, it is in excess of the legitimate power of the court, and a writ of prohibition will lie to arrest the execution of the judgment so far as it is entered for costs. 54 If the plaintiff is a non-resident of the State, upon sugges- tion of that fact by the defendant, the plaintiff may be required to give security for the costs. The Virginia statute on this sub- ject is copied in the margin. 55 West Virginia has a correspond- 49. Code, chapter 173. 50. Code, 3545. 51. Code, 3538. 52. Code, 3544. 53. Code, 3543. 54. Wilkinson v. Hoke, 39 W. Va. 403, 19 S. E. 520. 55. Section 3539 of the Code is as follows: "In any suit (except where such poor person is plaintiff), there may be a suggestion on the record in court, or (if the case be at rules) on the rule docket, by a defendant, or any officer of the court, that the plaintiff is not a resident of this state, and that security is re- 316 COSTS 595 ing statute. 56 Where the suggestion of the non-residence of the plaintiff has been made, no other notice to him is required, as he has submitted to the jurisdiction of the court by bringing his action and must take notice of the proceedings therein. 57 An order that the suit be dismissed unless security for costs be given within sixty days, however, does not of itself operate a dismissal, but, after the expiration of the sixty days, an order must be made dismissing the action for want of security, and until such order has been made the plaintiff may give the se- curity, and if the defendant proceeds to trial without objection before the security is given, he will be deemed to have waived it. 58 The security, when given, applies only to costs in the trial court and not to costs in the appellate court. 59 After an order has been made, requiring the plaintiff to give security, for costs within sixty days, and he has failed to give it, and there has been a motion to dismiss for his failure, he should be allowed then to give the security, if he offers to do so, and it is error to sustain a motion to dismiss. 60 If the plaintiff has failed to give the security within the sixty days, but does give it at the next succeeding term thereafter, he cannot then compel the defendant to go to trial, if the latter moves for a continuance. 61 If, when a case is called for trial on the docket, the defendant, for the first quired of him. After sixty days from such suggestion, the suit shall, by order of the court, be dismissed, unless, before the dismission, the plaintiff be proved to be a resident of the state, or security be given before said court, or the clerk thereof, for the payment of the costs and damages which may be awarded to the defendant, and of the fees due, or to become due, in such suit, to the officers of the court. The security shall be by bond, payable to the com- monwealth, but there need only be one obligor therein, if he be sufficient and a resident of the state. The court before whom, or before whose clerk, such bond is given, may, on motion by a de- fendant or officer, give judgment for so much as he is entitled to by virtue of said bond." 56. W. Va. Code, 4125. 57. Dean r. Cannon, 37 W. Va. 123, 16 S. E. 444. 58. Enos v. Stansbury, 18 W. Va. 477. 59. Bailey v. McCormick, 22 W. Va. 95. 60. Goodtitle v. See, 1 Va. Cas. 123. 61. Jacobs r. Sale. Gilmer 123. 596 MINOR INCIDENTS OF TRIAI, 317 time, makes a motion to require security for costs, it is not clear that he is entitled to a continuance at that term, if the security be not then given. If he has had an opportunity to make the sug- gestion of the non-residence of the plaintiff at an earlier date and demand security for costs, but has failed to do so, it would seem that he should not be allowed to take advantage of his own re- missness in order to obtain a continuance. There may be cases, however, where he has not had this opportunity, as in case of proceedings under a fifteen day notice, and if he has not been negligent in this respect, he ought not to be required to go to trial. So, also, if a rule has been previously made upon the plain- tiff to give security, the defendant should not be forced into a trial until the security has been given. Cost of New Trial. The subject of costs when a new trial has been granted a party has already been discussed, ante, 304. 317. Non-suit. Non-suit, as generally used, applies only to a failure on the part of the plaintiff to prosecute his suit from any cause what- ever, and may occur at any time during the progress of the trial before the jury has retired to consider of their verdict, or, if the case is tried by the court without the intervention of the jury, before the case has been submitted to the court. 62 The term as used in Virginia includes also what is elsewhere embraced un- der the term non prosequitur (non pros), and nolle proseqni (nol pros)' The latter term, however, is generally applied to criminal cases dismissed by the commonwealth. The effect of a non-suit is simply to put an end to the present action, but is no bar to a subsequent action for the same cause. It is generally resorted to when the plaintiff finds himself unprepared with evi- dence to maintain his case, either in consequence of being ruled into trial when not ready, or when surprised by the testimony of a witness, or some ruling of the court, or other similar reason. 63 The object and purpose of suffering a non-suit is to avoid an ad- verse verdict, for if the pleadings be correct, and the evidence 62. Harrison v. Clemens, 112 Va. 371, 71 S. E. 538. 63. Gaboon v. McCulloch, 92 Va. 177, 180, 22 S. E. 225. 317 NON-SUIT 597 does not support the allegation of the pleadings, a verdict would be conclusive against the plaintiff and bar another action for the same cause. The matter would then be res judicata. For in- stance, if negligence be adequately charged in an action of tort, and the plaintiff, on account of the absence of some witness, or for any other cause, is unable to prove the case stated in his dec- laration, a verdict against him would be conclusive, and he could not thereafter bring a new action for the same cause. In order to avoid this consequence, he suffers a non-suit, or voluntarily dismisses his -action. The same result would not follow if a ver- dict were found against the plaintiff on one state of pleadings and a new cause of action is brought, setting out a different case. For example, if an action were brought against the endorser of a draft, and the declaration charged that the draft was drawn by John Crouch, but the evidence showed that the draft was in fact drawn by John Couch, and there was no amendment of the plead- ings, a verdict adverse to the plaintiff, on account of the variance, would not bar a new action by him charging the draft to have been drawn by John Couch. 64 It is provided by statute in Virginia that a party shall not be allowed to suffer a non-suit unless he does so before the jury retire from the bar. 65 Nor can a plaintiff dismiss his action without the defendant's consent, where the defendant has set up a counter claim against him. 66 But if no such counter claim has been set up, and the dismissal will not prejudice or oppress the defendant nor deprive him of any just defense or substantive right not available in a second action he may, ordinarily, upon payment of costs and the damages given by statute suffer a non- suit at any time before the case has been submitted to the jury, and they have retired from the court room, or, if heard by the court, before the case is submitted to the court hearing it as a common law case in lieu of a jury. 67 64. 7 Rob. Pr. 189; Graves Pleading (new), 38. 65. Code, 3387. 66. Code, 3303. 67. Harrison v. Clemens, 112 Va. 371, 71 S. E. 538; Kemper r. Calhoun, 111 Va. 428, 69 S. E. 358. As to non-suit at Rules for failure to file a declaration, see ante, 181. 598 MINOR INCIDENTS OF TRIAL, 317 There is another instance not generally technically called a non- suit, but which is in effect a non-suit. It is the case of a dis- continuance. If the defendant offers a plea which purports to answer only a part of the plaintiff's demand, the plaintiff should take issue on the plea and sign judgment for the residue, and if he fails to sign judgment for the residue, the case is discon- tinued and dismissed for failure to follow up the part unnoticed in the plea. At least, this was the rule at common law, and for- merly the rule in Virginia, but little attention has been paid to this in actual practice where the case is pending on the court docket, and the case is generally disposed of as if the plea had purported to answer the whole of the adverse allegation. If such an error, however, occurs at rules$ and the case is there dis- continued, the court at the next term may correct the proceed- ings at the rules, -and have the pleadings properly amended in court or remand the case to rules for that purpose ; but if the pro- ceedings are corrected in court without remanding to rules, it is said that the defendant is entitled to a continuance as a matter of right if he asks it. 69 It is the practice in some of the states to direct the plaintiff to suffer a non-suit where the plaintiff has failed to make out even a prima facie case, or where, if a verdict were rendered for him, the court would feel compelled to set it aside. 70 This is called a compulsory non-suit. A compulsory non-suit, however, does not bar another action for the same cause, though the rule is otherwise in South Carolina. 71 The grounds for compulsory non-suit in most cases seem to be prac- tically the same as those for directing a verdict, and where they are the same, no reason is perceived why the latter, which would generally be conclusive, should not always be adopted. We have no such practice in Virginia as granting a compulsory non-suit for insufficiency of the evidence. The court may advise the plain- 69. Southall v. Exchange Bank, 12 Gratt. 315, 16; Code, 3293, ante, 184. 70. Note 24 Am. Dec. 620-4; Hill v. Rucker, 14 Ark. 706; Ringgold v. Haron, 1 Cal. 108; Stuart v. Simpson, 1 Wend. (N. Y.) 376; Walker v. .Supple, 54 Ga. 178. 71. Cartin v. South Bound R. Co., 43 S. C. 221, 20 S. E. 979, 49 Am. St. Rep. 829, and note. 318 BILL OP PARTICULARS 599 tiff to suffer a non-suit, but cannot compel him to do so. 72 A defendant, however, may move to dismiss an action for the fail- ure of the plaintiff to prosecute it, but before doing so he must first have a rule against the plaintiff to speed his cause, and if in answer to such rule the plaintiff appears in court ready for trial, this is a conclusive answer to the rule. 73 Withdrawing a Juror. The antiquated practice of withdraw- ing juror, and thus breaking the panel, has already been referred to. 74 It formerly occurred only in criminal cases, but was sub- sequently applied to civil cases. It was usually adopted where the plaintiff was taken by surprise and could not go on with the prosecution, but was subsequently applied to a like case on the part of the defendant. The modern method of disposing of the action in case of genuine surprise at the trial which would work injustice if the trial were permitted to go on, is simply to dis- charge the jury and continue the case without resorting to the obsolete method of getting rid of the jury, though, as a matter of fact, it is common even now in the trial courts to make the entry that a designated juror was withdrawn and the residue of the jury from rendering a verdict discharged. 75 318. Bill of particulars. 76 Object of the Statute. The object of the statute is to give the opposing party more definite information of the character of the claim or defence than is generally disclosed by the decla- ration, notice, or plea, and to prevent surprise. 77 If the decla- 72. Ross v. Gill, 1 Wash. 89. 73. Carter v. Cooper, 111 Va. 602, 69 S. E. 944. 74. Ante, 252, p. 475. 75. Probably the best discussion of this subject to be found in any modern case is in Usborne v. Stevenson, 36 Oregon 328, 58 Pac. 1103, 78 Am. St. Rep. 778. 76. Section 3249 of the Code is as follows: "In any action or mo- tion, the court may order a statement to be filed of the particulars of the claim, or of the ground of defence; and, if a party fail to comply with such order, may, when the case is tried or heard, ex- clude evidence of any matter not described in the notice, declaration, or other pleading of such party, so plainly as to give the adverse party notice of its character." 77. The bill of particulars itself, however, may be so lengthy as MINOR INCIDENTS OF TRIAL 318 ration or other pleading does not present distinctly the grounds of action or defence the opposing party may be required to file such a statement of the particulars as will put the applicant for the bill in possession of the needed information. 78 When furnished by a defendant, it is generally intended to limit the scope and operation of the general issue, and to confine the introduction of evidence to the particular defence which the defendant has disclosed. 79 If the pleadings of either party already sufficiently set forth the grounds of action or defence, no bill of particulars is necessary. If the bill, when filed, does not furnish the neces- sary information, the mode of procedure is to object to the bill and ask the court to require a more specific statement. If a de- fendant pleads the general issue, but fails or refuses to state his ground of defence, when called for, he may, nevertheless, offer evidence to disprove the case sought to be proved by the plaintiff. Section 3249 of the Code Va., was not intended to de- prive the defendant of this right. His evidence, however, will be restricted to the point covered by his plea, to wit, a denial of what the plaintiff would be obliged to prove in order to maintain his action, and does not extend to matters of confession and avoidance. The bill of particulars is no part of a declaration or plea, and if not sufficient is not the subject of demurrer. 80 In What Cases Required. It is said that there is no inflexi- ble rule as to the class of cases- in which a statement of particu- lars of the plaintiff's claim or of the defendant's grounds of de- fence are required, but it rests in the sound discretion of the trial to give .little information as to what the real ground of action or defence is (for example, in Ches. & O. R. Co. v. Hoffman, 109 Va. 44, 63 S. E. 432, the defendant specified twenty-five grounds of de- murrer to the evidence) but the statute seems to have made no pro- vision against a multiplicity of particulars. 78. Richmond v. Leaker, 99 Va. 6, 37 S. E. 348; Tidewater Quarry Co. v. Scott, 105 Va. 160, 52 S. E. 835; Richmond v. Wood, 109 Va. 75, 63 S. E. 449. 79. Oeters v. Knights of Honor, 98 Va. 201, 35 S. E. 356. 80. Geo. Campbell Co. v. Angus, 91 Va. 438, 22 S. E. 167; City Gas Co. of Norfolk v. Poudre, 113 Va. , 74 S. E. 158; Whitley v. Booker Brick Co., 113 Va. , 74 S. E. 160; Williams v. Simpson, 113 Va. , 74 S. E. 162. 318 BILL OF PARTICULARS 601 court, subject to review if plainly erroneous. 81 As already pointed out, no bill of particulars is necessary to be filed by a plaintiff where the declaration gives the defendant complete no- tice of the nature and character of the plaintiff's claim. 82 In an action to recover damages for a personal injury, where the dec- laration avers that it was the duty of the defendant to furnish suitable and reasonable tools, etc., with which to do the work, it is unnecessary to aver what the tools were, or to furnish any bill of particulars thereof. 83 But in a suit for damages, if a more specific statement of the element of damages be desired, it may be demanded under this statute. 84 Whether a defendant in ejectment can be required to state the particulars of his defence is not settled in Virginia. Usually a plaintiff in ejectment must recover, if at all, upon the strength of his own title and not on the weakness of that of his adversary, and it would seem doubtful, therefore, whether such defendant can be required to state the grounds of his defence. The ques- tion has been left open in Virginia. 85 But if the defendant in ejectment, when called upon for such bill, objects to filing it, his objection must be seasonably made. It comes too late after verdict, and in no event could the objection be raised by a mo- tion in arrest of judgment. 86 There appears to be no good rea- son why a plaintiff in ejectment may not be required to file a bill of particulars, if the needed information is not adequately set forth in the declaration. 87 Formality of the Bill. The statement of particulars does not constitute the issue to be tried, and need not be as formal or precise as a declaration or plea. If it is not sufficient, the court should require a sufficient statement, and if it is not furnished, exclude evidence of any matter not described in the notice, dec- laration, or other pleading, so plainly as to give the adverse par- 81. Driver r. So. R. Co., 103 Va. 650, 48 S. E. 1000. 82. Richmond v. Leaker, 99 Va. 6, 37 S. E. 348. 83. Richmond Loco. Works v. Ford, 94 Va. 627, 27 S. E. 509. 84. Wood v. Amer. Nat'l Bank, 100 Va. 306, 40 S. E. 931. 85. Carter v. Wood, 103 Va. 68, 72, 48 S. E. 553. 86. Va.-Tenn. Coal Co. v. Fields, 94 Va. 116, 26 S. E. 426. 87. King v. N. & W. R. Co., 99 Va. 625, 39 S. E. 701. 602 MINOR INCIDENTS OF TRIAL 319 ties notice of - its character. 88 It is sufficient if the particulars are set forth in such manner as will fairly and plainly give no- tice to the adverse party of its character, when the same was not so described in the pleading. 89 Insufficient Bill. Where the bill of particulars filed is insuffi- cient, the party should be required to file a new or additional bill that is sufficient, and upon failure to do so, his evidence should be excluded on matters not otherwise sufficiently described in his pleadings. The objection to the bill should be made before the trial begins. 90 If the objection is overruled, and it is intended to be relied upon in the appellate court, a proper bill of exception should be taken, but if the orders of the court show that the plaintiff moved the court to require the defendant to file a state- ment of his grounds of defence, but that the motion was over- ruled and the plaintiff excepted, this is sufficient without any bill of exception. 91 If a defendant, in an action of trespass on the case, has simply pleaded the general issue of not guilty, and fails to comply with an order requiring him to specify his grounds of defence, it seems that he may still be allowed to introduce evidence con- troverting the plaintiff's claim, as his plea gives notice thereof. 92 319. Second trial. Where a trial has been had of an action at law and a verdict rendered in favor of the plaintiff, which is set -aside on the mo- tion of the defendant on the ground that it is contrary to the evidence, the plaintiff should take a proper bill of exception to the action of the court in setting aside the verdict, in which all the evidence should be set out, the ruling of the court on the motion, and the objection thereto. Afterwards when the new (second) trial is to be had, two courses are open to the plaintiff: ( 1 ) he may go on and produce his evidence, and go through the 88. Columbia Accident Ass'n v. Rockey, 93 Va. 678, 25 S. E. 1009. See, also, ante, 73, p. 100. 89. Tidewater Quarry Co. v. Scott, 105 Va. 160, 52 S. E. 835. 90. N. & W. R. Co. v. Carter, 91 Va. 587, 22 S. E. 517. 91. Driver v. So. R. Co., 103 Va. 650, 49 S. E. 1000. 92. See cases cited in note 80 to this section. 319 SECOND TRIAL 603 trial from start to finish just as he did on the first trial, or (2) if he thinks that on the first trial he has made as strong a case as he could possibly make by his evidence on the second trial, he may simply decline to introduce any evidence at the second trial, and allow a verdict to be rendered for the defend- ant, which verdict he should move to set aside because contrary to the evidence, and take a bill of exception to the opinion of the court overruling his latter motion. The object and purpose of this proceeding is to avoid the trouble and expense of a second trial, and also probably to cut off any new evidence which the defendant may in the meantime have gotten to defeat his cause. It is provided by statute in Virginia that if there have been two trials at law, and proper bills of exception have been taken, the appellate court shall, on a writ of error, review the proceedings on the first trial first, and if it finds that error was committed in setting aside the first verdict, it shall set aside all the proceed- ings subsequent to that verdict, and enter up judgment on the verdict. 93 This is a practice frequently resorted to. 93. Code, 3484. CHAPTER XU. JUDGMENTS. 320. Scope' of chapter. 321. Judgments as liens. 322. Commencement of the lien. Date of commencement. Time for docketing. Order of satisfaction. 323. Duration of lien. 324. Docketing. 325. Judgments against executors, administrators and trustees. 326. Claim of homestead against judgments. 327. Instruments having force of judgments. 328. Death of debtor. 329. Priority of judgments inter se. 330. Judgments of federal courts. 331. Foreign judgments. 332. Collateral attack. 333. Void judgments. 334. Satisfaction of judgments. 335. Order of liability of lands between different alienees. 336. Enforcement of judgments. 320. Scope of chapter. Judgments may be either interlocutory or final. Final judg- ments may be for specific property, real or personal, or for money. As damages are measured by a money standard, judg- ments for money, as used in this chapter, will include damages. The following treatment will be limited to final judgments for money. A "judgment," as used in this chapter, denotes the final award and determination by any court of competent jurisdiction, law or equity, directing the payment of money. By statute in Virginia, it is immaterial whether the money be directed to be paid to an individual or into a court, or a bank, or other place of deposit. 1 1. Code, 3557, 3558. 321 JUDGMENTS AS LIENS 605 321. Judgments as liens. Judgments were not liens on land at common law, except upon debts due the King. By statute in England, substantially adopted in Virginia, a new execution was provided, the writ of elegit, by which a moiety of the lands of the debtor could be subjected to the satisfaction of the judgment. "The statute, however, did not in express terms give a lien on the land. It provided for the writ and prescribed the form for it. By its terms the officer was required to deliver to the creditor all the goods and chattels of the debtor, saving the oxen and beasts of his plow, and also a moiety of all the lands and tenements whereof the debtor, at the day of obtaining his judgment, was seized, or at any time afterwards, by reasonable price and extent, to have and to hold the said goods and chattels to the creditor as his own proper goods and chattels, and the said moiety as his freehold, to him and his assigns until thereof the judgment be satisfied ('until he shall have levied thereof the debt and damages aforesaid'). "It was by judicial construction given to this writ that the judgment was said to be a lien on the land. The lien resulted from the mandate of the writ to deliver to the creditor, by reasonable price and extent, a moiety of all the lands and tenements of the debtor whereof he was seised at the date of the judgment, or at any time afterwards. The lien was an incident of the writ and depended for its existence and continuance upon the capacity to sue out the writ. As long as this capacity lasted, even although revived after being temporarily suspended, the lien continued, and whenever it finally ceased the Hen which was dependent upon it was extinguished. "As the mandate of the writ extended to all the lands and tenements of which the debtor was seized at the date of the judg- ment, or at any time afterwards, it was by force of this mandate also that the lien of the judgment over-reached all subsequent conveyances, although made to purchasers for valuable consider- ation without notice of the judgment, and extended to all the lands of the debtor within the jurisdiction of the state." 2 2. Borst v. Nalle, 28 Gratt. 423, 428; Coombs v. Jordan, 3 Eland's Ch. 284, 22 Am. Dec. 236; 1 Black on Judgments, 397, 398. JUDGMENTS 321 In 1843 the legislature passed an act for the protection of sub- sequent purchasers for value and without notice, requiring judg- ments to be docketed in order to affect such purchasers. With this exception, the lien of the judgment continued in all respects as has been hereinbefore stated until the Revisal of 1849. Up to that time the lien was a mere incident of the writ of elegit; but, by the Revisal of 1849, judgments were made a direct, specific, legal lien on lands, and equity was given jurisdiction for the en- forcement thereof. The remedy in equity was thereafter pre- ferred in practice, and the elegit fell into disuse and was finally abolished. Now, in Virginia, the judgment is, by the terms of the statute, a fixed, definite, statutory, legal lien, "on all the real estate of, or to which such person is, or becomes, possessed or entitled, at or after the date of such judgment." 3 The estate of the judgment debtor may be legal or equitable, in fee or for life. An equity of redemption is an estate in land and subject to the lien of a judgment, 4 and, of course, when a contingent remainder becomes vested it is bound by judgments against the owner, 5 but a term of years is a chattel real, liable to the lien of a fi. fa. and is not such an estate in land as is bound by a judgment. Where the recording acts do not interfere, the judgment creditor can never subject any greater interest than the judgment debtor has. 6 If, however, there should be an exchange of land, and one of the parties should fail to record his deed, a judgment against the other, who had recorded his deed, will bind both tracts. 7 A mere transitory seizin of land, however, where the land is reconveyed to secure the purchase price does not vest in the grantee such interest in the land as will be liable to judgments against him in preference to the debt secured; for example, if land be conveyed to Smith and, at the same time, and as part and parcel of the same transaction the land is reconveyed by Smith to a trustee to secure the purchase money, the trust creditor has the preference, and the mere transitory seizin of Smith is not of 3. Code, 3567. 4. Michaux v. Brown, 10 Gratt. 612, 619. 5. Wilson v. Langhorne, 102 Va. 631, 47 S. E. 871. 6. Dingus v. Minn. Imp. Co., 98 Va. 737, 37 S. E. 353. 7. Price v. Wall, 97 Va. 334, 33 S. E. 599. 322 COMMENCEMENT OF THE UEN 607 such nature as to give a judgment against him priority over the trust deed. 8 A judgment creditor, whose judgment is duly docketed, has the right to subject the land of the judgment debtor to the pay- ment of his judgment in the condition in which he finds the land at the time of enforcement, without diminution or allow- ance for betterments placed upon it subsequent to the docketing of the .judgment. The statute on the subject of improvements has no application to such case. If, after the judgment is docketed, the debtor sells the land to a purchaser for value, who puts val- lable improvements on it, the creditor is entitled to subject the land and the improvements to the payment of his judgment, as the purchaser has constructive notice of the existence of the lien. 9 322. Commencement of the lien. At common law, a judgment rendered in court related back to ic first moment of the day on which the court actually began its term, and this, until comparatively recently, continued to be the law in Virginia. There have been many changes in the law in r irginia, both as to the time of the commencement of the lien, ind the time of docketing, as against subsequent purchasers for lue without notice, since from July 1, 1850. These changes lay be briefly tabulated as follows : DATE OF COMMENCEMENT OF LIEN. /. Judgments Rendered in Court: 1850, July 1, to 1902, March 29: The lien dates from the first day of term at which it is ren- iered, if there could have been a judgment on that day ; otherwise from the date of rendition. 10 1902, March 29, to date : The lien dates from the date of judgment. The lien of a judgment shall in no case relate back to a day or time prior to 8. Straus v. Bodeker, 86 Va. 543, 10 S. E. 570. 9. Nixdorf v. Blount, 111 Va. 127, 68 S. E. 258. 10. Code 1849, Ch. 186, 6; Withers v. Carter, 4 Gratt. 407, made statutory May 1, 1888. Code, 3567, 3568. JUDGMENTS 322 that on which the judgment was rendered. It would seem that judgments in court relate to first moment of day of rendition. 11 2. Judgments or Decrees in Vacation: 1850, July 1, to 1898, July 1 : The lien dates from' the first moment of the day of rendition. 12 1898, July 1, to date: The lien dates from the time of day of rendition. If more than one judgment is rendered on the same day, they take prior- ity according to time of day each is rendered, unless all are ren- dered at once, and then they date from the time of day the first judgment is rendered. The lien does not relate back to any earlier time. 13 11. Code, 3567. 12. Hockman v. Hockman, 93 Va. 455, 25 S. E. 534. 13. Acts 1897-'8, pp. 507, 508, amending Code, 3567 and 3283. Acts 1901-'2, p. 427, amending 3567. These sections, as amended, are as follows: Sec. 3567: "Every judgment for money rendered in this State heretofore or hereafter against any person shall be a lien on all the real estate of or to which such person is or becomes possessed or entitled at or after the date of such judgment. When more than one judgment or decree is confessed or entered in vacation on the same day, they shall have priority as among themselves in the or- der with respect to the time when they are respectively confessed or received for record in the clerk's office of the court entering the same; provided, that when several judgments are confessed to- gether they shall all be deemed to have been confessed as of the time the first was confessed, and the clerk shall enter such time on the margin of his order book. The lien of a judgment shall in no case relate back to a day or other time prior to that on or at which the judgment was rendered. This section is qualified by section 3649 and the three following sections." Sec. 3283: "In any suit a defendant may, in vacation of the court, and whether the suit be on the court docket or not, confess a judg- ment in the clerk's office, for so much principal and interest as the plaintiff may be willing to accept a judgment or decree for. The same shall be entered of record by the clerk in the order or minute book, and be as final and as valid as if entered in court on the day of such confession, except merely that the court shall have such control over it as is given by 3293. And the said clerk shall enter 322 COMMENCEMENT OF THE UEN 609 TIME FOR DOCKETING AS AGAINST SUBSEQUENT PURCHASERS FOR VALUE AND WITHOUT NOTICE. 1850, July 1, to 1872, March 13. Within one year after date of judgment, or 90 days before the conveyance. 14 1872, March 13, to 1873, March 28. Within 90 days after date of judgment, or 30 days before conveyance. 15 1873, March 28, to 1888, May 1. Within 60 days after date of judgment, or within 15 days before conveyance. 16 1888, May 1, to 1902, March 29. Within 20 days after date of judgment, or within 15 days before conveyance. 17 1902, March 29, to date (1912). Not a lien at all "until and except from the time it is duly docketed in the clerk's office of the county or corporation wherein such real estate may be." 18 ORDER OF SATISFACTION OF LIENS. Generally judgments are to be satisfied according to their re- spective priorities, but if several judgments are rendered against the same person at one term all will stand pari passu if ready for hearing and on the docket at the commencement of the term. Such judgments shall take priority over judgments by confession entered at the same term, and over judgments rendered at the upon the margin of such book opposite where the said judgment or de- cree is entered, the date and time of the day at which the same was confessed; and the lien of the said judgment or decree shall run only from the time of day of the confession." The object of these amendments was to overrule Hockman v. Hock- man, supra. 14. Code 1849, Ch. 186, 8. 15. Acts 1871-'2, p. 237. 16. Acts 1872-'3, p. 242. 17. Code 1887, 3570. 18. Acts 1901-'2, p. 427, Code (1904), 3570, as follows: "No judgment shall be a lien on real estate as against a pur- chaser thereof for valuable consideration without notice, until and except from the time that it is duly docketed in the clerk's office of the county or corporation wherein such real estate may be. -39 610 JUDGMENTS 322 same term in any proceeding by motion instituted during the term. 19 Under the provisions of 3567 of the Code every judgment is made a lien from the date of such judgment, which means the first moment of the day on which the judgment is rendered ; but this section must be read in connection with 3283 of the Code, declaring that the lien of a judgment or decree rendered in vacation upon confession, shall run only from the time of day of the confession. If, therefore, a judgment be confessed on the day that a court convenes, but before the actual session of the court, and a judgment be rendered in court on the same day, the judgment rendered in court has priority, as judgments by confes- sion "run only from time of day of confession," while judgments rendered in court are liens from the first moment of the day of rendition. Under 3576, judgments rendered in court are given priority over judgments by confession entered at the same term, and over judgments rendered at the same term in any proceeding by motion instituted during the term. As a proceeding by motion under 3211 of the Code is not deemed to have been instituted until the notice, duly executed, is returned to the clerk's office, 20 a judgment rendered on a notice given before the term began, but not returned until after the term had commenced, would be sub- 19. Acts 1901-'2, p. 427, Code (1904), 3576, as follows: "The liens of judgments against the same person shall attach to all his real estate liable thereto under 3567 in the order of the dates respectively of said judgments, and the judgments shall be made payable thereout in the same order; and where there are rendered at the same term of court two or more judgments against the same person in suits or in proceedings by motion, both or all of which were matured, at the rules or otherwise, and were upon the docket at the commencement of the term, there shall be no priority between or among them, but said judgments shall be paid ratably out of the real estate upon which they are liens. Such judgments shall take priority over judgments by confession en- tered at the same term, and over judgments rendered at the same term in any proceeding by motion instituted during the term. An extract of any judgment shall, upon motion, be granted to any party interested immediately upon its rendition, subject to the future ac- tion of the court rendering the same." 20. Furst v. Banks, 101 Va. 208, 43 S. E. 360. 323 DURATION OF LIEN 611 ordinate to judgments rendered during the term. Under the old law in Virginia, the fraction of a day rule was so far modified as to give validity to a judgment confessed on the day the court began but before the actual session of the court. It was held to be a judgment in vacation. It was not necessary to decide, nor was it decided, whether it would have priority over, or stand pari passu with, judgments rendered during the term. 21 The common law fiction of relation back to the first day of the term was restricted, however, to cases in which the judgment might have been rendered on that day. 22 This was made statutory in Virginia May 1, 1888, by 3568 of the Code, which has been recently repealed. One of the chief reasons for making judg- ments relate back to the first day of the term was to put all suitors on the same footing. Inasmuch as all cases ready for hearing might not be tried on the first day of the court, through no fault of the suitor, it was deemed proper that all should stand on the same footing. The time of the commencement of the lien of a judgment is reg- ulated, of course, by statute in each State. 23 323. Duration of lien. This, of course, is statutory, and to be determined by the law of the particular State. In Virginia the judgment is a lien and may be enforced as such as long as you can issue a fi. fa. thereon, or revive by scire facias, or sue on it. This is ten years at the least from the date of the judgment, and, if a fi. fa. has been issued and no return has been made thereon by an officer, the lien con- tinues for ten years from the return day of the fi. fa. 24 If any return by an officer has been made upon the fi. fa. the lien con- tinues for twenty years from the return day of the fi. fa., except that, if the judgment debtor dies, the judgment must be revived, 21. Brown v. Hume, 16 Gratt. 456. 22. Withers v. Carter, 4 Gratt. 407; 1 Black on Judgments, 442. 23. See 1 Black on Judgments, 443, for summary of statutes. 24. If a fi. fa. be made out and simply marked "to lie," and kept in the clerk's office, this is sufficient to extend the life of the judgment to ten years from the return day of that fi. fa. Davis v. Roller, 106 Va. 46, 55 S. E. 4. 612 JUDGMENTS 324 or a suit be brought to enforce it, within five years from the qualification of his personal representative. 25 The judgment may be thus kept alive perpetually by the issue of successive execu- tions within the statutory period. 26 If an execution has been issued in contravention of the express agreement of the parties and has been returned, it will, nevertheless, extend the life of the judgment, unless set aside in a direct proceeding for that purpose. The execution is not a void execution, and cannot be collaterally assailed. The agreement is personal between the parties and their privies, and cannot be enforced by third per- sons. 27 If the scire facias to revive the judgment is not sued out until after the judgment has become barred by the statute of limita- tions, and the debtor refuses to plead the statute and permits the judgment to be revived, the creditor would probably not be per- mitted under the Virginia holding to override the rights of purchasers and judgment creditors whose rights had become fixed prior to such revival. The question, however, is not free from difficulty. 28 324. Docketing. The object and purpose of docketing judgments is to give notice to subsequent purchasers for value and without notice. The Virginia statute has no application to creditors, but applies solely to subsequent purchasers, and hence docketing is only required for protection against such purchasers. 29 Another important pro- vision of the Virginia statute is, that a judgment shall not be deemed to be docketed unless it is indexed. 30 The rule is other- wise as to deeds. Generally, initials are allowed to be used instead of the full names. Whether the omission of a middle name, or 25. Code, 3577; Spencer v. Flanary, 104 Va. 395, 51 S. E. 849; Ackiss v. Satchell, 104 Va. 700, 52 S. E. 378; 5 Va. Law Reg. 672. As to what is a sufficient return on a fi. fa., see post, 346. 28. Ackiss v. Satchell, supra. 27. Baer v. Ingram, 99 Va. 200, 37 S. E. 905; Fulkerson v. Taylor, 100 Va. 426, 41 S. E. 863. 28. See, ante, 223. 29. Code, 3570. 30. Code, 3561. 324 DOCKETING 613 initial, or a mistake therein, will vitiate the docketing is largely dependent upon whether what is actually used is sufficient to give notice to a reasonable man. 31 In Virginia, it has been held that docketing and indexing a judgment against Mrs. John Smith is not notice of a judgment against Mary Smith, though she be in fact the wife of John Smith. 32 It has been made a question whether judgments in favor of the Commonwealth must be dock- eted, as the general rule is that statutes do not embrace the State unless expressly named. 33 The statute in Virginia requires at- torneys representing the commonwealth to cause such judgments to be docketed, but does not declare the effect of failure to docket. It is probably necessary. 34 Docketing judgments in a county out of which a city is sub- sequently carved is not constructive notice of such judgment to a purchaser for value of land acquired by the judgment debtor several years after the incorporation of the city. In order to affect such purchaser the judgment must be docketed in the city either within twenty days after the date of the judgment, or fifteen days before the conveyance of such real estate to the purchaser. 36 The proceeding by scire facias to revive a judgment is not a new suit but a continuation of the old one. Its object is to ob- tain execution of a judgment which has become dormant by lapse of time, and the order of revival when made is simply that the plaintiff may have execution for the debt and the costs. Such order is frequently spoken of as a judgment on a scire facias, but 31. See interesting discussion, 8 Va. Law Reg. 714. 32. Bankers' Loan & Investment Co. v. Blair, 99 Va. 606, 39 S. E. 231. In Fulkerson v. Taylor, 100 Va. 426, 41 S. E, 863, it was held that the production of an abstract of a judgment which says nothing as to docketing is no proof of the docketing, if that fact be an issue in the case. It was also held that "same," written under the judg- ment debtor's name in the index and giving reference to another page of the judgment docket, was a sufficient indexing of the judg- ment found on that page. 33. For a discussion of this subject, see 7 Va. Law Reg. 817, in which the writer arrives at the conclusion that such judgments must be docketed. 34. Code, 3565. 35. Wicks v. Scull, 102 Va. 690, 46 S. E. 297. Since this case was decided the statute as to docketing has been materially changed, as pointed out, ante, 322. 614 JUDGMENTS 325-326 such order of revival is not a judgment which can be docketed, and the docketing of such order, frequently called a judgment on the scire facias, is not constructive notice of the original judg- ment. 36 325. Judgments against executors, administrators and trustees. The judgment docket frequently contains judgments against defendants with the words "administrator," "executor," or "trus- tee," following. Whether or not such judgments are personal judgments against the fiduciary can only be ascertained by an examination of the order book of the court rendering the judg- ment or decree. If the judgment or decree simply adjudges that the plaintiff recover against A. B., executor, administrator, trus- tee, or the like, it is a personal judgment binding the real estate of A. B., and the added words are simply descriptio personal If it is intended that a judgment or decree shall be against a defendant in a representative capacity, then the judgment should be that the defendant do, out of the estate of his intestate, or tes- tator, as the case may be, if so much he hath, pay the amount. Such a judgment, however, cannot create as a lien on the estate of the decedent. All liens on his estate must be created in his life- time, or by operation of some statute. No judgment against his representative after his death can create any lien on his estate. 326. Claim of homestead against judgments. Although a right to claim a homestead accrues after judgment, if the homestead has not been waived, it prevails over the judg- ment under the homestead laws of Virginia. 38 The lien of a judgment, where homestead has not been waived, does not attach to the homestead at all until the expiration of the homestead period, at which time the judgments attach (in Virginia) to such of the real estate claimed as a homestead as remains, if any, in 36. Lavell v. McCurdy, 77 Va. 763; White v. Palmer, 110 Va. 490, 66 S. E. 44. 37. 1 Black Judgments, 214; Lincoln v. Stern, 23 Gratt. 816, 822; Fulkerson v. Taylor, 100 Va. 426, 41 S. E. 863. 38. Oppenheim v. Myers, 99 Va. 582, 39 S. E. 218. 327-329 PRIORITY OF JUDGMENTS INTER SE 615 the order of the priority of their dates. 39 The claim of a home- stead, however, does not suspend the running of the statute of limitations as to the judgment, and the creditor must keep his judgment alive in the method prescribed by law, else, if it is barred by the act of limitations when the homestead period ceases, it cannot be asserted against any of the property set apart as a homestead. 40 327. Instruments having the force of judgments. Delivery bonds in Virginia have the force of judgments when duly returned and recorded. The same is true of recognizances, but each must be docketed as required by law, as against sub- sequent purchasers for value and without notice. 41 328. Death of debtor. In Virginia, West Virginia, Massachusetts, Florida, Alabama, Texas, Kentucky and other States, a judgment rendered against the defendant, who dies after service of process but before judg- ment, and whose death has not been suggested on the record, is not void but voidable only. It is valid unless and until set aside in a direct proceeding for that purpose. It cannot be assailed collaterally. 42 The same is true in Virginia of a de- cree in a suit in chancery to subject lands of the defendant to the lien of a judgment, although the death of th. Hogeman, 13 W. Va. 718. 40 626 EXECUTIONS 338 execution can only issue on a final judgment, but it is provided by statute in Virginia that any court, after the fifteenth day of its term 1 ,, may make a general order allowing executions to issue on judgments and decrees after ten days from their date, although the term at which they are rendered be not ended, and that for special cause it may in any particular case, except the same from such order, or allow an execution thereon at an earlier period. 6 But this provision was not intended to, and does not, impart to such judgment the quality of finality so as to deprive the court during the term of the power to correct, or, if need be, annul an erroneous judgment. 7 This statute, however, has no application to office judgments which, we have seen, 8 become final on the adjournment of the court, or the fifteenth day thereof, whichever shall happen first. Office judgments after the time above stated have all the properties of final judgments, and executions may be issued upon them forthwith, without any order of the court, general -or special, for that purpose. No matter how long the court remains in session, it has no power to re-open or otherwise set aside an office judgment after the fifteenth day of the term. The rule that the record remains in the breast of the court during the term has no application to an office judgment after it has be- come final. 9 Usually a court will not direct an execution to is- sue immediately upon the rendition of the judgment, but if it is shown to the court that a defendant is about to remove his effects out of the jurisdiction of the court, or if any other good cause is shown, the court will direct an execution to issue forthwith. The plaintiff may have as many executions as he chooses, but he can have but one satisfaction. The executions may all be in force at the same time or successively, but if at the same time, the defendant, as a rule, only pays the cost of one. 10 But the 6. Code, 3600. 7. Baker v. Swineford, 97 Va. 112, 33 S. E. 542. 8. Ante, 185. 9. Enders v. Burch, 15 Gratt. 64. 10. Section 3597 of the Code is as follows: "Subject to the limitations prescribed by chapter one hundred and seventy-four, a party obtaining an execution may sue out other exe- cutions at his own costs, though the return day of a former execu- tion has not arrived; and may sue out other executions at the de- 338 ISSUANCE OF EXECUTIONS 627 issuing of numerous executions for the purpose of unnecessarily oppressing or injuring a defendant will not be permitted. 11 When the execution comes into the hands of the officer, he must endorse on it the year, month, day and time of day he receives it, and a penalty is put upon him for failure to do so, 12 for the lien dates from the time (not the day) it is delivered to the officer to be executed. 13 It is returnable within ninety days after its date, to the court on the first day of a term, or in the clerk's office to the first or third Monday in the month, or to the first day of any rules. 14 An execution may be issued within a year after the date of the judgment, and, if so issued, and there is no return thereon, other executions may be issued within ten years from the return day thereof, and, if there is a return, other executions may be sued out within twenty years from such return day. But if no execu- tion issues within a year, none can properly thereafter issue un- less within ten years the judgment be revived by scire facias. If, however, the first execution on a judgment is issued after a year, it is not a void process, but voidable only, and cannot be collaterally assailed. It is valid, and may be enforced unless fendant's costs, where on a former execution there is a return by which it appears that the writ has not been executed, or that it or any part of the amount thereof is not levied, or that property levied on has been discharged by legal process which does not prevent a new execution on the judgment. In no case shall there be more than one satisfaction for the same money or thing." 11. Sutton v. Marye, 81 Va. 329, 334. 12. Section 3589 of the Code is as follows: "Every officer shall endorse on each writ of fieri facias the year, month, day, and time of day, he receives the same. If he fail to do so, the judgment creditor may, by motion, recover against him and his sureties, jointly and severally, in the court in which the judgment was rendered, a sum not exceeding fifteen per cent, upon the amount of the execution." 13. Code, 3587. 14. Code, 3220; see this section, ante, 186, note 4. 15. Code, 3577. In West Virginia an execution may issue within two years, and thereafter if none has been so issued, instead of a scire facias or action, the procedure is by motion after ten days' notice, within ten years from the date of the judgment to obtain a new execution. Code, W. Va., 4150. 628 EXECUTIONS 338 quashed, or otherwise vacated by a direct proceeding for that purpose, and has the same effect by way of creating a lien as a regular execution. 16 In order to give an execution this additional vitality, that is, the right to sue out additional executions within ten years without reviving by scire facias, it is not necessary for the first execution to go into the hands of an officer to be ex- ecuted. It is sufficient if it is simply filled out by the clerk, marked "to lie," and stuck in a pigeon hole. A new execution may then be issued at any time within ten years from the return day of that execution. An execution is issued within the meaning of the statute when it is made out and signed by the clerk ready for the officer, although it has not been placed in the hands of the officer to be levied. Other executions may then be issued within ten years from the return day of that execution. 17 A scire facias, however, against a personal representative to revive a judgment against a decedent, must be brought within five years from the date of his qualification. If a sole plaintiff or defendant dies after judgment, but before fi. fa., is issued there must be a scire facias in either case to revive the judgment, as there can be no process for or against one who is dead; but if there be several plaintiffs or defendants, and one of them dies there may still be a fi. fa., without revival, but, as the execution must follow the judgment, it must run in the names of all of the plaintiffs against all of the defendants, although one or more plaintiffs or defendants be dead. As to the plaintiffs, the execu- tion survives to the survivor, and there is no need of revival, but the funds will be paid to the survivors. As to the defendants, the fi. fa. likewise survives against the surviving defendants, and, although all of the defendants in the judgment must likewise be defendants in the execution, it can only be levied on the goods and chattels of survivors. 18 An execution issued in contravention of an agreement of par- 'ties is not void, but voidable only, and cannot be collaterally as- sailed. It has all the effect of a valid execution until annulled. 16. Beale v. Botetourt Justices, 10 Gratt. 278; Fulkerson v. Taylor, 102 Va. 314, 318, 46 S. E. 309. 17. Davis v. Roller, 106 Va. 46, 55 S. E. 4. 18. Holt v. Lynch, 18 W. Va. 567; 1 Rob. Pr. (old) 575; 11 Am. & Eng. Encl. Law (2nd Ed.) 612. 339 PROPERTY NOT SUBJECT TO LEVY 629 It is sufficient, till vacated, to create a lien on the choses in action of the execution debtor. 19 339. Property not subject to levy. The duration of the life of a judgment is dependent upon the issuance of execution thereon, and hence, to preserve or extend the life of a judgment, an execution may be issued on any valid judgment, but there are some executions which cannot be levied on any property at all, and so also there is some property upon which no execution can be levied. Executions Which Cannot Be Levied on Any Property. Exe- cutions may probably issue on judgments against a State or the United States merely for the purpose of preserving the life of the judgment, but they cannot be levied on any property of the defendant. For manifest reasons of public policy, the public property cannot be levied on, nor the orderly conduct of the gov- ernment interfered with. The State cannot be sued by a private person except with its consent, and then only in such courts as it may select. In Virginia the Circuit Court of the city of Richmond is designated by the legislature as the court in which the State may be sued. 20 The effect, however, of the judgment is simply to establish the demand. No execution can be levied under the judgment, and no compulsory course taken to enforce its collection, nor can an execution be levied on the property of quasi public corporations, such as insane hospitals, the University of Virginia, and the like. In all such cases, application must be made to the legislature to make an appropriation to pay the judg- ment. Executions against Executors and Administrators. An exe- cution against an executor or administrator as such, to be levied de bonis testatoris, cannot be levied on assets of the decedent, for this would destroy the order of payment of debts fixed by statute. 21 No lien can be fixed on the estate of a man after he is 19. Fulkerson v. Taylor, 102 Va. 314, 46 S. E. 309. 20. Code, 746. 21. Code, 2660. See also, and compare. Brewer v. Hutton, 45 W. Va. 107, 30 S. E. 81; Park v. McCauley, 67 W. Va. 104, 67 S. E. 174. 630 EXECUTIONS 339 dead. The judgment simply establishes the plaintiff's demand and stops the running of the statute of limitations thereon. The rule was otherwise at common law. 22 22. The following discussion of this subject, written by the author, appears in 5 Va. Law Reg. pp. 876-878: In a recent communication you ask two questions: (1) Can there be a judgment against a personal representative, within twelve months of his qualification? And (2) Can the execution on such a judgment, if rendered, be levied on the assets of the decedent in the hands of his representative to be administered? 1. I have no trouble in my own mind in saying that there can be such judgment within twelve months. I think this is sufficiently covered by 2654 and 2677 of the Code. No restriction is placed by either section upon the time within which such a suit may be brought, and the action might be necessary in order to prevent the bar of the statute of limitations. (Though as to the latter suggestion, see Code, 2919, amended by Acts 1895-6, p. 331.) 2. I have always been strongly inclined to the opinion that an execution on such a judgment could not be levied on the personal property of the decedent in the hands of his representative. As I understand it, the common law made provision for priorities among the creditors of the decedent, preferring first, debts due to the crown; second, those under special statutes; third, debts of record, and fourth, specialty debts. The common law, however, accorded priority among debts of a particular class to the creditor who first obtained judgment against the decedent's representative. If the creditor sued the personal representative, the latter might plead plene administravit, nulla bona, and other pleas which would prevent judg- ment going against him. If he pleaded plene administravit, this did not protect him merely because there were other debts in existence which were entitled to priority over the debts in suit. To be pro- tected by such a plea he must have paid the debts, but he might plead specially that there were not sufficient assets to pay the debt of the plaintiff after paying those who were entitled to priority over him, and this .would be an answer to the plaintiff's action. If the pleadings or proof showed that there was enough in the hands of the personal representative after paying the debts entitled to prefer- ence, to pay a part only of the plaintiff's debt, he had judgment for that amount, and possibly for the residue to be paid out of assets which might thereafter come into the hands of the representative ("quando acciderint"). See Gardner v. Vidal, 6 Rand. 106. If, how- ever, the representative failed to enter a proper plea, and judgment was recovered against him, he became personally bound for the debt. He could apply so much of the estate of his intestate as was in his 339 PROPERTY NOT SUBJECT TO LEVY 631 Executions against a Defendant Who Is Dead. There is much conflict of authority as to. whether a judgment against a dead man (having died after service of process and before judgment) is void or voidable. In Virginia it is held to be voidable only, and not as- sailable collaterally, but only in a direct proceeding for that pur- pose. Notwithstanding this fact, however, no execution issued after death could be levied on his personal property for the rea- hands after satisfying debts entitled to priority, but the residue he must make up out of his own estate. Williams' Ex'ors, 999-1000; Schouler's Ex'ors and Adm'rs, 426. The judgment, and the execution in pursuance thereof, were de bonis testatoris. Upon a return of nulla bona on such an execution, the creditor was put to a suit to establish a devastavit; and, having established this, he proceeded by another suit on the bond of the representative against him and his sureties. This suit to establish the devastavit was dispensed with by statute in 1813 (see Bush v. Beall, 1 Gratt. 229, and the statutes there cited), which statute is continued in force and now constitutes 2658 of the Virginia Code. The rule of the common law, as stated above, accorded priority to the creditor first obtaining a judgment against the administrator, over other debts of the same class. This rule the Revisers of the Code of 1849 undertook to abolish by 34 of Ch. 130, which now constitutes 2661 of the Code. In a note to this section, the Re- visors in speaking of their intention to do away with this preference say: "We think the measures proposed by us will effect an im- provement in this state of things. We do not propose to take from any creditor who prefers to bring an action at law, the right of bringing it if he pleases. But we take away what is now the chief in- ducement to such suits, when we abolish the preference now given to the first among several judgments for debts of equal dignity." This, of itself, seems to me an indication that the Revisors intended the judgment to have the effect of merely establishing the claim of the creditor. In addition to this, they continued in force the act found in 1 Rev. Code, pp. 364 and 390 now found in the present Code as 2659 providing that no personal representative or any surety of his shall be chargeable beyond the assets received, by reason of any omission or mistake in pleading, etc., and allowed the same defense to be made on an action on the representative's bond as could have been made in the suit to establish the devastavit. These statutes, I say, tend to show that the legislature merely intended the judgment against the personal representative to have the effect of establishing the debt. Section 2660 of the Code establishes the order in which debts are tn he paid, and they cannot be paid in any other order. It is the 632 EXECUTIONS 339 sons hereinbefore stated. As to personal property, the execution could stand on no higher ground than if he had died after judg- ment and before the execution issued. 23 If an execution debtor is alive when the execution goes into the hands of the officer to be executed, but dies before the return day, the execution may still be levied on the property of the defendant as the lien attached in his lifetime, and the proceeding is a mere enforcement of that lien, but it would be otherwise if he had died before the execution is- sued, that is, before it was made out ready to be delivered to the right and the duty of the personal representative to sell the personal property, reduce it to money and pay the debts of the decedent in the order required. It is fixed by law what he shall sell and what he shall not sell, for the purpose of paying debts and legacies. Code, 2650, 2651 and 2652. He holds the legal title to the property in trust for the creditors and distributees. The time is fixed when he shall settle his account, penalties are imposed for failure to settle, and ample remedy given to compel such settlements. Code, 2678, 2679 and 2680. All of these provisions look to the sale of the personal property by the personal representative, and by him alone. He is. compelled to account for it, and if he fails to do so may be charged with it. The Code is to be construed as a whole. It is one act of assembly, and the whole is to be construed together so as to give effect to every part of it, if possible. So construing it. it seems to me that it is necessary to hold that the personal representative, and he alone, is authorized to sell the property of the decedent; and that the gen- eral provisions with reference to sales of property under fi. fa. do not apply to a personal representative who holds property in trust to be applied in a particular way. To hold otherwise would be to allow one creditor to acquire priority over others of the same class, or even of a superior class, which could never have been the inten- tion of the legislature. Ample power is given the creditor to make his debt if the assets of the estate are sufficient for the purpose, but no power is conferred anywhere, expressly or impliedly, to destroy the order of payment of debts established by 2660; and all idea of such preference is expressly negatived, and in fact forbidden, by 2661; so that it seems to me, looking at the Code as a whole, that no power exists in an officer to levy on the personal property of a de- cedent in the hands of the personal (representative to be administered. But even if I am wrong in this, I take it that there can be no ques- tion that the representative could enjoin a sale under such execution, and have the estate administered according to law. 23. Robinett v. Mitchell, 101 Va. 762, 45 S. E. 287. 339 PROPERTY NOT SUBJECT TO LEVY 633 officer. The same effect would follow if a plaintiff died after is- sue and before the return day of the execution. 24 Receivers. Upon a judgment against a receiver under stat- utes allowing actions against them, no execution can issue so as to have the effect of disturbing the order of distribution of the trust fund. The effect of the judgment is simply to establish the de- mand, and stop the running of the statute of limitations thereon and questions of priority, time, and mode of payment are left to the control and disposition of the court appointing the receiver. 25 In Virginia no execution can issue on such a judgment. 26 Property Not Liable to Levy for Any Execution. As a general rule, all personal property of the defendant is liable to the levy of an execution against the defendant, but for reasons of public pol- icy, certain exceptions have been made to this general rule, and it has been provided by statute in Virginia that certain designated articles, usually necessary for the well-being of any family shall be exempt from levy for the debts of such party. Such, for ex- ample, is what is designated as the poor debtor's law. 27 A lien or deed of trust upon property exempt under 3650 is declared to be void. So, also, property claimed as a homestead is exempt from levy for most debts unless the homestead is waived, or the debt is paramount to the homestead. So, also, municipal corpora- tions and counties are regarded as arms of the state for many pur- poses, and no execution can be levied on their personal property used for public purposes, nor can taxes due them be garnished. The appeal must be to the council or board of supervisors to make a levy to pay the debt, and if this proves unavailing, mandamus lies to compel a proper levy for the purpose. 28 Railroads and Quasi Public Corporations. It is said: "The property of a public corporation, such as a railroad or bridge company, which is essential to the exercise of its' corporate fran- chise, and a discharge of the duties it has assumed towards the general public, cannot, without statutory authority, be sold to 24. Hatcher r. Lord, 115 Ga. 619, 41 S. E. 1007. 25. Ante, 53; Texas, etc., R. Co. r. Johnson, 151 U. S. 81. 26. Code, 3415a. 27. Code, 3650, 3651, 3652. 28. 2 Dillon Mun. Corp., 576, 577; Brown v. Gates, 15 W Va. 131. 634 EXECUTIONS 339 satisfy a common law judgment, either on execution or in pur- suance of an order or decree of court. The only remedy of the judgment creditor in such case is to obtain the appointment of a receiver, and a sequestration of the company's earnings." 29 An- other statement of the law is as follows : "In the case of corpo- rations such as railroads or bridge companies, which, though not strictly public corporations, are created to serve public purposes, and are charged with public duties, such property as is necessary to enable them to discharge their duties to the public and effectu- ate the objects of their incorporation, is not, according to the weight of authority, apart from statutory provision, subject to execution at law. But the property of a quasi-public corporation not necessary, or not used for the purposes which called the cor- poration into being, is not exempt from seizure and sale under execution." 30 Just what is "essential to the exercise of its corporate fran- chises, and a discharge of its duties to the public" is not alto- gether clear, but it would seem on principle that the roadbed and rolling stock of a railroad company were within this designation, and hence not subject to levy in jurisdictions holding this view. The ground of the exemption is the interest that the public has in the exercise of the corporate franchise, and the duty which the company owes to the public ; and on principle it would seem that in the absence of statute, these are sufficient to exempt such property from levy. In some jurisdictions this doctrine is re- pudiated, but if the property is actually employed in interstate commerce, it is exempt from levy on that account only. On this whole subject there is much conflict of authority. 31 In Virginia, it is believed to be the practice to levy on the personal property of railroad companies, including rolling stock. 29. Overton Bridge Co. v. Means, 33 Neb. 857, 29 Am. St. Rep. 514. 30. 11 Am. & Eng. Encl. Law (2nd Ed.) 620. 31. Reynolds v. Lumber Co., 169 Pa. St. 626, 47 Am. St. Rep. 935; Gardner v. Mobile, etc., R. Co., 102 Ala. 635, 48 Am. St. Rep. 84; Wall v. N. & W. R. Co., 52 W. Va. 485, 44 S. E. 294, 94 Am. St. Rep. 948, 64 L. R. A. 501, 11 Am. & Eng. Encl. Law (2nd Ed.) 620, and cases cited; Brady v. Johnson, 75 Md. 445, 26 Atl. 49, 20 L. R. A. 737; Connery v. R. Co., 92 Minn. 20, 99 N. W. 365, 104 Am. St. Rep. 659, and note. See further, on this subject, what is said in 363 post, in treating attachments, which is equally applicable to executions. 340 EXECUTIONS AGAINST PRINCIPAL AND SURETY 635 Choses in Action. No mention is here made of property which, from its very nature, cannot be levied on, as choses in ac- tion, which is treated of elsewhere. It is sufficient to say that if an execution goes into the hands of an officer to be levied it creates a lien on such property which ma.y be enforced as well after the death of the debtor as before. It may be also men- tioned in this connection that an execution creates no lien on property in which the debtor has a mere contingent interest which may never be of any value, such, for example, as the interest of an assured in a policy on his life, which is dependent for its ex- istence on voluntary payments to be made by him in the future. It is immaterial that the assured, in a given contingency, is al- lowed to surrender his policy and take in lieu thereof a paid up policy for a different amount. This would involve the making of a new contract, and ordinarily a creditor can only subject the in- terest of his debtor in existing contracts. A debt which has a present existence, although payable in the future, may be sub- jected to the lien of an execution, but not a debt which rests upon a contingency which may or may not happen, and over which the court' has no control. 32 340. Executions against principal and surety. An execution may be levied on the property of any one or more of the execution debtors, regardless of their relation of principal and surety. So far as the creditor is concerned, all of the debtors are equally bound and there is no priority among them, and the whole execution may be levied and made out of the property of a surety, although the principal has abundant property out of which it might be made. The surety is powerless to prevent this. The creditor is under no obligation to look to the principal or his property, nor to exhaust his remedies against the principal before resorting to the surety. He may collect his debt out of either. 38 The rule is otherwise in equity. Moreover, when the execution is satisfied by any defendant, it 32. Boisseau v. Bass, 100 Va. 207, 40 S. E. 647; Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. 596. 33. Humphrey r. Hitt, 6 Gratt. 509; Manson v. Rawlings, 112 Va. 384. 71 S. E. 564; Knight v. Charter, 22 W. Va. 422. 636 EXECUTIONS 341 is functus officio. It has served its purpose, and though paid by a surety, there can be no substitution or subrogation, at law, of the surety to the rights of the creditor, so as to levy the execution thus satisfied, or any other execution issued on that judgment, on the property of the principal to reimburse the surety. 34 Subrogation is a creature of equity, and is wholly unknown to the law. The judgment, however, is not deemed satisfied in equity, and the surety will, in equity, be subrogated to the rights of the creditor, so as to enforce the lien of the judgment against the real estate of the principal to the exoneration of the surety. "When the surety pays the debt, the lien of the execution is gone, but a court of equity keeps alive the lien of the judgment on the real estate for the benefit of the surety. 35 At law the surety's remedy is by an independent action against the principal, so as to acquire the right to sue out an execution in his favor. In many States there are statutes for determining the relation (of prin- cipal and surety) of the parties in the original action when it does not otherwise appear, and allowing subrogation to the benefit of the execution. 36 If there is more than one defendant in an execution, the 6fficer is required in Virginia to show by his return by which one the execution was satisfied. This is a valuable aid in disclosing whether the judgment has been really satisfied by the party pri- marily liable, or to what extent, if any, the judgment is still a sub- sisting lien on the real estate of any one or more of the judg- ment debtors. 37 341. Duty of officer. The first duty of an officer who receives a writ of fieri facias for execution, is to endorse on it the year, month, day, and time of day he receives the same. 38 He is next to levy it on the per- sonal property of the debtor liable to levy, and where the writ so requires on his real estate also. Having made the levy, he is 34. 11 Am. & Eng. Encl. Law (2nd Ed.) 715, and notes. 35. Simmons v. Lyles, 32 Gratt. 763. 36. Note, Nelson v. Webster, 68 L. R. A. 513. 37. Code, 3591. 38. Code, 3589. 342 THE LEVY 637 next required to endorse the levy on the fi. fa., and proceed to make the money, pay it over to the plaintiff and make due return of the process at the return-day thereof. 39 342. The levy. The mandate of the writ is the officer's direction and author- ity for what he is to do. This requires that "of the goods and chattels of (defendant) you cause to be made," etc., 40 and a day is named in the writ when the sheriff is to report what he has done how he has executed the writ. This is called the return-day of the writ, and must be the first or third Monday of a month (rule day), or to the first day of any rules, or the first day of some term of the court from which the writ issues, not more than ninety days from its date. 41 The sheriff, having received the writ and endorsed thereon the time of its receipt, is required, as his next duty, to make the money, and the first step in this direction is to levy it. What, then, constitutes a levy? A manucaption of property in pursuance of the writ and an endorsement of that fact on the writ is generally sufficient, but is that necessary? By no means. 39. Section 3591 of the Code is as follows: "Upon a writ of fieri facias, the officer shall return whether the money therein mentioned is or cannot be made; or if there be only part thereof which is or cannot be made, he shall return the amount of such pa'rt. With every execution under which money is recovered, he shall return a statement of the amount received, including his fees and other charges, and such amount, except the said fees and charges, he shall pay to the person entitled. In his return upon every such execution, the officer shall also state whether or not he made a levy of the same, the date of such levy, and the date when he received such payment or obtained such satisfaction upon the said execution; and if there be more than one defendant, from which defendant he received the same. Upon the return of said writ of fieri facias by the officer to the clerk's office or to the court to which it is returnable, it shall be the duty of the clerk thereof to enter the return of said officer on the execution book." 40. In Virginia the only executions which can be levied on real estate of the debtor are those in favor of the Commonwealth. Code, 687. 41. Code, 3220. 638 EXECUTIONS 342 "It is not essential that the officer make an actual seizure. If he have the goods in his view and power, and note on the writ the fact of his levy thereon, this will in general suffice." 42 It is not sufficient to have them in his view, as cattle on distant hills, or gdods behind bars securely locked, or possibly goods in the cus- tody of an officer of the court, he must also have power to take them. 43 In Davis v. Bonney, cited in the margin, it was held that property in the hands of a receiver was property not capable of being levied on, and therefore that the lien of the execution at- tached without an actual levy. It is doubtful if this is a proper construction of 3601 of the Code. It would seem that the statute referred to property which was not in its nature physically capable of being levied on, such as choses in action, and hence that, in order to preserve the lien arising by the issuance of the execution and placing it in the hands of the officer, it is necessary to make an actual levy. This probably could not be done except by consent of the court appointing the receiver, and while this consent might be given merely for the purpose of preserving the lien, it would not be for any other purpose. If it was refused, then the lien would cease with the return-day of the execution. 44 As to tangible property not in the custody of the law, it is not sufficient for the officer to take a mere constructive possession, or to declare that he has taken possession and levied upon goods when he is physically unable to exercise dominion over the goods, hence if a debtor has his goods locked in his storehouse and holds the key thereto and refuses to admit the officers, he cannot be said to have had the goods in his view and power, and therefore cannot make a levy. Although he may stand on the outside and declare a levy, and endorse it on the writ, it is wholly ineffectual as a levy, and if the owner subsequently admits another officer into his store-room, who makes a levy on the goods, it is superior to the supposed levy made by the first officer on a prior writ. 45 42. Dorrier v. Masters, 83 Va. 459, 2 S: E. 927; Bullitt v. Winston, 1 Munf. 269. 43. Dorrier v. Masters, supra; Davis v. Bonney, 89 Va. 755, 17 S. E. 229, 2 Va. Law Reg. 704. 44. 3 Va. Law Reg. 23. 45. Meyer v. Mo. Glass Co., 65 Ark. 286, 45 S. W. 1062; 4 Va. Law Reg. 253. 342 THE LEVY 639 Nor is a mere paper levy generally sufficient against other credit- ors or third persons. In case of unwieldy goods which the officer cannot well trans- port with him, and likewise growing crops, where they are subject to levy, the officer should go to the place where the goods are, and assume control over them, and endorse the levy on the writ. If any one is present to whom notice can be given, he ought to give notice of the fact that he makes the levy. If neither the owner nor any one else is present, while probably not neces- sary, it is the safer course to give notice of the levy to the owner. 46 If the debtor waives an actual levy, and furnishes the officer with a list of his property subject to levy, and the sheriff en- dorses a levy thereof on the writ, this would probably be good as against the debtor himself, but there is serious conflict as to the rights of third persons (creditors and purchasers), affected thereby. 47 If after levy the officer permits the goods to remain in the possession of the debtor, he does so at his own risk, and is liable for resulting loss. It would be a punishable offense if the debtor fraudulently removed them. In Virginia he would be deemed guilty of larceny, and might be prosecuted therefor. 48 In making the levy the officer may enter upon the premises of the debtor without being a trespasser. He cannot break open the outer doors of the debtor's dwelling in order to make the levy, but he may break open the inner doors of the dwelling, or outer doors of any other building for that purpose, and after levy it is prob- able that the outer doors of the dwelling may be broken in order to obtain the property for the purpose of removal or sale. 4 ^ Un- like distress, property in the personal possession of the debtor, as a horse that he is riding, or a watch on his person, may probably be levied on. 50 46. 11 Am. & Eng. Encl. Law (2nd Ed.) 659. 47. See cases cited in note 11 Am. & Eng. Encl. Law (2nd Ed.) 655. 48. Code, 3712; Duff v. Com., 92 Va. 769, 23 S. E. 643. 49. 11 Am. & Eng. Encl. Law (2nd Ed.) 655; 4 Min. Inst. 1024. As to powers of officer levying a distress warrant for rent, see ante, 7. 50. 2 Tucker's Com. 362; Green v. Palmer (Cal.), 76 Am. Dec. 492; but see 11 Am. & Eng. Encl. Law (2nd Ed.) 658. 640 EXECUTIONS 342 The levy must be made on the goods and chattels of the debtor. Chattels real, though not susceptible of levy, are subject to the lien of a fi. fa. as well as personal chattels, and growing corn may be levied on after October fifteenth of any year. At common law emblements were liable to levy, but in Virginia it is provided that : "No growing crop of any kind (not severed) shall be liable to distress or levy except India corn, which may be taken at any time after the fifteenth day of October in any year, and also except sweet potatoes and Irish potatoes over five barrels of each variety may be distrained or levied upon for rent after the same have been matured sufficiently to sever, or to market." 51 Fixtures are not subject to levy. 52 An execution cannot be levied on Sunday. 53 ' A creditor may pursue his debtor by execution at law and by bill in chancery to subject his real estate at the same time. 54 51. Code, 904. Cotton may be levied on in the fields in the counties of Greensville and Sussex on and after the 15th day of September in any year to satisfy any debt collectible under the law. Acts 1897-8, p. 76. The levy on potatoes, not dug, must be for rent, nothing else. 52. It is said that the true rule in determining what are fixtures in a manufacturing establishment, where the land and buildings are owned by the manufacturer, is that where the machinery is perma- nent in its character and essential to the purpose for which the building is occupied, it must be regarded as realty and passes with the building, and whatever is essential to the purpose for which the building is used will be considered as a fixture, although the connection between them be such that it may be severed without physical or lasting injury to either; and that if an engine and boiler have been bought by the owner of a mill and hauled upon his grounds into the mill yard, with the bona fide intention of at- taching them to the mill, though not yet actually attached thereto, and they are necessary for the purpose for which they are to be used, they must be regarded as part of the realty, and not liable to the levy of an execution as personal property. Furthermore, if a flood washes out from a mill the engine, boiler, burners and mill irons, which were fixtures in the mill, they are not converted into personalty, and when thus washed out, they are not subject to the levy of an execution. Patton v. Moore, 16 W. Va. 428; Haskin Wood Co. v. Cleveland Co., 94 Va. 439, 26 S. E. 878. 53. Code, 898. 54. Price v. Thrash, 30 Gratt. 519, 527. 342 THE LEVY 641 Money. If the levy be upon gold or silver coin it is to be ac- counted for at its par value, but if on bank notes and the cred- itor will not accept them, they are to be sold as other chattels. 55 Partnership Property. There is one species of property about which some difficulty may arise as to the mode of making levy and sale, and that is the interest of a partner in the partnership effects where the execution is against a single partner. It is said that, in the absence of any statute on the subject, the de- cided weight of authority is that the sheriff may take exclusive possession of the chattels of the firm and retain them at least un- til the day of sale. The levy, however, must be only on the in- terest of the execution debtor, and nothing but his interest therein can be sold, and the purchaser can acquire no greater in- terest than the debtor had, which would be his net interest after settlement of partnership liabilities and the adjustment of ac- counts between the partners. The purchaser would not become a partner in the concern, but a mere co-tenant of the goods. The sale would ex proprio vigore dissolve the firm, but the purchaser would have a right to demand an accounting, and the payment to him of the debtor's share of the assets. Upon sale, the officer should probably deliver possession of the goods to the purchaser and the other members of the firm jointly, the rights of the pur- chaser to be subject to the rights of the other members of the firm as above stated. Whether the levy must be on all of the partnership effects, or may be on a part only, is a subject about which the authorities are not in harmony. 56 The Virginia cases accord with the above statement as to a levy and sale of the partner's interest in the partnership effects. 57 55. Code, 3588. It is presumed that the gold and silver coin referred to in the text must be such as are legal tenders. U. S. treasury notes are legal tender, and a creditor cannot refuse to ac- cept them. As to what money is a legal tender, see ante, 213, note 2. See also, Steele & Co. v. Brown, 2 Va. Cas. 246 as to the right to levy on money in possession of defendant, and also as to the right of the court to direct money in hands of sheriff to be applied by him to a fi. fa. in his hands against the plaintiff in the fi. fa. upon which the money was made. 56. Note, 57 Am. St. Rep. 435. 57. Shaver v. White, 6 Munf. 110; Wayt v. Peck, 9 Leigh 440, 441. 41 642 EXECUTIONS 342 Mortgaged Property. At common law, mortgaged personal property could not be taken on an execution against the mort- gagor, because, as was said, the legal title was not in him and the creditor was drawn to equity for relief. The same rule pre- vails in West Virginia, and probably generally. 58 In Virginia it has been held that if, after a fair application of the property con- veyed to the trust debt any surplus remains, it constitutes a fund to which other creditors may resort, but that it cannot be reached by execution before a sale under the deed of trust "for it is an equitable and contingent interest," and the remedy is in equity to have the deed of trust enforced, and the residue of the purchase price applied to the payment of the execution. 59 Pro- fessor Minor, relying upon these cases, says : "If the deed of trust is not avoided by any fraud or illegality, no surplus which may be likely to remain to the debtor after satisfying the object of the trust can be reached by the fi. /a., because such interest is not only a mere equitable subject, which of itself would not prevent its being levied on (Code, 2428), but be- cause it is contingent and could not be sold under execution without sacrifice." 60 A like view seems to be maintained by Professor Lile and Mr. Freeman. 61 In a late case, however, it has been held in Virginia that the personal property covered by a deed of trust is subject to the levy of a fi. fa., and if not levied on or before the return day, the lien thereon is gone. 62 The lat- ter case, however, simply announces the proposition without dis- cussion, or citation of authority. 63 A chattel mortgage on per- 58. 11 Am. & Eng. End. Law (2nd Ed.) 624; Doheny v. Atl. Dynamite Co., 41 W. Va. 1, 23 S. E. 525. 59. Claytor v. Anthony, 6 Rand. 285; Coutts v. Walker, 2 Leigh 268, 280. 60. 4 Min. Inst. 1018. 61. 4 Va. Law Reg. 255, 256. 62. Spence v. Repass, 94 Va. 716, 27 S. E. 583. 63. Section 2428 of the Code is as follows: "Estates of every kind, holden or possessed in trust, shall be sub- ject to debts and charges of the persons to whose use or to whose benefit they are holden or possessed, as they would be if those per- sons owned the like interest in the things holden or possessed, as in the uses or trusts thereof." This section of the Code was in effect at the time both Claytor 342 THE LEVY 643 sonal property thereafter to be acquired to secure advances made and to be made is good as to property acquired after the date of the mortgage against a subsequent fi. fa. levied thereon, v. Anthony, supra, and Coutts v. Walker, supra, were decided Mr. Minor, in the quotation given above, referring to this section, says that the fact that the subject is equitable would not prevent its being levied on, but bases his conclusion upon the ground that the interest sought to be recovered is contingent. Notwithstanding the weight justly due to the authorities which have been hereinbefore cited, it is not perceived why the interest may not be levied on. It is expressly declared that the equitable interest shall be "subject to debts * * * as they would be if these persons owned a like interest in the things holden or possessed as in the uses or trust thereof." If equitable interests are made liable to debts by this statute it would seem that the liability might be enforced in the usual and ordinary way, that is by levy of a fi. fa., unless there is something else to forbid it. It is difficult to understand what con- tingency there is about the interest which would forbid the levy. The property is charged with a definite, specific debt not with all the debts which would have to be ascertained by some outside in- quiry and if the trust debt is due, there is no reason why the prop- erty may not be sold, the trust debt paid, and the residue paid over to the execution creditor. There is no contingency about it except as to what the property will bring. That fact would be contingent if there was no deed of trust on it. Certainly nothing could be more contingent than the interest of a partner in the partnership assets, and if this can be subjected by the levy of a fi. fa., which we have seen can be done, it is difficult to see why the trust property may not be levied on, which is not subject to any contingency except that there is a prior lien on it for a definite and specific amount The property conveyed and in the possession of the grantor is still his property, though charged with a lien, and the character of the property, as such, has not been changed by giving the deed of trust. If the trust debt is not due, the trust creditor cannot be compelled to collect it until it is due, but that affords no good reason why the property may not be sold subject to the lien of the deed of trust. The rights of the parties are all well ascertained, and all the creditors and the owner of the property know what these rights are, and can intelligently bid on the property so as to protect their rights, and whether the property be sold subject to the deed of trust, or be sold free of the deed of trust and the trust debt paid, the rights of the parties in interest could be amply protected. Of course, it is possible that the property might not bring sufficient to pay the trust debt, and it would appear somewhat anomalous to enforce the trust lien by virtue of the execution, yet as nobody can be hurt 644 EXECUTIONS 342 to the extent that advances were made prior to the issuance of the fi. /a. 64 The subject of the landlord's lien for one year's rent and the right to levy an execution on property removed from the leased premises has already been discussed. 65 Shares of Stock. The shares of stock in a joint stock com- pany are generally supposed to be not subject to the lien of an execution or attachment, in consequence of the inability to reach them ; and this is especially true where the owner is a non-resi- dent; but it has been held that such shares in a company incor- porated and conducting its operations in whole or in part in this state, although owned by a non-resident, are the subject of an attachment. It is said that such estate may be considered, for the purpose of the proceeding, as in the possession of the corpo- ration in which the shares are held, and such corporation may be summoned as garnishee in the case. Such shares are also liable to the lien of an execution. 66 The execution must be levied, if at all, on or before the return day. It cannot be levied afterwards. It is then a dead process. But if levied on or before the return day, the property levied on may be sold afterwards. If a plaintiff dies after the fi. fa. is received by the officer to be levied, the lien is fixed by such delivery, and the officer may proceed to levy and sell, indeed, must levy, or the lien will be lost. The same rule applies where the defendant dies under simi- lar circumstances. If a fi. fa. issues (that is, is made out ready \ by such an arrangement, it would seem that there is no good reason for not enforcing the lien in this way. The delay and ex- pense of resorting to a court of equity in a case of this kind would in many cases amount to a denial of justice, and the courts, looking to the substance of things rather than to mere form, should afford to creditors this easy and speedy method of enforcing the collection of the execution. The reasonableness of this view is offered as an apology for the presumption of differing from such able authorities on the other side. It follows necessarily that the conclusion in Spence v. Repass, supra, is approved. 64. First Nat'l Bank v. Turnbull, 32 Gratt. 695. 65. Ante, 13. 66. Ches. & O. R. Co. v. Paine & Co., 29 Gratt. 502; Lipscomb v. Condon, 56 W. Va. 416, 49 S. E. 392. 342 THE LEVY 645 for delivery) in the lifetime of the defendant, but is not actu- ally delivered to the officer to be executed until after the defendant's death, the officer may probably, as against the defend- ant or his personal representative (if neither creditors or pur- chasers are affected thereby) proceed to levy. The language of the statute relating to tangible personal property is that the fi. fa. "as against purchasers for valuable consideration without no- tice, and creditors, shall bind what is capable of being levied on only from the time it is delivered to the officer to be executed." 67 If, after property has been levied on, it is lost in consequence of the misconduct or neglect of the officer making the levy, the fi. fa. is to that extent satisfied, and the plaintiff must look to the officer and his sureties for the loss thereby sustained. 68 Several Executions. If several writs be delivered to the of- ficer at the same time, they are to be satisfied ratably, if at dif- ferent times, they are to be satisfied in the order of delivery, 69 regardless of the order of levy. If a levy be made of several fi. fas., and a third person claims the property, or a doubt arises as to the liability of the property to levy, the officer may require of the creditors an indemnifying bond for his protection, and if it be not given in a reasonable time, he may release the levy, 70 but if some of the creditors give the bond and others refuse, and the officer sells under the protection guaranteed by such bond, the proceeds are to be paid to the indemnifying creditors in the order of dates of receipt by him of their several fi. fas., and no part of the money is to be paid to the other creditors, although their executions may have been first received. The officer, how- ever, is not obliged to require such bond. He may, in his own name, institute interpleader proceedings and have the title to the property tried, and if decided againsf the claimant of the prop- erty, the officer will proceed to sell the property and pay off the executions in the order in which they were received by him. 71 67. Turnbull v. Claiborne, 3 Leigh 392; 4 Min. Inst. 1025. 68. Walker v. Com., 18 Gratt. 13. 69. Code, 3590. 70. Code, 3001, 3002. 71. Edmunds v. Hobbie Piano Co., 97 Va. 588, 34 S. E. 472. 546 EXECUTIONS 343-344 343. Payments to and disbursements by officer. So long as the execution is alive, that is, on or before the re- turn day, or after the return day if previously leined, the officer charged with "the collection of the fi. fa. may receive payment from the execution debtor, but if not so levied the officer has no right to receive payment after the return day, and if made and not accounted for, the sureties of the officer are not bound for the money, and the rights of the creditor are unaffected. The right of the officer to receive payment results from his right to levy and sell the debtor's property, and the consequent right of the debtor to relieve his property from sale. So long as the right to sell continues, the right to receive payment remains, but no longer. 72 When the officer receives money under an execution, it is his duty to pay it over to the execution creditor, but if the creditor lives in another county or corporation, the officer is not bound to go out of his county to pay the money to the creditor, nor can any action be maintained against the officer and his sureties for the money so collected until demand therefor has been made upon the officer in his county or corporation and been refused by him. 73 344. Payment by officer for debtor. At common law the payment of a fi. fa. utterly extinguished the debt and every security for it, 74 and equity could not prevent this unless there were some other equitable ground for interfer- ence, and if an officer paid an execution without assignment or agreement to assign, the execution was dead as a security for the debt. 75 The officer, however, may purchase a debt in his hands for col- lection by execution if he acts bona fide. The creditor holds 72. Grandstaff v. Ridgely, 30 Gratt. 1; Cockerell v. Nichols, 8 W. Va. 159. 73. Code, 3596; Grandstaff v. Ridgely, 30 Gratt. 1. 74 Clevinger v. Miller, 27 Gratt. 740, 741. 75 Clevinger v. Miller, supra; Hall v. Taylor, 18 W. Va. 544. See also Sherman v. Shaver, 75 Va. 1. But see, Feamster v. Withrow, 12 W. Va. 611; Beard v. Arbuckle, 19 W. Va. 135; Neely v. Jones, 16 W. Va. 625. 345 SAI,E OF PROPERTY 647 the title and may transfer it to whom he will, and it makes no difference that the advance is made at the instance of the debtor, provided there is no intention to extinguish the debt and the ex- ecution is assigned as a continuing security. 76 345. Sale of property. Supposing the property levied on to be the property of the ex- ecution debtor, if not replevied, as it generally may be, it is the officer's duty to sell it. Bub before making sale it is the duty of the officer to advertise the time and place of sale by notice posted near the residence of the owner and at two or more pub- lic places in the officer's county or corporation at least ten days before the sale. While the officer may remove the property and sell it at any place in the neighborhood, or at the court house, yet the practice is, in Virginia, to permit it to remain on the premises of the debtor until the day of sale, and then sell it there, in order to save expense. The officer may deduct expenses of removing, or the keep of property from the proceeds of sale. If the property levied on be horses, mules, or work oxen, they must be advertised for thirty days by hand bills posted at the front door of the court house, and at five or more public places in the county or corporation of such officer, and if it be in the county, these places must be at least two miles apart. But the parties may, at or before the time for advertising the sale, in writing au- thorize the officer to dispense with the provision for the thirty days' notice and also with the provision that the posting must be at least two miles apart. 77 If the property levied on be perishable, or expensive to keep, the court from whose clerk's office the fi. fa. issued, or the judge thereof in vacation, may, upon the appli- cation of any party, on reasonable notice to the adverse party, his agent or attorney, order a sale to be made upon such notice less than ten days as to such court or judge may seem proper. The sale is for cash. When made, the officer should pay the creditor the amount of his execution, and make return of the writ to the clerk's office from which it issued, in the manner pointed out. in the next section. 76. Rhea v. Preston, 75 Va. 757; Hill v. McCullough, 20 Ga. 837. 77. Code, 906, 907. 648 EXECUTIONS 346 The officer cannot purchase at a sale made by him under fi. fa., but the plaintiff in the execution may purchase, and is regarded as a bona fide purchaser if other requisites therefor exist. 78 346. The return. Formerly some doubt existed in Virginia as to what consti- tuted a sufficient return of the execution to keep the judgment alive, but the Code now provides that "any return by an officer on an execution, showing that the same has not been satisfied, shall be a sufficient return within the meaning of the statute." 7 * A return on the process is defined as "a short official statement of the officer endorsed thereon of what he has done in obedience to the mandate of the writ, or why he has done nothing." In the absence of the date or other evidence showing when the re- turn of an officer on a writ was made it is presumed to have been made at a time when he had a right to make it and in due time, as the prima facie presumption is that the officer has done his duty. The validity of the return, however, of the officer on a writ of fieri facias is not affected by the fact that the writ is not returned by the officer until after the return day. While the record is incomplete until the writ is returned, yet, when made, the return is competent evidence of the facts therein stated, and the parties are entitled to the benefit of their legal effect. The return should be made at the return day, but may be made be- fore or afterwards. A return upon an execution which the of- ficer has a right to make is conclusive between the parties, and they have the right to compel the officer to make it, but neither of the parties can be deprived of the benefit of the return by the failure of the officer to make it at the return day. 80 The statute in Virginia declares what the return of an officer on an execution shall be. 81 The signature of the officer, however, to the return is merely intended to authenticate it, but is no part of the return, and may be added at any time. 82 78. Note, 79 Am. St. Rep. 948. 79. Code, 3577. 80. Rowe v. Hardy, 97 Va. 674, 34 S. E. 625; Bullitt v. Winston, 1 Munf. 269. 81. See 3591 of the Code, copied in note 39, page 637, ante. 82. Slingluff v. Collins, 109 Va. 717, 64 S. E. 1055. 346 THE RETURN 649 Amendment of Returns. A return which has been made by an officer cannot thereafter be amended by him except upon mo- tion to the court from which it issued, and after notice to the par- ties interested. 88 But courts are liberal in allowing amend- ments of ' returns in proper cases so as to conform to the truth, and the amendment, when made, has the same effect as though it were the original return, where the rights of third persons have not intervened, and it does not appear that in-, justice can result to any one. There is no specific time within which the return must be amended, but after a great lapse of time an amendment should be permitted with caution, and in no case should it be allowed unless the court can see that it is in furtherance of justice. 84 An amendment may be per- mitted', even after an action has been commenced founded on the original return, 85 although the proposed amendment be incon- sistent with the original return and takes away the foundation of the suit or motion. The return may be amended by a different deputy from the one who made the original return. 86 The amendment may be made in vacation as well as in term time, as the right to amend is incidental to the right expressly given to hear in vacation a motion to quash an execution. 87 It seems that a return may be made before the return day, and that a return of no effects before the regular return day of the writ against defendant who is notoriously insolvent may be made. 88 Title of Purchaser. The rule caveat einptor generally applies to all sales under executions. The sale by the officer simply passes the title of the execution debtor. By virtue of the execu- tion the officer has authority to sell, but no greater title is con- ferred on the purchaser than the defendant himself had when no indemnifying bond has been given. Where property has been levied on which is claimed by a third party, provision is made for 83. Hammen v. Minnick, 32 Gratt. 249, 251. 84. Slingluff v. Collins, 109 Va. 717, 64 S. E. 1055. 85. Smith v. Triplett, 4 Leigh 590; Wardsworth v. Miller. 4 Gratt. 99; Stone r. Wilson, 10 Gratt. 529, 533. 86. Stone v. Wilson, supra; but see Carr v. Meade, 77 Va. 142. 87. Walker z-. Com., 18 Gratt. 13. 88. Slingluff v. Collins, supra; Findley v. Smith, 42 W. Va. 299, 26 S. E. 370. 650 EXECUTIONS 347 requiring the plaintiff in the execution to execute an indemnifying bond with condition, among other things, "to warrant and defend to any purchaser of the property such estate or interest therein as is sold." 89 and where a sale is made under such an indemnify- ing bond and 'the property is afterwards recovered from the purchaser, he may maintain an action on the bond in the name of the officer for his benefit to recover such damages as he has sustained in consequence of the property being taken from him by title paramount. 90 347. Delivery bond. If for any reason the debtor desires to retain possession of his property which has been levied on, and to prevent an immediate sale thereof, he is permitted to do so upon delivering to the officer a forthcoming or delivery bond with good security, the effect of which is to suspend all further proceedings on the fi. fa. The language of the statute is that the officer "may take from the debtor a bond," but may in this connection means must, and the officer is obliged to accept a proper bond if tendered. When ac- cepted, the property remains "in the possession and at the risk of the debtor." 91 The amount of the bond is not fixed by statute, but it is usually in a penalty double the amount of the fi. fa. (principal, interest and costs, including the officer's commissions) though logically it should be in a penalty double the value of the property levied on, and is payable to the creditor. It recites the issuing of the fi. fa., the amount thereof (including the officer's fee for taking the bond, his commissions and other lawful charges, if any) the levy, and an enumeration of the property on which levied, and must be with sufficient surety. The bond further re- cites the agreement of the debtor (to deliver or) to have the property levied on forthcoming (hence the designation forth- coming bond or delivery bond), at a certain time and place named in the bond, to be sold to satisfy the fi. fa., and contains a con- dition that if the property is forthcoming at the time and place mentioned, the bond shall be void, else remain in full force and 89. Code, 3001. 90. Code, 3003. 91. Code, 3617. DELIVERY BOND 651 virtue. If any of the property levied on is not forthcoming at the time and place mentioned, the bond is said to be forfeited, unless the failure to deliver was occasioned by act of God, or probably inevitably accident. "With respect to the parties to the forthcoming bond, the property is at their risk, and they undertake, that it shall be de- livered. In case of a non-delivery of any part of such property, the bond is considered forfeited; it is to have the force of a judgment by the terms of the act, and an execution is to go for the whole. It is true indeed, that the sheriff may sell the part delivered, and credit the amount thereof on the execution. (1 Wash. 274, Pleasants v. Lewis.) But subject to that exception, the parties to the bond are to submit to the judgment, unless there be some particular circumstances in their case, to be relied on, for their relief, other than that of the mere non-delivery of the property. To go into the circumstances, which prevented the delivery of the property, would throw upon the creditor an in- quiry to which he is an utter stranger, and repeal that provision of the act which says the property restored under the forthcoming bond is to be at the risk of the seller." 92 If on the day for delivery of the property, the parties are un- able to deliver a part of the property, and such inability is oc- casioned by the act of God, or probably by the destruction of the property by inevitable accident, but the parties deliver the residue of the property, then there is no forfeiture of the bond, but the officer should sell what is delivered and apply it to the execution. If the residue of the property is not delivered, the whole bond is forfeited for failure to deliver that. If all the property is delivered, of course there is no forfeiture. If part of it is delivered, and there is a failure to deliver a part for some cause other than the act of God or inevitable accident, the offi- cer should sell what is delivered and apply the proceeds to the execution, and return the bond as forfeited for non-delivery of the residue. 93 When a bond is forfeited, the lien of the execution on the 92. Roane, Judge, in Cole v. Fenwick, Gilmer 138, 139; Pleasants v. Lewis, 1 Wash. 273. 93. Cole v. Fenwick, supra. 652 EXECUTIONS 347 property levied on is extinguished, 94 and it is the duty of the officer within thirty days to return it, with the execution, to the clerk's office of the court from which the execution issued, and as against such of the obligors as are alive when it is for- feited and so returned "it shall have the force of a judgment," but no execution can issue thereon. 95 The plaintiff may sue on the bond, but the general practice is for the creditor to give (as he may do) ten days' notice in writing to all of the obligors that on a certain day of the next term of the court he will move the court for an award of execution thereon. It is said that the following defences may be made to this motion : 96 1. Non est factum. 2. Satisfaction of original judgment and costs since accrued. 3. Tender of property as stipulated in bond. 4. Property levied on was exempt. 5. Impossibility of performance, without fault of obligor. 97 6. Seizure of property by title paramount, as where the prop- erty levied on is taken out of the possession of the debtor by legal process and neither he nor his surety are able to deliver it in conformity with the terms of the bond. 98 7. Waiver of performance. 8. Fraud in procurement of bond. 9. Where before the time fixed for the delivery of the prop- erty a supersedeas is granted to the original judgment. This would not be a valid defence, if the supersedeas were awarded after the bond had been forfeited. 99 "A forfeited forthcoming bond stands as a security for the debt, and though while in force no execution can be taken out or other proceeding be had at law to enforce the original judg- ment, yet the bond is not an absolute satisfaction. For if it be faulty on its face, or the security when taken be insufficient, or 94. Lusk v. Ramsay, 3 Munf. 417. 95. Code, 3619. 96. 13 Am. & Eng. End. Law (2nd Ed.) 1151-2. 97. Lusk v. Ramsay, supra. 98. Lusk v. Ramsay, supra. 99. Rucker v. Harrison, 6 Munf. 181; Spencer v. Pilcher, 10 Leigh 490. 348 INTERPLEADER PROCEEDINGS 653 the obligors, though solvent when the bond is taken, become insolvent afterwards, the plaintiff may, for these or other good reasons, on his motion, have the bond quashed, and be restored to his original judgment. And though the bond be not quashed, if it appear that it may properly be, a court of equity, which looks to substance rather than to form, and when occasion requires it treats that as done which ought to be done, will regard the bond as a nullity, and the original judgment as in full force." 1 When a fi. fa. is issued on this bond, it is provided 2 that it shall be endorsed "no security is to be taken," which means that the officer is to go on and make the money without further delay. 348. Interpleader proceedings. The officer may levy the fi. fa. on property claimed by a third person, and the method of procedure is somewhat different when the property is in the possession of the execution debtor and when it is not. If the property is in the possession of the execu- tion debtor and is claimed by a third person, or is claimed to be- long to a third person, the officer is required to proceed to execute the same, notwithstanding such claim, unless the claimant of the property will give a suspending bond with good security and shall within thirty days after such bond is given proceed to have the title to said property settled and determined in the manner pointed out in the chapter on Interpleader. If the claimant fails to give the suspending bond, or, having given it, fails to institute proceedings to try the title to the property within the time pre- scribed by law, it is conclusively presumed that the property is the property of the party in possession, and the officer is to go on and execute the writ. Here no indemnifying bond is required of the plaintiff. Pending the trial of the title to the property, if the claimant wishes the property to remain in the same possession as before, this may be accomplished by giving a delivery bond. 3 When the property is not in the possession of the execution debtor and is claimed by a third party, the officer may either 1. Rhea v. Preston, 75 Va. 757, 758. . Code, 3624. 3. Code, 3001. 654 EXECUTIONS 348 himself institute interpleader proceedings to try the. title 4 to the property or require of the plaintiff an indemnifying bond. If the indemnifying bond is not given, the officer may release the levy if it has already been made, or refuse to make the levy if one has not been previously made. 5 If the indemnifying bond is given, the officer may proceed with the sale and is protected by the bond, but if the claimant of the property desires to have the title thereto tested, he may give to the officer a bond with good security in a penalty equal to double the value thereof, pay- able to the officer with condition to pay all persons who may be injured by suspending the sale thereof until the claim thereto can be adjusted, such damage as they may sustain by such sus- pension. 6 Thereafter either the claimant of the property, or the party issuing the process, may institute interpleader proceed- ings to determine the title to the property, 7 the proceedings in which are hereinbefore set forth in Chapter XVI. If the plaintiff should indemnify the officer and he should sell the property and pay the money over to the plaintiff and return the fi. fa. satisfied, and the property sold under the execution or its value, should be recovered from the obligors in the in- demnifying bond given before such sale, or from a purchaser haying a right of action on such bond, the plaintiff's execution would be satisfied, at least to the extent of the value of the prop- erty sold, and yet he would be liable to the same extent by virtue of the terms of the indemnifying bond. It is now pro- vided by statute that "the person having such execution, or his personal representative, may by motion, after reasonable notice to the person or the personal representative of the person against whom the execution was, obtain a new execution against him without credit for the amount for which the property was sold upon the former execution," but such motion must be made within five years after the right to make the same has accrued. 8 4. Code, 2999. 5. Code, 3001. 6. Code, 3003. 7. Code, 2999, 3000. 8. Code, 3598. THE LIEN AND ITS COMMENCEMENT 655 349. The lien and its commencement. A judgment is a lien on real estate only or some interest erein, legal or equitable, and is enforceable only by a bill in equity. An execution is a lien on personal property only, except as hereinbefore stated and the methods of its enforcement are pointed out in this chapter. In Virginia a writ of fieri facias is a lien on every species of personal property, tangible and in- tangible, and whether capable of being levied on or not. At common law, the lien of the fi. fa. attached from the teste of the writ, which was always some day during the term at which the judgment was rendered, but this was changed by the statute of frauds 9 so as to make it attach from the time the writ was delivered to the officer. The common law rule still prevails in Tennessee, but it has been changed more or less in all the other states. 10 At common law an execution was not a lien on choses in action at all, nor was it in Virginia until the enactment of the Code of 1849, taking effect July 1, 1850; nor was any pro- vision made for reaching this most valuable species of property save by garnishment. It is now provided by statute in Virginia that the writ of fieri facias may be levied as well on current money and banknotes as on the goods and chattels of the execu- tion debtor (except what is exempt from levy under Chapter 178), and as against purchasers for valuable consideration with- out notice, and creditors, shall bind what is capable of being lev- ied on only from the time it is delivered to the officer to be exe- cuted, 11 and, furthermore, that every writ of fieri facias shall, in addition to the lien just mentioned on what is capable of being levied on, "be a lien from the time it is delivered to a sheriff or other officer to be executed, on all the personal estate of or to which the judgment debtor is or may afterwards and before the return day of said writ, become possessed or entitled, and which is not capable of being levied on under the said section [just above referred to] except such as is exempt under the provisions of Chapter 178, and except that, as against an assignee of any such estate for valuable consideration, or a person making a payment 9. 29 Car. II. Ch. 3, 16. 10. 11 Am. & Eng. Encl. Law (2nd Ed.) 669-670. 11. Code, 3587. 656 EXECUTIONS 350 to the judgment debtor, the lien by virtue of this section shall not affect him, unless he had notice thereof at the time of the assignment, or payment, as the case may be." 12 In Virginia, as seen, the lien of a fi. fa. as to all kinds of personal property, whether capable of being levied on or not, commences from the time the fi. fa. is delivered to the office to be executed. It is to be observed that it is the time, not the date, and in order to fix this time definitely and officially the first thing an officer is di- rected to do after receiving a fi. fa. is to endorse on it the year, month, day and time of day he receives it. Furthermore, it must be received to be executed, not to be held, nor for any other pur- pose, and delivery with a direction not to levy would not create any lien. While the lien commences at the same time as to both tangible and intangible property, yet in other respects the rights of the creditor are not the same as to both species of property. It will be observed from the above statutes that the fi. fa. is not only a lien on all the personal property of the execution debtor in being at the time the fi. fa. goes into the hands of the officer to be executed, but that the lien also attaches to all personal property which the execution debtor acquires during the life of that execution. As to tangible property, the execution may be levied on or before the return day, and hence the lien attaches to the tangible property acquired on the return day, as well as that acquired before, provided the fi. fa. be levied on that day; 13 but as to intangible property, in order that the lien may attach, the property must be acquired before (not on) the return day. 14 350. Territorial extent of lien. Tangible Property. "The general rule as to the territorial ex- tent of the lien of an execution is that it is coextensive with the jurisdiction of the officer to whom the writ is delivered, and at- taches to all the defendant's goods and chattels within such ter- ritory, and as the writ is in most cases delivered to the sheriff 12. Code, 3601. 13. Code, 3587. 14. Code, 3601. 350 TERRITORIAL EXTENT OF UEN 657 or some other officer whose jurisdiction has the same limits, its lien usually extends throughout the county in which it is issued. In some states, however, the rule that the lien of an execution extends to the defendant's property throughout the state is es- tablished." 15 \Ye have no case on the subject in Virginia, but inasmuch as the lien on tangible property must be perfected, if at all, by a levy of the fi. fa. on or before the return day thereof, and as the officer charged with the collection has no power to make such levy outside of his bailiwick, it would seem on principle that as to tangible personal property, the lien of a fi. fa. should be re- stricted to the jurisdiction of the officer charged with its collec- tion. There might be a fi. fa. in the hands of every sheriff in the commonwealth, and it would probably reach each one at a different time, and the date of the lien would consequently vary in each county according to the time at which the fi. fa. was received by the sheriff of that county. If issued in one county and placed in the hands of the sheriff of that county, it would be a lien in that county from the time it was received by the sheriff of that county ; and even if the same fi. fa. is sent to a second county, it would seem that the lien, as to property in the second county, should date only from the time that the fi. fa. was received by the sheriff of that county. In any case the lien is only an inchoate, imperfect lien, and can only be perfected by a levy by an officer who has power to make such a levy on or before the return day of the writ. Intangible Property. As to choses in action, the same rule does not apply. Here the lien is not a levy lien at all, but is created by merely placing a fi. fa. in the hands of an officer to be executed, and the common practice has been to issue a fi. fa. in the county in which the judgment was obtained, and to send a summons to any county in which the garnishee resides. It has never been thought necessary to send a writ of fieri fa-cias to the county in which the garnishee resides. The lien extends throughout the limits of the state. The statute creating the lien places no limit upon its territorial extent, and there is nothing in- 15. 11 Am. & Eng. Encl. Law (2nd Ed.) 677. 42 658 EXECUTIONS 351 herent in the nature of the property upon which the fi. fa. is a lien, or in the methods of enforcing the fi. fa. which necessitates any such restriction. 351. Duration of lien. Tangible Property. As to tangible property, the lien continues only till the return day of the writ, if not levied on or before that day; but if so levied, it continues thereafter till sale, even though the defendant dies after levy but before the sale, provided the sale be not postponed so long as to manifest an intention to abandon the levy. If the levy be abandoned, the lien is gone, and the property becomes liable as before to levy for any other fi. /a. 10 Intangible Property. As to intangible property, or any prop- erty not capable of being levied on, the lien continues during the life of the judgment, that is, for ten years from the return day of the fi. fa. upon which there has been no return, or twenty years from the return day of any fi. fa. upon which there has been a return, and there may be successive executions during these periods so as to make the lien perpetual. 17 Thus if a fi. fa. issued returnable to First January Rules, 1901 (say January 5, 1901) and there was a return on it, the lien created by the fi. fa. would extend to January 5, 1921, and if before that day an- other fi. fa. was issued, it would extend the lien of the first fi. fa. ten years from the return day of the latter fi. fa. if there was no return thereon or twenty years if there was a return and so on indefinitely. The lien, though not enforced in the debtor's life- time, continues after his death. 18 The lien continues after the return day of the execution and has priority over a sub- sequent execution lien under the same law, even though there has been a proceeding by a suggestion under the junior sooner than under the senior execution. 19 The lien acquired on a 16. Rhea v. Preston, 75 Va. 757. 17. Report of Revisers (1849), p. 920; 5 Va. Law Reg. 673; Ackiss v. Satchell, 104 Va. 700, 52 S. E. 378. 18. Trevillian v. Guerrant, 31 Gratt. 525; Brown v. Campbell, 33 Gratt. 402. 19. Charron 7'. Boswell, 18 Gratt. 216, 229. 352 RIGHTS OF PURCHASER 659 debtor's chose in action by reason of the fi. fa. issued on- a judgment against a defendant in his lifetime is lost, however, unless the judgment be revived or some action be instituted for its enforcement within five years from the qualification of his personal representative. 20 The lien ceases when the right to enforce the judgment ceases, or is suspended by a forth- coming bond being given and forfeited, by supersedeas, or by other legal process. 21 Any return which shows that the fi. fa. has not been satisfied is sufficient to thus extend the life of the lien. Indeed, if the judgment was confessed under an agreement that no fi. fa. should be issued, and afterwards, contrary to the agree- ment, a fi. fa. was issued, it would create a lien and extend the life of the judgment as against third persons. The agreement is personal to the parties to the agreement, and can only be en- forced by them. Third persons cannot take advantage of it, nor can the execution be attacked except by a direct proceeding for that purpose. 22 352. Rights of purchaser. Tangible Property. If the property is capable of being levied on, the lien of the fi. fa. is superior to the rights of purchasers with or without notice of the fi. fa., provided a levy is actually made on or before the return day of the writ. If the levy is not so made, the lien is gone, and the purchaser gets good title. 23 The lien, however, is not created by the levy, but by placing the writ in the hands of the officer to be executed. Its duration as to tangible property is simply extended by the levy. We sometimes speak of it as a levy lien, but this is misleading. The fi. fa. is a lien by virtue of the terms of the statute, and this lien lasts in any event till the return day of the writ be passed, but may be extended by a levy on or before the return day. Intangible Property. If the property is not capable of being levied on, the lien of the creditor gives way to an assignee for 20. Code, 3577; Spencer v. Flanary, 104 Va. 395, 51 S. E. 849. 21. Code, 3602. 22. Baer v. Ingram, 99 Va. 200, 37 S. E. 905. See also, Lowenbach r. Kelly, 111 Va. 439, 69 S. E. 352. 23. Evans r. Greenhow, 15 Gratt. 153, 161. 660 EXECUTIONS 352 value without notice, and the latter has priority over the execu- tion creditor. A deed of trust on choses in action is an assign- ment, and an antecedent debt is a valuable consideration within the meaning of this statute, and although the beneficiary in the deed may not know of its existence when made, yet he may accept when it comes to his knowledge, and this acceptance will relate back to the delivery of the deed. 24 If an assignee for value of a chose in action has no notice of the existence of a fi. fa. against his assignor, nor of any fraudulent intent on the part of his assignor, it is immaterial that the assignor was in- solvent and intended to commit a fraud in making the assign- ment. 25 Whether or not an antecedent debt is a valuable con- sideration is the subject of much conflict of opinion outside of Virginia. 26 A debtor of the execution debtor cannot make a valid payment to his creditor if he knows of the existence of the execution, but he is protected if he has no notice. 27 Here again it must be observed that the lien is created by plac- ing the fi. fa. in the hands of the officer to be executed, and not by the notice. The lack of notice to the assignee or to the debtor of the execution debtor will avoid the lien, but the notice does not create it. Hence, if a liability to the execution debtor arises after a person has been summoned as garnishee, or has notice of the fi. fa., and before the return day of the writ (although no liability existed at the time the notice of the fi. fa. was acquired) the lien of the fi- fa. attaches to it, and neither the assignee of the debt having such notice nor the garnishee making payment to his creditor is protected. A summons in garnishment does not create a lien, but is only a means of enforcing the lien already existing by reason of the fi. fa- 28 No particular form of notice is required, nor need it be in writing. 24. Evans, Trustee, v. Greenhow, 15 Gratt. 153; Rhea v. Preston, 75 Va. 757. 25. Shields v. Mahoney, 94 Va. 487, 27 S. E. 23. 26. 23 Am. & Eng. Encl. Law (2nd Ed.) 490; 1 Devlin on Deeds, 276 et seq., 291 et seq.; Parmalee v. Simpson, 5 Wall. 81. 27. Code, 3601; Park v. McCalley, 67 W. Va. 104, 67 S. E. 174. 28. Park v. McCalley, 67 W. Va. 104, 67 S. E. 174. 353 MODE OF ENFORCING THE LIEN 661 353. Mode of enforcing the lien. Tangible Property. The officer advertises tangible property in the manner prescribed by law, sells the same for cash, and pays the execution creditor the amount of his execution, principal, in- terest and costs. If there should turn out to be any surplus, he is required to pay this to the execution debtor. The officer has no right to make an excessive levy, nor to sell more property than is necessary to satisfy the execution, but of course this cannot always be calculated with exactness. If the excess amounts to any considerable sum, the officer would be liable to the execution debtor for making an excessive sale, but if the officer pays such excess to the debtor who accepts it without protest, this is a ratification of the officer's act in making the excessive sale and a waiver of the right of action against him. 29 Intangible Property. The clerk of the court from whose of- fice the execution issues is requested (verbally or in writing, but usually by a memorandum on the memorandum book) to issue a summons in garnishment against the party indebted to the defendant in the execution. The clerk isr sues the garnishment as of course, directing the officer to sum- mon the party owing the money to some day of the existing or next term of the court to answer whether or not he is indebted to the defendant in the execution. A summons in garnishment may be returnable more than ninety days after its date. 30 If such person, after being served with the summons twenty days, fails to appear, or if it be suggested that he has not fully dis- closed his liability, the court may either compel him to appear, or hear proof of any debt owing by him, and make such orders in relation thereto as if what is so proved had appeared on his examination. 31 If a controversy arises as to the amount due by the garnishee, the court without formal pleading may inquire into the matter, or, if either party demand it, summon a jury to ascertain the amount due. 32 If the garnishee appears in answer to the summons, he is examined on oath, and if it appear on such 29. Manchester Loan Co. v. Porter, 106 Va. 528, 56 S. E. 337. 30. Code, 3609. 31. Code, 3611, 2977. 32. Code, 2978. 662 EXECUTIONS 353 examination that there is a liability on him on account of his indebtedness to the execution debtor, the court may order him to pay the same to any officer whom it may designate, 33 or more generally give a judgment directly against him for the amount he admits to be due in favor of the execution creditor. If the property is tangible, there is no occasion for a summons in garnishment, and the sheriff may levy on it where found, no mat- ter in whose possession it may be, and if a controversy arises as to its liability .for the execution, this controversy may be settled either by interpleader proceedings, or by proceedings on an in- demnifying bond, as hereinbefore set forth. Tangible property which the execution debtor has fraudulently conveyed to another cannot be garnished. The garnishment statute does not contemplate or operate upon an estate in the possession of the garnishee to ' which he has title. Section 3604 of the Code furnishes an effi- cient remedy by action at law or suit in equity for reaching such property, or the execution creditor may ignore the fraudulent transfer and levy on the property as that of the execution debtor, and, upon proper proceedings had, have it sold, or the title thereto tried. 34 If the garnishee's answer admits a liability, but the amount is not sufficient to pay the entire execution and cost, the cost of the garnishment will be first paid and the net balance applied to the payment of the execution, usually paying the cost first. If the garnishee fail to appear, or, having appeared, fail to dis- close any indebtedness, the plaintiff may, if he can, show an in- debtedness on the part of the garnishee by any other competent evidence. He is not concluded by the statements of the gar- nishee as to the amount of his indebtedness. 35 A copy of the summons in garnishment is required to be served on the execu- tion debtor as well as on the garnishee, and such debtor .may make defence. If the debtor be a non-resident there must be an order of publication against him, except upon executions issued by a justice. 36 If the garnishee admits liability, but the debt is 33. Code, 3610. 34. Freitas V. Griffith, 112 Va. 343, 71 S. E. 531. 35. Code, 2977. 36. Code, 3609. 353 MODE OF ENFORCING THE TITLE 663 not due, the proceeding must be continued until the debt be- comes due, unless the garnishee will consent to a present judg- ment against him, with a suspension of execution until the debt becomes due. This is sometimes done, and it is very desirable for the creditor to get this if he can, as it cuts off all possibility of thereafter assigning the debt by the defendant in the original execution. If the evidence of the garnishee's debt is negotiable paper it should be produced for surrender to him, or other proper steps be taken for his protection. While a fi. fa. is a lien on a legacy, or distributive share of an estate, the process of garnishment at law will not lie against exec- utors and administrators to recover such legacy or distributive share, but other remedies must be resorted to. 37 Where a cor- poration is summoned as garnishee, the usual practice is to desig- nate some officer of the corporation who has knowledge of the facts upon whom the garnishment is to be served, as the corpora- tion, as such, can only answer under its corporate seal. 38 As to property acquired after the-officer receives the writ, and before the return day, the lien attaches to both species of prop- erty, but as to property of either kind acquired after the return day, the lien does not attach. The lien attaches, however, to tangible personal property acquired on the return day, provided it is levied on that day. As the lien is fixed by the fi. fa. and not by the garnishment, the garnishee is required to answer whether or not he was indebted not only at the time of the service, but thereafter during the life of the fi. fa. 39 Situs of a Debt for Purpose of Garnishment. What is the situs of a debt for the purpose of garnishment or attachment is a subject of much conflict of authority. While the situs of a debt for the purpose of taxation, distribution, and the like, is the res- idence of the owner, or creditor (and a few courts give the same situs for the purpose of garnishment), it is generally held that the residence of the debtor, rather than that of the creditor, is the situs of the debt for the purpose of garnishment and attach- 37. Bickle v. Crisman, 76 Va. 678, 692; Swann v. Summers, 19 W. Va. 125. 38. B. & O. R. Co. v. Gallahue, 12 Gratt. 655. 39. Park v. McCauley, 67 W. Va. 104, 67 S. E. 174. 664 EXECUTIONS 354 ment. "The rule announced in a number of late and well-con- sidered cases, and which seems to be the doctrine which will best protect the interests of commerce, is that a debtor may be charged as garnishee of his creditor, without regard to the illusive the- ories as to the situs of a debt, in any jurisdiction in which an ac- tion could have been brought by such creditor against the debtor for the recovery of the debt." 40 The legislature of Virginia has practically determined that the situs of a debt, both for purposes of attachment and garnishment, is the residence of the debtor; 41 and this, on principle, seems to be the correct rule. 42 The legislature of Virginia, however, has imposed very severe penalties on any person who shall directly or indirectly send a claim out of the State for the purpose of at- tachment or garnishment in another state of the wages of a la- boring man and householder, with intent to deprive him of the exemption of fifty dollars a month given to him by 3652 of the Code. 4a The conflict of decisions on the subject of the situs of debts for the purpose of garnishment or attachment has worked great hardship and injustice to garnishees, 44 but it has been held in Virginia that a garnishee, who, without fault or negligence on his part, has been compelled by a court of competent jurisdiction, to pay the debt to his debtor, cannot be compelled to pay the same indebtedness, or any part thereof, to the person suing out the garnishment. 45 354. Property undisclosed. There may be property of either kind (capable of being levied on, or not capable of being levied on) upon which the ft. fa. is a lien, or even upon which it is not a lien, and of which the creditor 40. 14 Am. & Eng. Encl. Law (2nd Ed.) 805. 41. Code, 2959, Cl. 1; 3609. 42. 4 Va. Law Reg. 471-472. 43. Code, 3652a. 44. See discussion, 1 Va. Law Reg. 241; 14 Am. & Eng. End. Law, 805. 45. Va. F. & M. Ins. Co. v. New York, etc., Co., 95 Va. 515, 28 S. E. 888. 354 PROPERTY UNDISCLOSED 665 does not know, and yet which may be made available for the pay- ment of the debt due the creditor. If the debtor owns property outside of the state, real or personal, the process of the state cannot run into another state and there reach the property, but the courts of this state, having jurisdiction of his person, may by process of contempt compel him to surrender the property for the payment of his execution creditors. This is accomplished by interrogatories. Upon application of the execution creditor, the judge of the court from which the execution issued, in term time or vacation, may issue a summons requiring the execution debtor to appear before a commissioner of any circuit or corporation court at a time and place to be designated in the summons, to answer such interrogatories as shall be propounded to him by counsel for the execution creditor, or by the commissioner, ex- cept that the summons shall not be served out of the county or corporation in which such commissioner resides. The execution debtor must appear and answer under oath. If he fails to appear and answer, or answers evasively, provision is made for compell- ing a proper answer by the section of the Code quoted. 46 46. Section 3603 of the Code is as follows: "To ascertain the estate on which a writ of fieri facias is a lien and to ascertain any real estate in or out of this state to which a debtor named in such fieri facias is entitled upon the application of the execution creditor the judge of any court of record from which the fieri facias issued may, either in term or vacation, issue a summons requiring the exe- cution debtor or any officer of a corporation debtor having any offi- cer in this state or any debtor or bailee of his or its, requiring him or them to appear before one of the commissioners of any circuit or corporation court at a time or place to be designated in the said summons to answer such interrogatories as shall be propounded to him or them by the counsel of the execution creditor or the com- missioner,- except that such summons shall not be served out of the county or corporation in which such commissioner resides. The debtor served with such summons shall appear at the time and place mentioned and make answers under oath to such interrogatories. If he fail to appear and answer or make any answers which are deemed by the commissioner to be evasive, the commissioner may by rule returnable to a future day or forthwith require the said debtor or his debtor or bailee to show cause why an attachment may not be issued against him or them to compel him or them to answer the interrogatories aforesaid or any others which he may deem 666 EXECUTIONS 354 If he discloses any real estate outside the state, he is required to convey it to the officer to whom the fi. fa. was delivered, and money, bank notes, etc., or other personal estate he is re- quired to deliver to the officer. If he fails to make such con- veyance and delivery, the same may be compelled by taking him into custody until the conveyance is made, and when it is made, pertinent. But the commissioner shall enter in his proceedings and report to the court mentioned in section three thousand six hundred and five any and all the objections taken by such debtor against answering such interrogatories or any or either of them, and if the court afterwards sustain any one or more of said objections the answers given to such interrogatories as to which objections are sustained shall be held for naught in that or any other cause." The following forms are taken from Mr. Pollard's Notes to the above section of the Code: "Virginia: In the Court of the , Plaintiff, v. , Defendant. It appearing to the court that the plaintiff did on the day of , 19.., obtain judgment in this court against the defend- ant for the sum of , with interest thereon from the day of , 19.., and costs amounting to , And it further appearing that an execution upon said judgment issued on the day of , 19.., returnable to rules, 19. . ., came to the hands of the sheriff of on the day of , 19..., and there remains unsatisfied./ Therefore, on application of the plaintiff, it is ordered that the said defendant personally appear before , one of the com- missioners in chancery of the court of the , at his office situated , on the day of , 19..., at .... o'clock . . . M., then and there to answer such interrogato- ries as may be propounded to him by counsel for the plaintiff or by said commissioner, as prescribed in section 3603 of the Code of Virginia and acts amendatory thereof; and It is ordered that a copy hereof be forthwith served on the said defendant, by the -sheriff of , who shall make his return as to such service to said commissioner. A copy Teste. , Clerk." Under this section it would seem that a simple summons issued by the judge is all that is necessary, but the better practice is to 354 PROPERTY UNDISCLOSED 667 provision is made for his discharge. 47 The officer is to sell the land as he would horses, mules or work oxen. The personal property he deals with as if levied under a fi. fa., i. e., advertises issue an order as above indicated, thus preserving a full record of all the proceedings in the suit. If a simple summons be preferred, the following form may be used: Form of Summons. The Commonwealth of Virginia, to the Sheriff of the County of Greeting: We command you that you summon to appear before , a commissioner in chancery of the court of , at his office in on the day of , 19..., at .... o'clock ... M., then and there to answer such interrogatories as may be legally propounded to , in order to ascertain the estate of the said upon which the execution in favor of against the said is a lien, or any real estate in or out of this state to which the said is entitled; which execution was issued on the day of 19..., by the clerk of the circuit court of said county, upon a judg- ment obtained in the court by said against the said for dollars and with legal interest thereon from the day of , 19..., till paid, and $ costs, and made returnable to the rules, 19. . ., and came into the hands of on the day of , 19..., at . . . o'clock . . . M. Given under my hand this day of , 19... Judge of 47. Section 3604 of the Code is as follows: "Any real estate out )f this state to which it may appear by such answers that the debtor is entitled shall be forthwith conveyed by him to the officer to whom was delivered such fieri facias, and any money, bank notes, securi- ties, evidences of debt, or other personal estate which it may ap- )ear by such answers are in possession of or under the control of the debtor or his debtor or bailee shall be delivered by him or them as far as practicable to the said officer or to such other and in such manner is may be ordered by the said commissioner or the said court or the judge thereof where it is in court or before such judge; unless such conveyance and delivery be made a writ shall be issued by the :ourt's order, or, if the answers be not in court, by the commissioner 668 EXECUTIONS 355 and sells the goods and chattels, and as to choses in action, he may receive payment for sixty days after delivery to him, and after- wards return those uncollected to the clerk's office of the court from which the execution issued. 48 The creditor can then pro- ceed against residents of the state by garnishment. The statute is silent as to the mode of procedure against non-residents who are liable in choses in action, but it is probable that the court from whose clerk's office the execution issued may designate some person to proceed on them in the foreign jurisdiction, or else direct a sale thereof. If an execution debtor, after being served with a summons issued by a commissioner, fails within the time prescribed therein, to file answers upon oath to said in- terrogatories, or files answers deemed by the commissioner to be evasive, on affidavit by the creditor that the execution debtor is about to quit the state, the commissioner may issue a writ di- recting the sheriff to apprehend the debtor and keep him safely until he answers the interrogatories, 49 but this remedy is not only slow, but of little practical value, 50 and resort is generally had to the more speedy and effective remedy of holding the defendant to bail discussed in the next section. 355. Non-resident debtor. If the debtor be a non-resident of the state and there is a per- sonal judgment against him, and he has personal property in the state, it may be levied on as though he were a resident. If he himself be found within the state, the creditor, if he has a judg- directed to the sheriff of any county or the sergeant of any corpo- ration requiring such sheriff or sergeant to take the debtor and keep him safely until he shall make such conveyance and delivery, upon doing which he shall be discharged by the court under whose order the writ issued, or if the answers were not in the court by the court by which the- commissioner was appointed, or in either case if the court be not sitting by the commissioner. He may also be dis- charged by the said court or the judge thereof in vacation in any case if the court or judge shall be of opinion that he was improperly committed or is improperly or unlawfully detained in custody." 48. Code, 3603, 3608. 49. Code, 3606. 50. 6 Va. L. Reg. 804. 356 MOTION TO QUASH 669 ment, may sue on the judgment, and if no judgment, may sue on the original cause of action, and hold the defendant to bail, if he is about to quit the state. The creditor need have no other ground for this procedure than the fact that his debtor is "about to quit the state." This is a personal attachment against the debtor, the proceedings on which will be explained in connection with attachments, to which the subject more properly belongs. It is sufficient here to say that a capias issues for the arrest of the defendant, and he is actually incarcerated unless he gives bond, with good security, in such penalty as the court, judge or justice may think fit, with condition that if judgment be rendered in the action and within four months thereafter execution be issued and interrogatories be filed before a commissioner of the court wherein such judgment is, he will, at the time the com- missioner issues the summons, be in the county or corporation in which the commissioner resides, and will within the time pre- scribed by the summons file proper answers on oath to such interrogatories and make such conveyance and delivery as is re- quired by Ch. 176 of the Code, or in default thereof, will perform and satisfy the judgment of the court. 51 This is a drastic meas- ure against non-resident debtors, but a very effectual one. If a creditor has no judgment, but a non-resident debtor has ef- fects within the state, they may be subjected to attachment, the mode of procedure upon which will be treated later. If the record shows that any person other than the plaintiff in a judgment is the beneficial owner thereof, in whole or in part, the clerk is required to endorse on the execution the extent of the interest. 52 356. Motion to quash. A motion to quash is the proper method of determining the regularity and validity of a writ of fi. fa. "The motion to quash may, after reasonable notice to the adverse party, be heard and decided by the justice who issued the execution, or the circuit court of the county or the corporation court of the corporation 51. Code, 2992. 52. Code, 3583. 670 EXECUTIONS 356 in which such justice resides, and in other cases by the court whose clerk issued the execution, or if it was from a circuit or corporation court, by the judge thereof in vacation; and such court or judge, on the application of the plaintiff in the motion, may make an order staying the proceedings on the execution un- til the motion be heard and determined, the order not to be ef- fectual until bond be given in such penalty and with such condi- tion, and either with or without surety, as the court or judge may prescribe. The clerk from whose office the execution is- sued, or the justice rendering the judgment, as the case may be, shall take the bond and make as many copies of the order as may be necessary and endorse thereon that the bond required has been given; and a copy shall be served on the plaintiff in the execution and on the officer in whose hands the execution is." 53 As a motion to quash does not per se operate to suspend the en- forcement of the fi. fa. while the motion is pending, it was formerly necessary to resort to equity for an injunction, but the statute now provides that the court or judge, on application of the plaintiff in the motion, may make an order staying the pro- ceedings on the execution until the motion is heard and deter- mined. The order, however, is not to be effectual until bond is given, as above stated. If the fi. fa. does not follow the judg- ment, or is issued contrary to the agreement of the parties, or is subject to credits not endorsed, or has been negligently or fraud- ulently issued, a motion to quash it is the proper remedy, and this is a direct proceeding to attack the fi. /a. 54 If a former fi. fa. has been satisfied, or levied on sufficient property to satisfy it, which has been lost to the execution debtor by the negligence of the officer, a motion to quash the second fi. fa. is the proper rem- edy. 55 If the motion to quash is based on the ground that a for- mer fi. fa. (which was not returned) was levied and satisfied, the fact of the levy of the former fi. fa. may be shown by parol. 56 53. Code, 3599. 54. Enders v. Burch, 15 Gratt. 64, 72; Snavely v. Harkrader, 30 Gratt. 487; Baer v. Ingram, 99 Va. 200, 37 S. E. 905; Lowenback v. Kelley, 111 Va. 439, 69 S. E: 352; Taney v. Woodmansee, 23 W. Va 709; Howell v. Thomason, 34 W. Va. 794, 12 S. E. 1088. 55. Sutton v. Marye, 81 Va. 329; Walker v. Com., 18 Gratt. 13. 56. Cockerell v. Nichols, 8 W. Va. 159. 357 VENDITIONI EXPONAS 671 There is no time within which a motion to quash must be made, 57 and it may be made by the plaintiff or defendant, 58 and as well after the return day as before, and whether it is alive or not; 59 but where the fi. fa. issued in contravention of the agreement of the parties has been returned, and a second fi. fa. issued, the quashing of the second fi. fa. does not destroy the effect of the first fi. fa., and the lien created thereby continues in effect. The effect of the first fi. fa. can only be destroyed by a direct proceed- ing for that purpose, such as a motion to quash that fi. fa., and this can only be prosecuted by a party thereto or his personal representative. The agreement not to issue the fi. fa. is personal to the parties thereto, and cannot be taken advantage of by third persons. 60 On a motion to quash, the officer may be allowed to amend his return under the conditions hereinbefore set forth. 61 If judgment and fi. fa. be recovered against two persons as partners, although the process was served on only one of them, a motion to quash does not lie at the instance of the defendant who was served with process. 62 If, for any reason, the judgment on which a fi. fa. issues is vacated or annulled, this ipso facto vacates any fi. fa. issued thereon without any order quashing the fi. /fl. 63 357. Venditioni exponas. A writ of venditioni exponas is a writ directed to the sheriff or other officer commanding him to expose to sale property which has been previously levied on. If a fi. fa. has been returned, showing a levy on personal property, but no sale for want of bidders, or because the sheriff did not have time to advertise and sell after levy and before the return day, or if the officer dies after levy but before sale, leaving no deputy authorized to 57. Lowenback v. Kelley, 111 Va. 439, 69 S. E. 352. 58. Rinehard v. Baker, 13 W. Va. 805. 59. Slingluff v. Collins, 109 Va. 717, 64 S. E. 1055; Lowenback v. Kelley, 111 Va. 439, 69 S. E. 352. 60. Baer v. Ingram, 99 Va. 200, 37 S. E. 905. 61. Walker v. Com., 18 Gratt. 13; Slingluff r. Collins, supra. 62. Lee v. Hassett, 41 W. Va. 368, 23 S. E. 559. 63. Ballard v. Whitlock, 18 Gratt. 235. 672 EXECUTIONS 357 make the sale, in all these cases the proper writ is a writ of venditioni exponas. 6 * The sheriff may postpone a sale if he is not offered a reasonably fair price for the property, and where the writ of venditioni exponas is issued because of the want of bidders it must direct the officer to make the sale peremptorily. In Virginia it is provided by statute that a deputy of a sheriff or sergeant in office at the time of his death shall, notwithstand- ing the death of his principal, unless removed, continue in office until the qualification of a new sheriff or sergeant,, and execute the same in the name of the deceased and in like manner as if the sheriff or sergeant had continued alive until such qualifica- tion. 65 If, however, the officer die leaving no deputy, then, upon a suggestion of that fact, a writ of venditioni exponas may be di- rected to such sheriff or other officer of the county or corpora- tion, wherein the property was taken, as may be in office at the time the writ issues. 66 The writ is issued upon the mere sug- gestion of the execution creditor, or his attorney, as a matter of course, just as a fi. fa. would be issued, and generally without notice to the defendant or any order from the court, and if the clerk, upon request, refuses to issue the writ, he may be compelled to do so by a writ of mandamus 7 The writ is fre- quently spoken of by the courts as a writ of execution, but it is, in fact, a mere order of sale under the levy of the original execution, and is issued, among other reasons, to prevent the loss of the lien of the original execution. The officer holding a fi. fa. may, if it is levied before the return day, retain the writ until after the return day and make sale under his levy, and no writ of venditioni exponas is then necessary, but if he dies before sale, leaving no deputy, or returns the writ showing a levy and no sale, the plaintiff would lose the lien of his fi. fa. if he abandoned that levy, and the rights of other creditors might intervene before he could sue out another execution, or sureties might be released in consequence of the abandonment of the 64. Code, 3593, 3594. 65. Code, 892. 66. Code, 3594. 67. Cummins v. Webb, 4 Ark. 229; 22 End. PI. & Pr. 647. 357 VENDITIONI EXPONAS 673 levy, and hence he seeks to enforce the lien of the original /?. fa. by a sale thereunder, and this he accomplishes by the writ of rcnditioni exponas. GS There must have been a prior levy and return, but no sale, in order to justify the issuance of the writ. 68. 22 Encl. PI. & Pr. 643, ff; 4 Min. Inst. 1039. 43 CHAPTER XLIII. ATTACHMENTS. 358. Nature and grounds. Non-resident or foreign corporation. Removal of goods. 359. Courts from which attachments may be issued. Attachment at law. Attachment in equity. Attachment from a justice. Attachment where no suit or action is pending. 360. Proceedings to procure attachment. In equity. At law. Attachment where no suit or action is pending. Attachment for twenty dollars or less. 361. Affidavit. Sufficiency. Jurisdiction. Conjunctive and disjunctive statements. Who may make affidavit. Time of making affidavit. Amendments. Additional affidavits. Defective affidavits. 362. What may be attached. 363. What may not be attached. 364. How and by whom property is attached. Tangible personal property. Choses in action. Real property. By whom service may be made. 365. Attachment bonds. 366. Lien of attachment. Real estate. Personal property. Priorities. 367. When attachment to issue. 368. Defences to attachments. Who may make defence. What defence may be made. When defence may be made. How defence is made. 358 NATURE AND GROUNDS 675 Defence to the merits. Judgment for the plaintiff. Order of publication. 369. Remedies for wrongful attachments. 370. Holding defendant to bail. 371. Appeal and error. 358. Nature and grounds. Attachments are wholly creatures of statute, and the grounds upon which they may be issued differ more or less in the diff.er- ent States. An attachment is an order or process to take into custody the pe-rson or property of another to answer a demand to be thereafter established, or to enforce obedience, or to pun- ish for disobedience, to some lawful judicial order theretofore made. It will be observed that this definition covers three classes of attachments. The first is a civil process to answer some de- mand asserted against the person or property of another. The second is in the nature of a criminal process to enforce obedience to some command which has theretofore been made, as, for ex- ample, where a witness who has been summoned fails to attend,, he may by proper proceeding be attached and forcibly brought into court. The third is likewise a quasi-criminal proceeding to punish a person for disobedience to some lawful order or decree, as, for example, where an injunction order has been disobeyed the party enjoined may be attached for his contempt. The first of these is the only species of attachment which will be dis- cussed in this chapter. An attachment as a civil process is sard to be an execution by anticipation. It lays hold of the property of the defendant at the beginning of the litigation for the pur- pose of satisfying some claim or demand of the plaintiff which is to be established in the future, but which in fact may never be established. While an execution issues only after judicial in- vestigation and determination as to the rights of parties, an at- tachment issues before any such investigation or determination has been had. In this respect it is harsh towards the debtor. It is also harsh in its effect upon other creditors over whom the attaching creditor obtains priority, and is susceptible to great abuse. It is a statutory remedy, unknown to the common law, and existing only by virtue of statutes. For these reasons at- 676 ATTACHMENTS 358 tachment laws are strictly construed, and an attachment will never be sustained until all the requirements of the statute have been complied with. 1 The grounds for attachment vary more or less in the different states, but those provided by statute in Virginia are such as prevail in most of the states, and are set forth in the margin. 2 The language of the statute is always 1. Claflin v. Steenbock, 18 Gratt. 842; Delaplain v. Armstrong, 21 W. Va. 213; Cosner v. Smith, 36 W. Va. 788, 15 S. E. 977. 2. Section 2959 of the Code is as follows: "If at the time of or after the institution of any action at law 'for the recovery of specific personal property or a debt or damages for the breach of a con- tract, express or implied, or damages for a wrong the plaintiff, his agent or attorney, shall make affidavit stating that the plaintiff's claim is believed to be just, and where the action is to recover spe- cific personal property the nature and, according to the affiant's belief, the value of such property and the probable amount of dam- ages the plaintiff will recover for the detention thereof, and where it is to recover a debt or damages for the breach of a contract, ex- press or implied, or damages for a wrong, a certain sum which (at least) the affiant believes the plaintiff is entitled to or ought to re- cover, and stating also the existence to the best of the affiant's be- lief of one or more of the following grounds for attachment: That the defendant or one of the defendants: First. Is a foreign corporation or is not a resident of this state and has estate or debts owing to said defendant within the county or corporation in which the action is or is sued with a defendant residing therein, or that the defendant, being a non-resident of this state, is entitled to the benefit of any lien, legal or equitable, on property, real or personal, within the county or corporation in which the action is, and the word estate as herein used shall include all rights or interests of a pecuniary nature which can be protected, enforced, or proceeded against in courts of law or equity; but this provision as to equitable estates and interests so far as amendatory of existing laws shall not apply to attachments sued out before the passage of this act. This section as so enlarged shall come under the provisions of section twenty-nine hundred and sixty-four, con- cerning attachments in equity; or, Second. Is removing or about to remove out of this State with intent to change his domicile; or, Third. Is removing, intends to remove, or has removed the spe- cific property sued for or his own estate or the proceeds of the sale of his property, or a material part of such estate or proceeds, out of 358 NATURE AND GROUNDS 677 important and should be carefully examined whenever it is neces- sary to sue out an attachment. For the purpose of the present discussion, though not sufficiently specific for practical applica- tion, the grounds set forth in the statute cited in the margin may be briefly summarized as follows, to-wit : (1) that the defendant is a foreign corporation, or is not a resident of the State; (2) that the defendant is about to remove himself out of the State with intent to change his domicile; (3) that the defendant is about to remove his property out of the State, so that process of execution would be unavailing; (4) that the defendant is con- verting, or is about to convert, or has converted his property, or some part thereof into money, securities, or evidences of debt, with intent to hinder, delay or defraud his creditors; (5) that the defendant has assigned or disposed of, or is about to assign or dispose of his estate or some part thereof with the intent to hinder, delay or defraud his creditors. It will be observed that the fraudulent intent of the debtor is applicable only to the last two grounds of attachment. The section we have been discussing applies only to an attachment issued in an action at law, which, of course, means that the right of action has accrued. The at- tachment is there given for the recovery of specific personal property, or a debt, or damages for a breach of a contract, ex- press or implied, or damages for a wrong. By another section of the Code an attachment is also given for a debt, whether it is due or not, where it appears that the debtor intends to remove, or is removing, or has removed his effects out of the State. This statute contemplates the existence of the relation of debtor and creditor, but the term "debtor" should, in the construction of this State so that process of execution on a judgment when obtained in said action will be unavailing; or, Fourth. Is converting or is about to convert or has converted his property of whatever kind or some part thereof into money, securities, or evidences of debt with intent to hinder, delay, or de- fraud his creditors; or, Fifth. Has assigned or disposed of or is about to assign or dis- pose of his estate or some part thereof with intent to hinder, de- lay, or defraud his creditors. In any such case the clerk of the court in which the action 'is shall issue an attachment as the case may require." 678 ATTACHMENTS 358 this statute, be taken in its largest sense, as embracing every per- son against whom another has a claim for breach of contract even when the compensation sounds in damages. 3 The word "claim" is as broad a term as could have been used in this con- nection. 4 But the statute is not applicable to an action of dam- ages for a wrong. 5 An attachment may also issue on the com- plaint of a lessor, his agent or attorney, that any person liable to him for rent intends to remove, or is removing, or has within thirty days removed his effects from the leased premises. 6 Un- 3. Dunlop v. Keith, 1 Leigh 430, 432. See also, Peter v. Butler, 1 Leigh 285. 4. Myers v. McCormick, 109 Va. 160, 63 S. E. 437. 5. Section 2961 of the Code is as follows: "On complaint by any person, his agent or attorney, whether the claim of such person is payable or not, to a justice, or to the clerk of the circuit or of any city court of the county or corporation in which the debtor against whom the claim is resides, or in which he has estates or debts ow- ing to him, or if he has removed from the State in which he last resided, or in which he has estate or debts owing to him, or if he has never resided in the State in which he has estate or debts ow- ing to him, or if such debtor be a corporation in which such cor- poration has estate or debts owing to it, that the said debtor in- tends to remove or is removing, or has removed his effects out of this State, so that there will probably not be therein effects of such debtor sufficient to satisfy the claim . when judgment is ob- tained therefor, should only the ordinary process of law be issued to obtain the judgment, if such person, his agent or attorney, make oath to the truth of the complaint to the best of his belief, as well as to the amount and justice of the claim, and if the same is not payable, at what time it will be payable, the justice or clerk, as the case may be, shall issue an attachment against the estate of the debtor for the amount so stated." 6. Section 2962 of the Code is as follows: "On complaint by any lessor, his agent or attorney, to a justice or to the clerk of the cir- cuit court of the county or of the circuit or any city court of the corporation in which the leased premises or a part thereof may be, that any person liable to him for rent intends to remove, or is re- moving, or has, within thirty days, removed his effects from such premises, if such lessor, his agent or attorney, make oath to the truth of such complaint to the best of his belief and to the rent which is reserved (whether in money or other thing), and will be payable within one year, and the time or times when it will be so payable, and also make oath either that there is not, or he believes, unless an 358 NATURE AND GROUNDS 679 der this statute, the lessor is allowed to attach for rent that "will be payable within one year." 7 Non-Resident or Foreign Corporation. A person intending to remove from this State to another becomes a non-resident of this State as soon as he commences his removal and before he gets beyond the limits of the state. 8 For the purpose of attach- ment laws there is a marked distinction between "domicile" and "residence." To constitute a domicile two things must concur, first residence, second, the intention to remain there for an un- limited time. A resident has to have a permanent abode for the time being, as distinguished from a mere temporary locality of ex- istence. Residence, within the meaning of the attachment laws, means the act of abiding or dwelling in a place for some contin- uance of time. 9 If a party domiciled in another State, comes into this State to do business, and particularly if he brings with him his means and property and engages in a business which makes his stay in the State wholly indefinite and uncertain as to duration, he is a resident of this State, and not subject to the pro- vision of the attachment laws against non-residents. 10 So, also, a railroad contractor dwelling in Virginia with no intention of leaving, and engaged in work which will occupy him indefinitely, but whose family live out of the State for the convenient educa- tion of his children, is still a resident of the State. 11 An abscond- attachment issues, that there will not be left on such premises prop- erty liable to distress sufficient to satisfy the rent so to become pay- able, such justice or clerk, as the case may be, shall issue an at- tachment for the said rent against such goods as might be dis- trained for the same if it had become payable, and against any other estate of the person so liable therefor." 7. Other Attachments. Provision is also made for attachments against vessels in certain cases (Code, 2963), and against tenants and laborers to whom advances have been made by landlords or farmers, and who are removing, or intend to remove the crops, or their share thereof, without repaying said advances. (Code, 2496.) 8. Clark v. Ward, 12 Gratt. 440. 9. Long v. Ryan, 30 Gratt. 718. 10. Long v. Ryan, supra; Andrews v. Mundy, 36 W. Va. 22, 14 S. E. 414. 11. Didier v. Patterson, 93 Va. 534, 25 S. E. 661; Dean v. Cannon-, 37 W. Va. 123, 16 S. E. 444. 680 ATTACHMENTS 358 ing debtor is not a non-resident, nor is a volunteer in the army, absent with his command, nor one serving a term of penal servitude outside the State. 12 A person, born and domiciled in another State, who comes to Fortress Monroe (which is within the territorial limits of this state, but under the exclusive juris- diction of the United States) for the purpose of enlisting in the army, and who enlists and remains an enlisted soldier of the United States, does not thereby acquire a residence in Virginia so as to defeat the right of a creditor to attach his property in Virginia on the ground that he is a non-resident. The mere fact that the State has a right to serve process, civil and criminal, in the territory ceded to the United States does not affect the personal status of one who is a resident in such territory. 13 If only the surety in a debt is a non-resident, though the principal is not, the property of the surety may be attached. 14 The mere fact that a corporation created by the laws of another State and having its principal office there, has com- plied with the laws of Virginia in relation to doing business in this State does not make such corporation a resident of this State within the meaning of the foreign attachment laws. 15 Removal of Goods. The shipping of products of an enterprise out of the State in due course of trade, where the removal is not permanent and the proceeds are brought back within the State, is not sufficient ground for an attachment. The statute does not mean to designate as a cause of attachment transitory or tem- porary removal. What is meant is permanent removal. 16 In the case of an attachment for rent, however, against a tenant re- moving his effects from the leased premises, the statute has been held to apply as well to removals in the regular course of busi- ness as to other removals. 17 It has been suggested that in the 12. Starke v. Scott, 78 Va. 180; Lyon v. Vance, 46 W. Va. 781, 34 S. E. 761; Guarantee Co. v. Bank, 95 Va. 480, 28 S. E. 909. 13. Bank v. Byrum, 110 Va. 708, 67 S. E. 349. 14. Loop v. Summers, 3 Rand. 511. 15. Cowardin v. Ins. Co., 32 Gratt. 445; Savage v. People, 45 W. Va. 275, 31 S. E. 991; Hall v. Bank, 14 W. Va. 584; Railroad Co. v. Koontz, 104 U. S. 5. 16. Clinch River Mineral Co. v. Harrison, 91 Va. 122, 21 S. E. 660 17. Offterdinger' r. Ford, 92 Va. 636, 24 S. E. 246. 359 COURTS FROM WHICH ATTACHMENTS MAY BE ISSUED 681 case of landlord and tenant the landlord has a quasi lien on the goods of the tenant, which the general creditor has not on the goods of his debtor. 18 This is not an entirely satisfactory reason for the distinction between the two classes of cases, but the tenant is probably sufficiently protected against an attachment by the fact that if an attachment were sued out by the landlord, he would be compelled to show that the removal was such as would probably not leave sufficient property on the leased prem- ises to pay the rent. If the removal were in the course of trade, that is, the proceeds were used to replenish the stock, the landlord would not be able to support his ground of attach- ment as the property on the leased premises is not being dimin- ished by the removal in the course of trade. 359. Courts from which attachments may be issued. Under the Virginia statute, attachments may be issued either in a pending action at law, or in a pending suit in equity, or when no suit or action is pending. Attachment at Law. No action at law can be maintained, and hence no attachment as ancillary thereto can be issued, if the claim upon which it is founded be not due, or, if for specific personal property, the cause of action has not matured. If the claim be due, an action at law thereon may be instituted, and if my one of the five grounds specified in Section 2959 of the )de exist, upon proper affidavit an attachment may issue, and if the claim be for damages for a wrong, the jurisdiction at law is exclusive. Here a regular action is instituted as if no attach- ment were to issue, and when the affidavit is made, either at the time or after the institution of the action, the attachment is- sues as ancillary thereto. The attachment in this case is a regu- lar formal attachment issued by the clerk and directed to the officer who is to execute it. The attachment is a separate and listinct paper from the declaration, the writ, or any other paper in the case. It is made out by the clerk, but a copy is served by the officer in addition to the writ in the action. It is provided 18. 7 Va. Law Reg. 77. 682 ATTACHMENTS 359 by the statute that it may be issued at the time of or after the institution of the action. 19 Attachment in Equity. When a person has a claim, legal or equitable, to any specific personal property or a like claim to any debt, whether such debt be payable or not, or to damages for the breach of any contract, express or implied, if such claim exceed $20, exclusive of interest, he may on a bill in equity filed for the purpose have an attachment to secure and enforce the claim, on making the affidavit required by the statute. 20 If the claim be to specific personal property, or a debt, or dam- 19. Code, 2959. 20. Section 2964 of the Code is as follows: "When a person has a claim, legal or equitable, to any specific personal property, or a like claim to any debt, whether such debt be payable or not, or to damages for the breach of any contract, express or implied, if such claim exceed twenty dollars, exclusive of interest, he may, on a bill in equity filed for the purpose, have an attachment to secure and enforce the claim, on affidavit made by himself, his agent or at- torney, according to the nature of the case, conforming as nearly as its nature will admit, to the affidavit required by section twenty- nine hundred and fifty-nine; except that if the claim be to a debt not payable, the affidavit shall also state the time when it will be payable. Upon such affidavit, the plaintiff may require the clerk to endorse on a summons an order to the officer to whom it is di- rected to attach the specific property (if any be mentioned in the affidavit), and the debts owing by other defendants (if any) to the defendant against whom the claim is, and also any other estate of that defendant, whether in his own hands or in the hands of other defendants. Any attachment under this section shall be executed in the same manner, and shall have the same effect as at law, but the proceedings therein shall be the same as in other suits in equity. And the court, or the judge thereof in vacation, may interpose by in- junction, or the appointment of a receiver or otherwise, to secure the forthcoming of the specific property sued for, and so much other estate as will probably be required to satisfy any future order or decree that may be made in the cause. This section shall not be construed as giving to a court of equity jurisdiction to enforce by attachment a claim to a debt not payable, where the only ground for the attachment is that the defendant, or one of the defendants, against whom the claim is, is a foreign corporation, or is not a resi- dent of this state, and has estate or debts owing to the said defend- ant within the county or corporation in which the suit is. or is sued with a defendant residing therein." 359 COURTS FROM WHICH ATTACHMENTS MAY BE ISSUED 683 ages for a breach of contract, express or implied, the jurisdiction at law and in equity is concurrent if the claim be due. If the claim be for damages for a wrong equity has no jurisdiction. The ground of the attachment may be any one or more of those mentioned in 2959. If the claim be not due, and the ground of attachment be that the defendant has removed, is removing, or is about to remove his effects out of the state, an attachment may be awarded either in equity, or by a justice or clerk. If any other ground of attachment be relied on and the claim be not due, equity alone has jurisdiction, unless the only ground for attachment be that the defendant or one of the defendants is a foreign corporation or a non-resident, in which event no attachment can issue from any source. In other words, if the claim be not due, and the only ground of attachment be that of non-residence or foreign corporation, for manifest reasons no attachment can issue. Thus where a formal attachment in equity is issued against a non-resident on the ground that he is about to make an assignment to hinder, delay, or defraud his cred- itors, upon failure to prove the fraud the suit will be dismissed and the attachment abated. Having failed to establish fraud, the plaintiff presents simply the case of a suit upon an unmatured debt against a non-resident for which no attachment is given. 21 If a claim which is not due be for $20 or less no attachment can issue. In equity no formal attachment issues at all, but the clerk en- dorses on the summons in chancery an order to the officer to whom the summons is directed to attach the estate of the de- fendant. Attachment from a Justice. For a claim not exceeding $20 which is due and payable, where the ground of attachment is that the defendant is a foreign corporation, or a non-resident, or is about to quit the state or about to remove his effects out of the state, an attachment may be issued by a justice of the peace, and all of the proceedings are before him, unless the attachment is levied on real estate, when it is to be removed to the proper 21. Wingo v. Purdy, 87 Va. 472, 12 S. E. 970. 684 ATTACHMENTS 358 court. 22 The details of the procedure are sufficiently given in the statute. The jurisdiction of the justice in this case is exclu- sive. No provision is made for an attachment of this class when the claim is not due. 22. Section 2988 of the Code is as follows: "Any person having a claim, which is cognizable by a justice under the first section of chapter one hundred and forty, if such claim is paj r able and does not exceed twenty dollars (exclusive of interest), upon complaint on oath by such person, his agent or attorney, conforming as nearly as may be to the affidavit prescribed by sections twenty-nine hundred and fifty-nine and twenty-nine hundred and sixty-four, as the case may be, in which affidavit the only grounds for the at- tachment stated are the first, second, and third specified in section twenty-nine hundred and fifty-nine, or one or more of them, may obtain from such justice as is mentioned in section twenty-nine hundred and sixty-one, an attachment against the specific property (if any) claimed, and against the estate of the defendants, if the claim be not for specific property, directed to the sheriff, sergeant, or constable of any county or corporation, and made returnable before the justice issuing the attachment, or some other justice of the same county or corporation, and thereupon such proceedings may be had before the justice as would, if the claim exceeded twenty dollars (exclusive of interest) be had before a court except that the proceedings shall in all cases be without formal pleadings, and an order of publication need not be published in any news- paper, and the justice shall try and decide the case without a jury. The attachment may be served on a corporation as process or notice may be served under section thirty-two hundred and twenty-five. All bonds taken under such attachment shall be filed with the clerk of the county or corporation to which the jus- tice belongs. If such attachment be levied on real estate, the jus- tice shall take no further cognizance of it, but it shall be removed by him, together with all papers and proceedings in the case, into any court to which an attachment issued by a justice for a claim exceeding twenty dollars (exclusive of interest) might have been returnable, and be further proceeded with in said court, as if it had be.en originally cognizable therein." It will be observed that the statute declares that "an order of publication need not be published in any newspaper" but it provides no substitute for the publication. If the defendant is not a resi- dent of the State, no provision seems to be made for service of process upon him, and without some process the proceeding will be void. Ante, 192. 359 COURTS FROM WHICH ATTACHMENTS MAY BE ISSUED 685 Attachment Where Xo Suit or Action Is Pending. Although no suit or action be pending, and the claim of the plaintiff be not due, it is provided by statute that an attachment may be issued in two cases : ( 1 ) where the debtor intends to remove, or is re- moving, or has removed his effects out of this state, so that there will probably not be therein effects of such debtor suffi- cient to satisfy the claim, when judgment is obtained therefor, should only the ordinary process of law be issued to obtain the judgment. 23 In this instance, the attachment may issue "whether the claim of such person is payable or not;" and (2) where a tenant intends to remove, or is removing, or has, within thirty days, removed his effects from the leased premises, so that there will not be left thereon property liable to distress suffi- cient to satisfy the rent to become payable. 24 In this instance, the attachment only issues where the claim is not due, but will become due within one year. If the claim for rent is due the proper remedy is a distress warrant. Upon filing before the justice or clerk the proper affidavit required by the statute, that officer issues a formal attachment (a separate, distinct and formal paper), against the estate of the debtor for the amount claimed in the affidavit. This attachment is directed to the sher- iff, sergeant or constable of any county or corporation, and if the claim exceed S20 (exclusive of interest) is made returnable at the option of the plaintiff to the next term of the circuit court of the county or of the circuit or any city court having jurisdic- tion of the subject matter of the corporation in which such jus- tice or clerk resides. If the claim does not exceed $20 (ex- clusive of interest), the attachment is returnable and proceeded upon according to the provisions of 2988 of the Code, 25 pro- viding that when issued by the clerk the attachment shall be re- turnable before some justice of his county or corporation. 26 Here there is no action at law and no suit in equity but simply the attachment itself. 23. See 2961, copied in note 5 to 358, ante. 24. See 2962, copied in note 6 to 358, ante. 25. See ante, 359, note 22. 26. Code, 2965. 686 ATTACHMENTS 360 360. Proceedings to procure attachment. The mode of procuring the attachment is dependent, of course, upon the tribunal from which the attachment is to issue. In Equity. The procedure in equity is the simplest of all the methods of obtaining an attachment. The bill is prepared, set- ting forth with the needed particularity the plaintiff's claim, and also the facts relied upon to entitle the complainant to an attachment. This is taken to the clerk's office, lodged with the clerk, and a memorandum made for the issuance of the proc- ess. Generally, at the same time an affidavit is prepared and made before the clerk or some officer authorized to administer an oath, setting forth the ground or grounds for the attachment. This is filed with the clerk. If any persons have in their hands effects which it is desired to attach, or are indebted to the de- fendant these are generally made parties defendants. The clerk then issues the summons in the suit and endorses on the sum- mons an order to attach the effects of the defendant. He will also make copies to be served on all the parties designated as being indebted to the defendant, or having in their hands prop- erty belonging to him. If the plaintiff desires the officer to take into his custody the attached effects he is required to give bond with surety to be approved by the clerk as hereinafter pointed out. If this bond is given at the time of or before the suing out of the attachment the clerk also endorses on the summon? the fact that the bond has been given, and a direction to the of- ficer to take the property into his custody. The procedure in equity is recommended as being the simplest and least liable to objection on account of informality. Furthermore, equity has jurisdiction in all the cases in which there is jurisdiction at law, except the single case of damages for a wrong, and in addition to this, as has been hereinbefore pointed out, equity has juris- diction where the claim of the plaintiff (whether legal or equi- table) is not due, in which case there is no jurisdiction at law, so that there is less opportunity for mistake on the subject of jurisdiction in equity than elsewhere. In fact, the attachment in equity is the most comprehensive of all the attachments given by the Virginia statute. 360 PROCEEDINGS TO PROCURE ATTACHMENT 687 At Law. If the procedure be at law, a regular action is in- stituted just as if no attachment were to issue, and the attach- ment is ancillary to the action. Here, as pointed out, the claim must be due. Generally, a memorandum is made for the action and the clerk makes out the writ. If any person is to be desig- nated as having in his hands effects of the debtor or as being in- debted to him a separate statement of this in writing may be de- livered to the clerk, or it may be made a part of the memorandum for the action. This is done by following the memorandum for the writ with a statement on the memorandum book to the fol- lowing effect: ''The defendant is a non-resident of this State, having debts owing to him and estate coming to him in the county of Rockbridge. Issue an attachment and designate Frank Leynian and Henry Brew as having effects of the defendant in their possession and as being indebted to the defendant." 27 An affidavit is then made and lodged with the clerk, showing the nature of the plaintiff's claim and the grounds for the at- tachment. The form of such an affidavit is given in the mar- gin. - s The clerk then makes out a regular, formal attachment, 27. Hilton r.. Consumers Can Co., 103 Va. 255, 48 S. E. 899. 28. FORM OF AFFIDAVIT. State of Virginia i County of Rockbridge I This day ffenry Jones personally appeared before me, Gabriel Sliiclds, a notary public, in and for the county of Rockbridge, in the State of Virginia, and made oath before me in my said county that an action of assuinpsit has been instituted in the Circuit Court of said county by the said Henry Jones, plaintiff, against William Brown. defendant, upon an open account due by the said defendant to the said plaintiff, a copy of which is filed with the declaration in said action, for the sum of $1000.00, with interest thereon from the first day of December, 1911, until payment, which sum at the least affi- ant believes that plaintiff is entitled to and ought to recover, that affiant believes that the plaintiff' s. claim is just and justly due him and that no part thereof has been paid, and that affiant further be- lieves that the defendant intends to remove his estate or the proceeds of the sale thereof, or a material part of such estate or proceeds out of this State so that process of execution on a judgment when obtained in said action rcill be unavailing. Given under my hand this the first day of December, 1911. Gabriel Shields, Notary Public. 688 ATTACHMENTS 360 which is a separate and distinct paper, independent of the dec- laration, writ, or any other paper in the case. The form of such an attachment is given in the margin. 29 The clerk then makes out a copy of the attachment to be served on each of the 29. Form of Attachment issued by clerk in action of assumpsit. The Commonwealth of Virginia: To the Sheriff of Rockbridge County: Greeting: Whereas Henry Jones, the plaintiff in an action of assumpsit upon an open account now pending against William Brown in the circuit court of Rockbridge county, has this day made affidavit before Gabriel Shields, a notary public, for said county, as duly appears by the cer- tificate of the said Gabriel Shields, that the amount of the said affiant's claim in the said action is $1000, the principal money, with legal interest thereon from the first day of December, 1911, until paid, which sum at the least affiant believes that the plaintiff is entitled to and ought to recover, and that he believes that the said claim is just and is justly due to him and that no part thereof has been paid, and that he further believes that the said William Brown intends to remove his estate or the proceeds of the sale thereof or a material part of such estate or proceeds out of this State so that process of exe- cution when obtained in said action will be unavailing. These are therefore in the name of the Commonwealth of Vir- ginia to command you forthwith to attach so much of the estate of the said William Brown as will be sufficient to satisfy the said sum of $1,000.00, the principal, with legal interest thereon as aforesaid, and so to provide that the said estate so attached may be forthcom- ing and liable to further proceedings therein to be had before the said court at the next term thereof and that you have this writ at the clerk's office of the said circuit court at rules to be holden for the said court on the first Monday in January next and that you then and there make known how you have executed the same. Witness R. R. Witt, clerk of our said court at the courthouse of the said county on the first day of December, 1911, and in the ijdth year of the commonwealth. Teste, R. R. Witt, clerk. In the above form, the attachment is addressed to the sheriff. The statute provides that any attachment may be directed to the sheriff, sergeant or constable of any county or corporation. Code, 2965. Of course, the form of the affidavit and the attachment will have to be changed as to names of parties, dates, nature of the claim, amount, time from which interest runs, and the ground of attach- ment to fit the particular case. These are all printed in italics, so as to indicate where the changes would occur. 360 PROCEEDINGS TO PROCURE ATTACHMENT 689 parties designated with an endorsement on each copy that the per- son so designated is required to appear at the term of the court to which the attachment is returnable, and disclose on oath in what sum he is indebted to the defendant, and what effects of the defendant he has in his hands. The attachment and these copies are delivered by the clerk to the officer and he proceeds to execute it. The attachment here, as in equity, may be issued after the suit is instituted, as well as at the time it is instituted. Some times when the suit or action is brought the plaintiff does not know of any ground for an attachment, but discovers such ground afterwards. The procedure then is similar to that pointed out where the attachment issues at the time of the com- mencement of the suit or action. Attachment Where No Action or Suit Is Pending. If no suit or action be pending,, the justice or clerk, as the case may be, upon a proper oath conforming to 2961 and 2962, and spe- cially pointing out at what time the debt will be payable issues a formal attachment (a separate, distinct, formal paper) against the estate of the debtor for the amount claimed in the affidavit. The attachment follows the affidavit and generally recites it, and where the claim is in excess of $20 (exclusive of interest) is returnable to the next term of the circuit court of the county, or to the like term of the circuit or any city court of the cor- poration having jurisdiction of the subject matter in which such justice or clerk resides, or to some rule day thereof. The forms of the affidavit and attachment for rent not due are given in the margin. 30 30. AFFIDAVIT FOR ATTACHMENT FOR RENT NOT DUE. State of Virginia ) County of Rockbridge f to-wit: This day Henry Jones personally appeared before me. Gabriel Shields, a Justice of the Peace, in and for the county of Rockbridge in the State of Virginia, and made oath before me in my said county that William Bron'n is his tenant and is liable to him for rent re- served upon contract for certain premises situate in the county of Rockbridge, in the sum of $300, which sum is payable on December 31, 1911, no part of which has been paid, and that he verily believes that the said William Brown intends to remove his effects from 44 690 ATTACHMENTS Attachment for Twenty Dollars or Less. Here a complaint on oath is made, by the plaintiff, his agent or attorney, conform- ing as nearly as possible to the affidavit in an action at law, but the only grounds upon which an attachment may be issued for a claim of this nature are the first three mentioned in Section 2959, to-wit: (1) that the defendant is a foreign corporation or a non-resident of the State; (2) that he is removing or about the leased premises before the time for the payment of the rent aforesaid, and that he verily believes unless an attachment issues there will not be left on such premises property liable to distress sufficient to satisfy the rent so to become payable. Given under my hand this the first day of October, 1911. Gabriel Shields, Justice of the Peace. FORM OF ATTACHMENT FOR RENT NOT DUE. Commonwealth of Virginia: To the Sheriff of Rockbridge county: Greeting: Whereas Henry Jones has this day made oath before me Gabriel Shields, a Justice of the Peace in and for the county of Rockbridge, in the State of Virginia, that William Brown is his tenant and is lia- ble to him for rent reserved upon contract for certain premises sit- uate in the county of Rockbridge aforesaid, in the sum of $300, which will become due and payable on December 31, 1911, no part of which has been paid, and that the said affiant verily believes that the said William Brown intends to remove his effects from the leased premises before the time for the payment of the rent aforesaid, and that unless an attachment issues there will not be left on such premises property liable to distress sufficient to satisfy such rent so to become payable. These are therefore in the name of the Commonwealth to com- mand you to attach such of the goods of the said William Brown, or his assignee or undertenant, as might be distrained for the said rent if it had become payable, and any other estate, real or per- sonal, of the said William Brown, or so much thereof as will be suf- ficient to satisfy to the said Henry Jones the rent aforesaid, and that you secure said goods and estate so attached in your hands, or so provide that the same may be liable to further proceedings thereon to be had at the next term of the circuit court of the county of Rockbridge, when and where you are to return how you have exe- cuted this writ. Given under my hand this the first day of October, 1911. Gabriel 'Shields, Justice of the Peace. 361 AFFIDAVIT 691 to remove himself out of the State, with intent to change his domicile, or (3) that he is removing, intends to remove, or has removed the specific property sued for, or his own estate out of this State. 31 The justice then issues an attachment based upon the complaint, and the attachment proceedings thereon are had before the justice without formal pleadings, and without neces- sity for an order of publication in a newspaper, and the justice tries and decides the case without a jury. If, however, the at- tachment be levied on real estate, it is the duty of the justice to remove the case, with all papers and proceedings thereon to any court to which an attachment issued by him for a claim exceed- ing twenty dollars might have been returnable. 32 361. Affidavit. An affidavit is a voluntary e.\~ parte written oath or affirma- tion made before some officer authorized to administer an oath. It is usually signed by the affiant, but it is said that in the ab- sence of positive statute, or some rule of court, the signature is not necessary. 33 In Virginia and West Virginia it is rare that a strict affidavit is used for any purpose. What is generally used is a certificate of some officer authorized to administer an oath (not signed by the affiant) that the affiant made oath before him to certain facts set forth in the certificate, and this has been re- garded as sufficient, even under the strict rule of construction applicable to attachment laws. Sufficiency. Probably more particularity is required in the form of the affidavit than in the form of any other paper con- nected with attachments. Affidavits are strictly construed, and the omission of any of the requirements of the statute is fatal to the attachment. There must be a substantial compliance with the statute, and if the affidavit is made out of the State it must be itself duly authenticated. The seal of a notary public out of the State does not alone verify and authenticate his act, except as regards certain foreign or interstate matters, and except in 31. See Code, 2959, quoted in 358, note 2, ante, for exact lan- guage. 32. Code, 2988, quoted in 359, note 22, ante. 33. 1 End. PI. & Pr. 315. 692 ATTACHMENTS 361 those cases where the domestic statute declares that it shall be self authenticating. 34 While strictness and certainty in an affi- davit for attachment is required, it is not necessary that compli- ance with the statute shall be literal. 35 If the language of the affidavit necessarily implies a fact it is sufficient. Hence an affi- davit "that the claim is just" and "that the defendant is con- verting," etc., is a sufficient compliance with a statute which re- quires an affidavit "that the claim is believed to be just" and "that to the best of affiant's belief defendant is converting," etc. 3 " An affidavit, however, which omits "at the least" from the clause "which (at the least) affiant believes," or the word "justly" from the clause "justly entitled to recover," or substitutes "ought" for "is entitled to," or "thinks" for "believes" the plain- tiff is entitled to or ought to recover, is bad. 37 It is not neces- sary that an attachment issued by a justice, or the affidavit upon which it is based, should describe the character of the debt of the plaintiff, whether due by a bond, note or account. The stat- ute does not require the writ to describe the claim with the pre- cision of the declaration. The amount due must be specified as a guide to the officer that he may attach so much of the debtor's estate as may be sufficient to satisfy the debt and costs. The evidence of the debt is to be exhibited to the court which passes upon the validity of the claim. 38 A paper purporting to be an affidavit, but which does not show that the affiant was sworn, nor the amount to which the plaintiff is entitled and the nature 34. Bohn v. Zeigler, 44 W. Va. 402, 29 S. E. 983; Corbin v. Bank, 87 Va. 661, 13 S. E. 98. Section 174 of the Code declares that an affidavit before a non-resident notary shall be deemed to be duly authenticated if it be subscribed by him with his official seal at- tached without being certified by any other officer. It also desig- nates the method in which affidavits taken by other persons shall be authenticated. 35. Jones v. Anderson, 7 Leigh at p. 311. 36. Clinch River Min. Co. v. Harrison, 91 Va. 122, 21 S. E. 660. 37. Altmeyer v. Caulfield, 37 W. Va. 847, 17 S. E. 409; Dulin v. McCaw, 39 W. Va. 721, 20 S. E. 681; Sommers v. Allen, 44 W. Va. 120, 28 S. E. 787; Rittenhouse v. Harman, 7 W. Va. 380. For other rulings on affidavits, see annotations Code W. Va. p. 650; 2 Bar. Law Pr. 933; Note 76 Am. St. Rep. 800; 11 Anno. Cas. 27. 38. McCluny v. Jackson, 6 Gratt. 96, 103. 361 AFFIDAVIT 693 of the plaintiff's claim, is not sufficient as a foundation for an attachment. 39 If the bill upon which an attachment issues con- tains all necessary averments, and is sworn to and filed before the attachment issues, and the affidavit adopts the bill, this ren- ders the affidavit sufficient. 40 Jurisdiction. It is said that "in most jurisdictions the stat- utes require that an affidavit shall be made before the writ may issue, and if the affidavit is not made, or if it is defective when made, the court will be without jurisdiction and the attachment consequently void." 41 It is generally conceded that the total absence of an affidavit will render the suit one without jurisdic- tion, but the same is not true of a defective affidavit. A defective affidavit is not void but voidable only, and liable to be quashed in a direct proceeding for that purpose, but it is not a total nul- lity and cannot be collaterally assailed. If an attachment has been issued upon a defective affidavit, and property sold there- under, the validity of the attachment proceedings cannot be questioned in a suit against the purchaser at an attachment sale to recover the property purchased. 42 Where a suit in equity is brought under a statute on a legal demand, and an attachment is sued out as ancillary thereto, the jurisdiction of the court of equity rests solely on the attachment. It is said that when the attachment is sued out, though on a defective affidavit, equity has jurisdiction, and that mere error in the proceeding, such as a defect in the affidavit, does not destroy the jurisdiction of the court, and that while the attachment might be abated and the suit in equity dismissed on account of defects in the affidavit if brought to the attention of the court in that suit, yet the proceeding is not a void proceeding, the court is not entirely without jurisdiction, and its judgment cannot be collaterally as- sailed; 43 but on this proposition the courts are not entirely in harmony. In Virginia the jurisdiction of attachments in equity 39. Cosner v. Smith, 36 W. Va. 788, 15 S. E. 977. 40. Sims v. Tyrer, 96 Va. 5, 26 S. E. 508. 41. 3 Am. & Eng. Encl. Law (2nd Ed.) 206. 42. Cooper v. Reynolds, 10 Wall. 308. 43. Miller v. White, 46 W. Va. at pp. 70, 71, 33 S. E. 332; Cooper v. Reynolds, supra. 694 ATTACHMENTS 361 on purely legal demands is not rested on the attachment, but on the affidavit, which is the basis of the attachment ; the court saying "courts acquire jurisdiction in attachments in equity alone by force of the affidavit." 44 The question, however, arose in a direct pro- ceeding to avoid the attachment, and it is not stated what would have been the effect if the attack has been collateral instead of direct. The jurisdiction of attachments generally depends on the regu- larity of the proceedings, 45 and this regularity must appear on the face of the proceedings, 46 but whenever the validity of an attach- ment is involved, or the jurisdiction of the court is questioned, the affidavit is part of the record, though not mentioned in the declara- tion or bill. 47 Conjunctive and Disjunctive Statements. If more than one ground of attachment is relied on, it is well settled that the grounds should be stated in the conjunctive and not in the disjunctive, as otherwise it would be impossible to tell which ground was relied upon to sustain the attachment. It is equally well settled, however, that two or more phases of the same fact may be stated in the disjunctive. Thus an affidavit which states that "affiant believes that some one or more of the following five grounds exist for an attachment" is too indefinite, and is bad, as it is impossible for the defendant to determine upon which of the grounds the plaintiff intends to rely. 48 But an affidavit which states as the ground for an attachment that the defendant has property or rights of action which he conceals, is good, notwithstanding the disjunctive "or" is used, as it is apparent that but one ground of attachment is alleged under the statute. 49 The difficulty lies, however, in the applica- tion of this rule to the facts of the particular case. For in- stance, it has been held that an affidavit which states that the defendant has disposed of or assigned his property, or a part thereof, or is about to do so, with intent to defraud his creditors,. 44. Taylor v. Sutherlin, 107 Va. 787, 797, 60 S. E. 132. 45. 'Jones r. Anderson, 7 Leigh 308, 313. 46. McAllister v. Guggenheimer, 91 Va. 317, 21 S. E. 475. 47. Miller v. White, 46 W. Va. 67, 71, 33 S. E. 332. 48. Roberts v. Burns, 48 W. Va. 92, 35 S. E. 922. 49. Sandheger v. Hosey, 26 W. Va. 221; 26 Anno. Cas. 27. 361 AFFIDAVIT 695 is bad ; while, on the other hand, it has been held that an affidavit which alleges that the debtor is converting, or is about to convert his property into money, or is otherwise about to dispose of his property with intent of placing it beyond reach of his creditors, is not objectionable, as it only states several phases of the same fact. 50 Who May Make Affidavit. It is provided by statute in Vir- ginia that the affidavit for an attachment may be made by the plaintiff, his agent or attorney. 51 Attorney, however, manifestly means attorney at law. Whether an affidavit (in fact made by an agent) must expressly show on its face that the affiant is the agent of the principal is a subject of much conflict of authority. 52 It has been laid down that "it is not generally necessary that it should declare that the affiant is the agent, or expressly aver that he makes it in his behalf," and, furthermore, it is held in some cases that the authority of the agent will be presumed in the ab- sence of evidence to the contrary. 53 The rule, however, is other- wise in Virginia, where it is held that the affiant must be de- scribed in the affidavit as agent, and that an affidavit made by a party who describes himself as bookkeeper, secretary and treas- irer, president, vice-president, director, and the like, is not suffi- :ient, as such terms do not ex in termini import agency. 64 Time of Making Affidavit. The affidavit need not be made be- fore the summons in a chancery suit issues, 55 but, if the court las jurisdiction of the cause upon other grounds than the attach- ment, may be made even after the bill has been filed, 56 and, indeed, may be made at any time before the abatement of the suit. 57 As the ground for an attachment should exist when the ttachment is sued out, the time between the making of the 50. Note 11 Anno. Cas. 27; 20 Anno. Cas. 576. 51. Code, 2959, 2961, 2962, 2964, 2988. 52. 3 Encl. PI. & Pr. 9; 4 Cyc. 473. 53. 3 Encl. PI. & Pr. 9, and notes. 54. Ante, 91, note 30; Clement v. Adams Bros. Payne Co., 113 Va. . 75 S. E. 294. 55. Moore v. Holt, 10 Gratt. 284. 56. O'Brien v. Stephens. 11 Gratt. 610 57. Pulliam v. Aler, 15 Gratt. 54. 696 ATTACHMENTS 361 affidavit and the issue of the attachment based thereon should not be unreasonable. While the two acts need not be simulta- neous, the attachment should follow the affidavit upon which it is based within a reasonable time. What is a reasonable time is to be judged by the circumstances of the case and the situa- tion of the parties. 68 Amendments. In some of the States there are statutes allow- ing amendments in specific cases, in others there are general statutes of amendments applicable to all cases, while in still others there is no statute of amendment applicable to attach- ments or affidavits therefor. There is no such statute in Virginia, and a number of other States. In the absence of any statute providing for amendments, it is generally declared that courts of general jurisdiction have inherent powers to allow amend- ments of mere formal or clerical defects, but when we come to examine the cases as to what constitutes formal or clerical de- fects, there is a great want of harmony among the decisions. 59 In Virginia, authority is very scarce, but it has been held that, on an appeal in a case founded on insufficient affidavit, the Court of Appeals can only abate the attachment and dismiss the proceeding, in the absence of application to amend the affi- davit in the trial court, and that it will not remand the case to the trial court for the purpose of allowing such amendment, 60 but there is no specific statute allowing amendments in the trial court. In West Virginia, whose statutes are very similar to those in Virginia, it has been held that an affidavit cannot be amended except as to formal or clerical defects, and hence that the omission from the affidavit of the word "justly" in stating the claim of the plaintiff cannot be cured by amendment; further- more, that an amendment stating additional facts to show the existence of 'the ground of attachment specified in the first affi- davit for the purpose of upholding that attachment must show 58. Kesler v. Lapham, 46 W. Va. 293, 295, 33 S. E. 289. 59. Note 31 L. R. A. 422 gives a collection of authorities on this subject. 60. Taylor v. Sutherlin-Meade Co., 107 Va. 787, 797, 60 S. E. 132; Clement v. Adams Bros. Payne Co., 113 Va. , 75 S. E. 294. 361 AFFIDAVIT ! 697 that such facts existed at the date of the first affidavit. 61 But while such facts must have existed at the time the first affidavit was made, the supplemental affidavit need not state ex- pressly that such additional facts came to affiant's knowledge after making the first affidavit. 62 An affidavit which fails to show that the affiant was sworn cannot be amended for the pur- pose of showing that fact, 63 but a mistake in the date of the affidavit is a mere clerical error, which may be corrected by amendment. 64 An order endorsed upon an attachment requiring the gar- nishee to appear and answer is process. It must be returnable to some legal return day. If it be not so returnable, but skips a term, and is returnable to the second term after its issue, it is not simply irregular, but void, and cannot be amended as to the return day. 65 Additional Affidavits or Attachments. There may be in the same suit or action more than one affidavit based on different grounds, and attachments sued out thereon. The lien of such other attachment, however, does not relate back to the first at- tachment, but takes effect from its levy or service, or as to real estate, from the suing out of the attachment. The statute pro- vides that an attachment may issue "at the time of or after the institution of any action at law." 66 Hence there is no reason why, pending an action, a new attachment may not be sued out at any time. 67 Indeed, in a proceeding against a defendant personally, and after the appearance of the defendant, if grounds of at- tachment exist affidavit may be made and attachments sued out and levied on his property. The proceeding may thus be both personal and in rem at the same time. 68 So, likewise, new and additional attachments may be sued out from time to time, 61. Sommers v. Allen, 44 W. Va. 120, 28 S. E. 787; Miller v. Zeig- ler, 44 W. Va. 484, 29 S. E. 981. 62. Miller v. Zeigler, 44 W. Va. 484, 29 S. E. 981. 63. Cosner v. Smith, 36 W. Va. 788, 15 S. E. 977. 64. Anderson v. Kanawha Coal Co., 12 W. Va. 526. 65. Coda v. Thompson, 39 W. Va. 67, 19 S. E. 548. 66. Code, 2959. 67. Miller r. White, 46 W. Va. 67, 33 S. E. 332. 68. O'Brien v. Stephens, 11 Gratt. 610. 698 ATTACHMENTS 362 issued upon the original affidavit. This is expressly provided for by statute in Virginia. 69 362. What may be attached. All estate, real or personal, of the defendant may be attached, whether the same be in the county or corporation in which the attachment issued, or in any other, including incorporeal heredit- aments, choses in action, shares of stock in a domestic corpora- tion, and damages for such torts as would on the death of the defendant survive to his personal representative. 70 Pecuniary legacies and distributive shares in decedent's estate may also be attached in equity, 71 but not at law. 72 Remainders, whether 69. Section 2966 of the Code is as follows: "Upon the application of the plaintiff, his agent or attorney, other attachments founded on the original affidavit may be issued from time to time by the clerk of the court in which the original attachment is pending, and the same may be directed, executed, and returned in like man- ner as an original attachment. The court shall adjudge the costs of such attachments as to it may seem right and just." 70. Section 2967 of the Code is as follows: "Every attachment (except where it is sued out specially against specified property) may be levied on any estate, real or personal, or when it is against a non-resident or an absconding debtor, any remainder, whether vested or contingent, of the defendant, or so much thereof as is sufficient to pay the amount for which it issues, and may be levied upon any estate of the defendant, whether the same be in the county or corporation in which the attachment issued, or in any other, either by the officer of the county or corporation wherein the attachment issued, or by the officer of the county or corporation where the estate is; and when levied on a contingent remainder, the said contingent remainder shall not be sold until it becomes vested, but the decree or judgment ascertaining the amount due the plaintiff may be docketed as other liens are docketed, and shall be a lien only on the property levied on. * * *" Clause (10), 5 of the Code, is as follows: "The word 'land' or -lands' and the words 'real estate' shall be construed to include lands, tenements, and hereditaments, and all rights thereto and in- terests therein, other than a chattel interest; and the words 'personal estate' shall include chattels real and such other estate as, upon the death of the owner intestate, would devolve upon his personal rep- resentative." 71. Vance v. McLaughlin, 8 Gratt. 289; Anderson v. Desoer, 6 Gratt. 363; Moores v. White, 3 Gratt. 139. 72. Whitehead v. Coleman, 31 Gratt. 784. 362 WHAT MAY BE ATTACHED 699 vested or contingent, are also subject to attachment under the Virginia statute. 73 It is probable that an attachment cannot be levied on a negotiable note which is not due. At all events, a purchaser for value of such note without notice of the attach- ment would have priority over an attachment previously levied. 74 Shares of stock in domestic corporations are deemed to be so far in the possession of the corporation which issued them that they may be subjected to attachment. 75 But shares of stock in a for- eign corporation cannot be reached by process of attachment, al- though the officers of the corporation are within the State and the business of the corporation is being carried on there. The situs of such stock for the purpose of attachment and execution is the domicile of the corporation and that only. 76 Subsequent purchasers for value without notice of tangible personal property take subject to a prior attachment and so of real estate if a Us pcndcns is recorded and indexed, but otherwise not. 77 As assignee for value and without notice of a chose in action, not negotiable, takes priority over an execution, because the statute expressly so provides, 78 but the rule is otherwise as to a prior attachment. An attachment duly levied on a non- negotiable chose in action takes priority over a subsequent pur- :haser thereof for value and without notice simply because the statute makes no exception and the lien dates from the levy. [f, however, the chose in action has been assigned before the ittachment has been levied, the assignee takes priority as the ittaching creditor can never get any greater interest than his lebtor had at the time the attachment was levied. 79 An attach- ing creditor cannot acquire any greater right to the attached 73. Code, 2967. 74. Howe r. Quid, 28 Gratt. 1. 75. C. & O. R. Co. r. Paine. 29 Gratt. 502; Shenandoah V. R. Co. ->. Griffith, 76 Va. 913; Lipscomb v. Condon, 56 W. Va. 416, 49 S. E. 392. 76. Smith v. Downey, 8 Ind. App. 179, 34 N. E. 823, 35 N. E. 568, Am. St. Rep. 467, and note. 77. Code, 3566; Vicars v. Sayler, 111 Va. 307, 68 S. E. 988. 78. Code, 3601; Evans, Trustee v. Greenhow, 15 Gratt. 153. 79. Anderson v. DeSoer, 6 Gratt. 363; B. & O. v. McCullough, 12 Gratt. 595. 700 ATTACHMENTS 363 property than the defendant had at the time of the attach- ment. 80 If the property be in such a situation that the defendant has lost his power over it or has not yet acquired such interest in or power over it as to permit him to dispose of it adversely to others, it cannot be attached for his debt. 81 363. What may not be attached. Some illustrations of what may not be attached were given in the last section. In addition thereto what is known as "the poor debtor's exemption," wages of a laboring man, etc., are exempt from levy of attachment or execution, and also, for most attachments, the homestead. These exemptions, however, would probably not be allowed where the ground of attachment is that the defendant is a non-resident, or is about to leave the State with intent to change his domicile. Property in the custody of the law, as property in the hands of a receiver, 82 or in the hands of an officer, or levied on under a former ft. fa. or attachment where bond has been given to have it forthcoming at a later time and place and before it is forfeited, and probably property taken from a prisoner are exempt from attachment. 83 But in Virginia the delivery to an officer of an attachment is deemed a levy thereof on money and effects of the defendant held under an attachment executed, or other legal process. 84 ' The authorities are not entirely in harmony as to the exemption of property taken from a prisoner. 85 Where personal chattels have been mort- gaged and left in the possession of the mortgagor, there is conflict as to whether they may be attached. 86 Prop- erty held by a public officer pursuant to public trust, as for instance a deposit by a foreign insurance company, cannot be at- 80. Neill v. Produce Co., 41 W. Va. 37, 23 S. E. 702; Seward &. Co. v. Miller, 106 Va. 309, 55 S. E. 681. 81. Neill v. Produce Co., supra. 82. Davis v. Bonney, 89 Va. 755, 17 S. E. 229. 83. 11 Am. & Eng. End. Law (2nd Ed.) 641; 4 Cyc. 558, 593. 84. Code, 2985. 85. Ex parte Hum, 92 Ala. 102, 9 So. 515, 25 Am. St. Rep. 23; Holker v. Henessey, 141 Mo. 527, 42 S. W. 1090, 39 L. R. A. 165. 86. 11 Am. & Eng. Encl. Law (2nd Ed.) 624, 5; Spence v. Repass, 94 Va. 716, 27 S. E. 583, 4 Va. Law Reg. 255; ante, 342. 363 WHAT MAY NOT BE ATTACHED 701 tached either before or after the company has discharged all of its liabilities to citizens of the state. 87 Money, credits and property are in the custody of the law when held by executors, administrators, guardians and like quasi officers in their repre- sentative and administrative capacity. Neither an administrator, an executor, nor a debtor of the decedent can be garnished for a debt due by the decedent, because it would disturb the proper administration of the estate. 88 Whether property carried or worn by the defendant which cannot be taken without a breach of the peace, or violating the debtor's personal security, is ex- empt from levy of an attachment is likewise the subject of conflict. 89 Whether or not the rolling stock of a railroad can be attached is the subject of great conflict of opinion. In some States it is held that it cannot be on the ground that it is essential to the exercise of the corporate franchise and a proper discharge of the duties which the company has assumed toward the public. In others it cannot be if the road is engaged in interstate commerce, because it would be an interference there- with. In still others no exception has been made. 90 In Virginia there are no decisions on the subject except that it has been held that empty coal cars which have been used exclusively for the interstate transportation of coal, and which are intended to be so used again, are not, while being returned from one point in this State to another, engaged in transporting articles of inter- state commerce, though en route to coal fields outside of the State, and that the transportation of such cars is controlled exclusively by the law of this State. 91 A comparatively recent holding of the Supreme Court of the United States will prob- ably tend to unify the decisions of the State courts, which seem to have been timid about interference with interstate commerce. It is held in the case referred to that cars and rolling stock of 87. Rollo r. Ins. Co., 23 Gratt. 509; Buck v. Guarantors Co., 97 Va. 719, 34 S. E. 958. 88. Brewer i: Hutton, 45 W. Va. 106, 30 S. E. 81. 89. 4 Cyc. 568, citing cases to the effect that it is not subject to levy; 2 Tuck. Com. 362, stating that it is subject to levy 90. Connery r. R. Co., 92 Minn. 20, 99 N. W. 365, 104 Am St. Rep. 659, and note; ante, 339, and cases cited. 91. X. & \V. R. Co. v. Com., 93 Va. 749, 24 S. E. 837. 702 ATTACHMENTS 364 railroad companies are not "put apart in a kind of civil sanctuary'' so as to be immune from attachment laws of the States, and, while standing idle on the tracks, though previously brought into the State loaded with interstate commerce, and simply awaiting re- turn, are subject to attachment. 92 Debts or liabilities to become due upon a contingency which may never happen (for instance, liability on a life insurance policy which may never accrue in consequence of failure to pay premiums) are not the subject of garnishment. Where the contract between parties is of such nature that it is uncertain or contingent whether anything will ever be due by virtue of it, it does not give rise to such a credit as may be attached, for that cannot properly be called a debt which is not certainly and at all events payable either at the present or some future period. To be the subject of attachment, the debt or liability must be due or be certain to become due at a future period. 93 364. How and by whom property is attached. Property is attached by making some sort of levy of the at- tachment thereon, but the methods of making the levy vary according to the circumstances of the case. Tangible Personal Property. The statute provides that it shall be sufficiently levied if sued out against specified property by serving the attachment on the defendant or other person having possession of such property; in every other case by serving the attachment on such persons as may be designated by the plaintiff as aforesaid, and where the defendant is in possession, by serv- ice of the attachment on him. 94 If, therefore, the attachment be 92. Davis v. Cleveland R. Co., 217 U. S. 157. 93. Boisseau v. Bass, 100 Va. 207, 211, 40 S. E. 647. 94. Code, 2967, as amended, is as follows: "* * The plaintiff, his agent or attorney may, by an endorsement on the attachment at the time it is issued, or in writing at any time before the return day thereof, designate any person as being indebted to, or having in his possession effects of, the defendant or one of the defendants; and in such case the officer issuing the attachment shall make as many copies thereof as there are persons designated, with an in- dorsement on each copy that the person so designated is required to appear at the term of the court to which the attachment is re- 364 HOW AND BY WHOM PROPERTY IS ATTACHED 703 sued out against specified property, it may be levied by simply serving the attachment on the defendant or other person having possession of the property. If not sued out against specified property, but for debt or damages, and is to be levied on tangible property, and any person has been designated as having such property in his possession, the attachment may be served by delivering a copy thereof to the defendant or other person in possession thereof. The designation of the person in possession may be made either at the time the attachment is issued, or in writing by the plaintiff at any time before the return day. If the property is not in the possession of any one, but simply in the constructive possession of the attachment debtor, it may be levied on as an execution would be levied, that is, by having the property in the view and power of the officer, announcing the levy and endorsing the levy on the attachment. 95 Whether the provisions of the statute for levying an attachment are cumulative merely and would still permit a common law levy, or are ex- clusive, has not been determined, but as the statute does not exclude the common law levy, but simply declares that the attach- ment shall be sufficiently levied by following the statutory re- turnable, if the same be returnable to a term, or the first term of the court next after the return day of the attachment, if the same be returnable to a rule day thereof, and disclose on oath in what sum he is indebted to the defendant, and what effects of the defendant he has in his hands. It shall be sufficiently levied, if sued out against specified property, by serving the attachment on the defendant, or other person having possession of such property; in every other case, by serving the at- tachment on such person as may be designated by the plaintiff as aforesaid; and, where the defendant is in possession, by service of the attachment on him; and as to real estate, by such estate being mentioned and described in axi endorsement on such attachment, made by the officer to whom it is delivered for service, to the fol- lowing effect: " 'Levied on the following real estate of the defendant A. B. (or A. B. and C. D.), to-wit: (Here describe the estate), this the day of . E. F., Sheriff (or other officer).' and by service of the attachment on the person, if any, in posses- sion of such estate. The attachment in every case may be served as a notice is required to be served by section thirty-two hundfed and seven." 95. Dorrier v. Masters, 83 Va. 459, 2 S. E. 927; Poling v. Flanagan, 41 W. Va. 191, 23 S. E. 685. 704 ATTACHMENTS 364 quirement, it would seem to indicate that the common law method may still be pursued. If it may be, and there is personal property in the hands of a third person which has not been "designated," levy thereon might be as at common law. It must be borne in mind, however, that in levying an attachment, the officer is not required to take possession thereof unless the plaintiff has given bond, but the bond is not at all essential to the validity of the levy. It is doubtful if the officer has authority to take possession unless such bond has been given. 96 Except where the levy is a common law levy on personal chattels, the property need not be in the view and power of the officer mak- ing the levy. Chases in Action. The statute provides that the plaintiff, his agent or attorney, may, by endorsement on an attachment when it is issued, or in writing at any time before the return day thereof, designate any person as being indebted to or having in his possession effects of the defendant, or one of the defendants, and in such case the officer issuing the attachment is required to make as many copies thereof as there are persons designated, with an endorsement on each copy that the person so designated is required to appear at the term of the court to which the attach- ment is returnable, and disclose on oath in what sum he is in- debted to the defendant and what effects of the defendant he has in his hands. 97 The order endorsed on the attachment requir- ing the garnishee to appear is process and must be returnable to the next term. If a term is skipped, it is void, and the process cannot in this respect be amended. 98 When the garnishee ap- pears he is to be examined on oath. If he discloses property or indebtedness which is liable to the attachment, the court may order him to pay the amount owing, or to deliver the effects to such person as it may appoint as receiver, or the garnishee may, with leave of the court, give bond with sufficient surety with condition to pay the amount owing by him, and have such effects forthcoming at such time and place as the court may 96. Kenefick v. Caulfield, 88 Va. 122, 13 S. E. 348. See also, Moore v. Holt, 10 Gratt. 284. 97. Code, 2967. 98. Coda v. Thompson, 39 W. Va. 67, 19 S. E. 548. 364 HOW AND BY WHOM PROPERTY IS ATTACHED 705 thereafter require, but the judgment debtor may claim the prop- erty as exempt to him, and if it is so determined the court will have it set apart." If the garnishee do not appear, the court may either compel him to appear, or hear proof of any debt owing by him or effects in his hands, and give judgment as if what was so proved had appeared on his examination. 1 If it is suggested by the plaintiff that the garnishee has not fully disclosed the debts owing by him or effects in his hands, the court without any formal pleadings is required to inquire into the matter, and proceed in respect to any debt or effects found in the same manner .as if it had been confessed by the garnishee. 2 99. Section 2976 of the Code is as follows: "When any garnishee shall appear, he shall be examined on oath. If it appear, on such examination, or by his answer to a bill in equity, that at the time of the service of the attachment he was indebted to the defendant against whom the claim is, or had in his possession or control any goods, chattels, money, securities, or other effects belonging to the said defendant, the court may order him to pay the amount so ow- ing by him, and to deliver such effects to such person as it may appoint as receiver; or such garnishee, with the leave of the court, may give bond, with sufficient surety, payable to such person, and in such penalty as the court shall prescribe, with condition to pay the amount owing by him, and have such effects forthcoming, at such time and place as the court may thereafter require, but the judgment debtor, if a householder or head of a family, may claim that the amount so found owing from the garnishee shall be ex- empt from the payment of the debt to the judgment creditor; and if it shall appear that the said judgment debtor has not set apart and held as exempt in other estate the amount of exemption to which he is entitled, then the court shall render a judgment against the garnishee only for the excess, if any, beyond the exemption to which the judgment debtor is entitled." 1. Section 2977 of the Code is as follows: "If any garnishee summoned as aforesaid, fail to appear in an attachment at law, the court may either compel him to appear, or hear proof of any debt owing by him, or of effects in his hands belonging to the defend- ant in such attachment, and make such orders in relation thereto as if what is so proved had appeared on his examination." 2. Section 2978 of the Code is as follows: "When it is suggested by the plaintiff in any attachment at law, that the garnishee has not fully disclosed the debts owing by him, or effects in his hands belonging to the defendant in such attachment, the court, without 45 706 ATTACHMENTS 364 The mere fact that an attachment is placed in the hands of an officer to be executed (unlike an execution) creates no lien. The lien is created by the levy or service of the copy, and hence before that time the debtor may assign a debt due to him, or his creditor may pay him, and each will be good. So, too, when the garnishee answers, he answers as to what effects he had in his hands belonging to the debtor, or in what sum he was in- debted to the attachment debtor "at the time of the service of the attachment," and the attachment fastens only on that, and not on a subsequent indebtedness, nor upon other property that may have come into the hands of the garnishee at any time sub- sequent to the time of service. Indebtedness arising after the time of the service of the attachment, or property coming into the hands of the garnishee after that time, is not liable to the lien of the attachment. In some jurisdictions it is held that municipal corporations are not liable to garnishment or attach- ment for debts due to third persons, and this is probably according to the weight of authority. 3 But it has been held in Virginia that a municipal corporation may be garnished or attached for a debt due to one of its creditors just as a natural person may be, 4 and provision is now made by statute for the garnishment of debts due by the State, counties, towns, etc. 5 Real Property, By statute in Virginia it is provided that real property may be levied on by being mentioned and described in an endorsement on the attachment signed by the officer making the levy, and by delivering a copy of the attachment to the per- son, if any, in possession. There must be both. The form of the levy is prescribed by statute. 6 It has been held that the any formal pleading, shall inquire as to such debts and effects, or, if either party demand it, shall cause a jury to be impaneled for that purpose, and proceed in respect to any such found by the court or the jury, in the same manner as if they had been confessed by the garnishee. If the judgment of the court or verdict of the jury be in favor of the garnishee, he shall have judgment for his costs against the plaintiff." 3. Leake v. Lacey, 95 Ga. 747, 22 S. E. 655, 51 Am. St. Rep. 112, and note. 4. Portsmouth Gas Co. v. Sanford, 97 Va. 124, 33 S. E. 516. 5. Code, 3652 (d), 3652 (e), 3652 (f). 6. Code, 2967. 364 HOW AND BY WHOM PROPERTY IS ATTACHED 707 description of the property must be given by the officer in his levy, and must be such as may be easily identified by looking alone to the levy without the aid of extrinsic evidence, 7 and that the return must show that the land was levied on as the land of the debtor defendant. 8 But when a map, plan, survey or deed is referred to in the levy for a description of the land, it is not to be regarded as extrinsic evidence, but part of the return itself, so when the return on an attachment describes the land by re- ferring to it as conveyed to the attachment debtor by a designated person by a deed recorded in a designated deed book at a certain page, this identifies the land with sufficient certainty, for the purposes of both sale and conveyance without the aid of extrinsic evidence, and is a substantial if not a literal compliance with the statute. !) When the attachment is against a non-resident or ab- sconding debtor "any remainder, whether vested or contingent, of the defendant, or so much thereof as is sufficient to pay the amount for which it issued," may be levied on, but a contingent remainder so levied on cannot be sold until it becomes vested. 10 Where the attachment against a non-resident is the sole basis of the equity jurisdiction, the levy of the attachment, as shown by the officer's return, on the non-resident defendant's property, is the foundation of the suit, and if the property attached be not the defendant's property, the court is without jurisdiction. 11 By Whom Service May Be Made. An attachment may be directed to the sheriff, sergeant, or constable of any county or corporation. 12 When directed to the officer of the county or corporation in which the attachment is sued out, it may be 7. Raub v. Otterback, 92 Va. 517, 23 S. E. 883. 8. Robertson v. Hoge, 83 Va. 124, 1 S. E. 667. 9. Richardson v. Hoskins Lumber Co., Ill Va. 755, 69 S. E. 935; Duty v. Sprinkle, 64 W. Va. 39, 60 S. E. 882. 10. Code, 2967. The fact that a debtor absconds is not given as one of the grounds of attachment in Virginia, and this is the only section in the chapter on attachments that mentions "absconding" debtors. The fact that he absconds, however, may furnish a basis for one of the other grounds of attachment mentioned in 2959. 11. Culbertson v. Stevens, 82 Va. 406, 4 S. E. 607; Robertson v. Hoge, 83 Va. 124, 1 S. E. 667. 12. Code, 2965. 708 ATTACHMENTS 365 served by him anywhere in the State, but when directed to the officer of any other county or corporation it can be served by him only within his bailiwick. For instance, if an attachment be sued out from the Circuit Court of Rockbridge County, and be directed to the sheriff of said county, he may serve it anywhere in the State, but if issued from the Circuit Court of Rockbridge County, and directed to the sheriff of Augusta County, the latter can serve it only in Augusta County. 13 The officer levying the attachment is required in Virginia to show in his return the date and manner of service, or execution thereof, on each person and parcel of property, and also to give a list and description of the property, if any, taken under the attachment. 14 The attach- ment may be issued or executed on Sunday, if oath be made that the defendant is actually removing his effects on that day. 15 365. Attachment bonds. An officer charged with the levying of an attachment is not required to take possession of the effects of the debtor, unless a bond is given with surety, approved by the justice or clerk issuing the attachment, in a penalty at least double the amount of the claim sworn to or sued for. Indeed, it is doubtful if he is authorized to take possession unless such bond is given. 16 This bond may be given by any one, 17 is payable to the common- wealth 'of Virginia, or to the person entitled to the benefit thereof, 18 and is with condition to pay all costs and damages which may be awarded against the plaintiff, or sustained by any person by reason of the suing out of the attachment. 19 The bond may be given by one partner on behalf of the firm, but should bind the obligor for failure of the firm to prosecute their attachment with success. 20 The phrase "any other person" 13. Code, 2965, 2967. 14. Code, 2969. 15. Code, 2970. 16. Code, 2968; Kenefick v. Caulfield, 88 Va. 122, 13 S E. 348; Cosner v. Smith, 36 W. Va. 788, 15 S. E. 977. 17. Code, 2990. 18. Code, 177, 181. 19. Code, 2968. 20. McCluny v. Jackson, 6 Gratt. 96. 365 ATTACHMENT BONDS 709 used in the statute 21 includes the defendant in the attachment, and the defendant may maintain an action not only to recover damages awarded against the plaintiff in the attachment, but also other damages sustained by him by reason of the attachment having been sued out without sufficient cause. 22 But if the at- tachment is sued out against the defendant's property generally, and not against specific property, and it is improperly levied by the officer on the property of a stranger, such stranger can maintain no action therefor on the attachment bond. The bond "covers no damages for taking property which the attachment does not command to be taken. Such damages are not sustained by reason of suing out the attachment ; but are sustained by rea- son of an unauthorized act of the officer. The undertaking of the obligors is, that the attachment is properly sued out, and the claim of the plaintiff well founded. They do not undertake that the officer will commit no trespass in its execution. They do not authorize him to levy it on any property which he may think proper, or the plaintiff may direct him to levy it on. A person may be willing to become security in an attachment bond, knowing the debt to be due, and that the debtor is a non-resident or absconding debtor, but very unwilling to become security that the officer will do no wrongful acts under color of the at- tachment. The bond was not intended to enlarge the attachment, but to run on all fours with it. The attachment may be against the defendant's estate, or against specific property. If it be against the defendant's estate, the bond applies only to that estate, and enures to the benefit of the defendant only. If it be against specific property, the bond applies to the owner of that property, whoever he may be, whether the defendant or any other person, and enures only to the benefit of such owner." 23 The adverse claimant of property seized under an attachment has ample remedies without giving him the benefit of an in- demnifying bond. Besides a summary remedy by interpleader, which is generally sufficient, he may resort for his indemnity to an action of trespass against the sheriff who made the levy, 21. Code, 2968. 22. Offterdinger v. Ford, 92 Va. 636, 24 S. E. 246. 23. Davis v. Com., 13 Gratt. 139, 145, 146. 710 ATTACHMENTS 365 and all persons who aided in making it, or directed it to be made ; or to an action on the official bond of the sheriff. 24 Specific remedy is also given such claimant in the attachment proceeding. 25 Where an attachment is rightfully sued out with good cause, but is afterwards quashed or abated for the failure of the officer to do his duty, no action lies on the attachment bond for the wrongful acts of the officer. 20 In West Virginia, the scope of the condition of the bond is enlarged by the further condition that the obligors are "to pay to any claimant of any property seized or sold, under or by virtue of said attachment, all dam- ages which he may recover in consequence of such seizure or sale, and also to warrant and defend to any purchaser of the property such estate or interest therein as is sold." 27 If the defendant against whom the claim is desires to retain property which has been levied on by an attachment, he may do so by giving bond with condition to have the property forth- coming at such time and place as the court may require, or he may give bond with condition to perform the. judgment or decree of the court, in which event the whole of the estate attached is to be released to him. 28 Even if the bond given by the defendant be with condition to perform the judgment of the court, the giving of such bond by the defendant is not a general appear- ance, and does not warrant a personal judgment against the 24. Davis v. Com., 13 Gratt. 139. 25. Code, 2984. 26. Offterdinger v. Ford, 92 Va. 636, 24 S. E. 246. 27. W. Va. Code, 3541. 28. Code, 2972, is as follows: "Any property levied on or seized as aforesaid, under any attachment, where the plaintiff has given bond, may be retained by or returned to the person in v/hose pos- session it was, on his giving bond, with condition to have the same forthcoming at such time and place as the court may require; or the defendant against whom the claim is, may, by giving bond with condition to perform the judgment or decree of the court, release from any attachment the whole of the estate attached. The bond, in either case, shall be taken by the officer serving the attachment, with surety, payable to the plaintiff, and in a penalty, in the latter case, at least double the amount or value for which the attachment issued, and in the former, either double the same or double the value of the property retained or returned, at the option of the person giving it." 365 ATTACHMENT BONDS 711 defendant. 29 The bond is required to be returned to the clerk of the court in which the suit is pending, or to which the attach- ment is returnable, and is subject to exceptions by the plaintiff for insufficiency of the surety or other good cause. If the ex- ception is sustained, the -officer is required to file a good bond, and if he fails to do so, he and his sureties on his official bond are made responsible. 30 Although the property or estate at- tached be not replevied as aforesaid, the interests and profits thereof pending the suit and before judgment or decree, may be paid to the defendant if the court deem it proper, and the court, or judge in vacation, may discharge the attachment on the defendant giving bond with surety, payable to the plaintiff, in a penalty double the value of such estate, with condition, if the judgment or decree be rendered for 'the plaintiff in said suit, to pay the said value, or so much thereof as may be necessary to satisfy the same. 31 The property levied on and not replevied is kept in the same manner as similar property under execution, but such as is expensive to keep or perishable may be sold as under an execution, except that the court may direct a sale on credit, when the attachment debt is not due, or the court or judge sees other reason therefor. 32 Although the claim of the plaintiff be established, and judg- ment or decree be rendered for him, and there be an order for the sale of any effects or real estate of the attachment debtor to pay the judgment or decree, it is provided by statute that if the defendant against whom the claim is, has not appeared or been served with a copy of the attachment sixty days before such judgment or decree, the plaintiff shall not have the benefit of the judgment establishing his demand and ordering the sale, un- less and until he shall have given bond with sufficient surety in such penalty as the court shall approve, with condition to perform such further order as may be made upon the appear- ance of said defendant and his making defence, and if the plain- tiff fails to give such bond in a reasonable time, the court is 29. Hilton v. Consumers' Can Co., 103 Va. 255, 48 S. E. 899. 30. Code, 2973. 31. Code, 2974. 32. Code, 2975. 712 ATTACHMENTS 366 directed to dispose of the estate attached, or the proceeds thereof, as to it shall seem just. 33 If a copy of the attachment has been served on the defendant sixty days before a decree for the sale of the land attached, a sale may be made without requiring the bond last above mentioned. 34 This bond seems to be additional to the bond given requiring the officer to take possession of the attached effects. The statute providing for this bond says nothing about the first bond, and the con- ditions of the two bonds are entirely different. 366. Lien of attachment. The lien of an attachment is created by the levy (and not by delivering the attachment to the officer to be executed), and the subsequent judgment or decree is simply the enforcement of a pre-existing valid lien. 35 It is provided by statute that the plain- tiff shall have a lien from the time of levying such attachment, or serving a copy thereof as aforesaid on personal property ; and on real estate, from the suing out of the same, provided the attachment is duly levied as required by law. 36 Real Estate. The lien of an attachment on real estate dates from the suing out of the attachment or summons, although the endorsement of the attachment on the writ is not made until after that time. In order to have this effect, however, as against purchasers (but not as against any one else), it is provided that the attachment shall not bind or affect a bona fide purchaser of real estate for valuable consideration without actual notice of the attachment, unless and until a memorandum of the attach- ment shall be recorded in the county or corporation in which the land is situated. 37 The language of the statute is that such 33. Code, 2983. 34. Anderson v. Johnson, 32 Gratt. 558. 35. Jackson v. Valley Tie Co., 108 Va. 714, 62 S. E. 964. 36. Code, 2971. 37. Code, 3566, is as follows: "No lis pendens, or attachment under chapter one hundred and forty-one, shall bind or affect a bona fide purchaser of real estate, for valuable consideration, with- out actual notice of such lis pendens or attachment, unless and until a memorandum setting forth the title of the cause, the general ob- ject thereof, the court in which it is pending, a description of the 366 LIEN OF ATTACHMENT 713 memorandum shall be left with the clerk of the court of the county or corporation in which the land is situate, who shall forthwith record the same in the deed book, and index it in the name of the person whose estate is intended to be affected thereby. Under this language it would seem, by analogy to deeds, that if the creditor had done all that could be required of him, and had left the memorandum with the clerk for record, and the same should be lost or destroyed before it was actually recorded and indexed, the creditor would be protected, 38 but it has been held in Virginia that the memorandum must be re- corded and indexed, and even if recorded it is of no avail unless properly indexed. 39 Personal Property. As ta personal property of all kinds, the lien of the attachment dates from the time of levying the attach- ment or serving a copy thereof. This lien overrides and takes priority over all subsequent alienations with or without notice, except probably a holder for value in due course of negotiable paper. An assignee for value and without notice, as has been seen, takes preference over an execution, and a payment by a debtor of an execution debtor is protected, if without notice of the existence of the execution, 40 but in neither case is this true of an attachment, nor is it necessary to make any record of the attachment in order to preserve this lien as to personal prop- erty. 41 The lien of a prior fi. fa., or an assignment before levy of an attachment, would be superior to the attachment. 42 But the service of an attachment inhibits thereafter the transfer of land, and the name of the person whose estate is intended to be affected thereby, shall be left with the clerk of the court of the county or corporation in which the land is situate, who shall forth- with record the said memorandum in the deed book, and index the same in the name of the person aforesaid." 38. Mercantile Co-Op. Bank v. Brown, 96 Va. 614, 32 S. E. 64. 39. Vicars v. Sayler, 111 Va. 307, 68 S. E. 988. See also, Cammack v. Soran, 30 Gratt. 292. 40. Ante, 352. 41. Ches. & O. R. Co. v. Payne, 29 Gratt. at p. 509; Shenandoah V. R. Co. v. Griffith, 76 Va. at pp. 922-3. 42. Anderson v. DeSoer, 6 Gratt. 363; Seward & Co. v. Miller, 106 Va. 309, 55 S. E. 681. 714 ATTACHMENTS 366 the debtor's effects to any other person. 43 The attachment, how- ever, only operates as a lien upon the debts and effects of the absent debtor in the hands of the home defendant at the time the attachment was served, and does not operate upon debts and effects which thereafter come into the hands of such de- fendant. 44 Priorities. As between attachments, the first served has pri- ority, 45 and the lien of a fi. fa. placed in the hands of the officer to be executed has priority over an attachment of subsequent date. 46 Where goods and chattels had been duly mortgaged in the State in which they were located, it was held that, as the deed was not recorded in this State, an attachment levied thereon, as the goods of the mortgagor, took priority over the deed. 47 This, however, was a decision by the "military court of appeals," whose decisions have never been recognized as decisions of the Court of Appeals of Virginia. Subsequently the same question came before the Court of Appeals of Virginia, and the holding was just the reverse, 48 and it was held that the goods having been duly mortgaged in a foreign State, and temporarily brought into the State of Virginia, the mortgage creditor would prevail, al- though the deed was not recorded. It was conceded that there were opposing decisions, but it was said that the holding was in accord with the weight of authority in the best considered cases. The decision in the last mentioned case led to the enact- ment by the legislature of a statute declaring that foreign mort- gages or incumbrances upon personal property should not be a valid incumbrance upon said property after it is removed into this State, as to purchasers for valuable consideration without notice and creditors, unless the mortgage or incumbrance was recorded according to the laws of this State, in any county or corporation in 43. Williamson v. Bowie, 6 Munf. 176. 44. Farmers' Bank v. Day, 6 Gratt. 360; Haffey v. Miller, 6 Gratt. 454. 45. Erskine v. Staley, 12 Leigh 406; Farmers' Bank v. Day, 6 Gratt. 360. 46. Puryear v. Taylor, 12 Gratt. 401. 47. Smith v. Smith, 19 Gratt. 545. 48. Craig v. Williams, 90 Va. 500, 18 S. E. 899. 367 WHEN ATTACHMENT TO ISSUE 715 which the said property is located in this State, thus overruling the last mentioned decision. 49 If, however, an assignment of a chose in action be made out of the State by deed of trust or otherwise, it will prevail over a subsequent attachment thereof in this State, although there was no record of the assignment. Assignments of choses in action are not required to be recorded, and the attaching creditor can get no greater interest than his debtor had. 50 The home defendant having property of the absent defendant in his possession, for the keeping of which the absent debtor is indebted to him, is entitled to have his claim first satis- fied out of the property as against the attaching creditor, 51 and so if the property attached is subject to a pledge, the lien of the pledge must be first satisfied. 52 An additional attachment sued out on new grounds does not relate back to the time of the levy of the original attachment, but dates from the time of its own levy, and the rights of other persons are to be ascertained and fixed with reference to the time of levying the additional at- tachment. 53 / The increase of personal property attached probably passes as an incident without any additional levy. 54 367. When attachment to issue. If no suit or action is pending, but the attachment is a wholly independent proceeding, we have seen that the attachment can issue in but two cases: (1) where a debtor intends to re- move, or is removing, or has removed his effects out of the 49. Code, 2468a. 50. Gregg f. Sloan, 76 Va. 497. See also, Kirkland v. Brune, 31 Gratt. 126. 51. Williamson r. Gayle. 7 Gratt. 152. 52. First Xat. Bank r. Harkness, 42 W. Va. 156, 24 S. E. 548. 53. Miller r. White, 46 W. Va. 67, 33 S. E. 332. Xo reference has been made to the case of Cirode r. Buchanan, 22 Gratt. 205, because it is believed to be out of harmony with the cases which precede and follow it, and it is not believed to have been correctly decided. It is only mentioned here to indicate that it has not been overlooked. 54. Cf. Gannaway r. Tate. 98 Va. 789, 37 S. E. 768. 716 ATTACHMENTS 367 State, and (2) against a tenant who intends to remove, or is removing, or has, within thirty days, removed his effects from the leased premises. In each of these cases the attachment may be sued out before the debt or rent is due. There is no other limi- tation on the right to issue the attachment except that it must be issued within a reasonable time after the affidavit therefor is made. 55 If, however, the attachment is sued out as an ancillary process, then the attachment must not be sued out too soon or too late. It is too soon if sued out before the action or suit is com- menced, and it is too late if sued out after the suit has been abated or ended. The statute declares that it may be sued out "at the time of or after trie institution of any action at law," 56 or if is- sued in equity "on a bill in equity filed for the purpose," 37 or thereafter. 58 Generally no suit or action is pending at the time the attachment is desired, and the practice is to institute a proper suit or action and to sue out the attachment at the same time that the summons is delivered to the officer. If the proceeding is* by a motion for a judgment for money under Code, section 3211, it is not deemed to be a pending ac- tion until the notice, duly executed, has been returned to the clerk's office, and hence until that time no attachment can is- sue. 59 Hence, if the only ground of attachment is the non-resi- dence of a sole defendant, or of all of the defendants, and he or they cannot be served with notice, and do not appear, the pro- ceeding cannot be begun by a motion under section 3211, as the notice never can be returned executed on the defendant. But the proceeding may be by motion under that section if process can be executed on one or more of the defendants. 60 There must be a pending suit or action, if the attachment is to be ancillary thereto. No attachment can issue in such case in a suit or action which has abated. The return of "no inhab- itant" would cause the abatement of the suit or action as to such 55. Kesler v. Lapham, 46 W. Va. 293, 33 S. E. 289. 56. Code, 2959. 57. Code, 2964. 58. Code, 2966. 59. See, ante, 97. 60. Breeden v. Peale, 106 Va. 39, 55 S. E. 2. 368 DEFENCES TO ATTACHMENTS 717 defendant, and if he is the sole defendant, of the entire action. Hence it is important to see that the garnishee-process issues before such a return is made. 61 Indeed, the better practice is to have the officer make the return of "not found" instead of the return of "no inhabitant" of the state. If ground for attachment exist, the affidavit may be made and the attachment sued out, and levied, even after the appearance of the debtor. .The action is still pending and there may be both a personal judgment and an order subjecting the attachment ef- fects. 62 368. Defences to attachments. Who May Make Defence. There is a difference between rtfaking defence to the attachment and defence to the action to which the attachment is ancillary. The mere fact that an action has an attachment as ancillary thereto does not at all affect the defences to the action. The action is still subject to the same defences as if there were no attachment. These defences have been hereinbefore discussed in connection with the separate ac- tions. We are here dealing only with defences to the attachment. It is provided by statute that either of the defendants to any such attachment, or any garnishee, or any party to a forthcoming bond given with condition to have the property forthcoming, or the officer who may be liable to the plaintiff if such bond be ad- judged bad, 63 or any person having a claim to, an interest in, or a lien on the property attached, 64 may make defence to such at- 61. Pulliam v. Aler, 15 Gratt. 54, 59. 62. O'Brien v. Stephens, 11 Gratt. 610. 63. Section 2980 of the Code is as follows: "Eithe'r of the de- fendants in any such attachment, or any garnishee, or any party to any forthcoming bond given as aforesaid, or the officer, who may be liable to the plaintiff by reason of such bond being adjudged bad, or any person authorized by section twenty-nine hundred and eighty-four, to file a petition, may make defence to such attach- ment, but the attachment shall not thereby be discharged, or the property levied on released." 64. Section 2984 of the Code is as follows: "Any person may file his petition, at any time before the property attached as the estate of a defendant is sold, or the proceeds of sale paid to the plaintiff under the decree or judgment, disputing the validity of the plain- 718 ATTACHMENTS 368 tachment, but the attachment shall not be thereby discharged, or the property levied on released. It had been held in an early case in Virginia that if the defendant were permitted to contest the case without giving security to perform the decree, or if the plaintiff waived the giving of the security, the effect was to re- lease the property from the attachment. 65 In order to obviate this difficulty, the statute provides that the parties designated may make defence to such attachment, but that the attachment shall not thereby be discharged or the property levied on re- leased, thus leaving the attachment and the levy thereon intact until the case is decided. The language of the statute, 60 allow- ing "any person" to file a petition disputing the validity of the plaintiff's attachment, is qualified by the subsequent language of that section so as to confine the right to a petitioner who has ti- tle to, a lien on, or any interest in the property, and the right is not extended to creditors generally. A general creditor who has no claim to, interest in or lien on the property attached has no right, merely because he is a creditor, to intervene and dispute the validity of the plaintiff's attachment. 67 What Defence May Be Made. It must be borne in mind that we are still discussing defences to the attachment, and not to the action. The statute in Virginia provides that the right to sue out the attachment may be contested, and that when the court is of opinion that it was issued on a false suggestion, or without suffi- cient cause, the attachment shall be abated. 68 It will be observed tiff's attachment thereon, or stating a claim thereto, or an interest in or lien on the same, under any other attachment or otherwise, and its nature, and upon . giving security for costs, the court, with- out any other pleading, shall inquire into such claim, or, if either party demand it, impanel a jury for that purpose, and if it be found that the petitioner has title to, or a lien on, or any interest in, such property, or its proceeds, the court shall make such order as may be necessary to protect his rights, the costs of which inquiry shall be paid by either party, at the discretion of the court." 65. Tiernan v. Schley, 2 Leigh 25. 66. Code, 2984. 67. Miller v. White, 46 W. Va. 67, 33 S. E. 332. 68. Section 2981 of the Code is as follows: "The right to sue any such attachment may be contested; and when the court is of opinion that it was issued on false suggestions, or without suffi- DEFENCES TO ATTACHMENTS 719 that any defence may be made which shows that the attachment was issued on false suggestion (that the ground assigned was sufficient, but not true), or without sufficient cause (the ground assigned was not sufficient, although true). The attachment debtor cannot defend on the ground that the goods attached do not belong to him, but to a third person. This is not a good ground of defence on his part, and the rights of third persons are otherwise amply protected. 69 On a motion to abate (quash) the attachment, the burden of proof is on the plaintiff in the attachment, and if the ground of the motion to abate be that the attachment was sued out upon a false suggestion, the issue is not what the plaintiff believed or had probable cause to believe, but the actual existence of the facts warranting the attachment. "This remedy" (attachment) "is justified, not by the belief of the affiant, however honestly entertained upon reasonable grounds, that the fact sworn to in the affidavit exist, but by the existence of that fact." 70 One or more of the grounds of attachment given by the statute must actually exist, and if the court or jury are satisfied that they do not exist, then the attachment was issued on a false suggestion, and must be abated, no matter what the belief of the plaintiff was, or how reasonable the belief may have been. For example, if the ground of attachment be that the defendant is about to remove his effects out of the state, and it turns out upon the proof that there was no such intention, then the attachment must be abated, although the plaintiff may have had reasonable grounds cient cause, judgment shall be entered that it shall be abated. If the attachment be returnable to a circuit or corporation court, the judge thereof may, in vacation, either before or at any time after it has been returned, on the motion of any one or more of the persons mentioned in the preceding section, upon reasonable no- tice of the motion to the attaching creditor, hear testimony and quash the attachment, if of the opinion that it is invalid on itb face, or was issued on false suggestions, or without sufficient cause. When the attachment is properly sued out, and the case is heard upon its merits, if the court be of opinion that the claim is not established, final judgment shall be given for the defendant. In either case he shall recover his costs, and there shall be an order for the restoration of the attached effects to him." 69. Note. 123 Am. St. Rep. 1041. 70. Sublett r. Wood, 76 Va. 318; note, 123 Am. St. Rep. 1032. 720 ATTACHMENTS 368 for believing that the defendant was about to remove his effects from the State. After the attachment has been abated for the reasons just stated, if the defendant in the attachment should sue the plaintiff for malicious prosecution of his attachment be- cause issued on a false suggestion, the plaintiff in the attachment (the now defendant) may make defence on the ground that, al- though there was not actual cause for suing out the attachment, yet that he had probable cause for believing the ground of at- tachment assigned to be true, and if he sustains this defence by proof, it will defeat the action for malicious prosecution. This distinction between actual cause and probable cause must be borne in mind. Unless the cause for suing out the attachment actually existed, the attachment will be defeated, but if the plain- tiff in the attachment had probable cause for believing that there was actual cause for suing out the attachment, this will defeat the action for malicious prosecution. Thus, in the instance last given, although the defendant in the attachment did not intend to remove his effects out of the State, yet if the plaintiff in the attachment had probable cause for believing that he intended to remove them, this is a sufficient answer to the action for ma- licious prosecution. 71 If the sole ground of jurisdiction of the action or suit to which the attachment is ancillary is the right to sue out the attachment, and there has been no appearance to the merits, then the validity of the attachment is jurisdictional, and in this instance the regularity of the attachment must appear on the face of the proceedings, and the defence of irregularity may be raised anywhere, at any time, in any way, and will even be noticed by the court ex officio, or may be raised in the appel- late court for the first time. Thus, if the only ground of juris- diction is the non-residence of the defendant, and he has not appeared, nor been served with process, and the attachment is made returnable to rules, when the statute requires that it should be returnable to a term of the court, then no valid at- tachment has been issued, and the court issuing it is without jurisdiction, and hence the objection may be raised in the ap- pellate court for the first time, or the court may of its own motion 71. 1 Va. Law Reg. 232; Claflin v. Steenbock, 18 Gratt. 842, 853; Sublett v. Wood, 76 Va. 318; Spengler v. Davy, 15 Gratt. 381; Burkhart v. Jennings, 2 W. Va. 242. 368 DEFENCES TO ATTACHMENTS 721 dismiss the proceeding. 72 So, likewise, if an attachment is is- sued as ancillary to an action at law, but the attachment was sued out before the action was instituted, the attachment is in- valid, for the statute does not authorize such an ancillary attach- ment, except "at the time of or after the institution of any action at law." Here the attachment has been issued without authority of statute, and the objection may be raised for the first time in the appellate court. In this case it is immaterial that the defendants had appeared to the action. The statute simply does not authorize an attachment to issue until the action has been instituted. 73 If the writ-tax on an attachment is not paid within thirty days from the time the attachment is actually returned the attachment and the proceedings thereon are to be taken as dismissed. 731 When Defence May Be Made. It is provided by statute that a motion to quash an attachment may be made either before or at any time after the attachment has been returned. The motion may be made (where the attachment is returnable to the circuit or corporation court) either before the court, or the judge thereof in vacation. This motion is made upon reasonable notice to the attaching creditor, and the court or judge may hear testi- mony and quash the attachment if of opinion that it is invalid on its face, or was issued on false suggestion, or without suffi- cient cause. The statute does not say expressly that the court may hear the motion, but this is necessarily implied. 74 It seems to be well settled that the notice of this motion should specify the grounds upon which it is based. It is not sufficient to state that it is based on irregularities without specifying the irregularities complained of. 75 How Defence Is Made. In a few States it is held that if the objection to the attachment, or the affidavit on which it is founded, is for matter de hors the record, it can be raised only by a plea in abatement, but the great weight of authority is that 72. McAllister v. Guggenheimer, 91 Va. 317, 21 S. E. 475. 73. Furst Bros. v. Banks, 101 Va. 208, 43 S. E. 360. 73a. Acts 1912, p. 498, amending Code, 2965. 74. Code, 2981. 75. Note, 123 Am. St. Rep. 1056. 46 722 ATTACHMENTS 368 for matters de hors the record objection can be made by a mo- tion to quash, supported by proper proof. It is said that the difference in the two defences consists mainly in the mode of establishing the defects. ."In one instance it is by an inspection of the record, in the other it is by a production of the evidence, but this dissimilarity in the mode of proof can make no difference in the nature of the thing proved." 76 In Virginia it would seem that practically all valid objections to an attachment may be made on a motion to quash. If the affidavit, upon which the at- tachment is based is defective or untrue, the remedy is by a motion to quash. 77 But if the attachment is merely ancillary to an action or suit, the merits of the action cannot be inquired into on a motion to quash the attachment. 78 A defendant to an attachment suit who has not been summoned, and has not voluntarily appeared, nor waived summons, may appear specially for the purpose of moving to quash an attach- ment or to dismiss an action, and such special appearance does not give the court jurisdiction to proceed to judgment in the action, nor does it waive the defects. 79 If the only ground of jurisdiction is the attachment of the effects of a nonresident, and the attachment is abated, the action founded thereon should be dismissed on a motion for that purpose, and the special ap- pearance for the purpose of moving to dismiss on this ground is not an appearance to the action. 80 A variance between the claim stated in the affidavit and the demand set.up in the declaration is fatal to the attachment, and upon a motion to quash the attachment for such variance the declaration may be resorted to for the purpose of establishing the variance. A plea in abatement is not necessary, but if such variance is pleaded in abatement, and the plea be accompanied 76. Note, 123 Am. St. Rep. 1043, 44; Johnson v. Stockham, 89 Md. 368, 43 Atl. 943. 77. Anderson v. Johnson, 32 Gratt. 558; Hilton v. Consumers' Can Co., 103 Va. 255, 48 S. E. 899. 78. Note, 123 Am. St. Rep. 1058; 3 End. PI. & Pr. 79. 79. Wynn v. Wyatt, 11 Leigh 584; Pulliam v. Aler, 15 Gratt. 54, 62; Hilton v. Consumers' Can Co., supra; Petty v. Frick, 86 Va. 501, 10 S. E. 886. 80. Hilton v. Consumers Can Co., supra; Miller v. Zeigler, 44 W. Va. 484, 29 S. E. 981. 368 DEFENCES TO ATTACHMENTS 723 by an oral motion to quash, it will be treated as a motion to quash. 81 The variance, however, must be material. A slight, or unsubstantial variance is not sufficient. 82 Although only one member of a partnership be a nonresident, his interest in the social assets may be attached, and if an at- tachment in equity be sued out against a partnership and levied on the interest of the nonresident partner in the social assets, all the partners should be before the court by notice, actual or constructive, before any decree is made in relation to the partner- ship property, but where some of the parties have been served it is error to abate the attachment and dismiss the suit simply be- cause an order of publication had not been taken against the non- resident. What the court should do is to require the plaintiff to mature his suit within a reasonable time as to the absent partner, and if he fails to do so, then to abate the attachment and dismiss the suit. 83 An order of attachment not signed by the clerk is not void, but voidable only, and may be amended by adding his signature. If the signature be added before the motion to quash is made, the order is good against such motion. The court has inherent power without statutory authority to allow mere clerical errors and omissions of its officers to be corrected and amended. 84 When an attachment bond purports to be signed by the plaintiff by an attorney in fact, the court will not sustain a motion to quash the bond for this supposed defect. If the attorney in fact had no authority to sign the plaintiff's name, this defect can be taken advantage of only by a plea in abate- ment, if it can be taken advantage of at all. 85 An order overrul- ing a motion to quash an attachment is interlocutory merely, and does not preclude the renewal of the motion at a later time. 86 Defence to the Merits. As already pointed out, a defence to the merits of the action to which the attachment is ancillary will not usually be allowed on a motion to quash. While the language 81. Simmons v. Simmons, 56 W. Va. 65, 48 S. E. 833. 82. Duty v. Sprinkle, 64 W. Va. 39, 60 S. E. 882. 83. Brown v. Gorsuch, 50 W. Va. 5.14, 40 S. E. 376. 84. Miller v. Zeigler, 44 W. Va. 484, 29 S. E. 981. 85. Tingle v. Brison, 14 W. Va. 295. 86. Simmons v. Simmons, 56 W. Va. 65, 48 S. E. 833. 724 ATTACHMENTS 368 of Code, 2981, appears to be comprehensive "the right to sue out any such attachment may be contested" yet the subsequent language of that section seems to limit the grounds of contest to whether or not the attachment is "invalid on its face, or was issued on false suggestions, or without sufficient cause." Under any attachment proceeding it is necessary for the plaintiff to establish his claim, whether there is any appearance by the de- fendant or not, before he can take judgment against the debtor, or have the effects sold. 87 A subsequent attaching creditor may contest the validity of the plaintiff's debt in a prior attachment and show that the debt does not exist, or has been paid. 88 The prime object in levying the attachment is to obtain pendente lite a lien, or, in other words, to put the property in the custody of the law till by the judgment of the proper tribunal the plaintiff's claim 'is established, when the lien becomes, effective as of the date of the levy, but must be enforced, not by virtue of the writ of attachment, but by the judgment of the court ordering a sale of the property which the attachment has simply held in wait- ing. 89 If the attachment be issued in a pending suit and is merely ancillary to the suit the defendant may make any defence which would defeat the plaintiff's claim, just as he might do in any other action or suit. He may also make defence to the at- tachment, and although the attachment be abated or quashed, if the plaintiff establishes his demand and the defendant has been served with process, or has appeared, the plaintiff is entitled to a personal judgment or decree for the amount of his claim. In equity garnishees and other parties besides the attachment debtor are generally made parties defendant to the suit and set up by answer all the defences they are entitled to make. If the person seeking to make defence be already a party to the pro- ceedings, he may defend by demurrer, plea in abatement, plea to the merits, or other appropriate pleading. If he seeks to defend simply the attachment and not the action, he may, after being admitted to the attachment proceeding, also move to quash the 87. Withers v. Fuller, 30 Gratt. 547. 88. M'Cluny v. Jackson, 6 Gratt. 96, 104-'5. 89. Dorrier v. Masters, 83 Va. 459, 473, 2 S. E. 927. See also, Trim- ble v. Covington G. Co., 112 Va. 826, 72 S. E. 724. 368 DEFENCES TO ATTACHMENTS 725 attachment. Usually persons who wish to intervene in a suit desire to do so in order to defend and defeat the attachment, and not to appear to the merits of the plaintiff's claim. In such case, if such a person is not already a party to the attachment suit, and has a right to defend the attachment, or to assert a claim to, an interest in, or a lien upon the attached effects, he may file a petition in the attachment suit setting up his claim and the nature thereof at any time before the attached property is sold or the proceeds paid over; and upon giving security for costs he is admitted a party and the court, without any other pleading shall inquire into his claim, or, if either party demand it, impanel a jury for that purpose, and if it be found that he is entitled to a lien on or an interest in the property or its pro- ceeds, the court will make such order as will be necessary to pro- tect his rights. 90 Formerly the statute was mandatory that the matter put in issue by this petition should be tried by a jury, and it was held to be error for the court to undertake to decide the issue, 91 but under the present statute 92 the court is directed to make the inquiry unless one of the parties demands a jury. In an intervention proceeding under this statute, if two or more attachments be levied on the property of the same debtor by different creditors, the subsequent attaching creditor may move to quash the earlier attachment for defects in the attachment, the writ or its service, and if the earlier attachment is quashed, the later thereby becomes entitled to priority of lien on the property. As the subsequent creditor is allowed to question the validity of the proceedings on the prior attachment, so also the first attaching creditor has the correlative right of denying the validity of, or otherwise contesting the intervenor's attachment, or claim. 93 Judgment for the Plaintiff. When the plaintiff's claim is es- tablished, judgment or decree should be rendered for him, and an order of sale made, and the proceeds of the sale be directed to be applied to the satisfaction of the judgment or decree, but 90. Code, 2984. 91. Anderson v. Johnson, 32 Gratt. 558. 92. Code, 2984. 93. Miller v. White, 46 W. Va. 67, 33 S. E. 332. 726 ATTACHMENTS 368 no real estate can be sold until all other property and money subject to the attachment have been exhausted, and then only so much thereof as is necessary to satisfy the judgment or decree. 94 Formerly, when an attachment at law was levied on real prop- erty, serious difficulties existed as to how real estate should be sold and the deed made to the purchaser, but the statute now provides that "Upon a sale of real estate, under an attachment at law, the court shall have the same powers and jurisdiction, and the like proceedings thereon may be had, as if it were a sale of real estate under an attachment in equity." 95 If the de- fendant has not appeared or been served with a copy of the at- tachment sixty days before the judgment or decree, the plaintiff is not given the benefit of the order of sale unless he gives bond with approved security in such penalty as the court shall ap- prove with condition to perform such future order as may be made upon the appearance of the defendant and his making defence, and if he fails to give the bond within a reasonable time, the court is to dispose of the estate attached, or the pro- ceeds thereof as to it shall seem just. 96 It has been herein- 94. Section 2982 of the Code is as follows: "If the claim of the plaintiff be established, judgment or decree shall be rendered for him, and the court shall dispose of the specific property mentioned in sections twenty-nine hundred and sixty and twenty-nine hundred and sixty-four, as may be right, and order the sale of any other effects or real estate, which shall not have been previously released or sold under this chapter, and direct the proceeds of sale, and whatever else is subject to the attachment, including what is em- braced by such forthcoming bond, to be applied in satisfaction of the judgment or decree. But no real estate shall be sold until all other property and money subject to the attachment have been exhausted, and then only so much thereof as is necessary to pay the judgment or decree. Upon a sale of real estate, under an attachment at law, the court shall have the same powers and jurisdiction, and the like proceedings thereon may be had, as if it were a sale of real estate under an attachment in equity." 95. Code, 2982. 96. Section 2983 of the Code is as follows: "If the defendant against whom the claim is, has not appeared or been served with a copy of the attachment sixty days before such judgment or de- cree, the plaintiff shall not have the benefit of the preceding section, unless and until he shall have given bond, with sufficient surety, 368 DEFENCES TO ATTACHMENTS 727 before pointed out that this is an additional bond to the bond required at the institution of the action for the seizure of the property. 97 The service of the attachment sixty days before the judgment or decree referred to in the section last mentioned ( 2983) need not be a service within the state, but a service outside the state before judgment will not bar the rehearing accorded the non-resident defendant by 2986. 98 Of course, no such bond is required when the defendant has appeared or been served with the attachment as above mentioned. 99 There may be a personal judgment or decree against him and also an order for the sale of the attached effects to pay the judgment or decree. 1 In an attachment of real estate there is no decree for renting the land to pay the debt. 2 Order of Publication. When an attachment other than for rent not due, or against a defendant about to remove his effects out of the State, is returned executed, if the defendant has not been served with a copy of the attachment or of the process in the suit wherein the attachment issued, an order of publication must be made against him. 3 In a proceeding by attachment, the mere seizure of the attached effects does not confer jurisdic- tion upon the court to dispose of such effects to the prejudice of the owner. An opportunity must be afforded the owner to appear and be heard, and to this end the notice by publication prescribed by the statute is indispensable, and even where a fund is garnished in the hands of a third person, jurisdiction cannot be acquired to sequestrate the fund attached simply by service of process on the garnishee only. There must be some sort of notice to the non-resident defendant. Notice of some kind is in such penalty as the court shall approve, with condition to per- form such future order as may be made upon the appearance of the said defendant, and his making defence. If the plaintiff fail to give such bond, in a reasonable time, the court shall dispose of the es- tate attached or the proceeds thereof, as to it shall seem just." 97. Ante, 365. 98. Anderson v. Johnson, 32 Gratt. 558, 568, 571. Post, 371. 99. Anderson v. Johnson, 32 Gratt. 558. 1. O'Brien r. Stephens, 11 Gratt. 610. 2. Curry v. Hale, 15 W. Va. 867. 3. Code, 2979. 728 ATTACHMENTS 369 indispensable to the validity of the judgment of condemnation or sequestration. 4 39. Remedies for wrongful attachment. 1. We have already seen in discussing attachment bonds that if the plaintiff desires the officer to take possession of the prop- erty of the debtor, he is required to give bond with "condition to pay all costs and damages which may be awarded against him, or sustained by any person by reason of his suing out the at- tachment." 5 If an attachment against the defendant's estate generally has been wrongfully sued out and has been quashed, the defendant in the attachment, or any person injured by reason of suing it out (but not the adverse claimant of property levied on, as he is not injured by suing out the attachment), is entitled to maintain an action on the bond. 6 2. If property be distrained for any rent not due, or attached for any rent not accruing, or taken under any attachment sued out without good cause, the owner of such property may, in an action against the party suing out the writ of distress or attach- ment, recover damages for the wrongful seizure, and also, if the property be sold, for the sale thereof. 7 It is said by the Revisors of 1849 8 that this section was designed to meet both the case where no rent is due or accruing, and the case where the distress or attachment is for more than is due or accruing. In the absence of any charge of fraud, malice, oppression, or other special aggravation, the measure of the plaintiff's damages under this statute is compensation for the injury suffered. 9 3. If the attachment is void ab initio, or an officer levies a valid attachment against the property of A. on the property of B., then the officer and the plaintiff in the attachment also, if he 4. Dorr v. Rohr, 82 Va. 359; Capehart v. Cunningham, 12 W. Va. 750; Raymond v. Camden, 22 W. Va. 180; Earle v. McVeigh, 91 U. S. 503; Windsor v. McVeigh, 93 U. S. at p. 279. Ante, 192. 5. Ante, 365; Code, 2968. 6. Ante, 365; Davis v. Com., 13 Gratt. 139, 143, 145, 151. 7. Code, 2898. 8. Report of Revisors, p. 735, and note. 9. Fishburne v. Engledove, 91 Va. 548, 22 S. E. 354. 370 HOLDING DEFENDANT TO BAIL 729 directs it, is liable for the damages sustained in the common law actions of trespass or trespass on the case. The officer and the sureties on his official bond would be likewise liable in an action on that bond for the damages sustained. 10 4. If the attachment was sued out maliciously and without probable cause and the proceeding is ended in a manner not un- favorable to the attachment debtor, then he may bring an action of trespass on the case for malicious prosecution of the attach- ment. We have seen that in the attachment proceeding it is not sufficient for the creditor to show that he had probable cause to believe that grounds for attachment existed, but the facts sworn to must actually exist, so that however good cause the plaintiff may have had for suing out his attachment, the attachment will fall if the ground does not actually exist. If the facts sworn to did not actually exist, then there was not actual or real cause for the attachment, but in the present proceeding for malicious prose- cution, if the attachment creditor had probable cause for believ- ing that ground for attachment existed, the action for malicious prosecution will be defeated; and the burden is on the plaintiff in the action for malicious prosecution to show that the defendant did not have probable cause for suing out the attachment. In other words, probable cause for believing in the existence of the ground for the attachment will defeat the action for malicious prosecution, but will not sustain the attachment. In order to sustain the attachment, there must have existed actual cause. 11 370. Holding defendant to bail. If, in any action or suit, the plaintiff, his agent or attorney, shall make affidavit before the court in which it is pending, or the judge thereof in vacation, or a justice, stating that the plain- tiff has cause of action or suit against the defendant, the amount and justice of his claim, and that there is probable cause for be- lieving that the defendant is about to quit the State unless he be forthwith apprehended, it shall be lawful for such court, judge 10. Davis r. Com., 13 Gratt. 142; Sangster v. Com., 17 Gratt. 124. 11. Spengler v. Davy, 15 Gratt. 381; Claflin v. Steenbock, 18 Gratt. 842; Ogg v. Murdock, 25 W. Va. 145; 1 Va. Law Reg. 232. See ante, 368, p. 717. 730 ATTACHMENTS 370 or justice to direct that such defendant shall be held to bail tor such sum as the court, judge or justice may think fit, and there- upon the'plaintiff may sue out of the clerk's office in such action or suit a writ of capias ad respondendum against the defendant. 12 It will be observed that this capias can be issued only in a pend- ing action or suit, therefore the action or suit must be first insti- tuted. The plaintiff when he makes this affidavit must believe that the facts sworn to therein are true, and he must have been justified in his belief from the facts then known to him. 13 Upon this capias the officer arrests the defendant and confines him in jail, unless he gives bond and security with condition that if judgment or decree shall be rendered against him, upon which a writ of fieri facias may issue and interrogatories be filed with a commissioner of the court wherein such judgment or decree is rendered, he will, at such time as the commissioner shall issue a summons to answer such interrogatories, be in the county or corporation in which such commissioner may reside, and will, within the time prescribed in such summons, file proper answers upon oath to such interrogatories, and make such conveyance and delivery of his property as is required by law, or else that he will perform and satisfy the judgment of decree of the court 14 This bond which is to be given by the defendant may be taken by the officer making the arrest, or by the court from which the capias issued, or the judge thereof in vacation, or by the clerk of such court, but not by the justice. 15 Before the plaintiff can sue out such a capias, however, he or some other person for him is Ac- quired to file in the clerk's office bond with surety approved by the clerk in a penalty equal to the sum in which the defendant is directed to be held to bail, payable to the defendant, with condi- tion to pay all costs and damages which may be awarded against the plaintiff, or sustained by the defendant by reason of his ar- rest under such capias. 1 While the defendant is in custody, the 12. Code, 2991. 13. Forbes v. Hagman, 75 Va. 168; Spengler v. Davy, 15 Gratt. 381. 14. Code, 2992. 15. Code, 2993. 16. Code, 2997. 371 APPEAL AND ERROR 731 plaintiff, without having a judgment against him, may file in- terrogatories to him in like manner as might be done if judg- ment had been obtained, and a fieri facias thereon had been de- livered to an officer. The court wherein the case is pending, or the judge thereof in vacation, may, after reasonable notice to the plaintiff or his attorney, discharge the defendant from custody unless interrogatories be filed within such time as the said court or judge may deem reasonable, or, though interrogatories be filed, may discharge him when proper answers thereto are filed and proper conveyance and delivery made. 17 This statute ap- plies to a defendant in custody of his bail as well as to a defend- ant in jail. 18 The conveyance required of the defendant is to be made to the officer making the arrest, or, if for any reason it can- not be made to him, then to such officer as the court or judge may direct. The interrogatories, answers, and report of the com- missioner are to be returned to the court in which the case is pending, and filed with the papers in such case, and the court may make such order as it may deem right as to the sale and proper application of the estate conveyed and delivered. 19 371. Appeal and error. A non-resident defendant who has not appeared nor been served with process is given a limited time within which to ap- ply to the court to set aside any order made to his prejudice and to rehear the case de novo? and he cannot appeal until after 17. Code, 2995. 18. Levy v. Arnsthall, 10 Gratt. 641. 19. Code, 2996. 20. Section 2986 of the Code is as follows: "If a defendant, against whom, on publication, judgment or decree is rendered under any such attachment, or his personal representative, shall return to or appear openly in this State, he may, within one year after a copy of such judgment or decree shall be served on him at the instance of the plaintiff, or within five years from the date of the decree or judgment, if he be not so served, petition to have the proceedings reheard. On giving security for costs, he shall be admitted to make defence against such judgment or decree, as if he had appeared in the case before the same was rendered, except that the title of any bona fide purchaser to any property, real or personal, sold under such attachment, shall not be brought in question or impeached. But this 732 ATTACHMENTS 371 such application has been made and decided. 21 But it is pro- vided by the statute that this right to a rehearing shall not apply to any case "in which the petitioner or his decedent was served with a copy of the attachment, or with process in the suit wherein it issued, more than sixty days before the date of the judgment or decree, or to any case in which he appeared and made defence." This provision of the statute with reference to serving the at- tachment or process sixty days before the date of the judgment or decree, however, refers only to such a service in the proceed- ings in the State, and not to a service out of the State. Hence, if a copy of the attachment or process is sent outside of the State and served on a non-resident defendant, such service does not debar the defendant from making the application for a rehearing provided by the statute. Such service has no greater effect than an order of publication duly published and posted. 22 Where the right to an attachment is the only ground of juris- diction, it is a proceeding in rem, and the regularity of the pro- ceeding is jurisdictional and must appear on the face of the record, that is, the trial court has no jurisdiction of the subject mat- ter, if the proceeding be irregular, and objection on that account may be made for the first time in the appellate court. 23 Juris- diction of the subject matter of litigation is always fixed by the legislature, and can neither be changed by the agreement of par- ties, nor conferred by a failure to object on that account. Such objections may always be made for the first time in the appel- late court, and will even be noticed by the court ex officio. Hence when an attachment at law is sought to be sued out as ancillary to an action at law, the trial court has no jurisdiction of the attachment at all unless there is a pending action, and the objection that no such action was pending at the time the attach- ment was sued out may be made for the first time in the appel- section shall not apply to any case in which the petitioner, or his de- cedent, was served with a copy of the attachment, or with process in the suit wherein it issued, more than sixty days before the date of the judgment or decree, or to any case in which he appeared and made defence." 21. Barbee v. Pannell, 6 Gratt. 442. 22. Anderson v. Johnson, 32 Gratt. 558. 23. Jones v. Anderson, 7 Leigh 308. 371 APPEAL AND ERROR 733 late court. 24 If there be judgment by default in such case against a non-resident who has not appeared or been served with proc- ess, any irregularity in the proceedings may be raised in the ap- pellate court for the first time by another defendant in the case, or the court may, of its own motion, dismiss the proceeding as it is one that is harsh towards the debtor and his creditors, and the proceeding must show on its face that the requirements of the statute have been substantially complied with. 25 But if there has been an appearance to the merits by the attachment debtor, irregularities in the affidavit or other proceedings not noticed in the trial court will be deemed to have been waived. 26 24. Furst v. Banks, 101 Va. 208, 43 S. E. 360. 25. McAllister v. Guggenheimer, 91 Va. 317, 21 S. E. 475. 26. Sims v. Tyrer, 96 Va. 5, 26 S. E. 508. CHAPTER XLIV. WRITS of ERROR. 372. Difference between writs of error and appeals. Appeals. Writs of error. Supersedeas. 373. Errors to be corrected in trial court. 374. Jurisdiction of the Court of Appeals of Virginia. Original jurisdiction. Appellate jurisdiction. (1) Matters not merely pecuniary. (2) Matters pecuniary. 375. Amount in controversy. Virginia doctrine. West Virginia doctrine. United States doctrine. General doctrine. Change in jurisdictional amount. Aggregate of several claims. 376. Cross-error by defendant in error. 377. Collateral effect. 378. Release of part of recovery. 379. Reality of controversy. 380. Who may apply for a writ of error. 381. Time within which writ must be applied for. 382. Application for writ of error. The record. The petition. Notice to counsel. 383. Bond of plaintiff in error. 384. Rule of decision. 385. Judgment of appellate court. Demurrer. Demurrer to the evidence. Case heard' by trial judge without a jury. Jury trial in lower court. Divided court. 386. Change in law. 387. How decision certified and enforced. 388. Finality of decision. 389. Rehearing. 390. Objections not made in trial court. 391. Putting a party upon terms. 372 DIFFERENCE BETWEEN WRITS OF ERROR AND APPEALS 735 392. Appeals of right. 393. Refusal or dismissal of writ. 394. Conclusion. 372. Difference between writs of error and appeals. Appeals. For practical purposes, though perhaps not tech- nically accurate, we may say that, under existing rules of prac- tice, an appeal lies from a lower to a higher court, and is a con- tinuation of the same case upon the same evidence before the higher tribunal, and the case is simply heard de novo before the higher tribunal. It is a rehearing before the higher court, with no presumptions against the appellant, except in case of doubt, where the decision of the lower tribunal will be affirmed. With this exception, the decision of the lower court has no effect. An appeal lies in a suit in chancery. The party taking the appeal is called the appellant. The defendant to the appeal is called the appellee. Writs of Error. A writ of error lies in a common law action or criminal case, and is in the nature of a new suit. It is awarded by a superior to an inferior court of record, and operates to transfer the record of the case (but nothing else) to the superior court, where the judgment of the inferior court is reviewed. Upon such review the appellate court either affirms or reverses the judgment of the lower court, and if it reverses, enters such judgment as the inferior court ought to have entered. 1 On a writ of error, generally, only questions of law are reviewed. In the Federal courts, and in many of the state courts, the find- ings of the trial courts upon questions of fact are conclusive. 2 In Virginia and many other states questions of fact may be reviewed, but the verdict of a jury, or the judgment of the trial court on a question of fact, will not be reversed unless plainly contrary to the evidence, or without evidence. The party who obtains a writ of error is called the plaintiff in error; the oppos- ing party the defendant in error. Superscdeas. A supersedeas, as used in Virginia, is altogether an ancillary process, addressed to the officer charged with the 1. Code, 3485. 2. Van Stone v. Stillwell, 142 U. S. 128; 2 Encl. PI. & Pr. 396. (rJc &> 4faffa* * '- ''<^ Li ^ e ^' ( . 736 WRITS OF ERROR 372 / execution of the judgment of the trial court, directing him to supersede (suspend, stop) the execution of the judgment of the court below, and also directing him to summon the defendant in error to the appellate court, there to have a rehearing of the whole matter. It is simply an adjunct of an appeal or writ of error to stop the execution of the decree or judgment of the court below, pending the hearing in the appellate court. It is not a substitute for a writ of error as has been stated. 3 There may be an appeal or writ of error with or without a supersedeas, but with us we have no such independent proceeding as a superse- deas. In practice, the supersedeas is never issued alone, but always as an ancillary process. 4 3. Williams v. Bruffy, 102 U. S. 248. 4. Form of Writ of Error and Supersedeas in Actual Use: The Commonwealth of Virginia, To the Sheriff of the County of Henrico, Greeting: We command you, that from all further proceedings on a judgment pronounced by the Circuit Court of the City of Richmond on the first day of January, 1905, in a suit in which John Doe was Plaintiff, and John Brown was Defendant you altogether supersede, which judgment before the judges of our Supreme Court of Appeals, in the City of Richmond, for cause of error in the same to be corrected, on the petition of the said defendant we have caused to come. We also command you, that you give notice to the said plaintiff that he be be- fore the judges of our said' Supreme Court of Appeals, at the City aforesaid, on the first Monday in May next, then and there to have a rehearing of the whole matter in the judgment aforesaid contained. And have then there this writ. WITNESS H. STEWART JONES, Clerk of our said Supreme Court of Appeals, at Richmond, this 10th day of February, 1905, and in the 129th year of the Commonwealth. MEMO. The above writ of supersed'eas is not to be effectual, until the petitioner, or some one for him shall enter into bond, with suffi- cient security in the Clerk's Office of the said Circuit Court, in the penalty of one thousand dollars, conditioned as the law directs, and a certificate of the execution thereof, together with the name or names of the surety or sureties, shall be endorsed hereon by the Clerk of the said court. Teste: Court Clerk. A Copy-Teste: Court Clerk. 373 ERRORS TO BE CORRECTED IN TRIAL COURT 737 The course of appeal in Virginia is from the circuit and cor- poration, or city courts, to the Court of Appeals. Circuit and cor- poration courts are courts of co-ordinate jurisdiction under the constitution, and in no case can there be an appeal from one to the other. An act of the Legislature conferring such right of appeal would be unconstitutional. 5 373. Errors to be corrected in trial court. A judgment on confession is equal to a release of errors, and from it no appeal lies. 6 The statute of jeofails cures most of the defects, imperfections or omissions in pleadings which could not have been regarded on demurrer, or which might have been taken advantage of on demurrer but were not. 7 Clerical errors and errors of fact may generally be corrected by the trial court, or if in a circuit court, by the judge thereof in vacation, on mo- tion after reasonable notice. 8 Upon a judgment by default the court rendering such judg- ment, or the judge thereof in vacation, may on motion reverse such judgment for any error for which an appellate court might reverse it, and give such judgment or decree as ought to have been given. And even when the judgment is not by default, but the defendant has appeared, if there be any mistake, miscalcula- tion or misrecital of any name, sum, quantity or time, and the same is right in any part of the record or proceedings, or when there is a verdict or any other writing whereby such judgment may be safely amended, or if a verdict is for more damages than are mentioned in the declaration, such court, or the judge thereof in vacation, may amend such judgment, according to the truth and justice of the case, or the party obtaining the judgment may, in the same court at any future term, by an entry of record, or in vacation by a writing signed by him, attested by the clerk and filed among the papers of the case, release a part of the amount 5. Virginia Constitution (1902), 98; Watson v. Blackstone, 98 Va. 618, 38 S. E. 939. 6. Code, 3448. 7. Code, 3449. 8. Code, 3447. 47 738 WRITS OF ERROR 374 of his judgment, and such release shall have the effect of an amendment and make the judgment operate only for what is not released. "Every motion under this section shall be after rea- sonable written notice to the opposite party, his agent or attorney in fact or at law, and shall be within three years from the date of the judgment." 9 This section does not apply to errors of judgment where there has been an appearance. These are final after the adjournment of the term at which the judgment is entered, and not subject to be reopened by the trial court. 10 If the error be clerical, and there be a writing in the record by which it may be safely corrected, the court may enter, in a proper case, nunc pro tune orders in order to show the regularity and validity of its proceedings. 11 For errors of the class which may be corrected in the trial court, no writ of error lies from the ap- pellate court until a motion has been made and overruled in whole or in part, as above mentioned, in the trial court. 12 But "when an appellate court hears a case wherein an appeal, writ of error or superseded has been allowed, if it appears that, either before or since the same was allowed, the judgment or decree has been so amended, the appellate court shall affirm the judgment or de- cree, unless there be other error ; and if it appear that the amend- ment ought to be, and has not been made, the appellate court shall make such amendment, and affirm in like manner the judg- ment or decree, unless there be other error." 13 It has been sug- gested that the court of appeals cannot correct clerical errors in its own decrees when the application is made after the expiration of the period for rehearing. 14 374. Jurisdiction of the Court of Appeals of Virginia. Original Jurisdiction. The jurisdiction of the Court of Ap- 9. Code, 3451. 10. Shipman v. Fletcher, 91 Va. 473, 22 S. E. 458. 11. Powers v. Carter Coal Co., 100 Va. 455, 41 S. E. 867. 12. Code, 3452; Smith v. Powell, 98 Va., at page 437, 36 S. E. 522. 13. Code, 3452; Code W. Va. 4037; Farmers' Nat'l Bank v. How- ard (W. Va., Oct. 8, 1912), 76 S. E. 122. 14. 7 Va. Law Reg. 532, 576. 374 JURISDICTION OF THE COURT OF APPEALS OF VIRGINIA 739 peals of Virginia is prescribed by the constitution and the stat- utes passed in pursuance thereof. 15 15. Section 88 of the Constitution (1902) is as follows: "The Supreme Court of Appeals shall consist of five judges, any three of whom may hold a court. It shall have original jurisdiction in cases of habeas corpus, mandamus, and prohibition; but in all other cases, in which it shall have jurisdiction, it shall have appellate jurisdiction only. "Subject to such reasonable rules, as may be prescribed by law, as to the course of appeal, the limitation as to time, the security re- quired, if any, the granting or refusing of appeals, and the procedure therein, it shall, by virtue of this Constitution, have appellate juris- diction in all cases involving the constitutionality of a law as being repugnant to the Constitution of this State or of the United States, or involving the life or liberty of any person; and it shall also have appellate jurisdiction in such other cases, within the limits herein- after denned, as may be prescribed' by law; but no appeal shall be al- lowed to the Commonwealth in any case involving the life or liberty of a person, except that an appeal by the Commonwealth may be al- lowed by law in any case involving the violation of a law relating to the state revenue. No bond shall be required of any accused person as a condition of appeal, but a supersedeas bond may be required where the only punishment imposed in the court below is a fine. "The court shall not have jurisdiction in civil cases where the mat- ter in controversy, exclusive of costs and of interest accrued since the judgment in the court below, is less in value or amount than three hundred dollars, except in controversies concerning the title to, or boundaries of land, the condemnation of property, the probate of a will, the appointment or qualification of a personal representative, guardian, committee, or curator, or concerning a mill, roadway, ferry, or landing, or the right of the State, county, or municipal corporation, to levy tolls or taxes, or involving the construction of any statute, ordinance or county proceeding imposing taxes; and, except in cases of habeas corpus, mandamus, and prohibition, the constitutionality of a law, or some other matter not merely pecuniary. After the year nineteen hundred and ten the General Assembly may change the ju- risdiction of the court in matters merely pecuniary. The assent of at least three of the judges shall be required for the court to deter- mine that any law is, or is not, repugnant to the constitution of this State or of the United States;' and if, in a case involving the consti- tutionality of any such law, not more than two of the judges sitting agree in opinion on the constitutional question involved, and the case cannot be determined, without passing on such question, no decision shall be rendered therein, but the case shall be reheard by a full court; and in no case where the jurisdiction of the court depends solely upon 740 WRITS OF ERROR 374 It will be observed upon reading the constitution and statutes quoted in the margin that the jurisdiction of the Court of Ap- peals is for the most part appellate, but that it has original juris- the fact that the constitutionality of a law is involved, shall the court decide the case upon its merits, unless the contention of the appellant upon the constitutional question be sustained. Whenever the requi- site majority of the judges sitting are unable to agree upon a deci- sion, the case shall be reheard by a full bench, and any vacancy caused by any one or more of the judges being unable, unwilling, or disqualified to sit, shall be temporarily filled in a manner to be pre- scribed by law." For a succinct statement of the differences between the Constitu- tions of 1869 and 1902, see Mr. Pollard's note to 3455 of Code of 1904. Sections 3454 and 3455 of the Code are as follows: Sec. 3454: "Any person who thinks himself aggrieved by any judg- ment, decree, or order in a controversy concerning the title to or boundaries of land, the condemnation of property, the probate of a will, the appointment or qualification of a personal representative, guard- ian, committee, or curator, or concerning a mill, roadway, ferry, wharf, or landing, or the right of the State, county, or municipal corporation to levy tolls or taxes, or involving the construction of any statute, or- dinance, or county proceeding imposing taxes, or by any final order, judgment, or finding of the State corporation commission, irrespec- tive of the amount involved, except the action of the said commission in ascertaining the value of any property or franchise of a railroad or canal company; for the purpose of taxation and assessing taxes thereon, or any person who is a party to any case in chancery wherein there is a decree or ord'er dissolving an injunction, or re- quiring money to be paid, or the possession or title of property to be changed, or adjudicating the principles of a cause, or any person thinking himself aggrieved by the order of a judge or court refusing a writ of quo warranto, or by the final judgment on said writ, or by a final judgment, decree, or order in any civil case, may present a pe- tition, if the case be in chancery, for an appeal from the decree or order; and if not in chancery, for a writ of error or supersedeas to the judgment or order, except as provided in section thirty-four hundred and fifty-five; provided, however, that the Commonwealth may take an appeal from the action of the State corporation commission in all cases, irrespective of the amount involved." Sec. 3455: "No petition shall be presented for an appeal from, or writ of error or supersedeas to, any final judgment, decree, or order, whether the Commonwealth be a party or not, which shall have been rendered more than one year before the petition is presented, except as provided by section thirty-four of an act relating to the State cor- poration commission, approved April fifteenth, nineteen hundred and 374 JURISDICTION OF THE) COURT OF APPEALS OF VIRGINIA 741 diction in cases of mandamus, and prohibition (except where the collection of public revenue is affected) 16 and of the writ of habeas corpus. It has no original jurisdiction in cases of quo ivdrranto. 17 In matters of original jurisdiction the amount in controversy is wholly immaterial. 18 The provision of the constitution of 1869 that the Court of Appeals shall have appellate jurisdiction only, except in cases of habeas corpus, mandamus and prohibition, did not ex proprio vig- ore confer jurisdiction on it. The exception simply invested the court with the capacity to receive original jurisdiction in that class of cases in event the Legislature should see fit to confer it, and did not of itself confer the jurisdiction. 19 The language of the present constitution is: "It shall have original jurisdiction in cases of habeas corpus, mandamus and prohibition," which seems to be mandatory and plainly self -executing. 20 Applications to the court for the exercise of its original juris- diction in issuing writs of mandamus in cases which might have been readily presented to inferior courts became so frequent as to necessitate some regulation which would prevent the disturb- ance of the regular calling of the docket. This led to the adop- tion of the rule of court set forth in the margin. 21 three; nor to any judgment of a circuit or corporation court, which is rendered on an appeal from a judgment of a justice, except in cases where it is otherwise expressly provided; nor to a judgment, decree, or order of any court when the controversy is for a matter less in value or amount than three hundred dollars, exclusive of costs, unless there be drawn in question a freehold or franchise or the title or bounds of land, or the action of the State corporation commission or some matter not merely pecuniary; provided, however, that if the final decree from which an appeal is asked is a decree refusing a bill of review to a decree rendered more than six months prior thereto, no appeal from or supersedeas to such decree so refusing a bill of re- view shall be allowed unless the petition be presented within six months from the date of such decree." 16. Code, 3286. 17. \Yatkins v. Venable, 99 Va. 440, 39 S. E. 147. 18. Price v. Smith, 93 Va. 14, 24 S. E. 474. 19. Prison Association v. Ashby, 93 Va. 667, 25 S. E. 893. 20. Constitution of Virginia, 88. 21. "Applications addressed to this court for the issue of writs other than the writ of habeas corpus, by virtue of its original juris- 742 WRITS OF ERROR 374 Appellate Jurisdiction. The appellate jurisdiction of the court may be, (1) in matters not pecuniary, or, (2) in matters pe- cuniary. ( 1 ) Matters Not Merely Pecuniary. Where the matter is not merely pecuniary the amount in controversy is wholly immate- rial. Matters not merely pecuniary embrace controversies con- cerning the title to or boundaries of land, the condemnation of property, the probate of a will, the appointment or qualification of a personal representative, guardian, committee or curator, controversies concerning a mill, roadway, ferry, wharf or land- ing, the right of the state, county, or municipal corporation to levy tolls or taxes, controversies involving the construction of any statute, ordinance or county proceeding imposing taxes, any final order, judgment or finding of the State Corporation Commission, irrespective of the amount involved (with a single exception not necessary to be here mentioned), controversies involving the constitutionality of a law, the refusal of a court or judge to grant a writ of quo warranto, and final judgments on said writ. 22 No appeal, however, lies directly to the Court of Appeals from a judgment of a justice of the peace for less than $10.00, al- though the judgment involves the constitutionality of a law. The machinery provided for the Court of Appeals in exercising its appellate jurisdiction is applicable exclusively to appeals from decisions of courts of record, which can furnish transcripts of the records to be reviewed. Provision is made for appeals from justices to circuit and corporation courts and thence to the Court of Appeals in cases involving the constitutionality of a law. 23 Although 88 of the constitution gives the right of appeal to diction, will be placed upon the general docket as they mature, and be heard when reached, upon the regular call thereof; subject, how- ever, to be advanced for good cause shown in accordance with rule six. "The records shall be printed under the supervision of the clerk, as in other cases, and must be submitted upon printed briefs, unless the court shall otherwise direct." Rule XIX, 111 Va. p. X. 22. Code, 3454, 3455. 23. South. Ry. Co. v. Hill, 106 Va. 501, 56 S. E. 278. I 374 JURISDICTION OF THE) COURT OF APPEALS OF VIRGINIA 743 the Court of Appeals in controversies concerning "the condem- nation of property," it is to be observed that the power of eminent domain is a legislative power to be exercised by the legislature as it pleases, subject only to the constitutional provi- sions that private property shall not be taken for public uses without the consent of the owner, except upon making just com- pensation therefor, nor shall the owner be deprived of his prop- erty without due process of law. But due process of law in this connection only requires that the power shall be exercised in sub- ordination to established principles. The ascertainment of dam- ages, however, is a judicial question, -and hence it is entirely com- petent for the legislature to refuse an appeal to the Court of Appeals on the question of the right to condemn property, and restrict the appeal entirely to the question of the damages al- lowed. This is not in contravention of 88 of the constitution. 24 If jurisdiction is invoked on the ground that a freehold, or franchise, or the title or boundaries of land, or any other matter not merely pecuniary is drawn in question, these jurisdictional matters must be directly the subject of controversy, and not merely incidentally and collaterally involved. 25 The jurisdiction of the court must affirmatively appear from the record, and the burden is on the plaintiff in error to show the existence of jurisdiction, but it does so appear when the court can see that the judgment of the lower court necessarily involved the constitutionality of some statute or ordinance, or drew in question some right under the State or Federal constitution. Any proceeding which necessa- rily puts their validity in issue, whether it be by demurrer, plea, instruction or otherwise, is sufficient to give the court jurisdic- tion of the case. 26 But the question of the constitutionality of a statute must in some way be called in question and decided in the trial court. Error committed in the construction and inter- pretation of a statute will not, of itself, confer jurisdiction upon the Court of Appeals. The constitutionality of a statute as dis- tinguished from its interpretation is the source of appellate ju- 24. Wilburn r. Raines, 111 Va. 334, 68 S. E. 993. 25. Cook v. Daugherty, 99 Va. 590, 39 S. E. 223. 26. Adkins z>. Richmond, 98 Va. 91, 34 S. E. 967. 744 WRITS OF ERROR 374 risdiction. 27 In the case of unlawful entry and detainer the Court of Appeals has jurisdiction regardless of the value of the land, as the case concerns the title to land within the meaning of the constitution. 28 It is immaterial that possession only of land is the subject of controversy. 29 If the validity of a deed of trust securing the payment of less than $300.00 is assailed, a writ of error lies, as it is a controversy concerning the title to land, 30 though if it is sought to subject land, no matter of what value, to the payment of a judgment for less than $300.00 no appeal lies, as the judgment is the matter in controversy, and is for less than $300.00. 31 The right to sub- ject lands to a tax or to a judgment is not a controversy concern- ing the title to land. 32 The right, however, of a state to impose a tax is a franchise, and the amount is wholly immaterial. 33 Man- damus and prohibition are also cases not pecuniary in which a writ of error lies from the Court of Appeals to an inferior court. 34 No writ of error lies in any case at law until after final judg- ment has been rendered in the trial court. 35 An exception, how- ever, exists in West Virginia, where it is declared by statute that, in any civil case where there is an order granting a new trial or re-hearing, an appeal may be taken from the order with- out waiting for the new trial or re-hearing to be had. 36 (2) Matters Pecuniary. Where the matter is merely pecun- iary, the amount in controversy must not be less than three hundred dollars, exclusive of costs. Interest may be calculated 27. Hulvey v. Roberts, 106 Va. 189, 55 S. E. 585. 28. Pannill v. Coles, 81 Va. 380; Rathbon v. Ranch, 5 W. Va. 79. 29. Gorman v. Steed, 1 W. Va. 1. 30. Sellers v. Reed, 88 Va. 377, 13 S. E. 754. 31. Cash v. Humphreys, 98 Va. 477, 36 S. E. 517. 32. Florance v. Morien, 98 Va. 26, 34 S. E. 890; Cash v. Hum- phreys, supra. 33. Staunton v. Stout, 86 Va. 32, 10 S. E. 5. 34. Price v. Smith, 93 Va. 14, 24 S. E. 474. 35. Code, 3454; Smiley v. Provident Trust Co., 106 Va. 787, 56 S. E. 738; Lockridge v. Lockridge, 1 Va. Dec. 61; Damron v. Fer- guson, 32 W. Va. 33, 9 S. E. 39. 36. Code, W. Va., 4038, cl. 9; Gwynn v. Schwartz, 32 W. Va. 487. 375 AMOUNT IN CONTROVERSY 745 as a part of the amount in controversy up to the date of the judgment of the trial court, but not later? 1 So, also, where it is clear that if the plaintiff , is entitled to recover at all he is entitled to recover interest on the amount claimed from the time his demand was asserted, and the whole claim has been rejected, such interest, up to the date of rejection, is to be taken into ac- count in ascertaining the jurisdiction of the appellate court. 38 375. Amount in controversy. Virginia Doctrine. The provision of the Virginia constitu- tion (1902) allowing an appeal or writ of error in certain cases involving not less than three hundred dollars, is not self-execut- ing, and until the Legislature saw fit to confer it, the Court of Appeals could not exercise such jurisdiction. 39 Nothing, perhaps, in connection with appeals and writs of error has given rise to so much controversy as the meaning of the term "amount in controversy." It is said to be of the same import as the term "matter in dispute," found in the judiciary act regulating the appellate jurisdiction of the Supreme Court, and that the construction of the two phrases has been the same. Both terms have been held to mean the subject of litigation, the matter for which the suit is brought, and upon which issue is joined, and in relation to which jurors are called and examined. 40 Courts, however, have not agreed upon the proper meaning of the term, and the decisions, even of the same courts, have not always been harmonious. The Court of Appeals of Virginia has said, in a number of cases, that, where the plaintiff appeals, the amount claimed by him in his declaration in the court below is the matter in controversy as to him, although the judgment be for less, or for the defendant ; but where the defendant -appeals, the amount in controversy as to him is the judgment at its date. 41 37. Gage v. Crockett, 27 Gratt. 735. 38. Herring v. Ches. & W. R. Co., 101 Va. 778, 45 S. E. 32. See, also, Sanger v. Ches. & O. R. Co., 102 Va. 86, 45 S. E. 750. 39. Flanary v. Kane, 102 Va. 547, 46 S. E. 312, 681. 40. Harman v. City of Lynchburg, 33 Gratt. 37; Lee v. Watson, 1 Wall. 337. 41. Gage v. Crockett, 27 Gratt. 735; Campbell v. Smith, 32 Gratt. 288; Harman v. City of Lynchburg, 33 Gratt. 37. 746 WRITS OF ERROR 375 These cases were all correctly decided on their merits, but in no one of them was the statement as to the plaintiff's right of ap- peal, now under discussion, necessary to the decision of the case ; and in a later case, although the same statement is repeated as to the plaintiff's right of appeal, it is said that this rule is not universal. Judge Staples, speaking for the court, after laying down the above rule, says: "Upon examining these cases it will be found they do not lay down the rule universally, but subject to exceptions and modifications which must be applied from time to time as new cases arise." 42 He then proceeds to discuss the facts of the case under consideration and holds that where, on a money demand, the difference between the amount decreed to be paid in the court below, and the amount of the claim asserted by the plaintiff in that court is not sufficient to give the Court of Appeals jurisdiction, his appeal should be dismissed. As to the plaintiff, it has been held that the amount in contro- versy as to him is the difference between the amount claimed on the date of the decree appealed from, and the amount for which a decree was rendered in his favor. 43 This question arose in a chancery suit, but the same rule would apply to an action at law. This principle has been very recently applied in another case arising in chancery. The question was whether or not the holder of a certified check on a suspended bank had accepted it as pay- ment of a debt. The trial court held that it had been so accepted. The check was for three hundred dollars, and the receivers of the bank had declared dividends to the amount of $112.50 (which the holder declined to accept), leaving a balance still due on the check of $187.50. The holder of the certified check appealed, but the appeal was dismissed on the ground that the amount in controversy in the Court of Appeals was the amount of loss sus- tained by the holder of the check, which was measured by the amount of the check less any dividends which had been or might be declared out of the assets of the bank. 44 The cases above cited are believed to state the doctrine in Virginia as to the plain- 42. Bachelder v. Richardson. 75 Va. 835. 43. Ware r. Bldg. Asso., 95 Va. 680, 29 S. E. 744. See, also, Mar- chant v. Healy. 94 Va. 614, 27 S. E. 464. 44. Lamb v. Thompson, 112 Va. 134, 70 S. E. 507. 375 AMOUNT IX CONTROVERSY 747 tiff's right to a writ of error though it is admitted that there are some cases which probably cannot be reconciled with them. If the defendant claims and is allowed a set-off which exceeds the jurisdictional amount of the court, the amount in contro- versy, as to the plaintiff, is the amount allowed. Thus, where the plaintiff claimed three hundred and fifteen dollars (the ju- risdictional amount of the court then being five hundred dol- lars), but the defendant claimed a set-off for five hundred and sixty dollars, and the trial court gave a judgment against plain- tiff for the amount of the set-off, to wit : five hundred and sixty dollars, subject to plaintiff's claim of three hundred and fifty dollars, it was held that an appeal would lie at the instance of the plaintiff. In the course of the opinion it is said : "It is true that Bunting (the plaintiff) can satisfy the decree by the payment of a less sum than five hundred dollars, but it is also true that he is aggrieved by the full amount of the set-off established against him." 45 Here the "amount in controversy" consisted of the set- off allowed against the plaintiff. In the same case, if the de- fendant's set-off had been wholly disallowed, he would have been entitled to an appeal ; or, if the plaintiff's claim had been wholly disallowed, and the defendant's set-off had been allowed only to the extent of two hundred dollars, the amount in contro- versy, as to the plaintiff, would have been the amount of his claim disallowed plus the amount allowed on defendant's set- off, thus making five hundred and fifteen dollars. A set-off is equivalent to an action, and where the amount of a set-off dis- allowed by the trial court exceeds three hundred dollars, the "amount in controversy" is within the jurisdiction of the Court of Appeals. 46 Usually, if a party is not satisfied with a verdict or judgment of a trial court, the objection must be made in some way in the trial court, but attention is called to a Virginia case in which no such objection was made, and yet upon writ of error the losing partv was allowed to take advantage of alleged irregularities of the judgment of the trial court. The plaintiff sued for one thousand dollars. There was a special verdict finding condi- 45. Bunting r. Cochran. 99 Va. 558, 39 S. E. 229. 46. X. & W. Ry. Co. z'. Potter. 110 Va. 427, 66 S. E. 34. 748 WRITS OF ERROR 375 tionally for the plaintiff the sum of $242.25. Upon this special verdict the trial court rendered judgment for the defendant, but no objection was made to the verdict, nor was any motion made for a new trial, but the plaintiff obtained a writ of error, and it was held that the court had jurisdiction. It was evident that the plaintiff was willing to accept judgment for $242.25, and hence made no objection to the verdict. This, then, would seem to have 1 been the matter in controversy, and that the Court of Ap- peals had no jurisdiction, but it was held otherwise and a new trial was ordered. With deference, it is submitted that the con- clusion was wrong. 47 West Virginia Doctrine. The amount in controversy, so far as the plaintiff is concerned, is the amount really claimed by him, which amount is to be ascertained according to the cir- cumstances of each case from the pleadings, the evidence before the court or jury, or from affidavits, though it has been held that, generally, where the plaintiff appeals, the amount claimed by him in his declaration in the court below is the amount in controversy as to him, although the judgment may be for less or for the defendant. 48 Again it has been held that the amount claimed by the plaintiff in his declaration or bill, or by a defend- ant in his plea or answer or set-off, and not the amount found due to either, is the test of the right to appeal; 49 and in another case, 50 that in determining the question of jurisdiction in an ac- tion for the recovery of money on contract, the amount claimed in the summons must determine jurisdiction. The last two cases cited in the margin seem to be in conflict with earlier cases de- ciding that jurisdiction is to be determined by the amount in controversy in the appellate court. 51 Where the defendant ap- peals, generally, the amount of the judgment against him de- termines the jurisdiction of the appellate court. 52 But where 47. McCrowell v. Burson, 75 Va. 290. See, also, Rhule v. Seaboard Ry. Co., 102 Va. 343, 46 S. E. 331. 48. Marion v. Craig, 18 W. Va. 559. 49. Faulconer v. Stinson, 44 W. Va. 546, 29 S. E. 1011. 50. Case v. Sweeny, 47 W. Va. 638, 35 S. E. 853. 51. Rhymer v. Hawkins, 18 W. Va. 309; Grafton R. Co. v. Fore- man, 24 W. Va. 662. 52. Marion v. Craig, 18 W. Va. 559. 375 AMOUNT IN CONTROVERSY 749 the defendant claims a set-off above the jurisdictional amount of the appellate court, and the set-off is wholly disallowed, the defendant may appeal. 53 United States Doctrine. There have been many decisions by the Supreme 'Court of the United States, and they are apparently not harmonious. In Hilton v. Dickinson, 108 U. S. 165, the previous cases are all reviewed by Chief Justice Waite, and the conclusion reached that the "matter in dispute" means the mat- ter in dispute in the 'appellate court, which is the difference be- tween the amount claimed and the judgment rendered. If the defendant claims to defeat the plaintiff's demand, the matter in dispute as to him is the judgment against him. If the judgment is for the defendant, generally, the matter in dispute as to the plaintiff is the amount claimed by him in the body of the decla- ration, and not merely the damages alleged in the prayer for judgment at its conclusion. If a counter claim is set up by the defendant, the matter in dispute as to him is the difference be- tween the counter claim and the judgment, and as to the plaintiff the difference between the amount claimed and the recovery. In other words, it is the real difference in each case between what the party actually claims and the amount accorded him. General Doctrine. It is impossible to reconcile the decisions made upon this subject, but the views expressed by Chief Jus- tice Waite, in the case last mentioned, and the similar conclusion reached by the Court of Appeals of Virginia in some of the cases hereinbefore cited, seem to accord with justice, and to be but a fair and reasonable interpretation of the words used. No generalization can be made which will fit the holdings in the different jurisdictions, and the decisions of the particular States will have to be consulted whenever the question arises. It is said that in some States the amount in controversy is the amount claimed in the lower court, no matter who appeals, though with some conflict of decisions in the same courts. Under this head are classed California, Connecticut, Iowa, Louisiana, Massa- chusetts and Washington. 54 In Illinois and Wisconsin it is said 53. Dickey v. Smith, 42 W. Va. 805, 26 S. E. 373; Faulconer v. Stin- son, 44 W. Va. 546, 29 S. E. 1011. 54. 1 Encl. PI. & Pr. 733. 750 WRITS OF ERROR 375 that the right of appeal seems to be determined by the amount of recovery, no matter who appeals. On principle it would seem that the amount in controversy means in controversy in the ap- pellate court and not in the trial court, and this amount is meas- ured by the difference between what was claimed by the party in the trial court and the amount allowed him in that court ; and, in ascertaining the amount claimed in the trial court, we should look (in case of the plaintiff) to the amount claimed by him in the body of the declaration and not merely to the ad damnum clause. The plaintiff in error is not making any complaint of what he has received, but of what he has not received, and so much of what he claimed in the trial court as was not allowed him in that court represents the matter in controversy in the appellate court. 55 Usually it is incumbent on the plaintiff in error to show af- firmatively that the amount in controversy is within the juris- dictional limit of the court, but where the matter is pecuniary, and the amount awarded in the trial court is in excess of such jurisdictional limit, and it is claimed to have been reduced by payments, the burden is on the defendant in error to show that fact. 58 If the record in the trial court does not show the value of the thing in controversy, and the form of the proceeding does not require it to be shown, it may be shown by affidavits filed in the appellate court. 57 Change in Jurisdictional Amount. In the absence of some exception in the statute, the right of appeal depends upon the law in force at the time the appeal is granted, and not when the judgment was rendered. The right of appeal is regarded as a privilege, and not as a vested right. A new statute increasing the pecuniary limit of the jurisdiction of the appellate court does not apply to writs of error which have been sued out and per- 55. Hilton v. Dickinson, 108 U. S. 165; Batchelder v. Richardson, 75 Va. 835; Marchant v. Healy, 94 Va. 614, 27 S. E. 464; Ware v. Building Asso., 95 Va. 680, 29 S. E. 744; Lamb v. Thompson, 112 Va. 134, 70 S. E. 507. 56. Williamson v. Payne, 103 Va. 551, 49 S. E. 660. 57. Hannah v. Bank, 53 W. Va. 82, 44 S. E. 152; Lamb v. Thomp- son, 112 Va. 134, 70 S. E. 507. 376 CROSS-ERROR BY DEFENDANT IN ERROR 751 fected before the new law takes effect, but does apply to cases arising before the new law went into effect where the application for the writ of error is made afterwards. 58 Aggregate of Several Claims. It often happens in equity that several independent claims of different creditors are asserted against a common debtor for instance, against an executor, administrator, or a trustee though such a state of facts can seldom be presented at law. If there is no joint interest, or com- munity of interest between them, but each relies upon an inde- pendent contract which he has the right to enforce without re- gard to the other, and the interest of no one amounts to as much as $300.00 (the minimum jurisdictional amount), no one of them can appeal from an adverse decree; nor can there be a joint ap- peal, although the aggregate of the several claims rejected ex- ceeds $300.00. 59 But when the claim of several persons to take as legatees under a will is resisted by the executor, and there are separate decrees in their favor, the "amount in controversy" in the appellate court, as to the executor, is the aggregate amount of the decrees against him, although no one of them would be sufficient to give the court jurisdiction. 60 So, also, where there are no assets in the hands of a personal representative of a de- ceased debtor out of which to pay a debt against the decedent's estate, it is proper to decree against each legatee or devisee for his proportion of the debt. Such a decree is, in effect, a decree against the decedent's estate, and if the aggregate amount of such decrees exceed the minimum jurisdictional sum of the appellate court, an appeal lies on behalf of such legatees or devisees. 61 376. Cross -error by defendant in error. Rule VIII, of the Rules of the Court of Appeals declares: "In any appeal, writ of error, or supersedeas, if error is per- 58. McGruder v. Lyons, 1 Gratt. 233; Allison v. Wood, 104 Va. 765, 52 S. E. 559. 59. White v. Bldg. Asso., 96 Va. 270, 31 S. E. 20; Oilman v. Ryan, 95 Va. 494, 28 S. E. 875. 60. Ginter v. Shelton, 102 Va. 185, 45 S. E. 892; Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. 596, citing many previous cases. 61. Smith v. Moore, 102 Va. 260, 46 S. E. 326. 752 WRITS OF ERROR 376 ceived against any appellee or defendant, the Court will con- sider the whole record as before them, and will reverse the pro- ceedings, either in whole or in part, in the same manner as they would do were the appellee or defendant to bring the same be- fore them, either by appeal, writ of error, or supersedeas, unless such error be waived by the appellee or defendant, which waiver shall be considered a release of all error as to him." 62 It has been held, in construing this rule, that the whole record is brought up on writ of error or appeal, and that the plaintiff in error -cannot select simply such matters as are prejudicial to him and exclude the court from the consideration of other mat- ters favorable to him, but that the latter may be assigned by the defendant on cross-error. 63 But if the matter is merely pe- cuniary, it must amount to at least the minimum jurisdictional amount of the court in order to enable the defendant to assign cross-error. 64 Although the amount of the defendant's claim was less than the minimum jurisdictional amount of the appel- late court at the time the claim was rejected by the trial court, yet, if the adverse party appeals at a later time, and the claim of the defendant at the time of the hearing in the Court of Ap- peals has, by reason of the accrual of interest, increased to a sum equal to the minimum jurisdictional amount of the Court of Appeals, the defendant may in that case assign cross-error for the rejection of his claim by the trial court. 65 If both plain- tiff and defendant appeal, and the plaintiff either dismisses his appeal or fails to perfect it, he may, on the appeal taken by the defendant, assign as cross-error the rulings of the trial court to his prejudice which he had set up in his own appeal. 66 The rule of court allowing cross-error to be assigned, however, cannot be made the means of compelling the court to decide questions not necessarily involved on the appeal (and which, therefore, are 62. ill Va. p. VII. 63. Gaines v. Merryman, 95 Va. 660, 29 S. E. 738. 64. Wilson v. Wilson, 93 Va. 546, 25 S. E. 596. 65. Osborne v. Big Stone Gap Colliery Co., 96 Va. 58, 30 S. E. 446. 66. Nicholson v. Gloucester Charity School, 93 Va. 101, 24 S. E. 899. 377-378 RELEASE OF PART OF RECOVERY 753 moot questions) merely for the guidance of the trial court in a future trial of the case. 67 377. Collateral effect. the effect of the judgment in a particular case is to draw in question the validity of a claim to an amount of greater value than the jurisdictional sum of the appellate court, although the amount involved in the present action is not as large as the minimum required, as where a subscription of over three hun- dred dollars of stock is drawn in question in an action on quotas of less than three hundred dollars, or where the validity of a bond for a larger amount is drawn in question in an action on a coupon cut therefrom for a smaller amount, it is held in Vir- ginia that a writ of error will lie, if it appears that the judgment conclusively settles the rights of the parties as to the larger amount, 68 but the contrary is held in the Supreme Court of the United States. 69 378. Release of part of recovery. If the judgment against the defendant is within the jurisdic- tional amount of the appellate court, it is held by the weight of authority that the defendant cannot be deprived of his writ of error by a release of part of the recovery by the plaintiff, as it is said this would be in fraud of the jurisdiction of the appellate court. 70 A somewhat different view, however, is taken by the Su- preme Court of the United States, where it is held that such a re- lease made by the plaintiff, with the consent of the court, after verdict but before judgment, is valid, and will deprive the appel- 67. Singer Mfg. Co. v. Bryant, 105 Va. 403, 54 S. E. 320. 68. Stuart v. Valley Ry. Co., 32 Gratt. 146; Campbell v. Smith, 32 Gratt. 288; Elliott v. Ashby, 104 Va. 716, 52 S. E. 383; Inter. Harvester Co. v. Smith, 105 Va. 683, 54 S. E. 859. 69. Elgin v. Marshall, 105 U. S. 578; 1 Ency. PI. & Pr. 718, citing numerous other cases from the Supreme Court of the United States, and cases from Illinois and Washington to the same effect. 70. Hansbrough v. Stinnett, 22 Gratt. 593; 1 Encl. PI. & Pr. 709-10. 48 WRITS OF ERROR 379-380 late court of jurisdiction. 71 It was said that it was in the discre- tion of the trial court whether to permit the reduction or not, and that it would not permit it if in fraud of jurisdiction of an ap- peal, and that, having allowed it, it must stand. Illinois, Penn- sylvania and South Carolina are said to hold the same doctrine. 72 379. Reality of controversy. Every writ of error must be for the trial of an actual con- troversy. The appellate court will not sit to hear mere moot questions. There must be actual parties and a real controversy. If a prisoner has escaped pending a writ of error, the court will not hear the writ, unless within a reasonable time the prisoner returns into custody. 73 So, if the court discovers that, from lapse of time or otherwise, the controversy is wholly ended and terminated, and nothing but a mere moot question is left for decision, it will dismiss the writ of error. 74 Thus, where the appellate court was asked to decide whether or not a stenographer could use his notes made at a former trial as a record of a past recollection, and it appeared that such notes had in fact been in- troduced on the trial without objection, the court refused to pass on the question, as it was not in issue. 75 No agreement of coun- sel can affect the real amount in controversy so as to give the court jurisdiction where it would otherwise not have it. 76 380. Who may apply for a writ of error. To entitle a person to apply for a writ of error he must be a party to the cause and aggrieved by the judgment. 77 Not only so, but he must present a petition for a writ of error in order to become a plaintiff in error. A party cannot become a plaintiff 71. Thompson v. Butler, 95 U. S. 694. It was said in the same case, however, that if the release had been made after judgment a very different question would have been presented. 72. 1 Encl. PI. & Pr. 710. 73. Leftwich v. Commonwealth, 20 Gratt. 716. 74. Franklin v. Peers, 95 Va. 602, 25 S. E. 321; Hamer v. Common- wealth, 107 Va. 636, 59 S. E. 400; Tennessee v. Condon, 189 U. S. 64. 75. Roanoke Ry. Co. v. Young, 108 Va. 783, 62 S. E. 961. 76. Leigh v. Ripple, 27 W. Va. 211. 77. Rowland v. Rowland, 104 Va. 673, 52 S. E. 366. 380 WHO MAY APPLY FOR A WRIT OF ERROR 755 in error by virtue of a petition in the name of one person on behalf of himself and a number of others whose names are not mentioned. The only plaintiff in error in such a case is the per- son whose name appears in the petition. In order to become a party, the person must unite by name in the petition for a writ of error. 78 So, also, appellate proceedings must be between liv- ing persons, either in a personal or representative capacity. If a party dies after judgment in a trial court, and a writ of error is desired, it must be applied for in the name of his representa- tive. If applied for in the name of a party who is dead, and this fact is disclosed, the writ will be dismissed, though a new writ may be applied for by his representative if not too late. 79 So, also, there must be a party on the other side, on whom proc- ess can be served, else there can be no hearing of the case. 80 If a plaintiff in the trial court dies after judgment in his favor, the judgment debtor has no authority to revive the judgment in the name of the personal representative of the creditor, but should apply for a writ of error in his own name and set out in his pe- tition the death of the plaintiff and the qualification of his per- sonal representative, and process can be served on him. 81 As a commissioner of the court is a mere arm of the court, and not a party, he cannot, as such commissioner, apply for a writ of error or appeal. 82 If several are jointly bound by a judgment, one of them it seems may apply for a writ of error though the others refuse. 83 If, however, the parties jointly interested occupy the relation of principal and surety, and the defence be one that is personal to the principal, although it may inure to the benefit of the surety, the surety cannot alone prosecute a writ of error. 84 78. Southern R. Co. v. Glenn, 102 Va. 529, 46 S. E. 776. 79. Booth v. Dotson, 93 Va. 233, 24 S. E. 935; Jackson v. Wick- ham, 112 Va. 128, 70 S. E. 539. 80. Watkins z: Venable, 99 Va. 440, 39 S. E. 147. 81. Charlottesville v. Stratton, 102 Va. 95, 45 S. E. 737. 82. Brown v. Howard, 106 Va. 262, 55 S. E. 682. 83. Todd v. Daniel, 16 Pet. 521; Winters v. U. S., 207 U. S. 564; Flynn v. Jackson, 93 Va. 341, 25 S. E. 1; Reno's Ex'or v. Davis and wife, 4 Hen. & Mun. 283; Purcell v. McCleary, 10 Gratt. 246; 2 Cyc. 758. 84. Kinzie.f. Riely, 100 Va. 709, 42 S. E. 872. 756 WRITS OF ERROR 381 381. Time within which writ of error must be applied for. The statute in Virginia declares that no petition shall be pre- sented for a writ of error or supersedeas to any final judgment which has been rendered more than one year before the petition is presented. 85 A writ of error must, therefore, be applied for within one year from the time the final judgment was rendered; and a bond, if required, must be given within the same period. The same statute declares that "no appeal from, or supersedeas to, such decree so refusing a bill of review shall be allowed un- less the petition be presented within six months from the date of such decree." It has been held that the six months mentioned must be counted from the actual date of the decree appealed from, and not from the beginning or 'the end of the term at which it was rendered ; 86 and, though there is some difference in the language used, it is presumed that the same construction will be placed upon the former part of the section, fixing the time within which a petition for a writ of error must be presented, that is, one year from the actual date on which the judgment was rendered. 87 There is excluded, however, from the computation the time during which the petition and transcript of record are in the hands of the judges for consideration of the application, but if the writ be granted and the papers returned to the clerk's office, time begins to run afresh, and the mere failure of the clerk to open and examine a box containing papers, in which is the writ of error, does not affect the running of the statute, which begins to run afresh from the actual receipt of the petition and record by the clerk. 88 If, after a writ of error has been awarded it be discovered that the statutory period had expired before it was granted, it will, on application, be dismissed as improvidently awarded. No plea of the statute is necessary in Virginia. Time is a jurisdictional fact which must be made to appear. 89 J>,ec \> KutetJfjL* * <* j *- r vytl** - 7-o 85. Code, 3455. 86. Buford v. North Roanoke Land Company, 94 Va. 616, 27 S. E. 509. 87. Allison v. Wood, 104 Va. 765, 52 S. E. 559. 88. Code, 3474; Bull v. Evans, 96 Va. 1, 30 S. E. 468. /89. Callaway v. Harding, 23 Gratt. 542; Bull v. Evans, supra. See .ante, 227. 382 APPLICATION FOR WRIT OF ERROR 757 382. Application for writ of error. Upon the adjournment of the court, at which a final judg- ment is entered, the party intending to apply for a writ of error must first obtain a transcript (copy) of the record. The first step required of him in Virginia is to give notice to the oppo- site party, or his counsel, if either reside in the state, of his in- tention to apply for a transcript of the record, and the clerk is forbidden to make out and deliver such transcript unless it is made to appear that such notice was given. The clerk there- upon proceeds to make a copy of the record, or such part thereof as is desired. If the defendant in error wants some portion copied which the plaintiff in error objects to, the question is re- ferred to the judge of the trial court, who has to decide it. In lieu of such record, the parties, or their counsel, may agree the facts, or any part of them, and have them copied by the clerk in lieu of the complete record, and this practice has been com- mended. 90 After the record is copied, it is delivered to the ap- plicant, who is thereupon required to file a petition assigning errors. To the foot of this petition must be annexed the certifi- cate of some counsel practicing in the appellate court, that in his opinion the judgment complained of should be reviewed (not that it be reversed) by the appellate court. 91 This petition, with the certificate annexed, together with the transcript of the rec- ord, is transmitted to some judge of the Court of Appeals, who endorses on it the date of its receipt. He may either grant or refuse the writ of error. If he refuses it, he marks it refused, and passes it to some other judge, and it is passed from one to the other until granted by some one, or refused by all. And al- though refused by all of the judges in vacation, the applicant may, if he chooses, present his petition to the court at its next term. The court, in term, may grant the writ, although it has been refused by each one of the judges separately. Such ap- plications have been made, but it is more than doubtful if one has ever been granted by the court after having been refused by each 90. Florance v. Morien, 98 Va. 26, 34 S. E. 890. 91. The counsel making this certificate may be the same that rep- resented the applicant in the trial court, provided he has license to practice in the appellate court. 758 WRITS OF ERROR 382 of the judges. The writ of error may be granted either with or without a supersedeas, as requested. In either event, a bond is generally required of the plaintiff in error, except where the writ is to protect the estate of a decedent, infant, convict, or insane person. The condition of the bond will be hereafter stated. 92 Usually where a party against whom judgment has been ren- dered desires to apply for a writ of error, he wishes to have the execution of the judgment suspended for a reasonable time in order to enable him to make application for the writ. This ap- plication for a suspension should be made to the trial court during the term at which the judgment is rendered, or to the judge thereof in vacation, within thirty days after the term has ended. The suspension is generally granted as a matter of course, and is for a reasonable time specified in the order, and upon con- dition that the applicant give bond before the clerk of said court, in such penalty as the court or judge may require, with condi- tion (after making proper recitals) for the payment of all such damages as may accrue to any person by reason of said sus- pension in case a supersedeas to said judgment should not be allowed and be effectual within the time specified in the order. 93 The record in an action at common law comprises the several papers heretofore mentioned 94 and the verdict and judgment. The mere filing of papers does not make them a part of the record. The rule book and the order book are the proper sources of information as to what constitutes the record. It has been held that an amended declaration, although filed among the papers in a cause, and endorsed by the clerk as filed on a par- ticular day, is no part of the record in the absence of an order of court permitting it to be filed ; and that a bill of exception, though signed by the trial judge and found among the papers in the cause, is not a part of the record unless shown to have been made so by some order of the trial court. 95 92. Code, 3457-60, 3464-5-6, 3470. 93. Code, 3456. 94. Ante, 281. 95. Williams v. Ewart, 29 W. Va. 659, 2 S. E. 881; Wickes v. Balti- more, 14 W. Va. 157. See, also, Annotations West Virginia Code, 881. 382 APPLICATION FOR WRIT OF ERROR 759 "It has been held that if the evidence was not sufficiently iden- tified -and made a part of the bill of exception within the time prescribed for taking the bill, the defect could not be remedied by a nunc pro tune order, but at the recent session of the leg- islature it was enacted, 'that no case shall be heard and decided in the Court of Appeals on an imperfect or incomplete record, but when said court shall be of opinion that any record or part thereof, testimony or proceeding has not been properly identified or certified, so as to make it a part of the record in the case, and to bring it properly before the Appellate Court, and that justice may be done by directing the trial court to cure the defects in the record, it shall so order; and when the defects shall have been so cured it shall proceed with the hearing on the merits.' " 88 The petition for a writ of error is in the nature of a pleading, and should state clearly and distinctly all the errors relied on for reversal, and errors not assigned in the petition, but stated for the first time in oral argument, or in a reply brief, will not, as a rule, be considered. A suggestion in the petition that other er- rors are to be assigned is ineffectual to reserve the right to as- sign errors in a reply brief. 97 But one criminal case, at least, was reversed on error assigned at the bar in oral argument. 98 Xotice to Counsel. 'The statute" requiring that notice of an intention to apply for a transcript (copy) of record, with a view of applying for a writ of error, has been held to be directory merely, but it is said that it is a plain violation of duty by a clerk to make and deliver such transcript until the notice has been given. No form of notice is prescribed, nor it is stated whether it shall be verbal or in writing, but the clerk is required 96. Ante, 290; Barnes Case, 92 Va. 794, 23 S. E. 784; Acts 1912, p. 533. 97. Orr v. Pennington, 93 Va. 268, 24 S. E. 928; Atlantic & D. R. Co. v. Reiger, 95 Va. 418, 28 S. E. 590; Kite's Case, 96 Va. 495, 31 S. E. 895; Norfolk & W. R. Co. v. Perrow, 101 Va. 345, 350, 43 S. E. 614; Hawpe v. Bumgardner, 103 Va. 91, 48 S. E. 554; Newport News R. Co. v. Bickford, 105 Va. 182, 52 S. E. 1011; Amer. L. Co. v. Hoffman, 105 Va. 343, 54 S..E. 25; Sands v. Stagg, 105 Va. 444, 52 S. E. 633, 54 S. E. 21. 98. Johnson v. Commonwealth, 24 Gratt. 555-560. 99. Code, 3457. 760 WRITS OF ERROR 383-384 to certify that the notice was given. The length of the notice is not stated, but it should be reasonable. The notice may be given to counsel who represented the adverse party in the trial court, unless it is known that he has employed other counsel, in which event it is to be given to the latter. 1 383. Bond of the plaintiff in error. If no supersedeas is awarded, the condition of the bond is to pay specific damages, and such costs and fees as may be awarded or incurred. If a supersedeas is awarded to a judgment for the payment of money, the bond is with condition to perform and satisfy the judgment, proceedings on which are stayed, in case said judgment be affirmed or a writ of error be dismissed, and also to pay all damages, costs, and fees which may be awarded against or incurred by the petitioner in the appellate court, and all actual damages incurred in consequence of the supersedeas. 2 The penalty of the bond is fixed by the court or judge awarding the writ. 3 This bond may be given by any one. 4 A writ of error may be dismissed for failure to give a proper bond, but it will not be dismissed for informality in the bond, where the motion has been delayed so long that it is too late to give a new bond or to award a new writ of error. 5 Mere informalities in the bond or its condition do not render the bond void, and they may be corrected on application to the appellate court. 6 Dismissal of a writ of error for failure to give bond is equivalent to an af- firmance of the judgment of the lower court. 7 384. Rule of decision. Where a case has been tried by a jury, or has been decided by the court without the intervention of a jury, and objection is 1. Mears v. Dexter, 86 Va. 828, 11 S. E. 538; Norfolk & W. R. Co. v. Dunnaway, 93 Va. 29, 24 S. E. 698. 2. Code, 3470; Bemis v. Comth., 113 Va. 489, 75 S. E. 115. 3. Code, 3470. 4. Code, 3495. 5. Va. Fire & Marine Ins. Co. v. N. Y., etc., Co., 95 Va. 515, 28 S. E. 888. 6. Ackner v. Railroad Co., 84 Va. 648, 5 S. E. 688. 7. Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. 596. 384 RULE OF DECISION 761 made to the verdict of the jury, or to the judgment of the court, as the case may be, on the ground that the same is contrary to the evidence, and reversal is sought on this ground, the trial court may either certify the facts, or, if this cannot be done, may certify the evidence. If there is no conflict in the evidence, and the facts can be certified, it is the duty of the court to do so, but in most cases the evidence is conflicting, and there is a dispute as to what the facts are. In such case the certificate of evidence is all that can be given. The certificate, however, may be partly of facts and partly of evidence. 8 The form of the certificate is immaterial. The court will look to the substance of the certifi- cate itself to determine whether it is one of facts or of evidence. 9 If the facts are certified, the appellate court will determine the case upon the facts without presumption either way. If, how- ever, the certificate be one of evidence, then the, plaintiff in error goes up as on a demurrer to the evidence, 10 and the verdict and the judgment thereon of the trial court will not be disturbed un- less it is plainly contrary to the evidence, or is without evidence to support it. If the evidence is conflicting on material points the judgment of the trial court sustaining the verdict of the jury will be affirmed 11 but if there is serious conflict of evidence on a material point, the judgment of the trial court setting aside a verdict will be reversed and judgment entered up by the appel- late court on the verdict ; and, in considering such a case on a writ of error, it is not heard as on a demurrer to the evidence. 12 When it is said that a plaintiff in error goes up as on demurrer to the ezndence, it must not be understood that the same judg- ment is always to be entered as in the case of a demurrer to the evidence. All that is meant is that the plaintiff in error makes the same concessions and admissions as are required of one who demurs to the evidence. Generally the judgment of the appellate court is final where there was a demurrer to the evidence in the 8. N. Y., etc., Ry. Co. v. Thomas, 92 Va. 606, 24 S. E. 264. 9. Read's Case, 22 Gratt. 924. 10. Code, 3484; Norfolk, etc.. Co. v. Adamson, 111 Va. 556, 69 S. E. 1055. 11. Martin r. Ry. Co., 101 Va. 406, 44 S. E. 695. 12. Thompson v. Norfolk & P. R. Co., 109 Va. 733, 64 S'. E. 953. 762 WRITS OF ERROR 384 trial court, but where a case has been tried by a jury upon con- flicting evidence, and the evidence has been certified and not the facts, although the plaintiff in error makes the same concessions and admissions as are required of a demurrant to the evidence, yet the judgment of the appellate court, upon reversing the judg- ment of the trial court, is that the verdict of the jury be set aside and the cause remanded for a new trial, as that is the judgment the trial court ought to have entered. The rule above stated, with reference to a plaintiff in error go- ing up as on a demurrer to the evidence, applies where there has been only one trial in the court below. If there has been more than one trial, a different rule prevails. In this case the appel- late court will look first to the proceedings on the first trial to determine whether error was committed in setting aside the first verdict, and in looking at the proceedings for this purpose, it does not consider the case as on a demurrer to the evidence, but looks to the evidence just as the trial court ought to have looked at it in determining whether or not the verdict should be set aside. 13 If it finds that the trial court erred in setting aside the first verdict, it will set aside and annul all proceedings subsequent to that verdict, and enter up judgment on the first verdict. If, however, it finds that no error was committed, and that the ver- dict was rightly set aside, it will then proceed to consider the second trial (supposing that to be the one under review) as on a demurrer to the evidence by the plaintiff in error. 14 The sec- 13. Humphrey v. Valley R. Co., 100 Va. 749, 42 S. E. 882; Citizens' Bank v. Taylor, 104 Va. 164, 57 S. E. 159. 14. Prior to the revision of 1887, there were several rules of deci- sion, as applied to different classes of cases, where the evidence, and not the facts, was certified (Judge Burks' Address, p. 40). in Jones v. Old Dominion Cotton Mills, 82 Va. 140, there were three trials. The first and second trials were before a jury, and in each case a, verdict for the plaintiff was set aside on motion of the defendant. On the third trial, there was a demurrer to the evidence by the de- fendant which the trial court sustained. Each successive verdict in- creased the amount found for the plaintiff. In each of the first two trials, the plaintiff objected to setting aside the verdict, and saved his objection by proper bills of exception. After the third trial, the plaintiff obtained a writ of error from the Court of Appeals, and that Court, instead of examining the first trial first, and entering up judg- 384 RULE OP DECISION 763 tion of the Code quoted in the margin speaks of only two trials in the lower court. The trial court, if it deems it proper, may grant two new trials, 15 which would mean three trials in all. If the writ of error is to a judgment rendered on a third trial, the statute does not say how the appellate court shall view the proceedings on the second trial, but as it has resulted in the setting aside the verdict of a jury it is presumed that the pro- ceedings on the second trial will be viewed in the same light as is provided by the statute for reviewing the proceedings of the first trial when there have been only two trials in the lower court. Trial courts, however, are invested with a certain amount of discretion in the supervision of verdicts, and in granting or re- fusing new trials. This fact will be borne in mind by the ap- pellate court where a verdict has been set aside by the trial court, ment for the error committed in setting aside the verdict, considered the case on the demurrer to the evidence and entered judgment thereon for the largest amount, which was the amount found on the third trial. After this, the revisers undertook to establish a uniform rule of decision in cases where the evidence was certified, and pro- vided in all cases that the rule of decision should be as on a demurrer to the evidence by the party excepting. It is stated by Judge Burks, in his Address, p. 40, that it was supposed that this rule operated harshly on the excepting party, where there had been two trials, and hence it was amended by the legislature in this particular. The pres- ent law on the subject is embraced in 3484 of the Code, which is as follows: "When a case at law, civil or criminal, is tried by a jury and a party excepts to the judgment or action of the court in granting or refusing to grant a new trial on a motion to set aside the verdict of a jury on the ground that it is contrary to the evidence, or when a case at law is decided by a court or judge without the intervention of a jury and a party excepts to the decision on the ground that it is contrary to the evidence, and the evidence (not the facts) is certi- fied, the rule of decision in the appellate court in considering the evidence in the case shall be as on a demurrer to the evidence by the ap- pellant, except when there have been two trials in the lower court, in li'hich case the rule of decision shall be for the appellate court to look first to the evidence and proceedings on the first trial, and if it discovers that the court erred in setting aside the verdict on that trial it shall set aside and annul all proceedings subsequent to said verdict and enter judg- ment thereon." 15. Code, 3392. 764 WRITS OF ERROR 385 and allowance made therefor, and this is especially true where the verdict on the subsequent trial is substantially reduced in amount, or is found for the opposite party. 16 Here the last ver- dict is consistent with the judgment of the court in setting aside the first verdict. A stronger case must also be made to warrant the appellate court in disturbing an order granting a new trial than one re- fusing it, because refusal is final, whereas a new trial simply invites further investigation. 17 It was formerly necessary in Virginia for a party to make a motion for a new trial on the ground that the verdict was contrary to the evidence in order to have the benefit of any other exceptions taken during the trial, but this rule has been changed by statute, and it is no longer necessary to make a motion for a new trial in order to have the benefit of other exceptions taken during the trial. The statute now provides that the failure to make such motion shall not be deemed a waiver of any objections made during the trial, if such objections be properly made a part of the record. 18 385. Judgment of appellate court. The character of the judgment to be entered by the appellate court is largely dependent upon the proceedings had in the trial court. Demurrer. If a demurrer to a declaration is sustained by the trial court because the declaration fails to state a case, and this judgment is affirmed on writ of error, that is the end of the case, 19 and whether or not a new action can be maintained for the same cause upon a different state of facts depends upon whether or not the merits of the case were involved in the first action. If they were, and a different case is not made in the second action from that stated in the first, then the decision on the demurrer in the first case is final, as a judgment on demurrer involving the merits is as conclusive as one rendered on the 16. Citizens' Bank v. Taylor, 104 Va. 164, 51 S. E. 159. 17. Chapman v. Va. R. E. Co., 96 Va. 177, 31 S. E. 74. 18. Code, 3385a. 19. Graves v. Scott, 104 Va. 775, 51 S. E. 821; Hortenstein v. Va.- Car. R. Co., 102 Va. 914, 47 S. E. 996. 385 JUDGMENT OF APPELLATE COURT 765 proof. 20 If a demurrer for misjoinder of causes of action be overruled by the trial court, but sustained by the appellate court, then it seems that the appellate court will enter judgment over- ruling the judgment of the trial court and remand the case, with liberty to the plaintiff to amend his declaration so as to cure the misjoinder, 21 though it is said, obiter, in one case that the judg- ment of the trial court sustaining a demurrer for such misjoinder "should have been final at that time in favor of the defendants, instead of permitting the plaintiff to amend." 22 If a demurrer to a declaration has been overruled in the trial court, and the cause has proceeded to trial, resulting in a judgment for the plaintiff, and, on a writ of error, the appellate court is of opinion that the trial court erred in its ruling on the demurrer, the judg- ment to be entered by the appellate court varies according to the circumstances of the case. If there was only one count in the declaration, and the appellate court holds that to be bad, or if more than one count -and it holds all to be bad, then usually the court will reverse the judgment of the trial court and remand the case, with liberty to the plaintiff to amend his declaration. 23 But if the court can see from the facts stated that a good case cannot be stated for the plaintiff, it will enter up final judgment on the demurrer for the defendant, without remanding the case. 24 So, also, where a demurrer to a declaration has been overruled, and the plaintiff of his own motion has filed an amended decla- ration, to which a demurrer was also overruled by the trial court, it will be presumed that the plaintiff has stated his case as strongly as the facts would warrant, and the appellate court, upon sus- 20. Ante, pp. 364-5. 21. Creel v. Brown, 1 Rob. 265; Fitzhugh v. Fitzhugh, 11 Gratt. 300; Penn. R. Co. v. Smith, 106 Va. 645, 56 S. E. 567. 22. Gary r. Abingdon Pub. Co., 94 Va. 775, 779, 27 S. E. 595. 23. Norfolk & W. R. Co. v. Gee, 104 Va. 806, 52 S. E. 572; Nor- folk & W. R. Co. v. Stegall, 105 Va. 538, 54 S. E. 19; Washington, etc.. R. Co. v. Taylor, 109 Va. 737, 64 S. E. 975; Note by Judge Burks. 1 Va. L. Reg. 900. 24. Norfolk & W. R. Co. v. Scruggs, 105 Va. 166. 52 S. E. 834. Here the complaint was that a railroad company gave no notice to a traveller on the highway of the approach of a train to an over- head crossing. 766 WRITS OF ERROR 385 taining the defendant's demurrer to both declarations, will enter up final judgment for the defendant. 25 If there are more counts than one in the declaration, some of which are good and others bad, and there is either no demurrer at all, or a demurrer to the declaration as a whole, and not to the separate counts, and entire damages are found, and it can- not be told upon which count the verdict was founded, judg- ment must be entered up for the plaintiff, for the statute so de- clares. 26 If, however, there was a demurrer to each count of the declaration, and the court can plainly see that the verdict was founded on the good count, it will uphold it, but if on the bad, it will set it aside. If it cannot see on which count the verdict was founded, the court will treat the demurrer to the faulty counts as a request to the court to instruct the jury to disregard them, and will reverse the case and remand it for a new trial. 27 If the case be reversed for failure of the trial court to sustain a demurrer to any pleading subsequent to the declaration, the modern practice seems to be to remand with liberty to the party whose pleading is demurred to, to amend, if he so desires. In Cromer v. Cromer, 29 Gratt. 280, 286, the defendant demurred to the plaintiff's replication and the trial court overruled the demurrer. This ruling was held to be error by the appellate court, and it was said that the demurrer should have been sustained, and in considering the order to be entered in the appellate court, Judge Burks speaking for the court says : "And on the authority of Hamtramck v. Selden, Withers & Company, 12 Gratt. 28; Strange v. Floyd, 1 Gratt. 474, and other cases, and according to the settled practice of this court, the cause should be remanded to the circuit court, with direc- 25. Ches. & O. R. Co. v. Wills, 111 Va. 32, 68 S. E. 395. But see Washington, etc., R. Co. v. Taylor, 109 Va. 737, 64 S. E. 975. 26. The statute (Code, 3389) provides: "When there are several counts, one of which is faulty, the defendant may ask the court to instruct the jury to disregard it; yet if entire damages be given, the verdict shall be good." 27. See discussion, ante, 301; So. Ry. Co. v. Hansbrough, 105 Va. 527, 54 S. E. 17; Va. Cedar Works v. Dalea, 109 Va. 333, 64 S. E. 41; Newport News v. Nicolopoolos, 109 Va. 165, 63 S. E. 443; Chesa- peake & O. R. Co. v. Melton, 110 Va. 728, 67 S. E. 346. 385 JUDGMENT OF APPELLATE COURT 767 tions to sustain the demurrer to the plaintiff's replication and render judgment thereon for the defendant, unless the plaintiff withdraws his said replication, which he should have liberty to do, if he asks it, and file a sufficient replication in its stead." 28 Demurrer t.o the Evidence. If a case is heard in the trial court on a demurrer to the evidence, the appellate court must as a rule either affirm the judgment, or else reverse it and give final judg- ment for the opposite party, though in some exceptional cases, hereinbefore pointed out, 29 it may set aside the whole proceed- ing and order a new trial. Where a demurrer to the evidence has been wholly sustained by the trial court, and the jury have found a gross sum 'for damages, but on writ of error the appel- late court is of opinion that the demurrer should have been over- ruled as to certain items of account, the amount and value of which are readily ascertainable from the record, it will not re- mand the case in order to have the error corrected, but will enter up final judgment for the demurree for the value of such items. 30 Case Heard by Trial Judge vuithout a Jury. Where the trial court hears and determines a case without the intervention of a jury, the appellate court, upon reversing the judgment, will gen- erally enter up final judgment for the opposite party. It does not, as a rule, award a new trial. It is required to enter such judgment as the trial court ought to have entered; 31 and in con- sidering whether or not the judgment should be reversed, the judgment of the lower court is given the same weight as the verdict of a jury. 32 Jury Trial in Lower Court. If the case is heard in the trial court by a jury, upon the evidence adduced, the appellate court, if it reverses, makes an order for a new trial to be had in the 28. See, also, 14 Va. L. Reg. 836 and cases cited; ante, 208. 29. Ante, 264, and Note 59. 30. Whitehead v. Cape Henry Syndicate, 111 Va. 193, 68 S. E. 263. 31. N. & W. v. Dunnaway, 93 Va. 29-41, 24 S. E. 698; Metropolitan Life Ins. Co. v. Rutherford, 98 Va. 195, 35 S. E. 361; Martin v. Ry. Co., 101 Va. 406, 44 S. E. 695; United Moderns v. Rathbun, 104 Va. 236, 52 S. E. 552; Edmonson v. Potts, 111 Va. 79, 63 S. E. 254; Wor- ley v. Adams, 111 Va. 796, 69 S. E. 929. 32. Hoster Co. v. Stag Hotel Corp., Ill Va. 223, 68 S. E. 50. 768 WRITS of SRROR 385 court below, as that is the judgment which the trial court should have entered. Divided Court. It has been held that 88 of the constitution, which requires at least three of the judges of the Court of Ap- peals to agree upon a decision, applies only to constitutional ques- tions, and that other cases may be affirmed by a divided court, and reliance was placed upon the language of 3485 of the Code of 1887, directing affirmance "where the voices on both sides are equal." 33 The language of 3485 of the Code of 1887, "affirm- ing in those cases where the voices on both sides are equal," which had been the law in Virginia since 1779, 34 was changed by an act approved December 31, 1903, taking effect on and after February 1, 1904, by striking out the words above quoted and substituting the language of 88 of the constitution in their place. 35 This change was made two weeks before Funkhouser v. Spahr, supra, was decided, and hence was not in consequence of the decision, nor could the act have affected the decision as it did not go into effect until two weeks after the case was decided. As the law now stands, there is no statute providing for an equally divided court, if no constitutional question is involved. This, however, does not change the law. The former statute was simply declaratory of a well-settled pre-existing rule of necessity, which is not changed by the omission from the present statute of anything on .the subject, so that now, as formerly, if the Court of Appeals is equally divided in opinion on other than a constitutional question, the judgment of the lower court is affirmed, and this is the rule generally prevailing elsewhere. 36 Even where there has been no decision of the question by the court below, but there is an equal division of the judges on the question of the jurisdiction of the appellate court, it is held by the Supreme Court of the United States that the writ of error will be dismissed, 37 though a different view has been taken by the Court of Appeals of West Virginia. 38 33. Funkhouser v. Spahr, 102 Va. 306, 46 S. E. 309. 34. 1 Rev. Code, 1819, pp. 194-5. 35. Code (1904), 3485. 36. Charlottesville R. Co. v. Rubin, 107 Va. 751, 60 S. E. 101. This case gives a very full citation of authority. 37. Holmes v. Jennison, 14 Peters 540. 38. State v. Hays, 30 W. Va. 107, 3 S. E. 177. 386-387 HOW DECISION CERTIFIED AND ENFORCED 769 While a decision by a divided court is binding upon the par- ties and settles the particular controversy, it does not constitute any precedent for succeeding cases. 39 West Virginia goes even further than this, and has declared, both by constitutional pro- vision and by statute, that no decision of the Court of Appeals shall be binding on the inferior courts, except in the particular case decided, unless it is concurred in by at least three judges of that Court. 40 Hence a decision by a court of three judges is not binding on the inferior courts unless all three of them con- cur in the opinion. 386. Change in law. Writs of error in the Court of Appeals of Virginia must be disposed of on the merits in accordance with the law as it ex- isted at the time of the rendition of the judgment complained of. If, as the law then stood, there is no error in the judgment, it must be affirmed, but, if erroneous, it must be reversed, and such judgment entered as the lower court ought to have en- tered. 41 Merely remedial statutes, however, though passed after adjudication by the trial court, will be applied to appeals and writs of error thereafter applied for. 42 The rule first above stated is generally otherwise outside of Virginia, and the case is decided according to the law as it is when the case is heard in the appellate court. 43 387. How decision certified and enforced. When a case is decided by the Court of Appeals, the clerk of that court is required to transmit the decision of the court to the court below, and the court below enters the decision of the appellate court as its own, and enforces it by execution or other proper process. 44 39. Durant v. Essex Company, 1 Wall. 107. 40. Constitution W. Va., Art. 8, 4; Code W. Va., 4058. 41. Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S. E. 269; Wil- son v. Hundley, 96 Va. 96, 30 S. E. 492. 42. Allison v. Wood, 104 Va. 765, 52 S. E. 559. 43. 3 Cyc. 407. 44. Code, 3488, 3490. 49 770 WRITS OF ERROR 388-390 388. Finality of decision. The decision of the appellate court, right or wrong, is final after the rehearing period has passed. Neither the Court of Appeals nor any other court can correct it. 45 389. Rehearing. If a case be decided during the last fifteen days of a term, application may be made for a rehearing at any time before the end of the term, or within fifteen days after the commencement of the next term. In all other cases, the application to rehear must be made during the term at which the case was decided within ten days after the decision is announced, and in all cases the reasons for the rehearing, printed, must be filed at the time application is made. No rehearing will be allowed unless one of the judges who concurred in the decision shall be dissatisfied with it and desire a rehearing. 46 390. Objections not made in trial court. The Court of Appeals can only consider a case, on a writ of error, on the record as made in the trial court. If this fails to disclose the errors complained of, they cannot be considered. 47 Generally, objections not shown to have been made in the trial court cannot be set up for the first time in the appellate court, No complete enumeration of such cases will be attempted. A few illustrations must suffice. The rulings of the trial court on the admission or rejection of evidence, 48 on the competency of a witness, 49 on the giving or refusing to give instructions, 5 * 45. Campbell v. Campbell, 22 Gratt. 649; Rosenbaum v. Seddon, 94 Va. 575, 27 S. E. 425; Stuart v. Peyton, 97 Va. 796, 34 S. E. 696; Nor- folk & W. R. v. Duke, 107 Va. 764, 60 S. E. 96; Matthews Co. v. Progress Co., 108 Va. 777, 62 S. E. 924; Koonce v. Doolittle, 48 W. Va. 592, 37 S. E. 644; Ex parte Sibbald, 12 Peters 492. 46. Code, 3492; Rule of Court XVIII, 100 Va. p. X; 111 Va. p. IX, Rule XVII. 47. Barnes' Case, 92 Va. 794, 23 S. E. 784. 48. Fentress v. Pocahontas Club, 108 Va. 155, 60 S. E. 633. 49. City of Richmond v. Wood, 109 Va. 75, 63 S. E. 449. 50. Saunders v. Bank, 112 Va. 443, 71 S. E. 714; Wallen v. Wallen, 107 Va. 131, 57 S. E. 596. 390 OBJECTIONS NOT MADE) IN TRIAL COURT 771 on the misconduct of parties or their counsel, 51 and, indeed, everything which is not per se a part of the record, must be made a part thereof by proper proceedings had in the trial court, and if a review of the rulings of the trial court thereon is sought to be had, it must appear that proper objections to such rulings were made in the trial court. Such objections cannot be made for the first time in the appellate court. An objection, for in- stance, to the size of the type of an insurance policy cannot be raised in the appellate court for the first time. 52 So, where a restrictive provision of a bill of lading was not relied on or considered in the trial court, and no motion was there made to exclude the evidence as to the carrier's liability because of the nonperformance thereof, it will be deemed to have been waived, and cannot be insisted on for the first time in the appellate court. 53 So, likewise, if the unconstitutionality of a statute is relied on as the basis of the appellate jurisdiction under a con- stitutional provision conferring appellate jurisdiction "in all cases involving the constitutionality of a law as repugnant to the con- stitution of this state, or of the United States," it must appear that the constitutionality of the law was called in question in some way and decided by the trial court; 54 but any proceeding* which necessarily puts in issue the constitutionality of a statute, whether it be by demurrer, plea, instruction, or otherwise, is sufficient to confer jurisdiction on the Court of Appeals. 55 If, however, the objection be that the trial court had no jurisdiction of the subject matter of the litigation, the objection may be made in the appellate court for the first time. 56 Indeed, if the trial court had no jurisdiction of the subject matter, its judgment is a mere nullity, and may be treated as such. It may be assailed, directly or indirectly, anywhere, at any time, in any way. So, also, where it appears that the appellate court has no jurisdic- 51. Southern R. Co. v. Simmons, 105 Va. 651, 55 S. E. 459. 52. Sulphur Mines Co. v. Phoenix Ins. Co., 94 Va. 355, 26 S. E. 856. 53. Norfolk & W. R. Co. v. Wilkinson, 106 Va. 775, 56 S. E. 808. 54. Hulvey v. Roberts, 106 Va. 189, 55 S. E. 585. 55. Adkins v. Richmond, 98 Va. 91, 34 S. E. 967. 56. S. & W. R. Co. v. Commonwealth, 104 Va. 314, 51 S. E. 824; Hanger v. Commonwealth, 107 Va. 872, 60 S. E. 67. 772 WRITS OF ERROR 391 tion of a writ of error, or appeal, it will be dismissed by the court ex inero motu, though no objection was made on that ac- count at the hearing. 57 Although objections were in fact made in the trial court, they will not be considered unless properly presented in the record. 58 Thus, it has been held that the judgment of a trial court setting aside a verdict because contrary to the law and the evidence cannot be reviewed by the appellate court when the instructions given in the trial court are not made a part of the record. The appellate court cannot assume that the instructions were free from error, nor pass at all upon that ground for setting aside the verdict. 59 So, likewise, if the record does not show what instructions were given by the trial court, an exception to the ruling of the court refusing to give a single instruction will not be considered on a writ of error, as the rejected instruction may have been covered by other instructions given. 60 391. Putting a party upon terms. A party may be in effect put on terms in the appellate court as well as in the trial court. When a party is put on terms in the appellate court because a judgment in his favor is excessive, it may reverse the judgment of the trial court and remand the cause, with direction to the trial- court to put the successful party upon terms to release the excess, or else submit to a new trial, and if the release is made, to overrule the motion for a new trial and render judgment for the correct amount, with interest and costs; 61 or, if the error be one of mere calculation, readily cor- rected from the record, or if the verdict and judgment of the trial court is excessive and the record affords plain and certain proof of the amount of the excess so that it may with safety be cor- rected, in either event the appellate court will amend and affirm 57. Hobson v. Hobson, 100 Va. 216, 40 S. E. 899. 58. See ante, 281, 290, 291. 59. Foreman v. Norfolk, etc., Co., 106 Va. 770, 56 S. E. 805. 60. Kecoughtan Lodge v. Steiner, 106 Va. 589, 56 S. E. 569. 61. Buena Vista Co. v. McCandlish, 92 Va. 297, 23 S. E. 781; Wor- rell v. Kinnear, 103 Va. 719, 49 S. E. 988. 392 APPEALS OF RIGHT 773 the judgment of the trial court, and will not remand the case for such amendment. 62 Where a party is put on terms in the trial court to release a part of his recovery or else submit to a new trial, and he makes the release and takes judgment for the reduced amount he will not be heard in the appellate court (in the absence of a statute permitting it) to question the action of the trial court in this particular upon a writ of error granted to the other party. Hav- ing accepted the verdict he cannot thereafter be heard to ques- tion it. 63 In Virginia, however, it is now provided by statute "that in any action at law in which a circuit or corporation court ; or any other law court of record shall require a plaintiff to remit a part of his recovery, as ascertained by the verdict of a jury, or else submit to a new trial, such plaintiff may remit and ac- cept judgment of the court thereon for the reduced sum under protest, but, notwithstanding such remitter, and acceptance, if under protest, the judgment of the court in requiring him to remit may be reviewed by the Supreme Court of Appeals upon a writ of error awarded the plaintiff as in other actions at law; and in any such case in which a writ of error is awarded the defendant, the judgment of the court in requiring such remitter may be the subject of review by the Supreme Court of Appeals, upon a cross appeal by the plaintiff, as in other actions at law." 64 Where the matter in dispute is merely pecuniary, it would seem that if a plaintiff applies for a writ of error on the ground that the verdict in his favor has been erroneously reduced by the trial court, the reduction must amount to at least the sum of $300 in order to confer jurisdiction on the Court of Appeals, and the same is probably true if he assigns cross error on a writ of error awarded to the defendant. 65 392. Appeals of right. A writ of error is not a matter of right in Virginia. As here- 62. Aultman v. Gay, 108 Va. 647, 62 S. E. 946; Mclntyre v. Smith, 108 Va. 736, 62 S. E. 930; Code, 3452; Code W. Va. 4037; ante, 373. 63. Lynchburg Telephone Co. v. Booker, 103 Va. 594, 50 S. E. 148. 64. Acts 1906, ch. 167, p. 251. 65. Wilson v. Wilson, 93 Va. 546, 25 S. E. 596. 774 WRITS OF ERROR 393-394 inbefore stated, a party deeming himself aggrieved is required to file a petition, assigning errors committed in the trial court to his prejudice. This petition is submitted to the judges and passed on as hereinbefore indicated, and they may grant or re- fuse it, as in their judgment is right and proper, and a failure to grant it operates as an affirmance of the judgment below. 66 393. Refusal or dismissal of writ. Refusal to grant a writ of error, or the dismissal of it after it has been granted, operates as an affirmance of the judgment of the trial court. 67 394. Conclusion. Appellate courts do not sit simply to correct errors. If they did, their work would be unending. To be the subject of review the error must be material, and must be prejudicial to the in- terest of the party complaining of it. 68 66. McCue's Case, 103 Va. 870, 49 S. E. 623. 67. McCue's Case, 103 Va. 870, 49 S. E. 623; Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. 596; Baker v. Watts, 101 Va. 702, 44 S. E. 929. 68. Bank v. Napier, 41 W. Va. 481, 23 S. E. 800; Supervisors v. Gorrell, 20 Gratt. 484; Beirne v. Rosser, 26 Gratt. at p. 546. CHAPTER XLV. EXTRAORDINARY LEGAL REMEDIES. 395. Mandamus. 396. Prohibition. Parties. Procedure. 397. Quo warranto. Procedure. 398. Certiorari. 395. Mandamus. The only civil remedies in common use that may be desig- nated as extraordinary are Mandamus, Prohibition, Quo War- ranto, and Certiorari. 1 Of these some brief discussion will be given. Mandamus is a remedial writ, issuing usually from a superior court, directed to any person, corporation, or inferior court, re- quiring them to do some particular thing, therein specified, which pertains to their duty or office, and concerning the doing of which they have no discretion. It never issues to control the discretion of any functionary. It will be issued, for instance, to compel a clerk to record a deed, to compel a corporation to ex- hibit its books to a stockholder, or an inferior court to hear and determine a cause, but it cannot be issued to direct what judg- ment the inferior court shall enter. 2 A mandamus will not be awarded, however, where to do so would be fruitless or un- availing. If the respondent cannot perform the act required, or if the court is unable to compel its performance, the writ will be denied. 3 But this inability may cease after the writ has been denied, and, upon the changed state of facts, the writ, though formerly denied, may be granted. The former refusal does not 1. Habeas Corpus belongs more particularly to the domain of crimi- nal law. 2. Broaddus v. Supervisors, 99 Va. 380, 38 S. E. 177. 3. Mitchell v. Witt, 98 Va. 459, 36 S. E. 528. 776 EXTRAORDINARY LEGAL REMEDIES 395 make the question res judicata, though it would have been but for the changed state of facts. 4 While mandamus does not lie in favor of a party who has another clear and adequate legal remedy, the "adequate remedy" which will bar mandamus must be such as reaches the end in- tended, and actually compels the performance of the duty in question. It must be equally as convenient, beneficial, and effective as the proceeding by mandamus. The function of the writ is to enforce the performance of duties grow- ing out of public relations, or imposed by statute, or in some respect involving a trust, or official duty. 5 Thus manda- mus may issue to recover books of a predecessor in office, and incidentally to try the title to the office. Neither detinue nor quo warranto are adequate remedies, even if detinue would lie to recover the books. To supersede the remedy by mandamus, the party must not only have a specific remedy, but one compe- tent to confer relief upon the very subject matter of litigation. and one which is equally as beneficial as the proceeding by mandamus. 5 Where a surety is entitled, on motion to a proper court, to unconditional relief from his obligation, if such court refuses the relief, the remedy is by mandamus, and not by writ of error, as the duty devolved upon the court is purely ministerial, and involves the exercise of no discretion. 7 So, also, after a controversy has been settled by a decree of the Court of Appeals, and the rehearing period has passed, the questions involved cannot thereafter be reopened between the same parties, and mandamus from the Court of Appeals to the trial court to carry into effect the decree of the Court of Ap- peals is the proper remedy. 8 So mandamus will lie to compel the judge of an inferior court to sign a proper bill of exception which he has refused 4. Winchester, etc., R. Co. v. Commonwealth, 106 Va. 264, 55 S. E. 692. 5. C. & O. R. Co. v. Scott, 109 Va. 34, 63 S. E. 412. 6. Sinclair v. Young, 100 Va. 284, 40 S. E. 907. 7. U. S. Fidelity Co. v. Peebles, 100 Va. 585, 42 S. E. 310; State v. Wood Co. Ct., 33 W. Va. 589, 11 S. E. 72. 8. Miller v. Turner, 111 Va. 341, 68 S. E. 1007. 395 MANDAMUS 777 to sign at the trial, although final judgment has since been entered in the case, as the party has no other legal remedy ; 9 but if he refuses to sign a bill certifying the facts or the evidence, because they have faded from his memory so that he cannot do so, the appellate court (while it cannot award a manda- mus) will, upon proper proceedings had, grant the party ag- grieved a new trial. 10 Procedure to Obtain the Writ. The procedure at common law and formerly in Virginia was dilatory and complicated. Formerly, the party aggrieved filed his petition before the su- perior tribunal, setting out the ground of the application, with- out notice to the adverse party. The petition was sworn to, and if it presented a prima facie case a rule was made against the adverse party to show cause why the mandamus should not issue. Upon the return of this rule, executed, if no sufficient cause was shown against it, a conditional mandamus was is- sued, returnable at a specified time, by which the party was required to do the specific thing, or show cause to the contrary. When return was made to this conditional mandamus, the party suing it out had the right to plead to, or traverse, all or any of its material allegations, to which the person making the return had the right to reply, take issue, or demur, and the procedure was as in -an action on the case for a false return. At common law an action upon the case lay for the party injured against the person making such false return ; and if, in such action, the return was falsified, the court would grant a peremptory mandamus. 11 Xow the procedure is much simplified by statute in Virginia. 12 It is provided that the application shall be on petition verified by oath, after the party against whom the writ is prayed has been served with a copy of the petition and notice of the in- tended application a reasonable time before such application is made. The petition is to state plainly and concisely the ground of the application, and conclude with a prayer for the writ. If 9. Collins v. Christian, 92 Va. 731, 24 S. E. 472. 10. Powell v. Tarry, 77 Va. 250. 11. 1 Rob. Pr. (old) 649-650. 12. Code, Ch. 144, SOllff. 778 EXTRAORDINARY LEGAL REMEDIES 396 no defence is made and the petition states a case proper for the writ, a peremptory writ is awarded with costs. If the defend- ant appears and makes defence, the defence is to be by de- murrer, or answer on oath, or both. If either party demands a jury, the court or judge is to direct such issues of fact as may be proper to be tried in term ; "and whether the trial be had with or without a jury, the writ peremptory shall be awarded or denied according to the law and facts of the case, and with or without costs as the court or judge may determine." 13 The petition for the writ is to be presented to the court having ju- risdiction, or to the judge thereof in vacation, unless the applica- tion be to the Supreme Court of Appeals. If the application be to the latter, the statute declares that "The case shall be heard and determined without a jury, and witnesses shall not be allowed to testify viva voce before the court, but their tes- timony, if desired, may be used in the form of depositions taken by either party on reasonable notice to the other, or his attor- ney, of the time and place of taking the same." 14 396. Prohibition. 15 It is said that no definition of the writ of prohibition can properly be formulated that will not be to some extent at va- riance with adjudged cases, 16 but the definition given by Black- stone is sufficient for our present purposes. It is "the name of a writ issued by a superior court, directed to the judge and par- ties to a suit in an inferior court, commanding them to cease from the further prosecution of the same, on a suggestion that the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court." 17 The office of the writ of prohibition is not to correct error, but to prevent the exercise of jurisdiction of the court by the 13. Code, 3016. 14. Code, 3017. 15. This subject is very fully treated in a note, 111 Am. St. Rep. 929. 16. Note, 111 Am. St. Rep. 930. 17. 3 Bl. Com. [112]. 396 PROHIBITION 779 judge to whom it is directed, either where he has no jurisdiction at all, or is exceeding his jurisdiction. If the court or judge has jurisdiction to enter any order or decree at all in the proceed- ing sought to be prohibited the writ does not lie. 18 Although jurisdiction of the person, or of the subject matter, may have once existed, yet, if for any cause it has been lost, the writ may issue. For example, the writ of prohibition will be granted to restrain a justice from allowing a new trial after the lapse of more than thirty days after judgment, and to restrain the defendant from proceeding after such new trial has been al- lowed. 19 So, in Virginia and West Virginia, if there has been an illegal or unauthorized judgment, the writ will issue to pre- vent its execution, as, where a justice of the peace has rendered a judgment for an amount in excess of the jurisdiction of the justice. In such case, the plaintiff may, at the instance of the defendant, be restrained from executing the judgment even after the constable has the money in his hands. 20 If an entire debt exceeding one hundred dollars has been di- vided into smaller notes, all of which are due, prohibition will lie at the instance of the debtor to prevent a justice of the peace from taking jurisdiction and rendering judgment thereon, or from enforcing the collection of a judgment already rendered thereon, 21 but it has been held that, where separate warrants have proceeded to judgment before the justice, with the consent or acquiescence of the defendant, the judgment cannot there- after be collaterally assailed by other persons. This result, it is said, does not impinge in any degree upon the maxim that con- sent cannot give jurisdiction, as the justice had jurisdiction of the amount represented in each judgment. 22 Prohibition also lies to prevent the enforcement of a judgment by default where the defendant had no notice of the time and place of trial, and was not present thereat, 23 or to restrain a judge 18. Fidelity Co. v. Beale, 102 Va. 295, 46 S. E. 307. 19. Burroughs v. Taylor, 90 Va. 55, 17 S. E. 745. 20. Hutson v. Lowry, 2 Va. Cas. 42; James v. Stokes, 77 Va. 225; City of Charleston v. Beller, 45 W. Va. 44, 30 S. E. 152. 21. James v. Stokes, supra. 22. Adams v. Jennings, 103 Va. 579, 49 S. E. 982. 23. Simmons v. Thomasson, 50 W. Va. 656, 41 S. E. 335. 780 EXTRAORDINARY LEGAL REMEDIES 396 from proceeding in a cause in which he is disqualified by reason of interest, though the court over which he presides has juris- diction of such matters. 24 The writ of prohibition, however, is issued only against a judicial tribunal, acting in a judicial ca- pacity, to prevent it from exceeding its jurisdiction, hence it will not issue against a county assessor to prevent him from issuing a liquor license, nor against a county court to prevent the establishment of election precincts or voting places, as the latter acts are not judicial. 25 Generally, the writ does not lie if the party complaining has any other adequate remedy at law. Formerly the writ of pro- hibition was not often resorted to in Virginia; the first re- ported case of a writ of prohibition which came before the Court of Appeals of Virginia being in 1855, 26 but in later years it has been of frequent use. In many jurisdictions it is prescribed as a condition precedent to the exercise of the power to issue the writ of prohibition that objection shall be interposed in the court whose action is sought to be prohibited, and that the attention of that court shall be thereby or otherwise called to its want of jurisdiction. 27 This is now regulated by statute in Virginia. Parties. Usually the petitioner for the writ is some party to the proceeding sought to be restrained, but it is said that this is by no means essential, as every citizen is interested in re- straining courts within their appropriate jurisdictions. 28 In some jurisdictions the judge of the inferior court is the only party defendant, but the general rule is to make defendants not only the judge but the other parties who are prosecuting the proceeding in his court, and it has been held in West Virginia 24. Forest Coal Co. v. Doolittle, 54 W. Va. 210, 46 S. E. 238. 25. Hawk's Nest v. Co. Ct., 55 W. Va. 689, 48 S. E. 205; William- son v. Mingo Co. Ct., 56 W. Va. 38, 48 S. E. 835. 26. Mayo v. James, 12 Gratt. 17; Hogan v. Guigon, 29 Gratt. 705. (For a list of cases after that time, see note of Judge Burks in 29 Grattan, at page 713.) 27. Note, 111 Am. St. Rep. 965-970; Education v. Holt, 51 W. Va. 435, 41 S. E. 337; Knight v. Zahnhiser, 53 W. Va. 370, 44 S. E. 778; Jennings v. Bennett, 56 W. Va. 146, 49 S. E. 231. 28. Ill Am. St. Rep. 970ff. Compare Adams v. Jennings, 103 Va. 579, 49 S. E. 982. 397 QUO WARRANTO 781 that it is error not to make a party interested a defendant to the proceeding. 29 Procedure. The procedure in Virginia is the same as in the case of mandamus, and is regulated entirely by statute. 30 This statute was discussed in the section on mandamus. It should be noticed, however, with reference to prohibition, that the statute provides that "On petition for a writ of prohibition, the court, or judge in vacation, may, at any time before or after the ap- plication for the writ is made, if deemed proper, make an order, a copy of which shall be served on the defendant, suspending the proceedings sought to be prohibited until the final decision of the cause." 31 397. Quo warranto. The writ of quo warranto is of very ancient origin. It fell into disuse at an early day, and was substituted by an informa- tion in the nature of a writ of quo warranto, hence in the modern cases the judges frequently speak of the writ of quo warranto, or of an information in the nature of such a writ. It commanded the respondent to show by what authority (quo warranto) he exercised the franchise of an office, either because there had never been any grant of the franchise, or it had been forfeited by neglect or abuse. 32 Judge Burks, in his address before the Bar Association of Virginia in 1891, says: "The proceeding by writ of quo warranto or information in the nature of a writ of quo warranto seems to have been little understood in Virginia, and has seldom been resorted to in practice; other indirect methods being often pursued when the writ or informa- tion was the appropriate method." 33 The cases in which the writ may be awarded in Virginia are set out in the statute. 34 29. Armstrong v. Taylor, 15 W. Va. 190. 30. Code, ch. 144. 31. Code, 3018. 32. 22 Am. & Eng. Encl. Law. 596-597. 33. Judge Burks' address, page 23. 34. 3022. "In What Cases, Writ of Quo Warranto Awarded. A writ of quo warranto may be awarded and prosecuted in the name of the state of Virginia, in any of the following cases, to wit: "First, Against a corporation (other than a municipal corporation) for a misuse or non-use of its corporate privileges and franchises. 782 EXTRAORDINARY LEGAL REMEDIES These seem to be substantially the same as those existing at common law, and in construing this statute, it has been held that the statute was not intended to, and does not, narrow the proceeding so as to make the writ applicable only where the in- cumbent is a mere usurper or intruder, without color or pretense of title. 35 Neither at common law, nor under the statute, is the applicant entitled to the writ as a matter of right, but whether it shall be awarded or not lies within the exercise of judicial discretion. 36 It is the appropriate method to test the title to an office, 37 but, being an extraordinary remedy, it generally does not lie where the party aggrieved can obtain full and adequate relief in the usual course of proceedings at law, or by the ordinary forms of civil action. 38 Generally a private person cannot prosecute the writ unless he has some special interest in the matter in controversy. While the proceeding is in its nature civil rather than criminal, the writ must, as a rule, be prosecuted in the name of some public officer, but may also be prosecuted at the instance of a private person, called the relator, where his interest is one in which the public is also interested or concerned. Where the interest is public, the writ may generally be prose- cuted in the name of the state at the relation of the attorney general, or the prosecuting attorney of some county or corpora- tion. In the absence of statutory provision, the mere interest of or for the exercise of a privilege or franchise not conferred upon it by law, or where a charter of incorporation has been obtained by it from a court or the state corporation commission for a fraudulent purpose, not authorized by law; "Second, Against a person for the misuse or non-use of any privi- lege and franchise conferred upon him by or in pursuance of law; "Third, Against any person or persons acting as a corporation (other than a municipal corporation) without authority of law; and "Fourth, Against any person who shall intrude into or usurp any public office. But no such writ shall be awarded or prosecuted against any person now in office for any cause which would have been available in support of a proceeding to contest the election of such person to such office." 35. Watkins v. Venable, 99 Va. 440, 39 S. E. 147. 36. Watkins v. Venable, supra. 37. Bland County Judges, 33 Gratt. 443. 38. 23 Am. & Eng. Encl. Law (2nd Ed.) 607. 397 QUO WARRANTO 783 a party as a citizen and tax-payer does not give him the right to prosecute the writ in his name as relator. Thus, where two parties are opposing candidates for the office of sheriff, and the one receiving the highest number of votes for the office disqual- ifies himself from holding the same, this fact does not confer any interest in the office on the party receiving the next highest number of votes at the election. 39 Where the writ is issued to try the title to an office the amount of the salary of the officer is wholly immaterial on a question of the jurisdiction of the Court of Appeals, as the matter in controversy is one that is "not merely pecuniary." 40 Procedure. In Virginia the application may be for either a writ of quo warranto, or an information in the nature of a writ of quo warranto. In either event, the application is by petition to the court having jurisdiction of the subject matter. The pe- tition may be filed either by the attorney general, or by any at- torney for the commonwealth of any county or corporation, or, if upon being requested, they fail or refuse to apply for the writ, any person interested may present his petition for the same. The petition must be in writing, and may be applied for to the circuit or corporation court, or to the judge thereof in vacation, and if the court adjudges it a proper case for the writ to issue, an order is made directing that the petition be filed, and award- ing a summons against the defendant to answer the same, re- turnable to the next term of court. If it is applied for by a pri- vate individual the statute provides that "it shall not be issued until the relator shall have given bond with sufficient surety (if such bond be required by the court or judge), to be approved by the clerk, in such penalty as the court or judge shall prescribe, with condition that the relator shall pay all such costs and ex- penses as may be incurred by the state in the prosecution of the writ, in case the same shall not be recovered from and paid by the defendant therein." 41 The summons is to be served as a notice is served. If the defendant fails to appear the court may hear proof of the allegations of the petition or information, and 39. State r. Matthews. 44 W. Va. 372. 29 S. E. 994. 40. Watkins v. Venable, supra. 41. Code, 3024. 784 EXTRAORDINARY LEGAL REMEDIES 398 if they be sustained shall give judgment accordingly. If the de- fendant appear before the end of the next term after the service of the writ or summons, or thereafter before judgment is ren- dered against him, he may demur, or plead not guilty, or both, to the writ, or demur or answer in writing, or both, to such in- formation, and every allegation contained in the information which is not denied by the answer shall be taken as true, and no proof thereof required. Provision is also made for reopening the case at the next term after it was decided, by a defendant who was proceeded against by publication. If the defendant is found guilty, the court is required to give such judgment as is appropriate and authorized by law, and for the costs incurred in the prosecution of the writ or information, including an at- torney's fee of not less than ten nor more than fifty dollars, to be fixed by the court. It is further provided by the statute in Virginia that if the defendant be found guilty as to a part only of the charges, the verdict shall be guilty as to such part, and shall particularly specify the same, and as to the residue of such charges the verdict shall be not guilty. 42 398. Certiorari. Certiorari is an extraordinary remedy resorted to for the pur- pose of supplying a defect of justice in cases obviously entitled to redress and yet unprovided for by the ordinary forms of pro- ceedings. It is not a proper remedy where another adequate remedy is available. 43 It is generally issued by a superior court to an inferior court of record, requiring the latter to send into the former some proceeding therein, or the record or proceed- ings in some cause already terminated, in cases where the pro- cedure is not according to the course of the common law, 44 but it has been said that it is also used in Virginia to bring up the proceedings before a justice of the peace, with a view to inquiry into their regularity. 45 This use of the writ, however, has fallen into practical disuse in Virginia. An appeal lies from the de- 42. Code, Chapter 145. 43. Poe v. Marion Mach. Wks., 24 W. Va. 517. 44. 4 Encl. PI. & Pr. 8. 45. 4 Min. Inst. 1259. 398 CERTIORARI 785 cision of a justice of the peace where the amount in controversy, exclusive of interest and costs, is greater than ten dollars, and the extensive power given to the appellate court of correcting the errors and irregularities of the justice 46 makes any use of the writ of certiorari in proceedings before a justice of the peace wholly unnecessary. In Virginia, practically the only use made of the writ of certiorari is by the Court of Appeals, to obtain a fuller or more perfect record wjien a complete record has not been furnished. After notice to the adverse party the court di- rects its clerk to issue the directions of the appellate court to the clerk of the inferior court, requiring the latter to certify to the Court of Appeals such parts of the record as the court may deem necessary and proper, and which are usually set forth in the order. In West Virginia, a much more extensive use is made of the writ than in Virginia. The use of the writ in West Vir- ginia is well set forth by Judge Snyder in Poe v. Machine Works, 24 W. Va. 520, in which he reviews all of the prior cases. 47 46. Code, 2939. 47. The proceedings upon writ of certiorari are given in McConiha v. Guthrie, 24 W. Va. 124. CHAPTER XLVI. HOMESTEADS AND EXEMPTIONS. 399. What is a homestead. 400. History of Virginia Statute. 401. Constitutional provisions. 402. Who' may or may not claim the homestead. For whose benefit. Nature of the estate. 403. What may be claimed. 404. How and when to be claimed. 405. Effect of homestead on debts or claims of creditors. 406. Waiver of the homestead. 407. Prior liens. 408. Effect of will of householder. 409. Deed of trust or mortgage. 410. Power over homestead. 411. Income, increase and betterments. 412. Excessive homestead. 413. How claims superior to homestead enforced. 414. Cessation of homestead. 415. Poor debtors' exemption. 399. What is a homestead. The word "homestead" in its usual legal significance means the house and curtilage set apart for the family residence, and exempt from forced sales for the debts of the householder. Homestead laws are wholly creatures of statute. 1 They were un- known to the common law, and, notwithstanding the many en- comiums passed upon them and the policy which dictated their enactment, the fact remains that they generally enable debtors to screen their property from the payment of their just debts ; and, whatever may be said in commendation of a statute which provides a real "home" for the family, it can hardly justify the enactment of a law which enables the debtor to claim a "home- stead" in every kind of perishable property. 1. The subject is so far statutory that the pres.ent discussion is confined almost exclusively to the Virginia statute. 400 HISTORY OF VIRGINIA STATUTE 787 400. History of Virginia statute. As the legislature of the state has power to pass any law not prohibited by the constitution of the state, or of the United States, there is no reason why a homestead may not be created as well by statute as by constitutional provision. 2 The first homestead law enacted in Virginia was an act ap- proved April 29, 1867. 3 The next homestead law in Virginia was created by the constitution of 1869, and was put into opera- tion by an act of Assembly approved June 27, 1870. The con- stitutional provision was not self-executing, but required legis- lation to put it into effect. 4 The present homestead law of Virginia was created by the constitution of 1902, and was put into operation by the Acts of 1902-3-4, page 868. The consti- tution also continued in operation to a certain extent the former homestead law, with some few modifications. 5 The homestead created by the law of Virginia is not a "home- stead" in any true sense of the word, but is an exemption, pure and simple. It may be claimed not only in real estate, but in any personal property whatever, however perishable its nature. Some important changes have been made by the present consti- tution and Acts of Assembly in pursuance thereof. In the first paragraph of 190 of the constitution, the following language is new : "If the property purchased and not paid for be ex- changed for or converted into other property by the debtor, such last-named property shall not be exempt from the payment of such unpaid purchase money under the provisions of this article." Whether or not this changed the existing law it is not material to inquiry. Under the former law, it was more than doubtful whether the homestead could be claimed in a shifting stock of merchandise. 6 It had become fixed by judicial decisions in Virginia that the 2. Hatorff v. Wellford, 27 Gratt. 356; Moran v. Clark, 30 W. Va. 358, 4 S. E. 303. 3. Acts 1866-7, page 962. 4. Oppenheim v. Myers, 99 Va. 582, 585, 39 S. E. 218. 5. Constitution of Virginia (1902), 193. 6. Rose v. Sharpless, 33 Gratt. 153; In re Tobias, 6 Va. Law Reg. 297, 302. 788 HOMESTEADS AND EXEMPTIONS 401 homestead could be claimed in property which the claimant had conveyed to another, but which conveyance had been set aside on the ground of fraud, or want of consideration. By 191 of the present constitution, it is expressly provided that "the ex- emption shall not be claimed or held in a shifting stock of mer- chandise, or in any property the conveyance of which by the homestead claimant has been set aside on the ground of fraud, or want of consideration." But after goods have been sur- rendered to a trustee in bankruptcy, they lose their shifting char- acter, and a homestead may be claimed in them. 7 If, however, the bankrupt has intermingled goods paid for with those not paid for, and seeks to claim a homestead in those paid for, the burden of proof is on the bankrupt to show which of the goods have been paid for. 8 The constitution of 1869 provided that "nothing contained in this article shall be construed to interfere with the sale of the property aforesaid, or any portion thereof by virtue of any mortgage, deed of trust, pledge or other security thereon." This provision is wholly omitted from the present constitution. The words "other security" had been several times the subject of judicial construction, and the decisions had not been harmonious. Both constitutions provide that "the General Assembly shall prescribe the manner and the conditions on which a householder or head of a family shall set apart and hold for himself and fam- ily" a homestead in his property, but that this section "shall not be construed as authorizing the General Assembly to defeat or impair the benefits intended to be conferred by the provisions of this article." 401. Constitutional provisions. It is held by some courts that where the constitution exempts a homestead "not exceeding" a certain amount to particular in- dividuals, the legislature may enlarge the amount (as in Ala- bama) while other courts hold that the exemption cannot be enlarged (as in Michigan and South Carolina). The same dif- 7. In re Tobias (D. C.), 103 Fed. 68; 6 Va. Law Reg. 297. 8. In re Tobias, supra. 402 WHO MAY OR MAY NOT CLAIM THE; HOMESTEAD 789 ference of opinion exists as to the persons entitled to claim.* In Virginia, where the constitution declares that "every house- holder or head of a family" may claim the exemption, it has been held that an act extending the right to a widow and minor chil- dren is valid. 10 It is generally held everywhere that neither by constitution nor statute can an exemption be created which .will be good against prior debts, as such provisions or enactments would be repug- nant to that clause of the constitution of the United States which prohibits a state from passing any law impairing the obligation of a contract. 11 402. Who may or may not claim the homestead. The constitution declares : "Every householder or head of a family" shall be entitled to hold, 12 while the Code declares that "Every householder residing in this state" shall be entitled to hold. There was the same difference between the constitution of 1869 and the Code. The Court of Appeals held, in construing the Act of 1870, which put into effect the constitution of 1869, that "householder" and "head of a family" had the same mean- ing in the provisions of the constitution and statutes relating to homesteads, and that in order to constitute a householder, or head of a family, there must exist the relation of dependence and support coupled with a legal or moral duty on the part of the householder to support the dependent. A mere aggregation of individuals, for example, a fraternity living together in a house, is not sufficient; the aggregation must constitute a family of which there must be a master or chief. No particular number is necessary to constitute a family, though there must, at the time the claim is made, be at least two. 13 There seems to be no restriction upon who may be a head of a family. But there must be an obligation, legal or moral, on the part of the head to sup- 9. 15 Am. & Eng. Encl. Law (2nd Ed.) 530. 10. Hatorff v. Wellford, 27 Gratt. 356; Helm v. Helm, 30 Gratt. 404. 11. Homestead Cases, 22 Gratt. 266. 12. Va. Constitution (1902), 190. 13. Calhoun v. Williams, 32 Gratt. 18; Oppenheim v. Myers, 99 Va. 582, 39 S. E. 218. 790 HOMESTEADS AND EXEMPTIONS 402 port the family, and a corresponding state of dependence on the part of those who answer the description of the family. 14 It has been held that a married woman might claim the homestead, though living with her husband, and though he contributed to the support of the family, provided she managed the house and the family, and was regarded by the family as its head, and that the circumstance that the husband assists in the support of the family -and has already claimed the benefit of the "poor law" as head of the family, will not deprive the wife of the right to claim the exemption. 15 The authorities upon the question of the right of a wife to claim a homestead, are in serious conflict, but it seems to be a rather anomalous family that can have one head to claim the "poor law" and another to claim the "homestead." 16 On the other hand, in another case, the court, without deciding whether a wife might not under some circumstances be the head of a family, decided that a married woman whose husband lives out of the state, but visits her at intervals of two or three years, and occasionally makes her small remittances of money, and who has no children dependent upon her for support, is not a house- holder or head of a family in contemplation of the constitution and the statutes passed in pursuance thereof. 17 As the constitution confers the right on a "householder or head of a family," the right to claim a homestead must be determined by the language of the constitution, and not by that of the stat- utes made in pursuance thereof. At all events, if the right is conferred by the constitution, it cannot be taken away by statute. While it is necessary that there should be a head, it is equally necessary that there should be a family. An unmarried man with no children or other persons dependent upon him, living with him, is not a householder within the meaning of the act. Doubtless, if one has legally adopted children and has assumed or had imposed upon him the duty of their support, he would be entitled to claim the exemption ; but the mere fact that one has 14. Monographic Note in 70 Am. St. Rep. 107. 15. Richardson v. Woodward (C. C. A.), 104 Fed. 873; contra, see Rosenberg v. Jett, 72 Fed. 90. 16. 6 Va. Law Reg. 526, 661; Note 70 Am. St. Rep. 111. 17. Oppenheim v. Myers, supra. 402 WHO MAY OR MAY NOT CLAIM THE HOMESTEAD 791 taken the children of another into his family, when there was no duty upon him to support them, and no dependence upon the part of the children, would not constitute him a head of a fam- ily. And even where the children are adopted, it must be done in good faith, and not merely for the purpose of giving a right to the exemption. 18 As to the effect of the destruction of the family, see infra. The words "residing in this state" were inserted in the Code, but were not in the former law. They are, however, merely declaratory of the existing law. It had been decided under the original act before the insertion of these words that the house- holder must reside in the state to be entitled to the exemption. 19 In Clendenning v. Conrad, 91 Va. 410, 21 S. E. 818, the house- holder claimed a homestead in the proceeds of the sale of real estate, and there was an order to pay the same to him, but before payment he died, and his infant children removed to West Virginia. The non-resident guardian filed his petition in the case, setting out the facts and asking permission to remove the $2,000, which represented the homestead, to the state of West Virginia, and there was a decree accordingly. Subsequently he was required to give bond and security, with condition to have the principal forthcoming on the termination of the homestead estate. But neither in the briefs of counsel, nor in the opinion of the court, is any suggestion made that the homestead termi- nated by virtue of the removal. It is possible that the counsel may have taken the view that the removal did not terminate the homestead, because infants cannot control their domicile ; and the court may have coincided in this view, or else simply con- tented itself with affording the relief prayed. At all events the point is not mentioned. For Whose Benefit. The primary object of a homestead law is to provide for the family, and to enable the person to whom the right is given to provide a home for the family, and to pro- tect them from suffering and want, but the phraseology of the different laws will have to determine who are the beneficiaries. 18. 15 Am. & Eng. End. Law (2nd Ed.) 540, 541. 19. Lindsay v. Murphy, 76 Va. 428; Blose v. Bear, 87 Va. 177, 12 S. E. 294. 792 HOMESTEADS AND EXEMPTIONS 402 Section 192 of the constitution, following the constitution of 1869, provides that the General Assembly shall prescribe the manner and conditions on which a householder or head of a fam- ily shall select and hold for himself and family a homestead. This language, it is said, makes the householder himself one of the beneficiaries, and if the right to claim the homestead by rea- son of being the head of the family existed at the time it was claimed, it is argued that it is not lost by the death of all the members of the family, except the head. 20 The language, how- ever, may mean that the householder is to enjoy the benefits of the homestead along with the family so long as the family exists, and this seems to have been the construction put upon it by the Revisers of 1887. In Judge Burks' address before the Bar Asso- ciation, 21 it is said : "The Code declares when the right of ex- emption shall cease. Among other periods fixed for its termination, it is enacted that it shall cease whenever the house- holder ceases to be such. It was assumed by the revisors, as without question, that it was competent for the legislature so to enact; but doubt is supposed to be thrown upon the correctness of the assumption by a quite recent decision of the Court of Ap- peals under the former law [referring to Wilkinson v. Merrill, supra,] in which it seems to be held that the constitution fixes the right, and that when once the property is set apart to the householder as exempt, it continues exempt to him, though he afterwards ceases to be a householder or head of a family." Nature of the Estate. Courts are much divided as to whether a homestead is an estate, or a mere privilege. It is certain that the claim of a homestead cannot in any wise improve the title of the claimant. It has been held that the homestead is a unit, and does not consist of a life estate in land with a remainder over, and that the claimant, when the law is complied with, gets the whole estate in the land ; and where a husband is the claim- ant, he has the right, his wife uniting, to sell or convey the home- stead or consume it in any other way recognized by law. This simply shows that the fee is set apart, and may be aliened or 20. 6 Va. Law Reg. 143; Wilkinson v. Merrill, 87 Va. 513, 12 S. E. 1015. 21. Judge Burks' Address, 2 Bar. L. Pr., pp. 1401, 1402. 403 WHAT MAY BE) CLAIMED 793 consumed without accountability to anyone. 22 Section 3631 of the Code provides that in order to secure the benefit of the ex- emption provided by the preceding section, the "householder" shall by writing declare his intention to claim it, etc., and in con- struing this section, it was in effect held that this was a personal privilege which the householder must himself exercise ; that he would not be compelled to do it, nor could anyone do it for him, and hence if he failed to set it apart, no homestead could be claimed during his lifetime. This seems to liken the exemption to a privilege. 23 Upon the death of a householder, who has set apart a homestead in land, his widow does not take a life estate in the land, but she and the minor children simply hold it ex- empt, as before, from liability for certain debts. Neither the constitution nor the statute giving the householder the right to claim a homestead creates or vests in either the householder or his widow any other or different estate from that which they held before. The right of the widow, upon the death of the house- holder, is a mere personal right to occupy and possess the prem- ises unaccompanied by any new or additional title to or property interest therein. The taxes on the property are not to be as- sessed against the widow as a life tenant, but are to be assessed as other real estate of the householder. 24 403. What may be claimed. The exemption may be set apart in real or personal property of the claimant, or both, including money and debts due him, to an amount not exceeding $2,000. It may be claimed in prop- erty held as joint tenant, coparcener, or tenant in common, and in equitable as well as legal estates. The only restriction put upon the claimant is that "the said exemption shall not be claimed or held in a shifting stock of merchandise, or in any property the conveyance of which by the homestead claimant has been set aside on the ground of fraud, or want of consideration." 25 22. Va.-Tenn. C. & I. Co. v. McClelland, 98 Va. 424, 36 S. E. 479. 23. Wray v. Davenport, 79 Va. 19. In Calhoun v. Williams, 32 Gratt. 18, 20, it is spoken of as a privilege. Also in Linkenhoker v. Detrick. 81 Va. 44, 56. 24. Murphy v. Richmond, 111 Va. 459, 69 S. E. 442. 25. Va. Constitution (1902), 190, 191; Code, 3630, 3631, 3632, and 3633. 794 HOMESTEADS AND EXEMPTIONS 404 404. How and when to be claimed. When the householder is alive, the exemption is to be claimed by a writing signed by him and duly admitted to record to be recorded as deeds are recorded, in the county or corporation wherein the real estate or any part thereof is, if it be claimed in real estate, or wherein he resides, if it be claimed in personal property. The writing is to describe the property selected with reasonable certainty, and have the householder's cash valuation annexed thereto. If the claim be in personal property, the val- uation is to be affixed to each parcel or article. 20 If the house- holder dies without having set apart a homestead, his widow and minor children, or such of them as there may be, may file a pe- tition in the Circuit Court of the county, or the city court of a city wherein his real estate or the greater part thereof is, to have commissioners appointed to set it apart, if it is to be set apart in real estate; if to be set apart in personalty, his widow may select and set it apart by such writing as the householder would have had to make if living; but if she die or marry, the minor children by their guardian or next friend may have it 26. Code, 3631, 3639. The Statute does not prescribe the form of the writing, but it is believed that the following form is suffi- cient : Know all men by these presents that I - - a resident of the county of in the State of Virginia, being a house- holder and head of a family, do hereby declare my intention to claim, and I do hereby select and set apart, as and for a homestead, in pursuance of the Constitution and laws of the State of Virginia, the following real and personal property, towit: The tract of land on which I now reside in the said county of containing one hundred acres, bounded and described as follows (here insert such description of the land as would be sufficient -in a deed of convey- ance) of the value of: $1000 One black horse of the value of 150 Two milch cows of the value of $50 each 100 One piano of the value of 250 $1500 All of said personal property being located on the tract of land above mentioned. Given under my hand and seal this the day of 1912. (Seal.) To be acknowledged as other deeds. 405 EFFECT ON DEBTS OR CLAIMS OF CREDITORS 795 set apart by such a writing. 27 By the Code 28 it is provided that the exemptions may be set apart at any time before the same is subjected by sale, or otherwise, under judgment, decree, order, execution or other legal process. It cannot be asserted as a mere claim, however, for the first time in the Court of Appeals after abundant opportunity to claim it has been given while the case was pending in the trial court. 29 405. Effect of homestead on debts or claims of cred- itors. By express provision of the constitution, the exemption does not extend to any execution, order or other process issued on any demand in the following cases: "First. For the purchase price of said property, or any part thereof. If the property purchased, and not paid for, be ex- changed for, or converted into, other property by the debtor, such last named property shall not be exempted from the pay- ment of such unpaid purchase money under the provisions of this article; "Second. For services rendered by a laboring person or mechanic ; "Third. For liabilities incurred by any public officer, or offi- cer of a court, or any fiduciary, or any attorney-at-law for money collected; "Fourth. For a lawful claim for any taxes, levies, or assess- ments, accruing after the first day of June, eighteen hundred and sixty-six ; "Fifth. For rent; "Sixth. For the legal or taxable fees of any public officer or officer of a court." 30 Xor, as stated above, can the exemption for any purpose be claimed in a shifting stock of merchandise, or in any property 27. Code, 3636, 3640. 28. Code, 3642. 29. Wray v. Davenport, 79 Va. 19, 25-6. 30. Va. Constitution (1902), 190. 796 HOMESTEADS AND EXEMPTIONS 405 the conveyance of which by the homestead claimant has been set aside on the ground of fraud or want of consideration. The provision making property received in exchange liable for the purchase price of the property given in exchange is new. In defining the words "laboring person" contained in the consti- tution of 1869, the Court of Appeals said: "We think it safe to say that the word 'laborer/ when used in its ordinary and usual acceptation, carries with it the idea of actual, physical, and manual exertion and toil, and is used to denote that class of per- sons who literally earn their bread by the sweat of their brows, and who perform with their own hands, at the cost of consider- able labor, the contracts made with their employers The framers of that instrument (the constitution), in giving to a large class of persons a homestead, clearly designed that it should not affect that class of persons who were dependent upon their own manual labor for the support of themselves and their families, and whose necessity for the prompt and certain pay- ment of their wages they regarded as paramount even to the claims of the debtor to a homestead." 31 Applying this definition to the case in judgment, the court held that a mail carrier was a "laboring man" within the meaning of the constitution. Since this decision the Legislature has declared that the term "labor- ing man" shall include all householders who receive wages for their services. 32 Owing to the comma contained in the constitution of 1869, immediately after the words "attorney at law" in the third ex- ception, some doubt was cast upon the proper meaning of the exception. Now, however, it seems fairly plain that the exemp- tion does not apply to any liability incurred by a public officer, officer of court, or any fiduciary, and that as to attorneys at law, as such, they are excluded from claiming the exemption only for "money collected." The constitution 33 limits the right of the householder to claim the exemption to "any execution, order or other process issued on any demand for a debt hereafter contracted." Code, 3630, 31. Farinholt v. Luckhard, 90 Va. 936, 21 S. E. 817. 32. Code, 3657. 33. Va. Constitution (1902), 190. 405 EFFECT ON DEBTS OR CLAIMS OF CREDITORS 797 says : "On any demand for a debt or liability on contract." Both expressions would seem to deny the right to claim the homestead against liabilities for torts, and such was the con- struction given to the constitution of 1869, and the act passed in pursuance thereof. 34 In determining whether a demand is for a matter of contract or tort, the court will look to the substance of the transaction and not to its mere form. For example, a breach of promise to marry is enforced in a contract action, and yet the substance of the transaction is a quasi-tort, for which there is no measure of damages, and in which exemplary dam- ages may be allowed. On the other hand, where the right of recovery in an action is based solely upon the ground that the plaintiff has been damaged to a certain amount by a breach of contract on the part of the defendant, and not by reason of a tort, although enforced in an action of trespass on the case, it is a demand founded on contract against which the homestead may be claimed. The mere use of violent language in characterizing the alleged fraud in the procurement of the contract and its breach, will not suffice to convert the breach of the contract into a tort, and, as stated, the defendant in such action may claim the benefit of the homestead exemption against the judgment rendered therein. 35 It has further been held that the claim to a homestead cannot be asserted against a demand for taxes due the state, though the claim be asserted by the sureties of an offi- cer. 36 Until recently amended, the Code 37 also excepted debts as to which the householder had waived his homestead exemp- tion. Under the recent amendment of this section, this exemp- tion has been omitted. It seems amply provided for by 3647. The homestead exemption is an exemption against liability for debts, and if the householder dies leaving a widow and heirs 34. Whiteacre v. Rector, 29 Gratt. 714, a fine due the common- wealth; Burton v. Mill, 78 Va. 468, damages for breach of promise to marry. It has been held, however, that the homestead may be claimed against a fine due the United States. This was based on the language of the U. S. statutes. Allen v. Clark (C. C. A.), 9 Va. L. Reg. 694. 35. Jewett v. Ware, 107 Va. 802, 60 S. E. 131. 36. Com. v. Ford, 29 Gratt. 683. 37. Code, 3630. 798 HOMESTEADS AND EXEMPTIONS 405 but no debts, the exemption cannot be claimed by the widow against the heirs. 38 In the case just cited, there was a widow and no children, but the court said distinctly that if there are no minor children,, she cannot hold a homestead against the adult children. In 2 Va. Law Reg. 172, it was said by the present writer: "Nothing is said about the case where the householder leaves a widow and children, some of whom are infants and others adults, but it seems to us that the plain language, both of the constitution and the Act of Assembly, gives the exemption only against creditors, and hence that the exemption cannot be claimed against the heirs in any case, if there are no creditors. While this seems to be plain, it might lead to an anomalous re- sult. If a householder owning $2,000 worth of property dies leaving a widow and two children, one an infant and the other adult, and $500 of debts ; as against the creditors the widow and infant might claim the whole $2,000 as exempt, but not as against the adult heir. If the adult heir chooses to pay off the debts, and does so, as he has the right to do being one of the heirs we presume the right to claim the homestead by the widow and in- fant is destroyed, and the estate would then be divided as if there were no debts." Since this was written, the Court of Appeals has held that, where a husband has set apart a homestead in his lifetime and then died, owing debts, and leaving a widow but no infant children surviving him, the widow is entitled to continue to hold the homestead during her life or widowhood, and cannot be deprived thereof by the payment of the husband's debts by his adult heirs. The homestead having been claimed by the husband in his lifetime, it is said that her status is fixed by the death of her husband owing debts and a homestead claimed in his life- time. 39 This is not the exact case discussed above, and it may be that a different result would follow if the debts were paid be- fore the homestead was claimed, but the reasoning of the court would probably lead to a like result as in the case cited in the margin, whether the homestead were claimed by the husband in his lifetime, or by the widow after his debts were paid by the heir. If so, the question above raised is settled in Virginia. 38. Helm v. Helm, 30 Gratt. 404. 39. Davis v. Davis, 101 Va. 230, 43 S. E. 358. 406 WAIVER OF THE HOMESTEAD 799 406. Waiver of the homestead. It is provided by 3647 of the Code that the householder may, in any bond, bill, note, or other instrument for the payment of money, or by writing thereon or annexed thereto, waive the ben- efit of his exemption either before or after it has been set apart, and that, if he does so, the property which would otherwise be exempt, may be subjected in like manner and to the same extent as other property or estate of such person, except that the waiver shall not extend to property excepted under Code, 3650, 3651, and 3652. Both the constitution of 1869 and that of 1902 are silent on the subject of waiver. A waiver clause was inserted in the Act putting into effect the constitution of 1869, and is re- tained in the present Code by 3647, which has not been amended or altered since the present Constitution went into effect. The waiver clause in the former Act of Assembly was sustained as valid, and it was deemed immaterial whether the waiver was made before or after the homestead had been set apart. 40 "Whether a homestead under the new constitution can be waived by the householder has recently been the subject of dis- cussion pro and con in the Virginia Law Register. 41 This doubt is based chiefly upon the supposed repeal, by implication, of 3647 of the Code. It is not within the purview of this chapter to settle or even to discuss the subject of controversy. Repeals by implication are not favored, and it is not believed that the sec- tion mentioned has been so repealed. The waiver, to be effectual, must be made in the bond, bill, note or other instrument, by which the householder is or may become liable for the pay- ment of money, or by a writing thereon or attached thereto. The form of the waiver is; "I (or we) waive the benefit of my (or our) exemption as to this obligation." If non- negotiable paper containing on the face of it a waiver of the homestead by the maker and endorsers is assigned by the payee thereof, the homestead is not thereby waived as to the liability of the assignor by virtue of his assignment. The waiver on the face of the paper is applicable only to the partic- 40. Reed v. Union Bank, 29 Gratt. 719; Linkenhoker v. Detrick, 81 Va. 44. 41. 10 Va. Law Reg. 363. 469, 563. 800 HOMESTEADS AND EXEMPTIONS 406 ular obligation expressed in the body of the paper, and not to the implied obligation growing out of the assignment. 42 If two or more persons are engaged, as partners, in commercial pur- suits, in which it is necessary or customary to execute negotiable paper containing a waiver of the homestead, it is believed that the signature of the firm name in the usual course of business, by any member of the firm, to such note, will be sufficient to waive the exemption of each and every member of the firm. This would seem to result from the nature of the transaction and the rights of the partners among themselves. But it seems to have been held otherwise in Alabama. 43 If the surety in a bond containing a waiver of the exemption, pays the bond, the question will arise at once, can the principal claim the homestead against the surety when called on to pay the debt? By analogy to the construction placed on the Bankrupt Act, it would seem that he may. The action is no longer on the bond, but on an implied contract which grows out of the relation of the parties. The bond has been paid, and a "bond on which principal and surety are both bound, once paid by the surety in the lifetime of the principal, without assignment by the creditor or agreement to assign, is forever dead as a security as well in equity as in law. There can be no subrogation in such a case." 44 It is somewhat singular that a married man is permitted to de- feat the homestead absolutely by a waiver of this kind, which is his sole act, but cannot by his sole act alien or encumber the property. And yet, it is manifest that the legislature intended to make such a distinction. 45 He is thus allowed to do indirectly what he cannot do directly. It is provided by the Code, 46 that, where judgment is rendered on an instrument waiving the homestead, or upon a demand su- perior to the homestead, the judgment and the execution which issues thereon shall state the fact, but that the silence of such a 42. Long v. Pence, 93 Va. 584, 25 S. E. 593, 2 Va. Law Reg. 607, and Note by Judge Burks. 43. Vincent v. Hurst, 76 Ala. 588, as cited in 9 Am. & Eng. Encl. Law (1st Ed.) 488. 44. Cromer v. Cromer, 29 Gratt. 280. 45. Va. & Tenn. Coal Co. v. McClelland, 98 Va. 424, 36 S. E. 479. 46. Code, 3649a. 407-408 EFFECT OF WILL OF HOUSEHOLDER 801 judgment or execution upon that subject shall not raise a pre- sumption of non-waiver. A judgment otherwise valid, however, is not invalidated by the fact that it erroneously states that it was rendered on an instrument waiving the homestead. 47 407. Prior liens. It has been held in Iowa and Texas that where property ac- quired the homestead character subsequent to the creation of liens or incumbrances thereon, the latter are not affected thereby. 48 The constitution of 1869, Art. XI, 3, declared, "That nothing contained in this article shall be construed to interfere with the sale of the property aforesaid or any part thereof by virtue of any mortgage, deed of trust, pledge or other security thereon." No such provision is contained in the present constitution. In construing the words "other security" in the constitution of 1869, the court held that "other security" meant security of a like char- acter, that is, such as was created by the party's own act, -and consequently that a judgment against the householder before he became such was not superior to the homestead, and that the homestead might be claimed against it. 49 Afterwards it was held that such a judgment was a security within the meaning of the constitution, thereby in effect overruling White v. Owen, cited in the margin, though no mention was made of the case. 30 In a still later case, however, the doctrine of White v. Owen was re- affirmed, and the case of Kennerly v. Swartz, cited in the margin, was overruled, so that the present holding is that the home- stead may be claimed by a householder against a judgment ob- tained against him before he became a householder. 51 408. Effect of will of householder. It would seem from the provisions of the Code, 52 permitting the widow and minor children of a householder to set apart a 47. Long v. Pence, 93 Va. 584, 25 S. E. 593. 48. 95 Am. St. Rep. 931-2, and cases cited. 49. White v. Owen, 30 Gratt. 43. 50. Kennerly v. Swartz, 83 Va. 704, 3 S. E. 348. 51. Oppenheim v. Myers, 99 Va. 582, 39 S. E. 218. 52. Code, 3636, 3640. 51 802 HOMESTEADS AND EXEMPTIONS 408 homestead in Ifis property, that he cannot, if indebted, make a will by which he can deprive them of this privilege. It is ex- pressly provided, 53 however, that if the widow receives either dower or jointure, she cannot claim the benefit of the homestead in the householder's real estate; but the rights of minor children in that event are not affected. What this language would seem to indicate is that the application must be joint, yet the language of 3637 is quite explicit and evidently contemplates a separate interest for the children in the event that the widow receives either dower or jointure. It would seem, therefore, that if she receives neither, that the application should be by the widow and infant children, but that if she has received either, the applica- tion for the homestead should be by the children only. In this event, the estate of the householder would be burdened both by the dower or jointure of the wife and the homestead in the in- fant children. While the widow who has received either dower or jointure cannot claim the homestead in her husband's real es- tate, the right to claim a homestead in the personalty is left un- affected. 54 There can be but one homestead, however, carved out of the householder's estate. Where the widow has received dower or jointure it would seem that she cannot claim a home- stead in his personal estate, if a homestead has been claimed by the minor children in the real property. If a householder who is indebted has set apart a homestead in his lifetime, he cannot by will deprive his widow and minor chil- dren of the benefit of the exemption, for it is expressly provided that, after his death, it shall be held by his widow and minor chil- dren, or such of them as there may be, exempt as before, and also from the debts and obligations of such widow and children, or any of them. 55 Inasmuch as the homestead set apart by the hus- band in his lifetime is exempt not only from his debts, but also from the debts of the widow and her minor children as well, it is doubtful whether she can claim a homestead in her property while enjoying one set apart in her husband's property. It would seem to be against public policy and the spirit of the act. It is not per- 53. Code, 3637. 54. Code, 3640. 55. Code, 3635. 409-411 INCOME, INCREASE AND BETTERMENTS 803 mitted in South Carolina. 56 It must be borne in mind that the homestead can only be claimed as against a debt or liability on contract, and if there are no such debts or liabilities, the widow and minor children cannot claim the homestead against the adult children, or other heirs. 57 409. Deed of trust or mortgage. It is provided by the Code, 58 that the real estate set apart by a householder shall not be mortgaged, encumbered or aliened by the householder, if a married man, except by the joint deed of himself and his wife admitted to record, except for the purchase price thereof, or for the erection or repair of buildings thereon. The statute is silent as to a homestead claimed in personal prop- erty. It is probable that this may be aliened or encumbered by the sole act of the householder. In Virginia it has been held that the sole deed of a husband conveying a homestead in real estate which has been set apart by him is void, and such seems to be the weight of authority. 59 410. Power over homestead. The householder has the unrestrained power of alienation and encumbrance over the homestead except as hereinbefore stated, and a court of equity will not require security to be given for the forthcoming of the articles exempted, or their value, at the ex- piration of the homestead period, either of a householder, or a widow and children after his death, although a limit is fixed to the duration of the homestead. During the homestead period, no lien in invitum attaches thereto. 60 411. Income, increase and betterments. It is expressly provided by the Code, 61 that if, at the time the 56. Lanham v. Glover, 46 S. C. 65, 24 S. E. 49. 57. Helm v. Helm, 30 Gratt. 404. 58. Code, 3634. 59. Va.-Tenn., etc., Co. v. McClelland, 98 Va. 424, 36 S. E. 479; Note, 95 Am. St. Rep. 911, 914. 60. Williams v. Watkins, 92 Va. 680, 24 S. E. 223; Mahoney v. James, 94 Va. 176, 26 S. E. 384. 61. Code, 3643. 804 HOMESTEADS AND EXEMPTIONS 413 homestead is set apart, it does not exceed $2,000 in value, the exemption thereof shall not be affected by any increase in its value afterwards, unless such increase is caused by permanent improve- ment upon the real estate set apart. This provision is taken from the West Virginia law. 62 Under the West Virginia Code, the homestead could only be claimed in real estate, and hence many of the difficulties which arise under the so-called home- stead law of Virginia do not and cannot arise under the West Virginia law. No matter how valuable the real estate thereafter may become, unless it be by permanent improvements placed thereon, it is exempt. If, for instance, the building of a railroad or other improvements in proximity to it, should greatly enhance its value, it would still be exempt. If in all respects fair in the first instance, it is probable that the discovery of valuable min- erals thereon afterwards would not affect the exemption. If, however, the property is enhanced in value by permanent im- provements, a creditor can subject the excess. Crops raised in the ordinary course of husbandry upon land previously set apart as a homestead, while they remain such, are exempt from levy to the same extent as the land itself. 63 But how about the increase of personal property? This, when well managed, generally in- creases more rapidly than real estate, and, if a liberal construc- tion is put upon this statute, all increase of personal estate is exempt. It is difficult to say what is the proper construction of this section. 64 412. Excessive homestead. It is provided by the Code, 65 that where the homestead is ex- cessive, in the first instance, or has been made excessive by im- provements upon real estate, any creditor against whom the exemption is claimed, m-ay file a bill in equity for the purpose of subjecting such excess. 413. How claims superior to homestead enforced. If a householder die leaving debts, on some of which the home- 62. Burks' Address, page 31, 2 Bar. L. Pr. 1401. 63. Neblett v. Shackleton, 111 Va. 707, 69 S. E. 946. 64. 15 Am. & Eng. Encl. Law (2nd Ed.) 592, et seq. 65. Code, 3644. 414 CESSATION OF HOMESTEAD 805 stead has been waived, and others not, and the claim of exemp- tion is asserted by his widow and infant children, that portion of his property not embraced in his homestead should be first ap- plied ratably to all of his debts, and, if not sufficient to pay them, then those creditors holding a waiver of the homestead exemp- tion may resort to the homestead for the payment of the balance of their debts ; and even if the householder be alive, a creditor holding a debt paramount to the homestead is required to exhaust the non-exempt property in the county or corporation wherein the proceeding is before resorting to that which is exempt. If, how- ever, the claim is secured by mortgage, deed of trust, or other specific lien on the real estate set apart, such security may be enforced in the first instance before resorting to the other estate of the debtor. 66 "But a judgment creditor who has the first lien on the real estate of his debtor, worth nearly $30,000, has the right to subject the same to the payment of his judgment, though his debt contains no waiver of the exemption, and the subsequent liens which are paramount to the homestead are in excess of the whole value of the land. If the judgment debtor claims the home- stead, it may be set apart to him, and the judgment be paid out of the residue, but if necessary to pay subsequent liens which are paramount to the homestead, the land so set apart should be sub- jected." 67 414. Cessation of homestead. It is provided by the Code, 68 that when any person entitled as a householder to the exemption provided for him in 3630 ceases to be a householder, or when any person removes from this state, his right to claim or hold any real estate as exempt under the Chapter on Homesteads, shall cease ; and upon the death of a householder leaving neither wife nor minor children surviving him, or, if there be a wife or minor children, then upon her death or marriage, and if there be minor children, as soon as the young- est of them who attain the age of twenty-one years attains that 66. Code, 3648; Strange v. Strange, 76 Va. 240; Scott v. Cheat- ham, 78 Va. 82. 67. Strayer v. Long, 93 Va. 695, 26 S. E. 409. 68. Code, 3649. 806 HOMESTEADS AND EXEMPTIONS 414 age, or all marry, if they marry before attaining that age, the ex- emption shall cease, and the property pass as other real and per- sonal estate, according to the law of descents and distribution, or as the same may be devised or bequeathed by said householder, subject to his debts; but that the lien of a judgment or decree for money upon a demand not paramount to the homestead shall at- tach to such only of his real estate as he may be possessed of or entitled to at the time the exemption ceases. It is said by Judge Burks, in his address, that "The main object in declaring when the exemption shall cease is to fix a time when a judgment lien shall attach to the exempted real estate, and it is declared that it shall not attach except to such real estate as the householder shall have at the time the exemption shall cease, and that it shall attach then. This leaves the householder at liberty while the ex- emption continues to alien the exempted real estate free from any encumbrance by the lien of a judgment (in the absence of waiver) recovered during the time the right of exemption ex- ists, and thus enables him to make a good title to the purchaser, at least so far as such judgment is concerned." Under the language of this section, it would seem, if there had once been a family which had ceased to exist, the homestead would likewise cease to exist. 69 It has been hereinbefore ob- served, however, that the right to the homestead is conferred by the constitution, and that the legislature is simply directed to enact the necessary legislation to carry out the provisions of the constitution, and it has been strongly argued that, as the legisla- ture was directed to prescribe the manner in which the house- holder or head of a family should set apart and hold for himself and family the homestead provided by the constitution, the leg- islature had no power to deprive the householder of his home- stead set apart when there was a family, simply on account of the fact that the family had ceased to exist as such ; and such is the holding of the court. 70 The prohibition upon the enforcement of a judgment against property set apart as a homestead, during the homestead period was not intended to suspend the running of the act of limitations 69. Calhoun v. Williams, 32 Gratt. 18. 70. Wilkinson v. Merrill, 87 Va. 513, 12 S. E. 1015. 415 POOR DEBTORS' EXEMPTION 807 during the homestead period as to judgments against the house- holder, nor to extend the life of the judgment. Hence, where a judgment rendered against the householder has become barred by the act of limitations, before the exemption period ceased, a suit to enforce the lien after the householder's death, leaving neither widow nor minor children, cannot be maintained, as the judg- ment is barred by the act of limitations applicable to judgments, and there is no deduction of any time on account of the existence of the homestead period. The statute fixing the limitation on the life of judgments contains no such exception. 71 415. Poor debtors' exemption. Section 190 of the constitution, in providing for the homestead, and also the Act of Assembly putting it into operation, each ex- pressly states that it is "in addition" to the articles now exempted from levy or distress for rent. These latter exemptions are usually spoken of as the "poor debtors' law." The exemption embraces the wearing apparel of the debtor and his family, nec- essary beds and bedding, and numerous articles of household and kitchen furniture, and a small amount of supplies. If the householder is at the time actually engaged in agricultural pur- suits, he is allowed an additional exemption in the way of work animals, necessary gearing, and certain enumerated farming utensils. 72 If the householder be a laboring man, his wages are exempt to an amount not exceeding $50.00 per month. 73 By the Code, 74 it is provided that "householder" as used in the chapter on exemptions, shall be equivalent to the expression "house- holder or head of a family;" and the term "laboring man" shall be construed to include all householders who receive wages for their services. It is not necessary to "set apart" the articles constituting this exemption by any writing. They are selected by the householder, or his agent, and are then simply held. But there must be a householder, and he must reside in this state. If the house- 71. Ackiss v. Satchell, 104 Va. 700, 52 S. E. 378. 72. Code, 3650, 3651. 73. Code, 3652. 74. Code, 3657. 808 HOMESTEADS AND EXEMPTIONS 415 holder has not all the articles enumerated in 3650 and 3651, he cannot substitute other articles in lieu of them. The enumerated articles are exempt, or "so much or so many thereof as he may have." The right to the exemption, however, is never dimin- ished by death of exempted stock, consumption, or otherwise. The householder may at all times select so many of the articles exempt as he may then have. Upon the death of the householder leaving a widow and minor children or daughters who have never married, there shall be vested in them, or such of them as there may be, absolutely, what would have been exempt to the house- holder if alive, under 3650, but not the exemption provided by 3651. 75 The exemption, when allowed, is absolute, and the property is not liable for the debts of the decedent, charges of administra- tion, or funeral expenses. 76 If there be no minor children or daughters who have never married, the widow is entitled to the exemption, whether the estate of her husband is solvent or not, and if his administrator has sold them, she is entitled to their value. 77 There is likewise exempt for the use of the family the dead victuals (or so much thereof as may be necessary) laid in by the householder for the consumption of his family ; and any live stock necessary for the use of the family may be killed for that use before sale or distribution, without any account thereof being taken by the executor or administrator. 78 The former act used the words "unmarried daughters," which was broad enough to cover widows, but 3653 says, "daughters who have never married." If there are daughters who have never married, but who do not constitute members of the house- hold at the death of the householder, it is not clear what estate, if any, they take in the property exempted by the Code. 79 The lan- guage of the section is broad enough to give them a joint interest or estate with members of the household who answer the descrip- tion of beneficiaries under the section, but the spirit of the law 75. Code, 3653. 76. Code, 3653. 77. Riggan v. Riggan, 93 Va. 78, 24 S. E. 920. 78. Code, 2649. 79. Code, 3653. 415 POOR DEBTORS' EXEMPTION 809 seems to be to provide for the "family" to furnish them the necessities of life in their hour of greatest need. It is hardly to be supposed that the legislature intended to make this provision for those who have broken their connection with the household, and yet the subject is not free from doubt. By recent amendment of the Code, 80 there is added to the list of exempted articles "twenty bushels of potatoes" and "fowls, not exceeding in value $10.00." It is also provided that the live stock exempt under this section shall not be exempt from levy or distress made under the provisions of Chapter 93 of the Code, which relates to trespasses by cattle. Nor does the poor debtor's exemption apply to taxes or the purchase price of the article set apart. 81 Payments made in weekly or monthly installments to the holder of any policy of insurance in any accident company, sick benefit company, or any company of like kind, are exempt from attach- ment, garnishment, levy or distress in any manner for any debt due by the holder of such policy. 82 It will be observed that the holder is not required to be a householder or head of a family, and this is the only case where he need not be such in order to claim the statutory exemption. The wages of a minor are not liable to garnishment nor other- wise liable to the payment of debts of his parents. 83 The wages of laboring men are also protected against garnish- ment outside of the state by penalty imposed upon the garnish- ing creditor. 84 The householder during his lifetime has the -absolute power of disposition of articles exempted under Code, 3650 and 3651, but he cannot encumber the articles exempt under 3650. It is expressly provided that any deed of trust, mortgage or other writ- ing or pledge made by a householder to give a Hen thereon shall be void as to such property. It will be observed that this restric- tion applies only to articles exempt under 3650. 85 80. Code, 3650. 81. Code, 3654. 82. Code, 3652b. 83. Code, 3652c. 84. Code, 3652a. 85. Code, 3655. 810 HOMESTEADS AND EXEMPTIONS 415 The language of the Code 86 seems to be broad enough to justify the conclusion that the householder cannot waive the benefit of the exemptions provided by 3650, 3651, 3652. But if a house- holder refuses to accept the benefit of these provisions and per- mits his property to be sold under a fi. fa., it is presumed that neither he nor his privies can thereafter assert a claim to the property as against a bona fide purchaser. If, however, the sale be under a deed of trust, he could probably reclaim the property, as the statute expressly declares such deed to be void. An injunction may be awarded to enjoin the sale of any prop- erty exempted under the provisions of the preceding sections, and to prevent wages, exempt by 3652, from being garnished, or otherwise collected by an execution creditor. 87 86. Code, 3647. 87. Code, 3656. CHAPTER XLVII. MECHANICS' LIENS. 416. Origin and development of the lien. 417. Who may take out the lien. 418. Rights of Assignee. 419. On what the lien may be taken out. 420. How lien of general contractor is perfected. The account. Description of the property. When claim of lien to be filed. 421. Remedies of sub-contractor. Independent lien. Personal liability of the owner. Benefit of general contractor's lien. 422. Protection of sub-contractor against Assignments and Gar- nishments. 423. Mechanics' lien record. 424. Conflicting liens. 425. Enforcement of lien. 426. How lien may be waived or lost. 416. Origin and development of the lien. The mechanics' lien is purely a creation of statute. It had "no existence at common law, and, independently of statute, is un- known in equity. Common law liens were inseparably con- nected with the possession of the subject of the lien, and were lost when the possession of the specific article on which the lien was claimed passed from the lien creditor. The common law recognized the right of the creditor to retain the possession of the article, created or enhanced in value by his labor, till the compensation due for his labor thereon was paid. As his labor, under contract with the owner of the chattel, had gone into the .chattel, and of course could not be separated therefrom, the workman was permitted to retain possession of the finished ar- ticle till he was paid for the labor that had become inseparably a part of it. A development of this common law lien, by which the work- man was permitted to retain possession of the chattel, which 812 MECHANICS' LIENS 416 had been increased in value by his labor and material, has pro- duced statutes providing for mechanics' liens in every state of the Union, in the provinces of Canada, and in the District of Columbia. If the workman was permitted to follow his labor and material into the chattel that he had created, or had given value to, why should not the workman and the materialman be permitted to follow his labor and supplies into the build- ings and structures, which owed their value to the industry and the material that had created the buildings and structures? If the workman might retain possession of the chattel, and so give notice to the world of his claim, preventing frauds and decep- tions on purchasers and creditors, could not the resources of the law devise some method as to a subject matter not admitting of possession, by which notice of the lien might be given to the world, and thus prevent frauds on purchasers and creditors? If the increased value of the chattel by reason of the labor be- stowed upon it, the fact that the loss of his earnings would be a greater hardship on the workman than a similar loss to other members of the community, together with the benefit conferred by his labor in increasing the resources of the country, entitled the men doing labor on, or furnishing materials for chattels, to a peculiar security not given other classes of citizens, why shpuld not the same considerations provide a lien for workmen whose labor and material went into buildings and other struc- tures, so essential to the development of a new country? These considerations would not appeal so strongly to an old and fully developed country, and consequently there is no mechanics' lien known to the laws of England today. But that such a policy is suited to the needs of our own country is shown by its universal adoption and retention here. The statutes of the various states will be found similar in many respects, though differing widely in detail. The courts in construing them have entertained very different views as to their policy. One line of decisions will be found to construe them' liberally, whilst another line of well-considered decisions will be found to require an almost literal compliance with the require- ments of the statute, as a condition of securing the benefit of the lien they provide. Probably the true rule of construction is that adopted in Virginia, declaring that the remedial portion of the 417 WHO MAY TAKE OUT A MECHANICS' LIEN 813 statute, which provides for enforcing the Hen after it is per- fected, is to be liberally construed, but that portion dealing with the right to the existence of the lien, being in derogation of the common law, \s to be strictly construed. 1 417. Who may take out a mechanics' lien. The statute provides that "All artisans, builders, mechanics, lumber dealers and other persons performing labor about or furnishing materials for the construction, repair or improvement of any building or structure permanently annexed to the free- hold, and all persons performing any labor or furnishing ma- terial for the construction of any railroad, whether they be gen- eral or sub-contractors, or laborers, shall have a lien, if perfected as hereinafter provided," etc. 2 It would seem that this statute was broad enough to include an architect, whether he simply provided the plans and specifica- tions, or, in addition to this, superintended the construction of the building, though this conclusion is not free from doubt. 3 It frequently happens as, for instance, in a case of persons performing labor or furnishing material for the construction of a railroad that persons may perfect their liens either under 2475 or 2485 of the Code. The claimant may proceed un- der either section but cannot proceed under both. When such a person has perfected his lien under one section, he cannot abandon it and proceed under the other. He is confined to the section under which he first perfects his lien. 4 The term "general contractor," as used in the mechanics' lien law, is not necessarily one who contracts for the whole build- ing, but includes all persons furnishing materials for, or doing work upon, a building, under a contract made by such person directly with the owner of the building, whether he contracted for the whole or for only a part of the work- or material. A 1. Clement v. Adams Bros.-Payne Co., 113 Va. 547, 75 S. E. 294; 20 Amer. & Eng. Enc. of Law (2nd Ed.), 278. 2. Code, 2475. 3. See 2 Jones on Liens, 1367; Stryker v. Cassidy, 76 N. Y. 50, 32 Am. Rep. 262, and note 264. 4. Code, 2485. 814 MECHANICS' LIENS 418-419 plumber, a plasterer, a carpenter, a bricklayer, a roofer and a material-man are all general contractors for the same building, if the contracts are severally made with the owner. 5 418. Rights of assignee. Whilst the assignee of a supply claim is given the same rights as the original claimant, 6 there is no such provision as to the assignee of a mechanics' lien, and the fact that a statute was deemed necessary to give such right to the assignee in the one case, might be thought to imply the absence of any such right in the assignee of a mechanics' lien, but suits to enforce mechanics' liens have been maintained by assignees in several cases. 7 In the first two cases cited in the margin, the lien seems to have been perfected prior to the assignment, but in the other case it was perfected by the assignee, and it is now settled law in Virginia that whenever the assignor may take out a mechanics' lien, the assignee may perfect it and prosecute a suit in equity in his own name to enforce it. 419. On what the lien may be taken out. The lien is given upon "such building or structure and so much land therewith as shall be necessary for the convenient use and enjoyment of the premises, and upon such railroad and fran- chise." The common law lien in favot of the workman upon the arti- cle into which his work has gone, has found a rational develop- ment by statute in the lien in favor of the workman on the house into which his work has gone, and, as the house would be use- less without the support of the land on which it is built, the lien has been extended, not to other land of the owner, but only to "so much land therewith as may be necessary for the convenient use and enjoyment of the premises." The lien on the land arises purely out of the lien on the house, and if the lien on the house 5. Merchants & Mechanics Savings Bank v. Dashiell, 25 Gratt. 616; Boston, etc., Co. v. Ches. & O. R. Co., 76 Va. 180. 6. Code, 2487. 7. Pairo v. Bethell. 75 Va. 825; laege v. Bossieux, 15 Gratt. 83; Bristol Iron & Steel Co. v. Thomas, 93 Va. 396. 419 ON WHAT THE UEN MAY BE TAKEN OUT 815 ceases, as> for instance, by the destruction of the house by fire, whilst the lien would still exist upon the brick, iron and other materials not destroyed by the fire, it would seem that, under our statute, as the land was no longer "necessary for the con- venient use and enjoyment" of these remnants, when the de- struction had been so complete as to leave them valuable only for material, the lien on the land would cease. The question has never arisen under our statute, and the decisions under the stat- utes of other states are conflicting. The conflict seems, however, to arise principally out of the difference in the provisions of the various statutes on this subject. 8 It has been held that, in the absence of proof to the contrary, a small lot in a town is necessary to the convenient use and en- joyment of the building put upon it. 9 The holder of a mechanics' lien has an insurable interest, which he may protect by taking out a policy in his own name, and it would seem on principle that, even where the policy is obtained by and in the name of the owner of the property, ,on the de- struction of the building, the money might take its place, and the lienholder 10 might be subrogated to the same interest in the in- surance money that he had in the building, which, by its destruc- tion, has been converted into insurance money, but the weight of authority is the other way. 11 The material must be "furnished for the construction, repair and improvement" of some building. Therefore, if a material man sell lumber to a contractor on general account, and not for use in any particular building, he has no lien on the building in which it may afterwards be used. 12 Again, the lien is specific and exists upon such building or structure as the claimant has furnished material for, or per- formed labor upon. Therefore, where materials are furnished 8. See 2 Jones on Liens, 1538-1540, and cases cited in notes; Phillips on Mechanics' Liens, 12 and 42; Vol. 42, p. 319, of Cen- ral Law Journal, where the adjudged cases are cited and discussed. 9. Pairo v. Bethell, 75 Va. 825. 10. Wyman v. Wyman, 26 N. Y. 253. 11. See 2 Jones on Liens, 1541; Phillips on Mechanics' Liens, 9, and cases there cited. 12. 2 Jones on Liens, 1325. MECHANICS' UENS 419 under one contract for several buildings, and the prices paid for the different buildings are specified, there must be several liens on each building. The amount due for labor and material used in one house cannot constitute a lien upon another house in which it was not used. 13 But if under one contract several build- ings are to be erected, and an entire price is charged, there must be a joint lien on all the buildings for the whole amount. The lien must follow the contract. 14 Under a former statute, prior to the amendment hereinafter mentioned, it was held that the claimants had no statutory lien against a railroad company, and that if railway companies were within the provisions of the mechanics' lien law, which question the court did not pass upon, in order to obtain the benefit of the lien against the railroad in its entirety, the required memoran- dum and account would have to be filed in the proper clerk's office of every county and corporation through which the road passed. 15 Under the present statute, a lien is given upon such railroads and their franchises, and a method of perfecting such lien is prescribed in detail by the statute. 16 Where the property on which the lien is sought lies within the jurisdiction of a corporation court, or of the chancery court of the city of Richmond, but outside the city limits, the lien must be recorded in the clerk's office of the circuit court of the county. It cannot be recorded in the city. 17 From considerations of public policy, liens frequently cannot be taken out on property which would fairly come within the class covered by the terms of the statute; the general rule being that a mechanics lien can be taken out on no property, the sale of which would be against public policy. Mechanics' lien laws do not apply to public buildings or structures erected by states, cities and communities for public use, unless the statute creating the lien expressly so provide. 18 13. Oilman v. Ryan, 95 Va. 494, 28 S. E. 875. 14. 2 Jones on Liens, 1310-14; Id., 1326 and 1337; Sergeant v. Denby, 87 Va. 206, 12 S. E. 402. 15. Boston, etc., Co. v. Ches. & O. R. Co., 76 Va. 180. 16. Code, 2475, 2476. 17. Boston, etc., Co. v. Ches. & O. R. Co., 76 Va. at p. 185. 18. Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. 596. On the 420 HOW UEN OF GENERAL, CONTRACTOR IS PERFECTED 817 Churches are not exempt from mechanics' lien on grounds of public policy. 19 It would scarcely seem necessary to have declared, 20 that where the lien is for repairs only, no lien shall attach to the property repaired, unless the said repairs were ordered by the owner or his agent, since this would seem to be the law independently of such a provision. It is not believed that, by either building or repairing, a man can be improved out of his property, without his consent. The statute 21 expressly provides that if the person who shall cause the building or structure to be erected or repaired owns less than a fee simple estate in the land, only his interest therein shall be subjected to the mechanics' lien. 22 420. How lien of general contractor is perfected. 23 The statute provides that the general contractor shall file, in subject of exemptions from public policy, see 2 Jones on Liens, 1375-1381; Phillips on Mechanics' Liens, 179-183. On sub-contract- ors' rights, see Phillips, 179a; Frank v. Chosen Freeholders, 39 N. J. 347; Whiting v. Story County (Iowa), 37 Am. Rep. 189; Loving v. Small (Iowa), 32 Am. Rep. 136; Leonard v. City of Brooklyn, 71 N. Y. 498, 27 Am. Rep. 80; and valuable note to La Crosse, etc., R. Co. v. Vanderpool, 78 Am. Dec. 696-97. 19. Note to La Crosse, etc., R. Co. v. Vanderpool, 78 Am. Dec. 696. In Trustees of Franklin St. Church v. Davis, 85 Va. 193, 7 S. E. 245, the question was not considered, but it was held that the lien had been lost for other reasons. 20. Code, 2475. 21. Code, 2483. 22. See, also, Carter v. Keeton, 112 Va. 307, 71 S. E. 554. 23. Section 2476 of the Code provides: "A general contractor, in order to perfect the lien given by the preceding section, shall at any time after the work is done and the material furnished by him and before the expiration of sixty days from the time such building, structure, or railroad is completed, or the work thereon otherwise terminated, file in the clerk's office in the county or corporation in which the building, structure or railroad, or any part thereof is, or in the clerk's office of the chancery court of the city of Richmond, if the said building, structure or railroad, or any part thereof, is within the corporation limits of said city, an account showing the amount and character of the work done or materials furnished, the 52 818 MECHANICS' UENS 420 the clerk's office of the circuit or corporation court of the county or corporation in which the building, structure or railroad, or any part thereof, is, or in the clerk's office of the chancery court of the city of Richmond, if the building, structure or railroad is within the corporate limits of the city, (1) an account showing the amount and character of the work done, or materials fur- nished; the prices charged therefor; the payments made, if any, and the balance due this account to be verified by the oath of the claimant, or his agent; (2) a statement attached to the ac- count declaring the contractor's intention to claim the benefit of the mechanics' lien, and (3) a brief description of the property on which he claims the lien. The clerk is required to record these papers in a book to be kept for that purpose, called the "Mechanics' Lien Record," and to index the same as well in the name of the claimant of the lien as the owner of the property, and it is declared that "from the time of such filing all persons shall be deemed to have notice thereof." The words quoted would seem to indicate that if the claimant files in the proper clerk's office the papers above mentioned, duly verified, he will be entitled to a lien, whether the clerk ever records them or not, just as a deed which is duly admitted to record is effective whether it is ever in fact recorded or not, but there has been no decision upon this branch of the statute. The Account. Where it does not appear that the materials furnished by a contractor for a building were contracted for at an agreed sum, an account, which fails to show the prices charged for the items of which the account is composed, is insufficient to sustain a mechanics' lien. The omission of the prices charged prices charged therefor, the payments made, if any, and the bal- ance due, verified by the oath of the claimant or his agent with a statement attached, declaring his intention to claim the benefit of said lien and giving a brief description of the property on which he claims the lien. It shall be the duty of the clerk in whose office such account or statement shall be filed, as hereinbefore provided, to record same in a book to be kept for that purpose, called the mechanics' lien record, and to index the same in the name as well of the claimant of the lien as of the owner of the property, and from the time of such filing all persons shall be deemed to have notice thereof." 420 HOW UEN OF GENERAL CONTRACTOR IS PERFECTED 819 is not a mere inaccuracy in the account, but is an entire failure to give the information which the statute requires. Hence, a statement, "Amount of estimate, $450.00," or "To balance of account rendered, for work and labor done, and material fur- nished, for your house," is not in compliance with the statute requiring an account to be filed showing the prices charged. 24 If, however, the work or the material has been contracted for at a gross sum, and this is set out in the account filed, all the information is given that is needed, or that can reasonably be required. 25 Although the statute requires the payments, if any, on the ac- count to be also stated, yet, where a credit for machinery pur- chased by the debtor, as well as some other credits known to the debtor, are omitted, the lien is not thereby invalidated when it does not appear in the record that the contractor knew, at the time of filing his account, just what the credits were, or the amounts thereof, and if the account is as true an account as can be made under the circumstances it is sufficient. 26 No particular form of verification of the account is prescribed, and the certificate of a notary at the foot of the account filed, that the contractor personally appeared before him in his county or city and made oath to the correctness of the account, is a sufficient verification under the statute. 27 Description of the Property. It is sufficient "if the property can be reasonably identified by the description given." 28 When Claim of Lien to Be Filed. The lien must be perfected after the work has been done, or the materials furnished, and before the expiration of sixty days from the time such building, 24. Brown v. Cornwell, 108 Va. 129, 60 S. E. 623; Oilman v. Ryan, 5 Va. 494, 28 S. E. 875; Shackleford v. Beck, 80 Va. 573. 25. Taylor v. Netherwood, 91 Va. 88, 20 S. E. 888. 26. Rison v. Moon, 91 Va. 384, 22 S. E. 165. See, also, Richlands Hint Glass Co. r. Hiltebeitel, 92 Va. 91, 22 S. E. 806. 27. Taylor v. Netherwood, 91 Va. 88, 20 S. E. 888. For form of iccount and affidavit, and of declaration of intention to claim lien, see notes to 2476, Code 1904. 28. Taylor v. Netherwood, 91 Va. 88, 20 S. E. 888; Richlands Flint Mass Co. z: Hiltebeitel, 92 Va. 91, 20 S. E. 806; Jones on Liens, L421; Code, 2478. 820 MECHANICS' WENS 420 structure or railroad is completed, or the work thereon other- wise terminated. The lien must not be taken, out too soon, nor deferred too late. Impatience and delay are equally dangerous. If taken out too soon, or too late, the lien is void. 29 The statute does not undertake to say how much work shall be done or materials furnished during the sixty days reserved for the taking out of the lien. The building may have been sub- stantially done for more than sixty days, but if the "finishing touches" have been put on in that time, it is sufficient, provided that the work done within the sixty days was done in good faith for the purpose of completing the contract, and not for the pur- pose of extending the time during which the lien might be taken out. 30 In the case of Trustees of Franklin Street Church v. Davis, 85 Va. 193, 7 S. E. 245, the lien was filed November 5, 1885. The claimant testified that the work was substantially completed in the first days of November, 1884; that he did no work on the building from November, 1884, till August, 1885 ; that he had returned and put on the "finishing touches" August 20, 1885, and contended that the time for perfecting the lien, ninety days at that time, ran from the latter date. The "finishing touches" were topping off the chimneys and penciling the brick work. The court held that the time ran from the substantial completion of the building, and not from the putting on of the "finishing touches," because the parties, by their dealings and agreement, had fixed the earlier period as the time of the com- pletion of the building. The court said : "It was competent for the parties to agree that the work should be considered as com- pleted before what may be called the "finishing touches" were actually put upon it ; and in view of the agreement between them, of which the collection of the second payment and the charge and receipt of interest is evidence, the complainant was entitled to file his lien in the office on the first day of November." It would 29. Moore v. Rolin, 89 Va. 107, 15 S. E. 520. 30. See Jones on Liens, 1427 and 1444; Nichols v. Culver, 51 Conn. 177; McCarthy v. Groff, 48 Minn. 325, 51 N. W. Rep. 218; Bruce v. Berg, 8 Mo. App. 204; 15 Am. & Eng. Ency. Law (1st Ed.) 149, and cases there cited. 421 REMEDIES OF SUB-CONTRACTOR 821 seem that the parties by their agreement had changed the time for the running of the lien, from the putting on of the "finishing touches" (the time from which it would have otherwise run) by the receipt of the second payment, in November, 1884, which was to be made when the building was completed, and by the calculation of interest from that date. Where the last charge on the bill was for work for the month of October, and the lien was taken out on November 8, it was held that it sufficiently appeared that the lien was taken out within the thirty days required by the statute. 31 Where nothing to the contrary appears, a running account is regarded as due at the date of the last item. 32 All the statutory provisions for a mechanics' lien are indis- pensable, and the omission of any one of them is fatal. 33 421. Remedies of sub- contractor. The sub-contractor is given three different methods by which he may secure the payment of the amount due him. He may (1) file his independent lien; (2) he may take steps to hold the owner of the building personally responsible; or (3) he may have the benefit of the lien taken out by the general contractor. Independent Lien. If the sub-contractor wishes to take out his independent lien, he may do so by doing just what the gen- eral contractor is required to do, and, in addition, give notice in writing to the owner of the property, or his agent, of the amount and character of his claim ; but the amount secured by this lien cannot exceed the amount in which the owner is indebted to the general contractor at the time the notice is given, or shall there- after become indebted to the general contractor upon his con- tract with him for such structure, building or railroad ; and when 31. Richlands Flint Glass Co. v. Hiltebeitel, 92 Va. 91, 20 S. E. 888. 32. Osborne v. Big Stone Gap Colliery Co., 96 Va. 58, 30 S. E. 446. For cases where the lien was filed too late, see Boston, etc., Co. v. Ches. & O. R. Co., 76 Va. 180; Harrison & Bro. v. Homeopathic Asso., 134 Penn. St. 558, 19 Am. St. Rep. 714. 33. Trustees Franklin Street Church v. Davis, 85 Va. 193, 7 S. E. 245; Shackleford v. Beck, 80 Va. 573; Davis v. Alvor, 94 U. S. 545; S. V. R. R. Co. v. Miller, 80 Va. 821. 822 MECHANICS' UENS 421 labor has been performed, or work done, or material furnished for one who is himself a sub-contractor, then the person claim- ing the lien shall also give a like notice to the general contractor, provided that the amount for which a lien may be perfected by such person shall not exceed the amount for which such sub- contractor could himself claim a lien under the statute. 34 The right of the sub-contractor does not extend to what be- comes due for extra work not covered or contemplated by the original contract, and paid for by the owner as soon as com- pleted ; nor does the failure of the owner to retain a percentage of the contract price, when he is authorized to do so by the terms of his contract with the contractor, render the owner liable to a sub-contractor for the per cent, of the contract price he might have retained. The provision is for the benefit of the owner, and not for the benefit of the sub-contractor. 35 Personal Liability of the Owner. If the sub-contractor is satisfied with the personal liability of the owner, he may render him personally liable for his claim in the following manner: First : He must give notice in writing to the owner, or his agent, stating the nature and character of his contract and the probable amount of his claim. 36 This preliminary notice need not be given "before performing the work or furnishing the ma- terials to a general contractor," 37 but may be given (a) before the work is done, or the materials furnished, or (b) whilst the work is being done, or material is being furnished, but probably not after the work has been done, or material has been fur- nished. 38 This notice must (1) be in writing, (2) must be given 34. Code, 2477. As to the form of the notice, it has been held that, when the account is sufficient, and a copy thereof, together with a statement of intention to claim the lien, is served on the owner within the time prescribed by the statute, it is sufficient no- tice to the owner. Taylor v. Netherwood, 91 Va. 88, 20 S. E. 888. 35. Schrieber v. Citizens Bank, 99 Va. 257, 38 S. E. 134. 36. Code, 2479. 37. The words quoted in 2479 of the Code of 1887 were stricken out by the amendment of Acts, 1893-94, p. 523. 38. Steigleder v. Allen, 113 Va. 686, 75 S. E. 191. When Roanoke L. & I. Co. v. Karn & Hickson, 80 Va. 589; S. V. R. R. Co. v. Miller, Idem. 821, and N. & W. R. R. Co. -v. Howison, 81 Va. 125, were de- 421 REMEDIES OF SUB-CONTRACTOR 823 to the owner, or his agent, and (3) must state (a) the nature and character of the contract and (b) the probable amount of the claim. Second : After the work is done, or the material is furnished by the sub-contractor, and before the expiration of thirty days from the time such building, structure or railroad is completed, or the work thereon otherwise terminated, the sub-contractor must furnish (1) to the owner of the building, structure or rail- road, or his agent, and also (2) to the general contractor, a cor- rect account of his claim against the general contractor for the work done, or material furnished, showing the amount, due, and this account must be verified by affidavit. This account and af- fidavit may be given at any time between the finishing of the sub-contractor's work, or the furnishing of his material, and thirty days after the completion of the building or structure. It is not necessary that the sub-contractor shall wait till the build- ing is completed. 39 If these requirements are complied with, the owner becomes personally liable for the amount due from the general contractor to the sub-contractor, provided that amount does not exceed the sum the owner owes the general contractor at the time the notice is given, or afterwards owes him by virtue of his contract. There is no obligation on the owner to protect the sub-contractor, unless the latter has complied with the provisions of the mechanics' lien law. 40 A sub-contractor who has complied with the provisions of the statute 41 fixing a personal liability on the owner, is to be paid in cided, the statute did not require the probable amount of the claim to be stated as the present statute does. The present statute re- quires the account and affidavit not the notice, to be furnished after completion. The amount due would no longer be probable, after the work had been done or the material had been furnished. See, how- ever, note to 2479 of Pollard's Code, Vol. 3. 39. Norfolk & W. R. Co. v. Howison, 81 Va. 125; Roanoke L. & I. Co. v. Karn & Hickson, 80 Va. 589; Shenandoah R. Co. v. Miller, 80 Va. 821. 40. Schrieber v. Citizens Bank, 99 Va. 257, 38 S. E. 134; University of Va. v. Snyder. 100 Va. 567. 42 S. E. 337. 41. Code, 2479. 824 MECHANICS'" UENS 421 full before those who claim liens on the property receive any- thing. 42 Where a sub-contractor refuses to do work, or furnish ma- terial, unless the owner will agree to pay him, it seems that, if the contractor cannot have the work done in a reasonable time, and the owner is thus compelled to guarantee bills of sub-con- tractors, the owner is entitled, both as against the general con- tractor and other sub-contractors, to deduct the amounts for which he has thus become responsible. 43 The statute 44 gives a simple and satisfactory method of settling disputed accounts be- tween the general contractor and sub-contractor when a personal liability in favor of the latter has been fastened on the owner, and affords full protection to the owner. It provides for an ar- bitration, in which one arbitrator shall be selected by the general contractor and another by the sub-contractor, and, in case of their disagreement, an umpire to be selected by the arbitrators; and if either party refuses to select an arbitrator, then the mat- ter is to be settled by an action at law. 45 The statute giving the lien to sub-contractors declares that the term "sub-contractor" shall include "all contractors, and labor- ers, and mechanics, and those furnishing materials, as provided in 2475 of the Code and Acts amendatory thereof, other than general contractors." 46 Benefit of General Contractor's Lien. The sub-contractor is given a third remedy dependent on the action of the general con- tractor in taking out a lien. 47 When the general contractor has perfected his lien, the sub-contractor may obtain the benefit thereof, to the extent of his debt, by a written notice of his claim against the general contractor to the owner, or his agent, before the amount of the general contractor's lien is paid off or discharged. 42. Schrieber v. Citizens Bank, 99 Va. 257, 38 S. E. 134. 43. Schrieber v. Citizens Bank, supra. 44. Code, 2480. 45. Kirn v. Champion Iron Fence Co., 86 Va. 608, 10 S. E. 885; Norfolk & W. R. Co. v. Howison, 81 Va. 125; Roanoke L. & I. Co. v. Karn & Hickson, 80 Va. 589. 46. Code, 2477. 47. Code, 2482. 422 PROTECTION OF SUB-CONTRACTOR 825 422. Protection of sub-contractor against assignments and garnishments. The statute 48 provides that no assignment of a debt, or any part thereof, due or to become due to a general contractor, for the construction, erection or repairing of any building, structure or railroad, shall be valid or enforceable by the assignee, until the claims of all sub-contractors, supply men and laborers against the general contractor, for labor performed, or materials furnished, in and about the construction, erection and repairing of such building, structure or railroad, shall have been satisfied, unless the sub-contractors, supply men and laborers give their consent in writing to the assignment, and if the owner, without such written assent, makes payment to such assignee, such pay- ment affords the owner no protection against sub-contractors, supply men and laborers who have not been paid for work done or material furnished about the building, structure or railroad for which the payment is made. The statute 49 further provides that the debt due the general contractor from the owner cannot be subjected by any creditor of the general contractor, whose debt arose in any other manner than in the construction, repair- ing or erection of such building, structure or railroad for such owner, until all the sub-contractors, supply men and laborers shall have been paid for their labor performed and material fur- nished in and about the construction, erection or repairing of such building, structure or railroad. It will be observed that the ow r ner must exercise much more care in dealing with an assignee than with the contractor. He is safe in making payments to the general contractor, so long as he has no written notice of the debt due the sub-contractor, whilst if he pays the assignee, the owner must see at his peril that all sub-contractors, laborers and supply men are paid, or that they give their written assent to the assignment, though he may have no possible means of ascertaining who they are. This statute, however, does not prohibit payments by the owner to an assignee whose claim is due from the general contractor for material or work furnished for the erection of the building, on 48. Code, 2482a, cl. 1. 49. Code. 2482a, Clause 2. 826 MECHANICS' UENS 423-424 account of which the owner is indebted. By such payments the contract price of the building goes to those who did the work and furnished the material, which is just what the act was in- tended to accomplish. 50 423. Mechanics' lien record. The memorandum prescribed by the statute having been filed with the clerk, it is made the duty of that official 51 to record the same in a book to be kept by him for that purpose, called "Me- chanics' Lien Record," and to index the same in the name as well of the claimant of the lien as of the owner of the property, and from the time of such filing all persons are deemed to have notice thereof. It may be observed that the mechanics' lien must be recorded in "a book kept by the clerk for that purpose," whilst a supply lien must be recorded in the deed book. 62 Attention is again called to the fact that the statute seems to give notice of the lien to all persons from the filing of the lien, whether it is ever actually recorded or not. 424. Conflicting liens. The statute, 53 in its practical application, gives rise to some problems exceedingly difficult of solution, not because of the terms of the statute, but because of the subject with which it undertakes to deal. It first deals with the case of a person having less than a fee simple estate in the land on which is situated the building or structure erected or repaired, and provides that only his interest therein shall be subject to the mechanics' lien. In the matter of conflicting liens on the property, the statute provides for the following cases : First : Where the lien was created on the land before the work was begun, or the materials were furnished, it is the first 50. Schrieber v. Bank, 99 Va. 257, 38 S. E. 134. 51. Code, 2476. 52. Code, 2485 and 2486. 53. Code, 2483. 424 CONFLICTING LIENS 827 lien on the land, and the second lien on the building or structure, and when the property is sold, the lien or encumbrance created first is preferred in the distribution of the proceeds of sale only to the extent of the estimated value of the land at the time of the sale, which value must be fixed before the sale, exclusive of the value of the building or structure. In other words, the first lienor has the prior lien on so much of the purchase money as corresponds to the estimated value of the land at the time of the sale, without the building, whilst the claimant under the me- chanics' lien law has the first lien upon the remainder of the purchase money. The scheme of distribution is a preference, not a ratio. 5 * Second: Where the lien or encumbrance on the land was created after the work was commenced, or the materials fur- nished, the lien in favor of the person performing the work, or furnishing the material, is prior both as to the land and the building. laege v. Bossieux, 15 Gratt. 83, was decided before the me- chanics' lien statute had undertaken to deal with the question of priorities. There a building fund company agreed to advance to one of its members money to build a house on his lot. A lien was taken upon the lot, and the buildings to be erected upon it, to secure the advances made and to be made. The mechanics' lien was then recorded, and subsequently the balance of the loan was paid to an assignee of the mechanic, with the knowledge on his part that it came from the building fund company, and that the building fund company claimed priority for its lien on the property. The court held that the company was entitled to priority over the mechanics' lien for the advances made after the lien was recorded, as well as for those made before. It would seem that under the peculiar circumstances of the case the same result would follow now, as the deed of trust went to record before the work was begun, and the money paid out after the work was begun was secured in it and was paid by the deed of trust creditor directly to the claimant, who received it know- ing that the deed of trust creditor asserted a priority over him. 54. Fid. L. & T. Co. v. Dennis, 93 Va. 504, 25 S. E. 546. 828 MECHANICS' UENS 425 425. Proceedings to enforce mechanics' liens. It is provided by statute that mechanics' liens may be en- forced in equity; that there shall be no priority among them, except that the lien of a sub-contractor shall be preferred to that of his general contractor, and that, when a suit is brought to enforce such lien, all parties entitled to such liens on the property, or any part thereof, may come in by petition with the same effect as though each petitioner had brought an independ- ent suit. 55 It is further provided by statute that no suit to en- force such lien "shall be brought after six months from the time when the whole amount covered by such lien has become pay- able; provided, however, that the filing of a petition to enforce any such lien in any suit wherein such petition may be properly filed shall be regarded as the institution of a suit." 56 This is a limitation of the right, and not merely of the remedy ; and hence a bill seeking to enforce such lien must affirmatively show on that the suit is brought within the time prescribed by the stat- ute, else it will be bad on demurrer. 57 But although the bill does not allege that the suit was brought in six months after the whole account had become payable, yet if it does allege the dates on which the bill sued on became due, the court will take judicial notice of the time when the suit was instituted; and if it thus appears that the bill was filed within six months after the whole account became payable, the bill will be good, and a demurrer thereto will be overruled. 58 If a suit be brought by a sub-con- tractor to enforce a mechanics' lien which has been duly recorded, and the general contractor is made a party defendant, and his recorded lien is properly set forth in the bill, such suit stops the act of limitation from running, not only on the complainant's lien, but also on the lien of the general contractor and all claim- ing as contractors under him, and operates to suspend any fur- ther suit by any one or more of them during the pendency of the suit instituted by the sub-contractor. 59 If a suit to enforce a 55. Code, 2484. 56. Code, 2481. 57. Savings Bank v. Powhatan Clay Co., 102 Va. 274, 46 S. E. 294. 58. Sands v. Stagg, 105 Va. 444, 52 S. E. 633. 59. Spiller v. Wells, 96 Va. 598, 32 S. E. 46. 425 PROCEEDINGS TO ENFORCE MECHANICS' LIENS 829 mechanics' lien is brought within due time against the debtor upon whose property the lien rests, the failure to implead sub- sequent lienors within six months does not defeat the lien so far as such encumbrances are concerned. They are proper, but not necessary parties to such suit, and may be brought in at a sub- sequent time. 60 Usually, the statute of limitations is a personal defence, and can be relied on only by the debtor, but it has been held in Vir- ginia that, in suits to enforce a mechanics' lien, although the defendant is still living, one creditor may set up the statute against the claims of another. 61 When a court of equity has obtained jurisdiction of the sub- ject-matter, by virtue of the statute giving jurisdiction in me- chanics' lien cases, it goes on to adjust the rights of all the par- ties, to allow compensation for defects, to determine priorities of liens, to give relief in cases of part performance, and to grant complete relief. 62 60. Monk v. Exposition Corp., Ill Va. 121, 68 S. E. 280. 61. McCartney v. Tyrer, 94 Va. 198, 26 S. E. 419. For criticism of this case, see ante, 223. 62. laege v. Bossieux, 15 Gratt. 83; Bailey Construction Co. v. Pur- cell, 88 Va. 300, 13 S. E. 450; Rison v. Moon, 91 Va. 384, 22 S. E. 165; Taylor v. Netherwood, 91 Va. 88, 20 S. E. 888; Pace v. Moorman, 99 Va. 246, 37 S. E. 911. Kirn v. Champion Iron Fence Co., 86 Va. 608, 10 S. E. 317, and Norfolk & W. R. Co. v. Howison, 81 Va. 125, were both actions of assumpsit to enforce personal liability of owner, and rules were laid down as to what must be, and what need not be, averred and proved by the claimants. The first case was decided by a court of three judges, Lewis, P., and Hinton, J., being absent. Of the three judges who sat in the case, Richardson, J., dissented from the opinion of the court sus- taining a demurrer to the declaration, because the performance of the contract in the time agreed on between the general contractor and the sub-contractor was not averred and proved. The latter case held that it need not be alleged or proved in a suit by a sub-contractor that the account was approved by the general contractor, or that, after ten days' notice, he had failed to object to it, or that the same had been ascertained to be due to the sub-con- tractor according to sec. 6, chap. 115 of Code of 1873. All these were deemed to be matters of defence, and constituted no part of plain- tiff's statement of his case. 830 MECHANICS' UENS 425 In a suit to enforce a mechanics' lien, real property of value should be sold on a reasonable credit, unless peculiar circum- stances take it out of the rule, and these circumstances should appear on the record. 63 A sale for cash enough to pay the amount of the lien is proper when that amount is but a small proportion of the whole value of the property. 64 There is no requirement that property shall be rented out to pay off a mechanics' lien, and it would seem in all cases where the claimant has established his lien that he is entitled to a sale, but a decree for renting has been affirmed on appeal. The ap- peal, however, was by the owner, and the contractor does not seem to have insisted on his right to a sale. 65 It has been held that, although a bill was filed by a sub-con- tractor to enforce his lien against the real estate of the owner, yet if the account was established, and the owner admitted funds in his hands and his readiness to pay, it would be a vain and use- less act to subject property to the payment of the lien, and that it Was not error to give a personal decree against the owner and the general contractor for the amount of the account. 66 Upon a bill to enforce a mechanics' lien and asking for a personal decree against the owner, the general contractor and his assignee, and for general relief, although the plaintiff failed to establish his mechanics' lien, he may have a personal decree against the as- signee of the general contractor for the amount found to be due to the sub-contractor from the assignee. 67 So, also, in a suit by a general contractor against the owner to enforce his mechan- ics' lien, to which the party with whom he contracted is made a defendant, although it shall appear that the general contractor is not entitled to a lien because the person causing the improve- ments to be made was neither the owner of the property nor the agent of the owner, yet the general contractor may take a per- 63. Pairo v. Bethell, 75 Va. 825. 64. Lester v. Pedigo, 84 Va. 309, 4 S. E. 703. 65. Rison v. Moon, 91 Va. 84, 22 S. E. 165. 66. Taylor v. Netherwood, 98 Va. 88, 20 S. E. 888. See note by Judge Burks, 1 Va. Law Reg. 34-36, stating what decree should have been entered in the case. 67. Johnston v. Bunn, 108 Va. 490, 62 S. E : 341. 426 HOW A MECHANICS' LIEN MAY BE WAIVED OR LOST 831 sonal decree against the person with whom he contracted for the amount shown to be due. 68 426. How a mechanics' lien may be waived or lost. When the claimant undertakes to enforce his mechanics' lien he may find that he has lost it in any one of a variety of ways. 69 Amongst the most common methods by which the mechanic loses -his lien are: (1) By not bringing suit within six months after the whole of the amount covered by the lien has become payable; (2) by agreement; (3) by estoppel; (4) by the con- tractor's abandoning the contract; (5) by taking security; (6) by destruction of the building. The question as to whether a mechanics' lien is waived by taking additional security is frequently an interesting one. It would seem that in this state, following the analogy of the de- cisions in reference to the release of vendors' liens and other securities, the question of the waiver or release of the lien is dependent upon the intention of the parties, as gathered from all the circumstances surrounding the transaction. Taking a personal judgment against the person liable for the debt secured by the lien does not operate as a release or merger of the lien any more than the taking of a personal judgment on a debt se- cured by a vendor's lien, or a deed of trust. The remedies upon the debt and security are distinct and concurrent, and either or both may be pursued. 70 Taking the debtor's negotiable note, the maturity of which does not extend beyond the time within which a lien may be asserted, in the absence of an express agreement to that effect, does not amount to a waiver of the right of the lien, but the negotiable note must be produced at the trial, or the debtor secured against its subsequent production, or the lien can- not be enforced. 71 If, however, the note extends the credit be- 68. Carter v. Keeton, 112 Va. 307, 71 S. E. 554. 69. Code, 2481; 2 Jones on Liens, Chapter 38; Phillips on Me- chanics' Liens, Chapter 272. 70. 2 Jones on Liens, 1622, and cases cited. 71. 2 Jones on Liens, 1532-1537, and cases cited; Steamboat Charlotte v. Hammond, 9 Mo. 58, 43 Am. Dec. 536; Bailey v. Hull, 11 Wis. 289, 78 Am. Dec. 706; McMurray v. Taylor, 30 Mo. 363, 77 Am. Dec. 611; Phillips on Mechanics' Liens, 276-8. 832 MECHANICS' LIENS yond the six months fixed by- the statute for the institution of the suit to enforce the lien, no suit can be brought till the note is due; and, as the limitation fixed by the mechanics' lien statute then applies, the taking of the note maturing more than six months after the time when the whole amount covered by the lien has become payable would operate as a virtual waiver of the lien. 72 In such cases it would frequently become an inter- esting question to determine when "the whole amount covered by such lien has become payable." This would generally appear from the lien itself, and it is certainly eminently wise and just that creditors and purchasers from the owner who, by an ex- amination of the recorded lien, found themselves protected against suits by the expiration of the six months fixed by stat- ute, should not be put in peril by the owner's giving evidences of debt extending the statutory period for the suit. In the case of laege v. Bossieux, 73 the suit was brought under a statute providing that the lien shall not be in force more than six months from the time when the money, or the last instal- ment of the money to be paid under the contract, shall become payable, unless a suit in equity to enforce the lien shall have been commenced within the said six months, and the court held that the suit might be brought after the first instalment had fallen due, without waiting for the remaining instalments to become due, and that a sale might be decreed for the payment of all the instalments that had fallen due up to the time of the decree, with leave to the claimant to obtain satisfaction out of the surplus, if any there might be, for the instalments not due at the time of the decree. It has been held in Kentucky, Mississippi, Massachusetts and probably other states, that the taking of a note maturing after the time fixed by statute for bringing a suit to enforce a me- chanics' lien, operates as a waiver of the lien, and it is believed that the same rule will be applied in Virginia. 74 Of course, the 72. 2 Jones on Liens, 1535-6; laege v. Bossieux, 15 Gratt. 83; Trustees Franklin Street Church v. Davis, 85 Va. 193, 7 S. E. 245. 73. 15 Gratt. 83. 74. Pryor v. White, 16 B. Mon. Rep. 605; Jones v. Alexander, 10 Sm. & M. 627; McClallan v. Smith, 11 Cush. (65 Mass.) 238. The first two of these cases are commented on without disapproval in laege v. Bossieux, 15 Gratt. 83. 426 HOW A MECHANICS' LIEN MAY BE WAIVED OR LOST 833 claimant will not have any lien if he fails to perfect it within the time and manner prescribed by the statute. 75 Where collateral security is taken for the debt for which a mechanics' lien may be taken out, the question of a waiver or release depends upon the intention of the parties, and it is be- lieved that in this State there is no waiver unless the intention of the party entitled to waive it be clearly shown. 76 75. Trustees of Franklin St. Church v. Davis, 85 Va. 193, 7 S. E. 245. 76. Bearing on this question, see Coles v. Withers, 33 Gratt. 186; Smith v. Blackwell, 31 Gratt. 291; Brockenbrough v. Brockenbrough, 31 Gratt. 580; Morriss v. Harveys, 75 Va. 726. S3 PART II Stephen's Rules of Pleading CHAPTER XLVIII. PRINCIPAL RULES OF PLEADING. 427. Object of pleading Principal rules of pleading. 428. Materiality of issue. 428a. Singleness of issue. 429. Certainty of issue. 427. Object of pleading Principal rules of pleading. The account of the course of an action being now concluded, and a view thus obtained of the general form and manner of pleading, and its connection with other parts of the suit, it is next proposed to investigate its principal or fundamental rules, and to explain their scope and tendency as parts of an entire system. For this purpose, some observations shall be premised, relative to the manner in which that system was formed, and the objects which it contemplates. The manner of allegation in our courts may be said to have been first methodically formed, and cultivated as a science in the reign of Edward I. From this time, the judges began systematically to prescribe and enforce certain rules of state- mot t, of which some had been established at periods consid- erably more remote, and others apparently were then, from time to time, first introduced. None of them seems to have been orig- inally of legislative enactment, or to have had any authority except usage or judicial regulation; but from the general per- ception of their wisdom and utility, they acquired the character of fixed and positive institutions, and grew up into an entire and connected system of pleading. This system, which in its essential parts still remains in practice unaltered, appears to have been originally devised in a view to certain objects or results, which it will be necessary 'to the right apprehension of the sub- ject of this chapter here to explain. The pleadings (as appears in the preceding chapters) are so conducted as always to evolve some question, either of fact or law. disputed between the parties and mutually proposed and 838 PRINCIPAL RULES OF PLEADING 427 accepted by them as the subject for decision; and the question so produced is called the issue. As the object of all pleading or judicial allegation is to ascer- tain the subject for decision, so the main object of that system of pleading established in the common law of England, is to as- certain it by the production of an issue. And this appears to be peculiar to that system. To the best of the author's information, at least, it is unknown in the present practice of any other plan of judicature. In all courts, indeed, the particular subject for deci- sion must, of course, be in some manner developed before the de- cision can take place; but the methods generally adopted for this purpose differ widely from that which belongs to the English law. By the general course of all other judicatures, the parties are allowed to make their statements at large (as it may be called) and with no view to the extrication of the precise question in controversy; and it consequently becomes necessary, before the court can proceed to decision, to review, collate, and consider the opposed effect of the different statements, when completed on either side, to distinguish and extract the points mutually ad- mitted, and those which, though undisputed, are immaterial to the cause, and thus, by throwing off all unnecessary matter, to arrive at length at the required selection of the point to be decided. This retrospective development is, by the practice of most courts, pri- vately made by each of the parties for himself, as a necessary medium to the preparation and adjustment of his proofs; and is also afterwards virtually effected by the judge, in the discharge of his general duty of decision; while, in some other styles of pro- ceeding, the course is different, the point for decision being se- lected from the pleadings by an act of the court or its officer, and judicially promulgated prior to the proof or trial. The common law of England differs (it will be observed) from both methods, by obliging the parties to come to issue ; that is, so to plead, as to develop some question (or issue) by the effect of their own alle- gations, and to agree upon this question as the point of decision in the cause, thus rendering unnecessary any retrospective opera- tion on the pleadings, for the purpose of ascertaining the matter in controversy. The author is of opinion that this peculiarity of coming to is- sue, took its rise in the practice of oral pleading. It seems a nat- 427 OBJECT OF PLEADING PRINCIPAL RULES OF PLEADING 839 ural incident of that practice to compel the pleaders to short and terse allegations, applying to each other by way of answer, in somewhat of a logical form, and at length reducing the contro- versy to a precise point. For while the pleading was merely oral, and not committed by any contemporaneous record to writing (a state of things which may be distinctly traced among the yet ex- tant archives of the early continental jurisprudence), the court and the pleaders would have to rely exclusively on their memory for retaining the tenor of discussion ; and the development of some precise question or issue would then be a very convenient prac- tice, because it would prevent the necessity of reviewing the dif- ferent statements, and leave no burden on the memory, but that of retaining the question itself so developed. And even after the practice of recording was introduced, the same brief and logical forms of allegation would naturally continue to be acceptable, while the pleadings were still viva voce, and committed to record on the inconvenient plan of contemporary transcription. A co-operative reason for coming to issue, was the variety of the modes of decision which the law assigned to different kinds of questions. The various modes enumerated in the first chapter as still recognized in practice, were (with several others now abolished) in full vigor and observance in the days of oral pleading; and evidently made it necessary to settle publicly be- tween the parties, the precise point on which their controversy turned. For on the nature of this depended the very manner of the subsequent decision, and the form of proceeding to be insti- tuted for that purpose. As questions of law were decided by the judges, and matters of fact were referred to other kinds of inves- tigations, it was, in the first place, necessary to settle whether the question in the cause, or issue, was a matter of law or fact. Again, if it happened to be a matter of fact, it required to be de- veloped in a form sufficiently specific to show what was the method of trial appropriate to the case. And unless the state of the question were thus adjusted between the parties, it is evident that they would not have known whether they were to put them- selves on the judgment of the court, or to go to trial; nor, in the latter case, whether they were to prepare themselves for trial by jury, or for one of the other various modes of deciding the mat- ter of fact. 840 PRINCIPAL RULES OF PLEADING 428 To the opinion that this distinctive feature of the English pleading was derived from the practice of oral allegation, and from that of applying different forms of trial to the determina- tion of different kinds of questions, it may perhaps, be objected, that both these practices anciently prevailed, not only in England, but among the continental nations ; among whom, nevertheless, the method of coming to issue is now unknown. This objection, however, is capable of a satisfactory answer. On the continent, the ancient system of judicature, of which these practices formed a part, was, at early periods, supplanted by the methods of the civil law in which the pleadings were written (a) and there was but one form of trial, viz, a trial by the judge himself, upon examination of instruments and witnesses adduced in evidence before him. On the other hand, in the courts of Westminster, the law of trial still remains without material alteration ; and with respect to oral pleading, though it at length grew out of fashion there, it gave place, not to allegations formed upon the principles of the imperial practice, but to supposed transcriptions from the record; the effect of which (as explained in the first chapter) has been to preserve in these written pleadings the style and method of those which were delivered viva voce at the bar of the court. But whatever may be the origin and reason of the method of coming to issue, it is at least certain that that method has been substantially practiced in the English pleading, from the earliest period to which any of the now existing sources of information refer ; and from the work of Glanville on the laws of England, it may clearly be shown to have existed, in effect, in the reign of Henry 2. The term itself, of "issue," though, perhaps, somewhat less ancient, yet occurs as early as the commencement of the Year- Books, viz, in the first year of Edward 2 ; and from the same period, at least, if not an earlier one, the production of the issue has been not only the constant effect, but the professed aim and object of pleading. 428. Materiality of issue. It was not, however, the only object. It was found, that though the parties should arrive at an issue, that is, at some point (a) Fortescue de laud., ch. 20. 428a SINGLENESS OP ISSUE 841 affirmed on one side and denied on the other, and mutually pro- posed and accepted by them as the subject for decision, it might yet happen that the point was immaterial; that is, unfit to decide the action. This, of course, rendered the issue useless. When it occurred, the proper remedy, as in the practice of the present day, was a repleader. But it was also naturally an object to avoid its occurrence, and so to direct the pleadings as to secure the pro- duction not only of an issue, but a material one. 42 8a. Singleness of issue. Again, it was found to be in the nature of many controversies, to admit of more than one question fit to decide the action; or, in other words, actions would often tend to more than one material issue. This might happen, in the first place, in causes which in- volved several distinct claims. Thus, if an action be brought, founded on two separate demands, for example, two bonds exe- cuted by the defendant in favor of the plaintiff, the issue may arise, as to one of them, whether it be not discharged by the sub- sequent release, as to the other, whether it were not executed un- der duress of imprisonment which would make it avoidable in law. So, there may be more than one material issue in causes which involve only a single claim. Thus, in an action brought upon one bond only, two issues of the same kind may arise viz, whether it were not executed under duress of imprisonment ; or whether, at any rate, it were not, after its execution, released by the plaintiff. In the case of several claims, justice clearly requires that if the cause tend to several issues distinctly applicable to each, these several issues should all be raised and decided; for other- wise there would be no determination of the whole matters in de- mand. But in case of a single claim, the same consideration does not apply ; for the decision of any one of the material issues that may arise upon it, will be sufficient to dispose of the entire claim. Thus, in the first example given, the finding that one bond was re- leased, or that it was not released, would leave the demand on the other wholly untouched. On the other hand, in the second ex- ample, if the party be put to his election, either to rely on the fact of the execution under duress, or on the release, either of the questions which he so elects will lead to an issue sufficient to de- 842 PRINCIPAL RULES OF PLEADING 429 cide the whole claim. While several issues, therefore, must of necessity be allowed in respect of several subjects of suit, the al- lowance of more than one issue in respect of each subject of suit, is, in some degree, a question of expediency. Those who founded the system of pleading took the course of not allowing more than one; and the motives which led to this course are sufficiently ob- vious. For reasons assigned in another place, it was of consid- erable importance to the judges, in those remote times, when the contention was conducted orally, to simplify and abbreviate the process as much as possible; and it was in this view, no doubt, that it was found expedient to establish the principle of confining the pleaders to a single issue in respect of each single claim, al- lowing, at the same time, from necessity, of several issues, when each related to a distinct subject of demand. But whatever the reason, it is clear that, in point of fact, this principle was very early recognized in pleading, and that the issue was required not only to be material, but single. 429. Certainty of issue. There was still another quality essential to the issue that of certainty. This word is technically used in pleading, in the two different senses of distinctiveness and particularity. It is here em- ployed in the latter sense only ; and when it is said that the issue must be certain, the meaning is that it must be particular or specific, as opposed to undue generality. One of the causes, which have been above assigned for the practice of coming to issue, made it also necessary to come to is- sue with some degree of certainty. The variety of modes of deci- sion required that the issue should be sufficiently certain to show whether the point in controversy consisted of law or fact; and if the latter, so far to show its nature as to ascertain by what form of trial it ought to be decided. But a certainty still greater than this was required by a cause of another kind ; viz, the nature of the original constitution of the trial by jury. It is a matter clear beyond dispute (but one that has perhaps been too little noticed in works that treat of the origin of our laws) that the jury an- ciently consisted of persons who were witnesses to the facts, or at least in some measure personally cognizant of them ; and who, consequently, in their verdict, gave not (as now) the conclusion 429 CERTAINTY OF ISSUE 843 of their judgment, upon facts proved before them in the cause; but their testimony as to facts which they had antecedently known. Accordingly the venire facias, issued to summon a jury in those days, did not (as at present) direct the jurors to be summoned from the body of the county, but from the immediate neighbor- hood where the facts occurred, and from among those persons who best know the truth of the matter. And the only means that the sheriff himself had of knowing what was the matter in con- troversy, so as to be in a condition to obey the writ, appears to have been the venire facias itself ; which then stated the nature of the issue instead of being confined (as now) to a short statement of the form of the action. (&) In this state of things, it was evi- dently necessary that the issue should be sufficiently certain to show specifically the nature of the question of fact to be tried. Unless it showed (for example) at what place the alleged matter was said to have occurred, it would not appear into what county the venire should be sent, nor from what neighborhood the jury were to be selected. So, if it did not specify the time and other particulars of the alleged transaction, the sheriff would have no sufficient guide for summoning, in obedience to the venire, per- sons able of their own knowledge to testify upon that matter. For all these reasons, and probably for others also, connected with the general objects of precision and clearness, (c) it was consid- ered as one of the essential qualities of the issue that it should be certain, and the certainty was generally to be of the degree indi- cated by the preceding considerations. In modern times, as the jurors have ceased to be of the nature of witnesses, and are taken generally from the body of the county, it is no longer necessary to shape the issue for the information of the summoning officer, and, accordingly the venire facias no longer even sets the issue forth. But as the parties now prove their facts by the adduction of evi- dence before the jury, and have consequently to provide them- selves with the proper documents and witnesses, it is as essential that they should each be Apprised of the specific nature of the question to be tried, as it formerly was that the sheriff should be so instructed ; and the particularity which was once required for (b) Vide Bract., pp. 309b, 310a, etc. (c) Bracton, 431a. 844 PRINCIPAL RULES OF PLEADING 429 the information of that officer, now serves for the guidance of the parties themselves in preparing their proof s.(rf) On the whole, therefore, the author conceives the chief objects of pleading to be these that the parties be brought to issue, and that the issue so produced be material, single, and certain, in its quality. In addition to these, however, the system of pleading has always pursued those general objects also, which every enlightened plan of judicature professes to regard the avoidance of ob- scurity, and confusion, of prolixity and delay. Accordingly, the whole science of pleading, when carefully analyzed, will be found to reduce itself to certain principal or primary rules, the most of which tend to one or other of the objects above enumer- ated, and were apparently devised in reference to those objects; while the remainder are of an anomalous description, and appear to belong to other miscellaneous principles. It is proposed in the following chapters, to collect and investigate these principal rules, and to subject them to a distribution, conformable to the distinctions that thus exist between them in point of origin and object. The following chapters will therefore treat : I. Of rules which tend simply to the production of an issue. II. Of rules which tend to secure the materiality of an issue. III. Of rules which tend to produce singleness or unity in the issue. IV. Of rules which tend to produce certainty or particularity in the issue. V. Of rules which tend to prevent obscurity and confusion in pleading. VI. Of rules which tend to prevent prolixity and delay in plead- ing. VII. Of certain miscellaneous rules. The discussion of these principal rules will incidentally involve the consideration of many other rules and principles, of a kind subordinate to the first, but extensive, nevertheless, and impor- tant in their application ; and thus will be laid before the reader an entire, though general, view of the whole system of pleading, and of the relations which connect its different parts with each other. () Thus, to allege, as in the example given that E. B. was seized for life, would be to deny by impli- O) 3 Reeves' Hist. 432; Bac. Ab., Pleas, etc., H. 1; Courtney v. Phelps, Sid. 301; Herring v. Blacklow, Cro. Eliz. 30; 10 Hen. 6, 7, PI. 21. 440 ESSENTIALS OF SPECIAL TRAVERSE 861 cation only, that the reversion belonged to him in fee; and there- fore, to avoid argumentativeness, a direct denial that the re- version belonged to him in fee is added under the formula of absq-ue hoc. * * * * * [The conclusion with a verification, instead of to the country, was rendered necessary by another rule of pleading to be here- after discussed, declaring it improper for a plea which introduces new matter to tender issue, and hence it was necessary for it to conclude with a verification.] 440. Essentials of special traverse. * * * * * First, it is a rule, that the inducement should be such as in itself amounts to a sufficient answer in substance to the last pleading. (q) For (as has been shown) it is the use and object of the inducement to give an explained or qualified denial ; that is, to state such circumstances as tend to show that the last pleading is not true; the absque hoc being added merely to put that denial in a positive form, which had previously been made in an indirect one. Now an indirect denial amounts in substance to an answer ; and it follows, therefore, that -an inducement, if properly framed, must always in itself contain without the aid of the absque hoc, an answer, in substance, to the last plead- ing. Thus, in the example given the allegation that E. B. was seized for life, and that that estate is since determined, is in itself, in substance, a sufficient answer, as denying by implication that the fee descended from E. B. on the plaintiff. That sort of special traverse containing no new matter in the inducement, * * is no exception to this rule. Thus, to say, * * * that the defendant, of his own wrong made an assault, etc., is of itself an answer ; for it indirectly denies that notice was given of the warrant. It follows from the same consideration, as to the object and use of a special traverse, that the answer given by the induce- (q) Bac. Ab. (H.) 1; Com. Dig., Pleader (G. 20); Anon., 3 Salk. 353; Dike r. Ricks, Cro. Car, 336. 862 PRODUCTION OF ISSUE 440 ment can properly be of no other nature than that of an indirect denial. Accordingly we find it decided, in the first place, that it must not consist of a direct denial. Thus, the plaintiff, being bound by recognizance to pay J. Bush 300 in six years, by 50 per annum, at a certain place, al- leged that he was ready every day at that place to have paid to Bush the said 50, but that Bush was not there to receive it. To this the defendant pleaded, that J. Bush was ready at the place to receive the 50, absque hoc that the plaintiff was there ready to have paid it. The plaintiff demurred, on the ground that the in- ducement of this traverse alleging Bush to have been at the place ready to receive, contained a direct denial of the plaintiff's prec- edent allegation that Bush was not there, and should therefore have concluded to the country without the absque hoc; and judg- ment was given accordingly for the plaintiff, (r) Again, as the answer given by the inducement must not be a direct denial, so it must not be in the nature of a confession and avoidance. (s) Thus, if the defendant makes title as assignee of a term of years of A., and the plaintiff in answer to this, claims under a prior assignment to himself from A. of the same term, this is a con- fession and avoidance; for it admits the assignment to the de- fendant, but avoids its effect, by showing the prior assignment. Therefore, if the plaintiff pleads such assignment to himself by way of inducement, adding, under an absque hoc, a denial that A. assigned to the defendant, this special traverse is bad.(f) The plaintiff should have pleaded the assignment to himself, as in confession and avoidance, without the traverse. Again, it is a rule with respect to special traverses, that the opposite party has no right to traverse the inducement, (M) or (as the rule is more commonly expressed) that there must be no traverse upon a traverse. (v) Thus, in the example given, (r) Hughes v. Phillips, Yelv. 38; and see 36 Hen. 6, 15. CO Com. Dig., Pleader (G. 3); Lambert v. Cook, Lord Ray. 238; Helier v. Whytier, Cro. Eliz. 650. (0 Com. Dig., Pleader (G. 3); Helier v. Whytier, Cro. Eliz. 650. (M) Anon., 3 Salk. 353. (?) Com. Dig., Pleader (G. 17); Bac. Ab., Pleas, etc. (H. 4); The King v. Bishop of Worcester, Vaughan, 62; Digby v. Fitzharbert, Hob. 104. 440 ESSENTIALS OF SPECIAL TRAVERSE 863 if the replication, instead of taking issue on the traverse, were to traverse the inducement, either in the common or the special form, denying that E. B. at the time of making the indenture was seized in his demesne as of freehold, for the term of his natural life, etc., such replication would be bad, as containing a traverse upon a traverse. The reason of this rule is clear and satisfactory. By the first traverse, a matter is denied by one of the parties, which had been alleged by the other, and which, having once alleged it, the latter is bound to maintain, instead of prolonging the series of the pleading, and retarding the issue, by resorting to a new traverse. However, this rule is open to an important exception, viz, that there may be a traverse upon a traverse, when the first is a bad one;(w) or (in other words,) if the denial under the absque hoc of the first traverse be in- sufficient in law, it may be passed by, and a new traverse taken on the inducement. Thus, in an action of prohibition, the plain- tiff declared that he was elected and admitted one of the common- council of the city of London ; but that the defendants delivered a petition to the court of common-council complaining of an undue election, and suggesting that they themselves were chosen ; whereas (the plaintiff alleged) the common-council had no ju- risdiction to examine the validity of such an election, but the same belonged to the court of the mayor and aldermen. The defendants pleaded that the common-council, time out of mind, had authority to determine the election of common-councilmen ; and that the defendants being duly elected, the plaintiff intruded himself into the office; whereupon the defendants delivered their petition to the common-council, complaining of an undue elec- tion; tt'ithout this, that the jurisdiction to examine the validity of such election belonged to the court of the mayor and alder- men. The plaintiff replied by traversing the inducement ; that is, he pleaded that the common-council had no authority to determine the election of common-councilmen, concluding to the country. To this the defendant demurred, and the court adjudged that (w) Com. Dig., Pleader (G. 18, 19); Thrale v. Bishop of London, 1 H. Bl. 376; Richardson v. Mayor of Oxford, 2 H. Bl. 186; King qtii tarn v. Bolton, Stra. 116; Cross v. Hunt, Carth. 99. 864 PRODUCTION OF ISSUE 440 the first traverse was bad; because the question in this prohibi- tion was not whether the court of aldermen had jurisdiction, but whether the common-council had; and that the first traverse being immaterial, the second was well taken, (^r) As the inducement cannot, when the denial under the absque hoc is sufficient in law, be traversed, so, for the same reasons, it cannot "be answered by a pleading in confession and avoidance. But, on the other hand, if the denial be insufficient in law, the opposite party has then a right to plead in confession and avoid- ance of the inducement, or (according to the nature of the case) to traverse it ; or he may demur to the whole traverse, for the insufficiency of the denial. As the inducement of a special traverse, when the denial under the absque hoc is sufficient, can neither be traversed nor con- fessed and avoided, it follows that there is in that case no manner of pleading to the inducement. The only way, therefore, of answering a good special traverse is to join issue upon it. [i. e., plead to the absque hoc.] But though there can be no plead- ing to an inducement, when the denial under the absque hoc is suf- ficient, yet the inducement may be open in that case to exception in point of law. If it be faulty in any respect, as (for example) in not containing a sufficient answer in substance, or in giving an answer by way of direct denial, or by way of confession and avoidance, the opposite party may demur to the whole traverse, though the absque hoc be good for this insufficiency in the in- ducement, (y) [The effect of the special traverse is to postpone the issue to one stage of the pleading later than it would be by traverse in the common form, and that was one reason for its adoption by de- fendants, but by the rules of court of Hilary Term, 1834, it was provided that the plea should conclude to the country, and by statute in Virginia, adopted many years ago, following the above rules, it is declared that "All special traverses, or traverses with an inducement of an affirmative matter, shall conclude to the country, but this regulation shall not preclude the opposite (.*) King qui tarn v. Bolton, Stra. 117. Cv) Com. Dig., Pleader (G. 22); Foden v. Raines, Comb. 245. 441 TRAVERSES IN GENERAL 865 party from pleading over to the inducement when the traverse is immaterial." 5 The greater portion of the author's discussion of the special traverse is given (though much is omitted), more for the purpose of showing the subtlety of the ancient pleaders than on account of its present utility. It is not believed that it is necessary to re- sort to a special traverse in any case, though occasionally in- stances of it are found in practice, even at the present day.] 6 441. Traverses in general. The different kinds or forms of traverse having been now ex- plained, it will be proper next to advert to certain principles which belong to traverses in general. The first of these that may be mentioned, is, that it is the na- ture of a traverse, to deny the allegations in the manner and form in which it is made ; and, therefore, to put the opposite party to prove it to be true in manner and form, as well as in general ef- fect. Accordingly it has been shown that he has often exposed at the trial to the danger of a variance, for a slight deviation in his evidence from his allegation. This doctrine of variance, we now perceive to be founded on the strict quality of the traverse here stated. On this subject of variance, or the degree of strictness with which in different instances, the traverse puts the fact in is- sue, there are a great number of adjudged cases involving much nicety of distinction ; but it does not belong to this place to en- ter into it more fully, as it has been already sufficiently discussed in a preceding part of this work. The general principle is that which is here stated, that the traverse brings the fact into ques- tion, according to the manner and form in which it is alleged; and that the opposite party must consequently prove that in sub- stance, at least, the allegation is accurately true. The existence of this principle is indicated by the wording of a traverse ; which, when in the negative, generally denies the last pleading, modo et forma, "in manner and form as alleged. "(.ra) This will be found .ra. But notwithstanding the words modo et forma it is enough to 5. Section 3267, Code. 6. See Townsend v. Norfolk, etc., R. Co., 105 Va. 22, 52 S. E. 970. 866 PRODUCTION OF ISSUE 442 to be the case in all the preceding examples, except in the general issue non est factum, and the replication de injuria, which are almost the only negative traverses that are not pleaded modo et forma. These words, however, though usual, are said to be in no case strictly essential, so as to render their omission cause of de- murrer. (2) It is naturally a consequence of the principle here mentioned, that great accuracy and precision in adapting the allegation to the true state of the fact, are observed in all well drawn plead- ings ; the vigilance of the pleader being always directed to these qualities, in order to prevent any risk of variance or failure of proof at the trial, in the event of a traverse by the opposite party. 442. Traverse on matter of law. Again, with respect to all traverses, it is laid down as a rule, that a traverse must not be taken upon matter of law. (a} For a denial of the law involved in the preceding pleading, is, in other words, an exception to the sufficiently of that pleading in point of law; and is, therefore, within the scope and proper province of a demurrer, and not of a traverse. Thus, where to an action of trespass for fishing in the plaintiff's fishery, the defendant plead that the locus in quo was an arm of the sea, in which every sub- ject of the realm had the liberty and privilege of free fishing, and the plaintiff, in his replication, traversed that, in the said arm of the sea, every subject of the realm had the liberty and privilege of free fishing, this was held to be a traverse of a mere inference of law, and therefore bad.(&) Upon the same principle, if a matter be alleged in pleading, "by reason whereof" (virtute cu- prove the substance of the allegation. See Litt. Sec. 483; Doct. PI. 344; Harris v. Ferrand, Hardr. 39; Pope v. Skinner, Hob. 72; Car- rick v. Blagrave, 1 Brod. & Bing. 536. As to the effect of these words, as covering the whole matter of the allegation traversed, see Wetherill v. Howard, 3 Bing. 135. O) Com. Dig., Pleader (G. 1); Nevie and Cook's Case, 2 Leo. 5. (a) 1 Saund. 23; Doct. PI. 351; Kenicot v. Bogan, Yelv. 200; Prid- dle & Napper's Case, 11 Rep. lOb; Richardson v. Mayor of Oxford, 2 H. Bl. 182. (b) Richardson v. Mayor of Oxford, 2 H. Bl. 182; Hobson v. Mid- dleton, 6 B. & C. 297. 443 MATTER NOT ALLEGED MUST NOT BE TRAVERSED 867 jus) a certain legal inference is drawn, as that plaintiff "became seized," etc., or the defendant "became liable, etc., this virtute cu- jus is not traversable;(c) because, if it be intended to question the facts from which the seizin or liability is deduced, the trav- erse should be applied to the facts, and to those only ; and if the legal inference be doubted, the course is to demur. But, on the other hand, where an allegation is mixed of law and fact, it may be traversed. (d) For example, in answer to an allegation, that a man was "taken out of prison by virtue of a certain writ of ha- beas corpus," it may be traversed that he was taken out of prison by "virtue of that writ."(>) So, where it was alleged in a plea, that, in consequence of certain circumstances therein set forth, it belonged to the wardens and commonalty of a certain body cor- porate, to present to a certain church, being vacant, in their turn, being the second turn and this was answered by a special trav- erse without this, that it belonged to the said wardens and commonalty to present to the said church at the second term, when the same become vacant, etc., in manner and form as al- leged the court held the traverse good, as not applying to a mere matter of law, "but to a matter of law," or rather "of right, re- sulting from facts. "(/) So it is held, upon the same principle, that a traverse may be taken upon an allegation that a certain person obtained a certain church by simony, (g) 443. Matter not alleged must not be traversed. It is also a rule, that a traverse must not be taken upon matter not alleged. (h) The meaning of this rule will be sufficiently ex- plained by the following cases. A woman brought an action of (c) Doct. PI. 351; Priddle & Napper's Case, 11 Rep. lOb. (rf) 1 Saund. 23, note 5, and see the instances cited; Bac. Ab., Pleas, etc., p. 380, note b (5th Ed.); Beal v. Simpson, 1 Lord Ray. 412; Grocer's Co. v. Archbishop of Canterbury, 3 Wils. 214. (?) Beale v. Simpson, 1 Lord Ray. 412; Treby, C. J., cont. (/) Grocer's Co. v. Archbishop of Canterbury, 3 Wils. 214. (g) Ibid.; Rast. Ent. 532a; and see this subject copiously dis- cussed in Lucas v. Nockells, 4 Bing. 729, and in 1 Mo. & Pa. 783 (in error). See also, Hume v. Liversedge, 1 Cromp. & Mel. 332. (/?) 1 Saund. 312d, note 4; Doct. PI. 358; Cross v. Hunt, Garth. 99; Powers v. Cook, 1 Lord Ray. 63; 1 Salk. 298. 868 PRODUCTION OF ISSUE: 443 debt on a deed, by which the defendant obliged himself to pay her 2001. on demand if he did not take her to wife ; and alleges in her declaration, that though she had tendered herself to marry the defendant he refused, and married another woman. The defend- ant pleaded, that after making the deed, he offered himself to marry the plaintiff, and she refused ; absque hoc, "that he refused to take her for his wife, before she had refused to take him for her husband." The court was of the opinion that this traverse was bad ; because there had been no allegation in the declaration, "that the defendant had refused before the plaintiff had refused;" and therefore the traverse went to deny what the plaintiff had not af- firmed, (i) The plea in this case ought to have been in confession and avoidance; stating merely the affirmative matter, that before the plaintiff offered the defendant offered, and that the plaintiff had refused him ; and omitting the absque hoc. Again, in an ac- tion of debt on bond against the defendant, as executrix of J. S., she pleaded in abatement, that J. S. died intestate and that admin- istration was granted to her. On demurrer, it was objected, that she should have gone on to traverse, "that she meddled as execu- trix before the administration, granted ;" because, if she so med- dled, she was properly charged as executrix, notwithstanding the subsequent grant of letters of administration. But the court held the plea good in that respect. And Holt, C. J., said that if the defendant had taken such traverse, it had made her plea vicious ; for it is enough for her to show that the plaintiff's writ ought to abate ; which she has done, in showing that she is chargeable only by another name. Then, as to the traverse, that she did not ad- minister as executrix before the letters of administration were granted, it would be to traverse what is not alleged in the plain- tiff's declaration ; which would be against a rule of law, "that a man shall never traverse that which the plaintiff has not alleged in his declaration. "(/) There is, however, the following excep- tion to this rule; viz, that a traverse may be taken upon matter zvhich, though not expressly alleged, is necessarily implied. (k) (0 Cross v. Hunt, Garth. 99. (;') Power v. Cook, 1 Lord Ray. 63; 1 Salk. 298, S. C. (k) I Saund. 312d, n. 4; Gilbert v. Parker, 2 Salk. 629; 6 Mod. 158, S. C. 444 TRAVERSING THE MAKING OF A DEED 869 Thus, in replevin for taking cattle, the defendant made cogni- zance (/) that A. was seized of the close in question, and by his command the defendant took the cattle damage feasant. The plaintiff pleaded in bar, that he himself was seized of one-third part, and put in his cattle, absque hoc, "that the said A. was seized, not that A. was sole seised." On demurrer, it was ob- jected, that this traverse was taken on matter not alleged, the al- legation being, that A. was sole seized. But the court held, that in the allegation of seizin, that of sole seizin was necessarily im- plied ; and that whatever is necessarily implied is traversable as much as if it were expressed. Judgment for plaintiff. (//) The court, however, observed, that in this case the^ plaintiff was not obliged to traverse the sole seizin ; and that the effect of merely traversing the seisin modo et forma, as alleged, would have been the same on the trial as that of traversing the sole seizin. 444. Traversing the making of a deed. Another rule relative to traverses (though of a more special and limited application than those hitherto considered), is the fol- lowing : that a party to a deed who traverses it, must plead non est factiun, and should not plead that he did not grant, did not demise, etc. This rule seems to depend on the doctrine of es- toppel. A man is sometimes precluded in law from alleging or denying a fact in consequence of his own previous act, allegation or denial to the contrary, and this preclusion is called an estoppel. (m) (/) The action of replevin differs from other actions in the names of the pleadings. If the defendant pleads some matter confessing the taking, but showing lawful title or excuse, such pleading is not (as it would be in other actions) called a plea in bar, but an avowry or a cognisance; the former term applying to the case where the defend- ant sets up right or title in himself; the latter being used when he alleges the right or title to be in another person, by whose command he acted. Com. Dig., Pleader (3 K. 13, 14). The answer to the avowry or cognizance is called plea in bar; and then follow replication, rejoinder, etc., the ordinary name of each pleading being thus post- poned by one step. (//) Gilbert v. Parker, 2 Salk. 629; 6 Mod. 158, S. C. (MJ) "An estoppel is when a man is concluded by his own act or acceptance to say the truth." Co. Litt. 352a. 870 PRODUCTION Of ISSUED 444 It may arise either from matter of record, from the deed of the party, or from matter in pais, that is matter of fact. Thus, any confession or admission made in pleading in a court of record, whether it be express, or implied from pleading over, without a traverse, will preclude the party from afterwards contesting the same fact in the same suit, (w) This is an estoppel by matter of record. As an instance of an estoppel by deed, may be mentioned the case of a bond reciting a certain fact. The party executing that bond will be precluded from afterwards denying, in any action brought upon that instrument, the fact so recited. (0) An example of an estoppel by matter in pais occurs when one. man has accepted rent of another. He will be estopped from afterwards denying, in any action with that person, that he was, at the time of such acceptance, his tenant. (/>) Now it is from this doctrine of estoppel, apparently, that the rule under consideration as to the mode of traversing deeds has resulted. For though a party, against whom a deed is alleged, may be allowed, consistently with the doctrine of estop- pel, to say non est factum, viz, that the deed is not his, he is on the other hand precluded by that doctrine from denying its effect or operation; because, if allowed to say, non concessit or non demisit, when the instrument purports to grant, or to demise, he would be permitted to contradict his own deed. Accordingly, it will be found that in the case of a person not a party, but a stranger to the deed, the rule is reversed, and the form of traverse in that case is non concessit, (pp} etc.; the rea- son of which seems to be that estoppels do not hold with respect to strangers. The doctrine of traverses being now discussed, the next sub- ject for consideration is : (n) Bract. 421a; Com. Dig., Estoppel (A. 1.) (o) Bonner v. Wilkinson, 5 Barn. & Aid. 682. And see Baker v. Dewey, 1 Barn. & Cres. 704. (/>) Com. Dig., Estoppel (A. 3); Co. Litt. 352a. (/>/>) Taylor v. Needham, 2 Taunt. 278. N. B. The court there lay it down that the plea of non concessit, etc., brings into issue the title of the grantor, as well as the operation of the deed. See also, Eden's Case, 6 Rep. 15; Hellyer's Case, 6 Rep. 25; Hynde's Case, 4 Rep. 71 b; 43 Edw. 3, 1. 445 PLEADINGS IN CONFESSION AND AVOIDANCE 871 445. Pleadings in confession and avoidance. 2. The nature and properties of pleadings in confession and avoidance. First, with respect to their division. Of pleas in confession and avoidance, some are distinguished (in reference to their subject-matter) as pleas in justification or excuse, others as pleas in discharge. (q) The pleas of the former class show some justification or excuse of the matter charged in the declaration: those of the latter, some discharge or release of that matter. The effect of the former, therefore, is to show that the plaintiff never had any right of action, because the act charged was lawful ; the effect of the latter, to show that though he had once a right of action, it is discharged or released by some matter subsequent. Of those in justification or excuse, the plea of son assault demesne is an example ; of those in discharge, a release. This division applies to pleas only; for replications and other tubsequent pleadings, in confession and avoidance, are not sub- ject to any such classification. As to the form of pleadings in confession and avoidance, it will be sufficient to observe, that, in common with all pleadings whatever, which do not tender issue, they always conclude with a verification, etc. With respect to the quality of these pleadings it is to be ob- served, that it is of their essence (as the name itself imports) to confess the truth of the allegation which they propose to answer or avoid. * * * * * The extent and nature of the admission required is defined by the following rule that pleadings in confession and avoid- ance should give color. (u) Color is a term of the -ancient rhetoricians, and was adopted at an early period into the lan- guage of pleading, (v) It signifies an apparent or prima facie (q) Com. Dig., Pleader (3 M. 12). (M) See Reg. Plac. 304; Hatton v. Morse, 3 Salk. 273; Hallet v. Bryt, 5 Mod. 252; Holler v. Bush, 1 Salk. 394; 1 Chitty 498. (v) It occurs at least as early as the reign of Edward III. See Year Books, 38 Edw. III. 28; 40 Edw. Ill, 23. 872 PRODUCTION OF ISSUE; 446 right; and the meaning of the rule that pleadings in confession and avoidance should give color, is that they should confess the matter adversely alleged, to such an extent at least, as to ad- mit some apparent right in the opposite party, which re- quires to be encountered and avoided by the allegation of the new matter. In the instances formerly given of the plea of release, and the replication of duress, in an action of covenant, the admission is absolute and unqualified for the plea supposes that a deed of covenant had been executed, and that a breach of it had been committed ; and the replication that a deed of release had been executed; so that there is at each step an apparent right admitted in the opposite party, which is avoided in the one case by the allegation of the release, and in the other by the allegation of duress. So where to an action of assumpsit, the defendant pleads in confession and avoidance that he did not promise within six years before the action brought, it is an absolute implied admission of the truth of the adverse allegation that he had at one time made such promise as alleged, and that there is therefore an apparent right in the plaintiff; and this right is avoided by relying on the lapse of time. 446. Express color. The kind of color to which these observations relate, being a latent quality, naturally inherent in the structure of all regular pleadings in confession and avoidance, has been called implied color, to distinguish it from another kind, which is in some instances formally inserted in the pleading, and is therefore, known by the name of express color, (w) It is the latter kind to which the technical term most usually is applied, and to this the books refer, when color is mentioned per se, without the distinction between express and implied. Color, in this sense, is defined to be "a feigned matter, pleaded by the defendant in an action of trespass, from which the plaintiff seems to have a good cause of action, whereas he has in truth only an appearance or color of cause." [The doctrine of express color is simply a relic of the subtlety of ancient pleading, and is seldom, if ever, (w) Hatton v. Morse, 3 Salk. 273; Reg. Plac. 304; Holt's Inst. 562. 447 THE NATURE; AND PROPERTIES OF PLEADINGS 873 used in practice. It is said that it may still be used in the actions of trespass and trespass on the case, but it is never necessary, and hence the author's discussion is omitted.] 447. 3. The nature and properties of pleadings in gen- eral without reference to their quality, as being by way of traverse, or confession and avoidance. First, it is a rule, tlmt every pleading must be an answer to the whole of what is adversely alleged, (.r) Therefore, in an action of trespass for breaking a close, and cutting down 300 trees, if the defendant pleads as to cutting down all but 200 trees, some matter of justification or title, and as to the 200 trees says nothing, the plaintiff is entitled to sign judgment as by nil dicit against him in respect of the 200 trees, and to demur or reply to the plea as to the remainder of the trespasses. In such cases the plaintiff should take care to avail himself of his advantage in this (which is the only proper) course. For, ' if he demurs, or replies to the plea, without signing judgment for the part not answered, the whole action is said to be discontinued. (y) The principle of this is that the plaintiff, by not taking judgment as he was entitled to do for the part unanswered, does not follow up his entire demand; and there is consequently that sort of chasm or interruption in the proceedings, which is called in technical phrase a discontinuance. And such discontinuance will amount to error on the record, (z) 7 O) Com. Dig., Pleader (E. 1), (F. 4); 1 Saund. 28, n. 3; Herlaken- den's Case, 4 Reg. 62a. Oy) Com. Dig., Pleader (E. 1), (F. 4); 1 Saund. 28, n. 3; Herlaken- den's Case, 4 Rep. 62a. (z) Wats v. King Cro. Pac. 353. Such error is cured, however, after verdict, by the statute of Jeofails, 32 H. 8, ch. 30; and after judgment by nil dicit, confession, or non sum informatus, by 4 Ann., ch. 16. 7. This rule is technical, but was recognized in Exchange Bank v Southall, 12 Gratt. 314. It is doubtful, however, at this day when the courts are looking to the substance of things and not their form whether such a mere technicality should or will be enforced. It 874 PRODUCTION of ISSUE 447 It is to be observed, however, that as to the plaintiff's course of proceeding, there is a distinction between a case like this, where the defendant does not profess to answer the whole, and a case, where, by the commencement of his plea, he professes to do so, but, in fact, gives a defective and partial answer, applying to part only. The latter case amounts merely to insufficient plead- ing; and the plaintiff's course, therefore, is, not to sign judgment for the part defectively answered, but to demur to the whole plea. (a) 8 It is also to be observed, that where the part of the pleading, to which no answer is given, is immaterial, or such as requires no separate or specific answer, for example, if it be mere matter of aggravation, the rule does not in that case apply, (ft) Again, it is a rule, that every pleading is taken to confess such (a) 1 Saund. 28, n. 3, Thomas v. Heathorn, 2 Barn. & C. 477. (&) 1 Saund. 28, n. 3. is certainly not more serious than going to trial without any issue at all (ante, p. 356-7) and it not unfrequently happens that these partial defences are made at one term and the case continued to the next, and it would be a needless hardship on plaintiffs to dismiss their cases for the merest technicality which has done the defendant no harm. Indeed, it would simply encourage defendants to set a trap for unwary plaintiffs. In this connection, attention is called to 3302 of the Code, which is as follows: "If the defendant file a plea or account of set off, which covers or applies to part of the plaintiff's demand, judgment may be forthwith rendered for the part not controverted, and the costs accrued until the filing of the plea or account, and the case shall be proceeded with for the residue, as if the part for which judgment was rendered had not been included therein. And if, in addition to such plea or ac- count, the defendant plead some other plea, going to the whole or residue of the demand, the case shall not be continued as to the part not controverted by the plea or account of set offs, unless good cause be shown for such continuance." This is merely declaratory of the common law except as to costs. 8. This rule has frequently been followed in Virginia. Hunt v. Martin, 8 Gratt. 578; Merriman v. Cover, 104 Va. 428, 51 S. E. 517. A plea which professes to go to the whole of the plaintiff's declaration containing two counts but at most only answers the cause of action 'set up in one count of the declaration is bad. Staunton Tel. Co. v. Buchanan, 108 Va. 810, 62 S. E. 928. 448 EXCEPTIONS TO THE RULE 875 traversable matters alleged on the other side as it. does not traverse. (c) 9 Thus, in the example of an action on an indenture of covenant, the plea of release, as it does not traverse the indenture, is taken to admit its execution; and the replication of duress, on the same principle, is an admission of the execution of the release. So the plea traversing the want of repair is an admission of the indenture of demise. The effect of such ad- mission is extremely strong; for it concludes the party, even though the jury should improperly go qut of the issue, and find the contrary of what is thus confessed on the record. (d) The rule, however, it will i>e observed, extends only to such matters as are traversable., For matters of law or any other matters, which are not fit subjects of traverse, are not taken to be ad- mitted by pleading over. (/) It is to be remarked too, that the confession operates only to prevent the fact from being after- wards brought into question in the same suit, and that it is not conclusive as to the truth of the fact in any subsequent action between the same parties. (g) 10 448. Exceptions to the rule. Such are the doctrines involved in the general rule, that the (c) Com. Dig., Pleader (G. 2); Bac. Ab., Pleas, etc., pp. 322, 386 (5th Ed.); Hudson v. Jones, 1 Salk. 91; Nicholson v. Simpson, 11 Mod. 336; Fort. 356. (d} Bac. Ab., Pleas, etc., p. 322 (5th Ed.); Wilcox v. Servant of Skipwith, 2 Mod. 5. (/) 10 Ed. 4, 12; The King v. The Bishop of Chester, 2 Salk. 561. (g) It would formerly conclude in a subsequent action also (if be- tween the same parties), unless the pleader made use of a particular formula, called a protestation. But by the late rule of court, Hil. 4, W. 4, "no protestation shall hereafter be made in any pleadings, but either party shall be entitled to the same advantage in that or other action, as if a protestation had been made." 9. This rule does not apply in equity. Matters not denied by the answer are not taken as admitted in equity, but must be proved by the plaintiff. Clinch River Min. Co. v. Harrison, 91 Va. 122, 21 S. E. 660. 10. By 3266 of the Code of Virginia it is declared that "no party shall be prejudiced by omitting a protestation in any pleading." 876 PRODUCTION OP ISSUE 448 party must either demur, or plead by zvay of traverse, or by way of confession and avoidance. It remains, however, to notice: Certain exceptions to which that branch of the rule is subject, which relates to pleading; and which requires a party to plead either by way of traverse, or by way of confession and avoidance. (1) First, there is an exception in the case of dilatory pleas; 11 for a plea of this kind merely opposes a matter of form to the declaration, and does not tend either to deny or to confess its allegations. But replications and subsequent pleadings, following on dilatory pleas, are not within this exception. (2) Again, the rule is not applicable to the case of pleadings in estoppel. These are pleadings which, without confessing or denying the matter of fact, adversely alleged, rely merely on some matter of estoppel as a ground for excluding the opposite party from the allegation of the fact. Like pleadings in abatement, they have formal commencement and conclusion, to mark their spe- cial character and quality, and to distinguish them from pleadings in bar. Of this the following is an example : REPLICATION. And the said plaintiff saith, that the said defendant ought not to be admitted or received to plead the plea by him above pleaded, because he saith, etc. (And then after stating the previous act, allegation, or denial of the opposite party, upon which the estop- pel is alleged to arise, the pleading concludes thus:) Wherefore he prays judgment, if the said defendant ought to be admitted or received to Ins said plea, contrary to his own acknowledgment and the said record, etc. (or as the case may be).(h) (3) Another exception to that branch of the general rule, which requires the pleader either to traverse, or to confess and avoid, arises in the case of what is called a new assignment. It has been seen that the declarations are conceived in very general terms ; a quality which they derive from their adherence to the tenor of those simple and abstract formulae the original writs by which all suits were in ancient times commenced. (/O 2 Chitty, 416, 590. 11. As to dilatory pleas and the time of filing the same, see ante, 183. 448 EXCEPTIONS TO THE RULE 877 The effect of this is that, in some cases, the defendant is not sufficiently guided by the declaration to the real cause of com- plaint ; and is, therefore, led to apply his plea to a different matter from that which the plaintiff has in view. A new assignment is a method of pleading to which the plaintiff in such cases is obliged to resort in his replication, for the purpose of setting the de- fendant right. An example shall be given in an action for assault and battery. A case may occur in which the plaintiff has been twice assaulted by the defendant; and one of these assaults may have been justifiable, being committed in self- defense, while the other may have been committed without legal excuse. Supposing the plaintiff to bring his action for the latter, it will be found by referring to the example formerly given of a declaration for an assault and battery, that the state- ment is so general, as not to indicate to which of the two assaults the plaintiff means to refer. (t) The defendant may, therefore, suppose, or affect to suppose, that the first is the assault intended, and will plead son assault, demesne. This plea the plaintiff can- not safely traverse; because, as an assault was in fact committed by the defendant, under the circumstances of excuse here al- leged, the defendant would have a right under the issue joined upon such traverse, to prove those circumstances, and to pre- sume that such assault, and no other, is the cause of action. And it is evidently reasonable that he should have this right; for, if the plaintiff were, at the trial of the issue, to be allowed to set up a different assault, the defendant might suffer by mistake into which he had been led by the generality of the plaintiff's declaration. The plaintiff, therefore, in the case sup- posed, not being able safely to traverse, and having no ground either for demurrer, or for pleading in confession and avoid- ance, has no course, but by a new pleading to correct the mistake occasioned by the generality of the declaration, and to declare that he brought his action, not for the first, but for the second (f) As for the day and place, alleged in the declaration, it will be shown hereafter that they are not considered as material to be proved in such a case, and are consequently alleged without much regard to the true state of fact. 878 PRODUCTION OF ISSUE; 448 assault; and this is called a new assignment. Its form, in the example chosen, would be as follows : REPLICATION. To the Plea of Son Assault Demesne. By Way of New Assignment. And the said plaintiff says, that he brought this action, not for the trespasses in the said second plea acknowledged to have been done, but for that the said defendant heretofore, to wit, on the day of - , in the year of our Lord - , with force and arms, upon another and different occasion, and for another and different purpose than in the second plea mentioned, made another and different assault upon the said plaintiff than the as- sault in the said second plea mentioned, and then and there beat, wounded, and illtreated him in manner and form as the said plaintiff hath above thereof complained; which said trespasses above newly assigned are other and different trespasses than the said trespass in the said second plea acknowledged to have been done. And this the said plaintiff is ready to verify. [Wherefore, inasmuch as the said defendant hath not answered the said tres- pass above newly assigned, he, the said plaintiff prays judgment, and his damages by him sustained by reason of the committing thereof, to be adjudged to him, etc.] The mistake being thus set right by the new assignment, it remains for the defendant to plead such matter as he may have in answer to the assault last mentioned, the first being now out of question. * * * * * As the object of a new assignment is to correct a mistake occasioned by the generality of the declaration, it always occurs in answer to a plea, and is, therefore, in the nature of a repli- cation. It is not used in any other part of the pleading, because the statements subsequent to the declaration are not in their nature such, when properly framed, as to give rise to the kind of mistake which requires to be corrected by a new assignment. A new assignment chiefly occurs in an action of trespass, but it seems to be generally allowed in all actions in which the form of declaration makes the reason of the practice equally appli- cable. (/) (/) 1 Chitty, 602; Vin. Ab., Novel Assignment, 4, 5; 3 Went. 151; Batt v. Bradley, Cro. Jac. 141. 448 EXCEPTIONS TO THE RULE 879 Several new assignments may occur in the course of the same series of pleading. Thus, in the above example, if it be supposed that three different assaults had been committed, two of which were justifiable, the defendant might plead as above to the dec- laration, and then, by way of plea to the new assignment, he might again justify in the same manner another assault; upon which it would become necessary for the plaintiff to new assign a third, and this upon the same principle by which the first new assignment was required. (k) A new assignment is said to be in the nature of a new decla- ration.^} It seems however to be more properly considered as a repetition of the declaration (//) differing only in this, that it distinguishes the true ground of complaint, as being different from that which is covered by the plea. Being in the nature of a new or repeated declaration, it is consequently to be framed with as much certainty, or specification of circumstances, as the declaration itself. (m) In some cases, indeed, it should be even more particular, so as to avoid the necessity of another new as- signment. * * * * * The rule under consideration and its exceptions being now discussed, the last point of remark relates to an inference or deduction to which it gives rise. It is implied in this rule, that as the proceeding must either be by demurrer, traverse, or con- fession and avoidance, so any of these forms of opposition to the last pleading is in itself sufficient. There is, however, an exception to this, in a case which the books consider to be anomalous and solitary. It is as follows : If in debt on a bond conditioned for the performance of an award, the defendant pleads that no award was made, and the plaintiff in reply alleges, that an award was made, setting it forth, it is held that he must also proceed to state a breach of the award ; and that without stating such breach, the replication is insuffi- (&) 1 Chitty, 614; 1 Saund. 299c. (/) Bac. Ab. Trespass (I), 4, 2; 1 Saund. 299c. (//) Vide 1 Chitt. 602. (m) Bac. Ab., ubi supra; 1 Chitty, 610. PRODUCTION OF ISSUE 449 cient.(w) This, as has been observed, is an anomaly, for, as by alleging and setting forth the award, he fully traverses the plea which denied the existence of an award, the replication would seem, according to the general rule under consideration, to be sufficient without the specification of any breach. And in accordance with that rule, it is expressly laid down that in all other cases, "if the defendant pleads a special matter that admits and excuses a non-performance, the plaintiff need only answer and falsify the special matter alleged; for he that ex- cuses a non-performance supposes it, and the plaintiff need not show that which the defendant hath supposed and admitted." II. 449. Upon a traverse issue must be tendered. In the account given in another place of traverses, it was shown, that [except in the case of a special traverse] the differ- ent forms all involve a tender of issue. The rule under consid- eration prescribes this as a necessary incident to them, and establishes it as a general principle, that wherever a traverse takes place, or, in other words, wherever a denial or contradic- tion of fact occurs in pleading, issue ought at the same time to be tendered on the fact denied. The reason is that as, by the contradiction, it sufficiently appears what is the issue or matter in dispute between the parties, it is time that the pleading should now close, and that the method of deciding this issue should be adjusted. The formulae of tendering the issue in fact vary of course according to the mode of trial proposed. The tender of an issue to be tried by jury is by a formula called the conclusion to the country. This conclusion is in the following words when the issue is tendered by the defendant : "And of this the said defendant puts himself upon the country." When it is tendered by the plaintiff, the formula is as follows : "And this the said plaintiff prays may be inquired of by the () 1 Saund. 103; Meredith v. Alleyn, 1 Salk. 138; Carth. 116, S. C. Though this is considered as a solitary case (vide 1 Salk. 138), it may be observed that another analogous one is to be found. Gayle v. Betts, 1 Mod. 227. 449 UPON A TRAVERSE ISSUE MUST BE TENDERED 881 country." (0) It is held, however, that there is no material differ- ence between these two modes of expression, and that if ponit se be submitted for petit quod inquiratur, or vice versa, the mis- take is unimportant. (/>) Of the tender of issue thus concluding to the country, several examples have already been given in this work, and to these it will now be sufficient to refer. The form of tendering an issue to be tried by record is this : PLEA. Of Judgment Recovered. In Assumpsit. And the said defendant, by - - his attorney, says that the said plaintiff heretofore, to wit, in term, in the - year of the reign of our lord the now king, in the court of our said lord the king, before the king himself, the same court then and still being holden in Westminster, in the county of Middle- sex, impleaded the said defendant in a certain plea of trespass on the case on promises, to the damage of the said plaintiff of pounds, for the not performing the same identical prom- ises and undertakings in the said declarations mentioned. And such proceedings were thereupon had in the same court in that plea, that afterwards, to wit, in that same term, the said plain- tiff by the consideration and judgment of the said court recovered in the said plea against the said defendant pounds for the damages which he had sustained, as well by reason of the not per- forming of the same promises and undertakings in the said dec- laration mentioned, as for the costs and charges by him about his suit in that behalf expended, whereof the said defendant was convicted, as by the record and proceedings thereof, remaining in the said court of our said lord the king, before the king him- self, at Westminster aforesaid, more fully appears, which said judgment still remains in full force and effect, not in the least re- versed, satisfied or made void. And this the said defendant is ready to verify by the said record. [Wherefore he prays judg- ment if the said plaintiff ought to have or maintain his aforesaid action against him.] REPLICATION. And the said plaintiff says, that there is not any record of the said supposed recovery remaining in the said court of our said (o) Heath's Maxims, 68; Weltale v. Glover, 10 MoH. 166: Bract. 57; Ry. Plac. Parl. 146. O) Weltale v. Glover, 10 Mod. 166. 5 882 PRODUCTION OF ISSUE 449 lord the king, before the king himself, in manner and form as the said defendant hath above in his said plea alleged. And this he, the said plaintiff, is ready to verify, when, where and in such manner as the court here shall order, direct or appoint. (5) * * * * * With respect to the extraordinary methods of trial, their oc- currence is too rare to have given rise to any illustration of the rule in question. 12 It refers chiefly to traverses of such matters of fact as are triable by the country; and, therefore, we find it propounded in the books most frequently in the following form : that, upon a negative and affirmative, the pleading shall conclude to the country; but otherwise with a verification. (r) [Thus where the declaration averred the giving of a good and sufficient deed for certain lands, according to the tenor of the agreement between the parties, and the plea negatived the fact almost totidem verbis and concluded with a verification, the plea was held bad, because it should have concluded to the country.] To the rule, in whatever form expressed, there is the following exception: that when new matter is introduced, the pleading should always conclude with a verification. (^) 13 A traverse may sometimes involve the allegation of new mat- ter; and in such instances the conclusion must be with a verifi- cation, and not to the country. An illustration of this is afforded (q) 2 Chitty, 438, 602. (r) Com. Dig., Pleader (E. 32); 1 Saund. 103, n. 1. (s) 1 Saund. 103, n. 1, and the authorities there cited; Cornwallis v. Savery, 2 Burr. 772; Vent. 121; Vere v. Smith, 2 Lev. 5; Sayre v. Minns, Cowp. 575. 12. The author doubtless refers to wager of battel in which the per- son accused fought with his accuser under the apprehension that Heaven would give the victory to him who was in the right; and to wager of law by which a defendant in an action of debt gave a gage or sureties that he would make his law, that is he would make an oath in open court that he did not owe the debt and would at the same time bring eleven of his neighbors (called compurgators) who would swear that they believed that he told the truth. This was re- garded as equivalent to the verdict of a jury who, formerly were the witnesses. If the defendant did this he was relieved from payment of the debt. 13. Va. F. & M. Ins. Co. v. Saunders, 84 Va. 210, 4 S. E. 584. 449 UPON A TRAVERSE ISSUE MUST BE TENDERED 883 by a case of very ordinary occurrence, viz, where the action is in debt on a bond conditioned for performance of covenants. If the defendant pleads generally, performance of the covenants, and the plaintiff in his replication relies on a breach of them, he must show specially in what that breach consists, for to reply generally that the defendant did not perform them, would be too vague and uncertain. His replication, therefore, setting forth, as it necessarily does, the circumstances of the breach, discloses new matter; and consequently, though it is a direct denial or traverse of the plea, it must not tender issue, but must conclude with a verification. So in another common case, in an action of debt on bond conditioned to indemnify the plaintiff against the consequences of a certain act, if the defendant pleads non damnificatus, and the plaintiff replies alleging a damnifica- tion, he must, on the principle just explained, set forth the circumstances, and the new matter thus introduced will make a verification necessary. To these it may be useful to add another example. The plaintiff declared in debt, on a bond conditioned for the performance of certain covenants by the defendant, in his capacity of clerk to the plaintiff; one of which covenants was to account for all the money that he should receive. The defendant pleaded performance. The plaintiff replied that on such a day such a sum came to his hands, which he had not accounted for. The defendant rejoined that he did account and in the following manner : That thieves broke into the counting- house and stole the money, and that he acquainted the plaintiff of the fact; and he concluded with a verification. The court held that though there was an express affirmative that he did account, in contradiction to the statement in the replication that he did not account, yet that the conclusion with a verification was right; for the new matter being alleged in the rejoinder, the plaintiff ought to have liberty to come in with a surrejoinder, and answer it by traversing the robbery. (f) The application, however, to particular cases, of this exception, as to the introduction of new matter, is occasionally nice and doubtful ; and it becomes difficult sometimes to say whether there is any such introduction of new matter as to make the (0 Vete v. Smith, 2 Lev. 5; Vent. 121. 884 PRODUCTION OP ISSUE 450 tender of issue improper. Thus, in debt on a bond conditioned to render a full account to the plaintiff, of all such sums of money and goods as were belonging to W. N. at the time of his death, the defendant pleaded that no goods or sums of money came to his hands. The plaintiff replied that a silver bowl, which belonged to the said W. N. at the time of his death, came to the hands of the defendant, viz, on such a day and year : "and that he is ready to verify," etc. On demurrer, it was contended that the replication ought to have concluded to the country, there being a complete negative and affirmative; but the court thought it well concluded, as new matter was introduced. However, the learned judge who reports the case thinks it clear that the replication was bad; and Mr. Serjeant Williams expresses the same opinion, holding that there was no introduction of new matter, such as to render a verification proper. (M) To the same exception formerly belonged the case of special traverses, which always concluded, until the rule of Hil. T. 4 Wil. 4, with a verification. But by that rule it is provided (as stated in a former part of this work) that they should hence- forth conclude to the country. III. 450. Issue, when well tendered, must be accepted. (v) If issue be well tendered both in point of substance and in point of form, nothing remains for the opposite party, but to ac- cept or join in it; and he can neither demur, traverse, nor plead in confession and avoidance. The acceptance of the issue, in case of a conclusion to the country, i. e., of trial by jury, may (as explained in the first chapter) either be added in making up the issue, or may be de- livered before that transcript is made up. It is in both cases called the similiter; and in the latter case a special similiter. The form of a special similiter is thus : "And the said plaintiff, (M) Hayman v. Gerrard, 1 Saund. 102. But see Cornwallis v. Sav- ery, 2 Burr. 772. See, also, Sayre v. Minns, Cowp. 575. (z') Bac. Ab., Pleas, etc., p. 363 (5th Ed.); Digby v. Fitzharbert, Hob. 104, "In all pleadings wherever a traverse was first properly taken, the issue closed." Gib. C. P. 66. 450 ISSUE, WHEN WELL TENDERED, MUST BE ACCEPTED 885 (or "defendant") as to the plea" (or "replication"), etc., "of the said defendant" (or "plaintiff"), "whereof he hath put him- self upon the country" (or "whereof he hath prayed it may be in- quired by the country"), "doth the like." The similiter, when added in making up the issue or paper-book, is simply this : "And the said plaintiff" (or "defendant") "doth the like." As the party has no option in accepting the issue, when well tendered, and as the similiter may in that case be added for him, the acceptance of the issue when well tendered may be consid- ered as a mere matter of form. It is a form, however, which should be invariably observed; and its omission has sometimes formed a ground of successful objection, even after verdict. (w) The rule expresses that the issue must be accepted only when it is well tendered. For if the opposite party thinks the trav- erse bad in substance or in form, or objects to the mode of trial proposed, in either case he is not obliged to add the simili- ter, but may demur; and if it has been added for him, may strike it out and demur. The similiter, therefore, serves to mark the acceptance both of the question itself and the mode of trial proposed. It seems originally, however, to have been introduced in a view to the latter point only. The resort to a jury, in ancient times, could in general be had only by the mutual consent, of each party. It appears to have been with the object of expressing such consent, that the similiter was, in those times, added, in drawing up the record, and from the record it afterwards found its way into the written pleadings. Accordingly, no similiter, or other ac- ceptance of issue is necessary, when recourse is had to any of the other modes of trial; and the rule in question does not ex- tend to these. Thus, when issue is tendered to be tried by the record, the plaintiff is entitled to consider the issue as complete upon such tender ;(.r) and no acceptance of it on the other side is essential. The rule in question extends to an issue in law as well as an is- sue in fact; for by analogy (as it would seem) to the similiter, (tf) Griffith r. Crockford, 3 Brod. & Bing. 1. But see 2 Saund. 319, n. 6, and Tidd, 956 (8th Ed.). O) Tipping v. Johnson, 3 Bos. & Pul. 302. 886 PRODUCTION OF ISSUE; 450 the party whose pleading is opposed by a demurrer is required formally to accept the issue in law which it tenders, by the for- mula called a joinder in demurrer; of which an example was given in the first chapter. However, it differs in this respect from the similiter that whether the issue in law be well or ill. tendered, that is, whether the demurrer be in proper form or not, the opposite party is equally bound to join in demurrer. For it is a rule, that there can be no demurrer upon a demur- rer ;(y) because the first is sufficient, notwithstanding any inaccu- racy in its form, to bring the record before the court for their ad- judication; and as for traverse or pleading in confession and avoidance, there is of course no ground for them, while the last pleading still remains unanswered, and there is nothing to op- pose but an exception in point of law. (31) Bac. Ab., Pleas, etc. (n.), 2. CHAPTER L. RULES WHICH TEND TO SECURE THE MATERIALITY OF THE ISSUE. RULE I. 451. All pleadings must contain matter pertinent and material. In a view to the materiality of the issue, it is of course nec- essary that at each step of the series of pleadings by which it is to be produced, there should be some pertinent and material al- legation or denial of fact. On this subject, therefore, a general rule may be propounded in the following form : RULE I. 451. All pleadings must contain matter pertinent and material. Thus, if to an action of assumpsit against an administratrix, laying promises by the intestate, she pleads that she, the defend- ant (instead of the intestate) did not promise, the plea is ob- viously immaterial and bad. ***** SUBORDINATE RULES. With respect to traverses in particular, this general doctrine is illustrated in the books by subordinate rules of a more special kind. Thus it is laid down : 1. That traverse must not be taken on an immaterial point. (a) This rule prohibits first the taking of a traverse on a point wholly immaterial. Thus, where to an action of trespass for assault and battery the defendant pleaded that a judgment was recovered, and execution issued thereupon against a third per- son, and that the plaintiff, to rescue that person's goods from the execution, assaulted the bailiffs ; and that in aid of the bailiffs, and by their command, the defendant molliter manns imposuit (a) Com. Dig., Pleader (R. 8), (G. 10); Bac. Ab., Pleas, etc. (H.), 5. 888 MATERIALITY OF ISSUE) 451 upon the plaintiff, to prevent his rescue of the goods, it was hoi- den that a traverse of the command of the bailiffs was bad. For even without their command, the defendant might lawfully in- terfere to prevent a rescue, which is a breach of the peace. 1 So, by this rule a traverse is not good when taken on matter, the allegation of which was premature, though in itself not im- material to the case. Thus, if in debt on bond, the plaintiff should declare that at the time of sealing and delivery, the de- fendant was of full age, the defendant should not traverse this, because it was not necessary to allege it in the declaration; though if in fact he was -a minor, this would be a good subject for a plea of infancy to which the plaintiff might then well reply the same matter, viz, that he was of age. Again, this rule prohibits the taking of a traverse of matter of aggravation; that is, matter which only tends to increase the amount of damages, and does not concern the right of action it- self. Thus, in trespass for chasing sheep, per quod the sheep died, the dying of the sheep being aggravation only, is not trav- ersable. So it is laid down that in general, traverse is not to be taken on matter of inducement, that is, matter brought forward only by way of explanatory introduction to the main allega- tions; 2 but this is open to many exceptions, for it often happens that introductory matter is in itself essential, and of the sub- stance of the case, and in such instances, though in the nature of inducement, it may nevertheless be traversed. While it is thus the rule that traverse must not be taken on an immaterial point, it is on the other hand to be observed, that where there are several material allegations, it is in the option of the pleader to traverse which he pleases. (b) Thus, in tres- pass, if the defendant pleads that A. was seised and demised to him, the plaintiff may traverse either the seisin or the demise. (c) (&) Com. Dig., Pleader (G. 10); Read's Case, 6 Rep. 24; Doct. PI. 365; Bac. Ab., Pleas, etc. (H.), 5, p. 392 (5th Ed.); Baker v. Blackman, Cro. Jac. 682; Young v. Rudd, Garth. 347; Young v. Rud- dle, Salk. 627. (c) Com. Dig., Pleader (G. 10); Moore v. Pudsey, Hardr. 317. 1. Bowman v. Bowman, 153 Ind. 498, 55 N. E. 422. 2. Garland v. Davis, 4 How. 131. 451 PLEADINGS MUST CONTAIN PERTINENT MATTER 889 Again, in trespass, if the defendant pleads that A. was seised, and enfeoffed B., who enfeoffed C., who enfeoffed D., whose es- tate the defendant hath ; in this case the plaintiff may traverse which of the feoffments he pleases. (d) The principle of this rule is sufficiently clear, for it is evident that where the case of any party is built upon several allegations, each of which is essential to its support, it is as effectually de- stroyed by the demolition of any one of these parts, as of another. It is also laid down, 2. That a traverse must not be too large, nor on the other hand too narrozv.(e) As a traverse must not be taken on an immaterial allegation, so when applied to an allegation that is material, it ought in gen- eral to take in no more and no less of that allegation than is ma- terial. If it involves more, the traverse is said to be too large; if less, too narrow. A traverse may be too large by involving in the issue, quantity, time, place, or other circumstances, which, though forming part of the allegation traversed are immaterial to the merits of the cause. Thus, in an action of debt on bond conditioned for the payment of 1550, the defendant pleaded that part of the sum mentioned in the condition, to wit, 1500, was won by gaming, contrary to the statute in such case made and provided ; and that the bond was consequently void. The plaintiff replied that the bond was given for a just debt, and traversed that the 1500 was won by gaming, in manner and form as alleged. On demurrer it was objected that the replication w r as ill, because it made the pre- cise sum parcel of the issue, and tended to oblige the defendant to prove that the whole sum of 1500 was won by gaming; whereas the statute avoids the bond, if any part of the consideration be on that account. The court was of opinion that there was no color to maintain the replication ; for that the material part of the plea was. that part of the money, for which the bond was given, was won by gaming; and that the words, "to wit, 1500," were only form, of which the replication ought not to have taken any no- (d) Doct. PI. 365. (e) 1 Saund. 268, n. 1, 269, n. 2; Com. Dig. Pleader (G. 15), (G. 16). 890 MATERIALITY OF ISSU 451 tice. (/) So where the condition of a bond was that the obligor should serve the obligee half a year, and in an action of debt on the bond, the defendant pleaded that he had served him half a year at D., in the county of K., and the plaintiff replied that he had not served him half a year at D. in the county of K. ; this was adjudged to be a bad traverse, as involving the place, which was immaterial. * * * * * [So where the plaintiff sued the defendant for cutting down his mill dam, and the defendant pleaded that the plaintiff's dam was erected without authority of law, and obstructed a public road and ford, and that the defendant in order to abate the nuisance peaceably cut down and removed a part of said dam, the replica- tion of the plaintiff that the mill dam did not entirely obstruct the public road and ford, and that citizens were not altogether prevented from using the same, was held to be too large a traverse as it tended to raise an immaterial issue upon the extent of the obstruction when any obstruction at all was illegal and justified the defendant's conduct. 3 In an action of debt against three or more defendants, if the breach alleged is that the defendants have not, nor hath either of them, paid the debt in the declaration mentioned, the breach is too small, as two of them together may have paid it. If the breach is that the defendants have not, nor hath any, nor hath either of them, nor hath any other person paid the debt in the declaration mentioned, the breach is too large, in that it includes persons not liable for the debt, though at the present day this would probably be treated as surplusage.] Again : a traverse may be too large, by being taken in the con- junctive, instead of the disjunctive, where it is not material that the allegation traversed should be proved conjunctively. Thus, in an action of assumpsit, the plaintiff declared on a policy of insurance, and averred, "that the ship insured did not arrive in safety; but that the said ship, tackle, apparel, ordnance, muni- tion, artillery, boat, and other furniture, were sunk and destroyed (/) Colborne v. Stockdale, Str. 493; 8 Mod. 58, S. C. 8. Dimmett v. Eskridge, 6 Munf. 308. 451 PLEADINGS MUST CONTAIN PERTINENT MATTER 891 in the said voyage." The defendant pleaded with a traverse, "Without this, that the said ship, her tackle, apparel, ordnance, munition, artillery, boat, and other furniture, were sunk and de- stroyed in the voyage, in manner and form as alleged." Upon demurrer, this traverse was adjudged to be bad; and it was held that the defendant ought to have denied disjunctively that the ship, or tackle, etc., was sunk or destroyed ; because in this action for damages the plaintiff would be entitled to recover com- pensation for any part of that which was the subject of insur- ance, and had been lost: whereas (it was said,) if issue had been taken in the conjunctive form, in which the plea was pleaded, "and the defendant should prove, that only a cable or anchor ar- rived in safety, he would be acquitted of the whole. "(g) On the other hand, however, a party may, in general, traverse a material allegation of title or estate, to the extent to which it is alleged, though it need not have been alleged to that extent; and such -traverse will not be considered as too large. (h) For ex- ample : in an action of replevin, the defendant avowed the taking of the cattle, as damage feasant in the place in which, etc.; the same being the freehold of Sir F. L. To this the plaintiff pleaded, that he was seized in his demesne, as of fee, of B. close, adjoining to the place in which, etc. ; that Sir F. L. was bound to repair the fence between B. close and the place in which, etc. ; and that the cattle escaped, through a defect of that fence. The defend- ant traversed, that the plaintiff was seized in his demesne, as of fee, of B. close ; and on demurrer, the court was of opinion that it was a good traverse ; for though a less estate than a seizin in fee would have been sufficient to sustain the plaintiff's case, yet as the plaintiff, who should best know what estate he had, had pleaded a seizin in fee, his adversary was entitled to traverse the title so laid. ***** (g) Goram v. Sweeting, 2 Saund. 206. (h) Com. Dig., Pleader (G. 16); Sir Francis Leke's Case, Dy. 365: 2 Saund. 207a, n. 24; Wood v. Buddin, Hob. 119; Tatem v. Perient, Yelv. 195; Carvick v. Blagrave, 1 Brod. & Bing. 531; 1 Chitty, 586. 2 Str. 818, is apparently contra; but from the report of the same case, Ld. Ray. 1550, it may be reconciled with the other authorities. CHAPTER LI. RULES WHICH TEND TO PRODUCE SINGLENESS OR UNITY IN THE ISSUE. RULE I. 452. Pleadings must not be double. 453. Several demands. 454. Several defendants. 455. Illustrations. 456. Several counts. 457. Several pleas. 458. Several replications. RULE II. 459. It is not allowable both to plead and to demur to the same matter. RULE I. 452. Pleadings must not be double. (a) 1 This rule applies both to the declaration and subsequent plead- ings. Its meaning with respect to the former is that the declara- tion must not, in support of a single demand, allege several distinct matters, by any one of which that demand is sufficiently supported. With respect to the subsequent pleadings, the mean- ing is that none of them is to contain several distinct answers to that which preceded it; and the reason of the rule in each case is that such pleading tends to several issues in respect of a single claim, (b) The rule, it may be observed, in its terms points to doubleness only; as if it prohibited only the use of two allegations, or an- swers, of this description; but its meaning, of course, equally (a) Com. Dig., Pleader (c. 33), (E. 2), (F. 16); Bac. Ab., Pleas, etc. (K.); Humphreys v. Bethily, 2 Vent. 198, 222; Doct. PI. 135. (&) La cause est pur ceo, que deux issues purroient estr pris sur les plees. Per Fincheden, 40 Ed. 3, 45. See also, 15 Ed. 4, 1. 1. See ante, 199. 452 PLEADINGS MUST NOT BE DOUBLE 893 extends to the case of more than two, the term doubleness, or duplicity, being applied (though with some inaccuracy) to either case. ***** [The following are examples of duplicity in a declaration : The plaintiff in the same count of his declaration charged negli- gence on the part of defendant in the employment of its serv- ants, and also negligence on the part of the servants themselves, thus stating two separate and distinct causes of action in a single count. 2 In an action of trespass the plaintiff claimed damages in the same count for trespassing on certain land in his possession, and for assaulting and beating his person, "on or about" a spec- ified date. It was held that the count was bad for duplicity, that it failed to show that the two trespasses were the same transac- tion. 3 The plaintiff declared in slander in a single count upon three sets of words spoken at different times on the same day to the same persons concerning the plaintiff's intemperance, his insol- vency, and his failure to prevent boys under his control from stealing apples. The count was held bad for duplicity. So also it has been held that a count averring both simple negligence and wanton and wilful wrong is bad for duplicity. 4 The following is an example of duplicity in a plea in abate- ment: A plea in abatement of the writ set forth (a) That one H., a co-defendant of the G company, was not a citizen of the city of L, and hence, that the writ against the G company could not be sent out of the city for service, and (b) that the persons on whom service was made were not agents of the G company. It was held that the plea was bad for duplicity, as it stated two distinct and separate defences, either of which if true would necessitate a finding in favor of the defendant tendering the plea. 5 The following is an example of duplicity in a plea in bar: In an action of debt on a bond the defendant set up two distinct 2. Southern R. Go. v. Simmons, 105 Va. 651, 55 S. E. 459. 3. Henry v. Carleton, 113 Ala. 636, 21 South. 225. 4. Anniston Electric Co. v. Rosen, 159 Ala. 195, 48 South. 798. 5. Guarantee Co. v. First Nat. Bank, 95 Va. 480, 28 S. E. 909. 894 SINGLENESS OP ISSUE 453-454 grounds of defence in a single plea, (a) breach of warranty, and, (b) partial failure of consideration. The plea was held bad for duplicity. 6 Duplicity occurs only where two or more causes of action are set up in a single count of a declaration, or two or more defences are set up in a single plea. It is easily avoided by setting out the different causes of action in separate counts of the declaration, or setting up the different defences by separate pleas. Duplicity is a matter of form only, and could be taken advantage of, even at common law, only by special demurrer. In Virginia special de- murrers have been abolished except as to pleas in abatement, and it has been doubted whether the objection of duplicity to a plea in bar can be raised -at all. It has been distinctly held that du- plicity is not a ground of objection to a declaration. 7 It has been pointed out, however, that the objection on account of duplicity to a plea, or other subsequent pleading, may be made by a mo- tion to exclude when offered, or to strike out after it has been received. 8 ] 453. Several demands. The object of this rule being to enforce a single issue, upon a single subject of claim, admitting of several issues, where the claims are distinct, the rule is accordingly carried no further than this in its application. The declaration therefore may, in support of several demands, allege as many distinct matters as are re- spectively applicable to each. 454. Several defendants. Again, if there be several defendants, the rule against duplicity is not carried so far as to compel each of them to make the same answer to the declaration. Each defendant is at liberty to use such plea as he may think proper for his own defence, and they 6. Cunningham v. Smith, 10 Gratt. 255. 7. Southern Ry. Co. v. Simmons, 105 Va. 651, 55 S. E. 459. 8. Ante, 199; C. & O. v. Rison, 99 Va. 18, 37 S. E. 420, 6 Va. Law Reg. 655, and note. 455 ILLUSTRATIONS 895 may either join in the same plea or sever, at their discretion. (c) But if the defendants have once united in the plea, they cannot afterwards sever at the rejoinder, or other later stage of the pleading. Where in respect of several subjects or several defendants a severance has thus taken place in the pleading, this may of course lead to a corresponding severance in the whole subsequent series ; and (as the ultimate effect) to the production of several issues. And where there are several issues, they may respectively be decided in favor of different parties, and the judgment will fol- low the same division. Such being in general the nature of duplicity, the following rules or points of remark will tend to its further illustration. 455. Illustrations. 1. A pleading will be double that contains several answers, whatever be the class or quality of the ansu'er. Thus, it will be double by containing several matters in abatement, or several matters in bar;(d) or by containing one matter in abatement and another in bar.(^) So a pleading will be double by contain- ing several matters in confession and avoidance, or several an- swers by way of traverse ; or by combining a traverse with a matter in confession and avoidance. (/) 2. Matter may suffice io make a pleading double though it be ill-pleaded. Thus in trespass for assault and battery, the defend- ant pleaded that he committed the trespasses in the moderate cor- rection of the plaintiff as his servant; and further pleaded, that since that time the plaintiff had discharged and released to him the said trespasses, without alleging, as he ought to have done, a release under seal. The court held that this plea was double, the (c) Co. Litt. 303a. It is said, however, Essengton v. Boucher, Hob. 245, that they cannot sever in dilatory pleas. Sed qu.? See Cupple- dick v. Terwhit, Hob. 250. (d) Com. Dig., Pleader (E. 2); and see the cases already cited on the subject of duplicity. O) Scmb. Com. Dig., Pleader (E. 2); Bleeke v. Grove, 1 Sid. 176. (/) Com. Dig., Pleader (E. 2); Bac. Ab., Pleas, etc. (K.); and see the cases already cited. 896 SINGLENESS OF ISSUE 455 moderate correction and the release being each a matter of de- fence; and though the release was insufficiently pleaded, yet as it was a matter, that a material issue might have been taken upon, it sufficed to make the plea double, (g) [In an action against the Comptroller of Public Accounts of Florida and his sureties on his official bond for a breach of the condition of the bond, the defendants pleaded the performance of all his duties as comptroller, and also the tender in warrants on the treasurer of the Territory of Florida. It was held that this plea was double, notwithstanding the fact that the defence of tender was not well pleaded, in as much as the treasury notes mentioned were not legal tenders. In other words, that the tender was material and rendered the plea double, although ill- pleaded.] 9 On the other hand, it seems that: 3. Matters immaterial cannot operate to make a pleading double. (h} Thus, in an action by the executors of J. G. on a bond conditioned that the defendant should warrant to J. G. a certain meadow, the defendant pleaded that the said meadow was copyhold of a certain manor, and that there is a custom within the manor that if the customary tenants fail in payment of their rents and services, or com- mit waste, then the lord for the time being may enter for for- feiture; and that the said J. G., during his life peaceably en- joyed the meadow; which descended after his death to one B.. his son and heir; who, of his own wrong, entered without the ad- mission of the lord, against the custom of the manor ; and because three shillings of rent were in arrear on such a day, the lord en- tered into the meadow as into lands forfeited. On demurrer it was objected, among other things, that the plea was double, be- cause in showing the forfeiture to have occurred by the heir's own wrongful act two several matters are alleged : First, that (g) Bac. Ab., Pleas, etc. (K.), 2; Bleeke v. Grove, Sid. 175. (h) Bac. Ab., Pleas, etc. (K.), 2; 1 Hen. 7, 16; Countess of North- umberland'^ Case, 5 Rep. 98a; Executors of Grenelefe, Dyer, 42b.; Doct. PI. 138. 9. Bemis v. State, 3 Florida 16. 455 ILLUSTRATIONS . 897 he entered without admission, against the custom ; secondly, that three shillings of rent were in arrear. But the judges held, that the only sufficient cause of forfeiture was the non-payment of rent; that there being no custom alleged for forfeiture in respect of entry without admission, the averment of such entry was mere surplusage, and could not therefore avail to make the plea double, (i) It is, however, to be observed, that the plea seems to rely on the non-payment of the rent as the only ground of forfei- ture ; for it alleges, that "because three shillings of the rent were in arrear the lord entered," and the court noticed this circum- stance. The case, therefore, does not explicitly decide that where two several matters are 'not only pleaded, but relied upon, th'e immateriality of one of them shall prevent duplicity; but the manner in which the judges express themselves seems to show that the doctrine goes to that extent ; and there are other author- ities the same way.(/) This doctrine that a plea may be rendered double by matter ill-pleaded, but not by immaterial matter, quite accords with the object of the rule against duplicity, as formerly explained. That object is the avoidance of several issues. Now whether a matter be well or ill-pleaded, yet if it be sufficient in substance, so that the opposite party may go to issue upon it, if he chooses to plead over, without taking the formal objection, such matter tends to the production of a separate issue ; and is on that ground held to make the pleading double. On the other hand, if the matter be immaterial, no issue can properly be taken upon it : it does not tend, therefore, to a separate issue, nor, consequently, fall within the rule against duplicity. 4. No matter will operate to make a pleading double, that is pleaded only as necessary inducement to another allegation. Thus, it may be pleaded without duplicity that after the cause of action accrued, the plaintiff (a woman) took husband, and that the husband afterwards released the defendant; for though the coverture is itself a defence, as well as the release, yet the aver- ment of the coverture is a necessary introduction to that of the (0 Executors of Grenelefe, Dyer, 42, b. (;) Bac. Ab., Pleas, etc. (K.), 2. 57 898 SINGLENESS OF ISSUE 455 release. (k) This exception to the general rule is prescribed by an evident principle of justice; for the party has a right to rely on any single matter that he pleases in preference to another, as in this instance, on the release in preference to the coverture ; but if a necessary inducement to the matter on which he relies, when itself amounting a defence, were held to make his pleading dou- ble, the effect would be to exclude him from this right, and com- pel him to rely on the inducement only. 5. No matters, hozvever multifarious, will operate to make a pleading double, that together constitute but one connected prop- osition or entire point. * * * * * [Thus in an action of debt to recover the price of fertilizer, the defendant filed a special plea by way of set-off in which he averred ( 1 ) that the plaintiff warranted the fertilizer to be as good a fertilizer and as well adapted to potatoes as any other on the market at a like price, and (2) that the fertilizer was as good a potato special as any other on the market. It was objected that the plea was bad for duplicity, but it was held that the matters al- leged constituted but one entire and indivisible contract of war- ranty, and that it would have been bad pleading to split up the causes of action. The above rule of the text was cited. 10 Again, a plea to the jurisdiction negativing every ground of jurisdiction given by the statute was objected to as bad for duplicity; it was held that not only was the plea not bad, but the averments were essential in order to make the plea good. 11 In an action on an in- surance policy the defendant pleaded a breach of warranty of the value of the property insured. The plaintiff replied that she esti- mated the cost, that the company's agent then and there inspected the property, was as well informed as to its value as she was, con- curred in her estimate and inserted it in her application. The defendant objected to this replication as being bad for duplicity, (k) Bac. Ab., Pleas, etc. (K.), 2; Com. Dig., Pleader (E. 2). See also, Rowles v. Rusty, 4 Bing. 428. 10. Reese 'v. Bates, 94 Va. 221, 26 S. E. 865. 11. Deatrick v. Insurance Co., 107 Va. 602, 59 S. E. 489. 455 ILLUSTRATIONS 899 but it was held that the matters stated, though multifarious, con- stituted but one connected proposition or entire point, and hence did not operate to make the pleading double.] 12 6. "The general issue as construed has become in truth a dou- ble plea. In some cases the general issues appear to partake of the nature of these cumulative traverses. For some of them are so framed as to convey a denial, not of any particular fact, but generally of the whole matter alleged as not guilty, in trespass or trespass on the case, and nil debet, in debt. And in assumpsit the case is the same in effect, according to a relaxation of prac- tice formerly explained, by which the defendant is permitted, un- der the general issue, in that action, to avail himself (with some few exceptions) of any matter tending to disprove his liability. The consequence is that under these general issues the defendant has the advantage of disputing, and therefore of putting the plain- tiff to the proof of, every averment in the declaration. Thus, by pleading not guilty in trespass quare clausum fregit, he is enabled to deny at the trial both that the land was the plaintiff's and that he committed upon it the trespass in question, and the plaintiff must establish both these points in evidence. Indeed, besides this advantage of double denial, the defendant obtains, under the gen- eral issue in assumpsit and other actions of trespass on the case, the advantage of double pleading in confession and avoidance. For as, upon the principles formerly explained, he is allowed in these actions to bring forward, upon the general issue, almost any matters (though in the nature of confession and avoidance) which tend to disprove his debt or liability, so he is not limited (as he would be in special pleading) to a reliance on any single matter of this description, but may set up any number of these defences. While such is the effect of many of the general issues in mitigating or evading the rule against duplicity, the remark does not apply to all. Thus the general issue of non est factum raises only a single question, namely, whether the defendant exe- cuted a valid and genuine deed such as is alleged in the declara- tion. The defendant may, under this plea, insist that the deed was not executed by him, or that it was executed under circum- 12. Virginia Fire & Marine Ins. Co. v. Saunders, 86 Va. 969, 11 S. E. 794. 900 SINGLENESS OF ISSUE; 456 stances which annul its effect as a deed, but can set up no other kind of defence." 13 456. Several counts. The rule against duplicity in pleading being now explained, it is necessary in the next place to advert to certain modes of prac- tice, by which the effect of that rule is materially qualified. These are the use of several counts and the allowance of several pleas; the former being grounded on ancient practice, the latter on the stat. 4 Anne, c. 16. First shall be considered the subject of several counts. Where a plaintiff has several distinct causes of action, he is al- lowed to pursue them cumulatively in the same suit, subject to certain rules which the law prescribes as to joining such demands only as are of similar quality or character. (/) Thus, he may join a claim of debt on bond with a claim of debt on simple contract, and pursue his remedy for both by the same action of debt. So if several distinct trespasses have been committed, these may all form the subject of one declaration in trespass, but, on the other hand, a plaintiff cannot join in the same suit a claim of debt on bond, and a complaint of trespass ; these being dissimilar in kind. Such different claims or complaints, when capable of being joined, constitute different parts or sections of the declarations ; and are known in pleading by the description of several counts. [Joinder of Actions. The general rule is that demands against the same party may be joined when they are all of the same na- ture and the same judgment has to be given in each, notwithstand- ing the pleas may be different. Each demand, however, must be set out in a separate count in the declaration. Thus, several de- mands in the nature of debt may be joined, although some of the evidences of debt are under seal and others not. Several actions of tort may be joined in the same action of trespass, but tort and contract cannot be united, nor can several species of action be united in one declaration, although they may all be ex contractu or ex delicto ; thus, at common law trespass could not be united (/) Upon this subject, see Bac. Ab., Actions (c). 13. Andrews Stephen's Pleading (2nd Ed.), 183. 456 SEVERAL COUNTS 901 with case, but in Virginia it is declared by statute that wherever trespass would like case may be brought. 14 Common law and statutory slander may be united in the same declaration but can- not be blended in the same count, and if it is intended to sue un- der the statute, as for insult, it must in some way be made to ap- pear in the declaration that the plaintiff is proceeding under the statute. 15 It may also be observed that where the causes of ac- tion might have been united in a single action, but the plaintiff has brought several actions, he may be compelled to consolidate them, and to pay the extra costs. As the same judgment must be given in all, it is manifest that demands against a party personally cannot be united with de- mands against him in a fiduciary capacity, as the judgment in one case would be a personal judgment, and in the other, to be paid out of the estate of the decedent in the hands of the defendant to be administered. While it is provided by 2855 of the Virginia Code that the personal representative of a deceased partner, or other joint obligor, may be sued in the same manner as such rep- resentative might have been charged, if those bound jointly, or as partners had been bound severally as well as jointly, otherwise than as partners, they cannot be sued together in separate counts in the same declaration in an ordinary action at law, but separate actions must be brought against each. This, however, is not true if, instead of a common law action, the proceeding be by motion, for it is also provided by statute that a person entitled to obtain judgment for money on motion, may, as to any, or the personal representatives of any person liable for such money, move sev- erally against each, or jointly against all, or jointly against any intermediate number * * * provided that judgment against such personal representatives shall in all cases be several.] 16 In order to give the unlearned reader an exact idea of the nature of several counts, it may be useful to lay before him an example. If the plaintiff has to complain of several assaults, he may thus frame his declaration : 14. Code, 2901. 15. Hogan z-. Wilmoth, 16 Gratt. 80. 16. Code, 3212. 902 SINGLENESS OF ISSUE 456 DECLARATION IN TRESPASS. For an Assault and Battery. In the King's Bench. The day of - , in the year of our Lord - . - to wit, A. B. (the plaintiff in this suit,) by E. F., his attorney, complains of C. D. (defendant in this suit,) who has been summoned to answer the said plaintiff in an action of tres- pass : For that the said defendant heretofore, to wit, on the day of - , in the year of our Lord, - , with force and arms, made an assault upon the said plaintiff, and beat, wounded, and ill-treated him, so that his life was despaired of. And also for that the said defendant heretofore to wit, on the day and year aforesaid, with force and arms, at - - aforesaid, in the county aforesaid, made another assault upon the said plaintiff, and again beat, wounded, and ill-treated him, so that his life was despaired of, and other wrongs to him then and there did, against the peace of our said lord the king, and to the damage of the said plaintiff of - - pounds ; and therefore he brings his suit, etc. When several counts are thus used the defendant may, accord- ing to the nature of the defence, demur to the whole, or plead a single plea applying to the whole ; or may demur to one count, and plead to another, or plead a several plea to each count ; and in the two latter cases the result may be a corresponding sever- ance in the subsequent pleadings, and the production of several issues. But whether one or more issues be produced, if the decision, whether in law or fact, be in the plaintiff's favor as to any one or more counts, he is entitled to judgment pro tanto, though he fail as to the remainder. It is to be observed that several causes of action do not always form the subject of several counts, but are sometimes thrown, for the sake of brevity and convenience, into one ; and in the actions of debt and assumpsit the claims of most frequent occur- rence, viz, those for goods sold, for work done, for money lent, for money paid, for money received to the use of the plaintiff, for money due on an account stated, are always condensed (when they occur in the same action) into a single count, pursuant to a form lately promulgated by rule of court. 457 SEVERAL PLEAS 903 457. Several Pleas. 17 The next subject for consideration is that of several pleas. It has been already stated, that the rule against duplicity does not prevent a defendant from giving distinct answers to dif- ferent complaints on the part of the plaintiff. To several counts, or to distinct parts of the same count, he may therefore plead several pleas, viz, one to each. Thus, in an action of trespass for two assaults and batteries, he may plead as to the first count not guilty, and as to the second the statute of limitations, viz, that he was not guilty within four years ; and the following is an example of the form in which this may be done : PLEAS. In Trespass for Assault and Battery. And the said defendant, by his attorney, as to the first count of the said declaration says, that he is not guilty of the said trespass therein mentioned, or any part thereof, in manner and form as the said A. B. hath above thereof complained. And of this the said C. D. puts himself upon the country. And as to the second count of the said declaration, the said defendant says, that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that he the said de- fendant was not, at any time within four years next before the commencement of this suit, guilty of the said trespasses in the second count mentioned, or any part thereof, in manner and form as the said plaintiff hath above complained. And this the said defendant is ready to verify. Whereupon he prays judg- ment if the said plaintiff ought to have or maintain his aforesaid action thereof against him. Nor is the defendant in pleading different pleas to different parts of the declaration, confined to pleas of the same kind. Thus it is laid down, that he may plead in abatement to part and in bar to the residue. But it may also happen that a defendant may have several dis- tinct answers to give to the same claim or complaint. Thus to an action of trespass for two assaults and batteries, he may have ground to deny both the trespass, and also to allege that they 17. For the present state of the law in Virginia, see ante, 198. 904 SINGLENESS OP ISSUE 457 were neither of them committed within four years. Anterior, however, to the regulation which will be presently mentioned, it was not competent for him to plead these several answers to both trespasses, as that would have been an infringement of the rule against duplicity. The defendant was therefore obliged to elect between his different defences, where more than one thus hap- pened to present themselves, and to rely on that, which in point of law or fact he might deem most impregnable. But as a mis- take in that selection might occasion the loss of the cause, con- trary to the real merits of the case, this restriction against the use of several pleas to the same matter, after being for ages observed in its original severity, was at length considered as contrary to the true principles of justice, and was accordingly relaxed by legislative enactment. The stat. 4 Anne, c. 16, s. 4, provides, that "it shall be lawful for any defendant or tenant in any action or suit, or for any plaintiff in replevin in any court of record, with leave of the court to plead as many several mat- ters thereto as he shall think necessary for his defence." Under this act the course is for the defendant, if he wishes to plead several matters to the same subject of demand or complaint, to apply previously for a rule of court permitting him to do so, and upon this, a rule is accordingly drawn up for that purpose. The form of pleading several pleas, where leave is thus granted, will' appear by the following example : PLEAS. In Trespass for Assault and Battery. And the said defendant, by - his attorney, says, that he is not guilty of the said trespasses above laid to his charge, or any part thereof, in manner and form as the said plaintiff hath above thereof complained. And of this the said defendant puts himself upon the country. And for a further plea in this behalf, the said defendant says, that he, the said defendant, was not at any time within four years next before the commencement of this suit, guilty of the said trespasses in the said declaration mentioned, or any part thereof, in manner and form as the said plaintiff hath above complained. And this the said defendant is ready to verify. When several pleas are pleaded either to different matters, or by virtue of the statute of Anne to the same matter, as in the 457 SEVERAL PLEAS 905 last example, the plaintiff may, according to the nature of his case, either demur to the whole, or demur to one plea and reply to the other, or make a several replication to each plea; and in the two latter cases the result may be a corresponding severance in the subsequent pleadings, and the production of several issues. But whether one or more issues be produced, if the decision, whether in law or fact, be in the defendant's favor as to any one or more pleas, he is entitled to judgment, though he fail as to the remainder i. e., he is entitled to judgment in respect of that subject of demand or complaint to which the successful plea relates; and if it were pleaded to the whole declaration, to judg- ment generally, though the plaintiff should succeed as to all the other pleas. The use of several pleas (though presumably intended by the statute to be allowed only in a case where there are really several grounds of defence), (w) is in practice sometimes carried fur- ther. For it was soon found that when there was a matter of de- fence by way of special plea, it was generally expedient to plead that matter in company with the general issue, whether there were any real ground for denying the declaration or not ; because the effect of this is to put the plaintiff to the proof of his declara- tion, or some material part of it, before it can become necessary for the defendant to establish his special plea ; and thus the de- fendant has the chance of succeeding, not on the strength of his own case, but by the failure of the plaintiff's proof. To this extent, therefore, is the use of several pleas now carried; and accordingly the form of pleading in the last of the above examples is in practice frequently adopted instead of that in the first, whether the truth of the case really warrants a denial of both counts or not. Some efforts, however, were at one time made to restrain this apparent abuse of the indulgence given by the statute. For that leave of the court, which the statute requires, was formerly often refused where the proposed subjects of plea appeared to be inconsistent; and on this ground leave has been refused to plead to the same trespass not guilty, and accord and satisfaction; or non cst factum and payment to the same de- Cm) See Lord Clinton v. Morton, 2 Str. 1000. 906 ' SINGLENESS OF ISSUE 458 mand.(w) But in modern practice, such pleas, notwithstanding the apparent repugnancy between them, are permitted ;(o) and the only pleas, perhaps, which have been uniformly disallowed on the mere ground of inconsistency, are those of the general issue and a tender. 458. Several replications. 18 On the subject of several pleas it is to be further observed that the statute of Anne extends to the case of pleas only, and not to replications or subsequent pleadings. These remain subject to the full operation of the common law against duplicity ; so that, though to each plea there may (as already stated) be a separate replication, yet there cannot be offered to the same plea, and in reference to the same matter of claim or complaint, more than a single replication, nor to the same replication more than one rejoinder, and so to the end of the series. The legislative pro- vision allowing several matters of plea was confined to that case, under the impression, probably, that it was in that part of the pleading that the hardship of the rule against duplicity was most seriously and frequently felt; and that the multiplicity of issues which would be occasioned by a further extension of the enact- ment would have been attended with expense and inconvenience more than equivalent to the advantage. The effect, however, of this state of law is somewhat remarkable ; for example, it em- powers a defendant to plead to a declaration in assumpsit for goods sold and delivered, 1. Non assumpsit; 2. That the cause of action did not accrue within six years ; 3. That he was an infant at the time of the contract. On the first plea the plaintiff has only to join issue; but with respect to each of the two last, he may have several answers to give. The case may be such as to afford either of these replications to the statute of limitations, viz, that the cause of action did accrue within six years, or that at the time the cause of action accrued, he was beyond sea, and (n) Com. Dig., Pleader (E. 2). (0) Vide 1 Sel. Practice, 299; 2 Chitty, 502; Rama Chitty v. Hume, 13 East, 255. 18. See ante, 198. 458 SEVERAL REPLICATIONS 907 that he commenced his suit within six years after his return. So to the plea of infancy, he may have ground for replying either that the defendant was not an infant, or that the goods for which the action is brought were necessaries suitable to the defendant's condition in life. Yet though the defendant had the advantage of his three pleas cumulatively, the plaintiff is obliged to make his election between these several answers, and can reply but one of them to each plea. It is also to be observed that the power of pleading several matters extends to pleas in bar only, and not to those of the dilatory class, with respect to which, the leave of the court will not be granted. (/>) Again, it is to be remarked, that the statute does not operate as a total abrogation, even with respect to pleas in bar, of the rule against duplicity. For in the first place it is necessary (as we have seen) to obtain the leave of the court to make use of several matters of defence. And each defence must besides be distinctly pleaded as a new or further plea ; so that notwithstand- ing the statute, and the leave of the court obtained in pursuance of it to plead several matters it would still be improper to in- corporate several matters in one plea, in any case in which the plea would be thereby rendered double at common law. By a very ancient relaxation of practice the rule against duplic- ity had, to a considerable extent, been evaded, by stating the same cause of action in various ways in the shape of several counts, and the same matter of defence in various ways in the shape of several pleas. But by the recent rule of Hil. T. 4 Will. 4, it is now provided that "several counts shall not be allowed unless a distinct subject-matter of complaint is intended to be established in respect of each, nor shall several pleas or avowries, or cognizances be allowed, unless a distinct ground of answer or defence is intended to be established in respect of each. Such is the nature and extent of the rule against double plead- ing. Under this rule it remains only to observe that if, instead of demurring for duplicity, the opposite party passes the fault by, and pleads over, he is in that case bound to answer each matter (/>) See 1 Sel. Pract. 275. 908 SINGLENESS OP ISSUE; 459 alleged ; and has no right, on the ground of the duplicity, to con- fine himself to any single part of the adverse statement. (q) RULE II. 459. It is not allowable both to plead and to demur to the same matter, (r) This rule depends on exactly the same principles as the last. As it is not allowable to plead double, lest several issues in fact in respect of the same matter should arise, so it is not permitted both to plead and demur to the same matter, lest an issue in fact and an issue in law, in respect of a single subject, should be pro- duced. The party must, therefore, make his election. The rule, however, it will be observed, only prohibits the plead- ing and demurring to the same matter. It does not forbid this course as applicable to distinct statements. Thus a man may plead to one count, or one plea, and demur to another. The rea- son of this distinction is sufficiently explained by the remarks already made on the subject of duplicity in pleading. Lastly, it is to be remarked that the statute of Anne, which authorizes the pleading of several pleas, gives no authority for demurring and pleading to the same matter. The rule now in question, therefore, is not affected by that provision ; but remains in the same state as at common law. 19 [In Virginia it is provided by statute that the defendant in any action may plead as many several matters, whether of law or fact, as he may think necessary, and he may file pleas in bar at the same time with pleas in abatement, or within a reasonable () This appears to be a correct general statement of the law with respect to demurrer for an impossible or inconsistent date; but the current of authorities is not quite clear and uniform on this subject. Vide Com. Dig., Pleader (c. 19); 2 Saund 201c, n. (1); ibid. 171a, n. (1); Ring v. Roxborough, 2 Tyr. 468. () 470. Particular estates. With respect to particular estates the general rule is that the commencement of particular estates must be shown. (q) If, therefore, a party sets up in his own favor an estate tail, an es- tate for life, a term of years, or a tenancy at will, he must show the derivation of that title from its commencement : that is, from the last seizin in fee simple ; and if derived by alienation or con- veyance, the substance and effect of such conveyance should be precisely set forth. ***** To the rule that the commencement of particular estates must be shown, there is this exception, that it need not be shown where the title is alleged by way of inducement only.(r) Thus, if an action of debt or covenant be brought on an indenture of lease by the executor or assignee of a lessor, who had been entitled for a term of years, it is necessary in the declaration to state the title of the lessor, in order to show that the plaintiff is entitled to maintain the action as his representative or assignee. But as the title is in that case alleged by way of inducement only (the action being mainly founded on the lease itself), the particular estate for years may be alleged in the lessor, without showing its com- mencement. (/) See Upper Bench Precedents, 196, cited 9 Went. i (g) Co. Litt. 303b; Scilly v. Dally, 2 Salk. 562; Garth. 444, S. C.; Searl r. Bunnion, 2 Mod. 70; Johns v. Whitley, 3 Wils. 72; Hendy r. Stephenson, 10 East, 60; Rast. Ent. 656. (r) Com. Dig., Pleader (E. 19), (C. 43); Blockley v. Slater. Lutw. 120; Searl v. Bunnion, 2 Mod. 70; Scilly v. Dally, Carth, 444. 59 930 CERTAINTY OF ISSUE 471 471. Additional rules on derivation of title. On the subject of the deriifation of title, the following addi- tional rules may be collected from the books : First, Where a party claims by inheritance, he must in general show how he is heir, viz, as son or otherwise ](s} and if he claim by mediate, not immediate descent, he must show the pedigree; for example, if he claims as nephew, he must show how nephew, (t) Secondly, Where a party claims by conveyance or alienation, the nature of the conveyance and alienation must in general be stated, as whether it be by devise, feoffment, etc.(w) Thirdly, The nature of the conveyance or alienation should be stated according to its legal effect, rather than its form of words. This depends on a more general rule, which we shall have occa- sion to consider in another place, viz, "that things are to be pleaded according to their legal effect or operation. For the present, the doctrine, as applicable to conveyances, may be thus illustrated : In pleading a conveyance for life with livery of seizin, the proper form is to allege it as a "demise" for lif ,(?/) for such is its effect in proper legal description. So a conveyance in tail, with livery, is always pleaded on the same principle as a "gift" in tail;(w) and a conveyance of the fee, with livery, is described by the term "enfeoffed."(.r) And such would be the form of pleading whatever might be the words of donation used in the instrument itself, which in all the three cases are often the same, viz, those of "give" and "grant." (y) So in a convey- ance by lease and release, though the words of the deed of re- lease be "grant, bargain, sell, alien, release, and confirm," yet it (s) Denham v. Stephenson, 1 Salk. 355; Duke of Newcastle v. Wright, 1 Lev. 190; 1 Lord Raym. 202. (t) Dunsday v. Hughes, 3 Bos. & Pul. 453; Blackborough v. Davis, 12 Mod. 619. (w) ,See Com. Dig., Pleader (E. 23), (E. 24). (v) Rast. Ent. 647a, lid. (w) See Co. Ent., tit. Formedon, etc. (*) Upper Bench Free. 196. See 2 Chitty, 214; Co. Litt, 9a. - 8 Reps. 82b. (y) "Do or dedi is the aptest word of feoffment." Co. Litt. 9a. 471 ADDITIONAL RULES ON DERIVATION OF TITLE 931 should be pleaded as a release only, for that is the legal effect, (z) So a surrender (whatever words are used in the instrument) should be pleaded with sursum reddidit which alone in pleading describes the operation of a conveyance as a surrender. Fourthly, Where the nature of the conveyance is such that it would at common law be valid without deed or writing, there no deed or writing need be alleged in the pleading, though such doc- ument may in fact exist; but where the nature of the conveyance requires at common law a deed or other written instrument, such instrument must be alleged. (a) Therefore a conveyance with livery of seizin, either in fee, tail, or for life, is pleaded without alleging any charter or other writing of feoffment, gift, or de- mise, whether such instrument in fact accompanied the convey- ance or not. For such conveyance might at common law be made by parol only;(&) and though by the statute of frauds, 29 Car. II, c. 3, s. 1, it will not now be valid unless made in writing, yet the form of pleading remains the same as before the act of parliament. (c) On the other hand, a devise of lands (which at common law was not valid, and authorized only by the statutes 32 Hen. 8, c. 1, and 34 Hen. 8, c. 5), must be alleged to have been made in writing ;(d) which is the only form in which the statutes authorize it to be made. So if a conveyance by way of grant be pleaded, a deed must be alleged ;(e) for matters that "lie in grant" (according to the legal phrase) can pass by deed only. (/) There is one case, however, in which a deed is usually alleged in pleading, though not necessary at common law to the convey- ance, and which, therefore, in practice at least, forms an excep- tion to the above rule. For in making title under a lease for (r) 2 Chitty, 220, note (i) ; 1 Arch. 127; 3 Went. 483, 515. (a) Vin. Ab., Faits or Deeds (M. a, 11). (&) Vin. Ab., Feoffment (Y.); Co. Litt. 121b. (c) This depends upon a more general rule, viz, that regulations introduced by statute, do not alter the form of pleading at common law. This rule will be noticed hereafter in its proper place. (rf) 1 Saund. 276a, n. 2. O) Porter v. Gray, Cro. Eliz. 245; 1 Saund. 234, n. 3. (/) Vin. Ab., tit. Grants (G. a.). 932 CERTAINTY OF ISSUE 472 years by indenture, it is usual to plead the indenture, (g) though the lease was good at common law, by parol, and needs to be in writing only where the term is of more than three years duration, and then only by the statute of frauds. On the other hand, in the case where a demise by husband and wife is pleaded, it seems that it is not necessary to show that it was by deed; and yet the lease, if without deed, is at common law void as to the wife, after the death of the husband, and is not within the stat. 32 Hen. 8, c. 28, s. 1, which gives efficacy to leases by persons having an estate in right of their wives, etc., only where such leases are "by writing indented under seal." The reason seems to be, that a lease by husband and wife, though without deed, is good during the life of the husband, (h) 472. Plea of liberum tenementum. Thus far with respect to the allegation of title in general. There are, however, certain excepted cases in which different and less precise modes of laying title are permitted. 1. It is occasionally sufficient to allege what may be called a general freehold title. In a plea in trespass quare clausum fregit, or an avowry in re- plevin, (i) if the defendant claim an estate of freehold in the locus in quo, he is allowed to plead generally that the place is his "close, soil, and freehold." This is called the plea or avowry of liberum tenementum, and it may be convenient here to give the form of it. PLEA. Of Liberum Tenementum.^ 5 In Trespass Quare Clausum Fregit. And for a further plea in this behalf as to the breaking and (g) 2 Chitty, 555, example. (h) 2 Saund. 189a, n. (9); Wiscot's Case, 2 Rep. 61b; Dyer, 91b; Bateman v. Allen, Cro. Eliz. 438; Childs v. Wescott, id. 482. (t) 1 Saund. 347d, n. 6. 15. In some states it is held that the plea of liberum tenementum must be specially plead to put the title in issue, and that the title 472 PI,EA OP LIBERUM TENEMENTUM 933 entering the said close, in which, etc., in the said declaration mentioned, and with feet in walking, treading down, trampling upon, consuming and spoiling the grass and herbage then and there growing, the said defendant says, that the said plaintiff ought not to have or maintain his aforesaid action thereof against him ; because he says, that the said close in the said declaration mentioned, and in which, etc., now is, and at .the several times, when etc., was the close, soil, and freehold of him the said de- fendant. Wherefore he the said defendant at the said several times when, etc., broke and entered the said close in which, etc., and with feet in walking trod down, trampled upon, consumed, and spoiled the grass and herbage then and there growing, as he lawfully might for the cause aforesaid, which are the same trespasses in the introductory part of this plea mentioned, and whereof the said plaintiff hath above complained. And this the said defendant is ready to verify. Wherefore he prays judg- ment if the said plaintiff ought to have or maintain his aforesaid action thereof against him.(/) This allegation of a general freehold title will be sustained by proof of any estate of freehold, whether in fee, in tail, or for life only, and whether in possession, or expectant on the deter- mination of a term of years. (&) But it does not apply to the case of a freehold estate in remainder or reversion expectant on a particular estate of freehold, nor to copyhold tenure. The plea of avowry of liberum tenementum is the only case of usual occurrence in modern practice in which the allegation of (;) 2 Chitty, 551. (&) See 5 Hen. 7, lOa, PI. 2, which shows that where there is a lease for years, it must be replied in confession and avoidance, and is no ground for traversing the plea of liberum tenementum. cannot be drawn in issue by plea of not guilty in an action of tres- pass quaere clausum fregit. The rule is otherwise in Virginia, though the question was decided by a divided court, two judges out of five holding that the title was not put in issue by a plea of not guilty. The majority of the court, however, held that the judgment in an action of trespass to recover the value of, or damages to, timber cut from the land was conclusive of the question of title to the land so far as it affected the plaintiff's right to recover such value or damages, even though no plea of liberum tenementum was filed, but only the plea of not guilty. Douglas Land Company v. T. W. Thayer Company, 113 Va. 238, 74 S. E. 215. 934 CERTAINTY OF ISSUE 473 a general freehold title, in lieu of a precise allegation of title is sufficient. (/) 16 This plea may appear at first sight opposed to principle, as giving no color to the plaintiff. It has been long ago decided, however, that it is not open to this objection ; because, though it asserts the freehold, to be in the defendant, it does not exclude the possibility of the plaintiff's being possessed of the premises for a term of years; and it leaves him, therefore, a sufficient color to maintain the action. The same doctrine is also held with respect to a plea that the defendant is seized in fee; for this, like the general plea of freehold, is compatible with the plaintiff's posses- sion for a term'of years. But (as we have elsewhere seen) a plea that J. S. was seized in fee, and demised to the defendant for years, is bad for want of color, unless express color be given. In alleging a general freehold title, it is not necessary (as ap- pears by the above example) to show its commencement. 473. Title of possession. 2. It is often sufficient to allege a title of mere possession. The form of laying a title of possession, in respect of goods and chattels, is either to allege that they were the "goods and chattels of the plaintiff," or that he was "lawfully possessed of them as of his own property." With respect to corporeal here- ditaments, the form is, either to allege that the close, etc., was the "close of" the plaintiff, or that he was "lawfully possessed of a certain close," etc. With respect to incorporeal hereditaments, a title of possession is generally laid, by alleging that the plaintiff was possessed of the corporeal thing, in respect of which the right is claimed, and by reason thereof was entitled to the right at the time in question ; for example, that he "was possessed of a certain messuage, etc., and by reason thereof, during all the time aforesaid, of right ought to have had common of pasture, etc. (/) See 1 Saund. 347d, n. 6. This form of allegation occurred, however, in the now disused actions of assize, the count or plaint in which lays only a general freehold title. Dock. PL 289. 16. Fort Dearborn Lodge v. Klein, 115 111. 177, 3 N. E. 272. 474-475 WHEN TITLE OF POSSESSION is SUFFICIENT 935 474. When title of possession is applicable. A title of possession is applicable that is, will be sufficiently sustained by the proof in all cases where the interest is of a pres- ent and immediate kind. Thus when a title of possession is al- leged with respect to goods and chattels, the statement will be supported by proof of any kind of present interest in them, whether that interest be temporary and special, or absolute in its nature as for example, whether it be that of a carrier or finder only, or that of an owner and proprietor. (m) So, where a title in possession is alleged in respect of corporeal or incorporeal hereditaments, it will be sufficiently maintained by proving any kind of estate in possession, whether fee simple, fee tail, for life, for term of years, or otherwise. On the other hand, with re- spect to any kind of property, a title of possession would not be sustained in evidence, by proof of an interest in remainder or reversion only: and therefore, when the interest is of that de- scription, the preceding forms are inapplicable ; and title must be laid in remainder or reversion according to the fact. 475. When title of possession is sufficient. Where a title of possession is applicable, the allegation of it is in many cases sufficient in pleading, without showing title of a superior kind. The rule on this subject is as follows that it is sufficient to allege possession as against a wrongdoer ;(n) or, in other words, that it is enough to lay a title of possession against a person, who is stated to have committed an injury to such pos- session, having as far as it appears no title himself. Thus, if the plaintiff declares in trespass, for breaking and entering his close, or in trespass on the case, for obstructing his right of way, it is enough to allege in the declaration, in the first case, that it is the "close of the plaintiff," in the second case, that "he was possessed of a certain messuage, etc., and by reason of such possession, of right ought to have had a certain way," etc. For if the case was, (0 2 Saund. 47a, n. 1. (n) Com. Dig., Pleader (C. 39), (C. 41); Taylor v. Eastwood, 1 East. 212; Grimstead v. Marlowe, 4 T. R. 717; Greenhow v. Ilsley, Willes 619; Waring v. Griffiths, 1 Burr. 440; Langford v. Webber, 3 Mod. 132. 936 CERTAINTY OF ISSUE 475 that the plaintiff being possessed of the close, the defendant hav- ing himself no title, broke and entered it, or, that the plaintiff being possessed of a messuage and right of way, the defendant being without title, obstructed it, then whatever was the nature and extent of the plaintiff's title in either case, the law will give him damages for the injury to his possession ; and it is the pos- session therefore, only, that needs to be stated. It is true that it does not yet appear that the defendant had no title, and, by his plea, he may possibly set up one superior to that of the plaintiff ; but as on the other hand, it does not yet appear that he had title, the effect is the same; and till he pleads, he 'must be considered as a mere wrongdoer; that is, he must be taken to have com- mitted an injury to the plaintiff's possession without having any right himself. Again, in an action of trespass for assault and battery, if the defendant justifies on the ground that the plaintiff wrongfully entered his house, and was making a disturbance there, and that the defendant gently removed him, the form of the plea is that "the defendant was lawfully possessed of a cer- tain dwelling-house, etc., and being so possessed the said plain- tiff was unlawfully in the said dwelling-house," etc. ; and it is not necessary for the defendant to show any title to the house, be- yond this of mere possession. (0) For the plaintiff has at present set up no title at all to the house, and on the face of the plea he has committed an injury to the defendant's possession, without having any right himself. So in an action of trespass for seizing cattle, if the defendant justifies on the ground that the cattle were damage- feasant on his close, it is not necessary for him to show any title to his close except that of mere possession. (/>) [So, in an action of trespass on the case to recover damages for injury caused by the overflow of surface water upon a cer- tain lot of the plaintiff's, where the declaration alleged that A C was seized, and together with the plaintiff, M C, her husband, has been during all of that time, and still is, possessed of a lot of ground, it was held to be a sufficient allegation of the plaintiff's (0) 2 Chitty, 529. (/>) 1 Saund. 221, n. (1); 2 Saund. 285, n. 3; Anon., 2 Salk. 643; Searl v. Bunnion, 2 Mod. 70; Langford v. Webber, 3 Mod. 132; Osway v. Bristow, 10 Mod. 37; 2 Bos. & Pul. 361, n. (a). 476 ALLEGING TITLE: IN ADVERSARY 937 title, as possession alone is sufficient to maintain trespass or case against a wrongdoer.] 17 It is to be observed however, with respect to this rule, as to al- leging possession against a wrongdoer, that it seems not to hold in Replevin. For in that action it is held not to be sufficient to state a title of possession, even in a case where it would be allow- able in Trespass, by virtue of the rule above mentioned. Thus, in replevin, if the defendant by way of avowry, pleads that he was possessed of a messuage, and entitled to common of pasture as appurtenant thereto, and that he took the cattle damage-feas- ant, it seems that this pleading is bad ; and that it is not sufficient to lay such mere title of possession in this action. (q) It is to be observed too, that this rule has little or no application in real or mixed actions; for in these, an injury to the possession is seldom alleged ; the question in dispute being, for the most part, on the right of possession, or the right of property. 476. Alleging title in adversary. II. Having discussed the case where a party alleges title in himself, or some other whose authority he pleads, next is to be considered the case where a party alleges title in his adversary. The rule on this subject appears in general to be that it is not necessary to allege title more precisely than is sufficient to show a liability in the party charged, or to defeat his present claim. Except as far as these objects may require, a party is not com- pellable to show the precise estate which his adversary holds, even in a case where, if the same person were pleading in his own title, such precise allegation would be necessary. The reason of this difference is, that a party must be presumed to be ignorant of the particulars of his adversary's title, though he is bound to know his own. (r) To answer the purpose of showing a liability in the party (. Saunders, 4 Barn. & Cres. 536. 477 TITLE MUST BE STRICTLY PROVED 939 assignment, came to and vested in the said C. D.," without fur- ther showing the nature of the mesne assignments. (t) But if the case be reversed, that is, if the plaintiff, claiming as assignee of the reversion, sue the lessee for rent, he must precisely show the conveyances, or other media of title, by which he became en- titled to the reversion; and to say generally that it came by as- signment, will not, in this case, be sufficient, without circum- stantially alleging all the mesne assignments. () Upon the same principle, if title be laid in an adversary, by descent, as, for ex- ample, where an action of debt is brought against an heir on the bond of his ancestor, it is sufficient to charge him as heir, with- out showing how he is heir, viz, as son or otherwise ;(z/) but if a party entitle himself by inheritance, we have seen that the mode of descent must be alleged. 477. Title must be strictly proved. The manner of showing title both where it is laid in the party himself, or the person whose authority he pleads, and where it laid in his adversary, having been now considered, it may next be observed that the title so shown must in general, when issue is taken upon it, be strictly proved. With respect to the allega- tions of time, quantity, and value, it has been seen that they in most cases, do not require to be proved as laid, at least if laid under a videlicet. But with respect to title, it is ordinarily of the substance of the issue ; and therefore, according to the general principle stated in the first chapter of this work, requires to be maintained accurately by the proof. Thus in an action on the case, the plaintiff alleged in his declaration that he demised a house to the defendant for seven years, and that during the term, the defendant so negligently kept his fire that the house was burned down : and the defendant having pleaded non demisit modo et forma, it appeared in evidence that the plaintiff had demised to the defendant several tenements, of which the house (/) 1 Saund. 112. note 1; Atty.-Gen. v. Meller, Hardr. 459; Duke of Newcastle r. Wright. 1 Lev. 190; Derisley v. Custance, 4 T. R. 77: 2 Chitty. 196. (M) 1 Saund. 112. note 1; Pitt v. Russell, 3 Lev. 19; Dyer, 172, a. (v) Denham r. Stephenson, 1 Salk. 355. 940 CERTAINTY OF ISSUE 478 in question was one; but that with respect to this house, it was by an exception in the lease, demised at will only. The court held, that though the plaintiff might have declared against the de- fendant as tenant at will only, and the action would have lain, yet having stated a demise for seven years, the proof of a lease at will was a variance, and that in substance, not in form only; and on the ground of such variance, judgment was given for the defendant, (w) 478. Estoppel to deny title. The rule which requires that title should be shown, having been now explained, it will be proper to notice an exception to which it is subject. This exception is, that no title need be shown where the opposite party is estopped from denying the title. Thus in an action for goods sold and delivered, it is un- necessary, in addition to the allegation that the plaintiff sold and delivered them to the defendant, to state that they were the goods of the plaintiff ;(x) for a buyer who has accepted and enjoyed the goods cannot dispute the title of the seller. So in debt or covenant brought by the lessor against the lessee on the cove- nants of the lease, the plaintiff need allege no title to the prem- ises demised, because a tenant is estopped from denying his landlord's title. On the other hand, however, a tenant is not bound to admit title to any extent greater than might authorize the lease ; and therefore if the action be brought not by the lessor himself, but by his heir, executor, or other representative or as- signee, the title of the former must be alleged, in order to show that the reversion is now legally vested in the plaintiff, in the character in which he sues. Thus, if he sue as heir, he must allege that the lessor was seized in fee, for the tenant is not bound to admit that he was seized in fee ; and unless he was so, the plaintiff cannot claim as heir. Another exception to the general rule requiring title to be shown, has been introduced by statute, and is as follows : In making avowry or cognizance in replevin upon distresses for rents, quit-rents, reliefs, heriots, or other services, the defendant is (w) Cudlip v. Rundle, Garth. 202. (*) Bull. N. P. 139. 479 . THE PLEADINGS MUST SHOW AUTHORITY 941 enabled by the provisions of the act, 11 Geo. 2, c. 19, s. 22, "to avow or make cognizance generally, that the plaintiff in replevin, or other tenant of the lands and tenements, whereon such dis- tress was made, enjoyed the same, under a grant or demise, at such a certain rent, during the time wherein the rent distrained for incurred; which rent was then and still remains due; or that the place where the distress was taken, was parcel of such certain tenements held of such honor, lordship, or manor, for which tenements the rent, relief, heriot, or other services distrained for, was at the time of such distress, and still remains due ; without further setting forth the grant, tenure, demise, or title of such landlord or landlords, lessor or lessors, owner or owners of such manor; any law or usage to the contrary notwithstanding." RULE VI. 479. The pleadings must show authority. (Y) In general when a party has occasion to justify under a writ, warrant or precept, or any other authority whatever he must set it forth particularly in his pleading. And he ought also to show that he has substantially pursued such authority. ***** So in all cases where the defendant justifies under judicial process, he must set it forth particularly in his plea ; and it is not sufficient to allege generally that he committed the act in question by virtue of a certain writ or warrant directed to him. But on this subject there are some important distinctions as to the degree of particularity which the rules of pleading in different cases re- quire: 1. It is not necessary that any person justifying under judicial process should set forth the cause of action in the original suit in which that process issued. 2. If the justification be by the officer executing the writ, he is required to plead such writ only, and not the judgment on which it was founded ; for his duty obliged him to execute the former, without inquiring about (y) "Regularly, whensoever a man doth anything by force of a warrant or authority, he must plead it." Co. Litt. 283a; Ibid. 303b; Com. Dig., Pleader (E. 17); 1 Saund. 298, rt. 1; Lamb v. Mills, 4 Mod. 377; Matthews v. Gary, 3 Mod. 137; Collet v. Lord Keith, 2 East, 260; Selw. N. P. 826; Rich. v. Woolley, 7 Bing. 651. 942 CERTAINTY OF ISSUE 479 the validity or existence of the latter. But if the justification be by a party to the suit, or by any stranger, except an officer, the judgment as well as the writ must be set forth. 3. Where it is an officer who justifies, he must show that the writ was returned, if it was such as it was his duty to return. But in general a writ of execution need not be returned ; and therefore, no return of it need in general be alleged. However, it is said that "if any ulterior process in execution is to be resorted to, to complete the justification, there it may be necessary to show to the court the return of the prior writ, in order to warrant the issuing of the other." Again, there is a distinction as to this point between a principal and a subordinate officer. "The former shall not justify under the process, unless he has obeyed the order of the court in returning it ; otherwise it is of one who has not the power to procure a return to be made." 4. Where it is necessary to plead the judgment, that may be done (if it was a judgment of a superior court), without setting forth any of the previous pro- ceedings in the suit. 5. Where the justification is founded on process issuing out of an inferior English court, or, as it seems, a court of foreign jurisdiction, the nature and extent of the jurisdiction of such court ought to be set forth; and it ought to be shown that the cause of action arose within that jurisdic- tion; though a justification founded on process of any of the su- perior courts need not contain such allegations. And in pleading a judgment of inferior courts, the previous proceedings are in some measure stated. But it is allowable to set them forth with a taliter protcessum est, thus, that A. B. at a certain court, etc., held at, etc., levied his plaint against C. D. in a certain plea of trespass on the case or debt, etc. (as the case may be) for a cause of action arising within the jurisdiction, and thereupon such pro- ceedings were had, that afterwards, etc., it was considered by the said court that the said A. B. should recover against the said C. D., etc. Notwithstanding the general rule under consideration, it is allowable, where an authority may be constituted verbally and generally, to plead it in general terms. Thus, in replevin, where the defendant makes cognizance, confessing the taking of the goods or cattle as bailiff of another person for rent in arrear or 480 ALLEGATION IN PLEADING MUST BE CERTAIN 943 as damage feasant, it is sufficient to say, that "as bailiff of the said E. T. he well acknowledges the taking, etc., as for and in the name of a distress, etc.," without showing any warrant for that purpose. The allegation of authority, like that of title, must in general be strictly proved as laid. The above-mentioned particulars of place, time, quality, quan- tity, and value, names of persons, title, and authority, though in this work made the subjects of distinct rules, in a view to con- venient classification and arrangement, are to be considered but as examples of that infinite variety of circumstances, which it may become necessary in different cases and forms of action to particularize for the sake of producing a certain issue; for it may be laid down as a comprehensive rule, that, RULE VII. 480. In general whatever is alleged in pleading must be alleged with certainty, (z) This rule being very wide in its terms, it will be proper to illustrate it by a variety of examples. In pleading the performance of a condition or covenant, it is a rule, though open to exceptions that will be presently noticed, that the party must not plead generally that he performed the covenant or condition, but must show specially the time, place, and manner of performance ; and even though the subject to be performed should consist of several different acts, yet he must show in this special way the performance of each. 18 ***** Thus, in debt on a bond conditioned for the performance of several specific things, "the defendant pleaded performavit omnia, etc." Upon demurrer it was adjudged an ill plea; for the par- ticulars being expressed in the condition, he ought to plead to each particular by itself. (*) Com. Dig., Pleader (C. 17), (C. 22), (E. 5), (F. 17). 18. This rule is cited with approval in Norfolk, etc., R. Co. v. Suf- folk R. Co., 92 Va. 413, 23 S. E. 737, and the facts of that case well illustrate the rule. 944 CERTAINTY OF ISSUE 480 Yet this rule requiring performance to be specially shown ad- mits of relaxation where the subject comprehends such mul- tiplicity of matter as would lead to great prolixity; and a more general mode of allegation is in such cases allowable. It is open also to the following exceptions. Where the condition is for the performance of matters set forth in another instrument, and these matters are in an affirmative and absolute form, and neither in the negative nor the disjunctive, a general plea of perform- ance is sufficient. And where a bond is conditioned for in- demnifying the plaintiff from the consequence of a certain act, a general plea of non damnificatus, viz, that he has not been dam- nified, is proper, without showing how the defendant has indem- nified him. These variations from the ordinary rule and the principles on which they are founded will be explained hereafter. When in any of these excepted cases, however, a general plea of performance is pleaded, the rule under discussion still requires the plaintiff to show particularly in his replication in what way the covenant or condition has been broken; for otherwise no suf- ficiently certain issue would be attained. Thus, in an action of debt on a bond conditioned for performance of affirmative and absolute covenants contained in a certain indenture, if the defend- ant pleads generally (as in that case he may) that he per- formed the covenants according to the condition, the plaintiff cannot in his replication tender issue with a mere traverse of the words of the plea, viz, that the defendant did not perform any of the covenants, etc. ; for this issue would be too wide and un- certain ; but he must assign a breach showing specifically in what particular, and in what manner the covenants have been broken, (a) Not only on the subject of performance, but in a variety of other cases, the books afford illustrations of this general rule. ***** Thus where, to a declaration on a promise to pay the debt of a third person, the defendant pleads that there was no agreement or memorandum or note thereof in writing signed by the de- fendant or any person by him lawfully authorized, as required (a) Flower v. Ross, 5 Taunt. 386. Per Lord Mansfield, Sayre v. Minnis, Cowp. 578; Com. Dig., Pleader (F. 14). 480 ALLEGATION IN PLEADING MUST BE CERTAIN 945 by the statute of frauds, and the plaintiff replies that there was such an agreement, concluding to the country, it seems that this replication is insufficient, and that it ought to set the agreement forth. So in debt on bond, the defendant pleaded that the instrument was executed in pursuance of a certain corrupt contract made at the time and place specified between the plaintiff and defendant, whereupon there was reserved above the rate of 5/. for the for- bearing of 100/. for a year, contrary to the statute in such case made and provided. To this plea there was a demurrer, assign- ing for cause that the particulars of the contract were not speci- fied, nor the time of forbearance, nor the sum to be forborne, nor the sum to be paid for such forbearance. And the court held that the plea was bad for not setting forth particularly the corrupt contract and the usurious interest; and Bayley, J., ob- served, that he had "always understood that the party who pleads a contract must set it out, if he be a party to the con- tract." (&) ***** In an action of trover for taking a ship, the defendant pleaded that he was captain of a certain man-of-war, and that he seized the ship, mentioned in the declaration, as prize; that he carried her to a certain port in the East Indies; and that the admiralty court there gave sentence against the said ship as prize. Upon demurrer it was resolved that it was necessary for the plea to show some special cause for which the ship became a prize ; and that the defendant ought to show who was the judge that gave sentence, and to whom that court of admiralty did belong. -And for the omission of these matters the plea was adjudged in- sufficient, (c) In an action of debt on bond, conditioned to pay so much money yearly, while certain letters-patent were in force, the de- fendant pleaded that from such a time to such a time he did pay ; and that then the letters-patent became void and of no force. The plaintiff having replied, it was adjudged, on demurrer to (&) Hill v. Montagu, 2 M. & S. 377; Hinton v. Roffey, 3 Mod. 35, S. P. (c) Beak v. Tyrell, Garth. 31. 60 946 CERTAINTY OF ISSUE 481 the replication, that the plea was bad ; because it did not show how the letters-patent became void.(cf) Where the defendant justified an imprisonment of the plaintiff, on the ground of a contempt committed tarn factis quam verbis, the plea was held bad upon demurrer because it set forth the con- tempt in this general way without showing its nature more par- ticularly.^) With respect to all points on which certainty of allegation is required, it may be remarked, in general, that the allegation, when brought into issue, requires to be proved in substance as laid; and that the relaxation of the ordinary rule on this subject, which is allowed with respect to time, quantity, and value does not, generally speaking, extend to other particulars. Such are the principal rules which tend to certainty ; but it is to be observed, that these receive considerable limitation and restriction from some other rules of a subordinate kind, to the examination of which it will now be proper to proceed. SUBORDINATE RULES. 481. 1. It is not necessary In pleading to state that which is merely matter of evidence. (/) In other words, it is not necessary in alleging a fact,- to state such circumstances as merely tend to prove the truth of the fact. This rule may be illustrated by the following cases. * * * * * . [Thus, in an action by a servant against the master to recover damages for injuries received while constructing a pier, where the declaration set forth the circumstances under which the injury was received with sufficient certainty to enable the de- fendant to fairly present his grounds of defence, it was held that it was unnecessary to give in detail the methods employed (d) Lewis v. Preston, 1 Show. 290; Skin. 303, S. C. O) Collett v. Baliffs of Shrewsbury, 2 Leo. 34. (/) "Evidence shall never be pleaded because it tends to prove matter in fact; and therefore the matter in fact shall be pleaded." Bowman's Case, 9 Rep. 9b; and see 9 Ed. 3, 5b, 6a, there cited; Eaton -v. Southby, Willes, 131; Jedmy v. Jenny, Raym. 8; Groenvelt v. Burnell, Carth. 491; Digby v. Alexander, 8 Bing. 416; Martin v. Smith, 6 East. 563. 481 PLEADING MATTERS OF EVIDENCE 947 by the defendant in the construction of the pier, as that was a mere matter of evidence. 19 So where a telegraph company filed a bill to restrain the operation of electric light wires which had been placed so close to complainant's wires as to interfere with and injuriously affect the working of the latter, but did not state the distance at which an electric current on one wire will affect another, it was held that this was a mere matter of evidence, and it was not necessary to state it in the pleadings. 20 Again, where the declaration in a case for negligent killing alleged that the intestate and the driver of the team were in the exercise of due care at the time of the accident, the defendant, by two special pleas, set out the various facts and circumstances tending to show that they were not in the exercise of due care. The pleas were held bad for alleging that which was merely a matter of evi- dence.] 21 The reason of this rule is evident, if we revert to the general object which all the rules tending to certainty contemplate, viz, the attainment of a certain issue. This implies (as has been shown), a development of the question in controversy in a spe- cific shape ; and the degree of specification with which this should be developed, it has been elsewhere attempted, in a general way, to define. But, so that that object be attained, there is, in general, no necessity for further minuteness in the pleading; and therefore those subordinate facts which go to make up the evidence by which the affirmative or negative of the issue is to be established, do not require to be alleged, and may be brought forward, for the first time, at the trial, when the issue comes to be decided. ***** This is a rule, so elementary in its kind and so well observed in practice, as not to have become frequently the subject of il- lustration by decided cases; and (for that reason probably) is little if at all noticed in the digests and treatises. It is, however, 19. C. & O. Ry. Co. v. Hoffman, 109 Va. 44, 63 S. E. 432. 20. Western Union Tel. Co. v. Los Angeles Electric Co., 76 Fed. 178. 21. Boyden v. Fitchburg R. Co., 70 Vermont 125, 39 Atl. 77. In this connection, compare Ches. & O. R. Co. v. Mathews (Va.), 76 S. E. 288. 948 CERTAINTY OF ISSUE) 482 a rule of great importance, from the influence which it has on the general character of English pleading; and it is this, perhaps, more than any other principle of the science, which tends to prevent that minuteness and prolixity of detail, in which the allegations, under other systems of judicature, are involved. Another rule, that much conduces to the same effect is, that: 482. 2. It is not necessary to state matter of which the court takes notice ex officio.(^r) Therefore it is unnecessary to state matter of law;(h} for this the judges are bound to know, and can apply for themselves to the facts alleged. Thus, if it be stated in pleading that an officer of a corporate body was removed for misconduct by the corporate body at large, it is unnecessary to aver that the power of removal was vested in such corporate body; because that is a power by law incidental to them, unless given by some charter, by-law, or other authority, to a select part only.(t) Nor is it the principles of the common law alone which it is unnecessary to state in pleading. The public statute law falls within the same reason and the same rule; as the judges are bound, officially, to notice the tenor of every public act of parliament. (/) It is, therefore, never necessary to set forth a public statute. (k) The case, however, of private acts of parliament is different; for these the court does not officially notice ;(/) and, therefore, where a party has occasion to rely on an act of this description, he must set forth such parts of it as are material. (w) 22 (g) Co. Litt. 303b; Com. Dig., Pleader (C. 78); Deybel's Case, 4 Barn. & Aid. 243. (h) Doct. PI. 102; Per Duller, J., The King v. Lyme Regis, Doug. 159. (i) The King v. Lyme Regis, Doug. 148. (;') 1 Bl. Com. 85. (k} Boyce v. Whitaker, Doug. 97; Partridge v. Strange, Plow. 84. (7) 1 Bl. Com., Ibid.; Platt v. Hill, Ld. Ray. 381. (w) Boyce v. Whitaker, Doug. 97. 22. It is provided by statute in Va. and W. Va. that private acts may be given in evidence without being specially pleaded, and an appellate court shall take judicial notice of such as appear to have been relied on in the court below. Va. Code, 3328; W. Va. Code, 3922. 482 PLEADING JUDICIAL NOTICE 949 It may be observed, however, that though it is in general un- necessary to allege matter of law, yet there is some times oc- casion to make mention of it, for the convenience or intelligibility of the statement of fact. Thus, in an action of assumpsit it is very common to state that the defendant, under the particular circumstances set forth in the declaration, became liable to pay; and being so liable, in consideration thereof promised to pay. So- ft is sometimes necessary to refer to a public statute in general terms, to show that the case is intended to be brought within the statute ; as for example, to allege that the defendant committed a certain act against the form of the statute in such case made and provided; but the reference is made in this general way only, and there is no need to set the statute forth. 23 This rule, by which matter of law is omitted in the pleadings, by no means prevents (it will be observed) the attainment of the requisite certainty of issue. For even though the dispute between the parties should turn upon matter of law, yet they may evi- dently obtain a sufficiently specific issue of that description, with- out any allegation of law ; for ex facto jus oritur, that is, every question of law necessarily arises out of some given state of facts; and therefore nothing more is necessary than for each party to state alternately his case in point of fact; and upon de- murrer to the sufficiency of some one of these pleadings, the issue in law must at length (as formerly demonstrated) arise. As it is unnecessary, to allege matter of law, so if it be alleged, it is improper (as it has been elsewhere stated) to make it the subject of traverse. ***** [Foreign Law. The laws of other states and countries are regarded as facts and when relied on as a ground of action or defence must be alleged in the pleadings and proved as other facts. The constuction and application of such laws, however, are for the court and not for the jury, though upon this subject there is conflict of authority. Courts of the States take judicial notice 23. In an action for insulting words under Va. Code, 2897, it must in some way be made to appear that the plaintiff is suing un- der the statute and not for common law slander. Hogan v. Wil- mouth, 16 Gratt. 80. 950 CERTAINTY OF ISSUE 483 of what States have the common law as the basis of their juris- prudence, but in the absence of any proof of what the common law of another State is the trial court refuses to recognize that it is different from the law of the forum unaffected by statute. 24 Matters of fact of which the court takes judicial notice stand in the place of evidence and generally need not be averred in the pleading unless necessary for a right understanding of the case.] 483. 3. It is not necessary to state matter which would come more properly from the other side.fw) This, which is the ordinary form of the rule, does not fully ex- press its meaning. The meaning is, that it is not necessary to anticipate the answer of the adversary; which, according to Hale, C. J., is "like leaping before one comes to the stile." (o) It is sufficient that each pleading should in itself contain a good prima facie case, without reference to possible objection not yet urged. Thus, in pleading a devise of land by force of the statute of wills, 32 Hen. 8, c. 1, it is sufficient to allege that such an one was seized of the land in fee, and devised it by his last will, in writing, without alleging that such devisor was of full age. For though the statute provides that wills made by femmes covert, or persons within age, etc., shall not be taken to be effectual, yet if the devisor were within age, it is for the other party to show this in his answer (/>) and it need not be denied by anticipation. So in a declaration of debt upon a bond it is unnecessary to allege that the defendant was of full age when he executed it.(^) (M) Com. Dig., Pleader (C. 81); Stowell v. Lord Zouch, Plow. 376; Walsingham's Case, id., 564; St. John v. St. John, Hab. 78; Hotham v. East India Co., 1 T. R. 638; Palmer v. Lawson, 1 Sid. 333; Lake v. Raw, Carth. 8; Williams v. Fowler, Str. 410. (o) Sir Ralph Bovy's Case, Vent. 217. (/>) Stowell v. Lord Zouch, Plow. 376. (q) Walsingham's Case, Plow. 564; Sir Ralph Bovy's Case, 1 Vent. 217. 24. Gr. Ev. (16th Ed.), 6b, 486, 487; Minor Conflict of Laws, 214; Frank v. Gump, 104 Va. 306, 51 S. E. 358; App v. App, 106 Va. 253, 55 S. E. 672; N. & W. Ry. Co. v. Denny, 106 Va. 383, 56 S. E. 321; Union Cent. L. Ins. Co. v. Pollard, 94 Va. 146, 26 S. E. 421. 483 PLEADING UNNECESSARY MATTER 951 But where the matter is such that its affirmation or denial is essential to the apparent or prima facie right of the party plead- ing, there it ought to be affirmed or denied by him in the first instance, though it may be such as would otherwise properly form the subject of objection on the other side. Thus, in an action of trespass on the case brought by a commoner against a stranger for putting his cattle on the common, per quod com- muniam in tarn amplo inodo habere non potuit, the defendant pleaded a license from the lord to put his cattle there, but did not aver that there was sufficient common left for the commoners. This was held, on demurrer, to be no good plea; for though it may be objected that the plaintiff may reply that there was not enotigh common left, yet as he had already alleged in his decla- ration that his enjoyment of the common was obstructed, the contrary of this ought to have been shown by the plea.(r) [It is held in Virginia, and by the weight of authority generally, that in an action for an injury negligently inflicted on the plain- tiff by the defendant it is not necessary for the plaintiff to nega- tive his contributory negligence. 25 So, where plaintiff sued the defendant for negligently keeping a horse as inn keeper and per- mitting him to escape, so that he was lost, the declaration failed to show the manner of keeping the horse and how he escaped. On exception, the declaration was held good, as this was matter lying more particularly in the defendant's knowledge, and would come more properly from him.] 26 There is an exception to the rule in question, in the case of certain pleas which are regarded unfavorably by the courts, as having the effect of excluding the truth. Such are all pleadings in estoppel(s) and the plea of alien enemy. It is said that these must be certain in every particular; which seems to amount to this, that they must meet and remove by anticipation every pos- sible answer of the adversary. Thus, in a plea of alien enemy, the defendant must state not only that the plaintiff was born in a (r) Smith v. Feverell. 2 Mod. 6; 1 Freeman, 190, S. C.; Greenhow r. Ilsley. Willes, 619. (s) Co. Litt. 352b, 303a; Dovaston r. Payne, 2 H. Bl. 530. 25. Winchester r. Carroll, 99 Va. 727, 40 S. E. 37; Newport News Co. r. Beaumester, 104 Va. 744, 52 S. E. 627, 29 Cyc. 575-6. 26. Owens r. Geiger, 2 Mo. 39. 952 CERTAINTY OF ISSUE 484 foreign country, now at enmity with the king, but that he came here without letters of safe conduct from the king;(/) whereas, according to the general rule in question, such safe conduct, if granted, should be averred by the plaintiff in reply, and would not need in the first instance to be denied by the defendant. 484. 4. It is not necessary to allege circumstances necessarily implied, (u) Thus, in an action of debt on a bond conditioned to stand to and perform the award of W. R., the defendant pleaded that W. R. made no award. The plaintiff replied, that after the mak- ing of the bond, and before the time for making the award, the defendant, by his certain writing, revoked the authority of the said W. ^R., contrary to the form and effect of the said condition. Upon demurrer, it was held that this replication was good, with- out averring that W. R. had notice of the revocation; because, that was implied in the words "revoked the authority ;" for there could be no revocation without notice to the arbitrator; so that if W. R. had no notice, it would have been competent to the de- fendant to tender issue, "that he did not revoke in manner and form as alleged. "(v) So if a feoffment be pleaded, it is not necessary to allege livery of seizin, for it is implied in the word "enfeoffed."(w) So if a man plead that he is heir to A., he need not allege that A. is dead, for it is implied. (A") [So where the plaintiff declared that the defendant negligently caused a bomb, or explosive, to be, or remain, in a public alley, so that as the proximate consequence of such negligence, the plain- tiff was injured, it was objected that the declaration did not aver any duty owing by the defendant to the plaintiff, but the courr (0 Casseres v. Bell, 8 T. R. 166. (M) Vynior's Case, 8 Rep. 81b; Bac. Ab., Pleas, etc. (1), 7; Com. Dig., Pleader (E. 9); Co. Litt. 303b; 2 Saund. 305a, n. 13; Reg. Plac. 101; Sheers v. Brooks, 2 H. Bl. 120; Handford v. Palmer, 2 Brod. & Bing. 361; Marsh v. Bulteel, 5 Barn. & Aid. 507. (v) Vynior's Case, 8 Rep. 81b; Marsh v. Bulteel, 5 Barn. & Aid. 507, S. P. (w) Co. Litt. 303b; Doct. PI. 48, 49; 2 Saund. 305a, n. 13. (*) 2 Saund. 305a, n. 13; Com. Dig., Pleader (E. 9); Dal. 67. 485-486 GENERAL MODE OF PLEADING ALLOWED 953 held that the law implied a duty and that it was not therefore necessary to aver it in terms in the complaint. 27 Thus, in an action of slander for defamation of character, it is not necessary for the plaintiff to allege or prove that he is a man of good character, as the law will presume it. So, also, where a railway company demurred to the plaintiff's declaration because it failed to allege that the hotel business and saloon busi- ness, which the railway company was charged with injuring, was lawful, it was held that the allegation was unnecessary, as the law would presume that the plaintiff was conducting his busi- ness in a lawful manner. 28 And where a petition alleged a judg- ment of a court of general jurisdiction, and objection was made on the ground that the declaration did not allege that said judg- ment was "duly rendered," it was held that judgments of superior courts are presumed to be duly rendered, and the fact need not be alleged in the pleadings.] 29 485. 5. It is not necessary to allege what the law will presume, (y) 486. 6. A general mode of pleading is allowed where great prolixity is thereby avoided, (s) It has been objected with truth that this rule is indefinite in its form, (a) Its extent and application however, may be col- (y) Wilson v. Hobday, 4 M. & S. 125; Chapman v. Pickersgill, 2 Wils. 147; 1 Chitty. 226. (z) Co. Litt. 303b; 2 Saund. 116b, 411, n. 4; Bac. Ab., Pleas, etc. (I) 3; Jermy v. Jenny, Raym. 8; Aglionby v. Towerson, id. 400; Parks v. Middleton, Lutw. 421; Cornwallis v. Savery, 2 Burr. 772; Mints v. Bethil, Cro. Eliz. 749; Braban v. Bacon, id. 916; Church v. Brownwick, 1 Sid. 334; Cryps v. Baynton, 3 Bulst. 31; Banks v. Pratt, Sty. 428; Carth. 110; I'Anson v. Stuart, 1 T. R. 753; Hill v. Montagu, 2 M. & S. 378. , (a) 1 Arch. 211. 27. Wells v. Gallagher, 144 Ala. 363, 39 South. 519. 28. Inter. & G. N. Ry. Co. v. Greenwood, 2 Tex. Civ. App. 76, 21 S. W. 559. 29. Terry v. Johnson, 109 Ky. 589, 60 S. W. 300. 954 CERTAINTY OF ISSUE 486 lected with some degree of precision from the examples by which it is illustrated in the books, and by considering the limitations which it necessarily receives from the rules tending to certainty, as enumerated in a former part of this section. In assumpsit, on a promise by the defendant to pay for all such necessaries as his friend should be provided with by the plaintiff, the plaintiff alleged that he provided necessaries amount- ing to such a sum. It was moved in arrest of judgment that the declaration was not good, because he had not shown what neces- saries in particular he had provided. But Coke, C. J., said, "this is good as is here pleaded, for avoiding such multiplicities of reckonings ;" and Doddridge, J., "this general allegation that he had provided him with all necessaries is good, without show- ing in particular what they were." And the court gave judgment unanimously for the plaintiff. (&) So in assumpsit for labor, and medicines for curing the defendant of a distemper, the defendant pleaded infancy. The plaintiff replied that the action was brought for necessaries generally. On demurrer to the replication, it was objected that the plaintiff had not assigned in certain how or in what manner the medicines were necessary ; but it was adjudged that the replication in this general form was good ; and the plain- tiff had judgment, (c) So in debt on a bond conditioned that the defendant shall pay from time to time the moiety of all such money as he shall receive and give account of it, he pleaded generally that he had paid the moiety of all such money, etc. Bt per curiam, "This plea of payment is good without showing the particular sums ; and that, in order to avoid stuffing the rolls with multiplicity of matter." Also, they agreed that, if the condition had been to pay the moiety of such money, as he should receive, without saying from time to time, the payment should have been pleaded specially. (d} [The plaintiff sued a railroad company for its negligent failure to furnish them cars on demand, and set out in his declaration the general facts which constituted his cause of action. The de- (b) Cryps v. Baynton, 3 Bulst. 31. , (c) Huggins "V. Wiseman, Carth. 110. (d) Church v. Brownwick, 1 Sid. 334; and see Mints v. Bethil, Cro. Eliz. 749. 486 QENERAL MODE OF PLEADING ALLOWED 955 fendant objected to the declaration, and insisted that each de- mand and refusal should be set out in a separate paragraph of the complaint, as it constituted -a separate cause of action. These causes of actions, amounting to several hundred in number, covered a period of six years, and the plaintiff had inserted them in one paragraph. Held, that the declaration was good, and that to avoid prolixity the law allows general pleading where the sub- ject comprehends a multiplicity of matters, and a great variety of facts.] 30 ***** So in debt on bond conditioned that R. S. should render to the plaintiff a just account and make payment and delivery of all moneys, bills, etc., which he should receive as his agent, the de- fendant pleaded performance. The plaintiff replied that R. S. received as such agent divers sums of money amounting to 2.000, belonging to the plaintiff's business, and had not rendered a just account nor ma'de payment and delivery of the said sum or any part thereof. The defendant demurred specially, assigning for cause, that it did not appear by the replication, from whom or in what manner, or in what proportions, the said sums of money amounting to 2,000 had been received. But the court held the replication "agreeable to the rules of law, and precedents." (?) [If, however, a party be charged with fraud, he is entitled to know the particular instances on which fraud is founded, and to have them disclosed to him. 31 In Virginia the pleading on an insurance policy is greatly shortened by virtue of the statutory provision allowing the party to file a complaint, together with the original policy, or a sworn copy thereof, and aver generally that he has performed all of the conditions of said policy and violated none of its prohibitions, and that it shall not be necessary to set forth every condition or proviso of said policy, nor to aver observance of, or compliance (e) Shum v. Farrington. 1 Bos. & Pul. 640; and see a similar deci- sion, Burton v. Webb, 8 T. R. 459. 30. Chicago, etc., R. Co. v. Walcott, 141 Ind. 267, 50 Am. St. Rep. 320. Compare Moore v. Mauro, 4 Rand. 488. 31. J'Anson v. Stuart, 2 Smith's Leading Cases 986. 956 CERTAINTY Of ISSUE) 487 therewith seriatim, but that a general averment to that effect shall suffice.] 32 487. 7. A general mode of pleading is often sufficient, where the allegation on the other side must reduce the matter to certainty. (/) This rule comes into most frequent illustration in pleading per- formance in actions of debt on bond. It has been seen that the general rule as to certainty, requires that the time and manner of such performance should be specially shown. Nevertheless by virtue of the rule now under consideration, it may be some- times alleged in general terms only; and the requisite certainty of issue is in such cases secured, by throwing on the plaintiff the necessity of showing a special breach in his replication. This course, for example, is allowed in cases where a more special form of pleading would lead to inconvenient prolixity. * * * * * [At common law a penal bond with condition might be de- clared on in either of two ways: (1) the whole bond, including the condition, might be set out in the declaration and the breaches of the condition assigned, or, (2), the plaintiff might sue simply on the penal part of the bond, taking no notice of the condition whatever. In the latter case, the plaintiff could then crave oyer of the bond and of the condition thereunder written, and plead generally that he had well and truly kept and performed the conditions of the bond. The issue would then be made more specific by the replication of the plaintiff, setting out in what manner the defendant had violated the conditions of the bond. This latter course, while formerly allowed in Virginia, cannot now be adopted, as the statute requires that the declaration shall assign the specific breaches for which action shall be brought.] 33 Another illustration is afforded by the plea of non damnificatus, in an action of debt on an indemnity bond, or bond conditioned (/) Co. Litt. 303b; Mints v. Bethil, Cro. Eliz. 749; 1 Saund. 117, n. 1; 2 Saund. 41C, n. 3; Church v. Brownwick, 1 Sid. 334. 32. Code, 3251. 33. Code, 3394. 487 GENERAL MODE OF PLEADING SUFFICIENT 957 "to keep the plaintiff harmless and indemnified," etc. This is in the nature of a plea of performance ; being used where the de- fendant means to allege that the plaintiff has been kept harm- less and indemnified, according to the tenor of the condition ; and it is pleaded in general terms without showing the particular man- ner of the indemnification. Thus, if an action of debt be brought on a bond, conditioned that the defendant "do from time to time acquit, discharge, and save harmless, the churchwardens of the parish of P., and their successors, etc., from all manner of costs and charges, by reason of the birth and maintenance of a certain child" if the defendant means to rely on the performance of the condition, he may plead in this general form "that the church- wardens of the said parish, or their successors, etc., from the time of making the said writing obligatory, were not in any man- ner damnified by reason of the birth or maintenance of the said child ;(g} and it will then be for the plaintiff to show in the rep- lication, how the churchwardens were damnified. But with respect' to the plea of non damnificatus, the following distinctions have been taken : First, if, instead of pleading in that form, the defendant alleges affirmatively, that he has "saved harmless," etc., the plea will in this case be bad, unless he proceeds to show specifically how he saved harmless, (h) Again, it fs held that if the condition does not use the words "indemnify," or "save harm- less," or some equivalent term, but stipulates for the performance of some specific act, intended to be by way of indemnity, such as the payment of a sum of money by the defendant to a third person, in exoneration of the plaintiff's liability to pay the same sum, the plea of non damnificatus will be improper; 34 and the defendant should plead performance specifically, as "that he paid the said sum," etc.(i) It is also laid down that if the con- dition of the bond be to "discharge" or "acquit" the plaintiff from a particular thing, the plea of non damnificatus will not (g) Richard v. Hodges, 2 Saund. 84; Hays v. Bryant, 1 H. Bl. 253; Com. Dig., Pleader (E. 25), 2 W. 33; Manser's Case, 2 Rep. 4a; 7 Went. Index, 615; 5 Went. 531. (h) 1 Saund. 117, n. 1; White v. Cleaver, Str. 681. (') Holmes v. Rhodes, 1 Bos. & Pul. 638.- 34. Archer v. Archer, 8 Gratt. 539. 958 CERTAINTY OF ISSUE 487 apply; but the defendant must plead performance specially, "that he discharged and acquitted," etc., and must also show the man- ner of such acquittal and discharge. (/) But, on the other hand, if a bond be conditioned to ''discharge and acquit the plaintiff from any damage" by reason of a certain thing, non damnificatus may then be pleaded, because that is in truth the same thing with a condition to "indemnify and save harmless," etc.(fe) The rule under consideration is also exemplified in the case where the condition of a bond is for the performance of cove- nants, or other matters contained in an indenture or other instru- ment collateral to the bond, and not set forth in the condition^ In this case also th law often allows (upon the same principle as in the last) a general plea of performance, without setting forth the manner. (7) Thus, in an action of debt on bond, where the condition is that T. J., deputy postmaster of a certain stage, "shall and will truly, faithfully, and diligently, do, execute, and perform all and every the duties belonging to the said office of deputy postmaster of the said stage, and shall faithfully, justly, and exactly observe, perform, fulfill, and keep all and every the instructions, etc., from his Majesty's postmaster-general," and such instructions are in an affirmative and absolute form, as fol- lows : "you shall cause all letters and packets to be speedily and without delay carefully and faithfully delivered, that shall from time to time be sent unto your said stage, to be dispersed there, or in the towns and parts adjacent, that all persons receiving such letters may have time to send their respective answers," etc., it is sufficient for the defendant to plead (after setting forth the instructions) "that the said T. J., from the time of the making the said writing obligatory, hitherto hath well, truly, faithfully, and diligently done, executed, and performed, all and every the duties belonging to the said office of deputy postmaster of the said stage," and faithfully, justly, and exactly observed, per- formed, fulfilled, and kept all and every the instructions, etc., ac- (;') 1 Saund. 117, n. 1; Bret v. Audar, 1 Leon, 71; White v. Cleaver, Str. 681; Leneret v. Rivet, Cro. Jac. 503; Harris v. Prett, 5 Mod. 243. (k) 1 Saund. 117, n. 1; Garth. 375. (/) Mints v. Bethil, Cro. Eliz. 749; Bac. Ab., Pleas, etc. (I.) 3; 2 Saund. 410, n. 3; 1 Saund. 117, n. 1; Com. Dig., Pleader (2 V. 13); Earl of Kerry v. Baxter, 4 East, 340. 487 GENERAL MODE OF PLEADING SUFFICIENT 959 cording to the true intent and meaning of the said instructions," without showing the manner of performance, as that he did cause certain letters or packets to be delivered, etc., being all that were sent.(w) So, if a bond be conditioned for fulfilling all and singular the covenants, articles, clauses, provisos, conditions, and agreements, comprised in a certain indenture, on the part and behalf of the defendant, which indenture contains covenants of an affirmative and absolute kind only, it is sufficient to plead (after setting forth the indenture) that the defendant always hitherto hath well and truly fulfilled all and singular the cove- nants, articles, clauses, provisos, conditions, and agreements, com- prised in the said indenture, on the part and behalf of the said defendant, (w) But the adoption of a mode of pleading so general as in these examples will be improper where the covenants or other matters mentioned in the collateral instrument are either in the negative or the disjunctive form ;(o) and with respect to such matters, the allegation of performance^should be more specially made, so as to apply exactly to the tenor of the collateral instrument. Thus, in the example above given, of a bond conditioned for the per- formance of the duties of a deputy-postmaster, and for observing the instructions of the postmaster-general, if, besides those in the positive form, some of these instructions were in the negative, as for example, "you shall not receive any letters or packets di- rected to any seaman, or unto any private soldier, etc., unless you be first paid for the same, and do charge the same to your account as paid," it would be improper to plead merely that T. J. faith- fully performed the duties belonging to the office, etc., and all and every the instructions, etc. Such plea will apply sufficiently to the positive, but not to the negative part of the instructions. The form therefore should be as follows : "That the said T. J. from the time of making the said writing obligatory hitherto, hath well, truly, faithfully, and diligently executed and per- (m) 2 Saund. 403b, 410, n. 3. (n) Gainsford v. Griffith, 1 Saund. 117, n. 1; Earl of Kerry v. Bax- ter, 4 East, 340. See the form, 2 Chitty, 483. (o) Earl of Kerry v. Baxter, 4 East, 340; Oglethrope v. Hyde, Cro. Eliz. 233; Lord Arlington v. Merricke, 2 Saund. 410, and note 3, Ibid. 960 CERTAINTY OF ISSUE 487 formed all and every the duties belonging to the said office of deputy-postmaster of the said stage, and faithfully, justly, and exactly observed, performed, fulfilled, and kept all and every the instructions, etc., according to the true intent and meaning of the said instructions. And the said defendant further says, that the said T. J. from the time aforesaid did not receive any letters or packets directed to any seaman or private soldier, etc., unless he, the said T. J. was first paid for the same, and did so charge himself in his account with the same as paid," etc. And the case is the same where the matters mentioned in the collateral instru- ment are in the disjunctive or alternative form ; as where the de- fendant engages to do either one thing or another. Here also a general allegation of performance is insufficient, and he should show which of the alternative acts was performed. (/>) The reasons why the general allegation of performance does not properly apply to negative or disjunctive matters, are, that in the first case the plea would be indirect or argumentative in its form in the second, equivocal ; and would in either case, there- fore, be objectionable in reference to certain rules of pleading, which we shall have occasion to consider in the next section. It has been stated in a former part of this work that where a party founds his answer upon any matter not set forth by his adversary, but contained in a deed,, of which the latter makes profert, he must demand oyer of such deed, and set it forth. In pleading performance, therefore, of the condition of a bond, where (as is generally the case) the plaintiff has stated in his declaration, nothing but the bond itself, without the condition, it is necessary for the defendant to demand oyer of the condi- tion, and set it forth, (g) And where the condition is for per- formance of matters contained in a collateral instrument, it is necessary not only to do this, but also to make profert, and set forth the whole substance of the collateral instrument ; for other- wise, it will not appear that the instrument did not stipulate for the performance of negative or disjunctive matters ;(r) and in that case the general plea of performance of the matters therein contained would (as above shown) be improper. (/>) Oglethropc v. Hyde, Cro. Eliz. 233. () RULE III. 495. Pleadings must not be argumentative, (q) In other words, they must advance their positions of fact in an absolute form, and not leave them to be collected by in inference and argument only. ***** In an action of trespass for taking and carrying away the plain- tiff's goods, the defendant pleaded that the plaintiff never had any goods ; upon which the court remarked, "this is an infallible argu- ment that the plaintiff is not guilty, and yet it is no plea."(r) ***** It is a branch of this rule that tzvo affirmatives do not make a good issue. (s) The reason is that the traverse by the second af- firmative is argumentative in its nature. Thus, if it be alleged by the defendant that a party died seized in fee, and the plaintiff al- leged that he died seized in tail, this is not a good issue ;(/) be- cause the latter allegation amounts to a denial of a seizin fee, but denies it by argument or inference only. It is this branch of the (/>) Pullin r. Nicholas, 1 Lev. 83, Vide Com. Dig., Pleader (R. 6). Semb. cont.. Lea v. Luthell, Cro. Jac. 559. () and this conclusion: wherefore he prays judgment, and that the court here may take cognizance of the plea aforesaid, and that the said defendant may answer over, etc. (q) A REPLICATION TO A PLEA IN SUSPENSION should probably have this commencement: says that notwithstanding anything by the said defendant above alleged, the suit ought not to stay or be respited because, he says, etc.(r) And this conclusion: wherefore he prays judgment if the suit ought to stay or be re- spited, and that the said defendant may answer over. A REPLICATION TO A PLEA IN ABATEMENT has this commence- ment: where the plea was founded on objection to the declaration, says, that his said declaration by reason of anything in the said plea alleged, ought not to be quashed; because he says, etc.(-y) where the plea was founded on the disability of the party, says, that notwithstanding anything in the said plea alleged, he the said plaintiff ought to be answered to his said declaration ; be- cause he says, etc.(f) The conclusion in most cases is thus : in the former kind of plea, wherefore he prays judgment, and that the said declaration (0) 1 Went. 60; Lib. Plac. 348. (/>) 1 Went. 39. (q) Lib. Plac. 348; 1 Went. 39. (r) Liber. Intrat. (s) 1 Arch. 309; Rast. Ent. 126a; Sabine v. Johnstone, 1 Bos. & Pul. 60. (0 1 Went. 42; 1 Arch. 309. 980 RULES TO PREVENT OBSCURITY 500 may be adjudged good, and that the said defendant may answer over, etc. in the latter, wherefore he prays judgment, and that the said defendant may answer over, etc.(w) A REPLICATION TO A PLEA IN BAR, before the Rule Hil. 4 W. 4, of court above mentioned, had this commencement: says, that by reason of anything in the said plea alleged he ought not to be barred from having and maintaining his aforesaid action against him the said defendant, because he says, etc. This formula is commonly called precludi non. The conclusion was thus: in Debt wherefore he prays judgment, and his debt aforesaid, together with his damages by him sustained, by reason of the detention thereof, to be adjudged to him. in Covenant, wherefore he prays judgment, and his damages by him sus- tained, by reason of the said breach of covenant, to be adjudged to him. in Trespass, wherefore he prays judgment, and his damages by him sus- tained, by reason of the committing of the said trespasses, to be adjudged to him. in Trespass on the case ; in Assumpsit. wherefore he prays judgment, and his damages by him sus- tained, by reason of the not performing of the said several prom- ises and undertakings, to be adjudged to him. in Trespass on the case, in general, wherefore he prays judgment, and his damages by him sus- tained, by reason of the committing of the said several griev- ances, to be adjudged to him. () 1 Went. 43, 45, 54; 1 Arch. 309; Rast. Ent. 126a; Bisse v. Har- court, 3 Mod. 281; 1 Salk. 177; 1 Show. 155; Carth. 137, s. c. As to the cases in which the conclusion should be different, see 2 Saund. 211, note 3; Medina v. Stoughton, Lord Ray. 594; Co. Ent. 160a Lil. Ent. 123, Lib. Plac. 1. 501 VARIATIONS IN FORMS 981 And in all other actions the replication, in like manner, con- cluded with a prayer of judgment for damages, or other appro- priate redress, according to the nature of the action, (v) But the rule of Hil. 4 W. 4, provides that no allegation of actionem non, or precludi non, or prayer of judgment, shall in future be necessary in any pleading subsequent upon a plea pleaded in bar of the whole action generally; but that every rep- lication or subsequent pleading, pleaded, without these formulae, shall nevertheless be taken as in bar or maintenance respectively of the action. 16 With respect to PLEADINGS SUBSEQUENT TO THE REPLICATION, it will be sufficient to observe in general, that those on the part of the defendant commence and conclude like the plea; those on the part of the plaintiff, like the replication. 501. Variations in forms. The forms of commencement and conclusion given above, are subject to the following variations: First, with respect to pleas in abatement. Matters of abate- ment, in general, only render the action abateable upon plea; but there are others, such as the death of the plaintiff or defend- ant before verdict or judgment by default that are said to abate it de facto; that is, by their own immediate effect, and before plea, the only use of the plea in such cases being to give the court notice of the fact.(w) Where the action is merely abate- able, the forms of conclusion above given are to be observed; but when abated de facto, the conclusion must pray, "whether the court will further proceed;" for the declaration being al- ready and ipso facto abated, it would be improper to pray that it "may be quashed." (x) Again, when a plea in bar is pleaded puts darreign continu- (v) See the forms, 2 Chitty, 615, 628, 630, 641; 1 Arch. 410, 442. (w) Bac. Ab.. Abatement (K.), (G.), (F.); Com. Dig., Abatement (E. 17); 2 Saund. 210, n. 1. O) Com. Dig., Abatement (H. 33). (I. 12); 2 Saund. 210, n. 1; Hallowes r. Lucy, 3 Lev. 120. 16. Corresponding statute in Va. Code, 3265. 982 RULES TO PREVENT OBSCURITY 501 ance, it has, instead of the ordinary actionem non, a commence- ment and conclusion of actionem non ulterious. So, if a plea in bar be found on any matter arising after the commencement of the action, though it be not pleaded after a previous plea, it has the same commencement and conclusion of actio non ulterius, and actionem non generally, would be im- proper; for that formula is taken to refer in point, of time to the commencement of the suit, and not to the time of plea pleaded, (xx) Again, all pleadings by way of estoppel have a commencement and conclusion peculiar to themselves. A plea in estoppel has the following commencement: "says, that the said plaintiff ought not to be admitted to say" (stating the allegation to which the estoppel relates) ; and the following conclusions "wherefore he prays judgment, if the said plaintiff ought to be admitted, against, his own acknowledgment, by his deed aforesaid" (or otherwise, according to the matter of the estoppel), "to say that" (stating the allegation to which the estoppel relates.) (y) A replication, by way of estoppel to a plea, either in abatement or bar, has this commencement : "says, that the said 'defendant ought not to be admitted to plead the said plea by him above pleaded ; because he says, etc. (z) Its conclusion, in case of a plea of abatement, is as follows : "wherefore he prays judgment if the said defendant ought to be admitted to his said plea, contrary to his own acknowledgment, etc., and that he may answer over, etc. :"(a) in case of a plea in bar, "wherefore he prays judg- ment, if the said defendant ought to be admitted, contrary to his own acknowledgment, etc., to plead, that" (stating the allega- tion to which the estoppel relates. )(&) Rejoinders and subse- quent pleadings follow the forms of pleas and replications re- spectively, (c) Again, if any pleading be intended to apply, to part only of (xx} Evans v. Prosser, 3 T. R. 186; Selw. Ni. Pri. 138. (y) 1 Arch. 202; Veale v. Warner, 1 Saund. 325. (2) 2 Chitty, 590. 592; Took v. Glascock, 1 Saund. 257. (a) 2 Chitty, 590. (fc) 2 Chitty, 592. (c) Veale v. Warner, 1 Saund. 325. 502 IMPROPER COMMENCEMENTS OR CONCLUSIONS 983 the matter adversely alleged it must be qualified according to its commencement and conclusion. (d) And it would seem from the language of the Rule of Hil. 4 W. 4, above cited, that where the pleading is to part only, even pleas in bar, and other pleadings consequent upon them, should still retain, notwithstanding that rule, their ancient forms of commencement and conclusion. ***** \Yhile pleadings have thus, in general, their formal commence- ments and conclusions, it is to be observed there is an exception to this rule, in the case of all such pleadings as tender issue. These, instead of the conclusion with a prayer of judgment, as in the above forms, conclude (in the case of the trial by jury) to the country; or (if a different mode of trial be proposed) with other appropriate formulae, as explained under the second rule of the first section. Pleadings which tender issue have, however, the formal commencements; unless they are pleaded in bar or maintenance of the whole action generally ; for in that case the rule of court dispenses with these formulae altogether. 502. Improper commencements or conclusions. In general a defect or impropriety in the commencement and conclusion of a pleading is ground for demurrer. (e) But if the commencement pray the proper judgment, it seems to be suffi- cient, though judgment be prayed in an improper form in the conclusion. (/) And the converse case, as to a right of prayer in the conclusion with an improper commencement, has been decided the same way.(^r) So, if judgment be simply prayed, without specifying ivhat judgment, it is said to be sufficient ; and it is laid down that the court will, in that case, ex offkio, award (rf) Weeks v. Reach, 1 Salk. 179. (e) Nowlan r. Geddes, 1 East, 634; Wilson v. Kemp, 2 M. & S. 549; Le Bret v. Papillion, 4 East, 502; Com. Dig., Pleader (E. 27); Weeks r. Reach, 1 Salk. 179; Powell v. Fullerton, 2 Bos. & Pul. 420. But in some cases a bad conclusion makes the plea a mere nullity, and operates as a discontinuance. Bisse v. Harcourt, 3 Mod. 281; 1 Salk. 177; 1 Show. 155; Garth. 137, S. C.; Weeks v. Peach, 1 Salk. 179. (/) Street v. Hopkinson, Rep. Temp. Hard. 345. (g) Tolbert v. Hopewood, Fort. 335. 984 RULES TO PREVENT OBSCURITY 502 the proper legal consequence, (/t) It seems, however, that these relaxations from the rule do not apply to pleas in abatement, the court requiring greater strictness in these pleas, with a view to discouraging their use.(t) 17 It will be observed, that the commencement and conclusion of a plea are in such form as to indicate the view in which it is pleaded, and to mark its object and tendency, as being either to the jurisdiction, in suspension, in abatement, or in bar. It is. therefore, held, that the class and character of a plea depend upon these its formular parts; which is ordinarily expressed by the maxim conclusio facit placitum.(j) Accordingly, if it commence and conclude as in bar, but contain matter sufficient only to abate the suit, it is a bad plea in bar, and no plea in abate- ment.^) [Thus, in an action on three promissory notes, where the de- fendant filed a plea having a formal commencement and conclu- sion of a plea in bar, but set up only matter in abatement, to-wit, that the debt evidenced by the said writing was not due, it was held bad as a plea in bar, as the commencement and conclusion of a plea, and not its subject matter, determines its character.] 18 And on the other hand, it has been held, that if a plea com- mence and conclude as in abatement, and show matter in bar, it is a plea in abatement, and not in bar.(/) As the commencement and conclusion have this effect, of de- fining the character of the plea, so they have the same tendency in the replication and subsequent pleadings. For example, they (/i) 1 Chitty, 446, 539; Le Bret v. Papillion, 4 East, 502; 1 Saund. 97, n. 1. (t) King v. Shakespeare, 10 East, 83; Attwood v. Davis, 1 Barn. & Aid. 172. (/) Street v. Hopkinson, Rep. Temp. Hard. 346; Medina v. Stough- ton, 1 L. Ray. 593; Talbot v. Hopewood, Fort. 335. (fe) 1 East, 634; Wallis v. Savil, 1 Lutw. 41; 2 Saund. 209d, n. 1. Per Littleton, ]., 36 Hen. 6, 18. (/) Medina v. StoUghton, 1 Ld. Ray. 593; Godson v. Good, 6 Taunt. 587. 17. Guarantee Co. v. First National Bank, 95 Va. 480, 28 S. E. 909. 18. Pitts Sons Mfg. Co. v. Commercial Nat. Bank, 121 111. 528, 13 N. E. 156. 503 A PLEADING BAD IN PART IS BAD ALTOGETHER 985 serve to show whether the pleading be intended as in confession and avoidance, or estoppel ; and whether intended to be pleaded to the whole, or to part. From these considerations, it is apparent that they are forms, which, on the whole, materially tend to clear- ness and precision in pleading; and they have, for that reason, been considered under this section. RULE IX. 503. A pleading which is bad in part is bad al- together, (m) The meaning of this rule is that if in any material part of a pleading, or in reference to any of the material things which it undertakes to answer, or to either of the parties answering, the pleading be bad, though in other respects to be free from objec- tion, the whole of it is open to demurrer; so that, if the objec- tion be good, the whole pleading in question is overruled and judgment given accordingly. Thus, if in a declaration in as- sumpsit, two different promises be alleged in two different counts, and the defendant plead in bar to both counts conjointly, the statute of limitations, viz, that he did not promise within six years, and the plea be an insufficient answer as to one of the counts, but a good bar as to the other, the whole plea is bad, and neither promise is sufficiently answered. (n) So, where to an action of trespass for false imprisonment against two defendants, they pleaded that one of them, A., having ground to believe that his horse had been stolen by the plaintiff, gave him in charge to the other defendant, a constable, whereupon the constable, and A., in his aid, and by his command, laid hands on the plaintiff, etc., the plea was adjudged to be bad as to both the defendants, because it showed no reasonable ground of suspicion ; for A. could not justify the arrest without showing such ground ; and though the case might be different as to the constable, whose (m) Com. Dig., Pleader (E. 36), (F. 25); 1 Saund. 28, n. 2; Webb v. Martin, 1 Lev. 48; Rowe v. Tutte, Wills, 14; Trueman v. Hurst, 1 T. R. 40; Webber v. Tivill, 2 Saund. 127; Duffield v. Scott, 3 T. R. 374. (n) Webb v. Martin, 1 Lev. 48. 986 RULES TO PREVENT OBSCURITY 503 duty was to act on the charge, and not to deliberate, yet, as he had not pleaded separately but had joined in A.'s justification, the plea was bad as to him also. [So where, in an action of covenant, the declaration alleged that the defendants, their successors or assigns, did build and operate a certain railroad in the declaration mentioned, the plea simply denied that the defendants built and operated the road, but said nothing as to their successors or assigns, although it professed to answer the whole of the matter in the declaration alleged, it was held bad, because being bad in part, it was bad altogether. 19 So where, in an action of detinue to recover ten slaves, the defendant's plea professed to answer as to Ann and four other slaves, but was defective as to the four other slaves, the plea was held defective altogether under the rule of plead- ing above stated.] 20 This rule seems to result from that which requires each plead- ing to have its proper formal commencement and conclusion. For by those forms (it will be observed) the matter which any pleading contains is offered as an entire answer to the whole of that which last preceded. Thus, in the first example above given, the defendant would, prior to the rule of court dispensing with the actionem non, etc., have alleged, in the commencement of his plea, that the plaintiff "ought not to have or maintain his action," for the reason therein assigned : and therefore he would pray judgment, etc., as to the whole action, in the conclusion. If, therefore, the answer be insufficient as to one count, it cannot avail as to the other; because, if taken as a plea to the latter only, the commencement and conclusion would be wrong. It is to be observed that there was but one plea, and consequently there would have been but one commencement and conclusion; but if the defendant had pleaded the statute, in bar to the first count separately, and then pleaded it to the second count, with a new commencement and conclusion, thus making two pleas in- stead of one, the invalidity of one of these pleas could not have vitiated the other. As the declaration contains no commencement or conclusion 19. Merriman v. Cover, 104 Va. 428, 51 S. E. 817. 20. Wittick v. Traun, 27 Ala. 562, 62 Am. Dec. 778. 503 A PLEADING BAD IN PART IS BAD ALTOGETHER 987 of the kind to which the last rule relates, so, on the other hand, the declaration does not fall within the rule now in question. Therefore, if a declaration be good in part, though bad as to an- other part, relating to a distinct demand divisible from the rest, and the defendant demur to the whole, instead of confining his demurrer to the faulty part only, the court will give judgment for the plaintiff. (0) It is also to be observed that the rule ap- plies only to material allegations; for where the objectionable matter is mere surplusage, and unnecessarily introduced (the answer being complete without it), its introduction does not vi- tiate the rest of the pleading. (o) 1 Saund. 286, note 9; Bac. Ab., Pleas, etc.. (B.) 6; Cutforthay v. Taylor, Raym. 395; Judin v. Samuel, 1 New Rep. 43; Bainbridge v. Day, 1 Salk. 218; Powdick v. Lyon, 11 East, 565. CHAPTER LIV. RULES WHICH TEND TO PREVENT PROLIXITY AND DELAY IN PLEADING. RULE I. 504. There must be no departure in pleading. RULE II. 505. Where a plea amounts to the general issue, it should be so pleaded. RULE III. 506. Surplusage is to be avoided. RULE I. 504. There must be no departure in pleading, (a) 1 A departure takes place when, in any pleading, the party de- serts the ground that he took in his last antecedent pleading, and resorts to another. (b) A departure obviously can never take place till the replication. 2 Of departure in the replication, the following is an example. In assumpsit, the plaintiffs, as executors, declared on several promises alleged to have been made to the testator, in his life- time. The defendant pleaded that she did not promise within six years, before the obtaining of the original writ of the plain- tiffs. The plaintiffs replied that within six years before the ob- taining of the original writ, the letters testamentary were granted to them; whereby the action accrued to them the said plaintiffs within six years. The court held this to be a departure; as in (a) Co. Litt. 304a; 2 Saund. 84; Dudlow v. Watchorn, 16 East, 39; Tolputt v. Wells, 1 M. & S. 395. (&) Co. Litt. 304a; 2 Saund. 84, n. 1. 1. See, Graham & Scott v. Graham & Lane, 4 Munf. 205; Va. F. & M. Ins. Co. v. Saunders, 86 Va. 969, 11 S. E. 794; New River Min. Co. v. Painter, 100 Va. 507, 42 S. E. 300; Union Pac. R. Co. v. Wyler, 158 U. S. 285. 2. A plaintiff may, however, by amendment of his declaration desert the ground set up in his original declaration, and this is usually termed a departure. 504 THERE MUST BE NO DEPARTURE IN PLEADING 989 the declaration they had laid promises to the testator, but in the replication, alleged the right of action to accrue to themselves as executors. (c) They ought to have laid promises to themselves as executors, in the declaration, if they meant to put their action on this ground. But a departure does not occur so frequently in the replication as in the rejoinder. In debt on a bond conditioned to perform an award, so that the same were delivered to the defendant by a certain time, the defendant pleaded that the arbitrators did not make any award. The plaintiff replied, that the arbitrators did make an award to such an effect ; and that the same was tendered by the proper time. The defendant rejoined that the award was not so ten- dered. On demurrer, it was objected that the rejoinder was a departure from the plea in bar; "for, in the plea in bar, the defendant says that the arbitrators made no award ; and now, in his rejoinder, he has impliedly confessed that the arbitrators have made an award, but says that it was not tendered accord- ing to the condition, which is a plain departure; for it is one thing not to make an award, and another thing not to tender it when made. And, although both these things are necessary, by the condition of the bond, to bind the defendant to perform the award, yet the defendant ought only to rely upon one or the other by itself," etc. "but, if the truth had been that, although the award was made, yet it was not tendered according to the condi- tion, the defendant should have pleaded so at first, in his plea," etc. And the court gave judgment accordingly. (d) So, in debt on a bond conditioned to keep the plaintiffs harmless and indem- nified from all suits, etc., of one Thomas Cook, the defendants pleaded that they had kept the plaintiffs harmless, etc.(e) The plaintiffs replied that Cook sued them ; and so the defendant had not kept them harmless, etc. The defendants rejoined, that they had not any notice of the damnification. And the court held, first, (c) Hickman v. Walker, Willes, 27. () Gifford v. Perkins, 1 Sid. 450; 1 Vent. 77, s. c. 3. Southern R. Co. v. Wilcox, 99 Va. 394, 39 S. E. 144. See, also. B. & O. Ry. Co. v. Polly Woods & Co.. 14 Gratt. 447. For discus- sion of when a plea amounts to the general issue, see ante, 197. 63 994 PROLIXITY AND DELAY 505 to the plaintiff, and the denial should have been in the direct form, non est factum. On the other hand, if a plea of this kind be intended by way of confession and avoidance, it is bad for want of color: for it admits no apparent right in the plaintiff. It is said that the court is not bound to allow this objection; but that it is in its discretion to allow a special plea amounting to the general issue, if it involve such matter of law as might be unfit for the decision of a jury. (q) It is also said that as the court has such discretion, the proper method of taking advantage o^f this fault is not by demurrer but by motion of the court, to set aside the plea, and enter the general issue instead of it.(r) It appears from the books, however, that the objection has fre- quently been allowed on demurrer. As a plea amounting to the general issue is usually open also to the objection of being argumentative or that of wanting color, we sometimes find the rule in question discussed as if it were founded entirely in a view to those objections. This, however, does not seem to be a sufficiently wide foundation for the rule : for there are instances of pleas which are faulty as amounting to the general issue, which yet do not (as 'already observed), seem fairly open to the objection of argumentativeness and which, on the other hand, being of 'the negative kind or by way of trav- erse, require no color. Besides, there is express authority for holding, that the true object of this rule is, to avoid prolixity; and that it is therefore properly classed under the present sec- tion. For it is laid down that the reason of "pressing a general issue is not for insufficiency of the plea, but not to make long records when there is no cause." (s) [A plea amounts to the general issue when it denies or affirms some matter which the plaintiff is obliged to prove in order to maintain his case if the general issue were pleaded.] () This, however, is sub- ject to exception in the case of letters testamentary and letters of administration; executors and administrators being bound when plaintiffs to support their declaration, by making profert of these instruments. (H) Co. Litt. 303a; Millner v. Crowdall, 1 Show. 338. (n) Com. Dig., Pleader (O! 1); Leyfield's Case, 10 Rep. 88. (0) Com. Dig., Pleader (O. 3); Aylesbury v. Harvey. 3 Lev. 205. (/>) Com. Dig., Pleader (O. 3); 2 Saund. 62b, n. (5). 1004 MISCELLANEOUS RULES 513 The rule applies only to cases where there is occasion to men- tion the deed in pleading. When the course of allegation is not such as to lead to any mention of the deed, a profert is not neces- sary though in fact it may be the foundation of the case or title pleaded. The rule extends only to cases where the party claims under the deed, or justifies under it ; and therefore when the deed is mentioned only as inducement or introduction to some other mat- ter, on which the claim or justification is founded, or alleged not to show right or title in the party pleading, but for some collateral purpose, no profert is necessary. (g) The rule is also confined to cases where the party relies on the direct and intrinsic operation of the deed.(r) Thus, in pleading a feoffment no profert is necessary, for the estate passes not by the deed but the livery. So in pleading a conveyance by lease and release under the statute of uses, it is not necessary to make profert of the lease, because it is the statute that gives effect to the bargain and sale for a year, and the deed does not intrinsically establish the title. But in pleading the release it would seem that profert ought to be made, as the same reason does not apply. Another exception to the rule obtains where the deed is lost or destroyed through time or accident, or is in the possession of the opposite party. (s) These circumstances dispense with the neces- sity of a profert ; and the formula is then as follows ; "Which said writing obligatory," (or other deed,) "having been lost by lapse of time," (or "destroyed by accidental fire," or, "being in the possession of the said -") "the said - - cannot pro- duce the same to the court here."() The reason assigned for the rule requiring profert is, that the court may be enabled by inspection to judge of the sufficiency of the deed.(w) The author, however, presumes to question, whether the practice of making profert originated in any view of (q) Bellamy's Case, 6 Rep. 38a; Holland v. Shelby, Hob. 303; Banfill v. Leigh, 8 T. R. 571; Com. Dig., Pleader (O. 16); 1 Saund. 9a, n. 1. O) Read v. Brockman, 3 T. R. 156. (s~) Read v. Brockman, 3 T. R. 156; Carver v. Pinkney, 3 Lev. 82. (0 2 Chitty, 153. () Leyfield's Case, 10 Rep. 92b; Co. Litt. 35b. 514 ALL PLEADINGS MUST BE PROPERLY ENTITLED 1005 this kind. It will be recollected, that by an ancient rule, all af- firmative pleadings were formerly required to be supported by an offer of some mode of proof. As the pleader, therefore, of that time, concluded in some cases by offering to prove by jury, or by the record, so in others he maintained his pleading by pro- ducing a deed as proof of the case alleged. In so doing, he only complied with the rule that required an offer of proof. After- wards the trial by jury becoming more universally prevalent, it was often applied, as at the present day, to determine questions arising as to the genuineness or validity (jf the deed itself so pro- duced; and from this time, a deed seems to have been no longer considered as a method of proof, distinct and independent of that by jury. Consequently it became the course to introduce as well in pleadings where the party relied on a deed, as in other cases, the common verification, or offer to prove by jury ; and the true object of the profert was in this manner not only superseded but forgotten, though in practice it still continued to be made. 7 The actual value of the rule, whatever its origin or ancient object, consists in enabling the adverse party to obtain inspection (by demanding oyer) of the instrument of which profert is made. Where the instrument is such that no profert need be made of it, he has no such means of obtaining inspection, and he is there- fore obliged to resort to the less convenient course of applying to a judge for ah order that inspection be granted. But an order of this kind will in general be made as a matter of course, with respect to all instruments which either party sets forth in the pleading, and which are of such a kind as not to require profert. RULE VIII. 514. All pleadings must be properly entitled. (v) ***** [This is mere matter of form and is not essential and its omis- (v) 1 Chitty, 261, 527, 528; 1 Arch. 72, 162; Toppjng v. Fuge, 1 Marsh. 34. 7. It is provided by statute in Virginia that it shall not be nec- essary to make profert of any deed, letters testamentary, or com- mission of administration, but a defendant may have oyer in like manner as if profert were made. Code, 3244. 1006 MISCELLANEOUS RULES 515 sion is not error, but it is the better practice to give the title of the court, and some pleaders also give the Rules to which the writ is returnable, thus : In the Circuit Court of Rockbridge County, Rockbridge County, towit: 1st June Rules, 1912.] RULE; IX. 515. All pleadings ought to be true.(w) While this rule is recognized, it is at the same time to be ob- served, that in general there is no means of enforcing it, because regularly there is no proper way of proving the falsehood of an allegation, till issue has been taken, and trial had upon it. Lastly, there is an exception to the rule in question, in the case of certain fictions established in pleading, for the convenience of justice. Thus, the declaration in ejectment always states a ficti- tious demise, made by the real claimant to a fictitious plaintiff: 8 and the declaration in trover uniformly alleges, though almost always contrary to the fact, that the defendant found the goods, in respect of which the action is brought. [So in implied as- sumpsit as where a horse is stolen and the thief is sued for the price, a sale is alleged to the thief, and this allegation is not trav- er sable.] O) Bac. Ab., Pleas, etc. (G. 4): Sade f TVake. Hob. 295; Smith v. Yeomans, 1 Saund. 316. 8. In Virginia, and in most, if not all the States, all fictions have been abolished in the action of ejectment, and the action is brought by the real claimant of the land against the person actually occupy- ing the same adversely to the plaintiff. See ante, 116. CHAPTER LVI. CONCLUSION. 516. Merits of system. To the view that has been taken in this work, of the principles of the system of pleading, it may be useful to subjoin a few re- marks on the merits of that system, considered in reference to its effects in the administration of justice. When compared with other styles of proceeding, it has been shown to possess this characteristic peculiarity that it produces an issue; that is, it obliges the parties so to plead, as to develop by the effect of their own allegations, some particular question as the subject for decision in the cause. With respect to the de- gree of particularity with which such question or issue is devel- oped, we have seen in the first place, that it is always distinctly defined as consisting either of fact or law, because, in the former case it arises on a traverse, in the latter it presents itself in the very different shape of a demurrer. But independently of this distinction, it will be remembered, that the issue produced is re- quired to be certain or particular. It is true that some issues are framed with less certainty than others : but still it is the universal property of all, to define the question for decision, in a shape more or less specific. That prior to the institution of any proceeding for the purpose of decision, the question to be decided should be by some means publicly adjusted as consisting either of fact or law, and this too with some certainty or specification of circumstance, is evidently required, by the nature of the English common law system of jurisprudence. For, by the general principles of that system, questions of law are determinable exclusively by the judges; while questions of fact (some few instances excepted), can be decided only by a jury ; and in those excepted cases are referred to other appropriate modes of trial. Unless therefore some pub- lic adjustment of the kind above described, took place between the parties, they would be unable, after the pleading had terminated, to pursue further their litigation. For they might disagree upon 1008 CONCLUSION 516 the very form of the proceeding, by which the decision was to be obtained ; or, if they both took the same view of the general na- ture of the question, so that they both referred their controversy to the same method of determination, for example, trial by jury they might yet differ as to the shape of the question to be re- ferred. A public adjustment of the point for decision of the specific kind above described, being for this reason necessary, there are two ways in which it might conceivably be effected, either by a retrospective selection from the pleading, or by the mere opera- tion of the pleading itself. The law of England, in producing an issue, pursues the latter method. For as has been shown, the alternate allegations are so managed, that by the natural result of that contention, the undisputed and immaterial matter is con- stantly thrown off, until the parties arrive at demurrer, or trav- erse; upon which a tender of issue takes place, on the one hand, and an acceptance of it on the other; and the question involved in the demurrer or traverse, is thus mutually referred for de- cision. The production of an issue, when thus defined and explained, appears to be attended with considerable advantage in the ad- ministration of justice, for the better comprehension of which it will be useful to advert to those styles of juridical proceeding in which no issue is produced. In almost every plan of judicature with which we are ac- quainted, except that of the common law of England, the course of proceeding is to make no public adjustment whatever of the precise question for decision. For as all matters, whether of law or fact are decided by the judge, and by him alone, upon proofs adduced on either side by the parties, the necessity upon which that practice has been shown to be founded in the Eng- lish common law system does not arise. Consequently the mutual allegations are allowed to be made at large as it may be called; thati is, with no view to the exposition of the particular question in the cause by the effect of the pleading itself. The litigants indeed, before they proceed to proof, must explore the particular subject in controversy, in order to ascertain whether any proof be required, and to guide them to the points to which their proof is to be directed. And upon the hearing of the cause, the judge 516 MERITS OF SYSTEM 1009 must of course also ascertain for his own information, the pre- cise point to be decided, and consider in what manner it is met by the evidence. But in these proceedings, neither the court nor the parties have any public exposition of the point in controversy to guide them; and they judge of it as a matter of private dis- cretion, upon retrospective examination of the pleadings. (a) This, as already stated, is the almost universal method ; but there is another, which also requires notice; viz, that which at present prevails in the Scottish judicature. Since the trial by jury in civil causes has been engrafted upon the judicial system of Scotland, it has, of course, been found necessary to adjust and settle publicly, between the parties, the particular question or questions on which the decision of the jury is to be taken. But in- stead of eliciting such question (called by analogy to the law of England, the issue), by the mere effect and operation of the pleading itself, according to the practice of the English courts, the course taken has been to adjust and settle the issue retrospec- tively from the allegations, by an act of court ; and these allega- tions have consequently continued to be taken at large, according to the definition of that term already given. (b) Now the English common law method, as compared with either of those that have been just described, possesses this advantage, (a) The practice of the courts of equity in this country forms no exception to this general statement. For, though the common repli- cation offers a formal contradiction to the answer, a contradiction which initiates, in some measure, the form of an issue in the common law, and borrows its name, yet, in substantive effect, the two results are quite different; for the contradiction to which the name of an issue is thus given in the equity pleading is of the most general and indefinite kind, and develops no particular question as the sub- ject for decision in the cause. (b) It is to be understood, however, that the issues are not ex- tracted from the pleadings in the full latitude of allegation sometimes allowed to them by the Scottish law, but from allegations of a more succinct and specific character, called condescendences and answers; which the parties are directed to give in. as the materials from which the court are to adjust the issue. Yet, even these condescendences and answers are pleadings at large, in the sense in which the author uses that term; for they do not develop the point in controversy by their intrinsic operation. -64 1010 CONCLUSION 516 that the undisputed or immaterial matter which every controversy more or less involves, is cleared away by the effect of the plead- ing itself : and therefore when the allegations are finished, the essential matter for decision necessarily appears. But under the rival plans of proceeding, by which the statements are allowed to be made at large, it becomes necessary when the pleading is over, to analyze the whole mass of allegation, and to effect for the first time the separation of the undisputed and immaterial matter, in order to arrive at the essential question. This opera- tion will be attended with more or less difficulty, according to the degree of vagueness or prolixity in which the pleaders have been allowed to indulge; but where the allegations have not been con- ducted upon the principle of coming to issue, or in other words, have been made at large, it follows from that very quality, that their closeness and precision can never have been such as to pre- clude the exercise of any discretion in extracting from them the true question in controversy; for this would amount to the pro- duction of an issue. Therefore it will always be in some -measure doubtful, or a point for consideration, to what extent, and in what exact sense, the allegations on one side, are disputed on the other, and also to what extent the law relied upon by one of the parties, is controverted by his adversary. And this difficulty, while thus inherent in the mode of proceeding, will be often ag- gravated, and present itself in a more serious form, from the natural tendency of judicial statements, when made at large, to the faults of vagueness and prolixity. For where the pleaders state their cases in order to present the materials, from which the mind of the judge is afterwards to inform itself of the point in controversy, they will of course be led to indulge in such am- plification on either side, as may put the case of the particular party in the fullest and most advantageous light, and to pro- pound the facts in such form as may be thought most impressive or convenient, though at the expense of clearness or precision. On the other hand, it is evident, that upon the Engh'sh common law method, the pleaders having no object but to produce the issue, are without the least inducement either to an uncertain, or a too copious manner of statement ; and, on the contrary, have a mutual interest to effect the result at which they aim, in the shortest and most direct manner. 516 MERITS OF SYSTEM 1011 The difficulty that must thus be always, in some measure, found under the method of pleading at large, in ascertaining the precise extent of the mutual admissions of fact or law, is attended with this obvious inconvenience that a party may be led to proceed to proof or trial, upon matters not disputed, or not considered as material to be disputed, on the other side, or to omit the proof or trial of matters which are meant to be disputed, and which are in fact essential to the final determination of the cause. The judge may consequently find, upon examination of the whole process, and hearing the further allegations and arguments of the parties, that the investigation of fact has either been re- dundant, and therefore attended with useless expense and de- lay; or defective, so as not to present him with the materials on which he can properly adjudicate. On the o'ther hand, these evils are almost unknown to the English system of judicature. On the whole, then, it may be fairly concluded, that the system of pleading is not only distinguished from other methods of ju- dicial allegation by its production of an issue, but is in this re- spect advantageously distinguished from them, and derives from this singularity of proceeding, considerable protection from in- convenienfes under which they severely labor. It also appears to deserve high praise, in respect of such of its rules as are classed in this work, by their tendency to prevent obscurity, or confusion, prolixity, or delay. Here, indeed, the objects pursued are not peculiar to the English system, for the avoidance of such faults is of course, in some measure, the aim of every enlightened plan of judicature. But, in general, there is either a want of regulation to enforce the object, or the regula- tion is found to be ineffectual. On the contrary, the system of pleading has various rules specifically designed to promote pre- cision and brevity in the method of allegation, rules exclusively its own, and extremely strict and efficacious in their character. Accordingly, it has ever been proverbially famous for the former of these qualities ; and in modern times, and under the influence of enlightened judges, the principle of avoiding the introduction of unnecessary matter has been ( so rigorously applied, and the cases of unnecessary allegation have been so well defined and understood, as considerably to remove its not less ancient and notorious reproach of amplification and prolixity. 1012 CONCLUSION 516 While the system of pleading is thus in general distinguished for the excellence of its structure, it cannot be denied that there are points on which its merit is questionable. ***** There is something not satisfactory in its tendency to decide the cause, upon points of mere form. It will be observed, that, in general, whenever a demurrer oc- curs in respect of insufficiency in the manner of statement, and not for insufficiency in substance, or where an issue, either in fact or law, is joined upon a plea in abatement, the issue joined in such cases, involved a question of form only. And as the issue, whatever be its nature, is in general decisive of the fate of the cause, it follows that where issue is so joined, the action must commonly be decided upon a point of form, and not upon the merits of the case, a result that seems inconsistent with sound justice. Thus, if the plaintiff, in an action of trespass, should happen to omit in his declaration, to state the day or time at which the trespass was committed, and the defendant should demur specially for this omission, and the issue joined on this demurrer should be decided (as it would be) in favor of the defendant, by the regular consequence, judgment would be also given for the defendant, and the plaintiff's claim would be de- feated by the omission of a few words in his declaration. 1 Yet 1. This objection is met in Virginia by -the following provisions of the Code: Section 3245. "All allegations which are not traversable, and which the party could not be required tp prove, may be omitted, unless when they are required for the right understanding of alle- gations that are material." Section 3246. "No action shall abate for want of form, where the declaration sets forth sufficient matter of substance for the court to proceed upon the merits of the cause." Section 3272. "On a demurrer (unless it be to a plea in abate- ment), the court shall not regard any defect or imperfection in the declaration or pleadings, whether it has been heretofore deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defence, that judgment, ac- cording to law and the very right of the cause, cannot be given. No demurrer shall be sustained, because of the omission in any pleading of the words, 'this he is ready to verify,' or 'this he is ready to verify by the record,' or, 'As appears by the record;' but 516 MERITS OF SYSTEM 1013 we have seen that time, if alleged, need not have been proved as laid; and its omission, therefore, is a fault of the most strictly formal kind. Again, if the defendant should plead in abate- ment, that he is sued by a wrong Christian name, and the plain- tiff should choose to take issue in fact upon the plea, and go to trial, the verdict, if given for the plaintiff, entitles him to judg- ment quod recuperet, and he consequently recovers his demand. The case is otherwise, however, if the plaintiff succeeds on an issue in law on a plea in abatement, for there the judgment is re- spondent ouster only. On the other hand, if given for the de- fendant, it is followed by judgment of breve (or billa) cassetur; and thus the action in one case and in the other, both the action and the demand itself, are disposed of upon a mere question relating to the Christian name of the defendant. 2 But if any objection attach on this ground, to the system of pleading, its weight, at least, is much diminished, by the liberality with which amendments are allowed in the modern practice. 3 the opposite party may be excused from replying, demurring, or otherwise answering to any pleading, which ought to have, but has not, such words therein, until they be inserted." 2. This objection has been met in Virginia by Code, 3258, which is as follows: "No plea in abatement for a misnomer shall be allowed in any action, but in a case wherein, but for this section, a misnomer would have been pleadable in abatement, the declaration may, on the de- fendant's motion, and on affidavit of the right name, be amended by inserting the right name." 3. The right to amend is given in Virginia by the following pro- visions of the Code: Section 3253. "The plaintiff may of right amend his declaration * * * before the defendant's appearance." Section 3258. See last note. Section 3258a. Provides as follows: "That whenever it shall ap- pear in any action at law or suit in equity heretofore or hereafter instituted, by the pleadings or otherwise, that there has been a mis- joinder of parties, plaintiff or defendant, the court may order the ac- tion or suit to abate as to any party improperly joined and to pro- ceed by or against the others as if such misjoinder had not been made, and the court may make such provision as to costs and con- tinuances as may be just. Section 3259. "In other cases, a defendant, on whom the process summoning him to answer appears to have been served, shall not 1014 CONCLUSION 516 Thus, in the case of demurrer above supposed, if the plaintiff should imprudently join in demurrer (instead of applying, as he ought, for leave to amend), the court would nevertheless, after joinder in demurrer, and even after the demurrer had come on to be argued, allow him to amend; and the only inconvenience that he would suffer, would be the payment of costs. The second case, indeed, viz, that in which an issue in fact is joined upon a plea in abatement, is such as would not allow of amendment, unless applied for before the cause had come on for trial. But even in this instance, it is not probable that any hardship or injustice would arise by the final determination of the cause, upon the point of form, for if the unsuccessful party had had any substantial case upon the merits, he would presumably have applied to amend, without hazarding the trial. take advantage of any defect in the writ or return, or any variance in the writ from the declaration, unless the same be pleaded in abatement. And in every such case the court may permit the writ or declaration to be amended so as to correct the variance, and permit the return to be amended upon such terms as to it shall seem just." Section 3263. "After such plea in abatement, the plaintiff, without proceeding to trial upon an issue thereon, may amend his declara- tion, and make the persons, named in such plea as joint contractors, defendants in the case with the original defendants, and cause proc- ess to be served upon the new defendants; and if it appear by the subsequent pleadings in the action, or at the trial thereof, that all the original defendants are liable, but that one or more of the other persons named in such plea are not liable, the plaintiff shall be en- titled to judgment, or to verdict and judgment, as the case may be, against the defendants who appear liable; and such as are not liable shall have judgment and recover costs as against the plaintiff, who shall be allowed the same as costs against the defendants who so pleaded." Section 3384. "If, at the trial of any actions, there appears to be a variance between the evidence and allegations or recitals, the court, if it consider that substantial justice will be promoted and that the opposite party cannot be prejudiced thereby, may allow the plead- ings to be amended, on such terms as to the payment of costs or postponement of the trial, or both, as it may deem reasonable. Or, instead of the pleadings being amended, the court may direct the jury to find the facts, and, after such finding, if it consider the va- riance such as could not have prejudiced the opposite party, shall give judgment according to the right of the case." 516 MERITS OF SYSTEM 1015 Again, some doubt may reasonably be felt with respect to the advantage of that part of the system, which relates to the single- ness of the issue. 4 Provided only, that a party be restrained from raising issues inconsistent with each other, or such as he knows to be without foundation in fact, it may be questioned whether any sufficient considerations of utility or convenience can be urged at the present day, in favor of the object of singleness. At all events, some presumption must arise against the value of this object, in modern pleading, when we recollect that the long permitted use of several counts, in respect of the same cause of action, and the provision of the statute of Anne, allowing the use of several pleas, have declared it as the sense both of the bench and the legislature, that if the original principle deserved to be retained, it required at least material mitigation. However, it is clear that the principle of singleness, is so far, at least, a right and valuable one, as it may tend to prevent the parties from of- fering inconsistent allegations, or such as they may know to be false. For, though the interests of justice seem to require, in many cases, the allowance of several counts or pleas in respect of the same demand, they are, on the other hand, directly opposed to the allowance of repugnant ones, and where one of the mat- ters alleged must evidently be false, the party should, of course, be obliged to make his election between them : and so, in allow- ing a party to make different allegations, he ought, if possible, to be excluded from such as (whether inconsistent or not with what has been previously pleaded) he must know to be without foundation in fact. Yet these, which are perhaps the only bene- ficial results that can flow from the principle of singleness, the present state of the law against duplicity, unfortunately fails to produce. For, first, a plaintiff is at liberty to adopt as many counts as he pleases, however apparent it may be that the cases which they respectively state, cannot all be true. So a defendant is allowed, under the provisions of the statute of Anne, to plead, 4. Code, 3264, provides as follows: "The defendant in any action may plead as many several matters, whether of law or fact, as he shall think necessary, and he may file pleas in bar at the same time with pleas in abatement, or within a reasonable time thereafter, but the issues on the pleas in abate- ment shall be first tried." 1016 CONCLUSION 516 with scarcely any exception, matters directly inconsistent with each other, for example, he may plead, in trespass for assault and battery, not guilty (namely, that he did not commit the trespass), and also, son assault demesne, viz, that he committed them in self- defence or, in debt on bond, non est factum (viz, that he did not execute the deed), and also, that he executed it under duress of imprisonment. Again, a party is not restrained by the present sys- tem, from adding to his true case, another that, though consistent with it, he knows to be false. And, accordingly, a defendant, at the same time that he pleads a special plea founded on his real matter of defence, almost always resorts also to the general issue. or some other plea by way of traverse, in order to put the plain- tiff to the proof of his declaration, without having, in truth, the least reason to deny the allegations which it contains. The statute of Anne, indeed, provides a check against this, by a provision of which the general effect is as follows : that, where the defendant has pleaded several pleas, \and the issue upon any one of them, is found for the plaintiff, the court may give the plaintiff the costs of every such issue, unless the judge of nisi prius shall certify that the defendant had probable cause to plead the matter found against him. But the construction and effect given to this pro- vision, in practice, seem to have rendered it inadequate to the object which it contemplates. 3. Another feature of doubtful character, in the system of pleading, is the wide effect which belongs, in certain actions, to the general issue? In debt on simple contract, in assumpsit, and trespass on the case in general, the general issue em- braces almost every ground of defence to which the defendant, at the trial, may choose to resort; the questions offered by these issues, being, in effect, nearly these, whether the defend- ant be indebted to the plaintiff, as alleged in the declara- 5. This difficulty is met in Virginia by Code, 3249, which is as follows: "In any action or motion, the court may order a statement to be filed of the particulars of the claim, or of the ground of defence; and, if a party fail to comply with such order, may, when the case is tried or heard, exclude evidence of any matter not described in the notice, declaration, or other pleading of such party, so plainly as to give the adverse party notice of its character." 516 MERITS OF SYSTEM 1017 tion, or whether he be liable to the plaintiff's demand, as set forth in the declaration. Now, these questions are so general and vague as to produce, but in a limited and inferior degree, the advantages which attend the production of a more strict and special issue. For, first, they do not fully effect the separation of matter of fact from matter of law. To understand this, it must be considered that, though the parties cannot go to trial on a mere question of law (a traverse of matter of law not being al- lowable), yet it is, in the nature of many issues in fact, to involve some subordinate legal question, the decision of which is essential to the decision of the issue. And the wider and more general the form of the issue, the more likely it is to comprise these subordi- nate questions of law. For example : In an action of debt on sim- ple contract, or assumpsit, if the defendant rely on a lease execu- ted by the plaintiff, he may give this in evidence under the general issue (nil debet, or non assumpsit), because it tends to show that he is not indebted, or is not liable, as alleged and, if the plaintiff's answer to the release, be, that it was obtained by duress, this will, of course, be also offered in evidence under the same issue. Upon this point of duress, two questions may be sup- posed to arise, first, whether the execution of the deed under duress, would defeat the effect of the deed, secondly, whether the deed were, in fact, executed under duress. Before the jury can find a verdict either for the plaintiff or defendant, both these questions must be disposed of. But the first is a question of mere law, and their decision upon it, must be guided by the direction of the judge. Here then, is a question of law involved under the issue in fact. Now, if, on the other hand, a form of action be supposed, in which the pleading is more special, and the general issue less comprehensive, for example, the action of cove- nant, this very same question will be distinctly developed, as a point of law, upon the pleading by way of demurrer. For the de- fendant cannot, under non est factum (which is the general issue in that action), set up the release, but must plead it specially, and the plaintiff must, consequently, plead the duress in reply; and, then, if the defendant disputes the legal consequence of the duress, his course is to demur to the replication. Of such demurrer, oc- curring in the very case here imagined, the reader has already 1018 CONCLUSION 516 seen an example in the course of this work and to this he may be again referred, for further illustration. It thus appears, then, that it is the effect of the wider general issues to render less complete, than it otherwise would be, the separation of fact from law. And the inconvenience of this is felt, in the great frequency with which difficult legal questions arise for the opinion of the judge at nisi prius, the numerous mo- tions for new trials consequently made in the court in bank, to obtain a revision of such opinions, and the delay and expense necessarily attendant on a proceeding of this kind, when com- pared with the regular method of demurrer. # * * * * Again, it is an inconvenience arising from general issues of this description, that they tend to conceal from each party, the case meant to be made by his adversary, at the trial. 6 Thus, in the instance above supposed, the plaintiff would have no notice from the nature of the issue, nil debet or non assumpsit, that the defendant meant to set up a release, nor would the defendant, on the other hand, have any intimation that it was to be met by the allegation of duress. And thus is defeated, in some measure, another of the advantages otherwise attendant on the produc- tion of an issue viz, that of apprising the parties of the precise nature of the question to be tried, and enabling them to shape their proofs without danger of redundance on the one hand, or deficiency on the other. Another objection to the system of pleading, and one more formidable, perhaps, than any that has been above suggested, is to be found in the excessive subtlety, and needless precision, by which some parts of it are characterized. 7 The existence of these faults cannot fairly be denied, nor that they bring upon suitors, the frequent necessity of expensive amendments, and sometimes occasion an absolute failure of justice upon points of mere form. Yet is their inconvenience less severely felt in practice, at the present day, than a mere theoretical acquaintance 6. This objection is met in Virginia by provision of 3249 of the Code, which is copied on page 1016. 7. This objection is met in Virginia by the provisions of 3245, 3246, 3272, hereinbefore quoted in the notes. 516 MERITS OF SYSTEM 1019 with the subject, would lead the student to suppose. Many of the intricacies and mysteries of pleading, those, for example, which relate to color, and special traverses, long discouraged by the courts, are rapidly falling into disuse, and, on the whole, have but little effect in the actual operation of the system; and, with respect to the science in general, it may be remarked, that its increasing cultivation has made the course of practice more uniformly correct than in former times, and the occasions for formal objection, considerably less frequent. APPENDIX In preparing the copy for the printer, the following section was accidentally dropped out : 283a. Rejection of pleas. In Virginia it is held that if a plea is offered and rejected, or if it has been filed and has afterwards been stricken out, in either case a bill of exception is necessary to enable the appellate court to review the ruling of the trial court. It is said that when stricken out, it is as if it had never been filed unless made a part of the record by a bill of exception. 1 In West Virginia it is pro- vided by statute that "When a plea is offered in any action or suit, which is not sufficient in law to constitute a defense therein, the plaintiff may object to the filing thereof on that ground, and the same shall be rejected. But if the court overrule the objec- tion and allow the plea to be filed, the plaintiff may take issue thereon without losing the benefit of the objection, and may, on appeal from a judgment rendered in the case in favor of the de- fendant, avail himself of the error committed in allowing such plea to be filed, without excepting to the decision of the court thereon." 2 And if error is committed in refusing to permit a plea to be filed no formal bill of exception is necessary if the order book of the court expressly states that the defendant ex- cepted to the ruling of the trial court in rejecting the plea. 3 In Georgia if the plea has once been filed, and is afterwards stricken out, it is regarded as still so far a part of the record that no bill of exception is deemed necessary. 4 It will be observed, however, in reading the last mentioned case, that the plea was not stricken out on motion, but that a demurrer thereto was sustained. Of course no bill of exception was necessary in such a case, as the demurrer was a part of the record, and a bill of exception is never necessary to review the ruling of a court on demurrer. 5 If an assignment of error may be affected by extraneous evidence there must be an exception, or bill of exception. 6 1. Fry v. Leslie, 87 Va. 269, 12 S. E. 671. 2. W. Va. Code, 3876. 3. Sweeney v. Baker, 13 W. Va. at page 215. 4. McCall v. Herring, 116 Ga. 235, 42 S. E. 468. 5. Russell Creek Coal Co. v. Wells, 96 Va. 416, 31 S. E. 614. 6. Swann v. Washington, etc., Co., 108 Va. 282, 61 S. E. 750. INDEX [References are to pages.] ABATEMENT AND REVIVAL Process, defendant returned non-resident, abatement, 257. Abatement in cases of misjoinder of parties, 76, 257, 347. No abatement for want of form when, 345. Revival of actions, see Parties. Survival of tort actions, see Parties. See also, Attachments, Demurrer, Limitation of Actions. ACCORD AND SATISFACTION Introductory, 16. Definition, 16. Effect of, 16. Subject matter, 16-17. Simple contract debts, 16-17. Judgments, 17. Obligations under seal, 17. Torts, 17. Title to freehold, 17. Accord without satisfaction, 17. . Necessity for performance of thing agreed, 17. Time of performance, 17. Part performance, readiness, tender, 17. Persons who may make satisfaction, 18-19. Parties, 18. Strangers, 18. One of several joint wrong-doers, 18-19. Effect of complete satisfaction by, 18-19. Effect of release under seal or expressing full satisfac- tion, 18-19. Effect of settlement with in proper manner, 18-19. Effect of covenant not to sue, 19. Apportionment of wrong, 18-19. Effect of judgment against, 19. With satisfaction, 19. Without satisfaction, 19. Joint obligors, 19. Effect of release of one, 19. Satisfaction to one joint obligee, effect of, 19. 1022 INDEX [References are to pages.] ACCORD AND SATISFACTION Cont'd. Consideration of accord, 20-21. Part payment of a liquidated money demand, 20. At common law, 20. Now, 20. New or additional consideration, 20. Unliquidated or disputed claims, 20. Acceptance of property or services, 20-21. Acceptance oi a promise, 21. How pleaded, 21. Requisites of plea of, 21. Showing under nil debet, see Debt, Action of. ACCOUNT Nature of action and general rules applicable thereto, 185-186. Founded on contract, 185. Its ancient employment and object, 185. Technical, dilatory and unsatisfactory, 185. Procedure in, 185. Obsolete, 185-186. Virginia statute allowing, 185-186. Construction of, 186. Declaration, nature and form, 186. Theory of the action, 186. Judgment in, 186. Superseded by bill in equity, 186. Equitable remedy preferable, 186. Equitable remedy, applicability of, 186. See Payment. ACCOUNT, ACTION OF See Account. ACCOUNT STATED See Limitation of Actions. ACKNOWLEDGMENT See Justices of the Peace. ACTION Classification of actions, 77-78. Real actions, 77. Mixed actions, 77. Personal actions, 77. Local and transitory actions, 77-78. Actions ex contractu and ex delicto, 78. 'How actions are instituted, 286-289, 291-292. INDEX 1023 [References are to pages.] ACTION Cont'd. Test of whether action is for tort or contract, 395-396. When in personam and when in rem, 305. When action deemed commenced, 400. For general discussion of joinder of actions, see Pleading (Rules of Pleading), and pp. 900-901. Assumpsit, covenant, debt and motions contrasted, see Assumpsit, Action of. Comparison of Unlawful Entry and Detainer with Trespass, see Unlawful Entry and Detainer. Detinue compared with replevin, see Detinue. Difference between malicious prosecution and false imprison- ment, see Malicious Prosecution. Difference between trespass to try title and trespass quare clau- sum fregit, see Trespass. Difference between trover and conversion and trespass, see Tro- ver and Conversion. Distinction between trespass and case, see Trespass. False imprisonment compared with malicious prosecution, see False Imprisonment. Form of as determining whether cause of action in tort or con- tract, see Parties. Form of, to recover for death by wrongful act, see Death, Action on the Case, Trespass. Joinder of common law and statutory slander, see Libel and Slan- der. Joinder of counts in trespass for seduction, see Trespass. Joinder of false imprisonment, slander, libel, and malicious pros- ecution, see False Imprisonment. Interpleader as substitute for Replevin, see Interpleader. Misjoinder of tort and assumpsit, see Assumpsit, Action of. Real action, see Unlawful Entry and Detainer. Trespass de bonis asportatis compared with trover, see Trespass. Trespass practically superseded by case, see Action on the Case Trespass to try title as superseding ejectment, see Trespass. Survival of, see Parties. When trespass concurrent with case, see Trespass. See also, Attachments, Demurrer, Limitation of Actions, Process. ACTION ON THE CASE Use of to recover statutory penalties, 89-91. To recover damages for violation of statute, 90-91. Generally called "case," 225. Distinction between trespass and case, 225-227. Has practically superseded trespass, 227. For false imprisonment, 230-231. 1024 INDEX [References are to pages.] ACTION ON THE CASE Cont'd. To recover for death by wrongful act, 231. Species of trespass on the case ex delicto, 231-232. Assumpsit as, 231. General subdivision, 231-232. Trespass on the case generally, 232. Its use and scope, 232. Trover and conversion, 232. Slander, 232. Libel, 232. General issue, 232, 852-854. Form, 232, 849. Nature, scope, and defences provable under, 232, 852-854. Form of memorandum in, 289. See Death, False Imprisonment, Malicious Prosecution, Process, Trespass, Trover and Conversion. ADVERSE POSSESSION See Ejectment, Limitation of Actions, Trespass. AFFIDAVITS Filed with plea of nil debet, see Debt, Action of. See also, Appeal and Error, Attachments, Continuance, Justices of the Peace, Mechanics' Liens, Pleading, Process. ALIENS Right of representative of non-resident to sue for death, see Death. AMENDMENTS See Attachments, Pleading, and other specific titles. APPEAL AND ERROR Difference between writs of error and appeals, 735-736. Appeals, 735. Nature of as a hearing de novo of cause, 735. Presumptions on, 735. Meaning of terms appellant and appellee, 735. Writs of error, 735. Nature of as new suit, 735. How awarded, its effect, judgment of appellate court, 735. As review of law or of fact, 735. Consideration given to verdict of jury on, 735. To judgment of trial court on question of fact, 735. Meaning of terms plaintiff in error and defendant in error, 735. INDEX 1025 [References are to pages.] APPEAL AND ERROR Cdnt'd. Difference between writs of error and appeals Cont'd. Supersedeas, 735-736. Always ancillary process in Virginia, 735-736. Its mandate and effect, 735-736. Not substitute for writ of error, 736. Not necessary to appeal or writ of error, 736. Form of writ of error and supersedeas, 736. Course of appeal in Virginia, 737. Appeal from circuit to corporation court, or vice versa, 737. State Corporation Commission, appeals from, where cogni- zable, 48. Errors to be corrected in trial court, 737-738. Judgment confessed, no appeal on, 737. Effect of statute of jeofails on errors, 737. Power of court or judge to correct clerical errors or those of fact, 737. Judgment by default, power of court or judge over, 737. Judgment not by default when something appears in the record by which amendment can be made, 737-738. Release of part of recovery by party, effect, 737-738. Motion for correction, form of and time for, 738. Errors of judgment, 738. When curative nunc pro tune order may be entered, 738. When no appeal unless motion for correction made in trial court, 738. Course pursued by appellate court when judgment has been, or should have been, so amended in trial court, 738. When court of appeals can correct clerical errors in its own de- crees, 738. Jurisdiction of the court of appeals of Virginia, 738-745. Constitutional and statutory provisions, 739-741. Original jurisdiction, 738-741. Mandamus, prohibition and habeas corpus, 741. None in cases of quo warranto, 741. Amount in controversy immaterial, 741. Provisions of present constitution as self executing, 741. Rule of court as to application for a mandamus or pro- hibition, 741-742. Appellate jurisdiction, 742-745. Matters not merely pecuniary, 742-744. Amount in controversy immaterial, 742. What matters embraced under this heading, 742. No direct appeal from judgment of justice involving constitutionality of a law, 742, 48. 65 1026 INDEX [References are to pages.] APPEAL AND ERROR Cont'd. Jurisdiction of the court of appeals of Virginia Cont'd. Appellate jurisdiction Cont'd. Matters not merely pecuniary Cont'd. Controversies concerning the condemnation of property, right of legislature to limit appeal to question of damages, 743. Jurisdictional matter must not be incidental or col- lateral, 743. Jurisdiction must affirmatively appear from record, 743. Does so appear where constitutionality of law necessarily involved, 743. Constitutional question must be raised in trial court, 348, 743. Construction of statute as distinguished from con- stitutionality, 743-744. In cases of unlawful entry and detainer, 744. Where validity of deed of trust securing less than $300 assailed, 744. Subjecting land to judgment for less than $300, 744. Right of state to impose a tax or to subject land thereto, 744. Mandamus and prohibition, 744. Necessity for final judgment in trial court, 744. West Virginia rule, 744. Matters pecuniary, 744-745. Jurisdictional amount, 744. How far interest taken into account in ascertaining jurisdiction, 744-745. Amount in controversy, 745-751. Virginia doctrine, 745-748. Constitutional provision for appeal not self-executing, 745. As equivalent to "matter in dispute," 745. Meaning of phrase, 745. Where the plaintiff appeals, 745-748. As determined by amount claimed in declaration, 745-746. Difference between amount claimed and amount re- covered, 746-747. Where defendant allowed a set-off, 747. Necessity for objection to amount of recovery in trial court, 747-748. INDEX 1027 [References are to pages.] APPEAL AND ERROR Cont'd. Amount in controversy Cont'd. Virginia doctrine Cont'd. Where the defendant appeals, 745, 747. Amount of judgment at its date as determining, 745. Where the defendant claims a set-off, 747. West Virginia doctrine, 748-749. Where the plaintiff appeals, 748. As amount really claimed, how ascertained, 748. As amount claimed in declaration or bill, 748. As amount claimed in summons, 748. Where the defendant appeals, 748-749. As amount claimed in plea, answer or set-off, 748. As amount of judgment against him, 748, 146, 359. As amount of set-off wholly disallowed, 748-749. United States doctrine, 749. Where the plaintiff appeals, 749. Difference between amount claimed and judgment rendered, 749. Amount must be claimed in body of declara- tion, 749. Where counter claim set up by defendant, 749. Where the defendant appeals, 749. As amount of judgment against him, 749. Where counter claim set up by him, 749. Real difference between claim and recovery the test, 749. General doctrine, 749-750. Conflict in decisions, 749. Doctrine adopting as test amount claimed in lower court, 749. Doctrine adopting as test amount of recovery, 749-750. Rule on principle, 749-750. Burden of proof as to, 750. When may be shown by affidavits in appellate court, 750. Change in jurisdictional amount, which law governs right of appeal, 750-751. Aggregate of several claims, 751. Effect of as to plaintiffs who have no joint interest or community of interest, 751. Claims of legatees against an executor, 751. Claims against legatees or devisees, 751. Cross-error by defendant in error, 751-753. Reversal of proceedings on behalf of appellee or defendant in error, 751-752. Right to assign as to any part of record, 752. 1028 INDEX [References are to pages.] APPEAL AND ERROR Cont'd. Cross-error by defendant in error Cont'd. Jurisdictional amount as affecting, 752. Effect of accrual of interest, 752. Right of plaintiff to assign where both parties appeal, 752. Assigning moot questions on, 752-753. Collateral effect of judgment as determining Jurisdictional amount, 753. Release of part of recovery, 753-754. Right to where effect would be to defeat appeal, 753-754. Effect of release after judgment, 754. Reality of controversy, 754. Necessity for, 754. Moot questions, 754. Agreement of counsel as affecting, 754. Who may apply for a writ of error, 754-755. Aggrieved party to cause, 754. Name must appear in petition, 754-755. Application in name of dead man, 755. Must be party on whom to serve process, 755. Procedure where plaintiff in trial court dies after judgment and defendant wishes to appeal, 755. Commissioner of court, 755. One of several jointly bound, 755. Surety, when defence personal to principal, 755. Commonwealth from decision of State Corporation Com- mission, 48. Time within which writ of error must be applied for, 740-741, 756. One year from actual date of final judgment, 740-741, 756. Time for giving bond, 756. Appeal from decree refusing bill of review, 740-741, 756. Time excluded from computation, 756. Dismissal as improvidently awarded, 756. Plea of statute unnecessary, 756. Application for writ of error, 757-760. Transcript of record, how obtained, 757. Making up the transcript, agreeing the facts, 757. The petition and certificate of counsel thereto, 757. Transmission of petition to judge of appellate court, pro- cedure, 757. Presenting petition to court in term, 757-758. Superseded*, when granted, 758. Bond, when required of plaintiff in error, 758. INDEX 1029 [References are to pages.] APPEAL AND ERROR Cont'd. Application for writ of error Cont'd. Suspending order in trial court pending petition, 758. Time for requesting, 758. Bond required of applicant, its penalty and condition, 758. What comprises the record in a common law action, 758. Mere filing of papers does not make them part of, 758. Sources of information as to what constitutes, 758. Power of court of appeals to have defects in record cured in trial court, 759. Petition as a pleading, necessity for assigning errors in, 759. Notice to counsel, necessity for an application for transcript, 757, 759. Statute requiring directory, 759. Form of notice, certificate of clerk, 759-760. Length of notice, 760. To what counsel given, 760. Bond of the plaintiff in error, 760. Condition of where no supersedeas awarded, 760. Condition of where supersedeas awarded, 760. By whom given, how penalty fixed, 760. Dismissal of writ of error for failure to give or for informal- ity in, 760. Effect of such dismissal, 760. Informalities in, correction of in appellate court, 760. Rule of decision, 760-764. Where verdict or judgment claimed to be contrary to evi- dence, 760-761. Where facts are certified, presumptions, 761. When facts should be certified, form of certificate, 761. Where the evidence is certified, presumptions, 761. Judgment sustaining verdict on conflicting evidence, 761. Judgment setting aside verdict on conflicting evi- dence, 761. What is meant by going up as on demurrer to evidence, 761-762. What judgment entered where trial court reversed, 761-762. Two trials in lower court, rule as to looking first to initial trial, 762-763. First trial not looked to as on demurrer to evidence, 762. Second trial looked at as on demurrer to evidence, 762. Rule where there have been three trials in lower court, 763. 1030 INDEX [References are to pages.] APPEAL AND ERROR Cont'd. Rule of decision Cont'd. Allowances made for discretion of trial court as to new tri- als, 763-764. Difference of viewpoint as depending on whether new trial granted or refused, 764. Effect of failure to make motion for new trial in lower court, 764. Judgment of appellate court, 764-769. On demurrers in lower court, 764-767. Where there -is an affirmance of an order sustaining a de- murrer to declaration because it fails to state a case, 764. Whether new action can be maintained for same cause, 764-765. Where demurrer for misjoinder improperly overruled by trial court, 765. Where demurrer to declaration improperly overruled below and trial resulted in judgment for plaintiff, 765. When case remanded with liberty to amend, 765. When final judgment entered up for defendant, 765- 766. When presumed that plaintiff has stated his case as strongly as possible, and final judgment entered against him, 765-766. Where no demurrer, or general demurrer, to declaration containing one good count, and entire damages found, 766. Where demurrer to each count overruled and court can see whether verdict founded on good or bad count, 766. Where court cannot see on which count verdict founded, 766. Where case reversed for failure of trial court to sus- tain demurrer to any pleading subsequent to declara- tion, 766-767. Where demurrer to evidence in lower court, 767. When final judgment will be entered, 767. When demurrer should have been overruled as to cer- tain items readily ascertainable from record, 767. Where case heard by trial judge without a jury, 767. Final judgment, and not new trial, the rule, 767. Weight given judgment of lower court, 767. Where jury trial in lower court, 767-768. INDEX 1031 [References are to pages.] APPEAL AND ERROR Cont'd. Judgment of appellate court Cont'd. Divided court, 768-769. When equal division constitutes an affirmance, 768. Extent of concurrence necessary on constitutional ques- tion, 768. Effect of equal division on question of jurisdiction, 768. Decision by as a precedent, 769. West Virginia rule, 769. Change in law, which law will control decision of appellate court, 769. Prospective operation of merely remedial statute, 769. How decision of appellate court certified and enforced, 769. Finality of decision of appellate court, power to correct, 770. Rehearing in appellate court, 770. Within what time application for must be made, 770. Form and essentials of application for, 770. When granted, 770. Objections not made in trial court, 770, 772. Necessity that record disclose errors, 770, 771. Necessity for objection in trial court, in general, 770, 771. Objections for the first time in appellate court, effect, 771. Objection that trial court had no jurisdiction of sub- ject matter, 771. When appellate court has no jurisdiction, 771, 772. Objections must be properly presented in record, 772. When necessary to make instructions part of record, 772. Putting a party upon terms, 772-773. By appellate court because judgment in his favor excessive, procedure, 772-773. Remission under protest in trial court of part of recovery, effect on right of appeal, 773. Right to assign cross-error on appeal by defendant, 773. Jurisdictional amount as affecting review in such cases, 773. Appeals of right are unknown in Virginia, 773-774. Refusal or dismissal of writ of error as affirmance of lower court, 774. Only material and prejudicial errors are subject to review, 774. See Attachments, Demurrer, Demurrer to Evidence, Justices of the Peace, Limitation of Actions, Motions After Verdict, New Trial, Quo Warranto, Trial, Unlawful Entry and Detainer, Verdicts. APPEALS See Appeal and Error. 1032 INDEX [References are to pages.] APPEARANCE As waiver of process, 292-293. As waiver of defects in process or service, 305, 326. Special for objection to process, 326. Special as distinguished from general, 273, 326-327. See Attachments, Pleading, Process, Rules and Rule Days. ARBITRATION AND AWARD Introduction, 22. Usual number of arbitrators, 22. Definition of arbitrators, 22. Definition of "award," 22. Who may submit, 22-23. In general, 22. Fiduciaries generally, 22-23. Infants, 22-23. Guardians, 23. Partners, 23. Attorneys at law, 23. Agents, 23. What may be submitted, 23-24. Personal demands, 23. Disputes touching land, 23-24. Crimes, 23. Matters in futuro, 24. Mode of submission, 24. Under rule of court, 24. Agreement in pais, 24. Form of submission, 24. Who may be arbitrator, 24-25. In general, 24. Interest, bias or relationship of, 24-25. Idiots or lunatics, 24-25. Effect of refusal of one arbitrator to act, 25. Arbitrators, necessity for oath, 25. The umpire, 25-26. Distinction between and third arbitrator, 25. How this distinction determined, 25. Qualifications, 25. How selected, 25-26. Must hear evidence, 26. Method and form of his decision, 26. Revocation of submission, 26-27. When submission is by rule of court, how, 26-27. At common law, 26-27. In Virginia, 26-27. INDEX 1033 [References are to pages.] ARBITRATION AND AWARD Cont'd. Revocation of submission Confd. Submission not by rule of court, 26-27. Remedy for wrongful revocation, 26. Submission as bar to action or suit, 26. Specific performance of agreement to submit, 26. Damages, measure of for breach of agreement to submit, 26. Form and character of revocation, 26-27. Implied revocation, 27. Death of arbitrator or party, 27. . Bankruptcy of party, 27. Communication of express, necessity for, 27. Rights of sovereign states, 27. Proceedings before arbitrators, 27-28. Nature of, 27. Notice to parties, 27-28. Witnesses, 27-28. Arguments of counsel, 27. Rule of decision, 27-28. Presence of parties, 27-28. Admission or rejection of evidence, 27-28. Umpire, hearing of case de novo by, 28. The award, 28. Scope and character, 28. Construction of, 28. In excess of submission, 28. Delivery of, 28. When final, 28. Uncertainty in, effect of, 28. Powers of arbitrators after, 28. Form of award, 29. Written, necessity for, 29. Effect of award, 29. As a bar to original claim, 29. As condition precedent in contracts, 29. Mode of enforcing performance of award, 29. When entered as judgment of court, 29. In other cases, 29. Causes for setting aside award, 29-31. Improper conduct of arbitrators, 29-30. Improper conduct of parties, 30. Errors apparent on face, 30. Right to review testimony, 30. Mistake of law or fact, 30-31. Relief against erroneous award, 31. 1034 INDEX [References are to pages.] ARBITRATION AND AWARD Cont'd. Awards, how pleaded, 31. Under the general issue, when, 31. Special plea, when, 31. Proof under non-assumpsit, 31. When made in pending suit, 31. Agreement to submit, how pleaded, 31. Costs, 31-32. At common-law, 31-32. At present, 31-32. Showing award under nil debet, see Debt, Action of. Showing agreement to submit under nil debet, see Debt, Action of. Showing submission and award in pending suit under nil debet, see Debt, Action of. ARGUMENT OF COUNSEL See Trial. ARREST OF JUDGMENT See Motions after Verdict. ASSAULT AND BATTERY See Trespass. ASSIGNMENTS See Attachments, Executions, Homesteads, Limitation of Actions, Mechanics' Liens, Parties, Set-Off and Counterclaim. ASSUMPSIT, ACTION OF History of the action and when it lies, 118-120. History and nature, 118-119. On contracts express or implied, 119. On contracts sealed or unsealed, 119. How as to judgments, 119. Contrasted with covenant, debt and motions, 119. Scope of action, 119. Its equitable nature, 119-120. Specific instances where lies, 120. Against grantee not signing deed poll, 106-107. To recover statutory penalties, 90. When assumpsit does not lie, 120-121. In general, 120. Illegal contracts, 120, 121. Domestic judgments, 121. Waiving tort and suing in assumpsit, 121-124 Reason for allowing, 121. INDEX 1035 [References are to pages.] ASSUMPSIT, ACTION OF Cont'd. Waiving tort and suing in assumpsit Cont'd. The rule stated, 121. Implied contract, conclusive presumption, 121. Tortious taking of goods, pleading, 121. Election of remedies, 121-122. Effect of bringing assumpsit, waiver, 122. Money tortiously taken, pleading, 122. Against trespasser cutting trees, pleading, 122. Basis of fiction of implied promise, 122. In case of naked trespass, 123. Tort also crime, effect, 123. Interest of plaintiff, what necessary, 123. Rule where converted property used not sold, 123. Recovery, limitations of, 123-124. Election of remedy, finality of, 124. Of general and special assumpsit, 124-140. The common counts, 124-128. Nature of and why so called, 124. Always substitutional, 124. Reason for their use, 124-125. Form of declaration containing, 125. General form and nature, 126. Common breach alleged, 126-127. Use of quantum valebant and meruit counts, 127. Declaration should generally contain, 127-128. Recitals in, varied for different cases, 128. Use and occupation of land, 128. Demurrer to, effect of, 128. General assumpsit on an implied liability, 129-131. Always founded on implied liability, 129. For money paid to another's use, 129. For money had and received, 130. General equitable rule, 130. Privity, necessity of, 130. For services rendered, 130. Volunteer, payment by, 130. By payee of check against bank, 130-131. Difference between general and special assumpsit, 131-132. Erroneous impression as to special contract, 131. General, rests upon implied legal engagement, 131-132. General, legal measure of damages recovered in, 131-132. General, express contract is only evidence of measure of damages, 132. General, not founded on express contract, 132. Special, always founded on express promise, 131. 1036 INDEX [References are to pages.] ASSUMPSIT, ACTION OF Cont'd. Of general and special assumpsit Cont'd. Difference between general and special assumpsit Cont'd. General, express contract, if any, governs damages, 132. Special, express promise fixes measure of damages, 131. When general assumpsit will not lie, 132. Special contract open and unperformed, 132. Special contract open, damages for breach, 132. When general assumpsit will lie though there has been a special contract, 133-140. (1) Special contract fully executed, 133-134. Statement of rule, 133. Contract must be for money, 133. Bills, notes, and other instruments, 133-134. Where obligation of defendant is collateral, 134. Reason for rule, 135. (2) Special contract deviated from by common consent, 134-135. Rule stated, 134. Measure of damages, 134-135. Reason for rule, 135. (3) Work not done according to special contract, but ac- cepted Deviations, 135-136. Statement of rule, 135. Acceptance of work, 135. Silence as estoppel, 135. Theory of recovery, 135-136. Measure of recovery, how determined, 136. Necessity for request or knowledge, privity, 136. (4) Special contract partly performed, 136-138. Rule stated,- 136-137. Plaintiff prevented from performance, 136-137. Reason for rule, 136-137. Measure of recovery, 137. Contract abandoned by mutual consent, 137. Money paid under rescinded contract, 137. Money paid, failure of consideration, 137. Special contract as evidence, 137-138. Failure of consideration, special averment, suffi- ciency, 138. (5) Part performance, and abandonment of residue, 138-139. Rule stated, 138. Contract entire, willful abandonment, 138. Contract separable, 138. INDEX 1037 [References are to pages.] ASSUMPSIT, ACTION OF Cont'd. Of general and special assumpsit Cont'd. When general assumpsit will lie though there has been a * special contract Cont'd. (5) Part performance, and abandonment of residue Cont'd. Consideration, construction as entire or separable, 138-139. Instalments payable at fixed periods, 138. Illustration, 139. (6) Special contract void, voidable, or, by defendant's fault, impossible to perform, 139-140. Rule stated, 139-140. Reason of rulCj 140. Illustrations, 140. Noncompliance with statute of frauds, 140. When necessary to declare specially, 140-141. Action based on express contract, 140. Special agreement still in force, 140. Illustrations, 140-14*. Where contract remuneration not in money, 141. Nature and constitution of special counts, 141-148. General observations, 141-142. Statutes abolishing objections for want of form, 141. Breach of contract and damage to be stated, 141-142. The essentials of a valid contract, 142. Nature and form of allegations, in general, 142. Approved forms, advisability of using, 142. Writing, not necessary to state whether contract is in, 142. Essential averments, 142-148. What are, 142-143. (1) The promise, 143. Necessity for and manner of its averment, 143. (2) The consideration, 143-144. Necessity for and manner of its averment in general, 143-144. When not necessary to allege, 144. In actions against carriers, how stated, 144. (3) The breach, 144. Same as in covenant, 144. (4) The damages, 144-146. How stated, amount, nature of averment, 144-145. Need not be claimed in each count, 145. Omission to claim, effect after verdict, 145. Procedure where more awarded than claimed, 145. 1038 INDEX [References are to pages.] ASSUMPSIT, ACTION OF Cont'd. Nature and constitution of special counts Cont'd. Essential averments Cont'd. (4) The damages Cont'd. Omission to claim, demurrer, 145-146. Interest in excess of those claimed, 146. Excessive award, appeal and error, 146. (5) The notice, 146-147. When necessary, in general, 146. Against endorser of negotiable paper, 146. In actions on dishonored bills and checks, 146. To guarantor, on collateral promise, 146. When not necessary, 146-147. Failure to allege, demurrer, 147. (6) The demand or request, 147. Necessity for and object of, 147. When unnecessary, 147. Form of allegation, 147. (7) Non-payment, 147-148. Necessity for and form of allegation, 147. When allegation not necessary, 147-148. Account to be filed with the declaration, 148-149. The statute and its object, 148. Procedure when sufficient account not filed, 148. The account no part of the declaration, 148. Demurrer to, 148. Where no count in declaration appropriate to account, 148. When no account need be filed, 149. Illustration of sufficient and insufficient, 149. At what time filed, 149. Need not state matters of evidence, 149. Avoiding writ of inquiry, 150. The statute, 150. Account served must be intelligible and precise, 150. Superseded by more comprehensive remedy, 150. Avoiding writ of inquiry and 'putting defendant to sworn plea, 150-154. The statute, its purpose and effect, 150-151. Affidavit by "agent," how affiant described, 151. Interest claimed in affidavit, 151-152. Manner of pleading under statute, 152. Affidavit, substantial compliance with statute, 152. Affidavit, no part of plea, 152. Demurrer to unverified plea, 152. Proper mode of objecting to unverified plea, 152. Effect of unverified plea, 152. INDEX 1039 [References are to pages.] ASSUMPSIT, ACTION OFCont'd. Avoiding writ of inquiry and putting defendant to sworn plea Cont'd. Proceedings by clerk when plea not verified, 152. Error to compel trial on unverified plea, 152-153. Time within which verified plea may be filed, 153. Verification, waiver and estoppel to insist on, 153-154. Misjoinder of tort and assumpsit, 154-156. Rule as to joindjer of actions, 154. Tort and assumpsit may not be joined, 154. Effect of misjoinder, 154. Form of action, designation of pleader as criterion, 155. Test of assumpsit, promise and consideration, 155. Averment of consideration, what is sufficient, 155. In assumpsit against common carriers, 155. Rules to be borne in mind, 155. General principles of guidance, 155. Wrong designation of action, effect on form, 155-156. Non assumpsit, 156-157. Nature and form of this general issue, 156. Defenses admissible under, 156-157. General equitable defences, 156-157. Plea of "not guilty" as substitute for, 156. Goes to whole of declaration, 157. Need not be in writing, 157. Identical in scope and effect with nil debet, 157. Grounds of defence called for with, 157. As plea to action on sealed instrument, 157. General scope of, 851-852. Form of plea, 849. Proving equitable set-offs under, 854. Special pleas, 157-158. Nature of discussion, 157-158. Defenses which must be specially pleaded, 158. Defenses which amount to general issue, 158. Defenses provable under general issue, 158. Specific notice of defence given by, 158. Improper, manner of making objection to, 158. Matters of defense arising after action brought, 158. What pleas amount to general issue, 158. Form of memorandum in, 288. Laying damages in writ, 288. As concurrent remedy with debt on both simple contracts and sealed instruments, see Debt, Action of. As preferable action to recover sum of money payable in a com- modity, see Debt, Action of. 1040 INDEX [References are to pages.] ASSUMPSIT, ACTION OFConfd. Assumpsit as a substitute for covenant, see Covenant, Action of. Assumpsit on judgments and decrees, see Debt, Action of. See also Action on the Case, Process. ATTACHMENTS Nature and grounds, 675-681. Definition, 675. Classes of attachments, 675. f Contrasted with execution, 675. Remedy statutory, harsh and strictly construed, 675-676. Grounds of attachment, 676-681. In general, 676-677. Debt not due, debtor removing effects from State, 677- 678. Words "debt" or "claim" as including damages for breach of contract, 677-678. Damages for a wrong in such case, 678. Against tenant removing effects from leased premises, 678-679. Against vessels, 679. Against tenants and laborers to whom advances have been made, 679. Non-resident or foreign corporation, 679-680. Who deemed a non-resident, 679. Distinction between "domicile" and "residence," 679. What is residence, and who deemed a resident, 679. Absconding debtor as non-resident, 679-680. Volunteer in army, 680. One imprisoned outside of State, 680. Resident of federal territory within State, 680. Surety non-resident, principal not, effect, 680. Foreign corporation legally doing business within State, whether resident, 680. Removal of goods, 680-681. Effect of shipments from state in due course of trade, 680. Removals from leased premises in regular course of business, 680-681. Courts from which attachments may be issued, 681-685. Attachment at law, 681-682. When claim not due or cause of action not matured, 681. Where claim due, grounds for attachment, 681. Procedure, 681-682. When jurisdiction at law exclusive, 681. Time at which attachment may be issued, 681-682. INDEX 1041 [References are to pages.] ATTACHMENTS Cont'd. Courts from which attachments may be issued Cont'd. Attachment in equity, 682-683. In what cases permissible, 682. When concurrent with jurisdiction at law, 682-683. When equity without jurisdiction, damages for a wrong, 683. Grounds for attachment, 683. When jurisdiction concurrent with that of justice or clerk, 683. On claims not due, when equitable jurisdiction exclusive, 683. When only grounds non-resident or foreign corporation, and claim not due, 683. Claims for $20 or less not due, 683. No formal attachment issues, endorsement by clerk, 683. Attachment from a justice, 683-684. When permissible, procedure in such cases, 683-684. When exclusive remedy, 684. On claims not due, 684. Validity of statute dispensing with order of publication, 684. Attachment where no suit or action is pending, 685. Against debtor removing effects out of State, though claim not due, 685. Against tenant removing effects from leased premises, when rent not due but payable within year, 685. Proper remedy where rent is due, 685. Procedure where claim exceeds $20, 685. Procedure where claim does not exceed $20, 685. Proceedings to procure attachment, 686-691. In equity, 686. The bill, essentials of and procedure on, 686. The affidavit, 686. Making third persons defendants, 686. The summons and endorsement, service on garnishee, 686.. The bond, when given, effect, 686. Advantage of procedure in equity, 686. At law, 687-689. Attachment ancillary to action on matured claim, 687. The memorandum, 687. Designation of garnishees, form for, 687. The affidavit, 687. Form of affidavit, 687. 66 1042 INDEX [References are to pages.] ATTACHMENTS Cont'd. Proceedings to procure attachment Cont'd. At law Cont'd. Attachment as distinct and formal paper, 687-688. Form of attachment, 688. To whom attachment may be directed, 688. Procedure as to garnishees, 688-689. Time for issuance of attachment, 689. Attachment where no action or suit is pending, 689. Essentials of affidavit, 689. Attachment a distinct paper and follows affidavit, 689. Return of when claim in excess of $20, 689. Forms for affidavit and attachment for rent not due, 689-690. Attachment for twenty dollars or less, 690-691. Complaint on oath, 690. Grounds for such attachment, 690-691. Trial of attachment before justice, 691. Where attachment levied on real estate, 691. Affidavit, 691-698. Form of against debtor removing property out of State, 687. Form of against tenant for rent not due, 689-690. Definition, 691. Whether signature essential, 691. Certificate of officer as substitute for, practice, 691. Sufficiency, 691-693. Particularity required, strict construction, 691. Substantial compliance with statute, 691. Authenticating affidavits made out of State, 691-692. Seal of notary out of State as self authenticating, 691-692. Literal compliance with statute not required, 692. Examples of affidavits held sufficient or the reverse, 692- 693. Necessity for describing character of the debt in, 692. Necessity for stating amount due, 692. Paper not showing oath, or amount or nature of claim, 692-693. Affidavit adopting allegations of bill, 693. Jurisdiction, 693-694. Total absence of affidavit as affecting, 693. Defective affidavit as affecting, 693. Collateral attack on defective affidavit not allowed, 693. Illustrations of, 693. Of equitable attachment on legal demand depends on affidavit, 693-694. INDEX 1043 [References are to pages.] ATTACHMENTS Cont'd. Affidavit Cont'd. Jurisdiction Cont'd. Affidavit part of record, though not mentioned in plead- ings, 694. Conjunctive and disjunctive statements, 694-695. If more than one ground statement conjunctive, 694. Stating different phases of same fact in disjunctive, 694. Difficulty in application of rule, illustrations, 694-695. Who may make affidavit, 695. Plaintiff, his agent or attorney at law, 695. When made by agent what must show as to agency, 695. Time of making affidavit, 695-696. In chancery suits, 695. What time may elapse between affidavit and attachment, 695-696. Amendments, 696-697. Statutes as to, 696. No statute allowing in Virginia, 696. Inherent power of court to allow for formal or clerical defects, 696. In court of appeals, remanding case for, 696. Of affidavit omitting "justly," 696. What amendment stating additional facts must show, 696-697. Where affidavit fails to show oath of affiant, 697. Mistake in date of affidavit, 697. Of garnishment process not returnable to legal return day, 697. Additional affidavits or attachments, 697-698. Several affidavits permissible, 697. Commencement of lien of second attachment, 697. Proceeding both personal and 1 in rent at same time, 697. New attachments on original affidavit, costs, 697-698. What may be attached, 698-700. In general, 698. Location of property, 698. Damages for torts, 698. Legacies and shares in decedents' estates, 698. Remainders, 698-699. Whether negotiable note not due may be, 699. Shares of stock in domestic corporation, 699. In foreign corporation, situs of such stock, 699. Priorities between purchasers and attachment creditor, 699. 1044 INDEX [References are to pages.] ATTACHMENTS Cont'd. What may be attached Cont'd. Priorities between purchasers and attachment creditor Cont'd. Subsequent purchasers of tangible personal property and real estate, 699. Lis pendens in case of purchase of real estate, 699. Assignee for value and without notice of chose in action, 699. Where chose in action assigned before levy of at- tachment, 699. Attaching creditor acquires only such interest as defendant has, 699-700. Property over which defendant has lost, or has never ac- quired, power, 700. What may not be attached, 700-702. Poor debtors' exemption, 700. Homestead exemption, 700. Property in the custody of the law, 700-701. What is, in general, 700-701. Garnishment of administrator, executor, or debtor of decedent, 701. Delivery of attachment to officer as levy on property in his hands, 700. Property taken from a prisoner, 700. Personal chattels mortgaged and left in possession of mort- gagor, 700. Property held by public officer pursuant to public trust, 700-701. Property carried or worn by the defendant, 701. Whether rolling stock of a railroad may be, 701-702. As interference with interstate commerce, 701-702. Debts or liabilities to become due upon a contingency which may never happen, 702. How and by whom property is attached, 702-708. Tangible personal property, 702-704. Mode of levy where sued out against specified property, 702-703. Mode of levy when not sued out against specified prop- erty, 703. Mode of levy where property in actual possession of no one, 703. Whether common law levy permissible, 703-704. If so, in what cases proper, 704. Right of officer to take possession when no bond given, 704. INDEX 1045 [References are to pages.] ATTACHMENTS Cont'd. How and by whom property is attached Cont'd. Tangible personal property Cont'd. Bond not essential to validity of levy, 704. Whether property must be in view and power of officer, 704. Choses in action, 704-706. Designation of garnishees and issuance of process, 702- 703, 704. Validity of garnishment process not returnable to next term, 704. Procedure when the garnishee appears, 704-705. Where judgment debtor claims property as exempt, 705. Procedure when the garnishee does not appear, 705. Procedure when it is suggested that garnishee has not made full disclosure, 705-706. Assignments by or payments to debtor before levy, 706. Time as to which garnishee answers and is liable, 706. Indebtedness or liability subsequent to levy, 706. Liability of State, county or municipal corporation to garnishment, 706. Real property, 706-707. How levy on made, 703, 706. Form of the levy, 703, 706. What return must show as to ownership and description of property, 706-707. Effect of reference in return to map, plan, survey or deed, 707. Attachment and sale of remainders, 707. When levy on property foundation of suit, effect of at- taching wrong property, 707. By whom service may be made, 707-708. To whom attachment may be directed, 707. Where levy may be made, county or corporation of is- suance as affecting officer's jurisdiction, 707-708. What return must show as to service, list and descrip- tion of the property, 708. When attachment may be issued or executed on Sunday, 322, 708. Attachment bonds, 708, 712. Officer not required to take possession of property until bond given, 708. Whether he has authority to do so, 708. Who may give, 708. To whom payable, 708. 1046 INDEX [References are to pages.] ATTACHMENTS Cont'd. Attachment bonds Cont'd. Condition of bond, surety and penalty, 708. By one partner on behalf of firm, 708. Who may bring action on bond, 708-709. Defendant in the attachment, 708-709. Stranger whose property is improperly levied on under a general attachment may not, 709. Stranger whose property is taken under specific attach- ment, 709. Rights of adverse claimant of property seized under, 709-710. Right to sue on bond where rightful attachment quashed for officers' default, 710. Condition of the bond in West Virginia, 710. Replevy bond by defendant, conditions and effect, 710. Giving of as general appearance authorizing personal judgment, 710-711. Return of and exceptions to, 711. Liability of officer where exceptions sustained, 711. Interest and profits on attached property, to whom given, 711. Discharging attachment on bond by defendant to pay value of property attached, 711. Sale of property expensive to keep or perishable, terms, 711. When plaintiff required to give bond before sale, 711-712. Condition of such bond, 711. Effect of failure to give, 711-712. Where attachment served on defendant sixty days be- fore decree of sale, 712. Possessory bond not authority for dispensing with this one, 712. Lien of attachment, 712-715. Created by the levy, 712. Real estate, 712-713. From what time lien dates, 712. Necessity, as against subsequent purchaser, of recording and indexing memorandum of attachment, 712-713. Personal property, 712, 713-714. From what time lien dates, 712, 713. Necessity for record of attachment to preserve lien, 713. Debts and effects subsequently acquired by garnishee, 714. Priorities, 713-714. Subsequent alienees of attached property, 713-714. Assignments by and payments to attachment debtor, 713. INDEX 1047 [References are to pages.] ATTACHMENTS Cont'd. Lien of attachment Cont'd. Priorities Cont'd. Assignments before levy, 713. Prior executions, 713-714. As between attachments, time of service, 714. Unrecorded foreign mortgages or encumbrances upon personal property, 714-715. Unrecorded assignment of chose in action out of State, 715. Right of garnishee to be paid for keep of property, 715. Property subject to a pledge, 715. From what time lien of additional attachment dates, 715. On increase of personal property attached, 715. When attachment to issue, 715-717. Where no suit or action is pending, 715-716. Debtor removing effects out of State, 715-716. Tenant removing effects from leased premises, 716. Attachment may issue before debt or rent due, 716. Must issue in reasonable time after affidavit, 716. In pending suit or action, 716-717. When attachment too soon or too late, 716-717. Where the proceeding is by motion for judgment for money, 716. When such proceeding cannot be basis for attach- ment, 716. Where suit or action has abated, 716-717. Effect of returns of "no inhabitant" and "not found," 716-717. After the appearance of the debtor, 717. Defenses to attachments, 717-728. Who may make defense, 717-718. Difference in defense to attachment and to action, 717. Parties who may make defense, in general, 717-718. Defense as discharging attachment or releasing levy, 717-718. Petitioner interested in property, 717-718. General creditors, 718. What defense may be made, 718-721. False suggestion or lack of sufficient cause, 718-719. Meaning of these terms, 719. Ownership of goods by third person as defense to debtor, 719. Burden of proof on motion to abate, 719. When defense is false suggestion actual existence of facts the test, 719. 1048 INDEX [References are to pages.] ATTACHMENTS Cont'd. Defenses to attachments Cont'd. What defense may be made Cont'd. Distinction between actual and probable cause, 720. Illustration as applied to action for malicious pros ecution, 720. Effect of irregularity where validity of attachment is jurisdictional, when objection may be made, 720-721. Attachment issued too soon, when objection may be made, effect of appearance by defendant, 721. Writ tax on attachment not paid within thirty days, 721. When defense may be made, 721. Before or after return of attachment, 721. In term or in vacation, 721. Necessity for notice of motion to quash, essentials of notice, by whom heard, 721. How defense is made, 721-723. Motion to quash, 721-723. Whether proper where objection is for matter de- hors the record, 721-722. Scope of this motion in Virginia, 722. Affidavit defective or untrue, 722. Inquiring into merits of action by, 722. Special appearance to make motion as submission to jurisdiction or waiver of defects, 722. Material variance between affidavit and declaration, 722-723. Attachment bond purporting to be signed by attor- ney in fact, 723. Right to renew overruled motion, 723. Order of attachment not signed by the clerk, 723. Special appearance to move to dismiss action, effect, 722. Where suit not matured against non-resident partner, 723. Right to amend clerical errors and omissions, 723. Plea in abatement for defense dehors the record, 721- 722. For variance between affidavit and declaration, 722- 723. When treated as motion to quash, 722-723. Where attachment bond purports to be signed by attorney in fact, 723. Defense to the merits, 723-725. Not usually allowed on motion to quash, 723-724. INDEX 1049 [References are to pages.] ATTACHMENTS Cont'd. Defenses to attachments Cont'd. Defense to the merits Cont'd. Necessity for establishing claim before sale under at- tachment, 724. Right of one attaching creditor to attack another's debt or the validity of his attachment, 724-725. General scope of permissible defences, 724. When plaintiff entitled to personal judgment though at- tachment quashed, 724. How parties to the proceedings defend, 724-725. Intervening by petition, right to, procedure, 725. Jury trial in such cases, 725. Judgment for the plaintiff, 725-727. Order of sale made after, 725-726. Sale of real estate, when proper, 725-726. Powers of court of law as to, 726. Bond required of plaintiff when defendant has not appeared or been served with a copy of the attachment, 726-727. Procedure where no bond given, 726-727. This bond in addition to bond for seizure of property, 726-727. Service of attachment outside the State, effect, 727. When such bond not required, 727. Personal judgment and order for sale to satisfy same, 727. Real estate sold not rented, 727. Order of publication, 727-728. In what cases must be made, 727. Seizure of attached effects as conferring jurisdiction, 727. Necessity of notice to non-resident defendant, 727-728. Service of process on garnishee only, 727. Remedies for wrongful attachment, 728-729. Action on attachment bond, 728. Who may maintain such action, 728. Damages for wrongful seizure and sale when property at- tached for rent not due, or no good cause for attach- ment, 728. Where attachment is for more than is due or accruing, 728. Measure of plaintiff's damages, 728. Damages when attachment void ab initio or wrongfully levied on property of third person, 728-729. Liability of officer and sureties on official bond, 729. Action for malicious prosecution, when lies, 729. Effect of probable cause in such case, 729. Burden of proof as to probable cause, 729. 1050 INDEX [References are to pages.] ATTACHMENTS C'ont'd. Holding defendant to bail, 729-731. Writ of capias ad respondendum, grounds. for and procedure to obtain, 729-730. Necessity for pending suit, 730. Bond required of plaintiff, 730. Procedure upon capias, 730-731. Bond by defendant, its condition, 730. By whom bond of defendant may be taken, 730. Interrogatories to defendant, when may be filed, 730-731. When court may discharge defendant, 731. To whom conveyance made, 731. Return of papers to court, 731. Order as to sale and application of estate conveyed and delivered, 731. Appeal and error, 731-733. Rehearing in trial court, 731-732. When non-resident defendant entitled to, 731-732. Necessity for application for before appeal, 731-732. Effect on title of bona fide purchaser, 731. Effect of appearance or prior service of attachment or process, 732. Sufficiency of service made outside of State, 732. Objections for the first time in appellate court, 732-733. Irregular attachment sole ground of jurisdiction, 732. Ancillary attachment where no suit pending, 732-733. Default judgment against non-resident, when another defendant may object to irregularity, 733. Appearance to the merits as waiver of defects, 733. See Clerks of Courts, Executions, Interpleader, Justices of the Peace, Process, Tender. ATTORNEY AND CLIENT Liability of attorney for neglect of duty, or improper conduct, 392-393. Advice of counsel, see Malicious Prosecution. Validity of submission to arbitration of client's cause by attor- ney, see Arbitration and Award. See Continuance, Homestead, Judgments, Limitation of Actions. Rules and Rule Days. BAIL See Attachments, Executions, Justices of the Peace. BAILMENT See Trover and Conversion. INDEX 1051 [References are to pages.] BANKRUPTCY Not provable under broad general issues, 368. Adjudication in does not bar action, 368. Effect in suspending actions against bankrupt, pleading, 368. Discharge in bankruptcy, 368-369. As bar to action against bankrupt, pleading, 368. As release from liability for provable debts, 368. What debts are not provable, and hence not discharged, 368. As personal defence, waiver, 369. When third person may plead, 369. New promise to pay, antecedent debt as good consideration, 369. Time for new promise, effect of condition in, 369. Effect of uncontested judgment, on provable debt, after pro- ceedings commenced but before discharge, 369. Plea of discharge, 370. Form of plea, 370. General replication to, question raised by, 370. Special replication, when necessary, 370. Debt not provable, 370. Fraud in procuring discharge, 370. BANKS AND BANKING. Assumpsit by payee of checks against bank, privity, see Assumpsit, Action of. See also Limitation of Actions, Process, Set-Off and Counterclaim. BILL OF PARTICULARS See Pleading. BILLS AND NOTES Assumpsit by payee of check against bank, privity, see Assumpsit, Action of. Form of action to recover on, see Debt, Action of. General assumpsit on, see Assumpsit, Action of. Motions on, see Proceedings by Way of Motion. Recovery of promissory note, see Detinue. See also Attachments, Mechanics' Liens, Payment, Set-Off and Coun- terclaim. BILLS OF EXCEPTION Origin and purpose of bills of exception, 513-514. Statutory origin, 513. Purpose to make errors part of record, 514. Of what record in civil case consists, 513-514. How matters not part of record made such, 514. 1052 INDEX [References are to pages.] BILLS OF EXCEPTION Cont'd. Origin and purpose of bills of exception Cont'd. Purpose to make errors part of record Cont'd. When no bill of exceptions necessary, 514. Copying instructions into record, effect, 514. Mere noting of exceptions, effect, 514. Stipulation of counsel to dispense with, 514. Office of the bill, 514. Saving two or more points in one bill, 514. How points are saved, 514-515. Rejected evidence, 515-516. What bill should show as to, 515. Where a question is answered, 515. Where no answer is given, 515. Rejected pleas, when bill necessary see appendix, 1020. Evidence wrongfully admitted, 515-516. Competency of witnesses, 516. Form of bill of exception where evidence is excluded, 516. Supplying defects by reference, 516-517. General rule in absence of statute, 516-517. Where all the evidence set out in one bill, 517. Virginia statute on subject, 517. Granting or refusing instructions, 517-518. Necessity for bill of exception, 517. Excepting to instructions after verdict, effect, 517. Instructions merely copied into record, effect, 518. Motion for new trial, necessity for, 518. Evidence to support an instruction, 518. Where objection is that there is none, 518. Verdict not supported by the evidence, 518-519. Whole evidence must be in record, 518-519. Time and manner of filing, 519-523. Governed by statute, 519. Where statute fixes no time, 519. Consent of parties as affecting, 519. The Virginia statute, 519-520. Postponement of time, necessity for consent of record, 520-521. Nunc pro tune order showing consent, 520. Amending order after term to show consent, 520-521. From what term thirty days estimated, 521. Mandamus to compel judge to sign, 521. Acceptance of bill as estoppel to thereafter question same, 521. Judicial act, power to delegate, 521. INDEX 1053 [References are to pages.] BILLS OF EXCEPTION Cont'd. Time and manner of filing Cont'd. Nunc pro tune orders under recent statute, 522. Effect of such statute as to imperfect records, 522. What a nunc pro tune order is, 522. Actual agreement for extension of time not of record, 522. Bill tendered in time but not signed and returned in time, 522. Essentials of bill where claim is that verdict is contrary to evi- dence, 523. Form of such bill, 523. Evidence of authentication, 523-525. Seal, 523. Signature of judge, 523. Entry on record, 523. Copying bills into record by check, effect, 524. Necessity for' record evidence, 524, 525. Judicial notice of signature of trial judge, 524. Date of signature as fixing time, 524. Notation by clerks, 524-525. Forms for authentication, 524-525. Necessity for memorandum on order books, 525. See Mandamus, New Trial, Verdicts. BOARD OF SUPERVISORS See Counties. BONDS See Appeal and Error, Attachments, Limitation of Actions, Parties, Quo Warranto. BOUNDARIES See Ejectment. CALLING THE DOCKET See Trial. CAPIAS AD RESPONDENDUM See Attachments. CARRIERS Averment of consideration in assumpsit against, see Assumpsit, Action of. See also Limitation of Actions, Trover and Conversion, Venue. CATTLE See Distress, Fences. 1054 INDEX [References are to pages.] CATTLE-GUARDS See Railroads. CERTIORARI Nature and object of writ, 784. Where other adequate remedy available, 784. Its issuance and mandate, 784. To bring up for review proceedings before justice, 784-785. To obtain fuller or more perfect record, procedure, 785. Use of the writ in West Virginia, 785. Proceedings upon writ, 785. CHATTEL MORTGAGES See Attachments, Executions. CIRCUIT COURTS See Courts. CLERKS OF COURTS Jurisdiction and powers, 38-39. In probate matters, 38. Distinction between powers of clerks of circuit and of corpo- ration courts, 38. Appeals from, 38. Appointment of guardians, 38. Substitution of trustees, 38. Distress warrants for rent, 38-39. Attachments, 39. See Attachments, Bills of Exception, Executions, Judgments, Me- chanics' Liens, Rules and Rule Days. COMPROMISE AND SETTLEMENT See Payment. CONSTITUTIONAL LAW Constitution of the United States, 92-93. Judgment of sister state, effect of under, 92-93. Judgment of District of Columbia, effect of under, 93. See Appeal and Error, Demurrer, Homesteads, Jury, Process. CONTEMPT Suing court receiver without leave as, see Parties. CONTINUANCE Discretion of trial court, 461-462. When motion should be made, 462. INDEX 1055 [References are to pages.] CONTINUANCE Cont'd. Causes for continuance, 462-468. Continuance of right, 462-463. Attorney member of General Assembly, 462. Party to whom an issue is tendered, 462-463. Party tendering issue, 462. New parties, 463. Absence of witness, 463. Materiality of the witness, 463. Inability to prove same facts by others, 463, 464. Use of due diligence to procure the witness, 464. Necessity for tender of mileage and attendance, 464-465. How witness compelled to attend, 464-465. Reasonably probability of presence at another trial, 465. Non-resident witness, 465. Witness at distance, deposition, 465. Affidavit or statement as to testimony expected. 465-466. Absence of papers, 466. Surprise, 466. Summoning wrong witnesses, 466. At contents of bill of particulars, 466. Breach of stipulations of counsel, 466. Absence of counsel, 466-467. Leading or sole counsel, 466. Protracted illness, 466. Prior engagement, 466-467. Other counsel present, 467. Absence of a party, 467. Change in the pleadings, 467. Failure to serve process, 467-468. Affidavits, etc., in support of motion for, practice, 468. Spreading application for upon record, 468. Refusing a continuance, 468. Effect of where wrongful, 468. When proper to refuse, 468. Cost of continuance, 468-469. See frosts. CONTRACTS Essentials of a valid, 142. Assumpsit on implied contracts, see Assumpsit, Action of. Simple contract debt as subject of accord and satisfaction, see Accord and Satisfaction. 1056 INDEX [References are to pages.] CO NTR ACTS Cont 'd. Obligations under seal as subject of accord and satisfaction, see Accord and Satisfaction. See also Limitation of Actions, Trover and Conversion. CONVICTS See Parties, Process, Venue. CORPORATION COURTS See Courts. CORPORATIONS Affidavit denying incorporation, when filed with nil debet, see Debt, Action of. As defendants in actions ex delicto, see Parties. How they sue and are sued, see Parties. See also Attachments, Executions, Libel and Slander, Limitation of Actions, Malicious Prosecution, Pleading, Process, Venue. COSTS Generally regulated by statute, 593-594. In equity, discretion of trial court, 594. Who entitled to recover, general rule, 594. Poor persons, 594. Where less than $20.00 recovered in contract action, 594. Where less than $10.00 recovered in tort action, 594. Prohibition to prevent recovery of costs, 594. Requiring security for of non-resident of state, 594-596. The Virginia statute, 594-595. Notice to non-resident, 595. Necessity for order of dismissal, 595. Waiver, 595. Costs in appellate court, 595. Time for giving, 595. Continuances, 595-596. Cost of new trial, 596. On new trial, see Motions after Verdict. See also Continuance, Executions, Justices of the Peace, Mandamus, Quo Warranto, Set-Off and Counterclaim. t COUNTIES Board of Supervisors, 37-38. Jurisdiction and powers, 37-38. Appeals from, 37-38. See Attachments, Executions, Limitation of Action?. INDEX 1057 [References are to pages.] COUNTY COURTS See Courts. COURT COMMISSIONERS See Appeal and Error. COURT OF APPEALS See Courts. COURTS Court system of Virginia, 44. Circuit Courts, 44-47. Jurisdiction, 44-47. In general, 44-45. Concurrent with justice, 44. Exclusive, 44. Quo Warranio, and other extraordinary remedies, 44. Criminal matters, 45-46. Probate jurisdiction, 45. Change of names, 45. Appeals from justices, 45-46. Enforcement of police regulations, 46. Appeals from inferior tribunals in general, 46. Motions, jurisdictional amount, 46. Former county court matters, 46-47. Concurrent with corporation courts, in cities of second class, 46. Appeals involving validity of corporation by-law or ordi- nance, 46. Appeals to from corporation courts, 47. Corporation courts, 44-47. Jurisdiction, 44-47. In general, 44-47. Courts excepted from general rules, 44, 47. Of City of Lynchburg, extent of, 47. Probate jurisdiction, 45. Change of names, 45. Appeals from justices, 45-46. Enforcement of police regulations, 46. Concurrent with Circuit Courts, in cities of second class, 46. Criminal matters, 46. Appeals involving validity of corporation by-law or or- dinance, 46. Appeals from to Circuit Courts, 47. 67 1058 INDEX [References are to pages.] COURTS Cont'd. Court of Appeals, 48, 738-745. Civil jurisdiction of, 48, 738-745. Original, 48, 738-741. Appellate, 48, 742-745. In matters pecuniary, 48, 744-745. In matters not pecuniary, 48, 742-744. Judicial notice of want of jurisdiction, when taken, 348, 771-772. Nisi prius courts, how term originated, 286. Recovery of money under 3211 Code of Va. in federal, 163. Receivers of, proceedings by and against, see Parties. See also Appeal and Error, Clerks of Courts, Demurrer, Equity, Judgments, Justices of the Peace, Limitation of Actions, Pleading, Process, Rules and Rule Days, Venue. COVENANT, ACTION OF Nature of the action, 105-107. In general, 105. Nature of the covenant, 105. Nature of damages recovered, 105. When concurrent remedy with debt, 105. Difference in theory between and debt, 105-106. Express or implied covenants, 106-107. Covenantor must sign and seal instrument, 106-107. Against grantee not signing deed poll, 106-107. When covenant lies, 107. Cases in general, 107. When exclusive of debt, 107. Against whom, 107. When covenant does not lie, 108. In general, 108. Parol modification of sealed contract, 108. On trust deed executed as collateral security, 108. Who may bring covenant, 108-109. The covenantee, 108. Third person, beneficiary, 108-109. As respects deeds inter paries, 108-109. In cases of deeds poll, 108-109. Effect of Virginia statute, 109. The declaration, 109-111. Much like that in debt and assumpsit, 109-110. Conclusion of, 110. Alleging consideration, 110. Setting out promise, 110. Reciting the covenant, 110. INDEX 1059 [References are to pages.] COVENANT, ACTION OFCont'd. The declaration Cont'd. Alleging a seal, 110. Delivery, necessity for allegation of, 111. Alleging performance of conditions precedent, 111. Manner of alleging breach, 111. The damages, 111. Pleas in action of covenant, 112-115. No general issue, 112. Effect of non est factum pleaded alone, 112. All pleas in effect special, 112. Matters which must be plead specially, 112. Covenants performed and covenants not broken, 112-114. When such pleas proper, 112. Covenants performed when proper plea, 112-113. Covenants not broken when proper plea, 113. How on bond with condition, 113. Covenants performed, requisites of plea, 113. Issue made by and evidence under, 113. When both pleas are used, 113. Admission by the use of these pleas alone, 114. Burden of proof on plea of covenants performed, 114. Conclusion of plea of covenants performed, 114. * General discussion of, 958-960. Plea of non damnificatus, 114-115. When applicable, 114. Nature of plea, 114. When not proper, 114. Plea that defendant has saved harmless, 114-115. Equivalent to "condition performed," 115. Oftenest used in debt on bond, 115. General discussion of, 956-958. Assumpsit as a substitute for covenant, 115-117. The statute, 115. Assumpsit takes place of both actions, 115. Actions not interchangeable, 115. Joinder of counts on sealed and unsealed instruments, 115. Form of defense to sealed instruments under, 116-117. Declaration must show whether seal, 116. Xon assumpsit to sealed instrument, 116-117. Scope of defenses under, 116-117. Should be held inapplicable, 117. Should be two general issues, 117. Proper restrictions as to evidence, 117. What should be pleaded specially, 117. 1060 INDEX [References are to pages.] COVENANT, ACTION OFCont'd. Form of memorandum in, 288. Laying damages in writ, 288. As preferable action to recover sum of money payable in a com- modity, see Debt, Action of. See also Parties, Process. COVENANTS See Limitation of Actions. CREDITORS' SUIT See Judgments, Limitation of Actions. CRIMINAL LAW Waiving criminal tort and suing in assumpsit, see Assumpsit, Ac- tion of. See also Courts. DAMAGES Averments of in declaration, see Assumpsit, Action of, and other specific heads. Power of jury to apportion among joint tort feasors, see Parties. Special as determining whether cause of action is tort or con- Jyract, see Parties. Special contract as governing in general assumpsit, see Assump- sit, Action of. See also Attachments, Demurrer, Demurrer to Evidence, False Im- prisonment, Libel and Slander, Limitation of Actions, Malicious Prosecution, Motions after Verdict, Parties, Rules and Rule Days, Trespass, Trial, Trover and Conversion, Venue, Verdicts. DEATH Death by wrongful act, 68-70. Venue of action, 69. In State where injury occurs, 69. In foreign jurisdiction, 69. Conflict of laws, law of place of injury determines what, 69. Pleading, 69. Beneficiaries, necessity for alleging existence of, 69. Beneficiaries, who are under Virginia statute, 69. Evidence, 69-70. As to family of decedent, 69. As to estate of decedent, 69. As to insurance, 70. No recovery for at common law, 231. Remedy in Virginia and other States, 231. Form of action for, 231. INDEX 1061 [References are to pages.] DEATH Cont'd. Death by wrongful act Cont'd. Death of wrongdoer before victim, effect, 231. ' Statutes as giving new and independent cause of action, 383- 384. Where decedent survives injury more than year and day, 384. Statute as giving more than one cause of action, 384. Election between new action or revival of old one, 384. Of sole party, effect of, see Parties. Right of representative of non-resident alien to sue for, see Par- ties. See also Action on the Case, Appeal and Error, Executions, Exemp- tions, Homesteads, Judgments, Limitation of Actions, Master and Servant, Trespass. *> DEATH BY WRONGFUL ACT See Death. DEBT, ACTION OF Nature of action, 79-83. In general, 79-80. Ancient joinder of debt and detinue, 79-80. Wager of law as one-time impediment, 80. Exact sum claimed, necessity for recovery of, 80. Assumpsit more usual on simple contracts, 80. Specific instances in which debt lies, 80-81. Debt upon bills and notes, 81-82. Debt upon negotiable instruments generally, 82-83. Assumpsit as concurrent remedy on sealed instruments, 83. What is a sum certain, 83-89. Sum of money to be paid in a commodity, 83-89. When quantity of commodity is not fixed, 83-89. When quantity of commodity is fixed, 83-89. Rule as to bank notes, not legal tender, 83-89. Payment in commodity alternative privilege, 83-89. Assumpsit or covenant preferable in such cases, 88-89. Debt to recover statutory penalties, 89-91. Under statutes, 89. Independent of statute, 89-91. As exclusive or simply permissive form of action, 89-91. Debt on judgments and decrees, 91-94. As permissive or exclusive remedy, 91-93. Right to sue on judgment, 91-92. Election between debt and assumpsit, 92-93. On judgments of justices of the peace, 93. On judgments of courts not of record, 93. To enforce decrees in equity, 93-94. 1062 INDEX [References are to pages.'] DEBT, ACTION OF Cont'd. The declaration in debt, 94-96. In general, 94. Statement of consideration in, 94-95. Claiming interest in, 95. On "bond conditioned," mode of assigning breaches, 95, 956. Stating matters of defeasance, 95-96. The damages, 96. On "bond conditioned," assigning breaches in replication, 879-880. Laying damages in writ, 287-288. The general issues in debt, 96-104. What are, 96. Nil debet, 96-100. Scope of and proof under, in general, 96-97. Form of plea, 96, 848-849. Showing payment under, 97. Showing accord and satisfaction under, 97. Showing an award under, 97. Showing agreement to submit, 97-98. Showing submission and award in pending suit, 98. Bad plea to debt on specialty, 98. When specialty is only inducement, 98. To action on domestic judgment, 98, 103. To action on foreign judgment, 98-99, 103-104. To action on justice judgment, 98-99. Showing former adjudication under, 99. Affidavit, denying signature, etc., filed with when, 99. Affidavit, denying partnership or incorporation, filed with when, 99. Need not be in writing, 100. Calling for grounds of defense with, 100. Non est factum, 100-102. Form of plea, 848. When applicable, 100. Scope of plea, 100-102. Verification, 101. When used, 101. Proof under, 101-102. Burden of proof on, 101. When execution admitted but instrument void, 101. Showing gaming consideration and usury under, 101-102. Showing lunacy under, 102. Showing fraud in factum and in procurement under, 102. Showing failure of consideration, etc., under, 102. Plea of as personal defense, 102. INDEX 1063 [References are to pages.] DEBT, ACTION OFCotifd. The general issues in debt Cont'd. Nut Tiel Record, 102-104. Scope of and proof thereunder, 102-103. Burden of proof under, 102-103. Want of jurisdiction shown by special plea, 103-104. Except as to foreign judgment, then nil debet, 103, 104. Matters in discharge of judgment, 104. Fraud, 104. Form of plea, 104, 849. Form of replication to, 104. Issues raised by, 104. How tried, 104. Evidence, 104. Order of trial, 104. Form of memorandum in, 287-288. Proving equitable set-offs under general issue in, 854. Pleading performance in debt on bond conditioned, 956. See Process, Rules and Rule Days. DECREES See Judgments. DEEDS See Homesteads, Limitation of Actions. DELIVERY BOND See Executions, Judgments. DEMURRER Introductory, 337. General classification of pleadings, 337. (1) Traverse, 337. (2) Confession and avoidance, 337. (3) Demurrer, 337. Definition, 337-338. , Derivation of word, 338. Function of, 337-338. As part of record, 338. Distinguished from demurrer to evidence, 338. When not applicable, 337-338. Defects other than in pleadings, 338. Failure to file affidavits, accounts, etc., 148, 152, 338, 350. Time of filing, 338-339. Discretion of court, 339. In practice. 339. At common law. formal defects, 339. 1064 INDEX [References are to pages.] DEMURRER Cont'd. Special demurrers, 339-341. Why so called, 340. Statement of grounds as constituting, 341. For formal defects, 339-340. Abolished in Virginia, 340. Save as to dilatory pleas, 340, 269, 334. General demurrers, 339-342. Scope of at common law, 339. Scope of under Virginia statute, 340. Why so called, 340. Must in civil cases be in writing, 340-341. Form of demurrer and joinder, 340-341. Stating grounds of demurrer, 340-341, 360. Amendments, time for, 341. To entire declaration, effect of, 341-342. Where one count or one demand good, 341. Proper form of demurrer when several counts in declaration or several breaches assigned, 341-342. When objections is for misjoinder, 341-342. Election to demur or plead, 342-344. At common law, 342. Necessity for making, 342. Considerations determining, 342. In Virginia, 342-343. In what cases election necessary, 342-343, 360. West Virginia rule, 342, 344. Objection or motion to strike as substitute for, 343. Procedure and review, 343. Advantage over demurrer, 343. Withdrawing demurrer and replying in fact, 343-344. Object of, 343. As matter of right, 343-344. What record shows, review, 343-344. Pleading after demurrer, effect as withdrawal, 344. Who may demur, 344-345. Strangers to action, 344. Party whose interest not affected, 344-345. Joint defendants, no joint action, joint or several demurrer, 345. In cases of misjoinder of parties, 345. Motion to abate now only remedy, 76, 345, 347. Causes of demurrer, 345-350. Formal defects, 345-346. At common law, 345. INDEX 1065 [References are to pages.] DEMURRER Cont'd. Causes of demurrer Cont'd. Formal defects Cont'd. In Virginia, 345. Distinction between formal and substantial defects, 345- 346. Substantive law determines, 346. No violated duty alleged, 346. Apparent contributory negligence, 346-347. Negativing, necessity for, 347. Wrong form of action, 347. Misjoinder of causes of action, 154, 347. Amendments, 347. Under code practice, 347. Non-joinder of parties, 75, 347. Misjoinder of parties, 76, 345, 347. Want of jurisdiction of subject matter, 347-348. What is, 348. Noticed in appellate court ex mero motu, 348. Want of jurisdiction over parties, 348. Unconstitutionality of statute under which action brought, 348. Review, necessity of decision by trial court, 348. In libel and slander, 348-349. Words declared on as insults, 252, 348-349. Defective allegation of common law slander or libel, 252, 348-349. Actions on sealed instruments, 349. Variance, craving oyer and demurring, 349. Rule where instrument unsealed, 349. Deed void on its face, 349. Amendments, 349. Craving oyer of record and demurring, 349. Pleading nul ticl record after oyer, 349. Variance between declaration and writ, 349. Duplicity in declaration or other pleading, 334-336, 350. In pleas in abatement, 334, 350. Action barred by statute of limitations, 350, 190, 379, 406. No damages claimed in declaration, 145, 146, 359. What defects not regarded on demurrer, 359-360. Effect of demurrer, 351-354. As admission of truth of facts pleaded, 351. Pleaders' inferences or conclusions of law, 351. What not admitted, 351. Review of whole record by court, 351-354. Reason of rule, illustration, 352-353. Qualifications of and exceptions to rule, 353-354. 1066 INDEX [References are to pages.] DEMURRER Confd. Effect of failure to demur pleading over, 354-360. General rule as to waiver of defects by failure to demur, 354. Failure to demur as admitting sufficiency in law of facts, 354. What defects cured by pleading over, 354. What defects cured by verdict, 354-355. Construction and presumptions, 354-355. Errors cure,d by the statute of jeofails, 355-359. The statute, 355. Object and purpose of statute, 355. Construction and application of statute, 355-356. Objection to reception or motion to strike out plead- ing as substitute for demurrer under, 355-356. Defective statement of case, 356. Where no case at all stated, 344, 356, 359. Where court has no jurisdiction of subject matter, 359. Misjoinder of issue, 356-357. Misjoinder of causes of action, 358, 363. Non-joinder of issue, 356-358. General rule, 356-358. Where no injury could have resulted, 356-358. Tendency of the modern cases, 358. Compelling trial without joinder, review, 358. Defective or no statement of damages, 145, 358-359. Plea and demurrer at same time, which issue first tried, 360. Failure of record to show ruling on demurrer, presumptions, 360. Judgment on demurrer, 360-367. Demurrer to plea in abatement, 278, 353, 360-361. Difference when sole issue one of fact, 277-279, 360-361. Demurrer to whole declaration, some counts good, 361. Demurrer to declaration and each count, some counts good some bad, 361. Demurrer to bad count overruled, effect, 361-362. Demurrer to original none to amended declaration, review, 362. Demurrer to declaration sustained for misjoinder of causes of action, 362-363. Right to amend, 362-363. Continuances and costs, 362-363. Where amendment still retains error, 363. Demurrer improperly overruled, liberty to amend by ap- pellate court, 363. Demurrer to some counts, issues of fact pending on others. 363. Same as to pleas, 363-364. When question of laiv goes to whole merits, 364. INDEX 1067 [References are to pages.] DEMURRER Cont'd. Judgment on demurrer Cont'd. Amendments, when allowed, 364. As waiver of erroneous ruling, 364-365. Effect of declining to amend, 364-365. Judgment on affirmance or reversal, 364-365. Demurrer erroneously overruled, reversal, leave to amend, 364. Demurrer to both original and amended declarations over- ruled, re-versal, final judgment, 364. Finality of so as to preclude same action or defense in fu- ,ture, 364-365. Demurrer to plea sustained, withdrawing plea, 365. Waiver of erroneous ruling, 365. Demurrer to plea overruled, permission to reply, 365-366. When demurrer to sole plea sustained, 366. Demurrer to plea erroneously sustained, whether appellate court on reversal can grant liberty to reply, 366-367. Right of appellate court to allow amendments on reversal, 363-364, 366-367. To notice of motion for judgment, see Proceedings by Way of Motion. See also Appeal and Error, Ejectment, Judgment, Libel and Slan- der, Limitation of Actions, Mechanics' Liens, Verdicts. DEMURRER TO EVIDENCE Nature of demurrer to evidence, 481-483. As a pleading and part of record, 481. Signature of counsel, 481. Contrasted with demurrer to a pleading, 481. To what extent remedy used, 482. Effect of guaranty of jury trial on, 482. Motion to strike compared with, 482. Right to on issue devisavit vel non, 482-483. Form and requisites of demurrer and joinder, 483-486. Original practice as to admitting facts upon record, 483-484. Modern practice as to admitting facts upon record, 483. Effect of Virginia statute on former rules, 483-484. Object of statute, 484. Stating grounds of demurrer, 484. All of the evidence should be set out, 484. Withdrawing demurrer, introducing new evidence, etc., 484. Mode of procedure, 484-486. Form of demurrer to evidence and joinder, 485-486. Relative functions of court and jury. 486. 1068 INDEX [References are to pages.] DEMURRER TO EVIDENCE Cont'd. Right to demur, 486-487. Who may demur, 486. Party having burden of proof, 486. As affected by form of action, 486-487. Actions for insulting words, 487. Effect of demurrer to evidence, 487. Joinder in demurrer, 487-489. Compelling, discretion of trial court, 487-488. Objection to, time for making, 488. When court will not compel, 488-489. Concessions on demurrer to the evidence, 489-491. What is conceded, 489-490. Effect on title papers in action of ejectment, 490. As affecting availability of remedy, 491. Unimpeached evidence of demurrant, 491. West Virginia rule, 491. Procedure on demurrer to the evidence, 491-495. In general, 491-492. Assessment of damages by jury, 492. Form of verdict, 492-493. Objection as to amount, time for, 493. Discharge of jury, 493-494. Bill of exception or motion for new trial, 493. New evidence after joinder, discretion of court, 484, 493. Non-suit after joinder, 484, 493. View of whole evidence by court, 494. Demurrer as waiver of objections to evidence, 494. Effect of illegal evidence, 494. Rules governing court in its decision, finality of judgment, 494. Demurrer overruled, but verdict set aside, procedure, 494-495. Demurrer by part of defendants, verdict as to all, procedure, 494. Rule of decision, 495-497. Virginia rule, what jury might have done, 495-496. West Virginia rule, preponderance of the evidence test, 496-497. Exceptions to rulings, and writ of error, 497-498. Demurrer as per se part of record, 497. Procedure for obtaining writ of error, 497. How case heard on appeal, 497. Finality of judgment on appeal, 497-498. Appellate judgment where joinder erroneously refused, 498. When case will be remanded, 498. See Appeal and Error, Demurrer, Trial, Verdict. INDEX 1069 [References are to pages.] DEPOSITIONS See Jury, Mandamus. DETINUE Object of action, 209. Recovery, increase of property, 209. Compared with replevin, 209-210. Demand for property, when necessary, 209. Taking lawful, detention unlawful, 209-210. Taking unlawful, 209-210. Essentials to maintain the action, 210. To recover promissory note, 210. Parties, 210-211. Plaintiff, general rule as to qualifications, 210. Possession as against wrongdoer, 210. By trustee to recover converted property, 210. How as to beneficiary, 210. Against defendant who never had possession, 210. Against one who has parted with possession, 210-211. Recovery in such cases, 211. Description and value of the property, 211. Requisite certainty of description, 211. Affixing value, necessity for, 211. General issue, non-detinet, form of plea, 211, 849. Defenses under, in general, 211. Property dead when action brought, 211. Prescriptive title, 211. Special plea, when necessary, 211. Defenses, 211-212. Death or destruction of property pendente lite, 212. As defense, 212. How pleaded, 212. Property dead when action brought, 211. Outstanding title, 212. No previous possession in plaintiff, 212. Defendant trespasser on actual possession, 212. Prior possession in plaintiff and prima facie case, 212. Verdict, 212-213. At common law, responsiveness to issues, 212-213. Under the Virginia statute, 213. Execution, 213-214. At common law, 213-214. No writ of possession, 213. Distringas and fieri facias, form, 213. On what executed, 213-214. 1070 INDEX [References are to pages.] DETINUE Cont'd. Execution Cont'd. In Virginia, 214. Writ of possession, 214. Fieri facias and distringas, 214. Election of remedies, 214. Preservation of property, 214, 223-224. Giving to plaintiff when action begins, 214, 224. Giving to sheriff, procedure, 214, 223-224. Return of to defendant, procedure, 214, 223-224. Form of memorandum in, 289. Joinder of debt and, see Debt, Action of. Non-joinder of defendants in, effect of, see Parties. See also Limitation of Actions, Process, Replevin, Verdicts. DILATORY PLEAS See Pleading. DISCONTINUANCE See Dismissal and Nonsuit. DISMISSAL AND NONSUIT Nonsuit, 596-599. Meaning of term as generally used, 596. Meaning of term as used in Virginia, 596. As bar to subsequent action, 596. When resorted to, object and purpose, 596-597. To avoid adverse verdict which would be res judicata, 597. Verdict on different state of pleadings as res judicata, 597. Time for suffering, 597. Where counterclaim set up, 597. Right to suffer in general, conditions, 597. .Discontinuance, 598, 873-874. Failure to sign judgment where plea only partial defense, 598. At rules, powers of court at next term, 598. Compulsory non-suit when allowed, 598-599. As bar to subsequent action, 598. Directing a verdict as preferable course, 598. In Virginia, 598-599. Motion to dismiss for failure to prosecute, rule to speed, 599. Withdrawing a juror, 599. When this method of dismissal resorted to, 599. Discharging jury because of surprise at trial, 599. For failure to file pleading or to prosecute action, 256-257, 260, 274-275. INDEX 1071 [References are to pages.] DISMISSAL AND NONSUIT Cont'd. Retraxit, 589-590. Definition of, 589. Form of order in case of, 589-590. How differs from nonsuit, 590. How entered, 590. Effect of entry, 590. Action "dismissed agreed" as, 590. Discontinuance of case as, 590. Disclaimer in pleading as, 590. Dismissal, after verdict, of action against one joint tortfeasor, see Parties. See also Demurrer to Evidence, Limitation of Actions, Payment, Rules and Rule Days. DISTRESS Defined, 2. Nature and scope of remedy by, 2. Damages done by cattle damage feasant, 2. Common law rule, 2-3. Virginia and West Virginia rule, 3-4. To enforce the collection of taxes and officers' fee bills, 3-4. For the collection of rent, see Landlord and Tenant. See also Remedies. DIVORCE See Process. DOMICILE See Attachments. DOWER See Homesteads. DUPLICITY For general discussion of, see Pleading and, 334-336, 350, 892-909. EASEMENTS See Ejectment. EJECTMENT Historical, 192. Ejectment at common law, 192-194. Fictitious nature of action, proceedings, 192-194. "John Doe" and "Richard Roe," 192-194. Tolling right of entry, 193. Lay only by a tenant for a term of years, 192-193. 1072 INDEX [References are to pages.] EJECTMENT Cont'd. Ejectment in Virginia, 193-195. Tolling right of entry, 193. Limitation of suits, 193-194. Action takes place of old writ of right, 194. Right of entry no longer prerequisite, 194. Plaintiffs, 194-195. All fictions abolished, 194. Action between real parties in interest, 194-195. When and by whom action brought, in general, 195. Interest and right of recovery, necessity for, 195. Joint tenants, etc., 195. Beneficiary in trust deed, 195. Trustee in deed of trust, 195. Plaintiff's title, 195-199. Own legal title basis of action, 195. Comparison of titles, 195. Effect of outstanding title, 195-196. Interest, legal title, and right to recover, 196. Unsatisfied mortgage or deed of trust, effect, 196. Acquiring title after action brought, 196. Nature of title to be shown, 196-197. Grant from Commonwealth, 196. Adverse possession, 196. Title from common source, 196-197. As against mere stranger or squatter, 198. Landlord and tenant, 198. Purchaser against grantee in unrecorded deed, 198-199. Adverse possession, 197-198. Essentials of, 197. Surface and mineral rights, 197. Vendee, debtor, and deed unrecorded, 197. Joint tenants, etc., 197-198. Landlord and tenant, 198. Nature of title acquired by, 198. As basis for ejectment, 198. What may be recovered, 199. General rule, 199. Easement or license, 199. Streets, 199. Railway roadbed or right-of-way, 199. Right to quarry and remove stone, 199. Rents and profits, 199. Waste, 199. INDEX 1073 [References are to pages.] EJECTMENT Confd. Ejectment in Virginia Cont'd. Defendants in ejectment, 199-200. General rule, 199-200. Possession of defendant, 200. Object of action, 200. Claimant of title, 200. Joinder with occupant, 200. Premises vacant, 200. Possession, remedy of plaintiff in, 200. Possession of surface only, 200. Pleadings in ejectment, 200-204. How action commenced, 201, 288-289. Form of declaration and notice, 201. How rents, profits and damages claimed, 201. For what time recovered, 204. Description of premises in declaration, 201-202. Statement of nature of estate claimed, 202. Joinder of counts and plaintiffs, 202. Defenses, how made, 202. Demurrer, 202. Plea in abatement, 202. Plea of not guilty, scope, 202. Equitable defenses, 202. Improvements, 204. When allowed and how claimed, 204. Computation of value of, 204. Venue of action, 200. Equitable defenses, what allowed, 202-203. Parol disclaimer as defense, 203. Equitable estoppel as defense, 203. Office judgment in, when final, 203. Evidence in ejectment, 204-205. Exterior boundaries, exceptions from grant, burden of proof. 204-205. Locating boundaries, best evidence, 205. Declarations of deceased persons, 205. General reputation and tradition, 205. Adverse possession, general reputation to prove, 205. Statute of limitations, 206. What is the limitation, 193-194. Infants and insane persons, 206. Infancy of one joint tenant or tenant in common, effect of, 206. 68 1074 INDEX [References are to pages.] EJECTMENT Confd. Statute of limitations Cont'd. Married woman, 206. Action to recover common law lands, 206. A muniment of title, pleading, 206. Interlocks, entry on part claiming whole, 206. Equity jurisdiction, 206-207. Bills of peace enjoining frequent actions, 206-207. Where remedy at law adequate and complete, 207. Quieting title by removing clouds from, 200, 207. Who may invoke aid, 207. Equitable defenses, 202. Verdict, 207-208. Joint, where action against several, 207. Must be specific, 207-208. Must show premises recovered, 207. Must specify estate found in plaintiff, 207-208. Contrary to the evidence, setting aside, 203. Excessive, procedure, 203-204, 207. For undivided interest, whole claimed, 207. For distinct parcels held in severalty or jointly, 207-208. For specific or undivided part or share, 208. For and against whom, in general, 208. Where right proved to all premises claimed, 208. Part or share recovered, description of, 208. Undivided share or interest of whole, specification, 208. Of part of premises, 208. What sufficient finding of fee simple title in plaintirT, 537. Judgment, 208. Conclusiveness of, 208. When plaintiff's right expires before trial, 208. Saving in favor of infants and insane persons, 208. For distinct parcels held in severalty or jointly, 207-208. As superseded by trespass to try title, see Trespass. Bill of particulars in, see Pleading. Contrasted *with Unlawful Entry and Detainer, see that title. See also Demurrer to Evidence, Judgments, Limitation of Actions, Process, Rules and Rule Days, Verdicts. ELECTION OF REMEDIES Actions to recover statutory penalties, 89-91. Actions on judgments and decrees, 92-93. Election between trespass and case, see Trespass. Between trover and conversion and trespass, see Trover and Con- version. INDEX 1075 [References are to pages.] ELECTION OF REMEDIES Cont'd. Waiving tort and suing in assumpsit, see Assumpsit, Action of. See also Demurrer, Limitation of Actions, Mechanics' Liens. EMINENT DOMAIN Whether legislative or judicial power, 38, 742-743. Damages, right of appeal as to, 38, 742-743. See Appeal and Error, Counties, Courts. EMPLOYERS' LIABILITY LAWS See Master and Servant. EQUITY Remedy of plaintiff in possession to remove cloud from title, 200, 207. Proposed revision of federal equity rules, 268. Equity rules in Federal Courts, effect of State statutes on, 387. Equitable defenses in ejectment, see Ejectment. Issues out of chancery, see Motions after Verdict. Jurisdiction in ejectment, see Ejectment. See also Attachments, Interpleader, Judgments, Limitation of Ac- tions, Mechanics' Liens, Rules and Rule Days, Set-Off and Counter- claim. ESTOPPEL See Bills of Exception, Limitation of Actions, Mechanics' Liens. EVIDENCE See Bills of Exception, Death, Demurrer to Evidence, Ejectment, Instructions, Libel and Slander, Limitation of Actions, Malicious Prosecution, Motions after Verdict, Trial, Verdicts. EXECUTIONS Execution must follow judgment, 625. Nature and purpose of the writ of fieri facias, 625. Effect of variance, 625. Joint judgments, 625. Judgments at different dates against several jointly bound, 625. Issuance of executions, 625-629. When duty of clerks ex officio to issue, 625. Right of assignor of judgment to control, 625. Finality of judgment as affecting, 625-626. Before end of term at which judgment rendered, 626. Effect on control of court over judgment, 626. On office judgments, control of court over, 626. 1076 INDEX [References are to pages.] EXECUTIONS Cont'd. Issuance of executions Cont'd. When court will direct issuance forthwith for cause, 626. Number of executions, costs, 626-627. Number of satisfactions, 626-627. Preventing abuses as to, 626-627. Endorsement on by officer, necessity for, penalty, 627. When returnable, 627. Limitation on issuance, 627-628. Scire facias to revive, 627. Motion for new execution, 627. Validity of first execution when issued after one year. 627-628. What constitutes issuance, execution marked "to lie," 389, 400, 628. Scire facias against personal representative, limitation, 628. Death of sole plaintiff or defendant, effect, 628. Death of one of several plaintiffs or defendants, effect, 628. Survivorship as applied to parties to executions, 628. Effect of execution issued in contravention of agreement, 628- 629. Property not subject to levy, 629-635. Executions which can not be levied on any property, 629. Public property, 629. Property of quasi public corporations, 629. Applications to legislature, 629. Executions against executors and administrators, 629-632. Right to levy on assets of decedent, 629-632. Effect of judgment as simply establishing plaintiff's claim, 630-632. Common law rule, 630-631. Time for taking judgment against personal representative, 630. Duty of personal representative to sell property and pay debts, 631-632. Enjoining sale under execution, 632. Executions against a defendant who is dead, 631-633. Death before judgment, judgment as void or voidable, 631. Right to levy execution issued after death, 631-632. Death before return day but after issuance, 632. Death before issuance, 632-633. Death of plaintiff after issuance but before return day, 633. Receivers, 633. Disturbing order of distribution of trust fund, 633. INDEX 1077 [References are to pages.] EXECUTIONS Cont'd. Receivers Cont'd. Effect of judgment against, 633. Virginia rule, 633. Property not liable to levy for any execution, 633. Poor debtor's exemptions, 633. Homestead exemptions, 633. Property of municipal corporations and counties, 633. Appeal to governing body to make levy, mandamus, 633. Railroads and quasi public corporations, 633-634. Property essential to exercise of corporate franchise, or to discharge of duties to public, 633-634. Other property, 634. Roadbed and rolling stock of railroad company, 634. Property actually employed in interstate commerce, 634. Conflict of authority, Virginia rule, 634. Choses in action, 635. Lien of execution on such property, enforcement of, 635. Life insurance policies, 635. Executions against principal and surety, 635-636. Right of creditor to collect his debt out of either, 635. Satisfied execution as functus officio, 635-636. Substitution or subrogation of surety at law, 636. Surety's remedy against principal, 636. Subrogation in equity, 636. Showing in return by whom execution satisfied, 636. Duty of officer, 636-637. General duties as to endorsements, levy, return, etc., 636-637. Provisions of the Virginia statute, 637. The levy, 637-645. Mandate of writ and return day thereof, 637. In what cases real estate may be levied on, 637. What constitutes a levy, 637-638. Necessity for actual seizure, 637-638. Goods in view and power, 638. Goods in view only, 638. Property in receiver's hands, necessity for actual levy, 638. Tangible property, sufficiency of constructive posses- sion, 638. Mere paper levy, effect of, 639. Unwieldy goods and growing crops, 639. Waiver of actual levy by debtor, effect, 639. Goods left in possession of debtor, liability for, 639. Fraudulent removal by debtor as crime, 639. 1078 INDEX [References are to pages.] EXECUTIONS Cont'd. The levy Cont'd. Right to enter upon debtor's premises, 639. Breaking doors, 639. Property in personal possession of debtor, 639,. Chattels real, 640. Emblements, growing corn, potatoes, cotton, 640. Fixtures, what are, 640. Right to make on Sunday, 640. Right to execution and bill in chancery at same time, 640. Money, 641. Effect of whether legal tender, 641. In possession of defendant, 641. In hands of sheriff under another execution, 641. Partnership property, 641. Taking exclusive possession of chattels of firm, 641. Interest of execution debtor as affecting levy and sale,. 641. Purchaser as partner, 641. Sale as dissolving firm, 641. Delivery upon sale, 641. Levy on part of effects only, 641. Mortgaged property, 642-644. General rule as to right to levy, 642. Equitable relief in such cases, 642. Virginia rule, and rule of reason, 642-644. Chattel mortgage to secure future advances on property to be acquired, 642-644. Goods removed from leased premises, 644. Shares of stock, 644-645. In joint stock company, 644. In corporation, 644. Levy after return day, effect, 644. Sale after return day, 644. Death of plaintiff or defendant, effect on levy, 631-633, 644-645. Loss of property after levy, effect, 645. Several executions, 645. Order of delivery to officer as determining priorities, 645. Conflicting claims, indemnifying bond, 645. Preference given indemnifying creditor, 645. Interpleader proceedings, 645. Payments to and disbursements by officer, 646. When officer entitled to receive payment, 646. Effect of unauthorized receipt of payment, 646. Duty of officer to make disbursement, 646. Where creditor lives in another county or corporation, 646. INDEX 1079 [References are to pages.] EXECUTIONS Cont'd. Payment by officer for debtor, 646-647. Effect on execution as security, 646. Right of officer to purchase execution, 646-647. Sale of property, 647-648, 649-650. Advertisement, in general, 647. In cases of horses, mules and work oxen, 647. Place of sale, 647. Expenses of keeping or removing property, 647. Where property perishable or expensive to keep, 647. Terms of sale, and duties of officer after sale, 647. Who may purchase at sale, 648. Title of purchaser, 649-650. Application of rule of caveat emptor, 649. What title passes, 649. When indemnifying bond given, 649-650. Action on by purchaser, 650. The return, 648-649. Return defined, 648. What return sufficient to keep judgment alive, 648. Presumptions as to validity of, 648. Effect of return before or after return day, 648-649. Conclusiveness of, 648. Right to compel, 648. Statutory provision for, 648. Signature of the officer, 648. Amendment of returns, 649. By officer after return to clerk's office, 649. Allowance of by court, effect, 649. Time for, 649. By other than officer who made original return, 649. In vacation, 649. Return of no effects before return day, 649. Delivery bond, 650-653. Right of debtor to give, 650. Effect of on the ft. fa., 650. Disposition of property when given, 650. Penalty of bond and security, 650. Recitals of, 650. Condition of, 650-651. Forfeiture of, 651. Partial delivery of property, effect of, 651. Excuses for non-delivery, 651. Delivery of part excused, failure to deliver residue, 651. Effect on execution of forfeiture, 651-652. 1080 INDEX [References are to pages.] EXECUTIONS Cont'd. Delivery bond Cont'd. Return of forfeited bond by officer, 651-652. Force of forfeited bond as judgment, 652. Issuance of execution thereon, 652. Proceedings on forfeited bond, 652. Defenses, 652. Forfeited bond as satisfaction of original judgment, 652-653. When plaintiff restored to his original judgment, 652-653. Endorsement on fi. fa. issued on forfeited bond, 653. Interpleader proceedings, 653-654. Property in possession of execution debtor claimed by third person, 653. What required of claimant of property, 653. Possession of property pending trial of title, 653. Property not in possession of execution debtor claimed by third person, 653-654. Interpleader by officer, 653-654. Indemnifying bond by plaintiff, 654. Effect of failure to give, 654. Suspending bond by claimant, 654. Interpleader by plaintiff or claimant, 654. When judgment creditor may obtain new execution, 654. The lien and its commencement, 655-656. On what property a lien, 655-656. Personal property in general, leviable or not, 655. Choses in action, 655-656. Assignee's of or payers to judgment debtor without notice, 655-656. Property acquired after issuance of execution, 655-656. Commencement of lien, 655-656. At common law, 655. From delivery to officer to be executed, 655-656. Delivery with direction not to levy, 656. Endorsement by officer on execution, 656. Territorial extent of lien, 656-658. Tangible property, 656-657. Rule that it extends throughout county only, 656-657. Rule that it extends throughout State, 657. In Virginia, limited to county of officer receiving fi. fa., 657. Lien a levy lien, commencement of in different counties. 657. Intangible property, 657-658. Practice as to fi. fa. and garnishments, 657. INDEX 1081 / [References are to pages.] EXECUTIONS Cont'd. Territorial extent of lien Cont'd. Intangible property Cont'd. Lien not a levy lien, 657. Extends throughout State, 657-658. Duration of lien, 658-659. Tangible property, 658. Where no levy, limited to return day, 658. Where there is a levy, 658. Death of defendant after levy but before sale, effect, 658. Effect of abandonment of levy, 658. Intangible property, 658-659. Continues during life of judgment, 658. Keeping lien perpetual, 658. As affected by debtor's death, 658. As affected by return day of execution, 658. Priority over subsequent execution with first garnish- ment, 658. Necessity for reviving against personal representative, time for, 658-659. When lien ceases, 659. Sufficiency of return to extend lien, 659. Execution issued in contravention of agreement, effect, 659. Rights of purchaser, 659-660. Tangible property, 659. When levy is actually made in time, 659. When no levy is made, 659. Lien extended not created by levy, 659. Intangible property, 659-660. Assignees for value without notice, 659-660. Deed of trust creditor, knowledge, relation back of ac- ceptance, 660. Antecedent debt as valuable consideration, 660. Effect of fraudulent intent of insolvent assignor, 660. Protection of one making payment to execution debtor, 660. Lien created by fi. fa. and not by notice or garnishment, 660. Liability arising after notice or garnishment but be- fore return day, 660. Form of notice required, 660. Mode of enforcing the lien, 661-664. Tangible property, 661. Advertisement and sale, disbursement, 661. Excessive levy or sale, liability of officer for, 661. 1082 INDEX [References are to pages.] EXECUTIONS Cont'd. Mode of enforcing the lien Cont'd. Intangible property, 661-664. Issuance of summons in garnishment, its mandate, 661. When returnable, 661. Procedure on summons in garnishment, in general, 661- 662. No occasion for garnishment where property tangible, 662. Proceedings to subject fraudulently transferred tangible property, 662. Application of payment by garnishee when not sufficient to pay entire execution and cost, 662. How garnishee's indebtedness shown, 662. Serving summons in garnishment on debtor, defense by him, 662. Procedure where garnishee's liability not due, 662-663. Protection of garnishee as to negotiable paper, 663. Garnishment against executors and administrators, 663. Garnishment against corporation, 663. Time of acquiring property as affecting lien, 663. Extent of time as to which garnishee must answer, 663. Situs of a debt for purpose of garnishment or attach- ment, 663-664. Whether determined by residence of creditor or of debtor, 663-664. Rule in Virginia, 664. Penalty for seeking to subject exempt wages, 664. Protection of garnishee against twice paying debt, 664. Property undisclosed, 664-668. Interrogatories to debtor, 665-668. Nature of and procedure on, in general, 665, 668. Form of order and of summons by judge, 666-667. Disposition made of property disclosed, 666-668. Compelling conveyance and delivery, 666-668. Mode of procedure against non-residents who owe exe- cution debtor, 668. Remedy against debtor about to quit State, 668. Non-resident debtor, 668-669. Right to levy on his property within State, 668. Personal attachment against debtor "about to quit the State" and holding him to bail, 668-669. General procedure in such cases, 669. INDEX 1083 [References are to pages.] EXECUTIONS Cont'd. Beneficial owner of judgment, endorsement as to on execution, 669. Motion to quash, 669-671. By whom heard and determined, 669-670. Staying proceedings on execution pending motion, 670. When proper, 670. Time for motion and by whom may be made, 671. Effect on first ft. fa. of quashing second one, 671. Amending return, 671. Not necessary where judgment vacated or annulled, 671. Venditioni exponas, 671-673. Definition, 671. When proper, 671-672, 673. When peremptory sale ordered by, 672. Powers, in Virginia, of deputy after death of principal, 672. Effect of death of officer leaving no deputy, 672. Procedure to obtain writ, mandamus, 672. Nature of writ and reasons for its issuance, 672. In Detinue, see that heading. On judgment against Court Receiver, see Parties. See also Attachments, Homesteads, Interpleader, Judgments, Justices of the Peace, Limitation of Actions. EXECUTORS AND ADMINISTRATORS Retainer, right of defined, 33-34. Abolished in Virginia, 34. Order of payment of debts of decedent, 34. Personal estate, will of debtor as changing order of liability of for debts, 34. How as to real estate, 34-35. Order of liability of estate for debts, 35-36. As between personal and real estate, 35. As between United States and a State, 35. Partnership debts, 35. Fiduciary debts, what are, 35. Voluntary bonds, enforcement of payment, 35. Voluntary notes, enforcement of payment, 35. Assets, proper mode of marshaling, 35-36. Submission to arbitration by personal representative, see Arbi- tration and Award. See also Appeal and Error, Attachments, Courts, Executions, Judg- ments, Limitation of Actions, Parties. 1084 INDEX [References are to pages.] EXEMPTIONS Poor debtors' exemption. As an exemption in addition to the homestead, 807. What articles are exempt, 807, 809. Wages of laboring man, 807. Meaning of terms "householder" and "laboring man," 807. Necessity for claimant to be householder and resident of State, 807. Selection of articles by householder, 807-808. Right to substitute other articles, 807-808. Effect on right of death or consumption of article, 808. Death of householder, what exempt and who may claim, 808-809. Rights of widow, minor children and single daughters, 808. The exemption as an absolute one, 808. Rights of widow where no minor children or single daughters, 808. Dead victuals and live stock, 808. Rights of widowed daughters, or single daughters not members of the household, 808-809. Against what claims exemption not allowed, 809. When payments in installments on insurance policies exempt, 809. Subjecting wages of minor for debts of 'his parents, 809. Garnishment outside of State of wages of laboring men, 809. Power of householder to dispose of or encumber exempt articles, 809. Right of householder to waive exemption, 810. Where householder allows forced sale, rights against pur- chaser, 810. Injunction to prevent sale or garnishment, 810. See Attachments, Executions, Homesteads. EXTRAORDINARY LEGAL REMEDIES See Certiorari, Mandamus, Prohibition, Quo Warranto. FALSE IMPRISONMENT Form of action to recover for, 230. Defined, 230-231. Malice and want of probable cause, materiality of, 231. Compared with malicious prosecution, 231. Special damages, allegation and proof, 231. Joinder with slander, libel, and malicious prosecution, 231. See also Action on the Case, Malicious Prosecution, Trespass. INDEX 1085 [References are to pages.] FENCES What is a lawful fence, 2-4. At common law, 2-3. Usually defined by statute, 3. In the absence of statute, 3. In Virginia, 3-4. Liability of one having no fences for damage done by trespass- ing cattle, see Distress. FIERI FACIAS See Executions. FINES See Homesteads. FIXTURES See Executions. FORCIBLE ENTRY AND DETAINER See "Unlawful Entry and Detainer." FORMS See Appeal and Error, Attachments, Homesteads, Mechanics' Liens, Pleading (Rules of Pleading), and other specific titles. FRANCHISES See Executions, Mechanics' Liens. FRAUD See Limitation of Actions, Malicious Prosecution. FRAUDULENT CONVEYANCES Voluntary conveyance, 386-387. Setting aside when debt not due, lien, 386. Jurisdiction to set aside equitable, 387. Procedure in Federal court, lien, 387. See Executions, Homesteads, Limitation of Actions. GARNISHMENT When returnable, 297. See Attachments, Executions, Exemptions, Justices of the Peace, Mechanics' Liens. GENERAL ISSUES See Debt, Action of, and other specific titles. 1086 INDEX [References are to pages.] GROUNDS OF DEFENSE See Pleading, Debt, Action of. GUARDIAN AND WARD Validity of submission to arbitration by guardian, see . I rbit ra- tion and Award. See also Clerks of Courts, Courts, Limitation of Actions. HABEAS CORPUS Original jurisdiction of Court of Appeals in, see Appeal and Er- ror, Courts. HOLIDAYS See Process. HOMESTEADS What is a homestead, 786. Policy of homestead laws, 786. History of Virginia statute, 787-788. Power of legislature to enact homestead law, 787. The former Virginia statutes, 787. Estate created simply an exemption, 787. Changes made in former law by present constitution and existing statutes, 787-788. Powers of legislature as to homestead, 788. Constitutional provisions, 788-789. Power of legislature to increase homestead or extend right to, 788-789. Right of State to create as against prior debts, 789. Who may or may not claim the homestead, 789-793. Householder or head of a family, 789-790. Synonymy of terms, 789. What necessary to constitute, 789-791. What constitutes a family, 789-791. Whether married woman may be, 790. Necessity of residence in State, 791. For whose benefit, 791-792. Primary object provision for family, 791-792. Whether householder himself is beneficiary, 792. Effect of family ceasing to exist, 792. Nature of exemption as estate or privilege, 792-793. What may be claimed, 787-788, 793. Nature of property, 787, 793. Value of property, 793. Nature of interest in estate claimed, 793. INDEX 1087 [References are to pages.] HOMESTEADS Cont'd. What may be claimed Cont'd. Shifting stock of merchandise may not, 787-788, 793. How after surrender to trustee in bankruptcy, 788. How where goods intermingled by bankrupt, 788. In property whose conveyance has been set aside for fraud or want of consideration, 787-788, 793. In proceeds of exchanged or converted property where orig- inal property not paid for, 787. How and when to be claimed, 794-795. The homestead deed and its recordation, 794. Description of property and its cash valuation, 794. Form of homestead deed, 794. Death of householder without having set apart homestead, 794-795. Petition by widow and minor children, 794. Homestead deed by widow or minor children, 794-795. Time for claiming exemption, 795. Asserting for first time in court of appeals, 795. Effect of homestead on debts or claims of creditors, 795-798. Against what demands homestead may not be claimed, 795- 796. Who deemed to be a "laboring man," 796. When officers and fiduciaries may not claim, 795, 796. When attorneys at law may not claim, 795, 796. Whether homestead may be claimed against liabilities for torts, 796-797. How determined whether demand in contract or tort, 797. Against damages for breach of contract, 797. Against demand for taxes asserted by surety of officer, 797. Against a fine due the United States, 797. Where homestead has been waived, 797. Right of widow to claim against heirs. 797-798. Where no debts, 797-798, 803. Right of heir to bar her claim by paying debts, 798. Effect of whether homestead claimed in life time of husband, 798. Waiver of the homestead, 799-801. How it may be waived, 799. Time of, before or after exemption claimed, 799. Effect of waiver, 799. Whether new constitution affects right of, 799. Form of waiver, 799. Waiver on face of non-negotiable paper not applicable to as- signor thereof, 799-800. 1088 INDEX [References are to pages.] HOMESTEADS Cont'd. Waiver of the homestead Cont'd. Right of partner to waive as to firm, 800. Waiver on face of bond, not available against principal when surety pays bond, 800. Distinction between waiver and alienation or encumbrance, 800. Judgment and execution on waiver paper, or superior to homestead, to recite fact, 800-801. Effect on judgment of erroneous statement of waiver, 801. Prior liens, 801. Where prior security created by party's own act, mortgage, deed of trust, pledge, priority between and homestead, 788, 801. Priority between prior judgment and homestead, 788, 801. Effect of will of householder, 801-803. Whether by will he can deprive widow and minor children of homestead, 801-802. Right of widow, who has received dower or jointure, to home- stead, 802. As to real estate of householder, 802. As to personalty of householder, 802. Rights of minor children, 802. Where she receives neither, joint application by widow and children, 802. Where she receives either, application by children only, 802. Right to claim in personalty when children have claimed in real estate, 802. Exemption of homestead from debts of widow and chil- dren, 802. Whether widow can claim two homesteads, one in property of deceased husband and one in her own, 802-803. Deed of trust, mortgage or conveyance, 803. Whether execution of as to real estate by married man alone valid, 803. As to personal property, 803. Power over homestead, 803. Power of alienation and encumbrance, 803. No security will be required for forthcoming of exempt prop- erty at cessation of homestead, 803. Liens in ini'itum do not attach during homestead period, 803. INDEX 1089 [References are to pages.] HOMESTEADS Cont'd. Income, increase and betterments, 803-804. Effect of increased value not caused by improving real estate, 803, 804. Value enhanced by permanently improving real estate, whether creditor may subject excess, 804. Exemption of crops raised on homestead land, 804. Whether increase of personal property exempt, 804. Excessive homestead, how creditor may subject excess, 804. How claims superior to homestead enforced, 804-805. Marshaling assets where part of property exempt, 804-805. How in case of specific lien such as mortgage or trust deed, 805. Cessation of homestead, 805-807. Under what circumstances the exemption ceases, 805-806. What becomes of exempt property on cessation, 806. When lien of judgment or decree attaches and to what, 806. Effect of householder surviving family, 806. Running of statute of limitation against judgment during homestead period, 806-807. See Attachments, Exemptions., Executions, Judgments. HUSBAND AND WIFE See Ejectment, Exemptions, Homesteads, Limitation of Actions, Par- tics, Process. IMPROVEMENTS See Ejectment, Homesteads, Judgments, Mechanics' Liens, Trespass. INFANTS Actions by and against, see Parties. Service of process on, see Parties. As defendants in actions ex delicto, see Parties. Garnishment of wages of for debt of parent, see Exemptions, Justices of the Peace. Validity of submission to arbitration by, see Arbitration and Award. See also Ejectment, Exemptions, Homesteads, Limitation of Actions, Parent and Child, Process. INJUNCTION See Executions, Exemptions, Limitation of Actions. INSANE PERSONS Actions by or against, see Parties. 69 1090 INDEX [References are to pages.] INSANE PERSONS Cont'd. Submission to arbitration by committee of, see Arbitration and Award. See also Courts, Ejectment, Libel and Slander, Limitation of Ac- tions, Process. INSTRUCTIONS Object of instructions, 499. Charging the jury generally, 500-503. Practice in England and the Federal courts, 500. Practice in Virginia, 500, 501. Instructions by court sua sponte, 500. Expression of opinion by court, 500. Duty to amend erroneous or equivocal instruction, 500-502. Where point is a vital one in the case, 502-503. Nature, construction and effect of instructions, 503-504. Instructions assuming facts, 503. Read in light of evidence, supplying defects, 503. Erroneous instruction, correct verdict, effect, 503-504. Abstract propositions partial view of case, 504. Scintilla doctrine, 504-505. Sufficiently instructed, 505. Conflicting instructions, 505-506. Conflicting evidence, 506. Directing a verdict, 506-507. General rule, 506. Virginia practice, 506. Tendency of modern cases, 506-507. Virginia statute, 507. Law and fact, 507-508. Relative functions of court and jury, 507-508. Instruction erroneous, correct verdict, effect, 507. Referring legal question to jury, 507-508. Foreign laws, 508. Written instruments, 508. Court's opinion on the evidence, 508. General rule as to giving, 508. Virginia rule as to giving, 508. Oral or written, 509. Time of giving, 509-510. As regulated by statute, 509. Before argument, 509. Discretion of court, 509. Order of reading to jury, 509-510. West Virginia rule, 509-510. Virginia rule, 510. INDEX 1091 [References are to pages.] INSTRUCTIONS Cont'd. Multiplication of instructions, 510. Find for the plaintiff or defendant, 510-511. Essentials of such a binding instruction, 510-511. When instruction should be alternative, 511. Inviting error, effect, 511. How instructions are settled, 511-512. Procedure in general, 511-512. Opening and conclusion of argument, 512. Exceptions to courts rulings, necessity for, 512. See Appeal and Error, Bills of Exception, Motions after Verdict, Verdicts. INSURANCE Pleading on insurance policies, 955-956. Recovery by motion, see Proceedings by Way of Motion. See also Executions, Exemptions, Mechanics' Liens, Process, Venue. INTEREST Claiming in declaration, see Debt, Action of. See also Appeal and Error, Attachments, Limitation of Actions, Payment, Verdicts. INTERPLEADER Nature of the proceeding, 215. Statutory, 215. Interpleader in equity not abolished, 215. As substitute for replevin, 215. Object of proceeding, 215. To whom available, 215. Rights of officer where property levied is claimed by third per- son, 215-216. May demand indemnifying bond, 215-216. Condition of such bond, 215-216. Effect of bond, 215. If no bond given, 215-216. May interplead, 216. Procedure, 216. Form of petition, 216-217. Usual reason for interpleading, 216. Rights of creditor, 217. May give indemnifying bond, 217. May interplead, 217. 1092 INDEX [References are to pages.] INTERPLEADER Cont'd. Rights of claimant, 217-219. Property in possession of execution, etc., debtor, 217-219. Must give suspending bond and interplead, 217-218. Effect of failure to give bond and interplead, 217-218. Forthcoming bond, retaining possession by, 218-219. Property expensive to keep or perishable, 219. Proceedings by the court, 219. Application, writing, oath, 219. What application should contain, 219. Who summoned to interplead, 219. Order of interpleader, 219. Plaintiff and defendant, who are, trial, 219. General jurisdiction of court, 219. No memorandum in, 289. See Executions, Process. INTERROGATORIES See Attachments, Executions. JOINT-STOCK COMPANIES See Executions. JOINT TENANCY See Ejectment. JUDGES Power of in vacation to appoint guardian or curator, 45. See Bills of Exception, Courts, Judgments, Justices of the Peace. JUDGMENT NON OBSTANTE VEREDICTO See Motions after Verdict. JUDGMENTS Classification of, interlocutory or final, for property or money, 604. Scope of treatment in this work, 604. Definition, 604. Judgments as liens, 605-607. At common law, 605. The writ of elegit, its history, nature, use and abolition, 605- 606. Modern statutory lien of, 606-607. Lien as dependent on nature of estate, 606. Lien as limited by interest of debtor, 606-607. Transitory seizin, conveyance to trustee, 606-607. Improvements and betterments, 607. INDEX . 1093 [References are to pages.] JUDGMENTS Cont'd. Commencement of the lien, 607-611. At common law, 607. Date of commencement of lien, 607-608. Judgments rendered in court, 607-608. Tabulated statement of statutory changes, 607-608. Relation back, 607-608. Judgments or decrees in vacation, 608. Tabulated statement of statutory changes, 608. Relation back, 608. Provisions of present Virginia statutes, 608-609. Time for docketing as against subsequent purchasers for value and without notice, 609. Tabulated statement of statutory changes, 609. Order of satisfaction of liens, 609-611. Judgments against same person at same term, 609. Judgments rendered and judgments by confession, 609-610. Judgments in proceeding by motion, 609-611. Judgments in vacation upon confession, 610-611. Provisions of the present Virginia statute, 610. Reasons for former rule of relation back, 611. Duration of lien, 611-612. In general, methods of perpetuating, 611-612. Effect of fi. fa. kept in clerk's office marked "to lie," 611. Effect of death of judgment debtor, 611-612. Execution in contravention of express agreement, effect, 612. Right of debtor to waive bar of statute, 612. Docketing, 612-614. Object and purpose of, 612. Necessity for indexing, 612-613. Effect of mistake or inaccuracy in, use of initials, 612- 613. Use of "same" under name of judgment debtor as, 613. Judgments in' favor of Commonwealth, necessity for, 613. Where, in case of city subsequently carved out of county, 613. Abstract of judgment as evidence of. 613. Scire facias to revive judgment, effect of docketing as con- structive notice, 613-614. Nature and object of scire facias to revive judgment, 613. Judgments against executors, administrators and trustees, 614. When such judgments are personal, 614. Method of determining whether personal, 614. As creating liens on decedent's real estate, 614. 1094 INDEX [References are to pages.] JUDGMENTS Cont'd. Claim of homestead against judgments, 614-615. When and to what part of homestead lien of judgment at- taches, priorities, 614-615. Where homestead accrues after judgment, 614. Homestead as suspending statute of limitations as to judg- ment, 615. Instruments having the force of judgments, 615. Delivery bonds, recognizances, necessity for docketing, 615. Death of debtor, 615. Occurring after service of process but before judgment, ef- fect on judgment or decree, 615. Priority of judgments inter se, 615-616. How determined as between judgment creditors, 615. Docketing as affecting, against whom required, 615-616. Where recovered at same time, 615-616. Where confessed at different times on same day in vacation, 616. As to after-acquired real estate, 616. One judgment as merging or destroying lien of another, 616. Partial release of lien by one judgment creditor, effect on his rights, 616. Lands subjected in inverse order of alienation, 616. Judgments of Federal courts, 616-618. How far liens on property in State of rendition, 616-617. When necessary to docket, and where docketed, 617-618. Judgments of Circuit Court of Appeals, 618. Virginia statute as to docketing, 618. Foreign judgments, 618. Extra-territorial effect, 618. As foundation of actions, 618. Judgment of old State, where new State cut from its ter- ritory, 618. Collateral attack, 619. Not permissible, what constitutes, 619. Common way of directly assailing, 619. Where judgment absolutely void, 619. Void judgments, 619. What are, collateral assault, 619. Judge disqualified by reason of interest, effect, 619. Satisfaction of judgments, 619-620. By principal debtor or surety, effect on lien in either case, 619-620. Limitation on suits for subrogation, 620. INDEX 1095 [References are to pages.] JUDGMENTS Cont'd. Satisfaction of judgments Cont'd. Marking satisfied on judgment docket, 620. Entry where more than one defendant, 620. When duty of clerk to mark satisfied, 620. When duty of judgment creditor, time, manner and pen- alty, 620. Proceedings by judgment debtor to obtain, 620. Order of liability of lands between different alienees, 620-622. Lands subjected in inverse order of alienation, 620-621 Provisions of Virginia statute, 620-621. Between alienees who are volunteers, 621. Between alienees for value and volunteers, 621. Real estate retained by debtor, 621. Several lots sold at same time or on same day, 621. ' Effect of conveyance at different times, 621. Effect of sale for value by volunteer, 621-622. Enforcement of judgments, 622-623. By fieri facias, 622. Against real estate, 622-623. Bill in equity, 622. When sale proper, 622. When rents and profits subjected, procedure, 622. Effect of death of judgment debtor on right, 622. Judgment not exceeding $20.00, notice necessary, 622- 623. Where right to issue execution or bring scirc facias or action barred, 623. Effect of against one of several joint wrongdoers, 19. Merger of, 92. By non sum informatits, what is, 261. Confessing, when and by whom done, 261, 292. Office judgment, 263-277. What is, 263. When entered, 263-266. Filing writing sued on in clerk's office, practice, 266. Effect of clerk's putting in wrong place on docket, 266-267. When becomes final, 266, 275-276. Special terms, 275. No endorsement of rules on papers, 275-276. Judgment in ejectment, 276. Setting aside, procedure in general, 275-276. Powers of court after judgment final, 276. Proceedings after judgment final, effect, 267, 276. By dilatory pleas, 276. 1096 INDEX [References are to pages.] JUDGMENTS Cont'd. Office judgment Cont'd. Setting aside, procedure in general Cont'd. By a general demurrer, 276. By agreement of counsel, 276. Waiver, 276. Compelling defendant to plead, 277. Election of defendant as to when he will plead, 277. Judgment by default on a scire facias or summons, when final, 277. What entered on issue of fact made by dilatory plea, 277-279. Sole issue one of fact and found for plaintiff, 278-279. What on a demurrer to a plea in abatement, 278. Signing judgment as by nil dicit, 873-874. Action by motion on decree of domestic chancery court, see Proceedings by Way of Motion. Against court receiver, effect of, and how payable, see Parties. Against married woman, effect of, see Parties. Against whom on motion for, see Proceedings by Way of Motion. As subject of accord and satisfaction, see Accord and Satisfaction. Assumpsit to enforce, see Assumpsit, Action of. Effect of against one joint tprtfeasor, see Parties. In Ejectment, see Ejectment. Pleading nil debet in action on, see Debt, Action of. Pleading nul tiel record in action on, see Debt, Action of. See Accord and Satisfaction, Appeal and Error, Attachments, Bank- ruptcy, Demurrer, Demurrer to Evidence, Election of Remedies, Executions, Homesteads, Justices of the Peace, Limitation of Ac- tions, Mechanics' Liens, Motions after Verdict, Process, Prohi- bition, Quo Wairranto, Replevin, Rules and Rule Days, Tender, Trover and Conversion, Verdicts. JURY Who are competent to serve as jurors, 470. Exemptions, 470. Qualifications of jurors, 470-471. Physical qualifications, 470-471. Prejudice, bias, interest or relationship, 471. Examining as to, 471. Selection of jurors, 471. Objections to jurors, 471-473. Time for 471-472. Mode of ascertaining disqualification, 472. Irregularities in drawing, etc., 472. INDEX 1097 [References are to pages.] JURY Cont'd. Challenges, 472-473. Classification of, 472. Grounds for challenging, 472-473. Interrogation as to qualifications, 473. Number of peremptory challenges, 473. Special juries, 473. How selected, 473. Oath of jurors, 473-474. Where issue joined, 473. Executing writ of inquiry, 473-474. Sworn to try issue where none, effect, 474. Trial by jury, 474-475. Constitutional provisions, 474-475. Number constituting jury, 475. Waiver of jury, 475. Custody and deliberations of the jury, 475-478. Keeping jury together, 475. Adjournment of jury, 475. Effect of misconduct during, 475. Carrying depositions and papers read in evidence from bar, 475-476. Disagreement of the jury, 476-477. Withdrawing a juror. 476-478. Adjourning jury from day to day, 476. Discharging the jury, 476-477, 478. Coercing verdict, 477. Right to discharge in case of accident or surprise, 477-478. Misconduct of jurors, 478. See Appeal and Error, Demurrer to Evidence, Dismissal and Non- suit, Instructions, Motions after Verdict, Verdicts. JUSTICES OF THE PEACE Civil powers of justices, 39-40. Acknowledgments, 39. Affidavits, 39. Small claims, 39-40. Scope of jurisdiction, 39. Compelling "sworn defense," 39. Removal of case, 39-40. Security on removal, 40. Trial on removal, 40. Principles governing trial on removal, 40. Correction of errors on removal, 40. Construction of statute, 40. 1098 INDEX [References are to pages.] JUSTICES OF THE PEACE Cont'd. Proceedings before a justice on small claims, 40-43. The warrant, its issuance, execution and return, 40. Time of trial, 40. Associating additional justices, 40-41. Entering up judgment, 41. New trial, 41. Stay of execution, 41. Appeals, 41-42. Time for, 41. Where to, 41-42. Jurisdictional amount for, 41. Security, 41. Costs, right to demand on, 41. Cattle-guard cases, 41. In case involving validity of city ordinance, where to, 41-42. How tried, 42. Execution, issuance, direction, service of, return and re- newal, 42. Endorsement on when case affirmed on appeal, 42. Distress warrant, 42-43. How issued, 42. Amount of, 42. Trial, 42. Defenses, 42-43. Civil bail, what is, and when required, 43. Attachments, 43, 683-684, 690-691. Against debtor removing effects out of State, 43, 683-684. Where returned, 43. Against tenant removing effects from leased premises, 43, 685. Claims of under twenty dollars, 43, 690-691. Unlawful detainer, jurisdiction in, 43-44. Garnishment on justice's judgments, 44. Of minor's wages for debt of parent, 44. Length of notice required in warrant against receiver, see Parties. See also Appeal and Error, Attachments, Ccrtiorari, Courts, Prohi- bition, Unlawful Entry and Detainer. LANDLORD AND TENANT Distress for rent, 4-15. Nature of, 4. At common law, 4. At present time, 4. Rent proper, what is, 4-5. INDEX 1099 [References are to pages.] LANDLORD AND TENANT Cont'd. Distress for rent Cont'd. How rent is recovered, 4. Rent must be reserved by contract, 5. Holding over, 5. Notice to terminate tenancy, 5-6. In what States remedy used, 6. Distress warrant, 6. Nature of, 6. Return of, 6. Interest on rent, 6. At common law, 6. In Virginia, 6. Limitation of time to distrain, 6. At common law, 6. In Virginia, 6. By whom distress warrant levied, 6-7. At common law, 6-7. In Virginia, 7. Issuance of distress warrant, by whom, 7. How warrant is obtained, 7. Method of its levy, 7. At common law, 7. In Virginia, 7. Irregularity or illegality in making distress, 7-8. Effect of at common law, 7. Effect of in Virginia, 7-8. Disposition of property levied on, 8. At common law, 8. In Virginia, 8. Delivery or forthcoming bond and proceedings thereon, 8-10. Nature and condition of bond, 8-9. Forfeiture and return, 9-10. Enforcement of penalty of bond, 9-10. Defenses, 9. When tenant unable to give bond, 10. When rent reserved in share of crop, 10. What property may be distrained, 11-12. At common law, 11. In Virginia, 11-12. Redress for illegal distress, 12. At common law, 12. By statute, 12. A year's rent under the Virginia statute, 12 14. 1100 INDEX [References are to pages.] LANDLORD AND TENANT Cont'd. Distress for rent Cont'd. Motion on delivery bond proof, 14-15. Effect of general covenants to repair, 15. ( At common law, 15. In Virginia, 15. Abatement of rent, 15. When apportioned, 15. When abated, 15. Estoppel of tenant to deny title, 940. Remedy against tenant holding over, see Unlawful Entry and Detainer. See also Attachments, Clerks of Courts, Ejectment, Interpleader, Justices of the Peace, Limitation of Actions, Replevin, Trespass. LIBEL AND SLANDER What words are slanderous or libelous, 248-249. Classification of words slanderous at common law, 248. What words slanderous per se, 248. When special damage necessary, 248. Insulting words under Virginia statute, 248-249. Application of statute, 249. Publication of words, necessity for, 249. What is a libel, 249. Parties, 249. Joinder of defendants in slander and in libel, 249. Joinder of plaintiffs in slander, 249. Partnership, 249. Slander of class of persons, 249. Corporations as defendants in slander and in libel, 249. Insane persons as defendants, 249. The declaration, 249-251. Allegations in when action for insulting words, 252. Joinder of common law and statutory slander, 249-250. Setting out exact words, 250. Words in foreign language, 250. The averment, meaning an^ application of term, 250-251. The colloquium, meaning and application of term, 250-251. The innuendo, meaning and application of term, 250-251. Demurrer to, 252. Malice, 251-252. Allegation and proof of, necessity for, 251. Use of term, 251. Thoughtlessly repeating a slander, 251. Article copied in newspaper, 251. INDEX 1101 [References are to pages.] LIBEL AND SLANDER Cont'd. Malice Cont'd. When express or actual malice must be shown, 251-252. Effect of privileged communication on proof, 251-252. Defences, 252-254. Justification, how pleaded, 253-254. When truth may not be shown, 254. Apology to plaintiff, 254. Good faith and absence of malice, 253. Bad general character of plaintiff, 253. Good character of defendant, 253. Privileged communications, 253-254. What are, 253. Necessity for good faith and relevancy, 253. Conduct of public officers, 253. Effect of showing, 253-254. Demurrer to evidence, 252. Effect of Virginia statute, 252. Waiver of benefit of statute, 252. General issue, 252-253. What is, and defenses provable under, 252-253. Special pleas, when necessary, 252-253. Justification, 252-254. To show truth of like slanderous words not pleaded, 254. Evidence, 254-255. Like slanderous words, when shown, 254. Time and place of speaking, 254. Proving words charged, equivalent words, 254. Bad general character of plaintiff, 253, 254-255. Good or bad character of defendant, 253. General good character of plaintiff, 255. Expressions of regret, 255. Apology by defendant, 254-255. Replication, 255. Form of memorandum in, 289. See Action on the Case, Demurrer, Process. LIBERUM TENEMENTUM, PLEA OF See Pleading (Rules of Pleading), and 932-934. LICENSES See Ejectment. LIENS See Attachments, Fraudulent Conveyances, Homesteads, Judgments, Limitation of Actions, Mechanics' Liens, Tender, Vendor and Purchaser. 1102 INDEX [References are to pages.] LIMITATION OF ACTIONS Historical, 377-378. At common law, 377-378. Statute as one of presumption or repose, 378. Liberal construction of statutes, 378. Nature, effect and validity of statute, 378-380. Exceptions to rule must be in statute, 378. Limitation of remedy, 378-379. Most usual limitation, 378-379. Power of legislature over, 378-379. Effect of repeal of statute after bar attached, 379. Limitation of right, 378-379. Defined, 379. Time as essence of right, pleading and proof, 350, 379, 406. Loss of right by non-assertion, 379. Adverse possession, 378-380. Object and effect of statutes, 380. As vested right, 380. Conventional limitations, 380. Validity of, 380. Validity of stipulation by carrier for claim of loss within specified time, 380. Parties affected, 380-381. In general, 380. The State, 380-381. County governments and municipalities, 380-381. Hospitals for the insane, 381. When suit brought by in another State, 381. When the statute begins to run, 381-395. In general, 381. (1) Demand paper, 381-382. General rule, 381-382. What instruments are payable on demand, 382. Paper payable after demand, 382. Paper payable at or after sight, 382. As against endorsers, 382. Where demand necessary before action, 382. When interest on begins, 382. (2) Bank deposits, 382-383. (3) Coupons, 383, 396. (4) Calls on stock, 383. Call by both company and court, 383. Call by court only, 383. On parol stock subscription, 383. .INDEX 1103 [References are to pages.] LIMITATION OF ACTIONS Cont'd. When the statute begins to run Cont'd. (5) Cloud on title, 383. (6) Covenant for general warranty, 383. (7) Death by wrongful act, 383-384. Statutes as giving new and independent cause of action, 383-384. In Virginia, 384. Where decedent survives injury more than year and day, 384. Decedent's right barred, effect on statutory action, 384. Under Federal Employers' Liability Act, 384. Statute as giving more than one cause of action, 384. Election between new action or revival of old one, 384. (8) Fraud and mistake, 384-386. Whether from commission of fraud or its discovery, 384- 386. Rule at law, 384-386. Rule in equity, 386. Effect of mere ignorance, 386. Mutual mistake, 385. Money paid under mistake of law, right to recover, 386. (9) Malicious abuse of civil process, 386. (10) Voluntary conveyances, 386-387. General rule, 386. In Virginia, 386. Procedure where debt not due, lien, 386. Where there is actual fraud, 386-387. Jurisdiction to set aside equitable, 387. Procedure in Federal court, lien, 387. (11) Accounts, 387-388. As depending on terms of sale, custom, 387. Store accounts, 387-388. Extending time by account rendered, 388. Necessity for writing of debtor or agent, 388. What is account stated, 388. Mutual accounts, nature of action, 388. (12) Debt acknowledged in a will, 388. (13) Judgments, 388-389. Lien of judgment in Virginia, how perpetuated. 388-389. Against judgment debtor who dies, 388-389. When execution deemed issued, 389. Suit on barred judgment, 389. 1104 INDEX . [References are to pages.] LIMITATION OF ACTIONS Cont'd. When the statute begins to run Cont'd. (14) Nuisance, 389. Where recurrent, 389. (Where permanent, 389. (15) Partners, 389-390. Actions between, 389-390. (16) Principal and surety, 390-391. General rule, 390. Limitation applicable, 390. Payment by surety before maturity, 390. Surety's notice to creditor to sue, 390. Relief of surety from liability, 390. Actions by endorser against principal, 390-391. (17) Co-sureties, 390-391. (18) Principal and agent, 391. Where agency general or continuing, 391. Where agency isolated or special, 391. As trust relationship, 391. (19) Attorney and client, 391-393. Right of attorney to plead statute, 391-392. General rule in the absence of fraud, 392. For money collected by attorney, 392-393. Duty to give notice to client, 392. Necessity for demand by client, 392-393. Damages for non-payment, 392-393. (20) Express trustees, executors, administrators, guardians, etc., 393. Actions on their bonds, 393. Personal actions, 393. When fiduciary has settled account, 393. (21) Tenant and co-tenant. 393. Where one tenant has paid more than his share of pur- chase money, 393. Necessity for ouster or its equivalent. 393. (22) Landlord and tenant, 394. (23) Vendor and purchaser, 394. (24) Assignor and assignee, 394. Where assignee defeated in suit against debtor, 394. Where assignee prevails in suit against debtor, 394. (25) Persons under disability, 394-395. Legislative power to omit saving clause as to, effect, 394. Married women, 394-395. . "Tacking" disabilities, 394-395. The Virginia statutes, 395. INDEX 1105 [References are to pages.] LIMITATION OF ACTIONS Cont'd. What limitation is applicable, 395-399. (1) Tort or contract, 395-396. Object not form of action governs, 395. Merely personal injuries, 395. Test of whether actions is for tort or contract, 395-396. (2) Cases on contract, 396. Election of one concurrent remedy, finality of, 396. Limitation as following remedy selected, 396. (3) Debt assumed by grantee in a deed, 396. (4) Coupons, 396. (5) Debt secured by mortgage, deed of trust or pledge, 397. Debt barred, right to enforce lien, 397. Giving security as renewal of debt, 397. Debt barred, enforcing against collateral security, 397. (6) Lien for purchase money, 397. General rule, 397. In Virginia, 397. When title retained as security, 397. Presumption after twenty years, 397. Corporation deeds of trust and mortgages, 397. (7) To recover damages for suing out an injunction, 397. (8) Principal and surety, 398. (9) Death by wrongful act, 398. (10) Proceedings in Federal courts, 398. (11) Unmatured debts, 398. Changes in statutes, which act governs, 398. Payment of debt contingent on payment of another debt, when matures, 398. (12) Foreign contracts, 398-399. (13) Foreign judgments, 399. What stops or suspends the running of the statute, 399-406. In general, 399. (1) Commencement of action, 399-401. What constitutes, 400. Date of writ, judicial notice of, 400-401. As evidence of time of issuance, 401. Motion to recover money, when action deemed com- menced, 171, 401. Effect of non-suit, 401. Dismissal for failure to file declaration, effect, 401. When suit abates or is defeated on ground not affecting . the right to recover, effect, 401-402. Time of issuance of alias or pluries summons as affecting bar of statute, 290-291. -70 1106 INDEX [References are to pages.] LIMITATION OF ACTIONS Cont'd. What stops or suspends the funning of the statute Cont'd. (2) Amendment of pleadings, 402. When no new cause of action or claim made by, 402. When new cause of action or claim is introduced, 402. When larger damages are claimed by, 402. When new parties are introduced by, 402. (3) Removal from state, 402-403. In general, 402-403. Before accrual of right of action or occurrence of trans- action involving liability, 403. Temporary absence of resident defendant, 403. "Continuing to reside without the state," 403. Effect of death before accrual of right of action, 403. (4) Infancy, coverture or insanity, 403-404. (5) Death, 404-405. In the absence of statute, 404. In Virginia, 404-405. Time excluded from computation, 404. Limitation of actions against decedent's estate, 404. Savings in favor of personal representatives, 404-405. Of judgment debtor, effect on time to enforce lien, 405. (6) The stay-law period in Virginia, 404. (7) Inability to serve process, 405. In equity, creditors bill or account of liens, 406. How defence of statute is made, 406-410. At law, 406-409. Methods in general, 406. (1) By demurrer, 406. When proper, 190, 350, 379, 406. (2) By special plea, 406-407. Why this is the usual method, 406. Form of plea, 407. (3) Shown under the general issue, 407-408. In ejectment and detinue, 407. Reasons for rule, 407-408. (4) By instructions, 408-409. When permissible, 408. Reason for rule in case of set-offs where list filed, 408. Procedure, 408-409. In equity, 409. When limitation is of the remedy only, 409. When limitation is of the right, 409. In code states, 409. Matters of avoidance, 410. INDEX 1107 [References are to pages.] LIMITATION OF ACTIONS Cont'd. Who may plead the statute, 410-411. The statute as a personal defense, waiver, 407, 410-411. Right of one creditor to plead against another, 410-411. Sureties, effect of plea by one, 411. Fiduciaries, duty to plead, 411. Privies in estate, 411. Strangers to a claim, 411. New promise or acknowledgment, 411-417. In general, 411-412. Antecedent debt as good consideration for, 412. The Virginia statute concerning, 412. Effect of new promise, 412-413. As fixing new period from which statute shall run, 412. Limitation as fixed by new or old promise, 412. In keeping liens alive, 412. Giving security as reviving personal liability, 412. Effect of part payment of principal or paying interest, 412. Limited to part of debt, 412-413. New security to pay debt or part thereof, effect, 412-413. Nature of promise or acknowledgment, 413-415. Essential requirements, 413-415. No application to torts, 414. Undelivered writing, 414. Provisions in wills, 415. By whom promise should be made, 415-416. (1) By debtor or agent, 415. Rights of insolvent debtor, 415. (2) By partners after dissolution, 415. (3) By personal representative, 416. To whom promise should be made, 416-417. When new promise should be made, 417. i Waiver and estoppel, 417-424. Validity of agreements not to plead statute, 417-424. As an estoppel in pais, 417. When to allow plea would operate as fraud, 417. Delay caused by fraudulent representations or conceal- ment, 417-418. Estoppel by conduct, duration of estoppel, 418. Promise not made until after bar has fallen, 418. Promise contemporaneous with original agreement and part thereof, 418-424. Reason of rule holding such promise valid, 419-420. 1108 INDEX [References are to pages.] LIMITATION OF ACTIONS Cont'd. Waiver and estoppel Cont'd. Validity of agreements not to plead statute Cont'd. Virginia doctrine, 420-423. "Promise to settle" as waiver, 420-421. Promise not to plead "after a fair settlement," 421. Promise suspending statute, 421-422. Promise to settle and pay balance found due, 422-423. Agreements to waive or not plead statute, 422, 423. When to allow plea would operate as fraud, 423. Stipulation that statute shall never run against debt, 419, 423-424. Reasons for holding such stipulation valid, 423-424. When waiver should be in writing, 424. Burden of proof, 424. Appeal and error, 424. Pleading statute in bar of appeal or writ or error, 424. Motion to dismiss as substitute for plea, 424. Dismissal by court ex mero motu, 424. Form of plea of in assumpsit and of replication thereto, 847-848. When limitations cease to run in proceedings by motion, see Proceedings by Way of Motion. See also Demurrer, Ejectment, Judgments, Mechanics' Liens, Proc- ess, Set-Off and Counterclaim, Unlawful Entry and Detainer. LIS PENDENS See Attachments. LOST INSTRUMENTS Loss or destruction of notes or bonds, effect on right to sue, 590-593. In cases of destruction, 590. In cases of loss, 590-593. Sealed instruments, 591. At common law, 591. Rule in equity, 591. In Virginia, 591. Negotiable paper, 591-592. General rule, 591-592. Effect of bar of limitation, 591-592. Non-negotiable paper, 592. Summary of the law, 592. Present state of the law in Virginia, 593. The Virginia statute and its effect, 593. INDEX 1109 [References are to pages.] MALICIOUS PROSECUTION Form and essentials of the action, 233. Case proper form, 233. What necessary to allege and prove, 233. Difference between and false imprisonment, 233. Parties, 234. Joint and several liability, 234. Real prosecutor, liability, evidence, 234. Principals' liability for act of agent, 234. Actual damages, 234. Exemplary damages, 234. Knowledge as affecting damages, 234. Full delegation of authority, 234. Ratification and repudiation, 234. Corporations, liability for agents' prosecutions, 234. Termination of prosecution, 234-235. Form of immaterial, 234. When prosecution cannot be re-instated, 234-235. Where new proceeding may be brought, 234-235. Search warrant, failure to find goods, 235. Procuring search warrant as, 235. Effect of conviction, 235. General rule, 235. When plaintiff has had no opportunity to be heard, 235. When obtained by fraud or perjury, 235. Guilt of plaintiff, 235-236. Conclusive against him, 235-236. Acquittal does not prevent its being shown, 236. Probable cause, 236-238. Defined, 236. Questions for court and jury, practice, 236. Test of, time of application, 236. Conviction reversed on appeal as conclusive or prima facie evidence of, 236-237. Advice of counsel as proof of, 237-238. Ground of admission of this defense, 237. Full disclosure and good faith required, 237. Duty as to investigating facts, 237-238. Qualifications of attorney, bias, prejudice, 238. Must concur with malice, 238. Want of not inferred from malice, 238-239. Burden of proof, 239. Malice, 238-239. Questions for court and jury, 238. Defined, 238. 1110 INDEX [References are to pages.] MALICIOUS PROSECUTION Cont'd. Malice Cont'd. Must concur with want of probable cause, 238. Inferred from want of probable cause, 238-239. Burden of proof, 239. Evidence, 239. Plaintiff's previous good reputation, 239. Accuser's ill-will or bad faith, 239. Plaintiff's bad reputation, 239. Facts showing defendant's good faith, 239. Defendant's wealth, grounds of admission, 239-240. Damages, 239-240. Measure of, considerations influencing, 239. Punitive, when allowed, evidence, 239-240. General rule, 239. Special, what are, allegation and proof of, 240. Civil malicious prosecution, 240. General rule, 240. Civil actions injurious to property rights, 240. Malicious abuse of process, 240. Rules applicable to, 240. See Attachments, False Imprisonment, Limitation of Actions. MANDAMUS As remedial writ requiring performance of non-discretionary act, 775. Writ denied where it would be fruitless or unavailing, 775. When writ formerly denied may be subsequently granted, 775- 776. Where party has another clear and adequate legal remedy, 776. What is an adequate remedy which will bar mandamus, 776. Function of the writ, 776. When lies for relief of surety, 776. To trial court to enforce performance of decree of appellate court, 776. To compel judge to sign bill of exception, 776-777. Where judge has forgotten facts, procedure, 777. Procedure to obtain the writ, 777-778. Procedure at common law, 777. Procedure under Virginia statute, 777-778. Sworn petition, contents and conclusion of, 777. Notice to the opposite party, 777. Where no defense peremptory writ, 777-778. How defense made, 778. Trial of issues of fact, 778. INDEX 1111 [References are to pages.] MANDAMUS Cont'd. Procedure to obtain the writ Cont'd. Procedure under Virginia statute Cont'd. Costs, 778. When judge may grant in vacation, 778. From court of appeals, procedure, use of depositions, 778. See Appeal and Error, Bills of Exception, Courts, Executions, Pro- hibition. MARRIED WOMEN See Husband and Wife. MARSHALING ASSETS AND SECURITIES See Executors and Administrators, Homesteads. MASTER AND SERVANT Virginia Employers' Liability Law, 70. To whom applicable, 70. Effect of, 70. Federal Employers' Liability Act, 70. To whom applicable, 70. Effect of, 70. See Death, Parties. MECHANICS' LIENS Origin and development of the lien, 811-812. A creation of statute, 811. Reasons leading to legal provisions for, 811-812. Universality of remedy, 811-812. Rules of construction of statutes allowing, 812-813. Who may take out a mechanics' lien, 813-814. Persons entitled in general, 813. Architects, 813. Election of remedies, choice as binding, 813. Who is a "general contractor," 813-814. Rights of assignee, 814. On what the lien may be taken out, 814-817. In general, 814. On land with house, 814-815. Effect of destruction of house, 814-815. Small lot in a town, 815. Where lumber sold on general account, 815. Lien specific and follows the contract, 815-816. Railroads and their franchises, procedure, 816. Churches, 817. 1112 INDEX [References are to pages.] MECHANICS' LIENS Cont'd. On what the lien may not be taken out, 816-817. Unauthorized improvements, 817. Interest of owner as limiting lien, 817. Insurable interest of lienholder, right of subrogation to owner's insurance, 815. Recordation of lien on property outside city limits, 816. How lien of general contractor is perfected, 817-821. The Virginia statute, 817-818. The account, 817-819. Where filed, 817-818. Recordation and indexing, 818. Effect of filing as notice, 818. Omission of prices charged for items, effect, 818-819. When statement of gross sum sufficient, 819. Statement of payments and credits, 819. Form of verification, 819. Description of the property, 818, 819. Statement of intention to claim- lien, 818. Form of, and of account and affidavit, 819. When claim of lien to be filed, 819-821. Effect of filing too soon or too late, 819-820. Time estimated from date of substantial completion, 820- 821. Putting on "finishing touches," 820-821. Agreements as to when work deemed completed, 820-821. When running account considered due, 821. Effect of omission of any statutory provision, 821. Remedies of sub-contractor, 821-824. Independent lien, 821-822. Following procedure required of general contractor, 821. Notice to owner, its contents and form, 821, 822. As limited by amount due general contractor by owner, 821-822. When notice must be given to general contractor, 821- 822. Limitation on amount of lien of sub sub-contractor, 822. On extra work not covered by original contract, 822. Liability of owner who fails to retain a percentage, 822. Personal liability of the owner, 822-824. Notice to owner, its form and contents, 822-823. When notice may be given, 822-823. Verified account, when and to whom furnished, 823. Contents of account, 823. INDEX 1113 [References are to pages.] MECHANICS' LIENS Cont'd. Remedies of sub-contractor Confd. Personal liability of the owner Cont'd. Extent of owner's liability when statute followed, 823. Preference of sub-contractor over other lienholders, 823- 824. When owner allowed to deduct amounts for which he has become responsible, 824. Settling disputed accounts between general and sub-con- tractors, 824. Benefit of general contractor's lien, 824. Written notice to owner, time for giving, contents, 824. Who is a "sub-contractor," 824. Protection of sub-contractor against assignments and garnish- ments, 825-826. His preference over assignees of general contractor, 825. Where he gives written consent to assignment, 825. Owner pays assignees at his peril, 825-826. His preference over garnishments against general con- tractor, 825. Mechanics' lien record, 826. Duty of clerk to keep, 826. Recording and indexing claims of liens in, 826. Difference between recordation of mechanics' and supply liens, 826. Filing of claim of lien as notice though claim not recorded, 818, 826. Conflicting liens, 826-827. Difficulty of questions involved, 826. Mechanics' lien limited to interest of owner in land, 826. Lien on land created before works begun or materials fur- nished, 826-827. How far preferred in distribution of proceeds of sale, 827. Lien on land created after work begun or materials furnished, 827. Priority of mechanics' lien to, 827. Proceedings to enforce mechanics' liens, 828-831. Equity jurisdiction, 828. Priorities among lienholders, 828. Coming into suit by petition, 828. Statute of limitations, 828-829. Within what time suit must be instituted, 828. When petition regarded as institution of suit, 828. As limitation of right and not of remedy, 828. What bill must show, demurrer, 828. When allegations in bill deemed sufficient, 828. 1114 INDEX [References are to pages.] MECHANICS' LIENS Cont'd. Proceedings to enforce mechanics' liens Cont'd. Statute of limitations Cont'd. Effect on as to others of suit by sub-contractor, 828. Operation as suspension of further suits, 828. When subsequent lienors may be impleaded, 828-829. Right of one creditor to plead against another, 829. When court of equity will grant complete relief, 829. Proceedings at law, essential allegations of pleadings, 829. Sale of property, terms of sale, 830. Rental of property, 830. In what cases personal decrees may be entered, 830-831. How a mechanics' lien may be waived or lost, 831-833. By not bringing suit within six months, 831-833. Where debt payable in instalments, 832. By agreement, 831. By estoppel, 831. By the contractor's abandoning the contract, 831. By destruction of the building, 831. By taking security, 831-833. As dependent on intention of parties, 831, 833. Personal judgment against party liable, 831. Taking debtor's negotiable note, 831-832. Date of maturity as affecting question, 831-832. MEMORANDUM FOR ACTION See Process. MONEY LENT Proceedings for recovery, see Assumpsit, Action of. MONEY PAID Proceedings for recovery, see Assumpsit, Action of. MONEY RECEIVED Proceedings for recovery, see Assumpsit, Action of. MORTGAGES See Ejectment, Executions, Homesteads, Limitation of Actions. MOTIONS See Motions after Verdict, Proceedings by Way of Motion. MOTIONS AFTER VERDICT Classification of principal motions, 558. INDEX 1115 [References are to pages.] MOTIONS AFTER VERDICT Cont'd. Motion for a new trial, 558-569. Statutory provisions, 558. Time for making, 558-559. Discretion of trial court, review, 559. Error or misconduct of the judge, 559-560. As to instructions or evidence, 559. Time for objection, review, 559. Right of judge to set aside verdict sua sponte, 559. Necessity for motion for new trial before appeal, 559- 560. Correct verdict on erroneous instructions, 560. Verdict in accord with instructions not objected to, 560. Misconduct of judge, what is, effect, 560. Error or misconduct of the jury, 560-563. Damages too large or too small, 560. Chance verdicts, 560. What constitutes misconduct, 560-561. Time for objection, waiver, 560. Impeachment of verdict by jurors, 561-563. Tendency of the courts as to allowing, 561. Necessity for allowing in some cases, 561. Matters resting in personal consciousness of one juror, motives, 561-563. Where misconduct evidenced by overt acts, 561-563. Matters outside the jury room, 562-563. Misconduct of counsel, what constitutes, effect, 563. Misconduct of parties, 563-564. What constitutes, 563. After verdict, effect, 563-564. Misconduct of third persons, 564. Demonstrations in court room, 564. After-discovered evidence, 564-565. What is, 564. Evidence discovered pending trial as, 564. Location of witness discovered subsequent to trial, 564- 565. Essential requirements as to, 565. Exceptional cases. 565. What evidence is cumulative, 565. Verdict contrary to the evidence, 565-568. New trial refused, right of appeal, 565-566. In England and United States courts, 565-566. In Virginia, rule of decision in appellate court, 566- 567. 1116 INDEX [References are to pages.] MOTIONS AFTER VERDICT Cont'd. Motion for a new trial Cont'd. Verdict contrary to the evidence Cont'd. New trial refused, right of appeal Cont'd. In West Virginia, rule of decision in appellate court, 568. Rule of decision, conflicting evidence, 567. Issues out of chancery, 567-568. Accident and surprise, 568. Essential facts necessary to warrant new trial for, 568. How courts look upon motions for such cause, 568. Damages excessive or too small, 569. Number of new trials Conditions, 569-571. Statutory rule in Virginia and West Virginia, 569-570. Where verdict is void on its face, 569. Costs, 569-571. Who to pay, 569-571. When to be paid, 569-570. Waiver of right as to, 570. In what court, 570. Arrest of judgment, 571-573. When motion lies, how, when and where made, 571. As concurrent remedy with writ of error, 571. Statute of jeofails, errors cured by, 571. Uniting tort and contract, 571. When error not deemed apparent on record, 572. Motion by party not injured, 572. Correcting record on such motion, 572-573. Verdict uncertain, venire facias de novo, 572. Material error in pleadings, repleader, 572. Where plaintiff cannot succeed, judgment non obstante veredicto, 572-573. Judgment non obstante veredicto, 573-574. When proper, 573. Reasons for entering, 573. When plaintiff should take, though verdict in his favor, 573. By whom motion for made, 573-574. Where plea by way of traverse, 574. Error of record, necessity for, 574. Repleader, 574-575. When motion for proper, 574-575. Procedure when awarded, 575. Where decision must have been the same even on proper plea, 575. How differs from judgment non obstante veredicto, 575. INDEX 1117 [References are to pages.] MOTIONS AFTER VERDICT Cont'd. Venire facias de novo, 575-576. When proper, discretion of court, 575-576. Effect of award of, 575. Differences between and motion for a new trial, 575-576. In what cases a venire de novo can occur, 576. MUNICIPAL CORPORATIONS Appeals involving validity of by-laws or ordinances, where cog- nizable, s.ee Courts. Recovery of possession of streets, see Ejectment. See also Attachments, Executions, Limitation of Actions, Process NAMES Misnomer in pleading, see Pleading (Rules of Pleading}, 925-927 Jurisdiction of courts to change, see Courts. See also Pleading, Process. NEGLIGENCE Not necessary to negative contributory in pleading, 951. See Demurrer, Pleading. NEWSPAPERS See Libel and Slander. NEW TRIAL Second trial, 602-603. Verdict for plaintiff set aside on first trial, 602-603. Bill of exception, necessity for and essentials of, 602 Courses open to plaintiff on second trial, 602-603. Entering into trial on merits, 602-603. Allowing verdict for defendant, procedure, 603. Appeal and error, which trial first reviewed, 603. See Appeal and Error, Bills of Exception, Costs, Motions after Ver- dict. NON-SUIT See Dismissal and Xonsuit. NOTARIES See Attachments. NUISANCE What is, 2. Abatement of, 2. Defined, 2. Method of, 2. As method of redress, see Remedies. See also Limitation of Actions. 1118 INDEX [References are to pages.] OATH See Arbitration and Award, Attachments, Interpleader, Jury, Plead- ing. OFFICE JUDGMENT See Judgments. OFFICERS. Distress for taxes and officer's fee bills, see Distress. See also Attachments. OPENING STATEMENT OF COUNSEL See Trial. PARENT AND CHILD Subjecting wages of minor for debts of his parents, 809. See Justices of the Peace, Exemptions. PARTIES Proper parties to action ex contractu generally, 49-51. General principle, 49. In contracts not under seal, 49-50. In contracts under seal, deed inter paries, 50-51. At common-law, right of beneficiary to sue, 50-51. In Virginia, right of beneficiary to sue, 50-51. In contracts under seal,, deed poll, 50-51. At common law, right of beneficiary to sue, 50-51. In Virginia, right of beneficiary to sue, 50-51. Parties must always be living parties, 51. Survival of actions, 51. Revival of actions, 51. Death of sole party, 51. Joint and several contractors, 51-54. Defined, 51. General rule as to parties, 51-52. No action against intermediate number, 52. Exception negotiable instruments, 52. Exception proceedings by motion, 52. Judgment as bar, 54. Joint contractors, 51-54. Defined, 51. Survivorship, 52. At common-law, 52. In Virginia, 52. Sued jointly as general rule, 52, 54. Exception proceedings by motion, 52. Exception negotiable instruments, 52-53. INDEX 1119 [References are to pages.] PARTIES Cont'd. Joint contractors Cont'd. Judgment against one as bar as to others, 52-53. At common-law, 53. In Virginia, 53. Discontinuance as to one after service of process, ef- fect, 53-54. Personal defense of one as reason for non-joinder, 54. Infant joint contractor, failure to join, effect, 54. Plea in abatement for non-joinder, essentials of, 54. Proper parties to actions ex delicto generally, 55-56. General rule as to plaintiff, legal right, 55. Possession of one with equitable right invaded by wrong- doer, 55. General rule as to defendants, 55. Infants, 55. Corporations, 55. Defendant, invoking title as defense, requisites, 55. Joint tortfeasors, 55-56. Joint and several liability of, 55-56. Effect, as bar, of unsatisfied judgment against one, 56. In England and Virginia, 56. General rule, 56. Assignees of contracts, 56-58. Right of assignee to sue in .own name, 56-58. At common-law, 56. In Virginia, 56. Holder of negotiable paper, right to sue, 56-57. Allowance of discounts, 57. Open account, assignability of, 57. Beneficial owner of, right to sue in own name, 57. Option of assignee as to form of action, 57. Pleading, 57. Setting forth assignment, 57. Endorsements as to real party in interest, 57. Amendment of declaration, 57. Costs, against beneficial or nominal plaintiff, 57. Form of assignment, 57. Consideration for assignment, 57. Assignor, interference with action by, 57-58. Partial assignments, validity and effect, 58. Virginia statute as creating new cause of action, 58. Rights accruing before assignment, right of assignee to en- force, 58. Voluntary conveyance, right of assignee of debt to avoid, 58. 1120 INDEX [References are to pages.] PARTIES Con t'd. Assignees of rights of action for torts, 58-59. What torts are assignable, 58-59. Purely personal torts, 58-59. Injuries to property, or breach of contract, 59. Survival of tort actions, 59. Personal tort, method of determining what is, 58-59. Form of action as determining, 58-59. Special damages as determining, 59. Joint tortfeasors, 59-61. Joint and several liability of, 59. Negligent injuries, what constitutes joint liability for, 59-60. Conflict in authorities, 59. Indivisible injury by independent acts, 59. Indivisible injury but no common duty, etc., 59. Successive negligent acts of carriers, 59. Nuisances, rule as to, 59-60. Master and servant, 60-61. Joint liability for servant's negligence, 60. Judgment in favor of one as bar for others, 60. Where defense was personal, 60. Where defense equally applicable to all, 60. Verdict when all sued, joint, 60. Damages, power of jury to apportion, 60. Dismissal of action against one, after verdict, 60-61. Actions by and against court receivers, 61-63. Actions by them, 61-63. Right to sue without authority from court, 61. Right to sue in courts of foreign jurisdiction, 63. Ancillary receiver, appointment, when proper, 63. Actions against them, 61-62. Necessity for leave of court, general rule, 61. Rule in Virginia, 61-62. Rule in United States courts, 61-62. Distinction between Va. and U. S. rule, 61-62. Basis of actions against, 62. Receiver's acts, 62. Principal's acts before receiver's appointment, 62. Acts of predecessor in office of receiver, 62. Identification of receiver with office, 62. Judgment against, how payable, 62-63. Judgment against, effect of, 62-63. Pleadings, right to sue or be sued must appear in, 61. Contempt, suing receiver without leave as, 61. Execution on judgment against, 61. INDEX 1121 [References are to pages.] PARTIES Cont'd. Actions by and against court receivers Cont'd. How process or notice served on, 61-62. Justice of the peace, length of notice before trial by, 62. Partnership, 63-65. How partners sue and are sued, 63-65. In general, 63. When firm has been dissolved, 63. Dormant and special parties as plaintiffs, 63-64. Dormant and special parties as defendants, 63-64. Survival of action for and against, 64. Form of writ and declaration where one dead, 64. Change in firm after action accrued, effect of, 64. Suing in firm name, effect of, 64. Objection after judgment, 64. Appearance to merits, validity of judgment, 64 Judgment, collateral attack, 64. Rule in West Virginia, before justice, 65. Being sued in firm name, effect of, 64. Appearance and no objection, 64. Omission of one as plaintiff, effect of, 64. How objection taken, 64-65. Omission of one as defendant, effect of, 65. How objection taken, 65. Reason of the rule, 65. Suit by one against another, or others, 65. Dissolution, power after of one to employ attorney for firm, 65. Appearance by such attorney', effect of, 65. Executors and administrators, 65-66. How they sue and are sued, 65-66. On contracts of the decedent, 65. On contracts with representative himself, 65. Co-executors or administrators, joinder, 65-66. Survivorship, 66. Foreign, right of to sue in another jurisdiction, 66. Ancillary letters in such cases, 66. Objection, how and when made, 66. Corporations, 66. How 4:hey sue and are sued, 66. Infants. 66. How they sue, 66. How they are sued, 66. Guardian ad litem, appointment and character, 66. Service of process on, necessity for, 66. 71 1122 INDEX [References are to pages.] PARTIES Cont'd. Insane Persons, 66-67." Actions by, 66. Before adjudication, 66. After adjudication, 66. Actions against, 66-67. When there is no committee, 66-67. After committee's appointment, 67. When insane person not necessary party, 67. Guardian ad litem, appointed when, 67. Where there is a committee, 67. Past expenses, right of action of State hospital against es- tate for, 67. Action against State or State hospital for negligent in- juries to, 67. Married women, 67-68. How they sue and are sued in Virginia, 67-68. Next friend, surplusage, 67. Responsibility of husband for, 67. Judgment against, effect of, 67-68. How they defend action, 68. Right of husband to wife's services, 68. Injury to, as giving rise to two causes of action, 68. Unincorporated associations, 68. How they sue and are sued, 68. Death by wrongful act, 68-70. Right of representative of non-resident alien to sue for, 68. Undisclosed principal, 70-71. Suits by and against in own name, 70-71. Third party, rights of when sued by, 71. Suits by and against the agent, 71. Damages, measure of, 71. Convicts, 71-72. Suits by and against at common law, 71-72. Residence of, and service of process on, 71-72. Suits by and against in Virginia, 72. Residence of, and service of process on, 72. Official and statutory bonds, 72-73. Who may maintain action on, 72-73. Change of parties, 73-74. Causes of change, 73. Between verdict and judgment, effect of, 73. Several plaintiffs or defendants, survivorship, 73. When action must be revived, 73. INDEX 1123 [References are to pages.] PARTIES Cont'd. Change of parties Cont'd. How action revived, 73-74. Scire facias, 73. Motion, 73. Powers of defendant ceasing, effect of, 73-74. Suggestion of on record, 74. Effect of discontinuance, 74. Misjoinder and non-joinder of parties, 74-76. Defined, 74. Mode of taking objection at common law, 74-76. Actions ex-contractu, 74-75. Too many or too few plaintiffs, 74-75. Too many or too few defendants, 75. Actions ex delicto, 75-76. Too many or too few plaintiffs, 75. Too many or too few defendants, 75-76. Non-joinder of defendants in detinue, effect of, 76. Effect of non-joinder in Virginia, 76. Effect of misjoinder in Virginia, 75, 76. See Abatement and Revival, Continuance, Covenant, Action of, Death, Detinue, Ejectment, Interpleader, Libel and Slander, Limi- tation of Actions, Malicious Prosecution, Master and Servant, Me- chanics' Liens, Prohibition, Replevin. PARTNERSHIP Implied authority to employ attorney after dissolution, 293. Affidavit denying, when filed with nil debet, see Debt, Action of. Validity of submission to arbitration by one partner of firm mat- ters, see Arbitration and Award. See also Attachments, Executions, Homesteads, Libel and Slander. Limitation of Actions, Parties, Set-Off and Counterclaim. PAYMENT What constitutes payment, 425-430. Definition of payment, 425. By or to whom made in general, 425. Payment by volunteer, effect, 425-427. Part payment, or compromise, effect of, 427-428. Medium of payment, 428-429. Counterfeit money, checks, etc., 428-429. Note of debtor or third person as payment, 428-429. Set-off as payment, 429. Payment by mail, 429. Voluntary payments, effect, presumptions, 429-430. 1124 INDEX [References are to pages.] PAYMENT Cont'd. Application of payments, 430-431. Who makes, parties or court, 430-431. Secured and unsecured claims, 430-431. Partial payments, computation of interest, 431. Running account, 431. Plea of payment, 431-434. When special plea necessary, 432-433. When general issue sufficient, 432-433. Account of payments, 432-433. Form of the plea, 433. Burden of proof, and right to open and conclude case, 433. Plea of part payment, discontinuance, 433. Code States, how defense made, 434. Payment and set-off distinguished, 434. Showing under nil debet, see Debt, Action of. See also Executions, Limitation of Actions, Mechanics' Liens, Trover and Conversion. PERJURY See Malicious Prosecution. PLEADING Defined, 336. Pleadings speak as of date of writ, 98. Laying venue in, or averring jurisdiction, 287. Alleging matters not traversable, 287. Difference between formal and substantial averments, 345-346. Declaration, essentials of, test of sufficiency, 346. General statements, and general averments of negligence in, 346. Negativing contributory negligence in, 347. Duplicity in, effect, how availed of, 335. How exemption from service of process plead, 295. Repleader, when awarded, 357. Bill of particulars, 599-602. The Virginia statute, 599. Object of the statute, 599-600. Multiplicity of particulars, 599-600. As limiting scope and operation of general issue, 600. When pleadings sufficiently definite, 600-601. Requiring more specific statement, 600. Right of defendant who fails to file to introduce evidence, 600, 602. Limitation of scope of evidence in such case, 600. INDEX 1125 [References are to pages.] PLEADING Cont'd. Bill of particulars Cont'd. As part of declaration or plea, demurrer, 600. In what cases required, 600-601. Discretion of trial court, review, 600-601. Details of evidence, 601. Elements of damages, 601. Ejectment cases, 601. Requirement of defendant to file, time for objections, 601. Requiring plaintiff to file, 601. Formality of the bill, 601-602. Informal nature of, 601. Requiring sufficient statement, exclusion of evidence, 601- 602. When sufficient in form, 602. Insufficient bill, 602. Remedy of other party, 602. Time for objection, 602. Bill of exception, when necessary, 602. In Federal courts, the Conformity Act, 267. What pleas must be verified by affidavit, 269. Dilatory pleas and time of filing, 268-274. Classification of pleas in general, 268. Kinds of dilatory pleas, 268. Kinds of peremptory pleas, 268. Failure to plead pleas in due order, effect, 269. Must be sworn to, 269. Strict construction, formal errors, special demurrer, 269. To the jurisdiction, use of, how pleaded, 258, 269, 271. When pleaded in proper person and when by attorney i 269- 270. Corporations, 269-270. In suspension, nature and use of, 270. For variance between writ and declaration, amendments, 257, 270, 349. For misnomer, 257, 270. For non-joinder of co-defendant, necessary allegations, 258, 270-271. Giving plaintiff a better writ, 271. General rule, 271. When plea is to the jurisdiction, 271. Waiver of defects, 271-272. Appearance to the merits, what is general appearance, 271-272. Special appearance, 271-272. 1126 INDEX [References are to pages.] PLEADING Cont'd. Dilatory pleas and time of filing Cont'd. Objections other than by dilatory pleas, 272-273. Where process void, by motion or by court ex officio, 272, 327. Where process not served, special appearance to dismiss action, 272-273, 327. Time of filing, 258, 273. After rule to plead, procedure, 273-274. Kinds of peremptory pleas, 268. Pleas in bar, 328-336. What are, other names for, 328. Distinguished from other pleas, 328. Different kinds of, 268, 328-332. Traverse or denial, 328-329. (1) The common traverse, nature and rarity of, 328. (2) The special traverse, 328-329. Other names for, 328. Obsolete, 328-329. (3) The general traverse or the general issue, 328- 329. Occurs only in plea, 329. Nature of, 329. Why called "general issue," 329. Confession and avoidance, 328. Special pleas, 329-332. What are, 329. What is meant by pleading specially, 329. Of matters amounting to the general issue, rule, 329. Reason of rule, 331. Of matters provable under the general issue, rule, 329. What special pleas amount to general issue, tests, 329- 330. Distinction between amounting to and being provable under general issue, 330. General rules as to what may be specially pleaded, 329-330, 330-331. Amounting to general issue, allowing, effect, 330-331. As narrowing defense permissible, 331. Discretion of court in allowing, review, 331. How regarded by courts, 331. When required to be sworn to, 269, 331-332. Number of pleas allowed, 332-334. At common law, 332. In England by statute, 332. INDEX 1127 [References are to pages.] PLEADING-Con/U Pleas in bar Cont'd. Number of pleas allowed Cont'd. In Virginia, 332. In West Virginia, 333-334. Differences between English and Virginia statutes, 332- 333. Inconsistent pleas, 333. Rule as to replication and subsequent pleadings, 333-334. How objection made, 334. No objection, waiver, 334. Differences between Virginia and West Virginia stat- utes, 333-334. Duplicity, 334-336. In pleas, defined, 334. Rule as to, 334. How objection for made at common law, 334. Present day mode of objecting to, 335, 350. To double plea in abatement, 334-335. Rule in West Virginia, 335. What is not, 335. Time for objection, waiver, 336. For discussion of traverses in general, see Rules of Plead- ing, infra, and pp. 847-870. For discussion of nature and effect of general issue, see Rules of Pleading, infra, and pp. 848-854. 899-900, 1016- 1018. For general discussion of duplicity, see Rules of Pleading. infra, and pp. 892-908. Distinct answers to same claim, see Rules of Pleading, infra, and pp. 903-909. Pleas amounting to general issue, see Rules of Pleading. infra, and pp. 992-994. Pleas puis darrein continuance, 578-580. At common law, 578-579. Right to plead matters puis darrein continuance, 579. Substitutional nature of such plea, 579. Discretion of court as to receiving plea, 579. Essentials and nature of plea, 579. What pleas are technically pleas puis darrein continuance, 579. Pleas to the further maintenance of the suit distinguished. 579-580. Right to plead additional pleas not substitutionally, 580. Whether substitutional or not at present time, 580. In abatement, time for pleading, 580. No plea by tltis name. 580. 1128 INDEX [References are to pages.] PLEADING Cont'd. Profert and oyer, 581-584. Making profert, in what cases formerly necessary, 581. No necessity for profert in Virginia and West Virginia, 581. Filing instrument with declaration as substitute for profert, 581-582. Manner of craving oyer of such instrument, time for, 581-582. Failure to file, notice to produce, 582, 584. Craving oyer as making instrument part of record, 581-582. Methods of defense when oyer craved, 582-583. Craving oyer and demurring, 582. Craving oyer and pleading in abatement, 582-583. Not proper in case of misnomer of party, 583. Craving oyer and pleading, 583. Debt on bond with collateral condition, 583-584. Modes of suing on, 583-584. Craving oyer and pleading, 583. Craving oyer unnecessary when, 583. Craving oyer and demurring, 584. Sealed instrument misdescribed, how error availed of, 584. Instrument not sealed, or not declared on as sealed, 584. Failure to make profert as ground for demurrer, 584. See also Rules of Pleading, infra, and pp. 1003-1005. Variance, 584-587. Must be material, 584-585. What variance is material, 585. Objection for, how and when made, 585. Methods of avoiding effect of variance, 585-587. Amendment of pleadings, 585-587. Discretion of court as to, 586. Liberality in permitting, 586. Costs and continuances, 586. Special verdict finding facts, 586-587. Rarely resorted to, 586-587. When evidence should be excluded, 587. Waiver of objection, 587. Rules of Pleading. Principal rules of pleading, 837-844. Object of pleading to obtain issue, 837-840. Origin of coming to issue, 838-840. Reasons for coming to issue, 839-840. Materiality of issue, 840-841. Singleness of issue, 841-842. Where several distinct claims, 841-842. Where single claim, 841-842. INDEX 1129 [References are to pages.] PLEADING Cont'd. Rules of pleading Cont'd. Principal rules of pleading Cont'd. Certainty of issue, 842-844. What meant by certainty, 842. Reasons for requiring, 842-844. Chief objects of pleading, scope of discussion, 844. Production of issue, 845-886. Introductory, 845-846. After declaration parties must demur or plead, 846-880. Effect of doing neither, 846. Modes of answer by way of plea, 846. Demurrer, 846. Pleadings, 847-848. Nature and property of traverses, 847. Common traverse, 847. Forms of common traverse and of replication thereto, 847-848. The general issue, 848-851. Why so called, 848. Differs from common traverse, 848. Form of plea of non est factual, 848. Form of plea of nil debet, 848-849. Form of plea of MM/ tiel record, 849. Form of plea of non detinet, 849. Form of plea of not guilty in trespass and case, 849. Form of plea of non-assumpsit, 849. Form of plea of non-cepit, 850. Scope and effect of, in general, 850-851. Scope of general issue in assumpsit, 851-852. Historical development, 851-852. As deviation from principle, 852. Scope of general issue in trespass on the case, 852- 854. Historical development, 853. Nature of defenses allowed, 853-854. Special pleas, 854. Traverse de injuria, 855-856. Nature of, 855. Form of plea and replication, 855. When proper, 856. Special traverse, 856-858. Disuse of. 856. Form of declaration and plea, 856-858. 1130 INDEX [References are to pages.] PLEADING Confd. Rules of pleading Cont'd. Production of issue Cont'd. After declaration parties must demur or plead Cont'd. Use and object of special traverse, 858-861. Essentials of special traverse, 861-865. Traverses in general, 865-866. As denials of last pleading modo et forma, 865-866. Traverse on matter of law, 866-867. Demurrer proper, 866-867. On allegation of mixed law and fact, 867. Matter not alleged must not be traversed, 867-869. Illustrations, 867-868. Exception, 868-869. Traversing the making of a deed, 869-870. Estoppels of record and in pais, 869-870. By stranger, plea of non concessit, 870. Pleadings in confession and avoidance, 871-872. Classification, 871. Form and conclusion, 871. Quality of, admission required, 871. Should give color, definition of color, 871-872. Express color, 872-873. Difference between and implied, 872. Defined, 872. Disuse of, 872-873. Nature and properties of pleadings in general, 873- 875. Must answer whole of adverse allegation, 873- 874. Signing judgment as by nil dicit, 873-874. Discontinuance, 873-874. Demurrer, 874. Failure to traverse as confession, 874-875. Operation of confession, 875. Protestation, 875. Exceptions to the rule, 875-880. Dilatory pleas, 876. Pleadings in estoppel, 876. Form of replication, 876. New assignment, 876-879. Nature and object, 876-879. Form of replication by way of, 878. At what stage of pleading occurs, 878. In what actions occurs, 878. INDEX 1131 [References are to pages.] PLEADING Cont'd. Rules of pleading Cont'd. Production of issue Cont'd. After declaration parties must demur or plead Cont'd. Exceptions to the rule Cont'd. New Assignment Cont'd. Several new assignments, 879. Particularity required in, 879. Debt on bond conditional, assigning breaches in replication, 879-880. Upon a traverse issue must be tendered, 880-884. Reason for rule, 880. Formulae of tendering issue in fact, 880-882. Conclusion to the country, 880-881. To be tried by record, 881-882. Former adjudication, form of plea and replica- tion, 881-882. Exception where new matter is introduced, 882-884. Conclusion with a verification, illustrations, 882- 884. Issue, when well tendered, must be accepted, 884-886. The similiter, 884. Forms of similiter, 884-885. Similiter as matter of form, 885. Acceptance as dependent upon mode of trial, 885. Issue not well tendered, demurrer, 885. Issue in law, no demurrer upon a demurrer, 885-886. Materiality of issue, 887-891. All pleadings must contain matter pertinent and mate- rial, 887-891. Traverse must not be taken on an immaterial point, 887-889. Illustration, 887-888. On premature allegations, 888. On matter of aggravation, 888. On matter of inducement, 888. On one of several material allegations, 888-889. Traverse must not be too large nor too narrow, 889-891. When traverse too large, 889-891. When traverse too narrow, 890. Traverse of title or estate, 891. Singleness of issue. 892-909. 1132 INDEX [References are to pages.] PLEADING Cont'd. Rules of pleading Cont'd. Singleness of issue Cont'd. Pleadings must not be double, 892-908. Reason for and meaning of rule, 892-893. Examples of in declaration, 893. Example of in plea in abatement, 893. Example of in plea in bar, 893-894. How duplicity avoided, 894. Effect of duplicity, mode of objection, 894. Several demands, 894. Several defendants, 894-895. Right to join or sever in defense, 894-895. Severance productive of several issues, 895. Illustrations, 895-900. Several answers in one pleading, 895. Double though ill-pleaded, 895-896. Immaterial matters can not make pleading double, 896-897. Necessary inducement will not make pleading double, 897-898. Matters constituting one connected proposition or entire point, 898-899. The general issue as a permissible double plea, 899-900. Several counts, 900-902. Do not offend against rule, 900. Joinder of actions, 900-901. As dependent on nature of claim, 900-901. As dependent on status of defendants, 901. Unnecessary severance, consolidation, costs, 901. Form of declaration in two counts, 902. Manner of making defense, 902. Several causes of action in one count, common counts in debt and assumpsit, 902. Several pleas, 903-906. Distinct answers to different complaints, 903. Form of such a plea, 903. Distinct answers to same claim, 903-905. Ancient rule, 903-904. Since the statute of Anne, 904. Necessity for leave of court, 904, 909. Form of such a plea, 904. Inconsistent pleas, 905-906. INDEX 1133 [References are to pages.] PLEADING-CWU Rules of pleading Cont'd. Singleness of issue Cont'd. Pleadings must not be double Cont'd. Several replications, 906-908. Statute of Anne does not apply to, 906, 909. Illustration of hardship of not allowing, 906-907. Effect of pleading over, 907-908. Pleading several dilatory pleas, 907, 909. Several pleas, pleading each as a new or further plea, 907, 909. Necessity for distinct ground of answer or de- fense in each, 907. Effect of pleading over, 907-908. Not allowable both to plead and demur to same matter, 908-909. Necessity for election, 908. Rule where there are distinct statements, 908. Effect of statute of Anne on rule, 908. The rule in Virginia, 908-909. Certainty of issue, 910-965. Certainty of place, 911-918. Ancient reason for law of venue, 911-915. Modern reason for the rule, 915-918. Local and transitory actions, 916-918. How far necessary to lay venue truly, 915-918. Where place is alleged as matter of description, 917-918. Change of venue, 917. Certainty of time, 918-921. Necessity for allegation of, 918. Matter of inducement or aggravation, 918. Alleging one time and proving another, 918. The use of videlicet, 918-919. Where time is material, 918, 920. General use, 919. Office of a videlicet, 919. Time impossible, or inconsistent with related fact. 919-920. When time is material, 920-921. Real and mixed actions, 921. Certainty as to quality, quantity and value, 921-923. As to goods and chattels, 921-922. As to real property, 922. Foreign money, 923. 1134 INDEX [References are to pages.] PLEADING Confd. Rules of pleading Cont'd. Certainty of issue Cont'd. Certainty as to quality, quantity and value Cont'd. General statements of quantity and quality, 923. Actions to which rule requiring certainty inappli- cable, 923-924. Allegation and proof, 924-925. When different quantity or value may be proved, 924. Verdict for larger quantity or value than alleged, 924. When quantity or value material, 924-925. Quality must be proved as laid, 925. Certainty as to the names of persons, 925-927. Parties to the suit, effect of misnomer, 925-926. Effect of misnomer of third person, 926-927. Variance, 926-927. Amendments, 927. Practice of suing by initials, 926. The pleadings must show title, 927-941. General necessity for, 927-928. Derivation of title, 928-929. Estates in fee simple, 928-929. Particular estates, 929. Commencement must be shown, 929. Exception, 929. Additional rules on derivation of title, 930-932. Where party claims by inheritance or descent, 930. Where party claims by conveyance or aliena- tion, 930. Conveyance or alienation stated according to legal effect, 930-931. When deed or writing must be alleged, 931-932. Plea of liberum tenementum, 932-934. Nature of plea and when proper, 932. Whether necessary to put the title in issue, 932- 933. Form of plea, 932-933, 934. Proof necessary to sustain, 933. When not applicable, 933. As giving color, 933. INDEX 1135 [References are to pages.] PLEADING Cont'd. - Rules of pleading Confd. Certainty of issue Cont'd. The pleadings must show title Cont'd. Title of possession, 934-937. Form of alleging, 934. When title of possession applicable, 935. As affected by nature of property or estate, 935. When title of possession sufficient, 935-937. As against a wrongdoer, 935-937. In replevin, 937. In real or mixed actions, 937. Alleging title in adversary, 937-939. Degree of particularity required, 937-939. When title of possession sufficient allegation, 937-939. Title must be strictly proved, 939-940. Estoppel to deny title, 940-941. Vendor and purchaser, 940. Landlord and tenant, 940. Heir and tenant, 940. In replevin, 940-941. The pleadings must show authority, 941-943. Degree of particularity required, 941-943. Authority must be strictly proved as alleged, 943. Allegations in pleading must be certain, 943-946. Illustrations, 943-946. Performance of a condition or covenant, 943-944. Exceptions, 944. Particularity required in replication, 944. Reply to plea of statute of frauds, 944-945. Plea of usury, 945. Certainty of proof, 946. Subordinate rules, 946-965. Pleading matters of evidence, 946-948. Illustrations, 946-947. Reason of rule against, 947. Utility of rule against, 947-948. Pleading matter of which court takes judicial notice, 948-950. Common law, 948. Public statutes, 948. Private acts, 948. 1136 INDEX [References are to pages.] PLEADING Cont'd. Rules of pleading Cont'd. Certainty of issue Cont'd. Subordinate rules Cont'd. Pleading matter of which court takes judicial notice Cont'd. Stating law as matter of convenience, 949. Foreign law, allegation and proof of, 949-950. Construction and application, 949. Matters of fact, 950. Needless allegation of law not traversable, 949. Pleading matter which would come more properly from other side, 950-952. Denials by anticipation, 950-951. When rule inapplicable, 951. Contributory negligence, 951. Exceptions, pleas in estoppel and of alien enemy, 951-952. Alleging circumstances necessarily implied? 952-953. Alleging what the law will presume, 953. General mode of pleading where prolixity avoided, 953-956. Illustrations, 953-956. Rule not applicable when fraud charged, 955. Pleading on insurance policies, 955-956. General mode of pleading sufficient where adverse allegation will produce certainty, 956-960. Pleading performance in debt on bond condi- tioned, 956. Common law methods of declaring on penal bond with condition, 956. Method in Virginia, 956. Plea of non damnificatus, 956-958. Plea of covenants performed, 958-959, 960. Plea of covenants not broken, 959-960. No greater particularity required than conveniently possible, 961-962. Illustrations, 961. Virginia doctrine, 962. Less particularity required when facts more in knowledge of opposite party, 962-963. Less particularity necessary in matter of inducement or aggravation, 963. Pleading act valid at common law where mode of performance regulated by statute, 964-965. INDEX 1137 [References are to pages.] PLEADING Cont'd. Rules of pleading Cont'd. Certainty of issue Cont'd. Subordinate rules Cont'd. Pleading act valid at common law where mode of performance regulated by statute Cont'd. Alleging written contract under statute of frauds, 964-965. Different rules applicable to declaration and plea, 964-965. Rules to prevent obscurity and confusion, 966-987. Pleadings must not be insensible nor repugnant, 966-968. Illustrations, 966-968. Exception where second allegation superfluous, 968. Inconsistent defenses in separate pleas, 968. Pleadings must not be ambiguous or doubtful, 968-971. Certainty to a common intent, 969. Negative pregnant, 969-971. Defined and illustrated, 970. Modern construction of rule against, 970-971. Pleadings must not be argumentative, 971-972. Two affirmatives do not make a good issue, 971. Two negatives do not make a good issue, 972. Pleadings must not be in the alternative, 972-973. Illustrations, 972-973. Avoiding objection by several counts or pleas, 972. Pleadings must not be by way of recital, 973-974. Illustrations, 973-974. Different rule applied to declaration and other plead- ings, 974. Things are to be pleaded according to their legal effect, 974-975. Illustrations, 974-975. Exception in cases of libel and slander, 975. Scope of rule, 975. Effect of Virginia statute as curing defects, 975. Pleadings should observe known and ancient forms of expression, 976. Matters of form in Virginia, 976. Pleadings should have proper formal commencements and conclusions, 977-981. Forms of various commencements and conclusions in pleas and replications, 977-981. Matters of form under the Virginia statutes, 977, 72 978, 981. 1138 INDEX [References are to pages.] PLEADING Cont'd. Rules of pleading Cont'd. Rules to prevent obscurity and confusion Cont'd. Pleadings should have proper formal commencements and conclusions Cont'd. Pleadings subsequent to the replication, 981. Variations in forms, 981-983. Pleas in abatement, 981. Pleas in bar pleaded puis darrein continuance, 981-982. Pleas in bar of matter arising after action brought but before plea pleaded, 982. Pleadings by way of estoppel, 982. Pleadings to part only of adverse allegation, 982-983. Exception in case of pleas which tender issue, 983. Improper commencements or conclusions, 983-985. Effect in general, 983-984. Pleas in abatement, 984. Commencement and conclusion as determining class and character of plea, replication or sub- sequent pleading, 984-985. A pleading bad in part is bad altogether, 985-987. Illustrations, 985-986. Exception in case of the declaration, 986-987. Rule applies only to material allegations, 987. Rules to prevent prolixity and delay, 988-996. There must be no departure in pleading, 988-992. Departure defined, 988. At what stage of pleading may occur, 988. Instance of in replication, 988-989. Most frequent in rejoinder, instances, -989-990. Departure in matter of law, 990. Instances of rejoinder held no departures, 990-991. On immaterial point, 991. Reasons for rule, 991-992. Pleas amounting to general issue should be so pleaded, 992-994. Illustrations, 992-993. Reasons for rule, 993-994. Discretion of court in allowing, 994. Mode of objecting to, 994. What pleas amount to general issue, 994. INDEX 1139 [References are to pages.] PLEADING-CWcf. Rules of pleading Cont'd. Rules to prevent prolixity and delay Cont'd. Surplusage is to be avoided, 995-996. What is, 995. Desirability of brevity and terseness, 995. Demurrer for, 996. Striking out, costs, 996. Danger of as necessitating proof, 996. Miscellaneous rules, 997-1006. Declaration must conform to original writ, 997-998. Effect of variance, amendments, 998. Declaration should have proper commencement, should lay damages and allege production of suit, 998-999. Laying damages, 998. Recovery can not be had for more than are laid, 998-999. Production of suit, 999. Pleas must be pleaded in due order, 999-1000. Proper order of pleading, 999. Pleading successively, 1000. Pleading several pleas of same kind or degree, 1000. Varying the order as waiver, 1000. Issue in fact on dilatory plea, 1000. Pleas in abatement must give better writ, 1000-1001. Dilatory pleas must be pleaded at preliminary stage, 1001. What pleadings must conclude with verification, 1001- 1003. Common and special verification, 1001-1002. Origin of rule requiring verification, 1002. Negative pleadings, 1002-1003. When profert of deed must be made, 1003-1005. Of what instruments profert must be made, 1003. Under what circumstances the rule applies, 1004. Exceptions to the rule, 1004. Reason for the rule, 1004-1005. Actual value of the rule, 1005. Profert not necessary in Virginia, 1005. All pleadings must be properly entitled, 1005-1006. All pleadings ought to be true, 1006. Rule unenforceable, 1006. Permissible legal fictions, 1006. 1140 INDEX [References are to pages.] PLEADING Cont'd. Rules of pleading Cont'd. Merits and demerits of common law pleading, 1007-1019. Merits, 1007-1012. Production of issue, 1007-1011. Disadvantages of pleading at large under other systems, 1008-1011. Its prevention of obscurity, confusion, prolixity and delay, 1011. Demerits, 1012-1019. The too great importance given to mere form, 1012- 1014. Allowance of amendments as meeting this ob- jection, 1013-1014. Virginia statutes curing this objection, 1012-1014. Defects of the required singleness of issue, 1015-1016. Virginia statute curing this objection, 1015. Wide effect given to the general issue, 1016-1018. Virginia statute curing this objection, 1016. Its excessive subtlety and needless precision, 1018- 1019. Objection more theoretical than practical, 1018- 1019. Virginia statutes curing this objection, 1018. For a general summary of the Rules of Pleading, see table of contents. Affidavits filed with pleas in actions of assumpsit, see Assumpsit, Action of. Affidavits filed with plea of nil debet, see Debt, Action of. Amendments at trial for variance, see Proceedings by Way of Mo- tion. Calling for grounds of defense with nil debet, see Debt, Action of. Motions, see Proceedings by Way of Motion. Necessity that right of court receiver to sue or be sued should appear in, see Parties. Pleas in abatement to notice of motion for judgment, see Pro- ceedings by Way of Motion. Special pleas in assumpsit, see Assumpsit, Action of. See also Action on the Case, Attachments, Bankruptcy, Continuance, Death, Demurrer, Demurrer to Evidence, Detinue, Dismissal and Nonsuit, Ejectment, False Imprisonment, Interpleader, Judgments, Libel and Slander, Limitation of Actions, Malicious Prosecution, Mechanics' Liens, Motions after Verdict, Payment, Proceedings by INDEX 1141 [References are to pages.] PLEADING Cont'd. Way of Motion, Process, Replevin, Rules and Rule Days, Set-Off and Counterclaim, Tender, Trespass, Trover and Conversion, Un- lawful Entry and Detainer, Venue, Verdicts. PLEAS See Pleading. PLEAS IN ABATEMENT See Pleading. PLEAS IN BAR See Pleading. PLEADING PUIS DARREIN CONTINUANCE See Pleading. PLEDGES See Attachments, Homesteads, Limitation of Actions. POOR DEBTORS' EXEMPTION See Exemptions. PRINCIPAL AND AGENT Validity of submission to arbitration by agent, see Arbitration and Award. See also Attachments, Limitation of Actions, Malicious Prosecution, Parties, Process, Set-Off and Counterclaim. PRINCIPAL AND SURETY See Appeal and Error, Attachments, Executions, Homesteads, Judg- ments, Limitation of Actions, Mandamus, Set-Off and Counter- claim, Tender. PROCEEDINGS BY WAY OF MOTION Scope of treatment, 159. Proceedings under 3211 of the Code, 159-168. The statute, 159-160. General observations on, 159-160. Open account, compelling sworn defense, analysis of statute, 161. Service of notice, 161-162. Sworn defence, analysis of statutory requirements, 162. Open accounts, advantage of statutory provisions, 162. Motions on notes, bonds, etc., procedure, 162-163. 1142 INDEX [References are to pages.] PROCEEDINGS BY WAY OF MOTION Cont'd. Proceedings under 3211 of the Code Cont'd. Affidavits by "agent," how affiant described, 162. Forms, 163. Venue of proceeding by motion, 163. In Federal courts, 163. Length of notice and return day, 163-165. Length of notice jurisdictional, 163-164. Illustration, 164. Returnable to any day of term, 164-165. Given, matured and tried during same term, 164-165. Docketing, 164-165. Notice should be in writing, 165. The return and proof of notice, 165-166. Time limit, statute mandatory, illustration, 165. Computation of time, Sundays, 165. Proof of timely return, question of fact, presumption, 165-166. Continuances, 166-168. Discontinuances under Code 3211, 166-167. Skipping term of court, 166. Failure of term of court, 166-167. Docketing, effect and advisibility of, 167-168. Notice not shown on record, abandonment, 168. Advantages of procedure by motion, 168. Simplicity and dispatch, 168. Policy of the statute Construction of notice, 168-171. Reason for and object of statute, 168. Convenience and utility of remedy, 169. Liberal construction given notice, 169. Particularity required in notice, 169-170. Must state case and be certain, 169. Essential averments, 169-170. Variance, 170. Allegata and probata must correspond, 170. Material, effect of, 170. Amendments at trial, 170. Proceeding by motion is action at law, 170-171. Notice private paper until filed, 170. When action considered, instituted, 17 i. When attachment may issue, 171. When limitations cease to run, 171. When motion lies under 3211 of Code, 171-172. General rule, 171-172. On contract express or implied, 172. INDEX 1143 [References are to pages.] PROCEEDINGS BY WAY OF MOTION Cont'd. Proceedings under 3211 of the Code Cont'd. When motion lies under 3211 of Code Cont'd. Assignee of note, 172. On insurance policies, form of notice, 172. How as to decree of domestic chancery court, 1/2. When motion does not lie under 3211 of Code, 172-174. Recovery of statutory penalty, 172-173. Damages for breach of contract, 173-174. The manner of making defenses to motions, 174-180. By formal pleas, 174-175. By informal statement in writing, 174-175. Replication, 174. Issue necessary for jury trial, 174-175. The better and usual practice, 174-176. Where statutes require formal pleas or affidavits, 174-176. Instances of informalities held not reversible error, 177- 178. No replication to plea, 177. No plea as to part of cause of action, 177-178. Replication bad for duplicity, 178. Grounds of defense, 178. The statute, 178. Statement of must be in writing, 178. Plaintiff should always call for, 178. How set-off pleaded, 854. By demurrer, 178-180. Cause of action stated but notice indefinite, 178-179. Bill of particulars, 178-179. No cause of action stated, demurrer, 179. Illustration, 179. Question raised by demurrer, 179-180. Pleas in abatement, 180. General rule, 180. Motion premature, 180. Time of filing, 180. Against whom judgment may be given on motion, 180-181. The statute, joint and several liability under, 180. Illustration, 181. The trial of the motion, 181-182. In general, 181. By a jury, necessity for issue, 181. Procedure, 181-182. Writ of inquiry, 181-182. At special term, 182. At criminal or chancery term, 182. 1144 INDEX [References are to pages.] PROCEEDINGS BY WAY OF MOTION Cont'd. Motions to recover money otherwise than under 3211 of the Code, 182-184. For debts and fines due State, 182. On official bonds, 182-183. On forthcoming bonds, 183. Between attorney and client, 183. Between principal and surety, 183. Other instances, 182-183. Forms, 182-183. Rules as to construction of notice, service, defenses, etc., 183: Length of notice required, 183-184. Notice should be in writing, 184. When motion made, docketing, continuances, 184. No memorandum in, 288. What is the process in, 292. See Attachments, Limitation of Actions, Parties, Process. PROCESS How process is obtained, 286-289, 292. At common law, 286-287. In modern times, 287, 292. The memorandum, its function, 287. Forms of memoranda, 287-289. In Debt, laying damages in, 287-288. In Assumpsit, laying damages in, 288. In Covenant, laying damages in, 288. In Motions for Judgment, none, 288. In Unlawful Detainer, 288. In Ejectment, none, 288-289. In Detinue, 289. In Interpleader, none, 289. In Trespass vi et armis, 289. In Trespass on the case, 289. In Trover, 289. In Libel or Slander, 289. Nature of, 289. Whence emanates, 289. Return day, defined, 289-290. Notice to defendant, essentials of, 290. Subpoena, what is, 290. When issued, 290. Alias and pluries summons, when issued, 290-291. Time of issuance as affecting limitations, 290-221. In what name runs, attestation of, 291. Altering or filling blanks after issuance, 291-292. INDEX 1145 [References are to pages.] PROCESS Cont'd. Appearance as waiver of, 292-293. Confessing judgment, necessity for process, 292. What is the, in proceedings by motion, 292. In ejectment, 292-293. Under Code practice, 293. Who are exempt from service, 293-295. Sovereign States, 293. Ambassadors and public ministers, 293. Consuls, 293. Members of Congress, 293. Other instances, 293-294. Statutes as referring to civil or criminal process, 293-294. Resident party and witness, 294. Non-resident party or witness, 294. Convicts, rule as to, 294. Waiver of exemption, 294-295. How exemption claimed, 295. Who may serve process, 295-296. General rule, 295. Officer to whom process not directed, 283, 295. Deputy, proper return, waiver of defects, 295. Where principal dead, 295. Where principal is defendant, validity, 296. In divorce proceedings, 295, 298. Private individual, affidavit, 295-296. Any one who might serve notice, 296. Constable, necessity for affidavit, 295-296. When process to issue and when returnable, 296-297. When issued, 296-297, 3P1-322. When returnable, 296-297, 321-322. Effect of illegal return day, 297. Scire facias on a recognisance, 297. Garnishment, 297. Service of process on natural persons, 297-309. Personal service, what is, 297. Where made, 298. On non-resident found in jurisdiction, 302. Personal judgment on, 302. Substituted service, what is, 297-298. Strict construction of statutes allowing, 297-298, 299, 300. Manner of making, the statute, 298-299. Methods successive not cumulative, 298-299. The return on, requisites, 298-299, 300. Choice in manner of service, 299. Service at "residence," sufficiency, 299-300. 1146 INDEX [References are to pages.] PROCESS Cont'd. Service of process on natural persons Cont'd. Substituted service, what is Cont'd. Presumptions, 300. Who is "member of his family," 300. Sufficiency as basis for personal judgment, 300. By "posting," 300-301. None against married women, 301-302. Constructive service, what is, 297-298. Personal judgment on against non-resident, validity, 302- 303, 304. Judgment in rem on, 302-303. Sufficiency of in proceeding to determine status of a citizen, divorce, 303-304. Submission by non-resident to jurisdiction, 304. Acknowledging "due" or "legal" service as, 304. Time of personal service outside State, 304. Personal service outside State, effect, 302-304. When action is in personam and when in rem, 305. Conclusiveness of personal judgment as to service and lia- bility, 305. Party duly cited but hearing denied him, 305-306. Appearance as waiver of defects in process or service, 305. Domestic judgment, contradicting record as to service, 305. Foreign judgment, contradicting record as to service, 305. Proceeding not judicial, depriving of jury trial, 306. Defenses to foreign default judgment, 305-306. Infants, 306-308. Whether personal service essential, 66, 306-308. Appointment of guardian ad litem as substitute, 306-308. Where infant a non-resident, 307-308. Personal service necessary to personal judgment, 307-308. Personal service not necessary to judgment in rem, 308. Failure to appoint guardian ad litem, effect, 308. Necessity of answer by guardian ad litem, 308. Insane persons, 309. Guardian ad litem, 309. Action before adjudication, 309. Action after adjudication, 309. Committee, 309. In proceedings to test sanity, 309. Court receivers, 61-62, 309. Convicts, 71-72, 294. INDEX 1 147 [References are to pages.] PROCESS Cont'd. Service of process on corporations, 309-321. In general, 309-310. At common law, 309-310. Under state statutes, 310. In Federal Courts, 310. Domestic corporations, 310-314. Cities or towns, 283-284. Banks, 283-284, 310. Railroad companies, 283-284. Insurance companies, 283-284, 310. Other corporations, 283-284. On officers, preference among class, 310. When served on agent, 310. When sent out of county and served on officer, 310-311. By publication, personal judgment, 311. Order of publication, form and procedure, 320-321. Provisions as to service successive not cumulative, 311. Defunct corporation, service on late president, 311. Who is "agent," 311. Where served, return, 284, 311-312. Service must be personal not substitutional, 312. Effect of service on de facto officer, 312. Judgment by default against on publication, validity, 312-314, 320. Service by publication and mail, 312-313. "Due process of law," 312-314. Foreign corporations, 314-320. Are not citizens, 314. Powers of State over, constitutional limitations, 314-316. Doing business in State, what is, effect of, 316. Service on agent, 283-284, 316-317. Who is "agent," 316-317. Statutory agent, 317. Service on out of county of suit, 317-318. On statutory agent in another county, 318. Residence of statutory agent as that of corporation, 318. Who may serve, 317. Service must be personal not substitutional, 317. Where served, 317-318. By publication, 316-321. Prerequisites to, 318. Judgment in rem on, validity, 318-319. Necessity for notice, 320-321. Settling title to land by, specific performance, 321. 1148 INDEX [References are to pages.] PROCESS Cont'd. Service of process on corporations Cont'd. Foreign corporations Cont'd. By publication Cont'd. Judgment in personam, on, validity, 318-320. Order of publication, form of and procedure, 320-321. Strict construction of statute, effect of mistake in names, 321. No posting of order required, 320, 321. On officer casually in State, 319. Personal judgment on such service, 319. Not doing business, service on State officer designated by statute, effect, 319-320. Upon resident director, 319-320. Time of service, 321-322. On or before first rule day to which returnable, 296-297, 321. Service on Sunday, 321-322. Of attachments, 322. On legal holidays, 321-322. When must be executed ten days before return day, 282-284, 322. Computation of time, Sundays, 322. Rule in West Virginia, 297, 322. Return of process, 323-325. Return defined, 323. Requisites, signature, 323. By deputy, effect of omitting principals' name, 295, 323. Default judgment on invalid return, effect, 323. Amendments, when allowed, 323-324. Effect of, 324. Form of return, in general, 324. Of service on officer of corporation, 324. Of service on agent of corporation, 324. As record, assailing, 325. When return by private person, 325. Defective service, 325-327. Effect of where writ valid and service personal, 325-326. Collateral attack, 325-326. Effect where service is merely constructive, 325-326. Collateral attack, 326. Amendments, 326. Waiver of objection by general appearance, 326. Special appearance for objection, 326. What is. distinguished from general, 273, 326-327. INDEX 1 149 [References are to pages.] PROCESS Cont'd. Defective service Cont'd. Mode of making objection, 272, 327. Plea in abatement, 272, 327. Mere motion, 272, 327. Notice by court ex officio, 272, 327. Malicious abuse of, see Malicious Prosecution. See also Abatement and Revival, Attachments, Continuance, Judg- ments, Limitation of Actions, Parties, Rules and^Rule Days, I'enue. PROFERT AND OVER See Pleading. PROHIBITION Definition of the writ, 778. Office of the writ, 778-779. Where court or judge has any jurisdiction in the proceeding, 779. Where once existing jurisdiction lost, 779. To prevent execution of illegal or unauthorized judgment, 779. Against justice where entire debt has been subdivided, 779. Collateral attack by third persons in such case, 779. To prevent enforcement of default judgment, 779. Against disqualified judge, 779-780. Lies only against judicial tribunal acting in judicial capacity, 780. Effect of other adequate remedy at law, 780. Frequency of use of writ, 780. Necessity for objection in lower court, 780. Parties, 780-781. Whether petitioner must be party to proceeding, 780. Who proper parties defendant, 780-781. Procedure, 781. Compared with that in mandamus, 781. Suspending proceedings sought to be prohibited pending final decision, 781. Original jurisdiction of Court of Appeals in, see Courts. See also Appeal and Error. PROPERTY Remitter defined, 33. Preservation of in Detinue, see that heading. Title to freehold as subject of accord and satisfaction, see Ac- cord and Satisfaction. QUIETING TITLE See Equity, Ejectment, Limitation of Actions. 1150 INDEX [References are to pages.] QUO WARRANTO Disuse of ancient writ, 781. Information in nature of, 781. Mandate of writ, 781. Infrequency of use, 781. When writ may be awarded in Virginia, 781-782. Whether limited to case where incumbent mere usurper or in- truder, 782. Discretion of court as to issuing writ, 782. To test title to office, 782. Where other full and adequate relief available, 782. By whom writ may be prosecuted, 782-783. Jurisdictional amount as affecting, where question one of title to office, 783. Procedure, 783-784. The petition, form of, by whom filed and to whom pre- sented, 783. When petition filed, the summons and its service, 783. When bond required of relator, its condition, 783. When defendant fails to appear, 783-784. When defendant appears, manner of making defense, 784. When allegations of information taken as true, 784. When case may be reopened, 784. Judgment when defendant found guilty, costs, 784. When defendant found guilty of only part of charges, 784. No original jurisdiction of Court of Appeals in, see Courts. See also Appeal and Error. RAILROADS Appeals in cattle-guard cases, see Justices of the Peace. Recovery of roadbed or right of way, see Ejectment. See also Attachments, Executions, Mechanics' Liens, Process. REAL ACTIONS See Unlawful Entry and Detainer. RECAPTION OF GOODS See Remedies. RECEIVERS See Executions, Parties, Process. RECOGNIZANCES See Judgments. INDEX 1151 \ [References are to pages | RECOUPMENT See Set-Off and Counterclaim. REDRESS OF PRIVATE WRONGS Methods of, see Remedies. RE-ENTRY UPON LANDS See Remedies. RELEASE Effect of, of one of several joint wrong-doers, or joint obligors, see Accord and Satisfaction. REMAINDERS See Attachments. REMEDIES .Methods of redress of private wrongs or civil injuries, 1-2. By mere act of the parties, 1-2. By the act of the party injured alone, 1. Self-defense, 1-2. Recaption of goods, etc., 1-2. Re-entry upon lands, 2. Abatement of nuisance, 2. Distress, 2. By the joint act of both parties, 1. By the mere act or operation of the law, 1. By the joint act of the parties and of the law civil action, I. See Accord and Satisfaction, Assumpsit, Debt, Action of, Landlord and Tenant, Nuisance, and other specific titles. REMITTER See Property. RENT See Landlord and Tenant. REPLEADER See Motions after Verdict. REPLEVIN Nature of action at common law, 220-221. Between landlord and tenant, 220. Necessity for such action, 220. Writ of replevin, how secured, its mandate, 220. Tenants' action in replevin, its purpose, 220-221. 1152 INDEX [References are to pages.] REPLEVIN Cont'd. The declaration, its form, 221. Particularity required in, 221. Different kinds of replevin, 221. Extended to all wrongful takings, 221. Taking lawful, detention wrongful, 221. Property replevied, damages, replevin in the detinuit, 221. Goods not found, value of, replevin in the detinet, 221. Part of goods found, replevin in the detinuit and detinet, 221. The defense, 221-222. Never took goods, non cepit, 221. Taking justified, how pleaded, 221-222. Avowry and cognisance, 222. Prayer of, 222. Both parties' actors, 222. Defendants claim set forth in, 222. Plaintiffs plea to, 222. Treated as complaint, 222. Change of parties' positions, 222. The judgment, 222. If plaintiff succeeds, 222. If defendant succeeds, 222. ^ Characteristic feature of action, 222. The modern action of replevin, 222-223. Scope and object, 222-223. Replevin in the cepit, 222-223. Replevin in the detinet, 223. Requisite title, same as detinue, 223. Demand, necessity for, 223. Bond, condition, procedure when given, 223. Liability of sheriff acting without bond, 223. Form of complaint under Codes, 223. Replevin abolished in Virginia, 223. Substitutes for, 223. History of action in Virginia, 224. Form of plea of non cepit, 850. When title of possession not sufficient, 937. Estoppel to deny title in, 940-941. Interpleader as substitute for, see Interpleader. See also Detinue. RESIDENCE See Attachments. RETAINER See Executors and Administrators. INDEX 1153 [References are to pages.] RETRAXIT See Dismissal and Nonsuit. REVIEW See Appeal and Error. RULES AND RULE DAYS Nature of rules, 256-258. Control of court over, 257. When held and how long continued, 256, 258. Rule docket, 256. No clerk to take, procedure, 256, 274. What rules are made, time given, 256. At common law, 257-258. Wholly statutory, 258. Must be held, case then docketed, 258. Object and purpose of rule days, 258-259. Theoretically, 258-259. Practically, 259. Proceedings at rules, 259-267. Theoretical unity of the three days, 259-260. Process, to which day returnable, 260. When exe<*uted and returned, 260. Rule against officer for failure to return, 260. Alias process, when issued, 260. Rule to declare, when given, 256-257, 260. Failure to file declaration within month, effect, 257, 260. Process executed, declaration filed, courses open to defend- ant, 260-261. Stay away altogether, effect, 260. Enter appearance without plea, procedure, 261. Appearance by counsel without contest, effect, 261. Judgment by non sum informatus, 261. Confession of judgment, 261. On what day of rules pleadings filed, 261. Time of day, 261. Classification of orders resulting from rules, 261. Writs of inquiry, issue docket, office judgment docket, 261- 262, 263. No final judgment at, 262. Writs of enquiry, 262-266. In what classes of cases entered, place on docket, 262. Must be executed, 262, 266. When plea is filed, procedure, 262. The assessment of the damages, procedure, 262-263. When necessary, in general, 263. 73 1154 INDEX [References are to pages.] RULES AND RULE DAYS Cont' d. Proceedings at rules Cont'd. Writs of enquiry Cont'd. When not necessary, 263-265. 'Debt on verbal promise, 265. Debt on a bond with collateral condition, 265. In actions of ejectment, 265-266. Function of, 266. When awarded, though there is office judgment, 266. Amount of debts or credits uncertain, 266. Filing writing sued on in clerks office, practice, 266. Executed, setting aside judgment, right of defendant to plead, 277. Case put in wrong place on docket, effect, 266-267. Service of orders made at rules, 267. Taking rules while court in session, 267. Power of clerk after rules closed to correct error, 267. Rules in federal courts, 267-268. In common law actions, 267. The conformity act, 267. In equity, 267-268. Proposed revision of equity rules', 268. Rule' to plead, effect of and proceedings on, 273-274. Cause always matures at second rules, 274. Powers of court over proceedings at rules, 274-275. In general, 274. Failure of clerk to take rules, powers of court, 274. Reinstating action dismissed because no declaration filed. 274-275. See Judgments, Pleading. SALES See Attachments, Executions, Exemptions, Mechanics' Liens. SCIRE FACIAS On recognizance, when returnable, 297. Judgment by default on, when final, see Judgments. See Executions, Judgments, Process. SEALS See Bills of Exception. SEARCHES AND SEIZURES Unjustified search warrant as Malicious Prosecution, see latter heading. INDEX 1155 [References are to pages.] i SECOND TRIAL See New Trial. SEDUCTION See Trespass. SELF-DEFENSE See Remedies. SET-OFF See Set-Off and Counterclaim. SET-OFF AND COUNTERCLAIM Set-offs: Distinguished from payment, 434. Statutory provisions as to, 435, 437. Definition, 435-437. Statutory origin of, 436-437. Actions in which available, 437. Subject of set-off, 438-441. Liquidated demands, what are, 438-439. Availability of set-offs, 439-441. Character of claim as affecting, 440. Status of parties as affecting, 440. Partnership or fiduciary demands, 440. Principal and surety, 440. Principal and agent, 440. Manner of claiming, 440. Debts not due, 440-441. Acquisition of set-offs, 441-442. Time of, before or after action, costs, 441. Against assignor of non-negotiable instrument, effect, 441. Against holder of negotiable paper, effect, 441. Rights of creditors as affecting, 441-442. By bank against general depositor, 442. Application of set-offs, 442-443. As between assigned evidences of debt, 442. Counter set-offs, right of plaintiff to acquire, 442. Where' set-off against assignor exceeds assignee's claim, 442-443. Pleading set-off, 443-445. Necessity of setting up in plaintiff's action, 443. Burden of proof, 443. Asserting one of several items, or part of entire demand, 443. 1156 INDEX [References are to pages.] SET-OFF AND COUNTERCLAIM Confd. Set-offs Cont'd. Pleading set-off Cont'd. Manner of pleading, 444-445. Formal plea, 444-445. List filed, 444-445. Notice merely, 444-445. Where plaintiff's proceeding is by motion, 445. Set-offs barred by limitation, remedy of plaintiff, 444-445. Recoupment: Definition, 446-447. Common law recoupment, 447. Recovery of excess, 447. As against sealed instruments, 447. Virginia statute of recoupment, 448-460. Statutory provisions, 448. History and purpose of statute, 448-449. Limitation to matters growing out of same contract, 449. Sealed instruments and recovery of excess, 449-451. Equitable defenses, when preserved, 450. As repeal of the common law, 450. Remedy furnished by as exclusive or permissive, 449, 451-452. Reinvestment of title to real estate, 452-454. Where rescission of contract and reinvestment of title required, 452-454. Where no rescission is asked for and none is needed, 452-454. Rejection of plea under statute, 454-456. Effect on equitable defenses, 454-455. Sale of real estate, plea of complete damages, essen- tials of, 455-456. Action for purchase price of personal property, 456. Notice of recoupment, 456. Essentials of a valid plea, time for objection, 456. Relief in equity, prerequisites, 456. Recoupment and set-offs contrasted, 457-458. Who may rely upon the statute, 458-460. Surety on a bond, not party to contract, 458, 459. Surety having claim growing out of different transac- tions, 459. Surety setting up release of lien by creditor, 459-460. Surety averring a want of consideration, 460. See Appeal and Enror, Limitation of Actions, Verdicts. INDEX 1157 [References are to pages.] SHERIFFS AND CONSTABLES See Rules and Rule Days. SIGNATURES Affidavit denying, when filed with nil debet, see Debt, Action of. See also Bills of Exception. SLANDER See Libel and Slander. STATE CORPORATION COMMISSION See Appeal and Error, Courts. STATES District of Columbia not a State, 99. Action against for negligent injury of insane person in State hospital, see Parties. Order of liability of decedents' -estate for debts as between, and United States, see Executors and Administrators. See also Appeal and Error, Attachments, Limitation of Actions, Process, Venue. STATUTE OF JEOFAILS See Demuirrer. STATUTES Penalty given by, effect on recovery of real damages, 91. Penalty given by as giving also action for damages, 91. Pleading, when noticed judicially without, 948-950. Foreign laws, pleading and proof of, 949-950. Construction and application of for court, 949. Abolishing objections for want of form, see Assumpsit, Action of. Motion to recover penalty given by, see Proceedings by Way of Motion. Recovery of penalties given by, see Action on the Case, Debt, Ac- tion of. See also Appeal and Error, Mechanics' Liens, Process. SUBROGATION See Judgments. SUNDAY See Attachments, Executions, Process, Verdicts. SUPERSEDEAS See Appeal and Error. 1158 INDEX [References are to pages.] SUPERVISORS See Counties. TAXATION See Appeal and Error, Homesteads. TENANCY IN COMMON See Ejectment, Limitation of Actions, Trover and Conversion. TENDER Definition, 371. Different kinds of, 371. Sufficiency of tender of money, 371-373. At common law, 371-372. Essentials of, 371. Tender must be of current money, waiver, 371-372. What currency is legal tender, 371-372. Exact amount, 372. Should be unconditional, 372. Keeping tender good, 372, 375. By and to whom tender made, 372. General statutory modifications of common law rule, 372. In Virginia, 372-373. Common law rule susperseded by statute, 372-373. Paying money into court, procedure, 373. Scope of Virginia statute, 373. Form of plea, 373-374. Essentials of plea, 374. Effect of valid tender, 374-375. On promise to do something other than pay money, 371, 374. On promise to pay money, 371, 374. As conclusive evidence of amount due, 374-375. Effect on lien of tender of debt secured, 375. Rule as to judgments, and attachments, 375. As release of surety, 375. Ownership of money after tender and refusal, 375. TIME Computation of under statutes, Sundays, see Proceedings by Way of Motion. See also Bills of Exception, Process, Rules and Rule Days. TORTS As subject of accord and satisfaction, see Accord and Satisfaction. Waiving tort and suing in assumpsit, see Assumpsit, Action of. See also Limitation of Actions, Parties. INDEX 1159 [References are to pages.] TRESPASS Trespass vi et armis simply called "trespass," 225. Distinction between trespass and case, 225-227. Trespass used for direct injuries, 225. Case used for indirect injuries, 225. Difficulty of distinction at common law, 225. When held to be concurrent, 225. Tests laid down to distinguish, 226-227. Immediateness of injury, 226. Intention or want of intention, 226. Consequential injuries, 226. Construction of "immediate" and "consequential," 226- 227. Statute allowing case wherever trespass would lie, 225-226. 227. Trespass unchanged, scope of case only change, 227. Trespass vi et armis now infrequently used, 227. Assault and battery, used for, 227. Case most usual remedy, 227. Assault and battery, used for, 227. Species of trespass vi et armis, 227-231. Trespass to the person, instances of, 227. Assault, assault and battery, 227. False imprisonment, seduction, 227. Trespass de bonis asportatis, 228. When lies, 228. Compared with trover, 228. Possession, necessity for, 228. Trespass quare clausum fregit, 228-229. Forcible entries upon land, 228. By the owner, 228. Gist of action injury to possession, 228. Title, not important, 228. Right to exclusive profits as possession, 228. Possession as following ownership, 228. Possession in another through owner, right of latter to sue, 228. Land held by another in adverse possession, action by owner, 228. Suit by lessee under void lease against wrongdoer, 228-229. Possession against right of owner, action against owner, 229. As remedy for seduction, theory of use, 229. Joinder of counts, 229. Now concurrent with case, 229. Procedure where unlawful entry justified, 229. 1160 INDEX [References are to pages.] TRESPASS Cont'd. Species of trespass vi et armis Cont'd. Trespass to try title, 229-230. Form of action, notice of object, 229. Statutory, sometimes supersedes ejectment, 229. Recovery on strength of plaintiff's title, 229-230. Difference between and quare clausum fregit, 230. Outstanding title, effect, 230. South Carolina, use of action in, 230. General issue, effect of, 230. Recovery in, damages, writ of possession, 230. Improvements, defendant's rights as to, 230. False imprisonment, 230-231. Not proper remedy to recover for death by wrongful act, 231. General issue, form and scope, 232, 849. Form of memorandum in trespass vi et armis, 289. Compared with Unlawful Entry and Detainer, see latter heading. Waiving tort and suing in assumpsit for, see Assumpsit, Action of. See also Action on the Case, Death, False Imprisonment, Process. TRESPASS ON THE CASE See Action on the Case. TRESPASS TO TRY TITLE See Trespass. TRIAL Argument of Counsel, 526-530. Opening and conclusion, 526-527. Burden of proof as affecting right to, 526. When burden as to damage only, 526. Upon application to probate a will, 526. When defendant entitled to, 526. No reply to first argument, right to conclude, 526-527. Refusal of right as ground for reversal, 527. Number of counsel, 527. Duration of argument, 527-528. Discretion of trial court as to, 527. Reasonable and unreasonable limitations on, what are, 527-528. Rule in West Virginia, 528. Reading law books to the jury, 528-529. Virginia rule, 528-529. Conflict in authorities as to right, discretion of trial court, 529. West Virginia rule, 529. True rule, 529. INDEX 1161 [References are to pages.] TRIAL Cont'd. Argument of Counsel Cont'd. Scope of argument, 529-530. Proper and improper subjects of comment, 529-530. Appeals to sympathy or prejudice, 530. Time for objection, waiver, 530. Confined to issues, 530. Matters not in evidence, 529-530. On a demurrer to the evidence, court and jury, 530. Calling the docket, 577-578. Order in which cases are set on docket, 577. Disposition of case as dependent on state of pleadings, 577- 578. Cases on writ of enquiry docket, 578. * Right to appear and defend without pleading, 578. Right to continuance on entry of plea, 578. Cases on issue docket, 578. Right to continuance, 578. Defendant alone ready for trial, non-suit, effect, 578. Plaintiff ready, defendant not, 578. Office judgment docket, procedure, 578. Opening Statement of Counsel, 479-480. Nature and object of statement, 479. Order of statement, 480. Admissions in as evidence, 480. View and inspection, 587-589. When allowed at common law, 587. When allowed under Virginia statute, 587-588. Discretion of court as to, review, 588. Expenses of, by whom paid, 588. As evidence or proof, 588-589. Utility of, 589. In criminal cases, 589. Against prisoner's protest, 589. Necessity for prisoner's presence, 589. Necessity for presence of counsel, 589. Necessity of issue in proceeding by motion, see Proceedings by Way of Motion. Of motions for judgment, see Proceedings by Way of Motion. See also Attachments, Bills of Exception, Demurrer, Demurrer to Evidence, Instructions, Jury, Justices of the Peace, Malicious Prosecution, Mandamus, Motions after Verdict, Payment, Process, Set-Off and Counterclaim, Unlawful Ent\ry and Detainer, Verdicts. 1162 INDEX [References are to pages.] TROVER AND CONVERSION Nature of the action, 241-242. Form of trespass on the case, 241. Derivation of name, 241. Declaration, allegations of, 241. Gist of the action and its object, 241. In general same as at common law, 241. Election between and trespass, 241-242. Difference between and trespass, 241-242. Plaintiff's title, 242-243. What must be shown, 242. Conversion, right of property, possession, 242. Possessory title essential, 242. Possession as evidence of property, 242. Possession sufficient against wrongdoer, 242. Title without possession, 242. Bailee in possession, 242-243. What may be converted, 243. General rule, 243. Specific chattels, 243. Realty, or things partaking of its nature, 243. Money generally, 243. Chattels generally, 243. What constitutes conversion, 243-244. General rule, 243. How proved, 243. Misdelivery by bailee, 243. Refusal of carrier to deliver to proper party, 243-244. Manual taking not necessary, verbal conversion, 244. Dominion, exclusive or in defiance of owner, 244. Loss or destruction by tenant in common, 244. Breach of bailment, rights of parties, 244. Use of property not according to contract, 244. Demand, 244-245. When possession originally lawful, 244. Its object, 244. After party has parted with possession, object, 245. In case of bailee, effect, 244-245. Return of property, 245. When conversion complete, 245. When conversion temporary, 245. Discretion of court, 245. Lawful taking, no essential injury, terms, 245. Payment of money into court, procedure, 245. INDEX 1163 [References are to pages.] TROVER AND CONVERSION Cont'd. Damages, 245-246. General rule, 245-246. Rule of justice, 246. Appreciations and depreciations in value, 246. Property delivered by mutual mistake, 246. General issue, 246. What is, 246. Scope of and defenses permissible under, 246. Special pleas not amounting to, 246. Effect of judgment as vesting title in defendant, 246-247. Form of memorandum in, 289. Compared with trespass de bonis asportatis, see Trespass. See also Action on the Case, Process. TRUSTS Power of personal representative of sole trustee to execute trust, 45. Vacancy in office of trustee, how filled, 45. Submission to arbitration by trustee, see Arbitration and Award. See also Clerks of Courts, Courts, Detinue, Ejectment, Executions, Homesteads, Judgments, Limitation of Actions. UNITED STATES Order of liability of decedent's estate for debts as between, and State, see Executors and Administrators. UNLAWFUL ENTRY AND DETAINER Nature and object of action, 187-188. Origin statutory, 187. Real action to recover possession of land, 187. Actual possession protected, 187. What is unlawful entry, 187. Remedy against tenant holding over, 187. Purpose of the statute, 187-188. As against forcible or unlawful entry, 187. Actual possession protected, 187. As respects unlawful detainer, 187. Protects right of possession, 187-188. Plaintiffs' title, 188-189. Immaterial, 188. Possession or right of possession the question, 188. One in actual possession without right or title, 188. The action compared with trespass, 188. Forcible entry, evidence to sustain, 188. Possession, character of required, 188. Possession of part claiming whole, 188. Possession as following title, 188. 1164 INDEX [References are to pages.] UNLAWFUL ENTRY AND DETAINER Cont'd. Plaintiffs' title Cont'd. Forcible entry, force essential, 188-189. Peaceable possession necessary, what is not, 189. Pleadings, 189-190. Summons and no declaration, 189. The summons, its issuance and contents, 189, 288. Where and when summons returnable, 189. Time of service, 189. Only plea not guilty, 189. Equitable defenses, how made, 189. Trial of summons, precedence, 189. No plea, but trial on merits, effect, 189-190. Venue, 189. Contrasted with ejectment, 190. As trying right to actual possession or title, 190. Difference in finality of judgments, 190. Statute of limitations, 190. What is, 190. Burden of proof, 190. Of right and not of remedy, 190. Recovering premises from tenant in arrears, 190-191. When proceeding to be before justice, 191. Right of appeal, 191. See Appeal and Error, Justices of the Peace, Process, Trespass. USE AND OCCUPATION Of land, proceedings to recover for, see Assumpsit, Action of. VARIANCE See Pleading. VENDITIONI EXPONAS See Executions. VENDOR AND PURCHASER Vendor's lien not enforced out of rents and profits of land, 622. Estoppel of purchaser to deny title of vendor, 940. See Attachments, Exemptions, Judgments, Limitation of Actions. VENDOR'S LIEN See Vendor and Purchaser. VENIRE FACIAS DE NOVO See Motions after Verdict. INDEX 1165 [References are to pages.] VENUE At common law, 280-281. Action against non-residents, 281. In personam action against foreign corporation, 281. In Virginia, 281-286. Wholly statutory, 281. Venue and process statutes to be read together, 281. Cumulative provisions, choice of jurisdiction, 281-284. Specific provisions, 281-286. Where any defendant resides, 281, 285. Convict's residence, 71-72, 285, 294. In action against domestic corporation, 281-282. In action against foreign corporation, 318. In action against insurance companies, 282. In action to recover or subject land to debt, 282. Actions against non-residents, 281-282. Actions on behalf of Commonwealth, 282, 284-285. Actions affecting Commonwealth, 282, 285. Where circuit court judge interested, 282, 285. Where cause of action arose, 282. Provision confined to actions at law, 284. Part in jurisdiction, entire damages, 285. Delivery by carriers, where cause of action arises, 285-286. Laying in pleadings, 287. Pleading venue, manner of and necessity for, see Pleading (Rules of Pleading}, and pp. 911-918. Of action for death by wrongful act, see Death. See also Ejectment, Process, Unlaivful Entry and Detainer. . VERDICTS Different kinds of verdicts, 531. Special verdicts and case agreed, 531-534. Special verdicts, 531-533. Definition of special verdict, 531-532. Inferring facts from special verdict, 531-532. Finding the evidence as special verdict, 532. Inferences of law, 532. Failure to find facts, remedy, 532. Vague and uncertain, remedy, 532. Form of special verdict, 532. Practice as to preparation and settlement of special ver- dicts, 532-533. Right to insist on special verdict, alternatives, 533. As substitute for demurrer to evidence, 533. As part of record, 533. 1166 INDEX [References are to pages.] VERDICTS Confd. Special verdicts and case agreed Cont'd. Case agreed, 533-534. Other names for, 533. Definition, 533. Compared with special verdict, 533-534. Other facts, inferences, 533. When permissible, 533. Issues, effect on, 533-534. Entry on record, writ of error, 534. Form of, 534. Where all facts not agreed on, procedure, 534. Definition and rendition of general verdict, 534-535. Rule of decision, 535. Definition, 535. Oral or written, 535. Variance between written and record verdict, 535. Unsigned verdict, 535. Essentials of a general verdict, 535-548. The verdict must respond to all the issues, 535-536. When general finding for defendant sufficient, 535. Different pleas, general verdict for plaintiff, 535. Joint defendants, pleas several, general verdict for plain- tiff, 535. Joint defendants, single plea, form of verdict, 536. The verdict must respond to the whole of each issue, 536. Joint contract action, verdict against survivor only, 536. Incomplete verdict in detinue, 536. Action against joint tort feasors, joint plea, verdict against one, 536. The verdict should not find matters outside of the issues, 536-537. Effect of such finding, surplusage, 536-537. The verdict must be certain, 537-538. Specific elements requiring certainty, 537. Want of form, reasonable intendment in favor of ver- dict, 537. Certainty of description of property and estate, 537. Ejectment, what sufficient finding of fee simple title in plaintiff, 537. Amount, 537-538. Verdicts bad for uncertainty as to, 537-538. Offsets, what sufficient finding as to, 538. When the verdict necessarily disposes of all the issues, 538. INDEX 1167 [References are to pages.] VERDICTS Cont'd. Essentials of a general verdict Cont'd. The verdict must be unanimous, 538. Withdrawing assent in open court, 53S. Verdicts by less than all the jury, 538. The verdict should be delivered in open court, 538-540. Privy verdicts, 538. Sealed verdicts, what are, practice as to, 539-540. Effect of subsequent dissent of juror, 539. Absence of juror at opening, 539. Discretion of court as to allowing, 539. Sunday, propriety of receiving verdict on, 539-540. Returning verdict in absence of judge, 539. Returning verdict on Sunday, 539. The verdict should be received and recorded, 540. Variance, recorded verdict paramount, 540. Amendments, when permissible, procedure, 540. Verdict should accord with the instructions of the court, 540-541. Verdict in conflict with erroneous instruction, effect, 540-541. Verdict should not be excessive, 541-545. Procedure to correct, 541-542. Appeal and error, 542-543. What damages excessive where no legal measure, 543-544. Damages plainly excessive, procedure, discretion of court, 544. Damages exceeding amount claimed in pleadings, appeal and error, 544-545. No damages claimed in ad damnum clause of declara- tion, effect, 545. The verdict should not be too small, 545-548. Remedy in such cases, 545-546. Rule for determining inadequacy, 545-546. Coercing a verdict, effect, 540. Chance verdicts, definition, validity of, 540. Quotient verdicts, definition, validity of, 540. Interest, 546-548. Verdict silent as to, from what date allowed, 546. Power of jury as to, 546. As an incident of the debt, 546. When interest suspended, 546. Promise to pay after date, with interest, when interest starts, 546. Contract to pay more or less than legal rate, what rate gov- erns after maturity, 546-547. Power of legislature to take away interest on existing judg- ment, 547-548. Money paid by mistake, time from which interest runs, 548. 1168 INDEX [References are to pages.] VERDICTS Cont'd. Entire damages on defective counts, 548-556. At common law, 548. Under statute, 548-556. No request to court to instruct jury to disregard defect- ive count, no demurrer, or general demurrer over- ruled, validity of general verdict, 548-556. Where court can see verdict founded on defective count, 556. Request to court to instruct jury to disregard defective count denied, or demurrer to defective count over- ruled, validity of general verdict, 548-556. When court can see verdict founded on good count, 556. When court doubtful on which count verdict founded, 556. Objections to verdicts, 557. Time for making, 557. Appeal and error, necessity for bill of exception, 557. Liberal construction of verdicts, 557. Form of verdict against joint tortfeasors, see Parties. Verdict in Detinue, see Detinue. Verdict in Ejectment, see Ejectment. See also Appeal and Error, Bills of Exception, Demurrer to Evi- dence, Instructions, Jury, Motions after Ve\rdict, Trial. VIEW AND INSPECTION See Trial. VOLUNTARY CONVEYANCES See Fraudulent Conveyances. WASTE See Ejectment. WILLS See Courts, Executors and Administrators, Homesteads, Limitation of Actions, Trial. WITNESSES See Bills of Exception, Continuances, Motions after Verdict. WORK AND LABOR Proceedings to recover for, see Assumpsit, Action of. WRIT OF ELEGIT See Judgments. WRITS OF ERROR See Appeal and Error. ii l . r\o