23 Am. Dec. 251 | Va. | 1831
It appears hy the record, that there were but eleven jurors sworn. Tt was suggested by the appellee’s counsel, that this might be an error of the clerk in transferring the proceedings from his minute book to the order book. Whatever power this fact might give the court below to correct the entry in the order book, I presume it gives to this court no power on that subject. For this error, therefore, the judgement must be reversed, and the cause sent back.
But there was another point argued, that presented by the bill of exceptions to the instruction given by the circuit court to the jury; and as that point will again arise in the trial there, it may not be amiss to give our ideas upon it. It was, indeed, the only point which the appeal was intended to bring up. The attempt was to set off in this action, the price of a parcel of corn, not delivered according to contract by Coleman the obligee, which formed a part of the consideration of the bond on which the action was brought; in other words, (as it seems to me) to deduct the price of the corn from the bond, that part of the consideration having failed. This, I think, was inadmissible, upon the principle that one cannot at law, inquire into the consideration of a bond, in a case like this. Suppose the whole consideration had been corn, could the defendants have defeated the action by shewing a non-delivery ? Here were two contracts. Mrs. Coleman gave her bond to pay so much money. The obligee bound himself to deliver her so much corn. Each had an action. But her’s was for unliquidated damages, and they can never be set off against a liquidated demand. Besides, the claims were not mutual; not due in the same right. In a suit by Mrs. Christian for non-delivery of corn, the bond could not have been set off. The law is settled on this subject, both by english and american decisions; it is not
Cabell and Brooke, J. concurred.
The reversal of the judgement is inevitable. The issue was tried by eleven instead of twelve jurors; which is a fatal error. It was suggested, indeed, that the minutes of the court’s proceedings might shew, that there were twelve persons sworn to try the issue, the name of one of whom was omitted by mistake in drawing up the orders. But though the complete records in the county courts are amendable by the minutes, since these last are the act of the court, whereas the full record is the act of the clerk in his office, yet in the circuit courts the minutes are mere memoranda of the clerk, while the orders have the sanction of the court’s authority. They are directed to be drawn up at large in the interval of the court; to be read over at its next sitting, and corrected where correction is necessary; and this for preventing errors in the proceedings. 1 Rev. Code, ch. 69. § 46. p. 237. It would be subversive of the spirit of this provision, to consider the orders thus examined and approved, as subject to be controlled by the loose memoranda of the ministerial officer; and so this court has decided.
With respect to the point appearing in the exceptions, on which the opinion of the court is desired, I have no doubt, that the set-off was properly rejected, though, perhaps, for reasons different from that which seems to have prevailed with 'the court below. . 1st, The action was a joint action against two, and the set-off attempted was the individual demand of one of the defendants against the obligee. It is vain and useless to speculate now upon the reasonableness of permitting or refusing such a set-off: it has been too frequently settled by the practice of the courts, that such a set-off is not allowable, for the court now to act upon a different principle. Ritchie Wales v. Moore, 5 Munf. 388.