22 W. Va. 317 | W. Va. | 1883
The whole subject of controversy in this Court in this case is whether the court erred in finding for the plaintiff on the plea of mil tiel record and in permitting the evidence, which it did, to go to the jury. The bond sued on and offered in evidence it will he observed is not skillfully drawn. The condition of this bond is substantially such as the law requires, though it is not worded with entire accuracy (see ch. 133 § 10 of Code of W. Va. p. 632) but the recitals in the conditions of this bond are not as accurate, as they should have been. The recital is, that John P. Hill and William S. Hill have
Whether a part of a record, as for instance a decree, can
In this case the production of the chancery order of June 13, 1870, did not on its face show satisfactorily the dissolution of the injunction recited in the injunction-bond sued upon, and it was therefore necessary to establish by some other evidence, that the injunction dissolved by this order of June 13, 1870, and the injunction recited in the injunction-bond were the same. This, if it were true, could of course have been done by the production of the balance of the record or probably by the production of the bill or petition asking the injunction and the order granting such injunction. This however was not done, but the identity of the injunction named in the order of June 13, 1870, and of that named in the bond was attempted to be established by proving by the clerk, who had the custody of the papers in the chancery cause, that this injunction-bond sued on was filed in the papers of the chancery cause, in which said order was entered; and this, it is claimed by the counsel for the defendant in error, was legitimate testimony and prima facie established the fact, that the bond thus filed was the bond given on the awarding of the injunction in that cause, and that therefore the injunction named in this order and the one recited in the bond were identical. It is true, that this bond may by mistake have boon filed among the papers of a cause, with which in had no connection; but, if this, was so, of
Before considering the weight of this evidence we must first determine whether it is legitimate evidence. It is very clear, that the clerk could not have proven, that the injunction, which had been arvarded in the chancery cause, was the same injunction recited in the .bond sued on, as parol evidence of the character of the injunction granted in the chancery cause would have been clearly inadmissible. But it does not follow, that the clerk could not prove, that the injunction-bond sued on was filed in this chancery cause, and this is all he did prove. If this was admissible evidence, and sufficiently established the identity of the injunction dissolved and the injunction recited’ in the bond sued upon, the plaintiff’s case was made out and there was no necessity for him to produce the balance of the record to show the character of the injunction, which had been awarded and dissolved in the chancery cause; for he had already when he proved the injunction-bond and produced it, fully establised the character of the injunction, and that it had been awarded by the court.
If a bond recite a fact, though the fact recited be a matter, which ought regularly to appear of record, the parties obligors in the bond will be estopped from denying the truth of such recital. Thus if the bond recites, that a certain person was sheriff and a certain other person his deputy, though these facts appear of record, yet they need not be proven in a suit on such bond otherwise than by the production of the bond; for the obligors in it are estopped from denying the truth of the recital. See Cox et als. v. Thomas's Adm’r, 9 Gratt. 320; 1 Greenl. Ev. §§ 22, 20; Rainsford v. Smith, Dyer’s R. 196 a; Culler v. Dickinson, 8 Pick. 386.
So parties are estopped from denying that there was such an injunction awarded or judgment or decree rendered, as
In this case the bond sued on recites, that “the above bound John P. Hill and William S. Hill hath prayed and obtained an injunction in chancery to stay the proceedings on a judgment at common law obtained by the Northwestern Bank of Virginia against them and Thomas Little, Ira Tiller, James Callee and James D. Hill for four hundred and eighteen dollars and fifty-six cents, with legal interest thereon from July 24, 1857, until paid and three dollars and eight cents charges of protest and the costs, which judgment was obtained on the 4th day of March, 1858, in the county court of Mercer county.” When the plaintiff in this suit below produced and proved this bond, he conclusively established all these facts so recited in this bond; for the obligors in it were estopped from denying any of these recited facts. All that remained to be done by the plaintiff’below was to prove, that the condition of this bond had been broken, that is, to prove that this injunction was dissolved. This would be completely done by proving the identity of this injunction with the one dissolved by the chancery order of June 15, 1870; and this identity was attempted to be shown by proving by the clerk, that this injunction-bond was filed in that chancery cause. Could this be proven in this manner ? Of course the proper and best mode of showing the connection between this chancery cause and this injunction-bond would have been to have recited this connection on the face of the bond; and if this was not done, as it was not, the next best mode would have been for the clerk, who took this bond and filed it, to endorse on it his approval of the bond and the chancery cause in which it was taken and when it was filed. But in order to give validity to this injunction-bond none of these things were necessary.
This Court decided in Lyttle v. Cozad, 21 W. Va. 205, that the law did not require the endorsement by the clerk on the bond, that it was given in such a cause. Neither this nor the acknowledgment or approval of such a bond is required to be manifested by any matter of record or by any writing. See also McClure v. Colclough, 5 Ala. N. S. 66. It being the
The cl erk in this instan ce h a ving testified, that the inj unctioi 1-boud sued on was filed in the cause, in which this order dissolving the injunction, which had been granted, was entered, it seems to me, that the identity of the injunction named in this order and that named in the bond is prima facie established ; aud it threw upon the defendant below the burden of showing, that these injunctions were not identical. As Judge Tucker says in White v. Clay’s Ex’or, 7 Leigh 82, this prima facie evidence might be rebutted by the defendants showiug any other matter in this record, which would avoid the effect of this evidence introduced by the plaintiff below.
It is claimed in argument by the counsel for the plaintiffs in error, that there is such a difference between the heading of this order dissolving the injunction and the order of June 16, 1870, dismissing the cause, that the two orders cannot be regarded as being in the same suit though the clerk testified that they weVe the same. This diversity however can not be regarded as sufficient to justify the court in holding, that this last order was entered in some other cause. See Jones v. Jones, 6 Leigh 167; Sayer v. Edwards, 19 W. Va. p. 356.
It is very questionable whether the court below ought to have allowed the defendant to plead nid tiel record concluding with a prayer for the judgment of the court, whether there be such record; for as the injunction-bond was the foundation of the action, the fact of its dissolution was perhaps to be regarded as a collateral matter, which is indeed .'to be established by a record, but, it would seem, it should be’tried by a jury upon the production of the proper evidence before
I have thus far assumed, that the court did not err in overruling the demurrer in this case. No errors in the declaration have been pointed out by the counsel for the plaintiff in error, and I see no defect in it, unless it be a defect, that the queritur states the amount of debt claimed as nine hundred and forty dollars, and each count alleges an execution of a bond to the plaintiff of nine hundred and forty dollars, making apparently two thousand eight hundred and twenty dollars as the entire debt due. The most regular form of the demand in such case would have been to claim two thousand eight hundred and twenty dollars. See Ross v. Gill et ux., 1 Wash. 89, and The People v. Van Eps, 4 Wend. 393. But a failure to observe this form does not make the declaration bad on general demurrer. See Lord v. Houston, 11 East. 62;
For these reasons the judgment of the circuit court on the verdict of the jury must be affirmed, unless this judgment is fatally defective in form. This judgment was entered up in the old form for nine hundred and forty dollars, the penalty of the bond to be discharged by the payment of nine hundred and twenty dollars'and seventy-six cents the damages assessed by the jury. The Code of West Virginia ch. 131, § 17, p. 628 says, that in such suits “judgment shall be entered up for what is so ascertained to be due by the jury.” If we were to regard this statute as requiring not simply permitting the judgment to be entered in this new form, .it would still be obvious, that the defendant would not be prejudiced by entering it up by the court in the old form; and therefore this Court would not reverse the judgment for such error, if it be an error.
The judgment of the circuit court of Monroe county entered on October 17, 1877, must therefore be affirmed; and the plaintiff in error must recover of the defendant in error his costs in this Court expended and damages according to law to be levied of the goods and chattels of Fielding Fleshman, deceased, unadministered in the hands of Wm. Adair jr. administrator de bonis non with the will annexed of Fielding Fleshman.
Judgment Aeeirmed.