24 Gratt. 138 | Va. | 1873
delivered the opinion of the court.
This is a supersedeas to a judgment of the Circuit court of Culpeper county, rendered on the 10th day of June 1868, against a sheriff’ and his sureties, on his official bond, for his default in regard to a writ of fieri facias which came to his hands for execution. The original declaration was for the default of the sheriff in not paying to the relator, who was entitled to receive the same, the amount of the said writ alleged to have been received by the said sheriff from the defendants therein. The declaration was afterwards amended, assigning a further breach of the condition of the bond, in not making and paying the money in the said suit mentioned according to the mandate thereof. There were four pleas to the declaration: 1st, conditions performed ; 2d, non damnifieaius; 3d, nul tiel record; and 4th, that “ Carter A. Saunders, for whose benefit the execution in the said declaration set forth was, and who is the person to whom the money was due under said execution is payable, resided on the 22d day of June 1860, (when the execution was delivered to the sheriff,) and has since continuously resided, and still resides, in a different county from that in which the said sheriff, James O. Harris, resided, and that no demand of payment of the amount of said execution was made of the said sheriff, by the said Saunders or his attorney at law, or any person having a written authority from the said Saunders, in the county of the residence of the said sheriff. To these pleas the plaintiff replied generally. The defendants moved the court to strike out the general replication to the 4th plea; which motion the court
The defendants excepted to opinions of the court given upon the trial, and also to the judgment of the court rendered upon the evidence; the whole of which is set out in a bill of exceptions. Two cf the defendants, Walter O’Bannon and Jacob S. Egborn, sureties of the said sheriff, applied for and obtained a supersedeas to the said judgment; which is the case we have to dispose of.
The petition for the supersedeas assigns five errors in the judgment, which we will consider in the order in which they are assigned — and,
1st. Because there was no evidence that said writ of fieri facias was levied by the sheriff before the return day, (September rules 1860,) and it is well settled that if the money is paid to the sheriff’ after the return day, when there has 1 een no levy before, (as was the fact in this case,) the payment is not to the sheriff) in his official character, and consequently does not bind his sureties. 1 Rob. Old Prac. 532; Chapman v. Harrison, 4 Rand. 336.”
We think that the answer made to this assignment of error in the argument of the counsel for the defendant in error, and the authorities cited in said argument, are conclusive in favor of the said defendant. The presump
If, however, the writ had not, in fact, been actually
Our opinion, therefore, is against the plaintiff in error on the first assignment of error taken by him. And now let us consider the next — which is:
“2d: Because the money not having Been received by the sheriff for about two years after the execution went into his hands, to wit: until the 1st of July 1862, as fixed by the court below, whether levied or not, he then had no authority to receive it. On the 26th day of July 1861, the General Assembly of Virginia, in session in the city of Wheeling, passed an act which went into operation on its passage, entitled ‘An act staying the collection of certain debtswhereby it was enacted, ‘ that in any case where a levy has been made prior to the passage of this act, the property so levied upon shall be returned to the owner; and the judgment upon which the levy was made shall be a lien upon all the property, both real and personal, of the debtor’, and shall have priority over all other judgments as against the personal property of such debtor.’ Sess. acts 1861, p. 24. This act operated as a legislative injunction, and put an end to the authority of the sheriff to sell where a levy had been made, and consequently to his right to receive payment in his official character, so as to bind his sureties.”
The answer made to this assignment of error in the argument of counsel of the defendant in error is two fold: 1st — That according to the principles before stated and authorities before cited, we must say, upon the evidence, construing it most strongly against the plaintiff in error, that the money was received by the sin riff on
“ 3d: Because the evidence proved that the relator was not a resident of the county of Culpeper, and no demand was made in said county after the receipt of the money, either by the plaintiff, his attorney at law, or by any other person having a written order, of which the sheriff was informed. See Code of 1860, ch. 187, § 20, p. 775.”
Field testified that he was the attorney who brought the suit in which the judgment was obtaine , on which the execution aforesaid was issued, and that, after the return day of the execution, he frequently applied to the sheriff who well knew that he was counsel in the case, for the money, but always without success. He does not think the money had been collected when he called on him, and he never made such a call after the 17th of April 1861, at which time witness left the county to enter the army. This testimony is of itself a sufficient answer to the 3d assignment of error. Field resided in the same county with the sheriff, and was well known
Our opinion is against the plaintiff in error on his 3d assignment of errors. The next is:
«4th — The judgment of the court should have been*146 for the defendants, on the plea of nul tiel record; because no judgment or writ of fieri facias, such as is set out in the declaration against John S. Barbour, George G. Thompson and James Barbour, was produced; but one against John S. Barbour, jr., George G. Thompson anti James Barbour, was.”
This assignment of error is based upon the narrow ground, that the omission in the declaration of the two letters “jr.,” added to the name of John S. Barbour in the judgment and execution, is a fatal variance between the allegata and probata. "We do not think so. “Jr.” is no part of the name, but a mere descriptio personas, and may be rejected as surplusage. It would have done no harm if it had been inserted in the declaration. Utile per inutile non vitiaiur. But it was unnecessary to insert it there; as it would have been unnecessary to have inserted any other addition by which John S. Barbour might have beeu described in the judgment and execution. As for iustance, “attorney at law,” or “ president of a rail-road company,” or “resident of the county of Culpeper,” &c. &c. “Junior is no part of a person’s name,” 7 Bacon’s Abri. p. 8; Bouviser’s Am. ed. of Gwyllim’s Eng. ed. 1846, and cases cited, viz: Commonwealth v. Perkins, 1 Pick. R. 388; Cobb v. Lucas, 15 Id. 7; Kincaid v. Howe, 10 Mass. R. 203; 7 Johns. R. 549; 2 Caines R. 164; 17 Pick. R. 200; 3 Metc. R. 330. There seems to be some conflict of authority upon the question whether the omission of the designation “jr.” annexed to a man’s name to a bond or note, would be a material variance in describing such bond or note in a declaration or other pleading; but the preponderance of authority, and reason also, seem to be in favor of its being no variance. See Headley v. Shaw, 39 Illi. R. 354, decided in 1866, in which Mr. Justice Breese, delivering the opinion of the court, said: “The weight of authority
Our opinion, therefore, is against the plaintiff, on his 4th assignment of errors. The next and last is:
“5th — The judgment of the court was erroneous, in refusing to strike out the plaintiff’s general replication to the defendant’s 4th plea.”
It is a sufficient answer to this assignment of error to say, that no exception was taken in the court below to the action of the court in refusing to strike out the general replication to the 4th plea; and it is too late to take it, for the first time, in this court. But the answer, made by the counsel of the defendant in error, is also a good one. While “the defendant, in any action, may plead as many several matters, whether of law or fact, as he shall think necessary,” (Code, ch. 171„ § 23,) yet he must plead them in several pleas, and not all, or more than one, in one plea, unless the several matters so pleaded in one plea, be constituent parts of one and the same defence. Duplicity, to that extent, must still be avoided by a defendant in an action; and while the plaintiff' in an action cannot make several replies to one plea, yet he can reply severally to each plea. If the defendant include several distinct matters of defence in one plea, he has no right to complain of the plaintiff for replying generally to such plea. If the plaintiff in such case can be said to be guilty of a fault in pleading, it is induced by his adversary, who is guilty of the first fault. Whether, therefore, the 4th plea in this case be double or single, it is no error in the plaintiff to reply to it generally; and
' Our opinion is, therefore, against the plaintiff in error on his 5th and last assignment of errors,
"We think there is no error in the judgment, and that it ought to be affirmed.
Judgment aeeirmed.