Renick v. Correll

4 W. Va. 627 | W. Va. | 1871

Berkshire, President.

The first objection relied on for reversing the judgment complained of, is the failure to make up the issues on the' two special pleas filed by the defendants.

Whether this be error, of which the appellants can avail themselves here, must depend on the question whether the pleas, or either of them, present a bar to the plaintiff’s action. For if they do not, and are bad in substance, then it is clear that the defendants were not injured by such omissions; as any issue that might have been had upon them, would have been immaterial and unavailing. Caperton v. Martin, infra.

If taken to be true then, do the pleas, or either of them, present a valid defence or bar to a recovery by the plaintiff?

While the record shows that only two special pleas were filed, a third one is copied into it. Taking them in the order in which they are found on the record, we are required to consider only the first two of them.

As to the first: It was admitted to be bad by the counsel for the defendants and appellants, and properly so, as it is clearly defective in substance, and presents no valid defence. In form and substance, I think the second is equally defective. It is too indefinite and uncertain in form, and would allow too much latitude of defence, without giving to the plaintiff notice of the precise defence that would be made under it. It moreover, in substance, asserts the proposition that, although the defendants might have been indebted to the plaintiff or his intestate, in any sum, to be paid in confederate money, and settled or compromised such indebtedness, by giving their bond for a less sum, in settlement of the original debt, that such latter bond is also illegal and void. It, therefore, in my judgment, involves the same principle and defence that was sought to be made, and was overruled in the case of Jarrett v. Nichol, infra.

The next objection suggested is, that the court erred in refusing to certify the facts in the bill of exceptions taken by the defendants, sufficient to show the propriety, or impropriety, of the instruction given by the court in behalf of the plaintiff.

If the evidence, as stated in the bill of exceptions, was contradictory, the court was not bound to certify the facts or the evidence, further than was sufficient to show the pertinency of the instruction predicated on it. The question suggested, however, does not arise on the record, and it is unnecessary further to consider it.

The remaining error assigned is the ruling of the court, in giving the instruction set out in said exceptions. I do not perceive any substantial error in such instruction, and certainly none of which the defendants could justly complain.

I am of opinion, therefore, to affirm the judgment, with costs and damages.

The other judges concurred.

Judgment aeeirmed.