Resler v. Shehee.

ascertained by a jury, to be impannelled and sworn to inquire thereof, as is hereinafter directed."

Upon an equitable construction of these sections of the act, the practice in Virginia has been, to permit the defendant to come in at a subsequent term, and avail himself of any such defence as he has, in the same manner as if he had pleaded it, at the particular term mentioned. This question has been discussed in Virginia, and received the construction for which I contend. The case of Downman v. Dornman's Executors, 1 Wash. 26, was a plea of tender, after office-judgment confirmed. In p. 27, the court say, "these words, 'plead to issue immediately,' are the same as were used in the old act of 1753, for establishing the general court; under which, the practice of that court was very liberal, in allowing a defendant to plead that which did not make an issue, but required subsequent pleadings, provided the real justice of the case, and not intended delay, was thereby promoted. This is unavoidable in cases of bonds with collateral conditions, where the defendant cannot plead to issue." This is also agreeable to the principle laid down by Lord HOLT, in 2 Salk. 622: "That though a judgment be ever so regularly entered, it shall be set aside at any time, on payment of costs, so as the plaintiff does not *lose a trial." And again, in p. 28, "Considering [*114 the circumstances of this country, and the dispersed situation of attorneys and their clients, who can seldom communicate with each other but at court, justice seems to require a relaxation in these rules (English rules) of practice. It would seem to me proper to allow a discretion in the judges to admit any plea which appears necessary for the defendant's defence, and only to resort to the rigor of the rule, where delay appears to be intended." This plea, then, if necessary for the defendant's defence, ought to have been admitted. It contains nothing exceptionable, and the facts stated in it, if true, are a justification. There is no case more proper for special pleading than one in which the prejudices of the people are enlisted on one side or the other. The law only directs what is to be done, the first term, but afterwards, it is left open to the discretion of the court. In this case, there can be no pretence, that the plea was intended for delay, as it was offered on the 9th, and the cause was not tried until the 14th of October, so that there was full time to answer the plea and make up the issue.

To show that this plea is a good justification, I refer to the case of Coxe v. Wirrall, Cro. Jac. 193, where a similar plea was adjudged good, upon de

murrer.

It is a common practice, even in the English courts, to permit the general issue to be withdrawn, and a special plea filed, where it is not done, with an intent of delay. Jefferys v. Walton, 1 Wils. 177; and Taylor v. Joddrell, Ibid. 254. But the case of Downman v. Downman's Executors, before cited, seems conclusive upon this question.

CHASE, J.-Have the rules of the Virginia courts been adopted in the circuit court?

Lee.-I conceive the circuit court of Alexandria to be in the same situation as the district court at Richmond. And as I understand the act of congress, they are obliged to adopt the practice of the courts of Virginia, except where the circuit court has actually made a different rule.

Resler v. Shehee.

*Simms, for defendant in error.-I will not deny that the courts of Virginia have gone the length stated in Washington's Reports. They have used their discretion, and have considered whether the plea offered tends to the justice of the cause, or whether it is intended only for delay. In this case, the time having passed, when the defendant could file his plea as a matter of right, it was entirely in the discretion of the court to admit or reject it.

It is certainly not a sufficient justification, for the defendant to say that the magistrate committed the plaintiff; for that neither destroys the evidence of express malice, nor shows probable cause for the prosecution. The magistrate might have committed upon the evidence of the defendant Resler himself; so that this plea would most probably have been overruled, upon demurrer, and at any rate, would have created delay; for in a matter of so much consequence, it cannot be presumed, that the counsel for the plaintiff could at once determine whether to demur or to join issue.

The defendant was not precluded from making a proper defence. He might have shown probable cause, on the general issue, for the gist of the action is the want of probable cause; and the court had the power of instructing the jury whether such cause was shown or not. Bull. N. P. 14.

It is said, that the plea was offered in a reasonable time. It cannot surely be said, that three days, in the hurry of the court, is a reasonable time to answer such a plea—so say the courts of Virginia.

This plea amounts to the general issue, and therefore, ought not to have been received. The justice of the case did not require it, and it is only to promote justice that the courts have ever deviated from the precise terms of the law.

Mason, on the same side.-Admitting for a moment, that the practice of *116] the Virginia courts was binding upon the circuit court, yet the *court have only exercised the same discretion which a Virginia court might have exercised. There is a particular time allowed for special pleading; after that time, the admission of a plea is discretionary with the court. The case in Washington's Reports is clear, to show that it is altogether a matter of discretion. The court might have refused to receive any plea at all; for the right of the defendant to set aside the office-judgment, by pleading to issue, is confined to the court next succeeding the office-judgment.

But the defendant had every advantage under the general issue, which he could have had under his plea. It is extremely clear, that the plaintiff must show malice, and the defendant matter of justification. The rules of practice in the courts of Virginia, are confined to Virginia; the courts of the United States are not bound by them; they have power to make their own rules.

Lee, in reply.—Our complaint is, that the inferior court has not exercised its discretion in the manner it ought to do. I use the word discretion differently from Mr. Mason. The exercise of such discretion is subject to the control of this court. If we look to the decisions of the courts in Virginia, we find, that they have soundly exercised their discretionary power. The practice has constantly been, to let in the parties, notwithstanding any laches. Was it proper in the court to say, that although we have a right to suffer you to bring the question of probable cause before the court, and to take it from the jury, and although you wish so to do, yet we will not permit you,

but will compel you to go before the jury; where facts disclosed, not pertinent to the issue, might make an improper impression?

CUSHING, J.-Do you admit, that the defendant might have given in evidence, under the general issue, the facts stated in the plea offered?

Lee. It is sufficient for us, if it was a matter of doubt. In such a case, a cautious practitioner will always take the safest method, and plead the facts specially.

*There is no doubt, but the court had a right to make rules of [*117 practice for itself. But not having made such a rule in this case, its discretion ought to have been guided by the practice of the Virginia courts. We, therefore, hope, that this court will correct the indiscreet exercise of the power of the court below in this case.

THE COURT.- -It is true, that the courts in Virginia have been very liberal in admitting any plea, at the next term after an office-judgment, which was necessary to bring forward the substantial merits of the case, whether it was strictly an issuable plea, or not. But at a subsequent term, it is a matter of mere discretion with the court, whether they will admit any special plea at all.

In the present case, the facts stated in the plea offered, might have been given in evidence on the general issue; the court exercised their discretion soundly in rejecting the plea.

TURNER v. Fendall.

Judgment affirmed.

Execution.-Proceedings against sheriff.—Evidence.

A sheriff makes the money upon a fi. fa. at the suit of A. v. B., and afterwards a fi. fa. against A. is put into his hands, he cannot levy it upon the money of A., made by the fi. fa. of A. v. B., for it does not become the goods and chattels of A., until it is paid over to him; and by the command of the writ, the sheriff is, in strictness, bound to bring the money into court, there to be paid to the plaintiff.

Money may be taken in execution, if in the possession of the defendant.

On a motion, in Virginia, against a sheriff, for not paying over moneys by him collected on execution, it is not necessary that the judgment against the sheriff should be rendered at the term next succeeding that to which the execution has been returned.

Proceedings before magistrates, in cases of insolvent debtors, are matters en pais, and may be proved by parol testimony.

It is not error in the court below, to reject, as incompetent, admissible testimony, tending to prove a fact not relevant to the case before the court.

Fendall v. Turner, 1 Cr. C. C. 35, affirmed.

THIS was a writ of error to reverse a judgment of the Circuit Court of the district of Columbia, sitting at Alexandria, rendered on a motion by Fendall against Turner, late serjeant of the corporate town of Alexandria, for the amount of money received by him on a fieri facias issued on a judgment in favor of Fendall against one Towers. (Reported below, 1 Cr. C. C. 35.)

This motion was grounded on an act of assembly of Virginia (Rev. Code, p. 317, § 51), by which it is enacted, that "if any sheriff, under-sheriff or

1 See Mechanics' Bank of Alexandria v. Withers, 6 Wheat. 106.

Turner v. Fendall.

other officer shall make return upon any writ of fieri facias or venditioni exponas, that he hath levied the debt, damages or costs, as in such writ is required, or any part thereof, and shall not immediately pay the same to the party, to whom the same is payable, or his attorney," "it shall and may be lawful for the creditor at *whose suit such writ of fieri facias, &c., *118] shall issue, upon a motion made in the next succeeding general court, or other court from whence such writ shall issue, to demand judgment against such sheriff, officer or under-sheriff, or securities of such under-sheriff, for the money or tobacco mentioned in such writ, or so much thereof as shall be returned levied on such writ of fieri facias, &c., with interest thereon at the rate of fifteen per centum per annum, from the return-day of the execution, until the judgment shall be discharged; and such court is hereby authorized and required to give judgment accordingly, and to award execution thereon; provided, such sheriff or officer have ten days' previous notice of such motion."

Fendall had recovered judgment against Towers, in the court of hustings, in the town of Alexandria, for $627.52 damages, and $4.91 costs, on which judgment, a fieri facias issued, directed to the serjeant of the court of hustings, dated the 13th of December 1800, returnable to the said court of hustings, on the first Monday of February then next. Upon this writ, was the following return, viz.:

"Serjeant returns, executed on one large copper boiler and sundry casks, and sold for the sum of $703.98, including serjeant's commissions, on which money, I have levied a writ of fieri facias, issued from the clerk's office of the court of Fairfax county, on a judgment obtained by William Deneale against Robert Young and Philip R. Fendall, merchants, trading under the firm of Robert Young & Co.

CHARLES TURNER, T. S."

Before the next succeeding term of the court of hustings, after the return of the execution, the act of congress of 27th of February 1801, concerning the district of Columbia, intervened, by which, the laws of Virginia, as they then existed, were declared to be and continue in force in that part of the district of Columbia which was ceded by that state to the United States, and by them accepted for the permanent seat of government; and all suits, process, &c., depending in the court of hustings for the town of Alexandria, were transferred to the circuit court of the district of Columbia established by that *act; and the first session of the circuit court, in Alexandria, was by law held on the second Monday of April 1801.

*119]

To that term (April 1801), Fendall gave Turner notice, in the usual form, that on the first day of the court, he should move for judgment against him for the amount of the execution, with interest thereon, according to law; which notice was signed "Philip Richard Fendall, for the trustees of Philip Richard Fendall," and was duly served. Turner not having appeared, the motion was continued to the next term (July 1801), when he appeared and admitted the regularity of the delivery and continuance of the notice; and the court, upon argument, gave judgment for the plaintiff, Fendall; to reverse which judgment, Turner sued out the present writ of

error.

The record which came up contained three bills of exceptions. The first stated that the defendant, Turner, to prove that Fendall had taken the oath

Turner v. Fendall.

of an insolvent debtor, and was thereupon discharged out of custody, produced the following writing, viz.:

"Fairfax, ss. Whereas, Philip Richard Fendall, a prisoner confined in the jail of Fairfax county, under execution at the suit of Samuel Love, issued from the district court of Dumfries, and it appearing that legal notice had been given, and a warrant issued, for bringing before us, for the purpose of taking the oath of an insolvent debtor, and the said Philip Richard Fendall having this day, in the court-house of the said county, delivered in a schedule of his estate and effects, and taken the oath prescribed by law; these are, therefore, in the name of the commonwealth, to command you to discharge the said Philip Richard Fendall out of your jail and custody, and for so doing, this shall be your sufficient warrant. Given under our hands and seals, this 21st day of March, eighteen hundred. WILLIAM HERBERT, [Seal.] R. WEST.

[Seal.]

"To the sheriff or keeper of the jail of Fairfax county." And offered to prove the handwriting of the said William Herbert and Roger West; and also to prove by oral testimony, that the said Philip Richard Fendall did take the *oath of an insolvent debtor, before the [*120 William Herbert and Roger West, whose names are subscribed to the said writing, and also to prove by oral testimony, that the said William Herbert and Roger West were magistrates of the county of Fairfax, on the 21st of March 1800, and had acted as such for many years before; but the court gave it as their opinion, that the said writing and oral testimony were not legal evidence to be admitted to prove the above-mentioned facts.

The 2d bill of exceptions stated, that the defendant Turner offered to show to the court, that the trustees of Fendall were not entitled to the money levied on the execution of Fendall v. Towers, but the court refused to suffer him to go into that inquiry.

The 3d bill of exceptions stated, that the defendant Turner produced a copy of an execution issued on a judgment obtained by William Deneale against Robert Young and Philip Richard Fendall (the plaintiff in motion below), and a copy of the return, which return was in these words:

"Executed on the sum of $682.43, money in my hands, being the amount of the sum received by me for the sale of certain property taken by virtue of a fieri facias, issued from the clerk's office of the court of hustings of Alexandria, on a judgment obtained by the within named Philip R. Fendall against John Towers. CHARLES TURNER, T. S."

And alleged, that he had a right, and was bound, to levy that execution on the money of the said Fendall, which he had levied by virtue of the execution of Fendall v. Towers, and which was in his hands, separate and distinct from any other money, at the time the execution of Deneale v. Young and Fendall was delivered to him, but the court gave it as their opinion that he had not a right, and was not bound so to do.

The case was now argued by Simms, for the plaintiff in error, and by C. Lee and Swann, for the defendant.

For the plaintiff in error, it was contended: *1st. That the court [*121

below was not authorized to render judgment at any other term than