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" was stolen out of the house of the defendant, by fome "perfon unknown to the defendant, and the faid defend"ant being informed by a certain John McGill, his jour"neyman, that the faid box of tallow was in the house "of the plaintiff, complained to Francis Peyton, mayor "of the said town, of, and concerning the faid box of "tallow, who by his warrant, dated the 27th day of De"cember, in the year 1799, called the plaintiff before "him and examined him; and upon his examination and "the teftimony of fundry perfons, bound the plaintiff "to appear at the next grand jury court of huftings of "said town, to answer the charge contained in faid war❝rant, of, and concerning the receiving the faid box of "tallow, fo ftolen as aforefaid, and which was found in "his poffeffion, whereupon, the plaintiff appearing was "acquitted and discharged by the faid court, which is the "fame procurement of the faid warrant and acquittal "whereof the aforefaid action is brought, and this the "defendant is ready to verify, &c."

The plaintiff objected to the filing of that plea, in this ftage of the cause, and upon argument, the court on the 13th day of October, refufed to receive it; whereupon, the defendant took a bill of exceptions, and pleaded the general iffue, upon which, on the 14th day of October, there was a verdict for the plaintiff, and judgment for 1000 dollars damages.

On that judgment the defendant brought his writ of error to this court, and the error affigned was the refusal of the court below to fuffer the defendant to file the special plea above recited.

The cause was at this term argued by C. Lee for plaintiff in error, and Simms and Mafon for defendant.

Lee. This cafe depends upon the law and practice of Virginia. By the act of congress of 3d March, 1801, fupplementary to the act concerning the diftrict of Columbia, fec. 3, it is enacted, "that the circuit court for "the county of Alexandria, fhall poffefs and exercise "the fame powers and jurifdiction, civil and criminal, "as is now poffeffed and exercised by the district courts ❝of Virginia."

The act of affembly of Virginia, respecting the district courts of that ftate, fec. 28, (revifed code, p. 85.) provides, that "every judgment entered in the office against "a defendant and bail, or against a defendant and the"riff, fhall be fet afide, if the defendant, at the fucceed"ing court, fhall be allowed to appear without bail, put "in good bail, being ruled fo to do, or furrender himself "in cuftody, and fhall plead to iffue immediately." And in fec. 42, of the fame act, p. 87, it is further provided, "That all judgments by default for want of an appear"ance or special bail, or pleas as aforefaid, and non-fuits " or difmiflions obtained in the office, and not fet afide "on fome day of the next fucceeding diftrict court, shall « be entered by the clerk as of the last day of the term; "which judgment shall be final in actions of debt found"ed on any fpecialty, bill, or note in writing, afcer"taining the demand, unless the plaintiff shall choose "in any fuch case to have a writ of enquiry of damages; " and in all other cafes the damages fhall be ascertained "by a jury, to be empanneled and fworn to enquire "thereof, as is herein after directed."

Upon an equitable conftruction of thefe fections 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 fame manner as if he had pleaded it at the particular term mentioned. This queftion has been discussed in Virginia and received the conftruction for which I contend. The cafe of Downman v. Downman's executors, 1. Wafb. 26, was a plea of tender after office judgment confirmed. In p. 27, the "court fay, these words " plead to iffue immediately," are "the fame as were used in the old act of 1753, for esta"blishing 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 iffue, but required "fubfequent pleadings, provided the real justice of the "cafe, and not intended delay, was thereby promoted. "This is unavoidable in cases of bonds with collateral "conditions, where the defendant cannot plead to iffue. "This is also agreeable to the principle laid down by lord "Holt, in 2. Salk. 622;." That though a judgment be "ever fo regularly entered, it shall be fet afide at any "time on payment of costs, so as the plaintiff does not P

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RESLER "lose a trial." And again in p. 28, "confidering the cir"cumftances of this country and the difperfed fituation "of the attornies and their clients, who can seldom com"municate with each other but at court, justice seems to "require a relaxation in these rules (English rules) of "practice. It would feem to me proper to allow a dif"cretion in the judges to admit any plea which appears "neceffary for the defendant's defence, and only to re"fort to the rigor of the rule where delay appears to be "intended." This plea then, if neceflary for the defendant's defence, ought to have been admitted. It contains nothing exceptionable, and the facts ftated in it, if true, are a juftification. There is no cafe more proper for fpecial pleading than one in which the prejudices of the people are enlisted on one fide 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 cafe 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 iffue.

To fhew that this plea is a good juftification, I refer to the cafe of Coxe v. Wirrall, Cro. Fac. 193, where a fimilar plea was adjudged good upon demurrer.

It is common practice, even in the English courts, to permit the general iffue to be withdrawn, and a special plea filed, where it is not done with an intent of delay. Jefferys v. Walter, 1 Wilfon, 177-and 254, Taylor v. Foddrell. But the cafe of Downman v. Downman, before cited, feems conclufive upon this question.

Chafe, Juftice. Have the rules of the Virginia courts been adopted in the circuit court?

Lee. I conceive the circuit court at Alexandria, to be in the fame fituation as the diftrict court at Richmond. And, as I understand the act of congrefs, they are obliged to adopt the practice of the courts of Virginia, except where the circuit court has actually made a different rule.

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 ufed their difcretion, and have confidered whether the plea offered tends to the juftice of the caufe, or whether it is intended only for delay. In this cafe, the time having paffed when the defendant could file his plea as a matter of right, it was entirely in the difcretion of the court to admit or reject it.

It is certainly not a fufficient juftification for the defendant to say that the magiftrate committed the plaintiff; for that neither deftroys the evidence of exprefs malice, nor fhews probable caufe for the profecution. The magiftrate might have committed upon the evidence of the defendant Refler himself; fo that this plea would moft probably have been over-ruled upon demurrer, and at any rate would have created delay; for in a matter of so much confequence it cannot be prefumed that the counsel for the plaintiff could at once determine whether to demur or to join iffue.

The defendant was not precluded from making a proper defence. He might have fhewn probable cause on the general iffue, for the gift of the action is the want of probable caufe; and the court had the power of inftructing the jury whether fuch cause was fhewn or not. Buller, N. P. 14.

It is faid that the plea was offered in a reasonable time. It can not surely be faid that three days in the hurry of the court is a reasonable time to answer such a plea-fo fay the courts of Virginia.

This plea amounts to the general iffue, and therefore ought not to have been received. The juftice of the cafe did not require it, and it is only to promote juftice that the courts have ever deviated from the precife terms of the law.

Mason, on the same side.

Admitting for a moment that the practice of the Virginia courts was binding upon the circuit court, yet the

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court have only exercifed the fame difcretion which a Virginia court might have exercised. There is a particular time allowed for special pleading; after that time, the admiffion of a plea is difcretionary with the court. The cafe in Washington's reports is clear to fhew that it is altogether a matter of difcretion. 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 iffue, is confined to the court next fucceeding the office judgment.

But the defendant had every advantage under the general iffue, which he could have had under his plea. It is extremely clear that the plaintiff muft fhew 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 exercifed its difcretion in the manner it ought to do. I use the word difcretion, differently from Mr. Mafon. The exercife of fuch difcretion is fubject to the control of this court. If we look to the decifions of the courts in Virginia, we find that they have foundly exercised their difcretionary power. The practice has conftantly been to let in the parties notwithstanding any laches. Was it proper in the court to say, that although we have a right to fuffer you to bring the queftion of probable cause before the court, and to take it from the jury, and although you wish fo to do, yet we will not permit you, but will compel you to go before the jury; where facts disclosed, not pertinent to the iffue, might make an improper impreffion?

Cubing, fuflice. Do you admit that the defendant might have given in evidence under the general iffue, the facts ftated in the plea offered ?

Lee. It is fufficient for us if it was a matter of doubt. In fuch a cafe, a cautious practitioner will always take the fafeft method, and plead the facts fpecially.