Bradley v. Welch
| Decision Date | 18 April 1801 |
| Citation | 15 Va. 284 |
| Parties | Bradley v. Welch |
| Court | Virginia Supreme Court |
In an action of debt, instituted by Thomas Bradley against James Welch, in the District Court of Fredericksburg, the writ issued December 12th, 1799, with an endorsement thereon " that bail was required." The Serjeant of the town returned it " Executed, and Thomas R. Rootes, appearance bail." At Rules in the Clerk's office, May 16th 1800, declaration was filed in the usual form, on a promissory note; and the defendant at the same time " by his attorney offered a plea, on oath, stating, that he is a resident of the County of Greenbrier, in the District of the Sweetsprings, and has resided there for five or six years and that his only and known residence is in the said County and District; and that he never did reside in the County of Spottsylvania, or in the District of Fredericksburg, nor was the security entered into within the said District of Fredericksburg; and this he is ready to verify; wherefore he prays judgment of the said writ, and prays the same may be quashed."
The plaintiff's counsel rejected this plea, and the Clerk submitted the question to the Court, whether it ought to be received, without first filing special bail.
The cause having been from time to time continued until the 14th October, 1802, the Court on that day decided " that the Clerk has no discretion; but, where appearance bail is required, the defendant cannot appear at the Rules, without first putting in special bail; and therefore the plea was rightly rejected." At the ensuing Rules, the defendant failing to file special bail, a conditional judgment was entered against him. At the Court held for the said District May 16th, 1803, Thomas R. Rootes, the appearance bail undertook as special bail, and again offered the same plea which had formerly been rejected. The counsel for the plaintiff again objected; but the Court (as appears from a bill of exceptions signed by the Judge) " being informed by the Clerk that the delay in this case had proceeded from some misunderstanding between the plaintiff's counsel and himself, respecting the course which ought to have been taken at the Rules, and not from any default on the part of the defendant, were of opinion that this cause should be considered as standing on the same ground as if the writ had been returnable to the last term, and therefore admitted the defendant to file his said plea, leaving it to the plaintiff to demur thereto, if he thinks proper." Whereupon, the judgment obtained in the office was set aside, and the cause sent to the Rules; where, in August, 1803, the plaintiff filed a general demurrer to the plea, and issue in law was joined; upon which the Court, at August term, 1804, gave judgment for the defendant; and the plaintiff appealed.
Williams, for the appellant. The Court erred in receiving a plea in abatement to set aside an office judgment: for, even after imparlance, it is too late to exhibit such plea. [a] According to the act of Assembly which limits the jurisdiction of the District Courts, [b] the proper time to have taken advantage of the objection was at the " first calling" of the cause, which was at the first Rules after the return of the writ. The proper mode of objecting to the jurisdiction is by plea, that the plaintiff may have an opportunity to reply, that a writ had issued against the defendant in his own District, and been returned " non est inventus." But the plea could not be filed without special bail, which the defendant failed to give.
The Court's admitting it, on the ground of some misunderstanding between the Clerk and the plaintiff's counsel, cannot cure the defect; for the defendant had been guilty of default long before.
2. This plea was bad upon general demurrer. It should have been pleaded in propria persona, [c] and not by attorney, without special leave of the Court. [d]
Judge Roane. Judge Fleming. Judge Tucker did not sit in this cause, having signed the bill of exceptions in the District Court. He did it to settle the practice which had been different from the present decision of this Court; and expressed his entire concurrence with the decision.
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