Duval v. Malone
| Citation | 55 Va. 24 |
| Court | Virginia Supreme Court |
| Decision Date | 18 May 1857 |
| Parties | DUVAL, adm'r & c. v. MALONE & al. |
1. A declaration on an indemnifying bond in the name of the administrator de bonis non of the high sheriff, sets out the bond as made to himself: and without craving oyer of the bond, the defendants demur. As there is enough in the declaration to enable the court to proceed to judgment according to law and the very right of the cause, the demurrer should be overruled.
2. To take advantage by demurrer of a variance between the declaration and the bond declared on, the defendant should crave oyer of the bond.
3. The proviso in the act of February 28, 1828, Sup. Rev. Code 272 § 1, limiting actions on indemnifying bonds to seven years does not apply to an action on a bond executed prior to the passage of the act.[a1]
4. The court may refuse to receive a plea which presents an immaterial issue, or may strike it out if it has been filed or may either during the progress of the trial or after verdict, set aside the issue, or in a proper case render judgment notwithstanding the verdict.
5. Though the legislature may have authority to make a law to operate retroactively, yet it must clearly appear that such was the intention.
This was an action of debt on an indemnifying bond in the Circuit court of Henrico county, instituted in July 1847 by Benjamin J. Duval, adm'r de bonis non, & c. of Mosby Sheppard deceased, who sued for the benefit of John and Benjamin Sheppard, against James Malone and Richard H Whitlock, the obligors in the bond. This bond was taken in December 1827, to indemnify Mosby Sheppard, the high sheriff of the county, for any injury or loss he might sustain by the levy of an execution then in his hands, sued out by James Malone against the goods and chattels of Benjamin Haley, upon four slaves as the property of Haley, which were claimed by John and Benjamin Sheppard. The proceedings in the suit, and the questions arising in it, are stated by Judge SAMUELS in his opinion. There was a judgment for the defendants: and the plaintiff applied to this court for a supersedeas, which was allowed.
Lyons and C. Robinson, for the appellant.
R. T. Daniel and Patton, for the appellees.
The printed record of this case, although of small volume, is taken up, in a great degree, with extraneous matter. The portions properly belonging to the record are very confusedly copied; the proper order of their sequence inverted; and we are left to ascertain what is the true record, by searching through the mass of extraneous matter for its detached parts, and putting them in their proper order.
By subjecting the record to this process, it appears, that on the 3d day of December 1827, Mosby Sheppard, sheriff of Henrico county, acting under the statute 1 Rev. Code, ch. 134, § 25, p. 533, took from the defendants an indemnifying bond in conformity with the provisions of that statute. That suit was brought on this bond July 21st, 1847, in the name of Benjamin J. Duval, administrator de bonis non of Mosby Sheppard, at the relation of John Sheppard and Benjamin Sheppard. That the defendants demurred to the declaration. That they at different times filed pleas, that they had performed the conditions of the bond, and the plea of non damnificatus; and they also tendered a plea that the cause of action did not accrue within seven years before the institution of the suit. The plaintiff objected to the reception of this plea; but the court overruled the objection and received the plea: thereupon the plaintiff filed a replication, alleging that suit had been brought on this bond on the 4th of February 1828, which suit had been revived in the several names of the several successive representatives of Mosby Sheppard's estate named in the replication; that the suit was dismissed by the court on the 19th of May 1846, in the absence of the plaintiff, and without his knowledge or consent, and without any reasonable or sufficient cause; and further, that this (the second) suit on the bond was brought 21st July 1847, as soon as the plaintiff was apprised that said first suit was dismissed. The defendants filed a rejoinder to this plea, denying the existence of the record of the first suit in the replication alleged. The Circuit court decided that there was no such record, and gave judgment for the defendants. Thus the case was decided for the defendants, on the plea of the statute limiting actions on indemnifying bonds to seven years. It is unnecessary in this case to decide whether the court without a jury could properly try the issue as upon a rejoinder of nul tiel record; or whether the replication was or was not immaterial and naught; for however these questions may be decided, in my judgment the case before us presents but two material questions: 1st, as to the sufficiency of the declaration upon general demurrer; 2d, as to the validity of the plea of the statute of limitations.
The declaration on its face shows an inaccuracy in reciting the bond as having been executed to the plaintiff, who is Benjamin J. Duval, administrator de bonis non of Mosby Sheppard deceased; yet there is enough to show that the bond was in fact executed to Mosby Sheppard, the plaintiff's intestate; and the declaration sets forth sufficient matter of substance for the court to proceed to judgment according to law and the very right of the cause. 1 Rev. Code, p. 511, § 101. If the defendants desired...
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