Green v. Bailey
| Decision Date | 27 November 1816 |
| Citation | 19 Va. 246 |
| Parties | Green v. Bailey |
| Court | Virginia Supreme Court |
This was an action of Debt on a Bond, brought by the Appellee against the Appellant. The declaration was in the usual form on a plain bond, saying nothing of any condition. The defendant prayed oyer of the Condition of the Bond; (from which it appeared to be a Bond, for submitting to the Award of certain Arbitrators, mutually chosen, all controversies between the parties; ) and pleaded Conditions performed. The plaintiffs replied generally; and in the transcript of the Record these words were added, " and general rejoinder and issue:" A Jury were empaneled, who found for the plaintiff, and assessed his damages to the sum of $ 400,84 cents, the principal sum due, to bear interest from the 13th of October, 1803, 'till paid; and judgment was entered accordingly; to which a Writ of Supersedeas was awarded by a Judge of this Court.
Judgment reversed.
Williams for the plaintiff in error. The plea being Conditions performed, the plaintiff ought to have set forth the Award by Replication. In fact no issue was joined in the cause according to the cases of Stevens v. Taliaferro, 1 Wash. (VA) 153; Kerr v. Dixon, 2 Call 379; Taylor v. Huston, 2 Hen. & M. 161; and Hite's heirs v Wilson and Dunlap, Ibid. 268.
It appears, too from a copy of the Award, inserted in the transcript of the Record, that it was made three or four months after the suit was brought.
Wickham contra. Nothing is spread upon the Record but the Bond: the date of the Award is therefore of no consequence.
I contend that this is only an informal issue, cured by the Act of Jeofails. The plaintiff never could have got a verdict without proving that an Award was made. The plea of " Conditions performed" admitted the Award. Kerr v. Dixon was a case of a defective plea. In Taylor v. Huston, the words " Usual Plea" were alone put in.
In many cases this Court has affirmed Judgments where the plea was the word " payment," and " plaintiffs replied generally." So " nil debet and issue."
Williams in reply. It is laid down in Levinz, that the Award must be set forth. In Debt on a Bond with collateral Condition, the plaintiff must assign a specific breach. In Covenant, it is otherwise; a general breach, in the terms of the agreement being sufficient. The general Replication here did not state in what particular the defendant had not performed the condition.
Wickham. By demanding Oyer, the Condition of the Bond is as much spread upon the Record, as if it were set forth in the Replication. Oyer incorporates the Condition with the pleadings.
Williams. It does not prove that an Award was made.
Judge Coalter. Judge Brooke. Judge Roane.
November 27th, 1816, the Judges pronounced their opinions.
This is an action of Debt on a Bond conditioned to abide by an Award, & c. The Declaration is in Debt on the penalty of the Bond: the defendant takes Oyer of the Bond and Condition, and pleads Conditions performed; to which the plaintiff replies generally, and there is a general rejoinder and issue, and verdict and judgment for the plaintiff.
The first question which arises is, whether the pleadings and issue in this case are merely informal, and so aided by the statute of Jeofails; or whether there is such substantial defect, that judgment cannot be given for the plaintiff on the verdict.
I at first doubted whether, as the plea in this case amounted though informally, to an admission that an Award was made, and put the defence on the performance, it was a fatal error in the plaintiff, not aided by the statute, to omit, in his Replication, to set out the Award and assign a breach; but I find it clear, on an examination of the authorities, that, where the plea is no Award, not only the Award itself must be set out, that the Court may see that it is a legal Award, but the breach must be assigned; [a] for, as an Award may be bad in part and good in part, the Court is to judge whether the breach is assigned of a part that is good; and, for this reason, there is more strictness required, as to assigning a breach, in cases of this kind, than in suits upon ordinary Bonds; and therefore such defect is not cured by verdict. And even where the defendant set out that part of the Award which he was to perform, and pleaded performance thereof, which the plaintiff denied and tendered an issue, without setting out what he was to perform, so as to shew the Award was mutual, and afterwards demurred to the defendant's Rejoinder, the Replication was considered as bad; but the Court would not give judgment for the defendant, although it was on Demurrer; thinking the plaintiff had been tricked by the pleadings, and therefore suffered him to discontinue. [b] I think, therefore, this case is not aided by the statute.
The next question is, whether there ought to be a Repleader, or Judgment for the defendant.
I think there cannot be judgment for the defendant, unless upon the ground that the Declaration contains no cause of action, and, consequently, that the judgment must be arrested; (in which case, the plaintiff must bring his suit again, and declare properly; ) or because, notwithstanding the verdict in his favour, it sufficiently appears, on the merits, that the plaintiff cannot better his case, and therefore a Repleader would not avail him.
As to the first, there is no doubt but the Declaration is good; and although the Oyer makes the Condition of the Bond, as it were, part of the Declaration, yet it is not to all purposes as much so as if it had been set out in the Declaration by the plaintiff himself: for if he had set it out, and had failed to set out the Award and assign a breach, the defendant might have demurred to the Declaration; but, here, the defendant, on taking Oyer, could not demur; he could only demur to the Replication, and rely on the defects in it above noticed. He unites, however, in the issue, and a verdict is found against him.
The rule as to Repleaders is that, where the issue is immaterial the Court will award a Repleader, if it will be the means of...
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