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5 Munf. 39

Beatty v. Smith

Supreme Court of Virginia

Decided February 10, 1816

Supreme Court of Virginia · decided 1816-02-10

<p>IN an action of debt in the Superior Court of Wythe county, the plaint!ñBeatty declared upon a writing obligatory, sealed, &c. by the defendants John Smith, Andrew Hincannon and Joseph Bell, for the sum of 3140, payable on ihc first day of April 1811, in the usual form. A writing obligatory wps inserted by the Clerk in his transcript cf the record, and certified by him to be the bond on which the declaration was filed: — but without any praying of Oyer by the defendants; — which writing appeared to be for the sum of 5140, “ to be dis= “ charged by the payment of one ton of good merchantable bar “ iron, assorted, at Rufus Morgan's in Abingdon, for value “ received.”</p> <p>Tbe>defendauts pleaded payment, and, afterwards, by leave of the court, three other pleas; viz. 1st, that, “ on the said “ first day of April 1811, they did deliver at Rufus Mor- “ gan's one ton of iron pursuant to the tenor and effect of the “ said note in writing, whereby the same became discharged j “ and this they are ready to verify ; — 2d, that, before and on “ the first day of April 1811, they were ready to deliver the ££ said ton of iron according to the tenor and effect of the said ££ writing; but that the plaintiff had no agent at the place ££ mentioned to receive the same; and this, &c.; 3d, that the <£ plaintiff, by the tenor and effect of the said .writing, ap- ££ pointed the said Rufus Morgan his agent, so far as respected ££ the receipt of the iron; and that the defendants did deliver “ at the said Rufus Morgan's one ton of iron in discharge of “ the said writing, which the plaintiff has received ; and this, “ &c.” — The plaintiff filed general replications ; — and issues were joined.</p> <p>At the trial, several bills of exceptions were filed, setting forth evidence introduced, applying to the three last mentioned pleas, but not to thahof payment.' — The jury having found a verdict for the defendants, the plaintiff made a motion for a new trial, on the ground that such verdict was contrary to the evidence; and, his motion being overruled by the court, he filed another bill of exceptions stating also evidence applying to the same three pleas aforesaid, as all the evidence in the cause.</p> <p>Judgment being entered for the defendants, the plaintiff appealed to this court.</p>

Cited by 1 later decisions — most recently May 1814

Good law ✅— No negative treatment on recordhow we know

Decided 1816-02-10

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¶1Saturday, February 10th, 1816.

Judge Roane

¶2pronounced the -••lurt’s opinion, “ that ali the pleas, except the plea of “payment, are irrelevant to the claim set out in the declara- “ the appellees having failed to avail themselves of the “ condition of the bond by taking oyer thereofthe issues “ taken therefore on the said pleas are immaterial: — and it “ appearing fay the bills of exception that there was no evi- “ deuce on the plea of payment, the said judgment is erro- “ neous, — which is therefore reversed. And it is ordered that “ the verdict, and the special picas and proceedings thereon be “set aside, and the cause remanded to the said Superior Court “ of law, to be further proceeded on in the plea of payment, with “ leave to the appellees to take Over of the condition of the “ bond and plead dc novo”

¶3January 31st, 1817, the counsel for the appellees moved the court to re instate the cause, and permit him to he heard on behalf of his clients, on the grounds, that lie had been regularly engaged as counsel for the appellees before the argument of the cause; that his name stands regularly entered on one of the dockets of the court, iu the hand wri-iog of the deputy clerk; that, iu making out the argument docket of that session for the court, the clerk had omitted to mark his appearance for his clients on that docket; and hence, on the calling of the cause, the appellees appeared to the court to be unsupported by counsel; that, at the time when the cause was called, as well as when it was decided, the counsel for the appellees was absent at Washington, under the sanction of the court, being engaged on public husiuess of importance to the commonwealth ; and that, from these accidents, in which neither his clients nor himself were in fault, they had lost the advantage of being heard fay their counsel; — but the court, not doubting the coi redness in point of fact of the grounds taken by tlic moving counsel, was nevertheless of opinion that the precedents had not gone so far as to justify it in granting the motion ; (1) and that the establishment of such a precedent might be of' dangerous consequence. — The motion was therefor» overruled.

¶4 See Beasley v. Owen, 3 H. and M. 448.
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