Opinion
06-22-1811
Wallace and Others v. Baker
Wirt, for the appellants. Wirt, in reply.
This was an action of debt, in the county court of Hardy, on a joint single bill, dated the 27th of February, 1802, from Alexander Wallace, George Harness (3d) and Jacob Fisher, to Evan Payn, (who assigned it to James Baker,) for the sum of one hundred pounds, payable on or before the 15th day of September, 1805; saying nothing of interest. The declaration was in the usual form, for the debt, and fifty dollars damages, without mentioning interest. The writ was issued in May, 1806, and executed on Wallace and Harness; Fisher not being found. A common order was entered and confirmed against them and George Harness, jun. their appearance bail, for the sum of one hundred pounds, with legal interest from the 15th day of September, 1805. In August, 1806, on the motion of the bail, this office judgment was set aside, and he pleaded payment. In the June preceding, an alias capias was issued against Fisher, and returned to August term executed. At September and October rules, a common order was entered and confirmed against him. In November, he gave special bail, and pleaded payment, but afterwards, together with the bail, waived his plea, and acknowledged the plaintiff's action for the debt, with interest and costs. Judgment was accordingly entered against all the defendants, and Adam Harness, jun. the bail; which judgment was affirmed by the district court; whereupon the defendants again appealed.
" The bail having waived his plea, and confessed the judgment, the court considers the office judgment as having the same effect against the other defendants as if it had never been suspended; and, though it would have been irregular, according to the decision of Brooke v. Gordon in this court, it being for a greater amount than the demand in the declaration, yet, under the operation of the act of 1805, to regulate the practice of the district, county, and corporation courts, (by the first section of which act the clerk is authorized to issue an execution for interest as well as principal,) no injury is done the defendants; because if the office judgment in this case had been for no more than the principal sum demanded in the declaration, and had not been set aside, the clerk would have included the interest in the execution. The judgment, therefore, is affirmed." Notes: See Rev. Code, v. 1, c. 67, s. 20, p. 87. and c. 66, s. 26, p. 78.
Judgment affirmed.
Wirt, for the appellants. Interest was improperly allowed on the debt; not being demanded in the declaration. The confession of judgment could not release this error, because the bail for appearance could not bind his principals by his confession, further than the amount demanded by the plaintiff; and Fisher's separate confession could not authorize a judgment at all, the bond being joint.
Hubbard v. Blow and Barksdale, 1 Wash. (VA) 70; Brooke v. Gordon, 2 Call, 212.
Munford, for the appellee, relied upon the 1st section of the act " to reform the practice of the district, county, and corporation courts," passed January 29th, 1805, as authorizing the judgment for interest, though not demanded. The process being served at different times, it was necessary to enter separate office judgments, though the bond was joint; according to the practice recognised in Moss v. Moss's Administrator, 4 Hen. & M. 293, and Fisher's confession was binding on himself, if not on his co-obligors.
Rev. Code, v. 2, p. 82.
Wirt, in reply. The act of 1805 cannot apply to this case; the date of the bond being in 1802.
If Fisher's confession authorized a judgment against him, it did not against the other defendants.
Judge Brooke pronounced the following opinion of the court.
OPINION
Monday, September 23d. JUDGE BROOKE pronounced the following opinion of the court: