
    *Harvey v. Skipwith.
    April Term, 1863,
    Richmond.
    1. Pleading and Practice—Process—Defects in—How-Waived.—By appearing- and pleading to the action, or by taking or consenting to a continuance, the defendant waives all defects in the process and the service thereof.
    2. Hire Bond—Function of—Parol Evidence.—The true function of an ordinary hire bond is not to stipulate for the mode in which the slave is lo be employed, but to bind the bailee for the payment of the hire; the execution of a bond or note for the price does not extinguish so much of the contract of hiring as may relate to the manner in which the slave is to be employed; and hence oral evidence showing that there were restrictions as to the mode of employing the slave does not vary or contradict the written instrument, but is consistent with it, and may be properly admitted.
    
      This was an action on the case in the Circuit court of the city of Richmond, brought by Mary Skipwith against Robert Harvey, to recover damages for an injury done to a slave named Jefferson hired by the former to the latter, for the year 1853. The action was brought to the October rules 1854, when the declaration was filed; in which after setting out the hiring of the slave by the plaintiff to the defendant for the year 1853 at the price of $140, it was averred that the hiring was “upon the terms and the distinct understanding and agreement that the said slave should not be employed in blasting rocks or using powder whilst in the service of the said defendant, •or exposed to hazard to life or serious injury from being thus dangerously employed.”
    At the next November term of the court, the defendant not having appeared, a jury was empanelled to *enquire of the plaintiffs damages, and returned a verdict assessing them at $400; and the court entered up a judgment thereon. On the 25th of November, ten days after the •case had been disposed of, the defendant by his attorney moved the court to set aside the verdict and judgment, and to grant him a new trial; and at the same term the court sustained the motion, and ordered a new trial of the action.
    At the next term of the court held in May, 1855, on the motion of the defendant the cause was continued, at his costs, to the next regular term of the court. And on the 9th of December, 1857, the defendant, by his attorney, moved the court to quash the writ of summons instituting the suit. This motion the court overruled; and then the defendant in his proper person tendered two pleas in abatement to the writ, which were rejected by the court. The point raised both in the motion and the pleas, was, that the return of the sheriff, shewing that the writ had been served by leaving a copy with defendant’s wife, did not state that he gave the wife “information of the purport” of the writ; and that he had not in fact given her such notice.
    The defendant then demurred to the declaration and each count thereof, and there was a joinder in the demurrers by the plaintiff; and they were overruled by the court: but no question was made upon them in this court. The defendant also pleaded “not guilty,” “non damnificatus,” “payment,” and “accord and satisfaction,” upon which pleas issues were made up. The defendant then tendered a special plea to the action, the same in form and substance with that tendered and rejected in the next preceding case of Harvey v. Skipwith & als., which was rejected by the court. Thereupon the parties went to trial before the jury; when there was a verdict for the defendant ; which upon the motion of the plaintiff was set aside, and a new trial directed.
    *The cause was continued until the May term, 1859; and when it was called for trial at that term the defendant moved the court to sign five bills of exceptions. These were exceptions to opinions of the court given on the former trial of the cause, w'hich were taken at the proper time and prepared during the term, but which by some oversight had not been signed by the judge. The counsel for the plaintiff united in this motion ; but the court being of opinion that it had not the power to sign the bill of exceptions at the time the motion was made, overruled it; but gave the defendant the benefit of the exceptions by embodying them in the bill of exceptions taken by the defendant to the Opinion of the court overruling the motion. The first of these bills of exceptions was to the opinion refusing to quash the writ, the second to the rejection of the two pleas in abatement, the third to the rejection of the special plea; the fourth refers to an instruction asked by the defendant, which was also asked on the last trial, and the fifth was to the opinion of the court setting aside the verdict, and granting a new trial to the plaintiff. The statement of the facts proved is substantially the same as are stated in the report of the next preceding case of Harvey v. Skip-with & als. ; it only being stated in this bill of exception, that the witness Thomas B. Skipwith proved that he “concluded with Harvey a contract for the hiring of the negro Jefferson such as is set out in the plaintiff’s declaration. ’ ’
    On the trial in May, 1859, the defendant renewed his motions made on the former trial, which were rejected by the court; and exceptions were taken. And when all the evidence had been introduced the plaintiff moved the court to give to the jury an instruction, the same as the first instruction asked for by the plaintiff in the preceding case of Harvey v. Skipwith & als., except that it substituted the words, 1 ‘plaintiff” for “one life tenánt” *and omitted the last sentence. This instruction was objected to by the defendant, and he moved the court, if the instruction was given, to add to it the sentence in the instruction in the preceding case, omitted by the plaintiff. And the court gave the instruction as thus modified; to which the defendant excepted.
    The defendant moved the court to give two instructions to the jury. The first marked A was as follows:
    “If the jury shall believe from the evidence that the bond bearing date the 1st day of January, 1853, executed by the defendant Harvey and W. Goddin was not executed and delivered until after the conversations in January, 1853, between the witness Thomas B. Skipwith as the agent of Mrs. Mary Skipwith and the said Harvey in respect to the hiring of said slave Jefferson for the year 1853, deposed to by said Thomas B. Skipwith, then that the jury shall disregard so much of the evidence of said Thomas B. Skipwith as to said conversations, as tends to shew any agreement or stipulation between himself as agent as aforesaid and said Harvey in respect to the hiring of said negro for said year, which is not expressed in said bond.”
    The second which is marked B is the same as the fifth instruction asked for by the defendant in the Case of Harvey v. Skipwith & als. These instructions the court refused to give: and the defendant again excepted.
    There was a verdict in favor of the plaintiff for 3501 60. And thereupon the defendant moved the court to set it aside, and grant him a new trial, on the grounds —that the verdict was contrary to the evidence, that the damages were excessive, and that the rulings of the court in the progress of the trial, were incorrect and improper. But the court overruled the motion and rendered judgment on the verdict. And the plaintiff again excepted.
    The facts certified by the judge as having been proved *on the trial were substantially the same as is given in
    the case of Harvey v. Skipwith & als., with the following addition: The bond executed by the defendant Harvey and W. Goddin to Mrs. Skipwith for the hire of seven slaves of whom Jefferson was one, for the year 1853, was produced in evidence by the defendant, and it was proved by Thomas B. Skipwith that this bond was executed some time in April, 1853; and had been fully paid; the endorsements shewing that it was paid off as early as January 5th, 1854.
    On the application of the defendant a supersedeas was awarded by a judge of this court.
    Howard & Sands, for the appellant.
    Welford and Morson, for the appellee.
    
      
      Pleading and Practice—Process—-Defects in—How Waived.—In the principal case, the court said: “It is a well-established rule that by appearing and pleading to the action the defendant waives all defects in the process and in the service thereof. The cases go further and imply such a waiver from the defendants taking or consenting to a continuance, as fully as they do from his pleading to the action.” By so doing he makes himself a party to the record and thereby recognizes the case as in court, and it is too late for him afterwards to say he has not been regularly brought into court.
      This rule is recognized as settled as far as Virginia is concerned and was approved in A. & D. Railroad Co. v. Peake, 87 Va. 140, 12 S. E. Rep. 348; Bell v. Farmville, etc., R. Co., 91 Va. 140, 20 S. E. Rep. 942; Morotock Insurance Co. v. Pankey, 91 Va. 267, 21 S. E. Rep. 487; and in 22 Am. & Eng. Enc. Law (1st Ed.) 168, it was said that the principle, having been settled by many cases in every jurisdiction, is beyond controversy, that whatever irregularities may occur either in the form of the process or in the manner of service, may be waived by the defendant’s appearance. Many cases are cited to support the proposition, among which is Turberville v. Long, 3 H. & M. 309.
      While the West Virginia cases seem to accord with the great weight of authority as to the effect of the appearance of the defendant on a defective service, yet as to the effect of appearance on a fatal defect in the process there seems to be some conflict. Several cases seem to agree entirely with the principal case. See Steele v. Harkness, 9 W. Va. 24; Simmons v. Trumbo, 9 W. Va. 362; Witten v. St. Clair, 27 W. Va. 767: Layne v. Ohio R. R. Co., 35 W. Va. 441. 14 S. E. Rep. 125.
      Several other cases only lay down the proposition that, by appearance to the action, in any case, for any other purpose than to take advantage of the defective execution, or the non-execution, of process, the defendant places himself precisely in a situation in which he would be if process were executed upon him, and he thereby waives all objection to the defective execution or the non-execution of the process upon him. See Bank of The Valley v. Bank of Berkeley, 3 W. Va. 391; Burlew v. Quarrier, 16 W. Va. 109; Mahany v. Kephart, 15 W. Va. 618; Wandling v. Straw, 25 W. Va. 701. And this statement of the rule, as far as it goes, is in accord with that laid down in the principal case. But, in Quesenberry v. People’s, etc., Ass’n, 44 W. Va. 518, 30 S. E. Rep. 75, the court said: “If we notice closely the decisions .as to what appearance waives, we find discrepancy. Some say that, by appearance to the action for any •other purpose than to 'take advantage of the defective execution or non-execution of process, the defendant waives objection to ‘defective execution •or non-execution of process,’ placing himself just as he would be if process had been properly served on him. This statement would not make him waive a .fatal defect in the process, but only one in its sei'vice. Groves v. County Court, 42 W. Va. 587, 26 S. E. Rep. 460. Other cases go further, and waive both defect in writ and return. Layne v. Railroad Co., 35 W. Va. 438, 14 S. E. Rep. 123; Blankenship v. Railway Co., 43 W. Va. 135, 27 S. E. Rep. 355; Harvey v. Skipwith, 16 Gratt. 410.”
      But the court continues by saying: “It occurred •to me the appearance ought not to waive a defect in the writ, if there is a motion to quash. Would it cure a void writ? I suppose, if there is no motion to quash, appearance would cure a defective, voidable writ, if not a void one. But I did not think that where a defendant moves to quash a writ or return, and is overruled, he must, to get the benefit of the error, retire and plead no further. What reason would forbid his going on with a defense of the merits, which may result in rendering the former error immaterial, or, if defeated, would deprive him of the error in overruling his motion to quash? And I find Shepherd v. Brown, 30 W. Va. 13, 3 S. E. Rep. 186, to this in effect, as it holds that appearance to a motion by consent continuances does not preclude a motion to quash the notice for its defects. Hence the claim made in this case that the inherent defect of the writ, if there were such defect, would be waived by after pleading, is not-tenable. Nor do I see how a motion to quash a summons is lost by the failure to state in the record that the appearance is only for that purpose. The motion itself tells that it is the first defense. If it fails, why may he not go on with other defense? The right to quash an attachment is not waived by any appearance in the main action. Dulin v. McCaw, 39 W. Va. 721, 20 S. E. Rep. 681.”
      But in Morgan v. The Ohio River R. Co., 39 W. Va. 28, 19 S. E. Rep. 592, a writ of certiorari from the circuit court was obtained not within ten days after the judgment. Counsel for the railroad company contended in the court of appeals that the appearance to the writ by Morgan without motion to quash or dismiss because of the ten days’ limitation, and an agreement, after a reversal on the certiorari, to continue the main action, constituted a waiver of the objection; the order showing that the case was, on appearance of parties, heard on the record and proceedings and argument of counsel. But the court said: “Such cases as Harvey v. Skipwith, 16 Gratt. 410; Mahany v. Kephart, 15 W. Va. 609, and the others cited, are not in point. They hold that, by appearance for any other purpose than to take advantage of defective or non-service, the party waives defective execution or non execution of process, the only objects of service being to notify the party of the pendency of suit, which appearance shows he had. It surely does not cure ^.radical defect in the process or a vital objection going to the very existence of the writ of certiorari."
      
      Again, in Shepherd v. Brown, 30 W. Va. 13, 3 S. E. Rep. 189. after citing many cases for, and approving, the proposition that, by general appearance, the defendant waived all objections to the defective execution or non-execution of the notice or process, the court continued by saying: “Was the appearance of the defendant and the repeated continuances of the cause for nearly two years a waiver of all objections to the form and sufficiency of the notice? The cases referred to by the counsel for the plaintiff in error to sustain the affirmative of this question are: Moore v. Douglass, 14 W. Va. 728, 729; Brodie v. Clator, 8 W. Va. 599; and Roach v. Gardner, 9 Gratt. 89. These cases do not sustain the position that simple continuances with the defendant’s consent would waive defects of substance in plaintiff’s pleadings. In each of these cases cited there was afflrmative action on the part of the defendant which hardly could be construed otherwise than a waiver of all defects In the pleadings of the plaintiff, or, at least, of defects such as the defendant attempted to take advantage of afterwards in the appellate court. That a party may by his acts and agreements waive defects even of substance, these cases settle, but there were no acts or agreements of the defendants in this case that amounted to such waiver, at least, in the court below, when in the case he called especial attention to these supposed defects, and the court sustained him in this position.”
      So, in this case, the court held that, by appearance to a motion and repeated continuance of the case generally, by consent of parties, the defendant waived any objection which he mioht have to the notice, because it -was not served in time, but he did not thereby preclude himself from moving to quash the notice because it was fatally defective on its face.
      
      Same—Same—Same.—But, as would be implied from the above, the defendant is not precluded from appearing to the action for the express purpose of taking advantage of a defective execution or the non-execution of the process. See Wandling v. Straw, 25 W. Va. 701; Hickam v. Larkey, 6 Gratt. 212; Wynn v. Wyatt, 11 Leigh 584; Bank of Valley v. Bank of Berkeley, 3 W. Va. 391; Burlew v. Quarrier, 16 W. Va. 108.
    
    
      
      Hire Bond—Parol Evidence.—See principal case cited in Broughton v. Coffer, 18 Gratt. 191.
    
   DANIET, J.

The Circuit court did right, in refusing to quash the writ, and also in refusing to receive the two pleas tendered by the plaintiff in'error in abatement of the writ. Objections which do not go to the substance of an action are treated as waived if -not made when the occasion for them arises. It is a well established rule that by appearing and pleading to the action the defendant waives all defects in th.e process and in the service thereof. The cases go further and imply such a waiver from the defendants taking or consenting to a continuance, as fully as they do from his pleading to the action. The object of the writ is to apprise the defendant of the nature of the proceeding against him. The fact of his taking or agreeing to a continuance is evidence of his having made hiipself a party to the record, and, of his having recognized the case as in court. It is too late for him afterwards to say that he has not been regularly brought into court. Here the plaintiff in error appeared at the November term 1854, by his attorney and moved to set ' aside the verdict and judgment *rendered against him on a previous day of the term.' At the May term in 1855, he moved for and obtained a continuance; and it is' not till December, 1857, more than three years after his first appearance, that he seeks by his motion and pleas to raise objections to the service of the process.

' The question presented by the plea designated as special plea V is not materially variant from that just adjudicated by the court in Harvey v. Skipwith & others, in passing upon plea VI in that case.

There was no error in giving the instruction No. 1 offered by the defendant in error. The principle which it asserts is identical with that propounded in the instruction given at the instance of the defendant in error in Harvey v. Skipwith & others.

In the case of Howell v. Cowles, 6 Gratt. 393, and Towner v. Lucas, 13 Gratt. 705, 723, this court has' expressed the opinion that the true function of an ordinary hire bond is, not to stipulate for the mode in which-the slave is to be employed, but to bind the -bailee for the payment of the hire ; that- the execution of a bond or note for the price does not extinguish so much of the contract of hiring as may relate to the manner in which the slave is to be employed; and that, hence, oral evidence showing that there were restrictions as to the mode of employing the slave does not vary or contradict the written instrument, but is consistent with it, and may be properly admitted. The Circuit court, in accordance with these views, properly refused to give instruction A asked by the plaintiff in error.

Eor the reasons stated, in sustaining the refusal of the Circuit court to give the fifth instruction asked by the plaintiff in error in Harvey v. Skipwith & others, the Circuit court did right in this case in refusing to give instruction B.

Waiving all question as to the alleged irregularity in *the bill of exceptions to the action of the court in setting aside the verdict obtained by Harvey on the second trial in this case, I think that the course of the court was clearly right; as it was, also, in refusing to set aside the verdict rendered in favor of Mrs. Skipwith on the third trial. On both of these trials as in Harvey v. Skipwith & others, the main question on which the case turned must have been whether the employment by Harvey, of the slave, .to bring up the keg of powder from its place of deposit to the point at which it was to be used in blasting, was in violation of the true spirit and meaning1 of the contract of hiring. In the declaration in each case it is alleged that the slave was hired and delivered to the defendant upon the terms and the distinct understanding and agreement that the said slave should not-be employed in blasting rocks or using powder while in the service of the said defendant, or exposed to hazard of life or serious injury from being thus dangerously employed. The record discloses substantially the same state of the proofs, in respect to the contract of hiring, on all of the trials, with the exception that, what we may fairly infer from the conversation between the witness Skipwith and Harvey detailed by the former to the jury, in Harvey v. Skipwith & others, and on the third trial in this case, is, in the certificate of the facts appearing on the second trial in this case, explicitly stated by the court to have been proved; the certificate in that particular being that the witness proved that he “concluded with Harvey a contract for the hiring of the negro Jefferson, such as is set out in the plaintiff’s declaration.” On each occasion the Circuit court properly refused, as it seems to me, to adopt the narrow and restricted interpretation of the contract contended for by Harvey. I cannot- undertake to say that the parties, in veiw of the danger attending the use of powder by even the most prudent and cautious *persons, and with a knowledge of the notorious improvidence and carelessness of our negro slaves, did not mean to guard, not only against the employment of the slave in blasting, but also against his being allowed to use or handle powder in any manner. The injury complained of is clearly proved to have been a consequence of a departure by the plaintiff in error from the terms of his contract: a consequence by no means unnatural or extraordinary, but rather affording only another illustration of the dangerous nature of the subject, the use of which by the slave in any way is by the letter of the contract forbidden. I see no warrant for saying that this consequence is one which does not fall within the true scope and purview of said contract.

I see no error in the proceedings, and am for affirming the judgment.

The other judges concurred in the opinion of Daniel, J.

Judgment affirmed.  