
    *Turberville v. Self.
    [April, 1795.]
    Replevin — Rent—Avowry—Sufficiency of Issue. — In replevin, if the avowry alleges that a sum of money was arrear for rent; and the plaintiff replies that he did not owe it at the time of the distress, it is a sufficient issue.
    Same — Same—Discount — Award of Arbitrators. — Award, of date posterior to the distress, finding a balance due to the plaintiff, may be discounted at the trial, against the rent.
    Same — Same—Same—Notice.—But the avowant cannot oppose the discount, by a claim of which the plaintiff had no notice; for the act of assembly confines the right of discount to defendants, and ■does not extend to any other plaintiff, than a plaintiff in replevin, who in fact is a defendant to the avowry.
    Discount — Receipt or Assignment of Bond — Proof.—A receipt or assignment of a bond, offered in discount, must be proved at the'trial.
    Judgment — Affirmance.—Although the county court gave no judgment on the verdict, the district court affirmed it with damages, and the court of appeals did the same; (But probably from oversight.)
    Self, upon the 30th of January, 1790, sued a writ of replevin in the county court against Turberville for a return of seven slaves taken upon a distress for rent. The writ commanded the sheriff, “that justly and without delay you cause to be replevied- to Stephen Self his negroes which John Tur-berville hath distrained, took and unjustly detaineth as is said, &c.” Upon this writ Self on the 29th of May, 1790, gave the usual replevin bond in such cases. The declaration of Self, “ complains that the said John Tur-berville, on the-day of-, in the year of our Lord one thousand seven hundred and -, at the county aforesaid, took the following negroes, to wit: Samuel, Jeremiah, Kitt, Lucy, Jacob, Jeremiah ■ and Winney, and twelve head of cattle of the said Self, and the same unjustly detained against sureties and pledges, until -. Whereupon he saith that he is injured and hath damage ^100, and therefore he brings suit, &c.” Turberville avowed the taking of the negroes and cattle, 1. Because George Fairfax Lee had, by indenture, demised a tract of 215 acres of land to Daniel Morgan and Temperance his wife, and to the survivor of them, for and during the term of their natural lives, at the rate of ^10 for every hundred acres, and so in proportion for every greater or lesser quantity. That the -said Daniel Morgan and Temperance his wife, on the 15th of November, 1784, assigned the demised premises to the said Stephen Self. 2. Because the said George F. Lee, by deed indented, conveyed the said premises to the said John Turberville in fee simple; to whom Self attorned. “And because eighty-five pounds current money, exclusive of interest, of the aforesaid annual rent, by the space of four years, and to the 25th day of December, in the year of our Lord 1789, and also to the aforesaid time when the distress was made, was in arrear and remained unpaid unto the' aforesaid John Turberville, and is still in arrear and unpaid; and because the aforesaid Stephen Self had fraudulently and secretly removed all his property from off the aforesaid demised premises, whereby there did not remain a sufficiency of property on the aforesaid demised premises on which the aforesaid rent in arrear could be levied, and by virtue of an act of assembly in such case made and provided, the aforesaid John Turberville well avows the taking aforesaid, in place when, &c., and this he is ready to verify, wherefore he demands judgment for double the value of the rent in arrear, and so distrained for, with full costs of suit agreeable to an act of assembly in that case made and provided. &c.” At May court, 1791, Self filed a plea in the following words : “ And the said plaintiff, by his attorney, says that the said defendant ought not to have and maintain their distress and action mentioned in the said avowry, because he says he did not owe the said sum of money mentioned in the said avowry to the said defendant, at the time of the said distress made ; and this he prays may be enquired of by the country.” The record then proceeds thus: “ Leave to amend avowry at the costs of Turberville to this day. And thereupon came a jury, &c. to try the issue joined.” Upon the trial of the cause, the defendant Turberville filed a bill of exceptions to the court’s opinion, stating, that Self offered in evidence an award beginning with an account stated, by them, between Self and Turberville, from June 1775, to March 1789, making a *balance, in favour of Self, of ¿31. 17. : and, at the foot of it, the award in these words : “We the subscribers being mutually chosen by John Turberville, esq. and Stephen Self, to arbitrate and determine their private accounts that are now in dispute between the said Turberville and Self, which are not to include the accounts of rents and tobacco due from said Self to said Turberville, and have examined all the accounts produced to us, and find a balance due from said Turberville, to said Self, of thirty-one pounds seventeen shilling's and two pence farthing. Given under our hands the 30th day of August, 1790. Geo. Garner, William Middleton.” To the introduction of which award, the defendant objected : “ Because it appeared in evidence (among other reasons) that bonds were entered into before the day of making the distress by the parties mutually to submit to the arbitration of George Garner, esq. and capt. William Middleton, and also because of the particular reasons set forth in such award of the parties aforesaid. Which said award was, by one of the arbitrators delivered to the said John, and by him, sometime after, returned to one of the referees, after the death of the other:” but that the objection was overruled by the court; because, as one reason among others, the charges upon such account upon which the award was grounded was prior to the distress, although the award was subsequent. The defendant Turberville, also filed another bill of exceptions to the court’s opinion, stating, that the plaintiff “ offered as a set off to the avowant’s claim, for rent, a receipt of the avowant’s for-libs of tobacco, which the avowant had received some years before to pay to a certain -Smith, in discharge of a bond of said Self due to said Smith, (it appearing to the court that Self was still liable to Smith for the said tobaoco by a suit in court,) the defendant’s attorney moved the court to prevent the said receipt from going to the jury as evidence; which motion was overruled by the court. And further the attorney for the defendant offered, a bond of the plaintiff’s, given to George I*airfax Lee, for three or four thousand pounds of *tobacco, and assigned, as appeared on the back thereof, in 1785, to the avowant; notice of the assignment to the plaintiff, and the time when the assignment was made, not having been proven. And also a receipt of John Augustine Washington for a hhd. of tobacco, paid by the avowant on behalf of the plaintiff, for the use of the aforesaid Smith, as evidence to the jury ; which the court refused.” The record afterwards proceeds thus : “ The jury then returned a verdict for twenty-four pounds sixteen’ shillings and eight pence one farthing damages, besides-his costs by him about his suit in that behalf expended. And the said defendant in mercy, &c. New trial prayed and rejected. From which judgment the said defendant, by his attorney, prayed an appeal, &c.”
    The appeal does not appear to have been prosecuted ; but Turberville petitioned for, and obtained a writ of supersedeas from the district court, and assigned for' error, “1. That there is no issue joined in the cause. 2. That the court admitted as evidence on the part of the said Self, an award, as an offset against your petitioner’s demand. 3. That they refused to admit offsets of your petitioner to encounter those offered by the said Self.”
    On the 9th of April, 1794, the district court entered the following judgment: “This day came the parties, by their attornies, and thereupon the transcript of the record of the judgment aforesaid being seen and inspected, it seems to the court here, that there is no error in the said judgment. Therefore it is considered by the court, that the same be affirmed, and that the defendant recover against the plaintiff damages according to law for retarding the execution thereof, and his costs by him about his defence in this behalf expended.”
    To the latter judgment, Turberville petitioned for, and obtained, a writ of superse-deas from the court of appeals, assigning for error, 1. “That no issue is joined in the cause.” 2. “That upon the plea of owe nothing, the plaintiff was permitted to give in evidence an award to offset your petitioner’s *claim of rent, whereas he is advised, that if the plaintiff had meant to avail himself of the benefit of that award, he should have pleaded it specially, and thereby given your petitioner an opportunity of impeaching it.” 3. “That the court refused to ádmit offsets of your petitioner to encounter those offered by the plaintiff.
    Washington, for the appellant.
    There was no issue joined in the cause, and therefore there could not have been a good trial : because every issue ought to be certain and single; should be joined upon the most material part of the cause ; and contain an absolute affirmation upon one side, and an express negation on the other. But this did not occur in the present case ; for the plea avers that eighty-five pounds, exclusive of interest, was arrear for rent; and the replication is that the plaintiff did not owe the money, at the time of the distress: so that the affirmation and negation do not meet each other. Tor it is not like an action of debt upon a note; because the declaration, in that case, affirms that the defendant owes the debt; and then the plea of owe nothing meets it expressly; which makes an issue without any similiter ; but here the affirmation and negation not meeting each other, made a rejoinder necessary ; which is the more obvious, as the record shews, that further pleading was intended; for the entry is, that there was “leave to amend the avowry at the costs of Turberville.” And yet the trial was precipitated immediately, without any waver of the right to amend. It is, therefore, impossible to consider this as a fair joinder of issue, and a consequent trial, agreeable to the mutual intention of parties. The award, in effect, contradicts the replication, and ought not to have been received in evidence to repel the defendant’s claim to the rent. Tor it shews, that the accounts were not adjusted until seven months after the distress ; and, consequently, it ought not to have been admitted to destroy a process, which was rightly begun, as it cannot be pretended, with any shew of reason, that the uncertain balance of so many conflicting claims arising out *of transactions of fourteen years standing, and to the amount of largely upwards of two hundred pounds, could have been so clearly foreseen, as to have required the defendant to delay the pursuit of four years, arrearage of rent, amounting to a much larger sum than the awarded balance, and upon which the arbitrators were not to pass, by the express terms of the reference. But independent of that, the award, if it was. intended to have been relied on, should have been pleaded, that the defendant might have-had an opportunity of contesting it; especially, as it does not appear to have been formally delivered by the arbitrators; for, although it was- put into the hands of the defendant by one of them, it was for inspection only, and was afterwards taken back, and never jointly delivered to either of the parties. The failure to plead it, therefore, was a surprize upon the defendant; who had no opportunity, for want of notice, to meet it with the proper objections. The defendant’s offsets ought to have been allowed. 1. The bond ; for it was the plaintiff’s own bond, regularly assigned to the defendant, and therefore due to him ; since the act of assembly treats it as his own property, and gave him an action of debt upon it. Consequently, it was a fair discount under the act of 1748, and the defendant had a right to apply it against the claims of the plaintiff, Old Virginia laws, 249; for it was within the letter, as well as equity of the act: and notice of the assignment was not necessary upon the present occasion ; for it was a debt due to the defendant without, and the only use of notice was to protect the plaintiff if he had paid the bond before he knew of the assignment; which was not pretended. 2. The receipt for the payment to Smith ; because if the plaintiff owed the debt, and the defendant paid it, he was entitled to reimbursement, and might discount it.
    Marshall, contra.
    There was no necessity for a replication, or any other formal act to constitute an issue: for the pleadings substantially amounted to a joinder, and that *was sufficient. Brewer v. Tarpley, 1 Wash. 363. But, at worst, it was only a misjoinder, and cured by the verdict. The award was a proper discount under the act of assembly ; for although it was made after the date of the process, the balance was a debt which existed, at the time of the distress; for it was founded upon anterior transactions, and was due when the defendant distrained : which made it a just discount under the act; because it did not create a new debt, but only ascertained the amount of the prior obligation of the defendant. The objection, that the award was not delivered, is not sustainable. Tor the bill of exceptions states, that it was delivered to the defendant : not for his approbation ; but as the concurrent act of the referees : and although the same arbitrator afterwards took possession of it, that was to deliver it to the plaintiff, who exhibited it upon the trial. Tor as soon as it was signed, the power of the referees ceased, and they could make no alteration in it afterwards. There was no necessity to plead the award, as the defendant knew it existed ; and, therefore, must have foreseen that it would have been offered as a discount: so that if he had had any objections to make to it, he had full opportunity to prepare himself to sustain them ; and as he offered none, the presumption is, that he had none to offer. The defendant had not a right to introduce his offsets. Not the bond ; for the date of the assignment was not shewn : and it might have been procured, subsequent to the time of seizing the goods; but, in that case, it would not, by relation, have supported the distress ; which was tortious in its inception, as the defendant had, at that time, no right to apply the- amount of it, against the claims of the plaintiff; which exceeded it. Besides, there was no proof of the assignment offered ; and, until that was done, the defendant shewed no title. Not Washington’s receipt. Tor it was not shewn that the plaintiff still owed the debt to Smith ; much less, that he ever authorized the defendant to pay it: And the latter could not by making a voluntary payment, create an obligation upon the plaintiff to return him the money. *But that is not all; for the date of the receipt is not shewn ; and it appears, by the record, that so far from its operating a discharge to the plaintiff, Smith had actually a suit then depending against the plaintiff, to recover the money.
    Cur. adv. vult.
    
      
      Replevin — Rent—Set-Off.—In Virginia, set-off was a good defense to an avowry for rent in an action of replevin. The principal case is cited, to support this proposition, in Allen v. Hart, 18 Gratt. 727; Nicolson v. Hancock, 4 Hen. & M. 498; B. & O. R. R. Co. v. Jameson, 13 W. Va. 840. See foot-notes to Allen v. Hart, 18 Gratt. 722: Murray v. Pennington, 3 Gratt. 91.
      Same — Precedent.—The principal case is cited in Nicolson v. Hancock, 4 Hen. & M. 501, as a precedent for prosecuting the writ of replevin.
      See the principal case cited in Carter v. Grant, 32 Gratt. 773. See monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.
      Set-Off — Statute Construed Liberally. — In B. & O. R. R. Co. v. Jameson, 13 W. Va. 846, the court said: “The Virginia Court of Appeals under our statute of set-off. has been more liberal in allowing the plea of set-off, than the English courts, in part from the different wording of our statute of set-off from theirs, but principally because our statute of set-off has been more liberally construed, with a view to the furtherance of, its obvious policy, which is to prevent multiplicity of suits, and, as far as conveniently can be done, to effectuate in one action complete justice between the parties. See Allen v. Hart, 18 Gratt. 722; Wartman v. Yost, 22 Gratt. 605; Turberville v. Self, 2 Wash. 71, 4 Call 580; Nickolson v. Hancock, 4 H. & M. 491; Murray v. Pennington, 3 Gratt. 91.”
      See foot-note to Allen v. Hart, 18 Gratt. 722. The principal case is reported in 2 Wash. 71.
    
   LYONS, Judge,

delivered the resolution of the court as follows :

The court thinks, that there was an issue substantially joined between the parties; and that the first point, made by the appellant’s counsel, is settled by the case of Brewer v. Tarpley, 1 Wash. 363. Tor as to the leave to amend the avowry, it was probably waved, as there was no motion for a continuance, and the parties seem, voluntarily, to have gone to trial.

The court is also of opinion, that the objection, made by the same counsel, to the county court’s having received the award in evidence, is not sustainable. Tor, although the date of the award was posterior to the time of the distress, yet the items, upon which it was founded, were anterior; and the award only ascertained the amount of the balance in favour of the appellee: It was, therefore, a fair discount against the rent; and, consequently, proper evidence for a plaintiff in replevin, to repel the avowant’s demand for rent, upon the trial of the cause. Tor no exception was taken to the validity of it, nor suggestion made, that it was, in any respect, unjust: which proves, that there was no other objection to the introduction of it to the jury, than what is stated in the record : and, that, the court thinks insufficient, for the reasons already given. Nor was there any occasion to plead the award, as the appellee knew it existed; and as he must have foreseen, that it would be offered as a discount, he ought to have been prepared to contest it, if he had any thing to allege.

The refusal of the appellant’s offsets was not error. Tor the act of assembly confines the right, of offering discounts, to the defendant in a suit, and does not extend to the plaintiff *in general cases, Old Virginia laws, 249; which, in effect, excludes the avowant’s claim to discount: Tor the plaintiff, in cases of re-plevin, is in fact the defendant, as he is put upon the same footing with the defendant in other actions, and may plead “as many matters as he may think necessary for his defence,” Old Virginia laws, 172, 299 ; which gives him a right to offer his discounts, and excludes those of the avowant, who is turned into a plaintiff, Bacon’s Replevin, A.; but not embraced in the statute of discounts, without notice. And it was, upon these distinctions, that I said just now, that the appellee’s claims were proper evidence, to repel the avowant’s demand, upon the present occasion. 'But the argument of the appellant’s counsel goes to reverse the rule; and to allow the avowant, (who, as to the main subject in controversy, was, in fact, plaintiff,) to defeat his adversary ; and, by an unexpected discount offered without notice, to obtain judgment for double rent. Chan. Rev. 6. Which will scarcely be thought a fit case, for bringing the interpretation within the equity of the statute of discounts, as was contended for by that counsel; especially, when such an enormous distress was made ; for it appears by the declaration, that seven slaves and twelve head of cattle were seized for eighty-five pounds current money only, although there were subsisting accounts between them, upon other subjects, then under arbitration, and which finally resulted in a balance in favour of the tenant.

Such a proceeding does not call for an equitable construction of the statute of discounts in favour of landlords ; who have already advantages enough over the tenant, without arming them with greater. Por the landlord is his own judge, and executes his own judgment; which ought therefore to be precisely right; and not liable to controversy and deduction, with an impotent adversary, in a perilous suit.

To prevent the tenant, in the present case, from exposing himself to the danger of double rent, the appellant ought to have given him notice of the bond, and of all his other claims, so that the tenant might have acted understandingly, and avoided the risk, by paying the rent, or such part of it, *if any, as was actually due. But this was not done ; and therefore the court did right in rejecting the evidence. Otherwise, a landlord may, by concealing his claims, surprize the tenant, and obtain judgment for double rent, although the latter may, all the while, suppose he is acting fairly.

But the evil does not stop there; for the principals, contended for by the avowant's counsel, would not only enable a landlord to recover his offsets by process of distress, but would expose the tenant to still greater hardships ; for the offsets, by destroying the discounts, will leave him liable to judgment for the whole rent, to be doubled. But no man ought to be put to such hazard ; especially as some may not be able to give security, and obtain redress in equity.

I mention these things to shew to what inconveniences the argument of the avow-ant’s counsel would lead; and, although there is no proof that any thing, of that kind, was meditated on the present occasion, yet, in laying down a rule of practice, the court ought to take care, that no opportunity, for abuse, should be afforded.

But, independent of what has been said, the offsets were properly rejected, upon the other grounds mentioned by the appellee’s counsel; for neither the assignment of the bond, nor Washington’s receipt, was proved ; without which the avowant could have no pretence to introduce them.

It is not easy to conceive, why the offsets were not claimed before the arbitrators, as they might have been allowed there, if they could have been established ; which might, possibly, have led to some adjustment, between the parties, upon equitable principles; but as that was not done, no relief can be granted here.

Upon the whole, the court thinks the judgment right; and that it ought to be affirmed. Judgment affirmed.

*N. B. Mr. Washington’s account of this case is very short, and affords

little information; but the above report, extracted from Mr. Marshall’s notes, shews it to have been a very important decision, particularly as to the statutes of discount and replevin.

It is remarkable, that although the county court, in fact, gave no judgment upon the verdict, the district court affirmed it, with the ten per cent, damages; and that the court of appeals did the same thing. Which probably arose from oversight, as it does not appear to have been mentioned by the counsel, on either side.  