
    *M’Call v. Turner.
    [Thursday, October 19, 1797.]
    Process — Jurisdiction—Joint Defendants.- — A writ cannot issue from one District Court into another District, although against joint defendants.
    Interest — For What Causes Extinguished. — Evidence may be given to the jury on the plea of payment to a bond, that the plaintiff was absent in foreign parts beyond seas [and had not any known agent or attorney within the Commonwealth,] In order to extinguish the interest.
    This was an appeal from the District Court of King and Queen, upon the following case. On the 18th day of January, 1774, Reuben Wright, Reuben Turner, Benjamin C. Spiller and William Aylett, entered into a bond of the usual form, to Robert M’Kendlish, in the penalty of 551. with condition to be void on payment of 271. 10s. on or before the first day of October, thence next following, “with interest from the date;” which bond, M’Kendlish assigned to the plaintiff by an endorsement in these words: “Pay the within to Archibald M’Call,” signed Robert M’Kendlish. Upon which bond, M’Call brought suit in the District Court of King and Queen in July, 1793, against Wright, Turner, and Spiller; Aylett being then dead. The writ was executed by the Sheriff of King William County, on Turner only, and Spiller and Wright were returned “no inhabitants.” The plaintiff filed a declaration on the above bond, in the common form of declarations upon assigned bonds, after which follows an entry in these words: “Abated as to the defendants Reuben Wright and Benjamin C. Spiller, by the return, and a conditional order against the defendant Reuben Turner and James Turner bail for his appearance.” The conditional order was confirmed at the next rules; and at the succeeding Court, Reuben Turner gave special bail, plead payment, and the plaintiff took issue. In April, 1795, the cause stood for trial, and the jury being charged upon the issue, the plaintiff filed a bill of exceptions to the Court’s opinion, which stated, that the defendant ‘ ‘moved the Court to be permitted to give evidence to the jury that the plaintiff was absent in foreign parts beyond seas, and not within the State of Virginia, for the space of eight years, to wit: from the 19th day of April, 134 1775, *to the 19th day of April, 1783, and that during that period, he had not known any agent or attorney within the Commonwealth, who would receive payment of the debt, and give a legal discharge for the same, on which the suit is founded, with a view of extinguishing the interest during that period, to which the counsel for the plaintiff objected, but the Court permitted the defendant to offer such evidence, if he should think fit to do so. And the defendant being permitted to give evidence to the jury, to the purpose aforesaid, it was proved that the plaintiff was out of Virginia, in parts beyond sea from some time in the year 1775, to some time in the year 1783, which was permitted to go to the jury.” The jury found a verdict for the plaintiff, that the defendant had not paid the debt in the declaration mentioned, but that the same ought, however, to be discharged by the payment of 271. 10s. with interest thereon from the date of the bond until the 19th day of April, 1775, and from the 19th day of April, 1783, until paid, and assessed damages to a penny; the Court gave judgment for the plaintiff for the penalty of the bond, to be discharged according to the directions of the verdict, and the costs of suit. From which judgment, the plaintiff appealed to this Court. • . : ■ . . . : : ■
    Warden, for the plaintiff.
    It is not necessary to say much upon this question; for, the record shews manifest error in admitting improper evidence to go to the jury. The plea was payment, and nothing but what went to prove that, could be admitted; for, nothing else was within the issue. Now, the notice is not to prove a payment, but only that the plaintiff was absent during a certain period; and it does not even appear, that there was no agent here to receive payment. All the jury, upon this issue, could do, was, to find that the debt was paid or not; and, if travelling out of the issue, they of their own accord should diminish the debt, the Court would grant a new trial. The law is, that 135 judgment shall be for the penalty, *to be discharged by the principal debt with interest and costs; and, so it is constantly done in cases of judgment by default, which proves the law of the case. It does not appear, that there was any other evidence, though the bill of exceptions does not state that this was all. Upon the whole, I conclude that the evidence was inadmissible; and, consequently, that the judgment is erroneous and ought to be reversed.
    Wickham, contra.
    This was a suit upon a joint bond, which could neither be sued nor prosecuted severally. Therefore, the plaintiff should have pursued all the obligors, and should not have abated the suit as to the non-residents; for, he, thereby, discontinued as to the defendant who was arrested. It may be said, that this should have been pleaded in abatement ; but, that was not necessary, because it appears upon the record, and Turner could not have pleaded it, because the declaration was joint. The act of Assembly had provided the means of bringing all the parties before the Court; and, therefore, it ought to have been done. At least, the plaintiff should have followed up his process.
    Then, as to the point made by Mr. Warden. My own impression from the act of Assembly originally was, that the jury were merely to find, if any, and what payments had been made, and the Court were to ascertain the rest; but, on my first coming- to the bar, I found the practice to be settled the other way, and that the jury were to find the sum by which the penalty should be discharged, which I suppose was done upon a proper consideration' of the
    • law. I had occasion once to submit this . question to the Federal Court, and con- : tended that the jury should find the pay- ■ ments specially; but, the Court enquired into the practice of the General Court, and . being informed that it was to find gener- . ally, they submitted the cause to the jury. . Therefore, I conclude, that the practice is : now settled, that the jury may enquire : into the amount; and, of course, be ■ regulated by evidence and the circumstances.
    *The circumstances do not appear in this case; but if, under any circumstances, there might be a deduction of interest, the Court will suppose those circumstances appeared, as every thing transacted in a Court of Justice is presumed to be rightly done, until the contrary is shewn. The question, therefore, is whether, under any circumstances, a deduction of interest can be made by the jury? The act of Assembly does not state from what period the interest shall commence. I suppose the act was founded on the practice in the Courts of Chancery, of relieving the obligor on payment of principal, interest and costs: in which Court, circumstances would clearly be taken into consideration, and a deduction made accordingly. As to the case now under consideration, all the circumstances are not stated, but there are several mentioned which afford an equity. The plaintiff was absent during all the time mentioned in the notice, and there was no agent to whom payment could be made. Now, if, in this time, he attached himself to the other party and became an alien enemy, so that the defendant was prohibited from having any intercourse with or paying him the money; in that case, a reduction of interest would be highly reasonable: for, it would be against conscience, that the creditor should demand interest, when his own absence was the cause why the debt was not paid. I do not say that this was the case; but, although no proof of these circumstances is stated, yet, as the contrary does not appear, the Court will intend that they, or some such, were proved, for the reason before given, namely, whatever is transacted in a Court of Justice shall be presumed to be rightly done, until the contrary is shewn.
    Warden. As to the question concerning the abatement, there is no difficulty in it. The sheriff is bound to return the truth of the case; for, otherwise, the process might be infinite. In the County Courts it has been constantly done, both before and since the revolution. When this suit was commenced, the District Court did not 137 possess '"the right to issue mesne process out of the limits of the district. There is a manifest distinction, in this respect, between the act of 1788, [12 Stat. Larg. 739,] under which this suit was brought, and the act of 1792, [13 Stat. Larg. 438,] spoken of by Mr. Wickham. The plaintiff, therefore, proceeding under the act of 1788, was obliged to submit to the abatement; for, he could not follow up the process as to the non-resident defendants.
    Then, as to the point of evidence. Any thing else might as well have been proved under the plea of payment, as the absence of the party. If, the defendant had pleaded the fact specially, it would have been demurrable to; which proves, that such evidence before the jury cannot be admitted; for, whatever goes in destruction of the plaintiff’s right, may be pleaded. Even a tender in this case would not have availed; because, the day of payment had arrived before the plaintiff’s departure from the State. A case in the Federal Court was mentioned, which I do not recollect; but, I remember that in the case of Jones’s exrs. v. Hylton, Chief Justice Jay, was of opinion, that the jury could not deduct interest. For, he said, that it was the act of the Court to ascertain the amount still due after the payments were deducted, which was all that the jurj' could enquire into. It has been said, that no particular interest was fixed by law; because the act of Assembly does not say, that any interest shall be recovered, but only that not more than 5 per cent, shall be taken. If, though, the law has said, that the obligee shall not take more than 5 per cent., it certainly implies that he may take that, and the uniform practice of the country has been to give judgment for it, which proves the universal opinion of the law. By the treaty of peace, we agreed to the payment; and there is no exception in it of cases where the party was absent. It is time for us to lay aside a conduct which has subjected us to the obloquy of all good men, both in Europe and America, and must be disagreeable in the sight of God and ’Angels. For, interest is a part of the debt, and the 138 *plea of payment signifies the payment of interest as well as principal, and, consequently, the deduction of interest, where there is no payment, is what a jury cannot do consistent with their oaths, and no Court can with propriety receive their verdict.
    Wickham. As to the first point which I made, the discussion is new. It is admitted, that if the suit were in the General Court, or any other of unlimited jurisdiction, that the plaintiff ought to have continued the prosecution against all; which goes the length of deciding the cause; for, the act of Assembly has given jurisdiction pro hac vice. The act of 1792, does not admit of a doubt. I do not know that it has ever been decided, that the defendant, in such a case, could not plead the non-joindure in abatement, but, upon principle, I should think he might; and as the fact is open upon the record, he may take the same advantage of it, as if it were regularly pleaded. This is not an objection of form merely, but goes to the very essence of the plaintiff’s right; who should pursue all jointly, and not harrass one without calling on the others, so, that he might have their aid in the defence and succour in the payment.
    Warden. The act forbids issuing a writ into any district, but that in which the defendant resides, under pain of having the suit dismissed with costs. The subsequent clause only relates to the right of arresting the co-obligor, if found in the district in which the writ is issued. This is clear from the next member, which gives a right to sue upon a copy. The plaintiff might have had separate suits depending against each defendant in his own district, which, by virtue of this clause, he is enabled to maintain: although, I admit, that satisfaction of one execution would have discharged all.
    Wickham. The District Courts uniformly interpret the law, as I understand it; and the constant practice is, to send writs into other districts.
    
      
      Process — Joint Defendants — Abatement as to Nonresidents. — The principal case is cited with approval in McVeigh v. Bank, 26 Gratt. 825.
      In Brown v. Belches, 1 Wash. 9, the writ was against two partners, bnt an abatement was entered as to one upon a return of “no inhabitant,” and verdict and judgment were rendered against the other. The abatement which had been entered as to one was held to be regular, and the judgment against the other was affirmed.
      Interest — Abatement—War.—Interest, during war, where debtor and creditor are separated by belligerent lines, must be abated. The principal case is cited for this proposition in Fred v. Dixon. 27 Gratt. 543; Roberts v. Cocke, 28 Gratt. 212, 213, 220; Brewer v. Hastie, 3 Call 24; Harmanson v. Wilson. Fed. Cas. No. 6.074, 11 Fed. Cas. page 549; Hutchinson v. Landcraft, 4 W. Va. 318, and distinguished in Cooke v. Wise, 3 Hen. & M. 487. Upon this subject of the abatement of interest, the principal case is further cited in Branch v. Burnley, 1 Call 156: Shepherd v. Wysong, 3 W. Va. 52.
      Same — Province of Jury. — It is the province of the jury to decide ou interest. For this proposition, the principal case is cited in Cooke v. Wise, 3 H. & M. 495, 598; Fine v. Cockshut, 6 Call 17; Dow v. Adam, 5 Munf. 23.
      See generally, monographic note on “Interest” appended to Fred v. Dixon, 27 Gratt. 541.
    
   FLEMING, Judge.

There were two points made in this cause, one by the 139 plaintiff’s counsel *on the propriety of admitting the evidence in order to extinguish the interest during the absence of the plaintiff from this country; and the other by the defendant’s counsel on the point, whether the plaintiff by failing to' continue the process against the non-resident parties, had not discontinued his suit altogether?

On the first question, it was said by the plaintiff’s counsel, that such evidence could not be given on the plea of payment: which position is correct, if the case be considered at common law merely. But, the act of Assembly has altered the common law ; and, by allowing the penalty ‘ ‘to be discharged by payment of the principal and interest due thereon,” [c. 13, § 5, 4 Stat. Larg. 359; c. 7 , § 6, 5 Stat. Larg. 511; c. 128, § 83, R. C. ed. 1819,] necessarily turns the quantum into a question to be determined by circumstances; and, I think it was the province of the jury to decide that question. The-plaintiff by absenting himself from the-country, put it out of the debtor’s power to. make payment; and, therefore, it is unreasonable that he should demand interest during that period. This was a circumstance proper to be left to the jury upon a plea of this kind, in an action, of debt upon a bond. It is like collateral evidence to. mitigate damages in actions of assault and battery.

As to the other point. The act of Assembly does not give such extensive jurisdiction, as the plaintiff’s counsel contended' for; the clause relative to the copy of the bond proves it: which would have been unnecessary, if the Court had possessed general jurisdiction, so as to force the appearance of non-resident defendants from other districts. According to any construction, though, I think it ought to have been pleaded; and, therefore, I am of opinion that the judgment of the Court was right upon both grounds, and should be affirmed.

CARRINGTON, Judge. Every question in this case might have been saved, except that upon the bill of exceptions. If Mr. Wickham’s argument were correct, a judgment might never be obtained 140 *where there are several defendants because, it would seldom happen that they all could be found in one district. Ror, the act of Assembly does not admit of the enlarged jurisdiction which he contends it does. Although, the words of the proviso p. 83 [R. C. ed. 1794, 12 Stat. Larg. 739,] are calculated to give that impression at the first view, yét a close attention will lead to another construction. Ror, the next member of the sentence which allows a cop3r to be given in evidence, would, according to the other exposition, have been unnecessary. But, let the interpretation of the act be what it may, the matter should have been pleaded in abatement, without which, if it even be admitted that his argument is correct, the defendant’s counsel cannot avail himself of it. Upon that ground, therefore, I think there is no error.

The whole question then rests upon the other point; and, I think the jury had a right to decide what was the amount of the interest due. The act of Assembly seems to me essentially to invest them with this power. Ror, by the express directions of the act, the penalty is “to be discharged by payment of the principal and the interest due thereon,” with the costs of suit. Who then are to say, what “interest is due thereon?” The jury surely; who must decide upon the circumstances of the case, and say when it shall commence, how long it should continue, and when it should be suspended or extinguished. On all general issues, (and this is one) the whole circumstances of the case should be submitted to the jury, who are to decide accordingly.

As to the justice of the case, I do not think that its being a British debt or not, makes any difference; the same rule would apply in a case between two citizens. Now, suppose a case between two citizens, in which one is creditor, and the other debtor; and, that the creditor removes himself into parts unknown, so that the debtor could not come at him in order to make payment, would it be just that full interest should be 141 given? And *ought not the jury to enquire into the circumstances, and reduce the interest accordingly? Again; suppose there be a bargain and sale of property, and that the seller keeps the property a long time, would it be right that he should recover interest upon the purchase money during the time of his unjust detention of the property? Surely not; no jury but what would deduct it; and, I think the law would warrant them in doing so. In this case, the plaintiff absented himself, went into a country with which we had no intercourse, and did not return till 1783; so, that his debtor could not make payment to himself, or by remittance. If, under these circumstances, he were to have full interest, he would be better off than our own citizens, who staid at home and sustained the injuries of the war. Upon the whole matter, the trial appears to have been fair; the plaintiff had notice of the evidence; the verdict I think was just, and does not in my opinion endanger the honor of the country. Therefore, I am for affirming the judgment.

PENDLETON, President. It is said by the appellee’s counsel, that this being a joint bond, one obligor could not be proceeded against alone; that the abatement against the others on the return of the Sheriff of King William, that they were no inhabitants, was an error, and the plaintiff ought to have proceeded against them according to the directions of the District Court law. What that should be, was a matter of doubt at the hearing, either from a partial reading of the clause, or inattention in me. I thought a testatum capias might issue from King and Queen, to any County in the State, returnable and to be proceeded on there; and that the plaintiff should have so proceeded. I find, though, I was mistaken, and Mr. Warden right, that a distinct suit was to be commenced in the district where the others were to be found; in which, a copy of the bond was to be evidence, or the Court might order the Clerk of King and Queen to attend with the original.

*But, this proceeding seems intended for the benefit of the plaintiff, who might waive it and proceed against the defendant only who had been arrested, if he was satisfied of his ability. Mr. Wickham, in answer to the objection, that he ought to have pleaded this in abatement, endeavored to obviate it by observing, that he was prevented from pleading it, because the declaration stood against all. But, the abatement was before the plea, and had the same effect as to him, as if their names had been stricken out of the declaration ; he had a right to waive it; and might chuse to do so, to save expense and delay, and relying on a total indemnity from the principal, if solvent; or if he was insolvent, a contribution from the co-securities. I concur in opinion, that, by pleading in bar, he legally waived the objection.

As to the question, on the merits, relative to interest:

We are told, that the juries through the State are branded with infamy by all impartial observers, as having, in their verdicts striking off interest during the war, violated the principles- of justice, of law, of treaty, of the Rederal Constitution, and, finally, of religion. A heavy charge, indeed, against a State; for, such it must be, since the jurors, dispersedly collected at the various Courts, uniformly pursue the opinion, which evidently proves the general sentiment.

Who these impartial observers are, I know not, but will avow myself to be impartial, (unless I may be supposed to possess a national bias, and from that, it is equally probable that the gentleman or his observers are not free,) and will endeavor, as far as my opinion will go, to redeem my country from this grievous charge, with equal sincerity, though with less acrimony, than the gentleman made it.

1. Upon the justice of the case. A claim of the principal debt is founded on the modern practice of war in Europe, securing individual property from confiscations 143 in consequence of national *wars. I, who am an utter enemy to all war, if it can be avoided, cannot but approve of this, and every other practice tending to soften its rigors. Our Legislature, in the preamble to their sequestration act, [Oct. 1777, c. 9, 9 Stat. Larg. 377,] acknowledge the principle, and manifest a wish to adopt it, but waited to discover whether our enemy would observe those rules in a war, different from one between independent nations. Did Britain meet us upon that liberal ground? The recollection is painful. I wish it could be forgotten, and it is with an ill grace citizens of that country make it necessary to review it. Their treatment of our unhappy soldiers who became their captives; their wanton destruction of our towns, houses, and other private property; their plunder of plate and specie ; but, above all, as most materially affecting this State, their tempting our slaves, by a delusive promise of manumission, to take arms against us; slaves, which they had introduced and received our money for, and in which property, alone, our citizens probably lost more value than the amount of all the debts they owed the British merchants: These, I say, were so many infractions, on their part, of the modern practice of war, which would, in reason and justice, deprive them of the beneficial parts of that practice, as against American debtors, and throw the creditors upon their own government for satisfaction; which, by its conduct, deprived them of their ordinary recourse against their debtors. So, that I am free to declare my opinion, that, independent of the treaty, they were not entitled, in justice, to recover one shilling of their principal debts from the debtors. . ! : ' ' : : i : : • ! ■ ' ! ■ ■ :

I would not be understood, by what I have said, to find fault with the treaty of 1783, in this respect; much less to hint, that it ought not to have been performed. As a citizen, I have ever thought and expressed myself otherwise; because, a treaty disadvantageous in one article and beneficial in all others, was as much as we could expect, and, at any rate, preferable to a continuance of the war. When I say it 144 ought to have been performed, let*me be understood to mean upon condition, that Britain had complied with the treaty on her part, having no idea that in compacts, national or private, containing mutual covenants, a party who has broken his covenants, can complain in a Court of Justice, of a breach on the part of the other. : : . l ■ . ■ • : ! ' ■ . ■

However, this is now out of the question ; and I have no difficulty in deciding as a Judge, that we must regard that treaty as a law, controuling our confiscation acts, and that the debts are to be paid: the only question, therefore, is, whether interest during the war, constitutes a bona fide part of the debt? And I do not hesitate to declare my opinion in the negative, whatever stigma may be attached to that opinion. . . 1

Our situation at that period, attacked by a powerful nation, to whose government we had been subjected; called to the exertion of every power, personal and pecuniary, in defence of life, liberty and property; and without commerce, (which had been theretofore monopolised by that nation,) to enable our citizens to pay their debts, takes the case out of every principle on which interest is demandable.

The objection applies to all creditors, but a fortiori against those of the nation, who unjustly brought us into that situation.

I should suppose, that under the modern practice of war, all the creditors of the enemy nation could expect, would be, to be placed on the same ground with the citizen creditors; subject to all inconveniences, which imperious necessity imposed on the latter, in consequence of the war. Strike out the interest in question, they are placed in a preferable state: they received their principal, and all preceding and subsequent interest in specie; the others received theirs in depreciated paper.

But, suppose the plaintiff, a citizen, going beyond sea with his bond, and leaving no agent to receive the money, since 145 the debtor could not by paying *the debt, if the war had permitted his attention to it, have saved the interest, that alone ought to exempt him from it.

On the merits therefore, I am of opinion, that, no interest is due, and that none of the moral obligations stated, are violated by the opinion. Whether religion has been transgressed, will rest with another and more unerring tribunal!

2. Having shewn on what ground my opinion is formed, that justice is attained in the decision appealed from, it only remains to consider the objections to the mode of proceeding upon the bill of exceptions.

It is to the opinion of the Court, permitting the defendant to give evidence, “that the plaintiff was absent beyond sea, from April 19th, 1775, to the 19th April, 1783, and had no known attorney here to whom the money could have been paid, with a view to extinguish the interest during that period,” on previous notice, that such evidence would be offered, that the objection is taken ; and it is said, the admission of such evidence is improper on the plea of payment, for, that even payment of principal and interest after the bond was forfeited,- if pleaded, might be demurred to.

If the counsel meant, that this was the case at the common law, he was correct; but it does not apply at present. At common law, if the money was not all paid at the day, although only a shilling remained due, the bond was forfeited and the penalty was thenceforth considered as the debt. This rigid law drove the debtor into a Court of Equity, whose maxims permitted it to relieve against penalties and forfeitures in all cases where just compensation could be made, of which in this instance principal and interest was adopted as a just measure ; what had been paid was allowed, and, on payment of the balance, an injunction stood to the judgment for the penalty.

*This circuitous proceeding was a public evil, and the Legislature wisely provided a remedy, by the act to prevent frivolous and vexatious suits, long since introduced, [May, 1732, c. 13, § 5, 4 Stat. Larg. 359,] and continued in our Code, transferring to the juries the equitable jurisdiction. Upon the trial, not only payments but discounts are to be allowed, and the jury are to say what is due of principal and interest, on payment of which, the judgment for the penalty is to be discharged. Now, if instead of payment of interest, proof is made to their satisfaction, that in right and justice, the interest ought no.t to be paid, what shall restrain the jury from finding that interest not to be due, or the Court from permitting the evidence to that effect to be given? I know of nothing, in law or reason, to interdict either. If, we recur to the principles of equity on the occasion, from whence the jurisdiction is drawn by Courts of law, persuaded I am, that no Chancellor, in relieving against penalties, would impose upon a debtor the payment of interest, which, on proofs before him appeared not to be due in conscience. The notice in this case was fair, though from the history of the business in general, it does not seem to have been required, but it has been discussed as a thing of course.

We are told, that the Rederal Chief Justice, in an elaborate charge to the jury, in Jones v. Hylton, declared his opinion in favor of interest. I have no doubt, but he gave that opinion with the like sincerity, as I have delivered mine to the contrary; and mankind, if they think it worth while, will judge between us.

So far as it concerns the present case, it seems, after telling the jury the interest was a question of law, in which I have also the misfortune to differ from him, thinking it proper for the jury to decide, what interest as well as principal is due, he finally said, the jury might decide both law and fact if they chose it. This power it seems the juries exercised; and their verdicts being uniform against the interest in the Rederal. as well as other Courts; the 147 ^creditors and their counsel have acquiesced, and struck off the interest as a thing of course.

This happy train of the business shall not be interrupted by my opinion. Bor, I cordially agree with my brethren in affirming the judgment.

Judgment affirmed.  