
    Higgins & Bogue, vs. Alexander Hayward, Jr. (In Error.)
    Franklin,
    January, 1833.
    Tiiat tUe omission of vi et armU in an action of trespass» docs not vitiate this state, unless met by a special demurrer.
    That the refusal of the Court to receive a plea, after the last continuance, or the taxing of witnesses travel and attendance, cannot be assigned for error, 'unless the grounds of decision are placed upon the record by a bill of excep-iions.
   Hutchinson C. J.

This is a writ of error, bringing up the record of an action, commenced by said Hayward against the plaintiffs in. error, and originally commenced before a Justice of the Peace, and appealed to the County Court. We should suppose, from the papers now presented to us, that there was much warm litigation in the County Court, which ended in the plaintiffs recovering a judgement. To reverse that judgement this writ of error is brought. In nullo est erratum is pleaded. The arguments of counsel are too .prolix to be published. The first error, insisted upon is a defect in the declaration. The action was trespass for taking a Chaise and harness: and the defect complained of as error is, the omission of the word force, in’ the usual expression, with force and arms. There exists, in this State, neither of the reasons, which ever existed in England for making this averment in a civil action when first introduced in England. The civil action was also a criminal process; and, if the plaintiff recovered damages, a fine was assessed to the King. Hence the vi et armis and contra pacem were apt expressions, in reference to one part of the judgement, that must be tendered in the action, if the plaintiff recovered at all. When the Statute 5 W. & Mary C. 32, abolished this fine, it created a substitute, by-requiring the plaintiff, on signing judgement, to pay a fixed sum, which he recovered back in his judgement. And the vi et armis seems as necessary to secure this substitute, as it did before to warrant the fine. But, by the Statute 4 & 5, Ann, C. 16, the omission of vi et armis, and contra pacem, is aided except on special demurrer. See Goulds pleadings, p. 188-9.

In this State, there never has been a fine imposed upon the defendant, nor any duty collected of the plaintiff, in an action of trespass, any more than in an action of as-sumpsit ; and there never has been any reason for inserting ^10SG expressions in our writs of trespass, except preserve ing a reverence for ancient forms; and, when the reason f°r a ^aw ceases, the law itself ceases, in many cases, at least. Moreover, the practice under some very ancient English statutes is so interwoven with the common law, it has come down almost as a part of the common law, and has become a part of the common law in this state. On one or more of these grounds, the insertion of the vi et armis, in civil actions of trespass, has long since lost its seeming importance, unless the omission is met by a special demurrer.

Another error is assigned upon the taxation of costs by the County Court. The error is, that witnesses are taxed whose certificates are not signed, or not sworn to. If there were a bill of exceptions allowed by the judges of the County Court, showing, that these witnesses were taxed without the consent of the opposite party, and without any other evidence than these defective certificates, the re might be some weight in this error thus made apparent upon the record. But no such error now appears. The statute does not take away the power of the Court to hear evidence concerning costs, vim voce, and allow th& travel and attendance of witness without any certificates in writing. And the record must show, that the County Court made some wrong decision, before their judgement will be reversed. Every presumption is in favor of the correctness of their judgement, in an action regularly before them, till the contrary appears.

The error, relied upon, which is most intimately connected with the merits of the controversy, is, the refusal of the County Court, at their April Term in 1828, to receive a plea in bar, then offered by the plaintiff in error, bringing in as they contended, a defence, which had arisen after the last continuance of the cause in December, 1827. It is now contended, that two actions were pending before said Court, at their December adjourned Term in 1827, in favor of the same original plaintiff, and against the same original defendants, for one and the same trespass j and, that judgement was recovered in one at said December Term, and the other continued — and that they claimed to plead in bar to said continued action, at said' April Term, the said recover)', and the satisfaction of the judgement, and that this plea was rejected by the Court, by reason of its being offered out of season. This plea, thus offered, is copied into the writ of error, as if it made a part of the record. So is a long bill of exceptions, that was never allowed by the judges of the Court — and neither of them ever became a part of the record, so as that error could be assigned upon them. The Clerks writing, that the plea was offered, and rejected by the Court, by reason of its coming too late, does not make it a part of the record. The party, that would raise any question upon this refüsal of the Court to admit the plea, must get the judges to allow and sign exceptions to this refusal, assigning their reasons for such refusal; and thus making all appear of reco-d. Then the Court of Errors could see whether, considering the subject matter of the plea, and the time when, and the circumstances under which the plea was offered, the party had a right then to interpose such new defence. If the plaintiff seek a remedy by writ of error, they must show themselves deprived of a right, not merely denied a motion, addressed to the discretion of the Court.

It is easy to perceive good reasons, which might exist, why this plea should have been rejected. The plea itself describes a judgement that does not necessarily appear to be for the same cause of action. It contains an averment, that it is for the same cause. But it is accompanied with no affidavit, as the English rules require. If it was offered, under these circumstances, just as the action was called up for trial at the April Term of 1828, the Court did right to reject it.

Again, the judgement was rendered at December adjourned term, 1827. As soon as it became a complete judgement, it was ready to be used as a bar to the other suit, and this before satisfaction of the same. It is not ea'sy to see, why the plea in bar of such a recovery might not have been plead during said December Term, and before this last continuance of this suit, to said April Term. If the Court saw this to be so, there was not' a right to have the plea received, and no good reason why it should be received, if not offered till said April Term.

A defendant has as good a right to present a defence* . which arises after the action is' pending, and even- after plea pleaded, as if it existed before. But he must present either the one or the other in season, according ta the rules of the Court, where there are rules, that apply. And according to- rules of fair practice, where no particular rule applies he must not be permitted, as a matter of right, to plead so late as necessarily to push-the action over to another term, and plead such matters- only as he' has known for weeks and months.

Read & Beardsley, for plaintiff in Error.

Smith & Royce, for defendant in Error.

We discover no error in this record, and the judgement of the County Court- is affirmed, with additional damages and costs.  