
    Turberville v. Self.'
    
    April Term. 1795.
    Jeofails and Amendments — Want of Similiter. — After verdict and judgment, the want of a similiter will not he considered as error.
    Replevin — Plea of Nil Debet — Discount — Award.— In replevin, the plaintiff, upon the plea of nil debet. may give in evidence an award made since the distress taken (but respecting pre-existing accounts), in order to show that nothing was due the avowant.
    Set-Off — Assigned Bond. — In what case an assigned bond will not be allowed as a set off.
    Replevin, in the County Court of West-moreland brought by Self the defendant in error. Avowry for rent arrear. Plea nil debet, and concludes as usual to the country, but the issue is not joined by a simili-ter. At the trial, the defendant gave in evidence an award of arbitrators made since the distress was taken, but respecting accounts subsisting between the parties, prior thereto, in order to shew, that he did not owe any thing to the avowant. This being objected to as improper evidence, ' and being admitted by the court, a bill of exceptions was filed. The avowant offered in evidence to destroy this demand of the plaintiff’s, a bond of his for SOOOlb of tobacco, which had been assigned to him as appeared from the endorsement, sometime in 1785, long before the distress was taken, but he did not prove notice of the assignment to the plaintiff, nor did he otherwise than by the endorsement, prove the precise time when the assignment was made. The court rejected this evidence, to which an exception was taken. Verdict for -Self the defendant in error. This judgment was affirmed in the District Court of Northumberland, to which judgment a supersedeas was awarded by one of the judges of this court.
    The objections made to the judgment by Washington for the plaintiff in error were 1st, That no issue was joined in the cause.
    2d, That the plaintiff ought to have set forth the award specially in his plea, that the avowant might have it in his power *to impeach it, and that for this reason it was improper-to give it in evidence on the general issue.
    3d, That the court ought to have admitted an off-sett against the award, the bond of the defendant in error which had been assigned to the plaintiff.
    Marshall for the defendant,
    In answer to the first point, relied upon the case of Brewer v. Tarpley (ante vol. 1, p. 363) as conclusive.
    
      
       The principal case is reported and annotated in 4 Call 580 (Va. Rep. Anno.).
      
    
    
      
       Jeofails and Amendments. -See monographic note on “Amendments’* appended to Snead v. Coleman, 7 Gratt. 300.
    
   The second objection if a good one for the reason assigned, would equally prevent one bond from being offsett against another, which (it cannot be denied) may be done under the general expressions of the act of Assembly respecting discounts. Though the award is made posterior to the taking of the distress, the debt was created long prior to it. The award does not create a debt, but only ascertains one already existing — it was therefore proper evidence.

The answer to the third objection is, that the time of the assignment not being proved, it might have been made subsequent to the distress, and if so, was improper evidence to-justify an act which was originally tortious. For if nothing were due (which there was not, since the debt due from the avowant exceeded the rent due to him,) when the distress was taken, the seizure was unwarrantable, and could not be rendered lawful by a subsequent act tending to destroy the offsett of the tenant against the demand of rent. The date of the assignment endorsed on the bond, is no proof of the real time when that assignment was made.

The court affirmed the judgment.  