
    *Porter v. Harris.
    [April, 1802.]
    Appellate Practice — Setting Aside Order ot References— Failure to Except — Effect.—If there be an order of reference by consent; and it be afterwards set aside, without its being- shewn at whose instance, or for what cause, it was done; and no exception be taken at the time, the court of appeals will affirm the j udgment afterwards rendered upon a • verdict subseauently obtained.
    Pleading and Practice — Indebitatus Assumpsit — General issue — Proof under-  Case at Bar. — In indebitatus assumpsit, if the defendant,'after office judgment and a writ of enquiry, offers to plead, in abatement, that the matter of the suit was contained in a covenant under seal, and the court reject the plea, but give leave to plead the general issue, it will not be error; for the defendant might have given the special matter in evidence under the general issue, and if it had been refused, might have filed an exception to'the opinion.
    Same — Late Stage of Suit — Special- Plea — Quaere.— Whether, at a late stage of the suit, a special plea may be received, and the cause sent back to the rules ?
    Same — Same—Same—possibly there may be cases w’here it would be proper; but the circumstances should be very strong.
    Bills of Exception — Signing—flandamus by District Court to County Court.- — The district court made a rule upon the justices of the county court to shew cause why a writ of mandamus shouid not issue, commanding them to “sign and seal” a bill of exceptions; they having appeared and “assigned satisfactory reasons" why they did not sign and seal the same, the rule was discharged.
    Appellate Practice — New Trial — Affidavits after Appeal. — The appellate court cannot grant a new trial upon affidavits taken after the appeal was depending in such appellate court.
    Porter brought indebitatus assumpsit, in the county court, against Harris, for work and labour done and performed, and for materials found in and about the same. The plaintiff obtained an office judgment and writ of-enquiry in January 1794; and, at the March court, in the same year, without setting aside the office judgment, a general order of reference, to be returned to the next August court, was made by consent, with a release of all antecedent errors. In August 1794, the following entry was made in the cause, “The order of reference in this cause being set aside, the same is continued until the next term.” At May court 1795, the defendant moved to remand the cause to the rules, which was refused; and thereupon he offered a bill of exceptions to the court’s opinion, stating, in hac verba, the agreement in writing to refer the cause; the order of reference; and the above recited order, in August, for setting *it aside, “without having given the defendant any notice, appearing upon the record, of such motion being to be brought forward.” Which the court refused to sign, “as the said bill of exceptions, and the matters therein contained, are a misrecital of the record, and do not contain facts.” The defendant then offered to plead, that the contract for the work and labour was a covenant under seal (setting it forth at large) ; and that the plaintiff should have declared upon it, with a ' profert. The court refused the plea, which concluded in abatement; and the defendant filed a bill of exceptions to that opinion also. The defendant then moved for, and obtained, leave to plead non as-sumpsit. Verdict and judgment for the plaintiff. Immediately after which, the defendant moved for a new trial: but the court denied it; and thereupon he appealed to the district court.
    A rule was made by the district court, upon the justices of the county court, to shew pause why a writ of mandamus should not issue, commanding them to sign and seal another bill of exceptions, which stated that the plaintiff offered in evidence a bill of the costs of the mill; and that part of it was objected to by the defendant, as covered by the covenant. But the justices “having assigned satisfactory reasons why they did not sign and seal” the said bill of exceptions, the rule was discharged.
    The defendant Harris, while the appeal was depending in the district court, obtained the affidavits of sundry witnesses relative to the value of the work, and some transactions during the trial of the issue.
    The district court, (“the transcript of the record of the judgment, together with sundry affidavits, being seen and inspected,”) reversed the judgment, because the county court refused a new trial; and, setting aside the verdict, awarded a new trial, and retained the cause for trial there. Erom which judgment, Porter appealed to the court of appeals.
    ^Nicholas and Randolph for the appellant.
    The bill of exceptions states that the order of reference did not ascertain the time within which it was to be performed; but that was contrary to the fact, and therefore the court very properly refused to sign it. The motion to remand the cause to the rules was unreasonable; especially as the defendant was not taken by surprize, for the cause was continued to the next term. The plea that was rejected was a dilatory, as it went to the form, and not to the merits; and therefore could not be received after the office judgment. Down-man v. Downman’s executors, 1 Wash. 26. Besides, it only amounted to the general issue; and was consequently bad. S Mod. 314; Co. Litt. 303, b. ; 3 Mod. 166. The defendant sustained no injury, as the general issue was, in fact, afterwards pleaded; and he might, under that, have given the matter of his plea in evidence. The district court erred in granting a new trial upon the affidavits taken after the cause came into that court; for, sitting as an appellate court, they ought to have reversed or affirmed the judgment upon the face of the record. There was no impropriety in setting aside the order of reference, as there does not seem to have been any opposition to it; and it does not even appear to have been done at the instance of the plaintiff; for the entry is “the order of reference being set aside,” without stating on whose motion, or for what cause. Therefore, the court will presume that there were sufficient reasons for setting it aside, shewn to the county court.
    Wickham, contra
    Submitted the question as to the new trial. The county court ought not to have set aside the order of reference;‘ for it could only be discharged by consent, and none appears. The defendant, after setting aside the office judgment, was at liberty to plead, as if no such judgment had been obtained. But the plea that was rejected was not a dilatory; for it was a complete bar to the action of assumpsit; and where the plea destroys the action, without regard to the form, it is a plea in bar, and not in abatement. *6 Mod. 102. The case cited from S Mod. 314, was not decided; for the plea was withdrawn by consent, and therefore it proves nothing. It is no answer to say, that the defendant could sustain no injury, because he might have given the same matter in evidence under the general issue, which was afterwards pleaded; for, admitting that to be true, still the defendant’s situation was worse; because, if the plea had been received and demurred to by the plaintiff, he might have been prepared to support the law of it; and, if it had been replied to, he might have been prepared to support the fact. But the general issue altered his situation in both respects, and rendered him liable to surprize and inconvenience.
    Cur. adv. vult.
    
      
      Pleading and Practice — Pleas Amounting to General Issue. — in Merchants, etc., Bank v. Evans, 9 W. Va. 382, it is said: "All of these special pleas, which set forth facts, showing that the plaintiff never had a cause of action, ought to have been rejected, as amounting to the general issue; and such of them as set forth matters in discharge of the action, if they had concluded properly, might have been received by the court, butif they had, nevertheless, been rejected, this court would not have reversed the circuit court on the appeal of the defendants, as no injury could have possibly resulted to them, as the case was, finally, decided on a demurrer to the evidence, and all their defences were admissible under this general. issue. Porter v. Harris, 4 Call 488.”
    
    
      
      Biils of Exception — Signing—Mandamus to Compel Lower Court. — That a mandamus will issue to compel a lower court to sign a hill of exceptions in a proper cake, the principal case is cited in Douglass v. Loomis, 5 W. Va. 546; foot-note to Page v. Clopton, 30 Gratt. 415. See monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
   LYONS, Judge,

delivered the resolution of the court to the following effect: That, as no exception to the setting aside the order of reference was taken at the time, nor any misconduct in the court shewn, there was no reason for impeaching the judgment of the county court upon that objection. That there was no ground to find fault with the county court for refusing to receive the plea and send the cause back to the rules; for, if allowable in any case, the circumstances leading to it, ought to be very strong: and, in the present instance, there was not the slightest reason for it, as the defendant was allowed to plead the general issue, and might have given the special matter in evidence under it: and if the court had refused, upon the trial of the issue, to have received the testimony, he might have filed an exception to the opinion. That the district court ought not to have granted a new trial upon the affidavits taken after the appeal was depending in that court. And, consequently, that the judgment of the district court was to be reversed, and that of the county court affirmed.  