WELCH

.

VILLE.

The Defendant, Mandeville, also produced a paper purporting to be the answer of Welch, to the chancery MANDE- attachment in Fairfax county, (but which had not then been filed in the suit) which contained the substance of his affidavit-and also a letter written by Welch to Mandeville and Jameson, and sent by Prior at the time he presented the bills, corroborating the fact that Prior was only his agent in that business.

In this state of the case the Court below continued the motion to re-instate the cause until the next term, to give an opportunity to Prior to produce evidence of an assignment of the contract and of his right to bring suit upon it; at which term he produced his own affidavit stating that Welch was indebted to him upwards of 14000 dollars, and that Welch gave him the 3 drafts on Mandeville and Jameson, for his (Prior's) own use and benefit, for and on account of a tract of land sold to Welch, and which Welch sold to another person. He produced also certain other documents tending to corroborate his affidavit.

But the Court below refused to re-instate the cause and ordered it to be dismissed according to the agreement of the parties; to which refusal Allen Prior took a bill of exceptions which the Court signed.

Upon the opening of the case,

MARSHALL, chief justice, enquired whether the question, whether a refusal to re-instate a cause, be ground of error, had not been decided by this Court.

E. I. LEE, for Plaintiff in error-said that it had not been directly decided.

The clause of the act of Congress which gives this Court appellate jurisdiction of causes decided in the Circuit Court for the district of Columbia, (Laws United States, Vol. 5. p. 270. §. 8.) differs from that clause of the general judiciary which gives this Court its appel.. late jurisdiction in other cases. The expression of the former clause is "any final judgment order or decree ;" but the expression in the general law (Vol. 1. p. 62. §. 22.) is "final judgments and decrees." The word order must mean something different from a judgment or a decree. It seems peculiarly applicable to a final order

dismissing a suit. This peculiar phraseology was re- WELCH lied upon to give jurisdiction to this Court in the case v. of Custiss v. The Georgetown Turnpike Company, (Cranch, MANDEvol. 6. p. 233.)

SWANN, contra.

This case is within the principle of the cases already decided by this Court-such as the refusal of the Court below to grant a new trial, or to continue a cause. To re-instate a cause, after it has been once legally decided is a matter of mere discretion.

E. I. LEE, in reply.

If the clerk had dismissed it at the rules, and the Plaintiff had applied to the Court at the next succeeding term to re-instate it and the Court had refused, it would not have been an exercise of discretion, but denial of right. It would have been error in law. 1. Strange, 235, Newell v. Pidgeon.

C. LEE, on the same side.

There is a difference between dismissing a cause without trial and refusing a new trial. It cannot be possible that the Court may dismiss every suit upon the docket and yet the injured parties have no remedy; which would be the case if the dismissing of a suit be matter of discretion which this Court cannot control.

March 5th. All the Judges being present,

MARSHALL, Ch. Justice. The majority of the Court is of opinion that the motion to re-instate the cause, was an application to the discretion of the Court, and its refusal is not a ground for a writ of error.

After the Court had delivered this opinion it became a question whether the writ of error should be dismissed, or the judgment affirmed.

After consideration of the case again,

On the 7th of March,

VILLE.

WELCH

บ.

MARSHALL, Ch. Justice, stated it to be the opinion of the Court, that the judgment of the Court below should MANDE- be affirmed. The writ of error is to the judgment generally. The refusal to re-instate the cause being no error in law, the Court can see no error in the principal judgment.

VILLE.

Judgment affirmed.

1812.

March

2d.

MARSTELLER AND OTHERS . M.CLEAN.

In order to avoid the plea of the statute.

of limitations

to an action by

Present....all the judges.

ERROR to the Circuit Court for the District of

Columbia.

This was an action of trespass for mesne profits after joint tenants, a recovery in ejectment by the present Plaintiffs against it is necessary the present Defendant, who pleaded the statute of limiall the Plain- tations, to which the Plaintiffs replied, in substance, tiff's were un- that Christiana, the wife of one of the Plaintiffs, and der a disability Elizabeth, the wife of another of the Plaintiffs, in whose

to show that

to sue.

rights they sue," were femes covert when the cause

of action accrued, and have ever since continued "femes covert" and "that Kitty Hunter," one of the "Plaintiffs" was a feme covert," and that the other Plaintiffs, in whose right the suit was brought, were infants at the time the cause of action accrued, and also at the commencement of the action. To this replication there was a general demurrer and joinder, on which the court below rendered judgment for the Defendant.

C. SIMMS and R. I. TAYLOR, for the Defendant in error, contended,

1. That the replication was bad, because it did not show that all the Plaintiffs were entitled to sue, notwithstanding the statute of limitations. It did not state that Kitty Hunter continued a feme covert until less than five years next before the commencement of the

LER &

suit. If her disability of coverture was removed five MARSTELyears before bringing the action, she was barred by the statute; and the replication, being joint, if bad as to OTHERS one, is bad as to all.

2. That upon a demurrer the court will give judgment against that party who commits the first fault in pleading. The declaration states all the material allegations under a "whereas”—a quod cum. It is all recital, which is fatal upon a general demurrer, or upon a motion in arrest of judgment.

The courts of Virginia follow the practice of the king's bench in England, where this exception has been always held good. 1 Str. 621, Amyon v. Shore. 2 Hen. and Mun. 595-Hord. v. Dishman. 3 Hen. and Mun. 134. Moore's Admr. v. Dauney-id 271, Lomax v. Ford. 4 Hen. and Mun. 277. Sym v. Griffith.

E. I. LEE, contra.

The objection to the declaration is only an objection to form. The statue of jeofails in Virginia does not justify the cases cited from the Court of Appeals. Upon a demurrer to the replication the Defendant cannot take advantage of an error in the declaration.

As to the objection that the replication does not state that Kitty Hunter continued a feme sole, it is sufficient for us if we show that some of the Plaintiffs are not tarred by the statute. Those who were under a disability are not to be prejudiced by the negligence of those who were not disabled. Joint tenants cannot sue severally, they must join. 1 Tidd. Prae. 7. 1 Sanders 291. Note 4, Cobel v. Vaughan, 2 W. Bl. 1077. If the plea is bad as to some of the Plaintiffs it is bad as to all. 2 Sanl. 49, 50. 1 Sand. 28.

TAYLOR, in reply.

The case of Perry v. Jackson, 4 T. R. 516, was the first in which it was decided that the statute runs against all the joint Plaintiffs if any of them were free from disability. In that case it was replied to the plea of limitations, that one of the Plaintiffs was beyond seas, and the replication was adjudged bad.

υ.

M'CLEAN.

MARSTEL

E. I. LEE. The declaration states that some of the LER & Plaintiffs are infants, the plea was no bar to those OTHERS Plaintiffs. In the case of Perry v. Jackson the Plain

v. tiffs were partners in trade. It was a voluntary assoM'CLEAN. ciation-but here the Plaintiffs are joined by act of law. March 13th.... All the judges being present,

STORY, J. delivered the opinion of the court as follows:

The Plaintiffs in error brought an action of trespass quare clansum fregit-to which the Defendant in error pleaded the statute of limitations. The replication in substance states that, at the time when the cause of action accrued, Christiana, wife of one of the Plaintiffs, and Elizabeth, wife of another of the Plaintiffs, "were "feme coverts, and ever since have continued feme "coverts" and " that Kitty Hunter," one of the Plaintiffs," was a feme covert;" and that the other Plaintiffs in whose right the suit was brought, at the time when the action accrued, and also at the commencement of the suit, were infants. To this replication there is a general demurrer and joinder on which the court below gave judgment for the Defendant.

It is contended by the Defendant that this replication is insufficient, inasmuch as it does not allege that Kitty Hunter continued a feme covert until within five years, the time prescribed by the statute of limitations for the pursuit of this remedy. And it is further contended, that, even if the replication be good, yet the Plaintiffs ought not to recover, because the declaration charges the trespass by way of recital-for that whereas the Defendant with force and arms," &c., and not by positive and direct allegations as the law requires. On this last exception the court do not intend to give any opinion; but unless the point were fully settled by authority, they would feel little inclination to sustain an objection which would seem directed more to the form than the merits of the action.

The objection to the replication deserves more consideration. It is certainly a rule of pleading that a replication should of itself contain a full and complete answer to the bar, and that a joint plea which is bad, affects with its consequences all the parties joining in it.