1811

br himsel

cannot cm

quity

him in a subsequent action brought against him for the OCTOBER, same cause, the court is of opinion, that he was a com

Poindexter petent witness, and that, therefore, there was no error in permitting him to give testimony in the cause.

Wilton and

others, “ With respect to the general question, supposed by the appellant's counsel to have arisen in this cause, touching the necessity of the trustee having the sanction of a court of equity to enable him to sell, the court is of opinion that it either does not necessarily arise in this case, or that, under the particular circumstances thereof, it ought to be adjudged against the appellent in a court of law; and, upon the whole, that the judgment should be affirmed."

Poindexter against Wilton and others.

Friday, March 20thely

1812.

failing to il od so dear from allego and as to the the appelas

curity bre istance of the

circumstance

of the poor,

or bounds 2

that effect in faroute'

IN this case an action for covenant broken was brought An action in

bebalf of an against the appellant, in the county court of Bedford, a prentice, " for the benefit of Yohn Gowing,' in the name of Wil upon his in diam Il’ilton, James Ayers and others, overseers of the prenticeship,

ought not to poor of said county, successors of David Saunders and be brought in

the name of others. The declarat on charged, tha', on the 15th day the overseers of May, 1793, Thomas Leftwich and Charles Moorman, bal in his ow? then acting in the office of overseers of the poor

for the
county aforesaid, by a certain indenture sealed with their
seals, &c., bound the said John Gowing until he should
arrive at the age of twenty-one years; " and the said

;
Samuel Poindexter covenanted and agreed with the said
Thomas Lefrwich and Charles Moorman, then acting as
over eers of the poor, to learn the said John Gowing

carpenter's trade, and also to learn him to write, and
read the Bible, and common arithmetic, including the

his was Du

ime of tria, h, if it het 'Wo that he

d the appel

the

181.

V
M Neil.

October, rule of three; and, during his apprenticeship, to find him

sufficient diet, clothing, lodging, and washing; and, at Webb,

the expiration of his apprenticeship, to pay him his free-
executor of
Osborne, dom dues according to law;" and that the said Samuel

Poindexter had altogether broken his said covenant in
every particular. *

The defendant pleaded that he had not broken his
covenant. A general verdict was found for the plain.
liffs, and damages were assessed to two hundred dollars.
Judgment was entered accordingly, and, on appeal, af,
firmed by the district court; whereupon the defendant
appealed to this court.

hep

2

Friday, March 20th, 1812, Judge Brooke reported the court's opinion to be, (without deciding any other point in the cause,) that the appellees could not maintain this action. The judgments of both the courts below were, therefore, reversed, and judgment was entered for the appellant.

Note. The indenture in this case appears to have been defective. The covenant on the part of Poindexter should have been, "10 and with the said overseers of the poor," &c. " and to and with the said Jolm Gowing," &e.. ee Hening': Justice, p. 67.

on

Friday, Webb, executor of Osborno, against M`Neil. March 20th,

1812. 1. If a judge

UNDER the second section of the act "to empower ment cuminary"mo: securites to recover damages in a summary way.(a) the tion be reversell,

for the appellant made a motion in the Nottoway County Court ground that updaintilians against the appellee, for 22,183 pounds of inspecte i to

, claim is not supported by

(a) Revised Code, 187 vel ch. 145. p. 281, 282. evidence, the appellate Court should proceed to enter judgment, that the plaintiff take nothing by hia motion And such julgment would be a bar to another motion for the same cause of actions But if such judgment be not entered, the

judgment of reversal is too imperfect to be a legal bar. See Mantz v. Hendley, 2 H. & M. 318.; and Darby v. Henderson and othere, ante.

1811.

to find ing; 2007 him his tret said Sue

exec tor of

corena

t broken li

for the plis

bacco, and two dollars and seventy-six and an half cents, OCTOBER,
"being one half of the amount of a judgment, rendered
in the Court of the said County, in favour of Archer

Webb,
Jones, executor of Robert Jones, deceased, against the

Osborne, said Conrad Webb, executor of Abner Osborne, on a bond M'Neil. executed by Robert Watkins, with the said Hector M'Neil and Abner Osborne his securities, to the said Rober Jones; which judgment the said Conrad Webb had fully paid." Upon the hearing of this motion, the plaintiff having produced a copy of the judgment, and receipt for the same, mentioned in the notice, and an execution on a judgment rendered in his favour, against Robert Watkins, which execution was returned “no effects ;" and having also proved that the defendant and the plaintiff's

's testator were co-securities for the said Watkins in the bond whereon the first-mentioned judgment was rendered; the defendant produced in evidence, in bar of the said motion, “ a transcript of the record between the plaintiff and defendant for the same cause of action;" from which it appeared that a judgment before obtained in the County Court, by the plaintiff against the defend. dant, had been reversed by the Superior Court, on the ground that the same had been rendered without any evidence to prove the securityship of M`Neil, or the insolvency of the principal obligor; but the Superior Court in reversing that judgment, had failed to enter such judgment, in lieu thereof, as the County Court oug/

"ht to have rendered. It was contended by the defendant, that this judgment of reversal was a bar to the plaintiff's recovery on the present motion : but the Court gave judge ment for the plaintiff, according to notice; to which opinion the defendant excepted ; and a bill of exceptions was signed, &c. This judgment was reversed by the Superior Court, upon a writ of supersedeas, on the ground-" that the judgment, in the bill of exceptions in the record set forth, having been given on the merits of the case, was a bar to any future motion for the same cause ;” and it was further considered, “ that the defend

a

war.(a) se unts Court spected to

1811.

V.

OCTOBER, ant in error take notice hy his notion,” &c, Where

upon he appealed to this Court.
Webb,
executor of
Osborne, Call, for the appellant. The first judgment in favour
M'Neil. of the plaintiff was reversed, expressly on the ground of

a mere failure to produce certain evidence : but judg-
ment was not entered that he take nothing by his motion.

The case was therefore left open, and there was nothing
(a) 5 Bac. to prevent his renewing the motion, (a)
440,

G. K. Taylor, contra. A trial on the merits, and de.
cision against the plaintiff is conclusive, though on de-
fective testimony. The necessity of suffering a non-suit

,
in order to bring a new action is founded on this princi-
ple. The general rule, that "nemo debet bis vexari," is
laid down in 3 Wils. 308. Kitchen and others v. Campbell;

.
and the only exceptions to it are there stated.

T

Call, in reply. The case in Wilson is not apposite to this. In that case the right in controversy had been tried and determined in the previous action : but in this, it does not appear that the Superior Court passed any sentence upon the claim now exhibited, which is sup. ported fully by evidence. I believe that Court intentionally omitted to give such a judgment as would destroy the claim; in order that the plaintiff might be permitted to prosecute again.

Fr duy, March 27th, Judge ROANE delivered the following opinion of this Court.

Although the judgment of reversal, offered in bar of the motion now in question, was for the same matter, and the judgment therein referred to was reversed on the merits; as appears from the reasons assigned thereio ; ; yet, the Superior Court not having entered such judge ment on the reversal as the County Court should have rendered (which, in this case ought to have been, that the plaintiff should take nothing by his motion;") the Court

&c. Where

1

1

is of opinion, upon authority, that that judgment of re: OCTOBER,
versal is too imperfect to form a legal bar to the motion
aforesaid. On that ground, the judgment of the Su-

Newman
perior Court is reversed with costs, and that of the Coun-- Graham.
ty Court affirmed."

20t in lalo

V.

he ground

?: but it v his moc

was nous

rits, and so nough on the

Newman against Graham.

Tuesday,
March 10th

1812

a this prit is vexart":

1. In an action of debt

one

tion desoribe
the bond as

not state the

of

irt intents uld desin

SEVERAL important points were made in this case,
which was argued by Williams, for the appellant, and against
Wirt, for the appellee : but the Court decided the cause if the declara.

,
on one point only.

The declaration (being in debt on a bond against Rich. joint, and do
ard Newman only) charged “ that the said defendant, other obligor

to be dead, it
together with one Catesby Graham, on the first day of is a fatal error,
June, in the year of our Lord 1801, at the County afore- pleaded in a
said, by his certain obligation, here to the Court shown, batement, and
sealed with his seal, and dated the day and year afore- verdict. *
said, bound himself, together with the said Catesby Gra-

* Note. Sce
ham, to pay &c. ; nevertheless, neither the defendant, the case
oor the said Catesby Graham, though often requested, voore,

5 Burr. 2615.4
have paid, &c. And for breaches of the condition of and i Saun-
the writing obligatory in the declaration mentioned, the pote and

4.
plaintiff showeth the following, to wit, that the said Ca- j) but accor-

ding tothe case
tesby Graham did not prosecute his appeal, from the of Meredith's
judgment of the District Court of Dumfries, render- trixx. Duval,

Munf 76., ed against him at the suit of Robert Grahan, with effect; if the bond be

spread on the but the said judgment was in all things affirmed ; and record by oy.

er and appear the said Catesby did not perform the judgment of said

to be a joint

and several
Court, nor pay the amount of the recovery, and all costs

bond, the dea
and damages adjudged against him in the said Court, feet in the de.
upon his being cast in said appeal ; but he utterly failed viated.
in paying and performing the same.”

The defendant did not pray oyer of the bond ; a copy

permitku