Evans v. Freeland

3 Va. 119

• Court: Supreme Court of Virginia
• Decided: January 11, 1812
• Status: Published

Opinion

The pleadings presented various other points, but the following, only, were noticed in the opinion of this Court, pronounced on Saturday, the 11th of January, 1812.

“ This Court is of opinion, that the judgment aforesaid of the District Court is erroneous : therefore, it is considered, that the same be reversed and annulled with costs : and this Court, proceeding to give such judgment as the said District Court ought to have given, (not deciding upon the other points occurring in the case, further than to express its present impression to be that, under the actual circumstances of this case,

* it was not necessary for the plaintiffs in error, to have exhibited a bail-piece at the time of the surrender in the proceedings mentioned,) is of opinion that the judgment of the said County Court is erroneous, in this, that the scire Jadas only purports to be founded upon a judgment entered at the rules, but does not aver, or show, that that judgment was confirmed, by not being set aside at the ensuing quarterly Court, nor even that such Court had occurred prior to suing out the scire facias aforesaid : therefore, it is further considered, that the said judgment be also reversed and annulled; that the said scire facias be quashed/” and that the plaintiffs in error recover costs jn both the Courts below.

Note. It appeared in evidence, that the sheriff refused to accept the surrender, notwithstanding he was fully apprized of the undertaking of the plaintiffs in error as bail, but grounded his objection to holding Armstrong in custody, not on their want of right to make the surrender, but on motive* of personal friendship and tenderness to the said Armstrong.