Harper v. Smith

6 Va. 389

• Court: Supreme Court of Virginia
• Decided: April 20, 1819
• Status: Published

Opinion

In an action of debt upon a bill penal in the County Court of Prince Edward, brought by Owen Smith against William Fuqua, the defendant being arrested and not appearing, Samuel Harper his appearance bail, without craving oyer, pleaded payment, to set aside the Office Judgment; but, ai a subsequent term, by his attorney, relinquished that plea, and said “he could not gainsay the plaintiff’s action against the said defendant.” It was therefore considered by the Court, that the plaintiff recover against the defendant and the said security for his appearance, 921. 8. 0, the debt in the declaration mentioned, with costs &c. ; but to be discharged by the payment of 461. 4. 0, with lawful interest thereon, from the 1st day of January 1807, ’till payment, and'the costs.

The declaration described the bill penal, as bearing date the 18th of July 1807, for the sum of 461. 4. 0. payable on demand, under the penalty of 921. 8. 0; but did not mention Interest. The bill penal was for 461. 4. 0. “payable on demand, with interest from the 1st day of January last, for dealings previous to that date.”

Harper obtained a Supersedeas to the Judgment; alledging in his petition that “the Bond in the record was variant from the bond declared on” ; but the Superior Court afterwards affirmed it; whereupon, he obtained a Supersedeas from a Judge of this Court, for the same reason, and, also, “because the judgment gave interest from ⅛ time anterior to that of payment, and from a period not demanded, or even stated, in the declaration.”

By the Court, the Judgment was affirmed.