#### Payne and Others v. Ladd.

Saturday, November 4th, 1815.

i. Case Approved. — The first point in Waugh v. Carter, a Munf. 333; again decided,

a. Statute — Superior Court of Law — Transmission of Cause from District Court. — Under the 8th and 15th sections of the act to organise and establish a Superior court of law in each county of this commonwealth, it was the duty of the clerk of the District Court, In a case in which one of two defendants had confessed Judgment, and the other had not, to send the papers to the Superior Court of that county, in which the defendant, as to whom the cause was still pending, resided.

3. Same — Same—Same.—And it seems, that, if there was nothing in the record to shew the contrary, the county, in which the defendant was arrested, was to he considered that in which he resided.

On the 2d day of October 1806, a capias ad respondendum, in an action of debt, was issued from the clerk’s office of the District Court, holden at Haymarket, in favour of John G-. Dadd, against John Payne and William Hawke, endorsed, “due by note, bail required,” and directed to the sheriff of Houdoun County. The sheriff’s return was, “executed October 16th, 1806, on John Payne ; and Fleet Smith, Joseph Bread, and John Myers, his appearance bail. Executed on William Hawke in the jail of Houdoun County, and left him in the custody of the jailor, on the within writ.” October 30th, 1806, Hawke, in custody, confessed judgment in court.

In November 1806, it is stated in the record, the defendant Payne not appearing, or giving special bail, a common order was entered against him and his securities ; yet the suit was continued monthly at the rules, for want of a declaration, until March 1809 : and, afterwards, at the rules held in the clerk’s office of the Superior Court for Prince William County, (to which the papers in the case were sent by the clerk of the late District Court aforesaid,) the same was farther continued, monthly, for want of a declaration,- until the *4th of August 1812, on which day the plaintiff filed a declaration; and on the 23d of August 1812, a rule to plead was entered. In September following, the defendant Payne having failed to give special bail and plead, ■the common order heretofore entered against him and his securities was confirmed. At May Term 1813, (there being no court at October Term, owing to the absence of the judge,) this office judgment was confirmed against Payne and his securities, who thereupon obtained a writ of supersedeas.

Nicholas, for the plaintiffs in error.

1. The common order was erroneously entered, there being no declaration filed at the time; and, of course, the subsequent confirmation of that order, at rules,- and in court, was wrong, and the proceedings in the office ought to be set aside.

2. It was erroneous to give a rule to plead, at August Rules 1812, less than a month after filing the declaration ; for the law requires a month to be given, after declaration filed, before the rule to plead can be entered, (a)

3. In the new arrangement of the causes pending in the District Courts, the papers in this cause ought to have been sent, according to the act of assembly, to the Superior Court for Houdoun County, instead of that for Prince William, which could have no jurisdiction in the case ;(b) for, as to the defendant Payne, the cause was pending and undetermined, notwithstanding Hawke, the other defendant had confessed judgment, (c)

(a)

 Rev. Code, lstvol. p. 80. sect. 36.

(b)

 Acts of 1807, ch. 3, sect. 8, p. 8; Rev. Code, 2d vol. p. 151.

(c)

 See the same act. sect. 15.

Monday, November 6th, 1815, the president pronounced the court’s opinion, “that the said judgment is erroneous in this, that the office judgment was entered at the rules before the defendant had filed his declaration ; also, that there is error in the papers and documents belonging to the cause, having been transmitted to the Superior Court of Haw for the County of Prince William, instead of that of the County of Houdoun, in which both John Payne and William Hawke *resided,(1) and where they were both arrested, besides other errors that are apparent on the face of the record.”

Judgment reversed; all the proceedings against the plaintiffs in error subsequent to the original writ set aside, and the cause transmitted to the Superior Court of Haw for the County of Houdoun for farther proceedings to be had therein.

(1)

 Note. The only evidence in the record, that the defendants resided in Loudoun, was the writ’s being directed to the sheriff of that county, requiring bail tobe taken; its being executed on them both by the same sheriff; and the defendant Payne’s actually giving a bail bond, which was returned with the.writ, but did not express his place of residence. — Note in Original Edition.