#### .Kemp v. Mundell and Chapin.

November, 1837,

Richmond.

(Absent Cabell, J.)

Appellate Practice — Irregularity in Setting Aside Issue on Improper Plea* — Effect.—If an improper plea be received, and issue be taken, on it, the court may afterwards set aside the issue and the plea; and if this be in substance and effect done, though in form irregularly done, the proceedings shall not be reversed for such irregularity.

Pleading — Debt on Judgment of Sister State † — Plea of Nil Debet. — The plea of nil debet is not a good plea to an action of debt on a judgment of another state of the union.

*17Same — Same ‡—Declaration—Case at Bar. — A Maryland judgment is rendered for tlie debt, tbe damages, and costs, with a memorandum at foot that the plaintiff shall release the damages on payment of the interest due on the debt; in debt on this judgment in Virginia, the declaration demands the debt and the interest, not the damages; and held good.

On the 30th November 1822, Kemp and two others executed a joint and several bond to Mundell and Chapin for 198 dollars payable six months after date with interest from the date. Mundell and Chapin brought an action on the bond against Kemp in the county court of Prince George, Maryland, laying the damages for the detention *of the debt at 400 dollars ; Kemp confessed judgment for the debt and damages claimed; and, thereupon, the court rendered judgment for 198 dollars, the debt, and 400 dollars, the damages, and the costs of suit; with a memorandum entered at the foot of the judgment on the record, that the plaintiffs agreed to release the 400 dollars damages, upon payment of the interest on the debt from the 30th of November 1822 till paid, and the costs of suit.§

Kemp afterwards coming to Virginia, Mun-doll and Chapin brought an action of debt against him on the Maryland judgment, in the circuit superior court of Princess Ann ; and in their declaration demanded 20S dollars, being the amount to the principle debt and costs recovered by the judgment, and instead of the 400 dollars damages, the interest on the principal from the 30th November 1822— but the declaration, in the sequel, set forth the record of the judgment as it really was; that is, it stated that the judgment was for the principle debt, the damages, and the costs, subject toa release of the damages on payment of the interest; and it contained, moreover, an averment that the debt, damages and costs, so recovered by the judgment, were of the value of the debt and interest now here demanded.

The defendant first pleaded no such record, on which issue was joined. And he after-wards tendered a plea of nil debet; to which the counsel for the plaintiffs objected, but on the defendant’s counsel saying that he hoped to shew by authorities that this was a proper *plea in such a case, the court overruled the objection, and the plea was put in, and the plaintiffs took issue upon it. But at the next term after these proceedings, there was a judgment entered for the plaintiffs as upon a general demurrer by them to the defendant’s plea of nil debet; and the court gave judgment for them also on the plea of no such record, and then judgment for them according to the demand in the declaration; namely, for the debt and interest.

The defendant applied by petition to this court for a supersedeas to the judgment; which was allowed.

Johnson, for the plaintiff in error,

contended, 1. That while the issue joined on the plea of nil debet stood on the record, no demurrer to that plea was admissible; the plaintiffs could nor reply and demur too. And if the demurrer was not properly admissible, much more irregular and erroneous was the proceeding of the court overruling the plea as upon demurrer, when in truth no demurrer had been put in. The consequence of this irregularity might have been to deprive the defendant of a good plea, such as payment of the debt after the judgment rendered. 2. That the plea nil debet to this declaration was not a demurrable plea. He said the case of Clarke’s adm’r v. Day, 2 Leigh 172, required a reexamination ; and notwithstanding that case, he insisted, that the laws of Maryland must, in our courts, be regarded as matters of fact to be proved by evidence ; that the declaration here should have set forth the effect of the law of Maryland ; or the plaintiffs might have replied, that the plea was not a good bar according to the law of that state; and the question whether it was so or not, was, in its nature, a matter of fact, and so a proper subject of pleading and evidence: that the court could not upon a general demurrer to the plea take judicial notice, that by the law of Maryland the plea was not a good plea to the action there. *3. That this being an action on a judgment, the declaration should have

demanded what the judgment gave, namely, the debt and the damages, not the debt and the interest, for which no judgment was given, though the payment of interest was, by the memorandum, to be a defeasance of the judgment for the damages ; in like manner as in debt on a judgment for the penalty of a bond to be discharged by the payment of principal and interest, the declaration shoulddemand the penalty adjudged. Ragsdale ex’or v. Batte ex’or, 2 Wash. 201. Anderson adm’r v. Price, 4 Munf. 307.

*18Robinson, contra, said, 1. That it was plain the question whether the plea of nil debet should be received or not, was not decided, but was held sub judice till the defendant’s counsel should shew the authorities to sustain.it. It was doubtless owing to a clerical misprison that the similiter was added'to the plea. But if the plea was not a good plea to the action, the defendant could have had no benefit from a trial of the issue upon it. Suppose the plea an improper one, which the court below should have rejected, and from which the party could have derived no benefit;. this court would not reverse the judgment for any irregularity in the manner in which the plea was overruled. If the plea had been received, it should have been struck out; Wyche v. Maclin, 2 Rand. 426, Read v. Hanna’s ex’or, 3 Rand. 56. Then, 2, he said, the plea was unquestionably demurrable: he relied on Clarke’s adm’r v. Day, and cited also Barney v. Patterson, 6 Har. & Johns. 182, andWernwag v. Pawling, 6 Gill & Johns. 500. And as to the last point, he insisted, that the declaration properly demanded the interest which was really due, instead of the damages which were not due, by the judgment. But if that was a defect in the declaration, it was cured by the statute of jeofails, 1 Rev. Code, ch. 128, § 103, p. 512.

*

Pleading and Practice — Striking Out Plea after Issue Joined. — To the point that the court may strike out a plea that is wholly unnecessary even though issue has been joined upon it, the principal case is cited in Fant v. Miller, 17 Gratt. 67; Va. F. & M. Ins. Co. v. Buck, 88 Va. 520, 13 S. E. Rep. 973. For the proposition laid down in the first headnote, see the principal case also cited in Hart v. B. & O. R. Co., 6 W. Va. *343.*

†

Judgment of Sister State — Effect.—In Coleman v.. Waters, 13 W. Va. 307, it is said: “Numerous deci*17sions of state courts, bolding a j udgment fairly and regularly obtained In another state, as full and conclusive evidence of the matter adjudicated, have been made bv numerous state courts. Evans v. Totem, 9 Serg, & R. 259; Benton v. Burgot, 10 Serg. & R. 240; Kean v. Rice, 12 Serg. *&*R. 203; Baxley v. Lynch, 4 Harr. (N. J.) 241; Wemnag v. Pawling, 5 Gill & J. (Md.) 507; Clarke’s Adm’r v. Day, 2 Leigh 172; *Kemp v. Mundell, etc., 9 Leiah*12; Rogers v. Coleman, Hard. (Ky.) 413; Litt, (Ky.) 273, 417; Williams v. Purton, 3 Mar. J. J. (Ky.) 604; Fletcher, etc., v. Ferrell, 9 Dana (Ky.) 377; Andrews v. Montgomery, 19 Johns. (N. Y.) 165; see Robinson’s (new) Practice, vol. 1, chs. 45 and 46 and authorities there cited.” See further, monographic *note*on "‘Judgments” appended to Smith v. Charlton, 7 Gratt. 425

‡

The Action of Debt. — See monographic *note*on “Debt, The Action of" appended to Davis v. Mead, 13 Gratt. 118.

§

 In Maryland, interest is recoverable of right in actions on bonds or other written contracts for the payment of money on a day certain; but the practice is, to give judgment for it in the form of damages, with a memorandum at the foot of the judgment, that the damages shall be released on payment of the interest. Preston v. West, 4 Har. & M’Hen. 70. Gwinn v. Whitaker, 1 Har. & Johns. 574. Newson’s adm’r v. Douglass, 7 Har. *&*Johns. 417. But the law and practice of Maryland was nowise stated in this record. — Note in Original Edition.

*TUCKER, P.

I am of opinion that there is no error in this judgment. The cases of Ragsdale v. Batte, and Anderson v. Price, are not direct authorities upon the point, and without disturbing them, we may sustain the declaration in this case. I consider the demand of the plaintiff to be substantially for the debt and interest, they having, at the time the judgment was entered, released the damages and agreed to receive interest in lieu of them. After that agreement, they never could enforce payment of 400 dollars damages, which were equivalent to thirty-three years interest, when only three years interest was due at the date of the judgment. Now, this is not the case of a demand reduced by payments or matter ex post facto. The reduction is in the judgment itself, and the plaintiffs .never had title to demand more. They therefore properly demanded what was due, and no more. Indeed, it is obvious, that this practice in Maryland has been adopted to enable the plaintiff to recover continuing interest; and though the contrivance seems awkward, we cannot fail to see, that the true meaning of the judgment is that the plaintiffs shall recover their debt with interest till paid.

The plea of nil debet was, in this case, an improper plea, according .to the decision in Clarke’s adm’r v. Day, which we are not disposed to disturb, though I do not acquiesce in some of the reasoning of judge Coalter in that case. The court, therefore, erred in receiving the plea, and might very properly at a subsequent time correct that error by setting aside the issue and the plea. It has done this, substantially, by entering a judgment as if there had been a demurrer. Perhaps, indeed, we ought to infer that there was one ; but even if there were none, the court having done what was right, we cannot reverse its act because it has not done it in the right *way;*since the mode of doing it has no influence upon the justice of the case. It was said, indeed, that if the plea had been rejected, the defendant *might have pleaded payment, and that he has been taken by surprise. I do not think so. He ought to have pleaded payment at first or if he did not, still, on the plea of nil debet being overruled, he would have had a right to plead payment. But he offered no such plea. Had he done so, I should have considered it error to refuse it, as the court, by accepting his first plea, had led him reasonably to suppose he might defend himself under it.

I am of opinion, that the judgment be affirmed.

BROOK®, J.

I entirely concurin the opinion of the president. I did not concur in all the reasoning of judge Coalter in Clarke’s adm’r v. Day, though I did in the conclusion to which he came, and I said no more. I then entertained the opinion I do now, — that the judgments of our sister states, under the constitution of the U. States and the acts of congress in pursuance thereof, are to be treated as domestic judgments ; and that the effect of such judgments in the state from which they came, is a question of law, not a question of fact as in the case of foreign judgments. And I was surprised to hear it argued to the contrary in this case.

BROCKENBROUGH and PARKER, J., concurred. Judgment affirmed.