The enquirer. [volume] (Richmond, Va.) 1804-1815, 1809-05-26

compelled, FOR the sake of brevity, to omit
those arguments. IL
rG5- Judge RoANE then suggested to the
Court the propriety of reconsidering the point
of the quod cam. He observed that al
though the decisions of this court were in
strict conformity with the British authorities,
yet, this being point of practice, and not a
badly, general misapprehension among the
gentlemen of the bar, on this subject, it might
be worthy of consideration, whether, in or
der to prevent mischief, the courts, in this
country, might not deyiate from the English
practical 4
The court having consented to re- consider
the point. it was argued by Cal for the APP
pellant, and by Harden for the Appellee.
But as the court adjourned without coming
to any decision. & the judgments in the case
OF Hord'S err. Us. Dish1nan & Hoore's adm.
Ds. Dazvney &c. rendered at the same term,
were not set aside, it might fairly be presum-
ed that the judgeswere not dispr sed to hlnge
the rule, (see note az at the end of the case.)
Call, as to the guod cum in the declarati-
on, argued that, according the letter and
spirit of our laws, which do not agree en-
tirely with the British statutes on this sub
ject, matters of form ought to be disregard
ed !; that, as this question did not respect
rule of property, but mere point of prac-
conform to the spirit of our own laws, espe-
cially when we are about to make an inter-
probation on them and the English judges
have declared, that they would not extend
the objection farther than it had been already
carried. Our statutes have long provided,
that in all personal actions. where the de-
claration shall plainly set forth sufficient
matter of substance for the court to proceed
upon the merits of the case, the suit shall
W. Nf Codo
vol, 1. CHI. 81, sect. SO, page 89) Torture
this question as you will, still it is but a mere
matter of form. 1t is impossible to suppose,
but that the defendant knew as well what
charge he was to answer, as if there had
been positive averment. Again. our sta
tute of Jeotaiis (Rev. Code, vol. /, CHI. rs
sect. 26, page 112, declares, that Judgment,
after verdict shall not be stayed or arrested
for " emitting the avcrment of any matter,
without proving which, the jury ought not to
: have given any such verdict" In this case,
1t is impossible that the jury could have found
tor the pit. unless they had been satisfied
that the defendant really was concerned in
the prosecution of the cause, although he
had apparently withdrawn from it. The
case seems to fall within the principle which
makes a difference between a defective title,
and a title effectively set forth. In the case
OF Dobbs Us. Edmuntls q Id Rcynt. l413)
"bound by what had already been de-
termined but they would be very cautious
OF extending this exception, after verdict,
. farther than 1T had been carried before"
In the Common Pleas, in order to get rid of
the objection, the court will seize hold of the
triffIng circumstance that, Ascending to the
mode OF declaring in that court, the writ is
recited in the commencement of the declara-
ton, and therefore, If is held that what fol-
n zoe tl,p -
really difficult to perceive the distinction.
L wo thirds of the declarations III this state,
Will probably be found to contain this unfor-
tunate Qtod cum; and great mischief will
cnsue from an adherence to the decisions OF
the court of Kings Bench on tins point. If
the question had been asked the Legislature
OF Virginia. whether. when they passed the
beneficial statute of jegtaits, which was in
tended toprotect verdicts against technical
bubbles, they had an idea thar such an OBJ
lection as this would afterwards have been
sustained, one and all would have said No.
But however correct the objection NAV be
lin treStdSs, it is not so in case, as this action
is: and the court will not carry the excep-
ton farther than it has been in England, but
conhne it to freShass only. Compare this
with common declaration in fnde6ifatus
dssNmhsit. You VIII find it is all recital
there till you come to the breach, when it is
SdiN, lhdl luS UelelNdnL lS1uSeu TO
pay, &c. The cause of action is as much
stated by way of recital, as in this case.
There is precedent too in / I72de,n En-
tres sly, and in LiHeU's Entries SO,
where the case is set out with whereas
and concludes exactly like this.
1t is true that there are recent decisions
OF this court against me; but it never has
been contended, that single decision shall
invariably fix the rule. In JokiiJe " Hue,
q. Call 328) Judge Pendiefon says. Uni
"tormity in the decisions of This court is i'm
''portant. We have, however, progressed
but little from the commence ment Of our
"existence; and if, in any instance, we
=" should recently discovera mistake in IA for.
"mer decision, we should surely correct it,
"snd not let the error go forth to our citi-
zens as q governing rule OF their conduct"
he FIRST case in which this question occur
red was, Paiiard v. Lear,cU NOV. 1906,
M,); and on the point OF the qacH cum,
the court vas equally divided. AT the last
term, the subject was re-argued in 1aykor
'. RGfnb0EV, g. Hen. & Munf 425) but
the cause was decided ON the firm IF Ehe
dcttSn. During the present term in Hord's
ep &c. y. s2i@ihaau Gbid $3.50 and M9ore's
od7tr. v. Da7oney. &c. it has, for the first
time, been unanimously decided, that the
qnod cum is fatal.
Another reason why this exception should
be disregarded, is, that in this country, the
writ rs hled among the papers, and may be
Ihspectedby the court, IN the same manner
as IN the Common Pleas in England, where
the 0ff01 rum tc nor bei a., 10 fo,.I &.