Fleming v. Toler , 7 Va. 310 ( 1851 )

Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that the pleas tendered by the plaintiff in error, and set out in his first and second bills of exceptions, were good in form and substance, and presented a proper defence to the action; and as the same were not objected to on account of the time at which they were offered, they should have been received. But the gravamen of each of said pleas was the unsoundness of the slave, a fact also put in issue by the special plea on which issue was joined; it being competent for the plaintiff in error on the issue joined on that plea, to have given any evidence of general unsoundness, notwithstanding the plea, in addition to the averment that the slave was defective and diseased, also specified a particular disease. As all the pleas concurred in resting on the proof of the existence of a disease or defect amounting to unsoundness, and that such defect, though known to the defendant in error, was fraudulently concealed by him; and differed merely as to the measure of relief resulting from the establishment of the facts aforesaid; and the existence of such facts being negatived by the finding of the jury on the plea putting the existence of such facts in issue, it is manifest the plaintiff in error was not prejudiced by the rejection of said pleas. There is no exception to the rejection of any testimony offered by him at the trial. If he failed to offer proof which would have been proper under the issue, it was his own fauit - he could have offered, and from the whole recor¿ h js most probable he did offer, all the proof in his power to sustain his defence, and the verdict of the jury is not objected to : It therefore must be taken as concluding the facts alleged in the pleas which were rejected, and the judgment thereupon was plainly right.

The Court is further of opinion, that although the obligation sued on purports to be a penal bill, yet as the sums named in the penalty and condition correspond, there was no error in treating it as a simple obligation and rendering a verdict and. judgment for the amount, with continuing interest from the time the same fell due.