he saith that, on the 13th day of July in the year 1808, he the said plaintiff was duly commissioned by "the Governor of the Commonwealth of Virginia, to "execute the office of Sheriff in the said County of Fair"fax; under which Commission he undertook to act, and, afterwards, before the Court held for the said County on the 19th day of September in the same "year, gave the several bonds with security, and took "the oaths of office prescribed by law for his qualifica❝tion as Sheriff as aforesaid, under which appointment "and qualification the plaintiff continued to act as "Sheriff for one year after his said qualification, and was, "with his own consent and the approbation of the Ex"ecutive, continued as Sheriff of the said County for two years after his said qualification; and, on being so continued, and before he entered on his second year, to wit, on the 20th day of March in the year 1810, at the County aforesaid, before the Court of the said County, the said plaintiff gave the several bonds with security, by law required, to qualify him to continue to "act as Sheriff of the said County for the said second

66

year, as by the Commission of the Governor under "the seal of the Commonwealth, now to the Court here "shewn, and the records of the County Court of Fair

fax in the said Court now remaining, will appear; all "which the plaintiff is ready to verify; wherefore he "prays judgment &c."

The defendant demurred to this Replication; 1st, "because the said plaintiff does not in the said replication confess or deny whether the said plaintiff did, at the time of the execution of the writing obligatory in the “declaration mentioned, or at any time thereafter, duly qualify himself, as High Sheriff of the said County of Fairfax, by taking the oath of office in such case made and provided by law; 2dly, because the said replica❝tion does not answer the material allegation of the said plea; and 3dly, because the said replication is informal "and insufficient." Upon this demurrer the plaintiff joined issue.

MARCH,

1820.

Lane

V

Harrison.

To the third plea, the plaintiff replied, "that, by any "thing &c. he ought not to be barred &c., because he says, that, on the 13th day of July in the year

66

"at the County aforesaid, he the said plaintiff was duly "commissioned by the Governor of the Commonwealth "of Virginia to execute the office of Sheriff in the said "County of Fairfax; under which Commission he un❝dertook to act; and, afterwards, at a Court held for "the said County on the 19th day of September in the "same year, before the said Court, he gave the several "bonds with security, and took the oaths of office by "law required, to qualify him to act as Sheriff as afore"said; and after he had so qualified, to wit, on the 19th "day of September in the same year, he appointed the "said James Wigginton his deputy, who, on the same "day, before the said Court, took the several oaths of "office by law required to qualify him to act as Deputy "as aforesaid; under which said Commission and quali❝fication, the plaintiff continued to act as Sheriff of the "said County for one year after his qualification, and "was, with his own consent and the approbation of the "Executive, continued for two years after his said quali❝fication; and, on being so continued, and before he en

tered on his said second year, that is to say, on the "20th day of March in the year 1810, before the Court "of the said County of Fairfax, he gave the several "bonds by law required to qualify him to continue to "act as Sheriff of the said County for the said second 66 year; and, so continuing to act as Sheriff for the said "second year, the said plaintiff continued the said James "as his deputy for the said second year, who, thereupon, "with the said defendant and others his securities, exe"cuted and delivered to the plaintiff the writing obliga"tory in the declaration mentioned; as by the Commis"sions of the Governor under the seal of the Com

monwealth now here to the Court shewn, and by the * Records of the said County Court of Fairfax in the "said Court now remaining, will appear; all which the "plaintiff is ready to verify &c.; wherefore he prays "judgment, &c." To this Replication the defendant

demurred; 1st, because the said plaintiff does not in his said replication confess or deny whether, at the time of the execution of the said writing obligatory in the declaration mentioned, to wit, on the fifth day of October 1810, the said James Wigginton in the said obligation mentioned was duly qualified to "act as deputy Sheriff of Fairfax County, by taking the "oath of office as deputy Sheriff for the second year; "2dly, because the said Replication does not confess or ❝deny whether the appointment of the said James Wig❝ginton, as deputy Sheriff of the said County for the “second year, was approved by the County Court of Fair“fax; and 3dly, because the said Replication is inform❝al and insufficient." The plaintiff joined issue upon this demurrer.

The matters of law presented by these pleadings being argued, were adjudged by the Court, in general terms, in favour of the defendant, and judgment was entered, that the plaintiff take nothing &c.; from which the plaintiff appealed.

Judge BROOKE pronounced the opinion of this Court, as follows:

The Court would affirm the judgment in this case, but for the objection that, being entered generally, upon all the pleadings, in favour of the appellee, it would be a bar to any future action on the bond declared on. The second and third pleas go to the foundation of the action of the appellant; but the matter alledged therein is fully avoided by the replications; and the demurrers to those replications ought, in the opinion of the Court, to have been overruled. The demurrer to the rejoinder to the replication to the first plea, ought also to have been overruled: the rejoinder alledges no sufficient bar to the action of the appellant, had there been a good replication; but the rejoinder mounts up to the replication; and that is defective in this, that it alledges that the forthcoming bond, taken on the execution from the Superior Court, was not returned to the office of the Clerk of the County. The Judgment of the Superior Court ought therefore to have been restricted to the faulty Replica

MARCH,

1820.

Lane

V.

Harrison.

tion:-it is therefore reversed, and judgment is to be entered, according with this opinion, as follows:

The Judgment of the Superior Court of law is erroneous in this, that it decides the law, on all the pleadings, for the appellee, which would therefore be a bar to any future action by the appellant on the Bond in the delaration mentioned; when it ought to have been limited to the Replication of the appellant to the first plea of the appellee; the law arising on the demurrers, being for the appellant, had his Replication aforesaid set out a sufficient breach of the condition of the bond; but that Replication is bad in this, that it alledges, as a breach of the condition of said bond, the non-return of the delivery bond, in the said Replication mentioned, to the County Court office. The Judgment of the Superior Court is therefore reversed, with Costs, &c.; and, this Court proceeding &c., it appears to the Court that the Replication of the appellant to the appellee's first plea, and the matters therein contained, are not sufficient in law for the said appellant to have and maintain his said action against the appellee;-therefore it is considered by the Court that he take nothing &c.

Decided, March 30th, 1820.

1. After the

passed upon

Lanier, Shelton and Cocke against Cocke,
Crawford and Company.

AFTER the decision by the Court of Appeals, in the Court of Ap- case of Shelton v. Cocks, Crawford & Co., reported in s peals have Munf. 191-197, the cause being remanded to the Sua case, and perior Court of law, William Shelton, the defendant upon the cause for whom the Writ had been served, tendered to that Court a demurrer to the declaration, 1st, because the christian and

remanded

a new trial upon the general issue,

a demurrer to the declaration, or a plea in abatement upon the ground that the christian names of the respective parties are not mentioned therein, ought not to received. See Murdock and others v. Herndon's executors, 4 H. & M. 200, Scott & Co v. Dunlop, Pollock & Co. 2 Munf. 349; and Totty's executors v. Donald &Co. 4 Munf. 430.

МАКСИ,

1820.

ton and Cocke

V.

surnames of the plaintiff's and defendants were not mentioned therein; which demurrer the Court would not permit to be filed; to which opinion the said defendant ex- Lanier, Shelcepted. He also tendered a plea in abatement, setting forth the same defect in the declaration; and another plea alledging that the mercantile firm of Cocke, Crawford & Co., included, among other persons, a certain and ComThomas W. Cocke, who was also a partner of the firm of Lanier, Shelton and Cocke. The Court refusing to receive the said pleas also, another bill of exceptions was filed.

The other points presented by the transcript of the record are unimportant. A new trial being had upon the issue formerly joined, a verdict was found for the plaintiffs, and judgment rendered accordingly; from which the defendants appealed.

BY THE COURT. The Court, not now deciding whether this suit was properly brought without inserting the Christian names of the respective parties, is of opinion that there is no other error in the proceedings; and that this objection, if it be one, comes too late, as this Court has already passed upon the case without noticing the objection aforesaid.

Cocke, Crawford

pany.

Judgment affirmed.

Smith against Smith's administrators.

Decided, March 31st, 1820.

1. A deed

slaves to a

WILLIAM A. GREGORY and John Taliaferro administrators of John Smith, jr. deceased, brought detinue, for of gift of two slaves, against Elizabeth H. Smith, in the Superior married woCourt of Spottsylvania County. A case was agreed by the parties, stating, that the slaves in the declaration mentioned were the property of Jane Johnston on the 2d" afterwards 66 to her heir "or heirs;

man," to her own special "use, and

with a clause providing that, "if she shall die without heir or heirs, or without "a Will disposing of the said slaves and their increase, they shall return to the "donor or his heirs," conveys the property to the separate use of the wife, so that, after the death of the husband, she is entitled to hold the slaves and their increase against his administrators.