1877. June Term.

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statute of jeofails, it is, in the apparent eonflict of some Holliday's ex'rs of the decisions under the statute, exceedingly difficult, Myers et al. if not almost impossible, to lay down any generd rule to govern in all cases, that may arise. arise. Whenever courts commence to set a limit upon the operation a' an act of the Legislature, in order to except from it operation cases not excepted by provisions of the act, itis generally difficult to fix a limit to such exceptions, orto lay down a general rule embracing all the exceptions vhich may or may not be made to the operation of the ac. All perhaps, that can or should be said now, in the state of the decisions in relation to the act under congderation, is, that when cases are presented like those whch have been decided, it is perhaps proper and best that we follow the decisions already made.

Cases may arise that should be exceped from the operation of the act, but each case must be juced as it arises. Some of the cases, excepted from the terms ad letter of the act, have already caused much confusion andifficulty in its administration and each additional excepion which is made by the courts outside of the letter of te act, adds to and increases the existing confusion and dficulty. The object of the act among other things w to fix some limit upon litigation, and to put an end asar as possible to the unnecessary delay, obstruction, andlefeat of justice in the courts. As Judge Daniels saian the case of Spengler v. Davy, 15 Gratt., I repeat as aplicable to the case at bar, "it seems to me, that if th present case were to be excepted out of the operationf our act of jeofails, it would be a very difficult ta to say at what point such exceptions should stop The case is plainly within the letter of the statute ;nd I can see no sufficient reason for supposing that is not within. its meaning." The defendants, as the ecord clearly shows, had ample time and opportunity test the sufficiency of the declaration by filing a denver thereto, and to defend themselves against the plain if action, if they in fact had any just and proper defee, before

1877. June Term.

V.

judgment was rendered against them; but for some cause they failed to avail themselves of the time and Holliday's ex'rs opportunity, and of the very liberal modes of defense Myers et al. granted to them by the law. They even withdrew the plea they had filed, upon which issue was joined, and suffered the plaintiffs to prove their cause to the court, without making any defense thereto, so far as the record discloses; and if injustice has been done them, it is not the fault of the law, but, so far as appears, because of their own voluntary neglect and laches. Upon the whole, it seems to me that said first error assigned is not well taken, and must be overruled.

Second error assigned.—It is very clear to my mind, that the first and second division of this asssignment is not well taken, though the breach of the condition of the bond is not stated in the usual or common form in such cases; still the amount of money and damages claimed under the condition are stated in the declaration and a breach of the condition alleged by the allegation and averment of the non-payment thereof. It is unnecessary for me to determine whether the declaration in this respect would be held good upon general demurrer, as that question is not before us. It is quite manifest, I think, that the part of the declaration, to which the first and second divisions of this assignment are directed, is good after the final judgment, under the statute of jeofails. And the third divisions of this assignment are not well taken, because of reasons stated in considering the first assignment.

The third assignment of error.-This assignment of error cannot be sustained: See Code W. Va., sec. 46, ch. 125; secs. 6 and 7, ch. 133; sec. 17, ch. 131. The judgment is, perhaps, not altogether formal, but is substantially correct. It is manifest that the plaintiff in error cannot be prejudiced by the form of the judgment in this case, in any event.

The fourth error assigned.—“All judgments, where there has been no appearance by the defendant, are judgments

1877.

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Myers et al.

August Term. by default within the meaning of the 5th section of chapHolliday's ex'rs ter 134 of the Code of this State," 16 Gratt. 134. The defendants, as we have seen, having appeared and plead to the action, and filed exceptions to a ruling of the court, and voluntarily withdrawn their plea, and suffered the plaintiffs to prove their cause of action, the judgment is not one by default under the statute. The fourth and last exception is not well taken. This disposes of all the errors assigned by the plaintiff in error in his petition. It is not claimed before us that the court erred in its ruling, to which said bill of exceptions was taken and filed by the defendants, and I see no error therein. But it was argued before us by the counsel for the defendants in error, that the judgment rendered in this case is, and should be considered, a judgment by confession, and as operating as a release of errors under our statute. The judgment entered by the court is as follows: "This day came the parties, by their attorneys; and the defendants, by their attorney, withdrew their plea at a former day pleaded; thereupon the plaintiffs having proved their cause, it is considered by the court that the plaintiffs recover against the defendants, Joseph Myers and James M Johnson, $301.72, with interest thereon from the 4th day of January 1872, till paid; also their costs by them in their behalf in this cause expended." This judgment, it seems to me from its form and language, is a judgment rendered upon proof of the cause of action made to the court, and not upon confession of judgment. This judgment is expressed on its face to be a judgment rendered upon proof of the cause" made to the court, and being so expressed, it should therefore be so considered. judgment is not such a judgment as is entered by non sum informatus; or by confession or cognovit actionem ; or by default for defect of plea after appearance; or nil dicit as it is termed; or by default under our statute for failure to appear after having been duly summoned: Richardson et al v. Jones, 12 Gratt. Judge Lee's opinion, p. 57; Stephens on Pl., side p. 109. In the case in 12 Gratt.

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The

at page 57, it is held, that the words employed in the judgment in that case are equivalent to an express acknowledgment of the action for so much, and it will be found, that the judgments as rendered conform very nearly to the precedents of a judgment upon cognovit actionem," &c. In the case of Dunbar v. Lindenberger, 3 Munf. 169, which was an action of assumpsit, the defendant acknowledged the plaintiff's action," in general terms, but did not confess judgment for any particular sum. In the case of Strode v. Head, 2 Wash. 192 the defendant "withdrew his plea and confessed judgment generally."

This cause has been ably argued before us by the counsel on both sides; and especially has the counsel for the plaintiff in error exhibited by his argument great research; but after giving to the subject much consideration, it seems to me that there is no error disclosed by the record, which would authorize me, under the circumstances of the case, to reverse the final judgment rendered in the cause by the court below.

For the foregoing reasons, the said judgment must be affirmed, and the defendants in error recover against the plaintiffs in error their costs in this Court expended, and damages according to law.

JUDGMENT AFFIRMED.

Charlestown.

GATES & BRO. v. CRAGG et al.

Decided September 10, 1877.

1. It is error to decree the sale of land on terms, which make the payments fall due more rapidily than the installments of the debt, for which it is sold, become payable.

2. When a demurrer to a bill has been overruled, and the defendants fail thereafter to answer the bill on the day specified by the court in its order dissolving the injunction, and a decree is thereupon entered under 230 of ch. 125 of Code of W. Va., for the relief prayed for in the bill, such a decree cannot be reversed or corrected by the circuit court, on motion, under the 5th section of ch. 134 of the Code of W. Va., as a decree taken for confessed.

Appeal from, and supersedeas to, two decrees of the circuit court of Kanawha county, rendered respectively on the 18th and 21st days of December 1876, in a cause in chancery in said court then pending, in which J. M. Gates & Bro. were plaintiffs, and Edward Cragg and James E. Smoot were defendants, allowed upon the petition of said defendants.

Hon. Joseph Smith, Judge of the seventh judicial circuit, rendered the decrees complained of.

GREEN, PRESIDENT, furnishes the following statement of the case:

In May 1876, James M. Gates and George W. Gates, partners in trade, under the firm name of James M. Gates & Brother, filed, in the circuit court of Kanawha county their bill against Edward Cragg and James E. Smoot.