1860. July Term. Bank V. Ruckman. lent to assignment. As to them, assignment means more than endorsement; it means endorsement by one party, with intent to assign, and an acceptance of that assign- Freeman's ment by the other party. The notes in question are not negotiable, according to our laws, but assignable only. The pleas, therefore, that they were endorsed in Virginia, tendered immaterial issues, and were properly demurred to. It may have been the intention of the pleader to entrap the plaintiffs, if they took issue, by confining the proof to the mere fact of the payees writing their names on the backs of the notes; and this is rendered probable by the circumstance that the notes are not alleged by the pleas to have been endorsed to the plaintiff's. They might well be endorsed in Virginia and assigned in Ohio." Id. 475. Now, if the pleas had not only alleged that the notes were endorsed by the payees, but also that they were delivered by them to the plaintiffs in Virginia, they would certainly have been considered by the court as sufficiently averring that the assignments were made in Virginia. The case of The Bank of Marietta v. Pindall is a conclusive authority to show that the plaintiffs in this case, though a corporation of Massachusetts and not of Virginia, may maintain this action. In that case the plaintiffs were a corporation of Ohio, and two questions were made upon the pleadings: (1) Whether a banking company, not incorporated as such by any law of Virginia, but by a law of one of our sister States, can prosecute an action in Virginia in its corporate name and character on any contract whatever? And (2), whether they can prosecute an action in our courts on a contract made in Virginia? The court decided the first question affirmatively; and in regard to the second, held that no foreign bank could make a primary contract in Virginia, by discounting notes or otherwise; and that no right of action, therefore, could arise from the exercise 1860. July Term. Bank V. Ruckman. of such a power. But the court was further of opinion, and accordingly decided, that the pleadings in the cases Freeman's did not show that the contracts of assignment were made in Virginia. The special pleas, as before stated, only averred that the notes were endorsed in Virginia. And though the declaration did not state where the assignments were made, yet the court was of opinion it ought to be inferred on general demurrer that they were made in Ohio and not in Virginia, and therefore overruled the demurrers to the declarations. "The effect of the demurrers," said the court, "is to admit the assignments, as laid in the declaration. If these assignments were made in Ohio, they were lawful, and will serve as the foundation for suits in our courts; if they were made in Virginia, as original contracts, they were null and void, and can give no right of action. In the total absence of all allegations, by either plaintiffs or defendants, as to the place where the assignments were made, we do not feel ourselves constrained to intend that they were made at a place where the parties had no right to make them, and where the attempt to make them would be vain and nugatory. On the contrary, we think that on these pleadings the assignments must be taken to have been made. at the Bank of Marietta, where the notes were originally made payable, and where the appellants had a right to discount them." Id. 476. The same remarks, in substance, and the same course of reasoning, apply to this case. The declaration does not state where the assignment was made; but it states that the note was made in Massachusetts, and, on the day of its date, was assigned to the plaintiffs, a corporation of Massachusetts; and we think it ought to be inferred, on demurrer to the declaration, that the assignment was made in that State. Therefore the plaintiff's may maintain this action. It was earnestly, and with great appearance of reason, contended by the counsel for the appellants in the case. of The Bank of Marietta v. Pindall, &c., (said the court in that case) that, as incidental to the right of recovering, in Virginia, a debt acquired by an original and legal contract in Ohio, they might legally make in Virginia a secondary contract for carrying into effect a contract originally and legally made in Ohio; as, for instance, that they might take from a debtor, in Virginia, the assignment of a note or other chose in action, in payment of a debt originally and legally contracted in Ohio. But as this point did not necessarily present itself in the case, the court forbore to express any opinion upon it. Id. 474. No such point arises on the pleadings in this case, and therefore no opinion is expressed upon it. The breach at the end of the declaration applies to each of the counts, and is sufficient, though the sum of money therein mentioned is the same sum mentioned at the commencement of the declaration and in each of the counts, to-wit, the sum of $2,500, the amount of the note. The debt demanded should regularly be the aggregate of all the sums alleged to be due in the different counts; but a mistake in this respect, whether more or less be stated, will not be a cause of demurrer. 1 Chitty's Pl. 361. Upon the whole, we are of opinion that the Circuit court erred in sustaining the demurrer; and therefore the judgment is reversed with costs, the demurrer overruled, and the cause remanded to the said Circuit court to be tried upon the issue joined on the plea of nil debet and for further proceedings therein. And the parties are to have liberty to amend their pleadings, if they desire to do so. The other judges concurred in the opinion of Moncure, J. JUDGMENT REVERSED. 1860. July Term. Freeman's V. Ruckman. 1861. January Term. Richmond. DAVIS, SHERIFF, . THE COMMONWEALTH. (Absent Lee, J.) March 5th. 1. All judgments where there has been no appearance by the defendant are judgments by default, within the meaning of the act. Code, ch. 181, § 5, p. 681. 2. If a party obtains a supersedeas to a judgment by default, before applying to the court in which the judgment was rendered, or the judge thereof, to correct the errors of which he complains, his supersedeas will be dismissed as improvidently awarded. This was a supersedeas to a judgment of the Circuit court of the city of Richmond, rendered on the 25th of February, 1860, in favor of the Commonwealth against Thomas K. Davis, sheriff of Prince William county, and his official sureties. The facts are stated by Judge Allen, who delivered the opinion of the court. Morson, for the appellants. The Attorney General, for the Commonwealth. ALLEN, P. A notice at the instance of the Commonwealth was given to the plaintiff in error, a sheriff, and the securities in his official bond, that a motion would be made for a judgment against them for a balance of license taxes. The notice having been duly proved on the day specified, the defendants were called but came not, and at the instance of the Attorney General the motion was docketed and continued to a future day of the same term. It was afterwards continued, at the like instance, to other days named, until the 21st February, 1860, when, on the motion of the Attorney General, it was continued until the then next regular term of said court for the trial of civil causes. On a subsequent day of the same term the last order of continuance was set aside, at the instance of the Attorney General, and on his motion the court proceeded to render a judgment against the sheriff and his securities; to which judgment a supersedeas has been awarded by this court. From the foregoing statement it seems that the defendants named in the notice never appeared or made any defence to the motion, and the preliminary question. arises whether this court has jurisdiction at this time to decide upon the regularity of the proceedings. The Code, p. 681, ch. 181, § 5, provides that the court in which there is a judgment by default or a decree on a bill taken for confessed, or the judge of said court in the vacation thereof, may, on motion, reverse such judg ment or decree for any error for which an appellate court fnight reverse it, if the following section was not enacted, and give such judgment or decree as ought to be given. Sec. 6, the following section referred to in the foregoing section, directs that no appeal, writ of error, or supersedeas shall be allowed by an appellate court or judge for any matter for which a judgment or decree is liable to be reversed or amended, on motion as aforesaid, by the court which rendered it or the judge thereof, until such motion be made or overruled in whole or in part. These sections of the Code embrace the provisions contained in the Rev. Code of 1819, p. 512, §§ 108, 109, 110, authorizing clerical mistakes, &c., to be amended in certain cases by the court in which a judgment or decree was rendered, or the judge thereof in vacation; and also the provision contained in the act of March 12, 1838, Sess. Acts, p. 74, extending the act of jeofails to judgments rendered in the circuit courts for default of 1861. January Term. Davis, V. |