DAVIDSON V. ALVORD. Nov. Term, dered in June, 1842; that execution remains to be done; 1851. that Noble has since died; that Alexander H. Davidson and George H. Dunn are his executors; and commands the sheriff to summon McLain to answer why the plaintiffs should not have execution against him; and also, to summon Davidson and Dunn to answer why execution should not issue against them, as executors, to be levied of the goods and chattels of the testator. At the April term, 1849, the parties appeared, and the defendants filed a special demurrer to the writ of scire facias. The first cause of demurrer was, that the writ does not state where the Court was to be holden at which the defendants were notified to appear. The defendants were summoned to appear "before the judges of said Court on the first day of the next term thereof, to be holden on the fifth Monday of April, instant," &c. The second cause of demurrer was, that the writ does not aver that the judgment remained unsatisfied. There is nothing in these objections. The writ does aver, substantially, that the judgment remains unsatisfied. At the October term, 1849, the death of the defendant, McLain, was suggested, and, afterwards, the demurrer, filed at the previous term, was overruled. The defendants failing to answer further, the plaintiffs then obtained a judgment against the executors of Noble, to be levied de bonis testatoris. The defendants below, now the appellants, insist that it is a fatal objection to the scire facias, that the survivor, McLain, and the representatives of the deceased joint debtor, Noble, are joined. But if this objection was tenable at the commencement of the suit, it ceased to have any force when McLain's death was suggested, as this was equivalent to a dismissal of the suit as to him, and at any stage of the case prior to the judgment the plaintiffs might have amended the writ by striking out his name. R. S. c. 40, s. 98. The Revised Statutes of 1843 authorize the issuing of a scire facias to revive a judgment against the personal Nov. Term, Per Curiam.-The judgment is affirmed with costs. (1) The proceeding by scire facias to revive against judgment-defendants has been abolished by the R. S. 1852; but an execution cannot be issued after the lapse of five years from the entry of judgment, except by leave of the Court, upon motion, supported by the oath of the party, or other satisfactory proof, that the judgment, or a part thereof, remains unsatisfied and due. Ten days' personal notice must also be given to the adverse party, unless he be absent, or non-resident, or cannot be found, when notice may be given by publication as in an original action, or in such other manner as the Court shall direct. R. S. 1852, vol. 2, p. 129. After the decease of a judgment-debtor, a proceeding in the nature of a scire facias against his heirs, devisees, or legatees, or the tenant of real property owned by him and affected by the judgment, and his personal representatives, is requisite, under the R. S. 1852, in order to authorize the issuing of an execution to enforce the judgment against the estate of such debtor in their hands respectively, and the mode of proceeding is specifically pointed out by the statute. R. S. 1852, vol. 2, p. 181. The death of the defendant, after the execution is placed in the hands of the sheriff, does not affect subsequent proceedings thereon, except that the portion allowed absolutely to the widow by law, is exempt from levy and sale. R. S. 1852, vol. 2, p. 147. 1851. THE WHITE WATER VALLEY CANAL COMPANY V. HENDERSON. THE WHITE WATER VALLEY CANAL COMPANY v. HENDERSON. Process returnable at a day fixed by law, is deemed and taken to be returnable at such day, by enactment of the R. S. 1843, although a different day may be named in the process. One of several material facts averred in a plea may properly be traversed by the replication. By the provisions of the charter of the White Water Valley Canal Compa- The discovery of evidence unknown to a party at the time of a former Nov. Term, An award is sufficient, under the R. S. 1843, if signed by a majority of the 1851. WATER VAL LEY CANAL V. HENDERSON. arbitrators. THE WHITE In an action against the White Water Valley Canal Company upon an award of damages for injury done by the latter to the plaintiff by entering upon his land and taking materials for the construction of the canal, the defendant offered to prove, as an offset to the damages claimed by the plaintiff, that, at the time of committing the injuries complained of, the premises were the real estate of one J., who was the owner of a large tract of land of which said premises were a part, and that the arbitrators, in determining upon their award, refused to take into account the benefits and advantages to the whole of said tract, while owned by J., resulting from the construction of the canal. Held, that the Circuit Court properly rejected the evidence. Monday, ERROR to the Fayette Circuit Court. SMITH, J.-This was an action of debt brought by the defendant in error against the plaintiff in error. The declaration alleges that differences having arisen. between the parties relative to certain lands and materials taken by the canal company for the construction of their canal, the plaintiff, on the 6th of February, 1845, selected one Hyatt as an arbitrator on his part, and the defendant selected one Clements, and those two selected one Masters as the third arbitrator, for the purpose of arbitrating said differences, pursuant to the act of incorporation of 1842 (1); that said arbitrators, on said day last named, made and published their award in writing, signed by two of said arbitrators, awarding the plaintiff 2,000 dollars; which said award was, on the 21st of February, 1845, duly reported to the secretary of said company; that said sum so awarded had not been paid, &c. At the first term of the Court after the declaration was filed, the parties appeared and the defendant moved the Court to quash the writ of summons issued in the case, because it was made returnable on the first Monday of April, 1849, when, in fact, the term of the Court to which it should have been made returnable began on the second Monday in April, 1849. This motion was overruled. The defendant then filed three pleas. The first plea avers that, on the 15th of June, 1835, one Jenks, pursuant to the 14th section of the canal act of February 6th, 1835, released to one Morgan, a commis 1851. THE WHITE WATER VAL- V. sioner of the state, the right of way for the canal through Nov. Term, all the lands owned by him in Franklin county, and all damages to said lands; that said deed of release was duly filed in the office of the secretary of state previous to the succeeding session of the legislature. It is then averred that the lands for which damages were awarded HENDERSON. to the plaintiff, at the time of the execution of the release, belonged to Jenks, and were situated in Franklin county; that the plaintiff is the grantee of said Jenks, and that the defendant had no knowledge of that fact at the time of the arbitration nor until after the time prescribed for taking an appeal therefrom; and that the defendant had no knowledge, until long after the time for taking an appeal had elapsed, of the existence of said deed of release, it having been lost or mislaid by the secretary of state in his office; and that its execution and existence were fraudulently concealed by the plaintiff and Jenks from the defendant, wherefore it could not be set up as a defense at the arbitration, although the defendant had used reasonable diligence to ascertain its existence. The second plea is similar to the first, except that it simply avers that the defendant had no knowledge of the deed of release until after the time for taking an appeal from the award had passed, and omits the averments that it had been lost or mislaid and that the plaintiff had fraudulently concealed the fact of its existence. The third plea craved oyer of the submission and award referred to in the declaration, and the same being set out, it appeared to have been signed by Hyatt and Masters, and that Clements protested against it "as unjust," and thereupon the defendant said "he does not owe and is not indebted to the plaintiff in manner and form as alleged," concluding to the country. The plaintiff craved oyer of the release averred in the first plea, and it being read to him, he denied that its existence was fraudulently concealed from the defendant by the plaintiff and Jenks. The plaintiff demurred to the second plea, and added the similiter to the issue tendered by the third plea. Nov. Term, 1851. THE WHITE WATER VAL The defendant demurred to the replication to the first plea. The Court overruled the demurrer to the replication, LEY CANAL and sustained the demurrer to the second plea. COMPANY V. HENDERSON. The cause was then submitted to the Court upon the issue made by the third plea, which was found for the plaintiff. Judgment was thereupon rendered for 2,000 dollars, the amount of the award, and 561 dollars and 66 cents damages for the detention of the debt from February 6th, 1845. Upon the trial of the cause, the plaintiff offered in evidence the report and award of the arbitrators, to the sufficiency of which to sustain the plaintiff's action the defendant objected, but the objection was overruled. The defendant offered to prove that, at the time of committing the supposed injuries to the plaintiff, the premises injured were the real estate of Samuel Jenks, who was the owner of a large tract of land of which the said premises were part and parcel; and that the arbitrators refused to take into account, in assessing their award, the benefits and advantages to the said Jenks resulting from the construction of the canal to the whole of his said lands, of which this was parcel, as an offset to the damages claimed by the plaintiff'; which evidence the Court refused to admit. The first error assigned is the overruling of the defendant's motion to quash the writ of summons. By the 25th section of chapter 40, R. S. 1843, p. 674, all writs of summons must be made returnable on the first day of the next term; and by the 13th section of the 36th chapter, p. 624, it is enacted that all process returnable at a day fixed by law, shall be deemed and taken to be returnable at such day, although a different day may be named in such process. The defect in the writ issued in this case is, therefore, cured by the statute. The second and third errors assigned are, that the Court erred in overruling the demurrer to the replication to the first plea, and in sustaining the demurrer to the second plea. |