DECIDED IN THE COURT OF APPEALS OF VIRGINIA, FROM APRIL 10TH, 1820, TO JUNE 28TH, 1821. BY FRANCIS W. GILMER, COUNSELLOR AT LAW. Law in general is human reason, in as much as it governs all the inhabitants of the earth; the political and civil laws of each nation ought to be only the particular cases in which this human reason is applied. Montesquieu. District of Virginia to wit: BE IT REMEMBERED, that on the third day of August in the forty-sixth year of the Independence of the United States of America, N. Pollard of the said district hath deposited in this office the title of a book the right whereof he claims as proprietor, in the words following to wit: "REPORTS OF CASES decided in the COURT OF APPEALS of Virginia, from April 10th, 1820, to June 28th, 1821. By Francis W. Gilmer, Counsellor at Law. Law in general is human reason, in as much as it governs all the inhabitants of the earth; the political and civil laws of each nation ought to be only the particular cases in which this human reason is applied.—Montesquieu." In conformity to the act of the Congress of the United States, entitled, "An Act for the encouragement of learning, by securing the copies of Maps, Charts, and Books, to the authors and proprietors of such copies, during the times therein mentioned." RD: JEFFRIES, Clerk of the District of Virginia. Reprinted by THE MICHIE COMPANY, by authority of Act of Legislature, approved February 24, 1900. Several of the cases reported were argued before the appointment of a Reporter, which will be an excuse for there being no arguments published in some that are important: that of Taylor v. Bruce, was of such novelty and interest, and the law not being settled by the decision, that the Reporter was at the trouble to obtain the notes of one of the Judges, that the arguments as far as practicable might be exhibited he regrets that even with that diligence, he has not been able to detail the authorities and reasoning of the appellee's counsel, or of Mr. Call, so fully as their ability, and the great moment of the question deserved. The Reporter is fortunately relieved from a great portion of his responsibility, by the circumstance of the Judges having selected the cases to be reported; and in every case writing their own opinions at large. He wishes the counsel could have taken the same trouble with their arguments, which have embarrassed him most. To give them at length, was the only way to do justice to their ability, but that would have made the volume a book of speeches rather than of reports. To omit them altogether, would have excluded many valuable references; he chose therefore, to insert just enough to embrace the law adduced on each case. No idea can be formed of the ability, and much less of the eloquence of the respective counsel, from their arguments as now presented. This course has left to the reporter scarcely any other duty, than to state with conciseness and accuracy the facts and pleadings of the cases. With every disposition to retrench, the number and length of seriatim opinions has enlarged the volume beyond his expectation or control. Baker [Treasurer] v. Preston and others 235 Lane v. Tidball... 232 Lawrence v. Dempsey. 305 Long v. Colston... 209 Lyons v. Brown... 105 Maule's adm'x and Bennet. Same 305 Kile's adm'r and Rowt's adm'r. 202 153 Knight v. Yarbrough.. 27 127 130 333 331 98 105 9 305 42 211 Childers v. Smith.. Colston and Long. George v. Richardson. Hallam v. Jones.. Hill v. Bull... Holloway's adm'r v. Bruce. How's adm'r and Tomlin's adm'r. Hooper and Didlake Jacobs v. Sale. Jones and Hallam. 143 Sam and Barnett. 15 Smith v. Pearce. 42 Trent v. Trent's ex'x.. 1 Ward and Kownslar.. 194 West v. Maule's adm'x. 123 Williamson v. Farley. 142 Yarbrough and Knight. 232 34 174 127 305 15 27 CASES IN THE COURT OF APPEALS OF VIRGINIA. John How brought assumpsit in the year 1809 in the county court of Richmond, against John W. Tomlin, administrator of Walker Tomlin. The declaration contained a general indebitatus assumpsit for 901. 2. 24 the price of How's interest in the brig Juno which he sold to Walker Tomlin 24th October 1782, which Walker Tomlin as sumed to pay on 1st January 1783 subject to a deduction of 10 per cent. ; and also a count on an insimul computassent for the same sum, subject to a like deduction, payable on the same date. 2 *A submission to arbitration was made and at another term set aside. In March 1816 both the plaintiff and defendant being dead, the cause was revived by scire facias, in the name of the appellee administrator of How, against the appellant administrator de bonis non of Walker Tom lin. In August 1816 the defendant pleaded the general issue and there was a trial, at which the plaintiff moved the court to instruct the jury, that the defendant having pleaded the general issue could not rely on the presumption of payment arising from lapse of time. The court was divided on the motion, the instruction was consequently not obtained, and the plaintiff excepted. The Jury found a verdict for the plaintiff for 901. 2. 24 with interest from *Statute of Limitations -Delay in Tendering. See principal case distinguished in Martin v. Anderson, 6 Rand. 19. See further, monographic note on "Limitation of Actions" appended to Herrington v. Har kins, 1 Rob. 591. The principal case is also cited in Pugh v. Jones, 6 Leigh 309. a shorter period than twenty years. Perkins' Adm'r v. Hawkins' Adm'r. 9 Gratt. 656: Wells v. Washington's Adm'r, 6 Munf. 532; Tomlin's Adm'r v. How's Adm'r, Gilm. 8; Hunt v. Bridgham etc.. 2 Pick. 581: Jackson v. Pierce, 10 Johns. 414; Telghman v. Frieher. 9 Watts. 442." To the same effect, see the principal case cited in Booker v. Booker, 29 Gratt. 609. See further on this subject, foot-note to Booker v. Booker, 29 Gratt. 605; monographic note on "Bonds" appended to Ward v. Churn, 18 Gratt. 801. The principal case was also cited in Hunter v. Snyder, 11 W. Va. 216. 24th October 1782. The court granted a new trial. The plaintiff excepted to the opinion of the court granting a new trial, and in his bill of exceptions spread the whole evidence on the record, consisting of 1. A transcript of the account between How and Walker Tomlin concerning the Juno, with an agreement subjoined dated October 24, 1782, by which Tomlin agreed to pay 901. 2. 234 &c. 2. A receipt dated 1801 executed by I. 261. 16. 42, paid by How in part of money W. Tomlin for Walker Tomlin to How, for lent him by Walker Tomlin. The plaintiff offered to release 10 per cent. of the verdict. But the court granted a new trial. asked leave of the court to add the plea of At the August term 1817 the defendant the statute of limitations to the former plea. The court refused. And on the new trial, the Jury found for the plaintiff $737 37, and costs. The Superior court of Richmond granted the defendant a supersedeas, and at the April term 1818 affirmed the Judgment. The appeal was from that Judgment. 3 Leigh for the appellant. *Acknowledging that the plea of the statute of limitations regularly concludes with a verification, and not the country, and that it is improper to tender an issue on that plea, contended that it was nevertheless an issuable plea within the meaning of the act of assembly, requiring the defendant on setting aside an office judgment, to plead to issue immediately. (a) It had been formerly held that this is not ion prevailed, and it was decided, that the an issuable plea. (b) But a contrary opinstatute of limitations is an issuable plea, or what is the same thing a plea to the merits, and withal not an unconscientious plea. (c) In the opinion of the late President Pendleton, any plea which is designed as a just defence and not intended for delay, ought in sound discretion to be allowed as an issuable plea. (d) If therefore this plea had been offered at first on setting aside the office judgment, it should doubtless have been allowed, and such is the constant practice. Ought the court then, in the exercise of a sound discretion to have allowed the plea at the time and under the circumstances in which it was offered? In the case of Backhouse v. Jones' executor(e) this court held, that the plea of (a) 1 Rev. 508. (b) 2 Strange, 1242; 1 Wm. Black. 35: 2 T. R. 391. (c) See Rucker v. Hanna. 3 T. R. 124: Maddocks v. Holmes, 1 Bos. & P. 228. It is stated as a settled point. 1 Chit. Pl. 505. (d) 1 Wash. 28. (e) In this court spring of 1805. This case which is referred to, was one in which the appellant 4 But in was the statute of limitations ought is offered by an administrator. *not to be allowed at any term subse- Backhouse v. Jones the plea was also offered quent to that at which the office judg- by an executor, yet the court held the plea ment ought to have been set aside, unless inadmissible because no good cause some sufficient cause appeared to excuse the shewn for allowing it. In that case the neglect of pleading it in due time. Did court admitted there might be cases where any such sufficient cause appear in this the plea should be received. But those case? for this is the only question. cases it is presumed must depend on circumstances which originally prevented the defence, and not on the nature of the claim itself. For this court cannot now judicially know what is the nature of the plaintiff's demand. And it would be to prejudge his case, to allow a defence to be made to it, on the supposition that it is unjust. The defendant had gone to trial on the general issue, thinking that the lapse of time would furnish a legal presumption of payment, and in point of law according to the recent decision in Wills v. Washington's administrator he was right. But on this point the county court divided and gave no opinion. So the defendant was never apprized of the necessity of pleading the statute 'till the Jury found against the presumption on the first trial. Here then is his excuse for failing to plead it at first, and for offering it afterwards. He pressed with earnestness, that this was not an unjust plea to avoid a just demand, but a just and honest defence to a claim not only stale but iniquitous. Not only the great length of time furnished presumption of payment but there was actual proof of payment, on the first trial. The defendant too was an administrator and it was his duty to put in this plea, and the statute in one case recognises the difference between persons suing in their own right and in a representative character. For it is the duty of the court to inforce the statute of limitations to protect the estate of decedents whether the executor plead it or not. (f) The defendant in this case was as well entitled to amend his plea, as if the plea offered had been plene administravit, 5 *and it has been adjudged error to refuse that plea, if tendered at any time before trial. (g) But amendments to the declaration are allowable in favor of justice even after a trial and a juror withdraw, (h) and surely the rule should be reciprocal, and the defendant should have the same opportunity to amend his pleadings. Stanard, contra. Admitted the statute of limitations to be an issuable plea and is allowable when offered at the term after office judgment is entered. But the question here is, shall it be allowed after the lapse of years of continuances, and indeed after an actual trial and verdict. It is contended that the plea should have been allowed, because it is admissible within the sound discretion of the court, and this is a proper case for admitting it. As to the staleness of the demand furnishing a presumption of payment; allowing the full force of the argument, the defendant should at least have offered this plea when the new trial was granted, and not on the instant of the second jury's being sworn. Neither party *should be permitted to change the pleadings so as to alter the evidence at the moment of trial. 6 Plene administravit, is unlike other pleas, for that is protected by the statute enacting, that no administrator or executor shall be chargeable beyond assets for any mispleading, &c. Besides, that plea is wholly affirmative and so requires of the plaintiff no new evidence. He insisted strenuously, that the court below could not inquire into the nature of the plaintiff's demand as a preliminary step to deciding on the admissibility of this plea. If the court allow such evidence, either party might adduce it, and thus in every case decide the merits of the cause on the facts by the judgment of the court, when in truth they can be ascertained only by the verdict of a Jury. And if this course was allowable, it does not appear in this case that there were facts in the case to condemn the plaintiffs claim; For whatever may be on the record, it does not appear but that the plaintiff proved his claim to be both just and honest. Besides, there is a general verdict for the plaintiff, and it is going too far to presume against the truth and justice of a verdict. Leigh replied. That he had contended the plea should have been received as an act of justice resulting from many considerations combined, and it has been said that not one of these considerations taken singly is sufficient. That, he thought was not the proper manner of treating such a question; It is a question addressed to the discretion of a court of justice; and though such discretion must ever be regulated by law, it certainly is not by any positive rules of law but rather by the general spirit of law. In such cases, the considerations deducible from convenience, from substantial justice, and from the particular circumstances of each particular case should be The first argument offered to shew this a proper case for allowing the plea is, that it brought case, at July rules 1799, the office judgment was entered and a writ of inquiry awarded. When called for trial in October 1800, the defendant moved to set aside the writ of inquiry, and plead the stat: ute of limitations, to which the plaintiff objected: the court below overruled the objection, and allowed the plea. The court of Appeals 1805 reversed the judgment. Because no sufficient reason ap-7 peared to excuse the delay in pleading the statute, and because the plea relied on 5 years before the plea as a bar, instead of 5 years before suit brought. This case is considered as being overruled by that of Tomlin's administrator v. How's administrator, it was decided by the court of Appeals April 17th 1805 before LYONS. CARRINGTON, ROANE, & TUCKER, Judges.-Edition 1821. (f) 1 Rev. 492. (g) Chisholm v. Anthony, 1 H. & M. 27. (h) Jude v. Syme, 3 Call 352. allowed their full and combined effect. *The objection that the plea might have produced a continuance of the cause, is completely answered by the decision in Chisholm v. Anthony, and the argument is repelled by the considerations of Convenience mentioned by Judge Pendleton. (i) (i) 1 Wash. 28. |