MANDE VILLE V. WILSON. andmerchandise in the said declaration mentioned, were by the said plaintiff sold and delivered to the said defendants, and the said negro in the said declaration mentioned was hired by the plaintiff to the should aver defendants before the month of January, in the year be due upon 1799, the time when the said defendants in their open ac- said rejoinder state their said copartnership was dismerchants. solved, and this the plaintiff is ready to verify." the money 'to an count between To this surrejoinder the defendants demurred, and assigned for cause of demurrer, that "the surrejoinder is a departure in this, that it is no answer to the defendants' rejoinder." Upon joinder in demurrer, the court below gave judgment for the plaintiff. A bill of exceptions stated, that on the day on which the cause was called for trial, the court permitted the plaintiff to withdraw his general replication to the plea of the statute of limitations, and to file the above special replication. And that after the court had given judgment upon the demurrer, it refused to permit the defendants to withdraw their demurrer, and their rejoinder, and to file a general rejoinder to the plaintiff's replication. 2oungs, for the plaintiffs in error. 1. The plaintiff below ought not to have been permitted to withdraw his general replication, and to reply specially. LIVINGSTON, J. Is that a proper subject for a writ of error? Youngs. There are other points; but I suppose it is good ground for a writ of error. It creates delay; and although amendments may be matter of discretion with the court, yet the court is bound to exercise its discretion soundly and legally; it is a. discretion which this court will control. 2. The exception in the statute of limitations in favour of merchants' accounts, applies only to ac counts current, where there have been mutual deal- The replication is repugnant to the declaration; for money due for the hire of a negro cannot be 66 money due on an account current of trade and merchandise." The declaration ought to have stated the money to be due upon such an account. 3. The court below ought to have permitted the defendant to withdraw his demurrer and his rejoinder, and rejoin generally to the replication. E. J. Lee, contra, having cited 3 Wooddeson, 83. 85. as to the principal question, was stopped by the court, as to the error alleged in the permission given by the court below to the plaintiff to amend before trial, and the refusal to allow the defendants after judgment upon the demurrer to withdraw it and take issue on the fact. MARSHALL, Ch. J. observed that the permitting amendments is a matter of discretion. He did not mean to say that a court may in all cases permit or *But see Serjeant Williams's note to that case in his edition of Saunders's Reports. The statute of Virginia, so far as it relates to the questions in this case, is precisely like the British statute of 21 Jac. c. 16. s. 3. MANDE VILLE V. WILSON. 1 MANDE- V. refuse amendments without control. A case may occur where it would be error in a court, after havWILSON. ing allowed one party to amend, to refuse to suffer the other party to amend also before trial. But that is not this case. After the parties have gone to trial upon a set of pleadings, and the judgment has been pronounced, it may be doubted whether the court can permit the demurrer to be withdrawn. It would not be right in all cases, after the party had taken issue upon the law, and it has been decided against him, to suffer him also to take issue upon the fact. If it be permitted, it is a matter of great indulgence. There is no ground for the objection taken to the declaration in this case, that it ought to have averred that the money was due on an account concerning the trade of merchandise. A declaration need not set forth the circumstances which take the case out of the statute of limitations. Youngs cited 6 T. R. 691. Holt v. Scholefield, to show that when general damages are given, if there be one bad count in the declaration, the court will arrest the judgment. MARSHALL, Ch. J. But by the statute of jeofails in Virginia, under whose laws this case was tried, the judgment shall be rendered for the plaintiff, upon a general verdict, if there be one good count in the declaration. On a subsequent day MARSHALL, Ch. J. delivered the opinion of the court, That the exception in the statute applied to actions of assumpsit, as well as to actions of account. That it extended to all accounts current which concern the trade of merchandise between merchant and merchant. That an account closed by the cessation of dealings between the parties is not an account That the stated, and that it is not necessary that any of the Judgment affirmed with costs. MANDE VILLE V. WILSON. PAIRFAX'S EXECUTOR v. ANN FAIRFAX. ministravit the ERROR to the circuit court for the district of Upon the issue Columbia, sitting at Alexandria, in an action of of plene adassumpsit brought by the defendant in error against jury must find the plaintiff in error, as executor. specially the amount of assets in the Upon the issues of non assumpsit and plene ad- hands of the ministravit, the jury found a general verdict, which erwise ་ executor, oth the cannot If the defend ment, and be ser was recorded in this form: "We of the jury find court render judg the issues for the plaintiff, and assess the damages ment upon the to two hundred and twenty dollars and ninety-five verdict. cents." Upon which verdict the judgment of the ant below incourt was that the plaintiff recover against the termarries afdefendant her damages aforesaid in form aforesaid ter the judg assessed, and also her costs by her about her suit fore the in this behalf expended, to be levied of the goods and vice of the writ of error, the chattels of the said Bryan Fairfax, deceased, at the service of the time of his death, in the hands of the said defendant citation upon to be administered, if so much, &c. but if he hath sufficient. not so much, then the costs aforesaid to be levied of the proper goods and chattels of the said defendant; and the said defendant in mercy," &c. The error relied upon by the plaintiff in error was, that the jury had not found the amount of assets in his hands to be administered. Swann, for the plaintiff in error, having cited Esp. N. P. 263. and the case of Booth's Executors v. Armstrong, 2 Wash. 301., was stopped by the court, who requested to hear Mr. E. 7. Lee on the other side. the husband is FAIRFAX'S v . FAIRFAX. E. J. Lee, contra. There was no necessity for the jury to find specially the amount of the assets, for if ever so small a sum had been found, the judgment would have been the same as if assets had been found to the whole amount of the plaintiff's claim. The sum found by the jury would not alter the judgment. It would still have been for the whole debt de bonis testatoris si, &c. and si non, then the costs de bonis propriis. But here the jury have in substance found that the defendant had assets more than sufficient to satisfy the debt due to the plaintiff; for that is the allegation of the plaintiff in her replication, and the jury have found the issue for the plaintiff upon that replication. It is not more necessary to find specially upon this issue than upon non assumpsit or nil debet. There is a difference between this case and that of Booth's Executors v. Armstrong, 2 Wash. 301., for there the finding was not, as here, generally, "we find the issues for the plaintiff;" but "we find for the plaintiff the debt in the declaration mentioned, and one penny damages." The finding there was special, and could not be construed to be a finding of the matter of the plaintiff's replication as the finding in the present case may and ought to be. The cases cited to show that the amount of assets found could not alter the judgment were, 8 Co. 34. Mary Shipley's case. Cro. Eliz. 592. Waterhouse v. Woodstreet. Styles, 38. Gardy v. Ingham. Freem. 351. Oxendan v. Hobdy. Bro. Execution, pl. 34. pl. 82. Godbolt, 178. Newman v. Babington. Cro. Car. 373. Dorchester v. Webb. Lex Test. 414. February 21. MARSHALL, Ch. J. delivered the opinion of the court to the following effect: |